EC23-001336
LEX ID 2012

Mr Ace Chapman

By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Chapman,

Freedom of Information Request No. (48) 22/23 - 4
Notice of Decision on Access under the Freedom of Information Act 1982 (Cth)

I refer to your email received by the NDIS Quality and Safeguards Commission (Commission) on 3
June 2023, in which you requested access under the Freedom of Information Act 1982 (Cth)
(FOI Act). On 5 June 2023, you provided a refined scope which sought:
“1. Official correspondence, including but not limited to emails and letters, between the
Senior Executive Service (SES) Officers: Tracey Mackey [sic], Sian Leatham, Catherine Meyer
[sic], Lisa Pulko, and Comcare, in relation to the aftermath of the issuance of the Provisional
Improvement Notice from April 23, 2023, to present. This excludes the PIN itself and the
appeal document sent to Comcare, which is publicly accessible.

2. Internal communications among the aforementioned SES Officers about the Provisional
Improvement Notice, its implications, and its communication within the Commission within
the same date range.

3. Reports or assessments conducted by the Commission in response to the Provisional
Improvement Notice within the specified date range, with direct involvement or oversight
from the listed SES Officers. The appeal document sent to Comcare is not included in this
request.
4. Clarification on the exact date the Commission received the original Provisional
Improvement Notice sent c/o the Department of Social Services (DSS).”
You agreed to remove drafts, duplicates, specific documents, Commission staff names, and other
documents from the scope of the request.

On 21 June 2023, the Commission advised you of the requirement to consult third parties under
section 27 and 27A of the FOI Act. This extended the deadline for decision to 2 August 2023.

Decision
The Commission has identified 48 documents, as well as 10 additional attachments and 1 image (134
pages), falling within the scope of your freedom of information (FOI) request.

The documents are set out in Attachment A.

The documents contain material relevant to your FOI request, including material and documents
exempt under sections 42, 47C, 47E(c), 47E(d), and 47F of the FOI Act.

In accordance with section 22 of the FOI Act, where reasonably practicable, redactions have been
made to exempt irrelevant or exempt material.

T 1800 035 544
PO Box 210
E xxx@xxxxxxxxxxxxxx.xxx.xx
Penrith NSW 2750

www.ndiscommission.gov.au

I have decided to grant access to the edited documents.

I have decided to refuse access to four documents and three attachments.

Reasons for decision
The reasons for my decision on access are set out in the Statement of Reasons at Attachment B.

FOI Disclosure Log
In accordance with the requirements of section 11C of the FOI Act, the Commission is required to
publish details of information released under the FOI Act, subject to certain exemptions.
I am satisfied that details of the redacted documents disclosed to you as part of your FOI request
should be published on the Commission’s FOI disclosure log. For further information about the
Commission’s FOI disclosure log please refer to our website:
https://www.ndiscommission.gov.au/about/freedom-information/foi-disclosure-log

Review rights and complaints
If you are unhappy with my decision, you can find information about your rights of review, and how
you can make a complaint about the handling of your request at Attachment C.

Contact
If you wish to discuss my decision, please contact the FOI team via email at
xxx@xxxxxxxxxxxxxx.xxx.xx

Yours sincerely

Linda Blue
Director, Major Initiatives.
2 August 2023

2

EC23-001336
LEX ID 2012

ATTACHMENT A

FOI Request No. (48) 22/23 - 4

FOI Decision
SCHEDULE OF DOCUMENTS

Pages
Date
Description
Decision / Exemption
Point of Scope
1 - 3
Email chain ending 9
Document 1
Section 22
Point 2
May 2023

4 - 6
Email chain ending 1
Document 2
Section 22
Point 2
May 2023

Point 3
7 - 9
Email chain ending 1
Document 3
Section 22
Point 2
May 2023
Section 47F
Point 3
10 – 11
Email chain ending 12
Document 4
Section 22
Point 2
May 2023

12 - 16
12 May 2023
Attachment 1
Section 22
Point 2
17 - 19
Email chain ending 5
Document 5
Section 22
Point 2
May 2023
Section 47F – submissions
20 - 22
Email chain ending 5
Document 6
Section 22
Point 2
May 2023
Section 47F – submissions
23
Email chain ending 16
Document 7
Section 22
Point 2
May 2023
Section 47F
24
17 May 2023
Document 8
Section 22
Point 2
25 - 26
5 May 2023
Document 9
Section 22
Point 2
Section 47F

