Freedom of Information request — Notification of Decision under section 55G

On 6 September 2024, the National Disability Insurance Agency (Agency), received a request from you under the Freedom of Information Act 1982 (FOI Act).

The purpose of this letter is to provide you with a decision and reasons for the decision, in relation to your request, under section 55G of the FOI Act.

Scope of your request

You have requested access to the following documents:

“A copy of all ‘Advice Support Tool’ documents held by the NDIA. I agree for the surnames and contact details of any staff to be redacted, but please otherwise provide the documents in their entirety.”

Procedural background

The Agency has been experiencing processing delays and was not able to provide you with our decision by the original due date. Consequently, we are deemed to have refused your application under section 15AC of the FOI Act. I sincerely apologise for the delay in relation to your request.

On 8 November 2024, the Agency provided you with reasons for decision in relation to your request (Original Decision). Specifically, the Original Decision refused access to all 67 documents within scope of your request on the basis that the decision-maker considered that the documents were conditionally exempt under s 47E(d) of the FOI Act and that disclosure of the documents was contrary to the public interest.

Decision on access to documents

I am an authorised decision maker under section 23 of the FOI Act to make decisions in respect of requests to access documents. Having given further consideration to the documents which are the subject of your request, I have determined it is appropriate to set aside and substitute the Original Decision pursuant to section 55G(1)(a) of the FOI Act so as to give you access to parts of the documents.

I have identified 64 documents, which fall within the scope your request, being the Agency’s “Advice Support Tools”. I note that the Original Decision refers to 67 documents within scope of the request. However, this figure included 3 documents which were duplicates. I have removed these duplicates and can confirm that there are only 64 documents within the scope of your request.

I have decided to disclose:

• one document in full; and
• 63 documents in part.

In reaching my decision, I took the following into account:

• your correspondence outlining the scope of your request
• the nature and content of the documents falling within the scope of your request
• the FOI Act
• the FOI Guidelines published under section 93A of the FOI Act
• consultation with relevant NDIA staff
• factors relevant to my assessment of whether or not disclosure would be in the public interest
• the NDIA’s operating environment and functions.

Reasons for decision

Certain operations of agencies (section 47E(d))

Section 47E(d) of the FOI Act conditionally exempts a document if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

The NDIAs Advice Support Tools (the Tools) are an internal resource that have been developed for the exclusive use of Technical Advisors, who are allied Health Professionals engaged by the NDIA, to ensure consistency in the provision of advice to delegates of the NDIA. The tools outline specific detail on how to determine if supports are reasonable and necessary against a specific criterion, and the quantum / intensity / volume of the supports that a participant should receive based on evidence provided – such as reports from therapists or providers.

I note that in Shafran; Secretary, Department of Veterans Affairs and [2024] AATA 115 at [36], the Tribunal summarised the authorities relevant to the words “would or could reasonably be expected to” in s 47E(d) as follows (citations omitted):

[the words

I note that each of the Agency’s “Advice Support Tools” (Tools) generally comprises of:

• preliminary text describing the Theme and Sub-theme of the particular Tool, and sometimes including detailed guidance (preliminary text);

• a table split into 3 columns, being:

  • Criteria for reasonable and necessary supports (first column);

  • Is criteria met?; and

  • Considerations (including evidence used) (third column);

• a “Version Control” table.

I note that the Tools provide specific guidance to a group of experts engaged by the Agency for the purpose of assisting those experts to assess submissions and evidence lodged by NDIS providers and participants as against the relevant statutory criteria, in order to produce technical expert advice to NDIA delegates in making their decisions as to eligibility for particular supports and the level in which those supports should be provided.

I further note that particular parts of the Tools contain specific examples, or references to particular kinds of situations or circumstances, for the expert’s consideration in assessing whether the information and evidence submitted by NDIS providers or participants may be considered to satisfy the relevant criteria in the legislation. Depending on the particular Tool, this text outlining guidance regarding specific examples or by reference to particular situations can be found within the preliminary text, first column and/or third column of the relevant Tool.

