Freedom of Information request — Notification of Decision

Thank you for your correspondence of 02 October 2024, in which you requested access to documents held by the National Disability Insurance Agency (NDIA), under the Freedom of Information Act 1982 (FOI Act).

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

Scope of your request

You have requested access to the following documents:

“Dear Freedom of Information Officer, I am writing to request access under the Freedom of Information Act 1982 to documents held by the National Disability Insurance Agency (NDIA) pertaining to the activities of the NDIA Audit & Risk Committee from June 2023 to the current date. Specifically, I seek access to the following:

1. All reports prepared by the NDIA Audit & Risk Committee.

2. Minutes of meetings and actions taken by the NDIA Audit & Risk Committee.

3. Directions issued by the NDIA Audit & Risk Committee.

4. Any records of communication (including emails, memos, and written correspondences) pertaining to the Committee’s role in reviewing and providing advice to the Board on the following aspects:

Financial reporting.

Performance reporting.

Systems of risk management

Systems of internal control and administrative performance.

These documents are sought to understand and review the adequacy and appropriateness of the Agency’s systems and practices in the areas mentioned, in line with the PGPA Act 2013.

For ease of reference, I have numbered the specific types of documents you seek access to from 1 to 4.

Processing period

We have been experiencing processing delays and were not able to provide you with our decision by the 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 releasing this decision to you.

We have continued processing your request. In the interests of not causing any further delays, I have decided not to apply for an extension to the processing period from the Office of the Australian Information Commissioner (OAIC) under section 15AC of the FOI Act to protect your internal review rights. However, you may still apply for an external review of the Agency’s decision with OAIC (although you may also need to apply to OAIC for an extension of time in circumstances where we understand that you have not to date applied for OAIC review of the Agency’s deemed refusal decision). Please see Attachment B for more information about your rights of review.

Decision on access to documents

I am authorised to make decisions under section 23(1) of the FOI Act. My decision on your request and the reasons for my decision are set out below.

I have identified 21 documents, which fall within the scope of point 2 your request. No documents were found within scope of items 1, 3 and 4 of your request in circumstances where the NDIA Audit and Risk Committee does not prepare reports or issue directions and nor does it provide written advice to the Board on matters relating to financial reporting, performance reporting, systems of risk management and/or systems of internal control and administrative performance.

These 21 documents were identified by conducting searches of NDIA’s systems, using all reasonable search terms that could return documents relevant to your request, and consulting with NDIA staff in the Board & Governance team, Ecosystem Reform & Governance Branch, Government Division who have the responsibility for the Secretariat function of the Risk and Audit Committee.

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Reasons for decision

Irrelevant material (section 22)

Documents 18-21 are minutes of the NDIA Board, and as such they comprise information that, for the most part, does not relate to the activities of the NDIA Audit & Risk Committee and is accordingly not within the scope of your request.

Given I was satisfied that it was reasonably practicable to prepare an edited copy of Documents 18-21, I have deleted all material that is out of scope of your request in accordance with s 22 of the FOI Act.

Legal Professional Privilege (section 42)

Section 42(1) of the FOI Act provides:

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

Parts of documents 1, 4, 5, 9, 15, 16 and 17 comprise summaries of internal legal advice provided by lawyers employed by the NDIA (working within the Governance, Risk and Legal, and Risk & Integrity teams) to the NDIA committees and Board. I am satisfied that these communications were made in the context of a legal adviser - client relationship, confidentially, and for the dominant purpose of giving or receiving legal advice.

am satisfied that the lawyers, while employed by the NDIA, were acting independently from

the committees and Board. The role of these legal advisors in the meetings to which the relevant documents relate was limited and they are not listed as being members of either the Audit & Risk Committee or the Board. The advice was provided in their capacity as legal advisors who advise a range of areas of the agency as required. I am satisfied that these documents are subject to legal professional privilege, and that they would be privileged from production in legal proceedings on this basis.

I am also satisfied that the NDIA has not waived its claim of privilege in relation to the legal advice contained in these documents. That is because these documents have not otherwise been disclosed outside of the agency (and within the agency have only been disclosed to specific individuals as required).

I am satisfied that real harm would be occasioned if the content of the legal advice was disclosed, and also if the Board and NDIA committees could not be confident of their ability to receive independent legal advice in meetings without it being disclosable in response to FOI requests.

Further, I am satisfied that these documents are not ‘operational information’ as defined in s 8A of the FOI Act.

Accordingly, I have determined that parts of these documents are exempt pursuant to s 42(1) of the FOI Act.