27
9 May 2023
Document 10
Section 22
Point 2
Section 47F
28 – 30
Email chain ending 9
Document 11
Section 22
Point 2
May 2023

31 - 34
Email chain ending 5
Document 12
Section 22
Point 2
June 2023
Section 47F
35 - 38
Email chain ending 25
Document 13
Section 22
Point 2
May 2023
Section 47F
39 – 40
Email chain ending 24
Document 14
Section 22
Point 1
May 2023

Point 2
41 - 42
24 May 2023
Attachment 2
Section 22 - submissions
Point 1
43 - 49
24 May 2023
Attachment 3
Section 22 - submissions
Point 1
50 - 51
27 April 2023
Document 15
Section 22
Point 1
Section 22 - submissions
52 - 54
24 May 2023
Document 16
Section 22
Point 2
Section 47F
55 - 56
Email chain ending 25
Document 17
Section 22
Point 2
May 2023
57
25 May 2023
Attachment 4
Full release
Point 2
Point 4
58

Image 1
Full release
Point 1
59 - 61
Email chain ending 8
Document 18
Section 22
Point 2
May 2023
62 - 63
Email chain ending 9
Document 19
Section 22
Point 2
May 2023
64
21 May 2023
Document 20
Section 22
Point 2
Section 47F
4

65 - 66
21 May 2023
Attachment 5
Full release
Point 2
67
17 May 2023
Document 21
Section 22
Point 2
Section 47F
68 - 76
17 May 2023
Attachment 6
Section 22
Point 2
77 - 78
21 May 2023
Document 22
Section 22
Point 2
Section 47F
79
Email chain ending 17
Document 23
Section 22
Point 2
May 2023
80 - 81
Email chain ending 25
Document 24
Section 22
Point 2
May 2023
Section 47E(c)
Section 47F
82 - 84
Email chain ending 4
Document 25
Section 22
Point 2
June 2023

85 - 87
Email chain ending 4
Document 26
Section 22
Point 2
June 2023

88 - 90
Email chain ending 16
Document 27
Section 22
Point 2
May 2023
91 - 92
Email chain ending 25
Document 28
Section 22
Point 2
May 2023
Section 47E(c)
Section 47F
93 - 94
Email chain ending 25
Document 29
Section 22
Point 2
May 2023
Section 47E(c)
Section 47F
95 - 97
Email chain ending 4
Document 30
Section 22
Point 2
June 2023
Section 47E(c)
Section 47F
98 - 101
Email chain ending 4
Document 31
Section 22
Point 2
June 2023
Section 47F
5

102 - 104
Email chain ending 12
Document 32
Section 22
Point 1
May 2023
Section 22 - submissions
105 - 106
12 May 2023
Attachment 7
Section 22
Point 1
Section 22 - submissions
107 - 108
Email chain ending 20
Document 33
Section 22
Point 2
May 2023
Section 47C
Section 47F
109
Email chain ending 11
Document 34
Section 22
Point 1
May 2023
Section 22 – submissions
Section 47E(c)
110 - 111
Email chain ending 22
Document 35
Section 22
Point 2
May 2023
Section 47F
112
21 May 2023
Document 36
Section 22
Point 2
Section 47F
113 - 117
Email chain ending 28
Document 37
Section 22
Point 1
April 2023
Section 47C
Section 22 - submissions
Section 47E(d)
Section 47F
118
Email chain ending 8
Document 38
Section 22
Point 2
May 2023
119 - 123
Email chain ending 8
Document 39
Section 22
Point 1
May 2023
Section 22 - submissions
Point 2
Section 47E(d)
Point 4
Section 47F
124 - 125
Email chain ending 27
Document 40
Section 22
Point 1
April 2023
Section 22 - submissions
126 - 127
Email chain ending 25
Document 41
Section 22
Point 2
May 2023

