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Freedom of Information request — Internal Review Decision

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Freedom of Information request — Internal Review Decision

Thank you for your correspondence of 21 March 2025, in which you requested an internal review of the decision made by the National Disability Insurance Agency (NDIA) on 21 March 2025 (Original Decision), in relation to your request for access to documents under the Freedom of Information Act 1982 (FOI Act).

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

Original Decision

On 21 March 2025 the NDIA provided you with the Original Decision in relation to your request. In accordance with that decision, you were refused access to one (1) document on the grounds that the document was exempt under section 47E(d) of the FOI Act.

Internal Review

You have requested an Internal Review on the following grounds:

“…I am writing to request an internal review of National Disability Insurance Agency’s handling of my FOI request ‘NDIA technical advisory referral list’.

Thank you for the timely decision

I understand the reasoning about supports. I’m not after the information on level of supports. I’m interested in the list of conditions. If I’m an assessor, what conditions am I required to send to TAB and/or get TAB’s advice on before approving?

To respond to this request in compliance with the FOI Act NDIA could create a list to disclose (as this doesn’t have information about supports) or redact the document found so the information on level of support isn’t disclosed but the rest is…“

Review of Document in Scope of Original Decision

In processing your request for an internal review, I reviewed the scope of your original application, the document that was refused in full under section 47E(d) of the FOI Act, and the grounds on which you sought an internal review.

The document that was refused as part of the Original Decision was 51 pages long and contains information about when advice needs to be sought from the Technical Advice and Practice Improvement Branch (TAPIB) including requests for access to the scheme or requests for supports.

Decision on Your Request for Internal Review

I am authorised to make decisions under section 23(1) of the FOI Act, including internal review decisions under section 54C.

In undertaking an internal review, I am not bound in any way by the Original Decision and am required to review the Original Decision and make a fresh decision in accordance with section 54C(3) of the FOI Act.

I have decided to vary the Original Decision, as such, I have decided to:

  • Grant access in part to 1 document in accordance with section 22 – Access to edited copies with exempt or irrelevant matter deleted on the grounds that the deleted material is considered exempt under 47E(d) – Public interest conditional exemptions – certain operations of agencies of the FOI Act; and
  • Remove irrelevant material in accordance with section 22 of the FOI Act

In making my decision, I have considered the following:

  • Your correspondence in relation to your original request
  • The content of the documents falling within the scope of your request
  • The Original Decision dated 21 March 2025
  • Your grounds for seeking an internal review of the Original Decision
  • The FOI Act
  • The FOI Guidelines published under section 93A of the FOI Act
  • Factors relevant to my assessment of whether disclosure would or would not be in the public interest
  • Advice provided by the relevant business area
  • The NDIA’s operating environment and functions

Section 22 – Access to edited copies with exempt or irrelevant material deleted

Section 22 of the FOI Act permits an agency to prepare and provide an edited copy of a document where the agency has decided to refuse access to an exempt document or that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access.

I have identified both exempt and irrelevant material in 1 document and am satisfied that it is reasonably practicable to remove this information and release the document to you in material form.

Reasons For Decision

Certain operations of agencies (section 47E(d)) Section 47E(d) of the FOI Act states:

A document is a conditionally exempt if its disclosure under this act would, or could reasonably be expected to, do any of the following:

  • have a substantial adverse effect on the proper and efficient conduct of the operations of the agency.

The FOI Guidelines, at paragraph 6.115, state:

The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the agency is undertaking its operations in an expected manner.

The document within the scope of your request contains criteria used by the NDIA to determine if an application to the access the Scheme requires advice from the TAPIB. Disclosure of this information would:

  • Enable applicants to the scheme to compare publicly available information with the criteria used by the NDIA, which would provide information on which aspects of access decisions are made by delegates, and which are referred to the TAPIB for advice; and
  • Enable applicants to manipulate justifications/recommendations for a potential participant, including supports they may require to enhance their application to the scheme; and
  • Increase the risk that participants are inappropriately diagnosed, or evidence provided be manipulated to exclude the need for an application to be reviewed by the TAPIB.

Accordingly, I consider the release of this information would reasonably have a substantial adverse effect on the proper and efficient conduct of the agency and is exempt under 47E(d) of the FOI Act.

Public interest considerations – Section 47E

Section 11A(5) of the FOI Act states:

The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

Irrelevant factors

I have examined the irrelevant factors in section 11B(4) of the FOI Act and I am satisfied I have not taken into account any irrelevant factors in reaching my decision.

Factors favouring disclosure

I have considered the factors favouring disclosure as set out in section 11B(3) of the FOI Act. The relevant factors being whether access to the document would:

  • (a) promote the objects of this Act (including all the matters set out in section 3 and 3A);
  • (b) inform debate on a matter of public importance;
  • (c) promote effective oversight of public expenditure

In favour of disclosure, I have considered these factors and have determined that disclosure of the information in the documents would promote the objects of the FOI Act (including all matters set out in sections 3 and 3A).

This is because providing access to documents held by the NDIA allows for increased scrutiny, discussion, comment, and review of government held information.

I have therefore decided to afford significant weight to this factor in favouring disclosure of the document to you.

Factors weighing against disclosure

The FOI Act does not list any factors weighing against disclosure. These factors will depend on the circumstances. However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that harm may result from the disclosure of some types of documents in certain circumstances.

Paragraph 6.233 of the FOI guidelines provides a non-exhaustive list of public interest factors against disclosure. The factors I find relevant to this request are that release of this information could reasonably be expected to:

  • result in the misuse of resources by necessitating increased scrutiny from delegates reviewing scheme access requests; and
  • result in delegates making uninformed decisions if evidence provided by a potential participant is manipulated or details of a condition are downplayed; and
  • allow unfair access and undermine the integrity and financial stability of the NDIS.

On balance

I am satisfied, based on the above, the public interest factors against disclosure outweigh the factors for disclosure, and that, on balance, it is against the public interest to release the information to you. Accordingly, I find that the information is exempt under section 47E(d) of the FOI Act.

Release of document

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

Rights of Review

I have set out your rights to seek a review of my decision at Attachment B.

If you would like to clarify any aspects of my decision, please do not hesitate to contact me via email as xxx@xxxx.xxx.xx.

If there is further information you wish to access, I invite you to make a fresh FOI request outlining the kind of information you wish to access.

Publication

The NDIA will publish the document released to you on our Disclosure Log. NDIA’s policy is to publish the document within 10 business days after they are released to you.

If you have any questions in regards to this request, please contact the FOI Team on the above contact details.

Yours sincerely, Patrick (PHO293) Senior Freedom of Information Officer Information Release, Privacy and Legal Operations Branch Reviews and Information Release Division

Schedule of Documents for IR 24/25-021

Document Number Pages Original Decision Internal Review Decision Comments
1 1 - 3 REFUSED ACCESS Exemption claimed: s47E(d) – certain operations of agencies PARTIAL ACCESS Exemption claimed: s47E(d) – certain operations of agencies Irrelevant material removed under section 22 of the FOI Act

Your rights of review

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