Commonwealth – State relations (section 47B)

Section 47B of the FOI Act relevantly provides:

A document is conditionally exempt if disclosure of the document under this Act:

    (a) would, or could reasonably be expected to, cause damage to relations
between the Commonwealth and a State; …

I am satisfied that particular passages in documents 1, 9 and 15 contain information that, if disclosed, would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State. In particular, I consider that disclosure of the information would adversely affect the level of trust and co-operation in existing relationships between the agency and the Department of Social Services and its State counterparts. That is because it would disclose frank observations made about a State’s timely compliance with financial obligations in relation to the NDIS Scheme. It may impair or prejudice the future

Flow of Information from State to Commonwealth

The flow of information from that State to the Commonwealth and may impede the ability of the agency and the Department of Social Services to effectively negotiate and maintain its working relationship with that State, including in relation to the NDIS Scheme. Notably, the NDIS Scheme continues to require ongoing cooperation between the Commonwealth and States. In this respect, the disclosure would also adversely affect the administration of a continuing Commonwealth-State project.

Accordingly, I am satisfied that these passages are conditionally exempt pursuant to s 47B(a) of the FOI Act.

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 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;
• potentially inform public debate on a matter of public importance; and
• potentially promote effective oversight of government expenditure on the NDIS program and in relation to the agency.

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

• would adversely affect the level of trust and co-operation in existing relationships between the agency and the Department of Social Services and its State counterparts;
• will adversely affect the operations of current Commonwealth-State mutual projects and the development of future mutual projects; and
• will impede the ability of agency officers to provide detailed information and analysis to relevant stakeholders in relation to matters of significant public importance, including financial matters associated with the NDIS Scheme, and in particular by reference to States/Territories.

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.

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.

I am satisfied that documents 1, 4, 8, 9, 15, 16, and 17 contain information relating to certain operations of the NDIA the disclosure of which could reasonably have a substantial adverse effect on the proper and efficient conduct of the operations of the Agency, being in particular:

• information detailing the Agency’s activities, initiatives and strategy in relation to fraud investigations and combatting fraud, or in relation to internal assessments of Agency administrative decision-making; or

• information in relation to a State (the same information in respect of which I have found that s 47B applies).

I consider that any disclosure of the information that relates to the Agency’s specific activities, initiatives and strategy in relation to fraud investigations or internal assessments of its decision-making would, or could reasonably be expected to, have a substantial adverse effect on the Agency’s ongoing activities in combatting fraud and in being able to effectively assess its decision-making practices. This is because the disclosure of the Agency’s activities, operational methods and procedures in this context would, or could reasonably be expected to, significantly compromise the Agency’s ongoing fraud prevention activity and active fraud investigations which should remain confidential in order for them to remain effective. Disclosure would also likely result in the need for the Agency to change those activities, methods and procedures to ensure their ongoing and future effectiveness.

Consideration of Conditional Exemption

I consider that the disclosure of the information that relates to a State would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of the NDIA because it would adversely affect the level of trust and co-operation in existing relationships between the agency and the Department of Social Services and its State counterparts, and will adversely affect the operations of current Commonwealth-State mutual projects and the development of future mutual projects.

Accordingly, I have decided that the relevant information in Documents 1, 4, 8, 9, 15, 16, and 17 is conditionally exempt under section 47E(d) of the FOI Act.

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;

• potentially inform public debate on a matter of public importance;

• potentially promote effective oversight of government expenditure on the NDIS program and in relation to the agency.

I consider that public interest factors weighing against disclosure of the conditionally exempt material that relates to the Agency’s fraud prevention activity or assessment of its decision-making include that disclosure:

• would prejudice the NDIA’s ability to effectively implement strategies and coordinate activities to combat fraud and to assess its internal decision-making processes;

• would prejudice the ability of the Board and its committees to operate effectively, by denying them the ability to engage in confidential discussions (where appropriate);

• would prejudice the ability of the Board and its committees to receive and consider advice provided to them in full candour;

• would disclose substantial information about the Agency’s fraud prevention activities and strategies, which I accept, given their subject matter, to be sensitive in nature.

I consider that public interest factors weighing against disclosure of the conditionally exempt material that relates to a State include (as I found above in considering the public interest in respect of s 47B) that disclosure:

• would adversely affect the level of trust and co-operation in existing relationships between the agency and the Department of Social Services and its State counterparts;

• will adversely affect the operations of current Commonwealth-State mutual projects and the development of future mutual projects; and

• will impede the ability of agency officers to provide detailed information and analysis to relevant stakeholders in relation to matters of significant public importance, including financial matters associated with the NDIS scheme, and in particular by reference to States/Territories.

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.