6

128 - 130
Email chain ending 31
Document 42
Section 22
Point 2
May 2023
Section 42
131 - 132
All staff email – 5 May
Document 43
Section 22
Point 2
133 - 134
All staff email – 17 May
Document 44
Full release
Point 2
Refused
--
--
Attachment 8
Refused – section 47E(c)
--
--
--
Document 45
Refused – section 47E(c), section 47E(d)
--
--
--
Attachment 9
Refused - section 47E(c), section 47E(d)
--
--
--
Attachment 10
Refused - section 47E(c), section 47E(d)
--
--
--
Document 46
Refused - section 47E(c), section 47E(d)
--
--
--
Document 47
Refused - section 47E(c), section 47E(d)
--
--
--
Document 48
Refused - section 47E(c), section 47E(d)
--

7

EC23-001336
LEX ID 2012

ATTACHMENT B

FOI Request No. (48) 22/23 - 4

FOI Decision
STATEMENT OF REASONS

YOUR FOI REQUEST

1.  On 3 June 2023, you made a request for information under the Freedom of Information Act 1982
(Cth) (FOI Act).

2.  On 5 June 2023, you refined the request to the fol owing terms:

“1. Official correspondence, including but not limited to emails and letters, between the
Senior Executive Service (SES) Officers: Tracey Mackey [sic], Sian Leatham, Catherine Meyer
[sic], Lisa Pulko, and Comcare, in relation to the aftermath of the issuance of the Provisional
Improvement Notice from April 23, 2023, to present. This excludes the PIN itself and the
appeal document sent to Comcare, which is publicly accessible.

2. Internal communications among the aforementioned SES Officers about the Provisional
Improvement Notice, its implications, and its communication within the Commission within
the same date range.

3. Reports or assessments conducted by the Commission in response to the Provisional
Improvement Notice within the specified date range, with direct involvement or oversight
from the listed SES Officers. The appeal document sent to Comcare is not included in this
request.
4. Clarification on the exact date the Commission received the original Provisional
Improvement Notice sent c/o the Department of Social Services (DSS).”
3.  You agreed to remove drafts, duplicates, specific documents, Commission staff names, and
other documents from the scope of the request.

4.  On 21 June 2023, the Commission advised you of the requirement to consult third parties under
section 27 and 27A of the FOI Act. This extended the deadline for decision to 2 August 2023.

DECISION

5.  I am an officer authorised under section 23 of the FOI Act to make decisions regarding access to
documents.

6.  I have decided to grant access to 44 documents,as well as 7 attachments and 1 image, subject to
various exemptions.

7.  I have decided to refuse access to four documents and three attachments under section 47E(c)
and 47E(d) of the FOI Act.

T 1800 035 544
PO Box 210
E xxx@xxxxxxxxxxxxxx.xxx.xx
Penrith NSW 2750

www.ndiscommission.gov.au

8.  I have found that parts of the documents contain:
•  material that is irrelevant to your FOI request, in that it does not come within the scope
of your revised request; and
•  material that is exempt under sections 42, 47C, 47E(c), 47E(d), and 47F of the FOI Act.

9.  The table at Attachment A summarises my decision as it applies to the documents covered by
your request.

DELETION OF IRRELEVANT MATERIAL

10. Section 22 of the FOI Act provides that if an agency decides that granting access to a document
would disclose information that would be exempt or irrelevant to the request, then, where it is
reasonably practicable to do so, a copy of the document with deletions/redactions to exempt or
irrelevant information should be provided.

11. As indicated above and for the reasons discussed below, I have found that some of the
documents contain irrelevant material. Accordingly, the documents have been edited to remove
irrelevant material in accordance with section 22 of the FOI Act.

MATERIAL ON WHICH MY FINDINGS ARE BASED

12. In reaching my decision, I have relied on the following material:
•  your FOI request;
•  the FOI Act;
•  Submissions received during the consultation process;
•  FOI case law, including:
-  Joshua Badge and Department of Health and Aged Care (Freedom of Information) [2023]
AICmr 46;
-  Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty
Ltd [2020] FCA 1232;
-  Justin Warren and Services Australia (Freedom of Information) [2023] AICmr 13;
-  Christis Tombazos and Australian Research Council; and
-  ‘FG’ and National Archives of Australia [2015] AICmr 26.
•  the guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (FOI Guidelines).
CONSULTATIONS
13. The Commission conducted a consultation process with relevant third parties in accordance with
sections 27 and 27A of the FOI Act.