I am satisfied that public disclosure of these particular parts of the Tools would mean that NDIS providers, NDIS participants, and participants’ treating practitioners, will know how a technical expert is likely to assess particular evidence and information so as to determine whether relevant statutory criteria are satisfied, and the kind of evidence and submissions that is likely to ensure that particular requested supports are then recommended by the expert to be approved, both generally and in particular circumstances and by reference to the specific examples in those parts of the Tools.

I consider that the disclosure of that information is highly likely to result in:

i. prescribing therapists, with knowledge of the factors considered and thresholds for each criteria, may report to address that criteria in a manner

NDIS Considerations

• that “matches” the described considerations and/or circumstances in the tools, rather than reporting objectively on the participant’s function and anticipated support needs;

ii. NDIS participants, with the knowledge of the guidance in those parts of the Tools, may (whether knowingly or unknowingly) provide answers to their treating practitioners and/or to the Agency that are more likely to fit within that specific guidance;

iii. the “tailoring” of information or submissions (whether knowingly or unknowingly), will in turn result in findings that requested supports are reasonable and necessary in circumstances where they would otherwise not be approved;

iv. the NDIS provider market being impacted because participants may be more likely to engage providers and practitioners that report against the particular guidance in the Tools, as opposed to providing objective reporting on a participant’s condition and circumstances; and

v. the increase in fraud by NDIS participants and providers, which is unfortunately a prevalent and well-known issue that the Agency is actively addressing.

In all of these circumstances, I am satisfied that particular parts of the Tools are conditionally exempt under s 47E(d) because its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of the NDIA.

In considering whether access to the conditionally exempt material would be contrary to the public interest for the purposes of s 11A(5) of the FOI Act, I acknowledge that there are several factors favouring access to the material, including that disclosure may:

• promote the objects of the FOI Act by giving the Australian community access to information held by government and promoting representative democracy by increasing scrutiny, discussion, comment and review of government activities; and

• promote scrutiny and oversight of the Agency’s operations and its decision-making processes.

I consider that public interest factors weighing against disclosure of the conditionally exempt

material in the Tools include:

• the public interest in preventing and minimising manipulation of the NDIS and ensuring that information provided by participants in support of their claims are as accurate as possible;

• the public interest in preventing and minimising fraud;

• the public interest in ensuring the integrity of expert advice and assessment, and of the NDIA’s decision-making process; and

• the public interest in maintaining the sustainability and integrity of the National Disability Insurance Scheme as a whole.

In weighing up the public interest for and against disclosure, I have not taken into account the irrelevant factors outlined in s 11B(4) of the FOI Act.

I have taken into account the significant adverse impacts that disclosure of the conditionally exempt information would have on the NDIA’s operations, and in particular:

• the likely increase in manipulation (whether knowingly or unknowingly) of the decision-making processes by providers, practitioners and participants;

• the likely increase in fraud as against the NDIA; and

• the likely significant impact that such fraud or manipulation would have on the integrity of the Agency’s decision-making processes and on the sustainability of the NDIS as a whole,

Considering the above factors, on balance, I have determined the public interest factors against disclosure outweigh those in favour.

Accordingly, I have determined that those parts of the documents should not be released on the basis that they are conditionally exempt pursuant to s 47E(d) and because, on balance, disclosure of the material in these documents would be contrary to the public interest.

Release of documents

The documents for release, as referred to in the Schedule of Documents at Attachment A, are enclosed.

Rights of review

In accordance with s 55G(2) of the FOI Act, the Agency understands that your application for IC review (MR25/00038) is now an application for review of this new decision.

In accordance with section 55G(2) of the FOI Act, I will be providing the IC with a copy of this revised decision.

If you determine that you are satisfied with this revised decision and do not require this decision to be reviewed further by the IC, please let the Agency and the OAIC know.

Should you have any enquiries concerning this matter, please do not hesitate to contact me by email at foi@ndis.gov.au.

Yours sincerely

Karla (KHC190) Assistant Director, Information Access Information Release, Privacy and Legal Operations Branch Reviews and Information Release Division