In relation to material that relates to the Agency’s fraud prevention and decision-making activity, on balance, I consider that given the significant adverse impacts that disclosure of the conditionally exempt information would have on the NDIA’s ability to effectively implement and conduct activities in order to combat fraud and effectively assess its internal decision-making processes, the public interest factors against disclosure outweigh those in favour.

In relation to material in relation to a State, on balance, I consider that given the significant adverse impacts that disclosure of the conditionally exempt information would have, both on Commonwealth-State relations and current mutual projects and on the Agency’s ability to effectively provide advice to the Board and its committees on matters of significant public importance, 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.

Deliberative material (section 47C)

Section 47C of the FOI Act conditionally exempts a document if its release would disclose deliberative matter in the nature of, or relating to, opinion, advice or recommendation

Deliberative Processes

obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency.

Paragraph 6.59 of the FOI Guidelines provides that deliberative process generally refers to the process of weighing up or evaluating competing arguments or considerations or to thinking processes – the process of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.

Documents 1, 4, 8, 9, 15, 16, and 17 contain deliberative matter in the form of opinion, advice and recommendations recorded during discussions held by members of the Audit and Risk Committee. I note that these are the same parts of the documents that I have found to be exempt under s 47E(d) above.

Section 47C(2) of the FOI Act provides that deliberative matter does not include purely factual material. The FOI Guidelines provide that ‘purely factual material’ does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in or intertwined with the deliberative content such that it is impractical to excise it.

I am satisfied that documents 1, 4, 8, 9, 15, 16, and 17 contain information that meets the definition of ‘deliberative matter’. I am also satisfied that to the extent that the parts of the documents contain factual material, the factual material is an integral part of the deliberative content, or is embedded or intertwined with the deliberative content such that it is impractical to excise.

Therefore, I find that parts of documents 1, 4, 8, 9, 15, 16, and 17 do not contain purely factual material, and are conditionally exempt under section 47C of the FOI Act.

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 access would:

• 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;

• potentially inform public debate on a matter of public importance; and

• potentially promote effective oversight of government expenditure on the NDIS
• program and in relation to the agency.

I consider that public interest factors weighing against disclosure of the conditionally exempt material that relates to the Agency’s fraud prevention or assessment of its decision-making activity include (as I have found above in considering the public interest for the purpose of s 47E(d)) that disclosure:

• would prejudice the NDIA’s ability to effectively implement strategies and coordinate activities to combat fraud and to assess its internal decision-making processes;
• would prejudice the ability of the Board and its committees to operate effectively, by denying them the ability to engage in confidential discussions (where appropriate);
• would prejudice the ability of the Board and its committees to receive and consider advice provided to them in full candour;
• would disclose substantial information about the Agency’s fraud prevention activities and strategies, which I accept, given their subject matter, to be sensitive in nature.

I consider that public interest factors weighing against disclosure of the conditionally exempt material that relates to a State include (as I found above in considering the public interest in respect of ss 47B and 47E(d)) that disclosure:

• would adversely affect the level of trust and co-operation in existing relationships between the agency and the Department of Social Services and its State counterparts;
• will adversely affect the operations of current Commonwealth-State mutual projects and the development of future mutual projects; and
• will impede the ability of agency officers to provide full and frank advice to the Board and to its committees in relation to matters of significant public importance, and in particular by reference to States/Territories.

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.

In relation to material that relates to the Agency’s fraud prevention and decision-making activity, on balance, I consider that given the significant adverse impacts that disclosure of

Personal privacy (section 47F)

Section 47F of the FOI Act conditionally exempts a document if its disclosure would involve the unreasonable disclosure of personal information about any person (including a deceased person).

I have identified material in documents 8 and 15 which contains personal information of members of the committee and third parties, specifically details related to disclosure of conflict of interests and individuals’ personal circumstances.

Under section 47F(2) of the FOI Act, in determining whether the disclosure of documents would involve unreasonable disclosure of personal information, regard must be had to:

• a. the extent to which the information is well known;
• b. whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
• c. the availability of the information from publicly accessible sources; and
• d. any other matters that the agency considers relevant.

Against these criteria, I take the view that:

• a. it is apparent from the information that each individual is identifiable, as the information includes the individuals’ names;
• b. the information is not well known and is not readily available from publicly accessible sources;

c. the individuals concerned are not generally known to be associated with the matters to which the information relates, being details of those individuals’ interests.

I note that the Australian Information Commissioner has been reluctant to disclose personal interest declarations in response to FOI requests: ‘Z’ and Australian Securities and Investments Commission [2013] AICmr 43 (Z v ASIC); Ben Butler and Australian Securities and Investments Commission [2022] AICmr 78 (Ben Butler).