9

REASONS FOR DECISION

Section 42 – Ful  exemption – Documents subject to Legal Professional Privilege (LPP)

14. Section 42 of the FOI Act relevantly provides that:

(1)  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.
(2)  A document is not an exempt document because of subsection (1) if the person
entitled to claim legal professional privilege in relation to the production of the
document in legal proceedings waives that claim.
(3)  A document is not an exempt document under subsection (1) by reason only that:
(a)
the document contains information that would (apart from this subsection)
cause the document to be exempt under subsection (1); and
(b)
the information is operational information of an agency.
15. According to the FOI guidelines at 5.128, the determinative test for determining LPP is the
purpose of the communication.

16. The principles of LPP have been determined at common law, and require the consideration of:
-  Whether there is a legal adviser-client relationship;
-  Whether the communication was for the purpose of giving or receiving legal advice;
-  Whether the advice given is independent; and
-  Where the advice given is confidential.

17. The recent FOI case of Joshua Badge sets out the principles in applying LPP to a FOI decision.

18. In determining an adviser-client relationship, the case of Joshua Badge discusses that such a
relationship “may not be as readily established when advice is received from a lawyer who
works within a particular agency”. This is due to the nature of the relationship of the lawyer and
the client, as the lawyer is also an employee of the agency.

19. However, establishing that the lawyer is acting independently from their employer is not the
test. According to the case of Australian Competition and Consumer Commission v NSW Ports
Operations Hold Co Pty Ltd, the “better view” is that, when the lawyer is a member of an in-
house counsel, the lawyer should be “acting in his or her professional capacity as his or her’s
employer’s lawyer” and the “dominant purpose test”.

20. Finding the “dominant purpose” requires an assessment of the reasons behind the
communication. ‘Advice’ is defined in the FOI Guidelines at 5.135 as “what a party should
prudently or sensibly do in the relevant legal context”.

21. In these circumstances, the relevant document provides legal advice by stepping out options in a
legal context. I note it has been categorised as “Legal Privilege”.

10

22. I note privilege over these communications has not been waived under section 42(2) of the FOI
Act.

23. Therefore, I find access to Document 42 can be refused under section 42 of the FOI Act.

24. However, I note the FOI Guidelines at section 5.141 suggest that, where possible and where
disclosure would not waive privilege, a decision-maker should seek to provide an applicant with
access to non-substantive material that is not privileged. This may be done under section 22 of
the FOI Act.

25. Therefore, I have provided access to parts of Document 42 while removing relevant sections
under section 22 of the FOI Act.

Conditional exemptions

Section 47C – Public interest conditional exemptions – deliberative process
26. Section 47C of the FOI Act relevantly provides that:

(1)
A document is conditionally exempt if its disclosure under this Act would disclose
matter (deliberative matter) in the nature of, or relating to, opinion, advice or
recommendation 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:
(a)  An agency; or
(b)  A Minister; or
(c)  The Government of the Commonwealth.

27. Specifically, ‘deliberative matter’; does not include:

(1)
Operational information;
(2)
Purely factual material

Section 47E – Public interest conditional exemptions – operations of an agency

28. Section 47E of the FOI Act relevantly provides that:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the fol owing:
(a)  prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b)  prejudice the attainment of the objects of particular tests, examinations or
audits conducted or to be conducted by an agency;
(c)  have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth or by an agency;
(d)  have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.

Section 47F – Public interest conditional exemptions – personal privacy

29. Section 47F of the FOI Act relevantly provides that:
11

(1)
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a
deceased person).
(2)
In determining whether the disclosure of the document would involve the
unreasonable disclosure of personal information, an agency or Minister must have
regard to the fol owing matters:
(a)  the extent to which the information is wel  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;
(d)  any other matters that the agency or Minister considers relevant.

30. Section 6 of the Privacy Act 1988 (Cth) defines ‘personal information’ as:

(1)
information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a)  whether the information or opinion is true or not; and
(b)  whether the information or opinion is recorded in a material form or not.

31. Relevantly, the majority of the documents within the scope of your request contain some form
of personal information.

