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Freedom of Information request — Notification of Decision

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Freedom of Information request — Notification of Decision

Our reference: FOI 20/21-0663

GPO Box 700 Canberra ACT 2601

17 May 2021 1800 800 110

ndis.gov.au

karen Reynolds By email: foi+request-7257-106e0f47@righttoknow.org.au

Dear Karen Reynolds

Thank you for your correspondence of 15 April 2021, in which you requested access under the Freedom of Information Act 1982 (FOI Act) to documents held by the National Disability Insurance Agency (NDIA).

The purpose of this letter is to provide you with a decision on your request.

Scope of your request

You have requested access to documents about the National Disability Insurance Scheme (NDIS). Specifically, you requested access to:

“Following extensive commentary in the media by Minister Stuart Robert about sex workers, funding of yachts and holidays, I request the following information;

Sex aids

In 2018 - 2021, how many NDIS participants have had sex aids funded (including positioning aids, vibrators, dildos, anal toys, sleeves, penis rings, vacuum pumps, Kegel balls and harnesses) by the NDIS?

How much did these aids cost in total?

How many participants had sex aids modified or purpose built for the purposes of upholding their reproductive rights or access to usual sex or masturbation?

In 2018 - 2021, how many NDIS participants have had other types of aids and equipment (including wheelchairs, hoists, seating systems) funded by the NDIS?

How much did these aids and equipment cost?

Sex workers

In 2018 - 2021, how many NDIS participants have had sex workers funded for the express purpose of participating in sexual intercourse? How much did this cost?

(Note: the definition of sex worker in this context excludes any therapeutic services such as sex education services, trauma therapy, use of a sex therapist, sexologist or registered specialist disability sexual health organisation)

In 2018 – 2021, how many NDIS participants were funded for expressly therapeutic services such as sex education services, trauma therapy, use of a sex therapist, sexologist or registered specialist disability sexual health organisation)?

Decision on access to documents

I am authorised to make decisions under the FOI Act. My decision on your request and the reasons for my decision are set out below.

I have decided to refuse your request for access under section 24A of the FOI Act on the basis that all reasonable steps have been taken to locate the documents you have requested and I am satisfied that they cannot be found or do not exist.

In reaching my decision, I took into account:

  • your correspondence outing the particulars of your request;
  • the FOI Act;
  • the FOI Guidelines;
  • relevant case law and decisions concerning the operation of the FOI Act; and
  • consultation with relevant officers of the NDIA.

Reasons for decisions

Refuse a request for access (section 24A)

Section 24A of the FOI Act provides that an agency may refuse a request for access to a document if all reasonable steps have been taken to find the document and the agency is satisfied that the document does not exist.

We have conducted searches of the NDIA’s documents management systems and made enquiries with the NDIA staff who could be expected to identify the documents falling within the scope of your request. These enquires have revealed that the NDIA is not in possession of documents matching the scope of your request. This is because the NDIA’s reporting systems do not have data at the level of granularity required to answer your request for information.

How much did this cost?

In 2018 – 2021, how many participants were funded for therapy services that excluded sex related services?

How much did this cost?

Yachts

In the past two years, how many yachts (medium sized sailing boat equipped for cruising or racing) have been fully funded by the NDIS?

Under what conditions were the yachts funded?

How much did this cost?

In the past two years, how many participants accessed holidays (excluding Short Term Accommodation where a participant or parent/carer/guardian is funded to access informal respite to take a break from their caring role) have been funded by the NDIS?

How much did this cost?“

I also request all email correspondence between DSS/members of government and parliament and government as well as all reports related to the above.”

In processing your request

In processing your request I have considered if it would be reasonable to create a document containing the information you have requested as outlined in section 17(1) of the FOI Act. I have concluded that it is not reasonably practicable to do so.

I have consulted with relevant business areas and determined that compiling information would constitute an unreasonable diversion of resources. The detailed data you have requested is not held within a single repository and significant manual work would have to be undertaken to extract such information. As such, I am satisfied the obligation to create a document under section 17(1) does not apply to your request.

Additionally, part of your request sought access to correspondence between the Department of Social Services (DSS) and other government agencies. The NDIA does not have visibility or access to documents held by DSS, or correspondence between DSS other entities. I am satisfied that if documents as described by your scope do exist and are held by DSS, the NDIA does not hold a copy and would not have been able to provide data or otherwise contribute at the level of granularity outlined in the scope.

I am satisfied that all reasonable steps have been taken to locate the documents you have requested and that the documents do not exist or cannot be found. I have therefore decided to refuse access to your request in accordance with section 24A(1)(b)(ii) of the FOI Act.

Rights of review

Your rights to seek a review of my decision, or lodge a complaint, are set out at Attachment A.

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

Yours sincerely

Ausilia Woodhead Assistant Director FOI Parliamentary, Ministerial & FOI Branch Government Division

Attachment A

Your review rights

Internal Review

The FOI Act gives you the right to apply for an internal review of this decision. The review will be conducted by a different person to the person who made the original decision.

If you wish to seek an internal review of the decision, you must apply for the review, in writing, within 30 days of receipt of this letter.

No particular form is required for an application for internal review, but to assist the review process, you should clearly outline your grounds for review (that is, the reasons why you disagree with the decision). Applications for internal review can be lodged by email to foi@ndis.gov.au or sent by post to:

Freedom of Information Section Parliamentary, Ministerial & FOI Branch Government Division National Disability Insurance Agency GPO Box 700 CANBERRA ACT 2601

Review by the Office of the Australian Information Commissioner

The FOI Act also gives you the right to apply to the Office of the Australian Information Commissioner (OAIC) to seek a review of this decision.

If you wish to have the decision reviewed by the OAIC, you may apply for the review, in writing, or by using the online merits review form available on the OAIC’s website at www.oaic.gov.au, within 60 days of receipt of this letter.

Applications for review can be lodged with the OAIC in the following ways:

Complaints to the Office of the Australian Information Commissioner or the Commonwealth Ombudsman

You may complain to either the Commonwealth Ombudsman or the OAIC about actions taken by the NDIA in relation to your request. The Ombudsman will consult with the OAIC before investigating a complaint about the handling of an FOI request.

Your complaint to the OAIC can be directed to the contact details identified above. Your complaint to the Ombudsman can be directed to:

Your complaint should be in writing and should set out the grounds on which it is considered that the actions taken in relation to the request should be investigated Division.