With reference to the assessment above, I am satisfied that it would be unreasonable to disclose publicly this personal information and that it is therefore conditionally exempt under section 47F(1) of the FOI Act.

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 access to the material could be said to promote the objects of the FOI Act by providing the applicant with access to information held by government. While the public may have some degree of curiosity about the personal interests of agency staff or members of the Board, I do not consider that disclosure of this information would necessarily go to any matter of public importance such that their disclosure would be in the public interest (see, by analogy, Z v ASIC at [18]). I do acknowledge, similarly to the finding in Ben Butler at [60], that disclosure could reasonably be expected to improve transparency in the agency’s conflict of interest disclosure processes. However, I consider that the contents of the material do not outline agency processes or procedures to any substantial degree.

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

• would significantly impact on the privacy of the individuals to which the information relates; and
• would result in individuals being reluctant to disclose personal information to the Board and its committees in circumstances where that information is then disclosed publicly by the Agency.

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.

On balance, I consider that given the significant adverse impacts that disclosure of the conditionally exempt information would have on the relevant individuals’ privacy, and on the

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 cannot be found or does not exist.

I have conducted searches of the NDIA’s documents management systems and made enquiries with NDIA staff. These enquiries have revealed that the NDIA is not in possession of documents matching the scope of points 1, 3 and 4 your request. This is because the NDIA Audit and Risk Committee does not prepare reports or issue directions, nor does it provide written advice to the Board on matters relating to financial reporting, performance reporting, systems of risk management and/or systems of internal control and administrative performance.

I am satisfied that all reasonable steps have been taken to locate the documents you have requested and that the documents pertaining to points 1, 3 and 4 of your request do not exist. I have, therefore, decided to refuse access to documents (so far as they relate to points 1, 3 and 4 of your request) in accordance with section 24A(1)(b)(ii) of the FOI Act.

Release of documents

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

Rights of review

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

Should you have any enquiries concerning this matter, please do not hesitate to contact me

by email at foi@ndis.gov.au.

Yours sincerely

Kate (KIM627) A/Assistant Director – Freedom of Information Complaints Management & FOI Branch General Counsel Division

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Schedule of Documents for FOI 24/25-0433

Attachment A

Document number	Page number	Description	Access Decision	Comments
1	1-3	Audit and Risk Committee Matters Arising Report Date: September 2024	PARTIAL ACCESS	Applicable Exemption(s): s42 — legal professional privilege s47B — Cth-State relations s47C — deliberative processes s47E(d) — certain operations of agency
2	4-5	Audit Co Matters Arising Report Date: September 2023	FULL ACCESS	-
3	6-7	Risk Co Matters Arising Report Date: November 2023	FULL ACCESS	-
4	8-12	Risk Co Matters Arising Report Date: September 2023	PARTIAL ACCESS	Applicable Exemption(s): s42 — legal professional privilege s47C — deliberative processes s47E(d) — certain operations of agency
5	13-16	Risk Co Matters Arising Report Date: June 2024	PARTIAL ACCESS	Applicable Exemption(s): s42 — legal professional privilege
6	17	Audit & Risk Committee Meeting Date: March 2024	FULL ACCESS	-
7	18	Audit Co Matters Arising Report Date: November 2023	FULL ACCESS	-

Attachment B

Your review rights

As this matter was a deemed refusal, internal review of this decision is not an option. However, if you have concern with any aspect of this decision, please contact the NDIA FOI team by email foi@ndis.gov.au or by post:

  Freedom of Information Section
   Complaints Management & FOI Branch
  General Counsel Division
   National Disability Insurance Agency
GPO Box 700
 CANBERRA ACT 2601

Review by the Office of the Australian Information Commissioner

In circumstances where the Agency’s deemed refusal decision was made more than 60 days ago and the Agency understands that to date you have not sought review by the Office of the Australian Information Commissioner (OAIC) of that decision, if you wish to apply to OAIC to seek a review of the Agency’s decision, you may need to seek an extension of time from OAIC. The FOI Guidelines provide¹ that where an application for review of a deemed refusal decision is made outside of the 60 day period, OAIC may consider an application for review to also be an application for an extension of time to apply for OAIC review.

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.

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

- Online:   www.oaic.gov.au
- Post:    GPO Box 5218, Sydney NSW 2001
- Email:    enquiries@oaic.gov.au

Phone: 1300 363 992 (local call charge)

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:

• Phone: 1300 362 072 (local call charge) - Email: ombudsman@ombudsman.gov.au

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.

¹ [10.48] of the FOI Guidelines.