Deliberative Process

32. The FOI Guidelines provide that what constitutes deliberative matter should not be restricted to
the “ordinary meanings” given to the words listed in the section. Types of deliberative matter
include:
-  Opinion
-  Advice
-  Recommendation – although, not if the recommendation relates to an action already
implemented
-  Consultation or deliberation

33. The deliberative process must relate to the function of the Agency claiming to rely upon it. The
recent case of Justin Warren demonstrates the need for an Agency to connect the documents to
a deliberative process that is, of itself, connected to the functions of that Agency.

34. In light of the above, I find that some of the documents captured in the scope of this request do
hold deliberative matter. This includes communication between SES relating to deliberation and
internal discussions.

35. As mentioned in the cases, this content must be “in the course of, or for the purposes of, the
deliberative processes in the functions of…the agency”. These documents contain information
that relates to management of personnel within the Commission, and the process underlying
strategic decision making. These processes correlate to the employment and corporate functions
internally to the Commission.

36. As such, I find that Documents 33 and 37 contain information conditional y exempt under
section 47C, subject to the public interest test.
12

Operations of the agency

37. I consider that some of the captured documents  are conditional y exempt under s47E of the FOI
Act, which prescribes that:

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the fol owing:
[…]  (c)  have a substantial adverse effect on the management or assessment of personnel by
the Commonwealth or by an agency; and
(d)  have a substantial adverse effect on the proper and efficient conduct of the operations
of an agency.

38. In considering section 47E(c) of the FOI Act, I have considered the OAIC guidelines, which
provide guidance in respect of “management” of personnel.

39. Relevantly, the guidelines outline “management” includes the broader human resources
policies, recruitment, promotion, occupational health and safety, etc. Additional y, the
“assessment” of personnel includes considerations of training requirements, appraisals,
feedback, etc.

40. In deciding whether the section applies, I must consider whether the disclosure of this
information would have an effect, and that effect is both “substantial and adverse”. Some of the
documents relate to internal complaints and human resources matters which, if released, would
undermine the likelihood of Commission being forthcoming in future.

41. I find documents 24, 28, 29, 30, and 34 as being conditional y exempt under section 47E(c) of the
FOI Act, subject to consideration of the public interest test.

42. I have also refused access to one document under this section, as the material relates to
information concerning internal human resources (HR) matters within the Commission.

43. Additionally, I have refused access to a further 4 documents and 2 attachments under this
section, as these documents concern HR investigations and management being undertaken by
the NDIS Commission.

44. Section 47E(d) of the FOI Act provides that an exemption to disclosure exists where the release
of a document would “have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency”.

45. Documents 37 and 39 concern SES officers’ strategic decision making processes. This relates
primarily to the corporate function of the Commission, as well as its management and process
around its staff.

46. In terms of a “substantial adverse effect” on the operations of the Commission, disclosure of this
type of information would undermine the ability of SES to be forthcoming about considerations
of HR processes outside of the Commission to inform its approach. This could undermine the
ability of the Commission to manage potential issues in the future, and may restrict its approach.

47. Further, the Information Commissioner has accepted the application of this section of the FOI
Act where agencies are engaging with another agency during an investigative process, and are
13

seeking advice or participating in the conduct of that investigation. In particular, the case of DZ
and the Commonwealth Ombudsman found that a particular document in the circumstances of
an investigation could reasonably impact upon an agency’s participation in further investigation,
notwithstanding any requirements under law.

48. I find that section 47E(d) of the FOI Act applies to Documents 37 and 39, subject to consideration
of the public interest test.

49. I have also found that four documents and two attachments may be removed on this basis, as
the contents relate to human resources investigative processes and integrity actions currently
being undertaken by the NDIS Commission. Releasing these documents could undermine these
actions, despite any public interest.

Personal Information
50. I am satisfied that the information included within these documents contains personal
information, including names, contact details, employment status, and signatures.

51. In determining whether disclosure of this information would be unreasonable, I must have
regard to the following factors:
-  The extent to which the information is well known;
-  Whether the person to whom the information relates is known to be associated with the
matters dealt with in the document;
-  The availability of the information from publicly accessible sources; and
-  Any other matters that the agency or minister considers relevant.

52. I note EL and APS staff names  and contact details of the Commission have been redacted under
section 22 of the FOI Act. This was due to the removal of this information from the scope of the
FOI request.

53. I find that the disclosure of this information would be unreasonable for the following reasons:

-  The submissions of third parties, which have sought some information to be redacted under
this section;
-  Some of the contact details – such as phone numbers – are not publicly known; and
-  Some of the individuals are not publicly known to be connected  to the documents or the
information therein.

54. The final factor to consider is any other matter the agency considers relevant. Following this, I
have had regard to the additional principles as outlined in the case of ‘FG’ and National Archives
of Australia, in particular;
-  The potential detriments to the person to whom the information relates;
-  The likelihood that the third party would object to the disclosure;
-  Whether disclosure of the information might advance the public interest in government
transparency and integrity.

55. I have also considered whether disclosure might advance the public interest in respect of
government transparency and integrity. While it would be in the interest of transparency and
integrity to disclose such information in relation to the PIN notice, this factor cannot be
considered in isolation. It was noted in Christis Tombazos and Australian Research Council that
14

these principles “may be competing, so that a balancing process is required to decide if
disclosure would be unreasonable”.

56. Therefore, I am satisfied that some of the information captured in the documents is exempt
under section 47F of the FOI Act. This information can be redacted from these documents under
section 22 of the FOI Act.

CONDITIONAL EXEMPTIONS – PUBLIC INTEREST TEST

57. Section 11A(5) of the FOI Act requires access to a conditional y exempt document to be granted
unless (in the circumstances) access to the document at that particular time would, on balance,
be contrary to the public interest.

58. For the reasons discussed above, I have found that the documents contain information that is
conditional y exempt under sections 47C, 47E(c), 47E(d), and 47F of the FOI Act.

59. In applying the public interest test, I am required to have regard to the FOI Guidelines and the
following factors listed in section 11B(3) of the FOI Act, which relate to whether the granting of
access would:
-  promote the objects of the FOI Act;
-  inform debate on a matter of public importance;
-  promote effective oversight of public expenditure; and
-  allow a person to access his or her own personal information.

60. The following irrelevant factors (set out in subsection 11B (4)) must not be taken into account in
deciding whether access would be contrary to the public interest:
-  Access to the document could result in embarrassment to the Commonwealth Government
or Norfolk Island, or cause a loss of confidence in the Commonwealth Government or
Norfolk Island,
-  access to the document could result in any person misinterpreting or misunderstanding the
document,
-  the author of the document was (or is) of high seniority in the agency to which the FOI
request was made, and
-  access to the document could result in confusion or unnecessary debate.

61. In light of this, I consider the following as favouring disclosure:
-  Promoting the objects of the FOI Act, namely the right of indiviudals to access documents;
-  Informing debate on a matter of public importance – namely, the improvement notice; and
-  Revealing the reason for a government decision – namely, the internal discussions of the
Commission when responding to the improvement notice.

62. Alternatively, I consider the following non-exhaustive factors as not favouring disclosure:
-  Some of the material captured relates to Commission staff who have been excluded from
the scope of the request, and who are not otherwise publicly known to be associated with
this matter;
-  Some of the material relates to the personal information of a government employee,
disclosure of which could reveal information about their private disposition or personal life;
-  The submissions of third parties;
-  Some material could reasonably be expected to harm the interests of an individual or group
of individuals, namely Commission staff;
15

-  Some material could reasonably be expected to prejudice the management function of an
agency, namely the Commission.

63. Additional y, I note the observations of the FOI guidelines around the application of section 47C
of the FOI Act. The FOI Guidelines make clear that whilst there is an argument that applying this
section is necessary to protect the ability of APS staff to provide “frankness and candour”, this
should be approached with caution. The FOI Guidelines provide at 6.83 that “Agencies should
start with the assumption that public servants are obliged by their position to provide robust
and frank advice at all times”, and that this obligation will not be undermined by processes of
transparency.

64. In light of the above, and consideration of the Guidelines and relevant case law, I have
determined that some documents that may be exempt under section 47C of the FOI Act would,
on balance, be in the public interest to be disclosed.

65. However, I am satisfied that the factors against disclosure outweight the public interest with
respect to sections 47C, 47E(c), 47E(d) and 47F of the FOI Act for some of the documents
captured in this request.

66. Additionally, I find that in addition to the above factors weighing against disclosure, other factors
relate to the documents refused. These further include:

-  Some material could reasonably be expected to prejudice an agency’s ability to obtain
similar information in the future; and
-  Some material could reasonably be expected to impede the administration of justice
generally, including procedural fairness, in that the documents relate to various HR related
invetsigations being conducted by the NDIS Commission.

67. In light of these factors, as well as those listed at paragraph 62, I find that four documents and
three attachments may be refused under sections 47E(c) and 47E(d) of the FOI Act.

Deletion of exempt or irrelevant material

68. Section 22 of the FOI Act requires an agency to provide access to an edited version of a
document where it is reasonably practicable to edit the document to remove exempt material or
material that is irrelevant to the scope of a request

Contact
If you wish to discuss my decision, please contact the FOI team via email at
xxx@xxxxxxxxxxxxxx.xxx.xx.
Kind regards,

Linda Blue
Director, Major Initiatives
2 August 2023
16

EC23-001336
LEX ID 2012

ATTACHMENT C

INFORMATION ON REVIEW RIGHTS

The Freedom of Information Act 1982 (the FOI Act) gives you the right to apply for a review of this
decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of this decision by:

(a)
an internal review officer in the NDIS Quality and Safeguards Commission, or
(b)
the Australian Information Commissioner (Information Commissioner).
Internal Review
If you apply for internal review, it will be carried out by a different decision-maker who will make a
fresh decision on your application. An application for review must be:

(a)
made in writing,
(b)
made within 30 days of receiving this letter, and
(c)
sent to xxx@xxxxxxxxxxxxxx.xxx.xx.
No particular form is required, but it is desirable to set out in the application the grounds upon
which you consider the decision should be reviewed.
If the internal review officer decides not to grant you access to all of the documents to which you
have requested access, you have the right to seek a review of that decision by the Information
Commissioner. You will be further notified of your rights of review at the time you are notified of the
internal review decision.

Please note that if you apply for an internal review and a decision is not made by an internal review
officer within 30 days of receiving the application, you have the right to seek review by the
Information Commissioner for a review of the original FOI decision on the basis of a ‘deemed refusal’
decision. An application for Information Commissioner review in this situation must be made within
60 days of the date when the internal review decision should have been made (provided an
extension of time has not been granted or agreed).

Information Commissioner Review
If you want to seek direct review by the Information Commissioner (and not internal review), you
must apply in writing within 60 days of the receipt of the decision letter and you can lodge your
application in one of the following ways:


Online: www.oaic.gov.au
In person:
Post: GPO Box 2999, Canberra ACT 2601
Level 10,
Fax: +61 2 9284 9666
175 Pitt Street,
Email: xxxxx@xxxx.xxx.xx
Sydney NSW 2000

T 1800 035 544
PO Box 210
E xxx@xxxxxxxxxxxxxx.xxx.xx
Penrith NSW 2750

www.ndiscommission.gov.au

An application form is available on the website at www.oaic.gov.au. Your application should include
a copy of the notice of the decision that you are objecting to (if one was provided), and your contact
details. You should also set out why you are objecting to the decision.

Complaints to the Commonwealth Ombudsman and Information Commissioner

Commonwealth Ombudsman

You may complain to the Ombudsman concerning action taken by an agency in the exercise of
powers or the performance of functions under the FOI Act. There is no fee for making a complaint. A
complaint to the Ombudsman may be made in person, by telephone or in writing. The
Ombudsman’s contact details are:

Phone: 1300 362 072
Website:
www.ombudsman.gov.au

The Commonwealth Ombudsman generally prefers applicants to seek review before complaining
about a decision.

Information Commissioner

You may also complain to the Information Commissioner concerning action taken by an agency in
the exercise of powers or the performance of functions under the FOI Act. There is no fee for making
a complaint. A complaint to the Information Commissioner must be made in writing. The
Information Commissioner’s contact details are:

Telephone:
1300 363 992
Website:
www.oaic.gov.au

18

Document Outline