13 February 2024
Ref: LEX 2454
Concerned Public Member
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Concerned Public Member,
Freedom of Information Request No. (68) – 23/24 – 2 – Concerned Public Member (RTK)
Notice of Access Refusal Decision under the Freedom of Information Act 1982 (Cth)
I refer to your request dated 15 November 2023 which sought access to documents held by the NDIS
Quality and Safeguard Commission (the Commission) under the
Freedom of Information Act 1982 (Cth)
(FOI Act).
The NDIS Commission acknowledged this request on 21 November 2023, and confirmed the scope to
be the fol owing:
•
Any information held regarding investigations, audits, complaints and raised concerns in
relation to services provided by Sanctuary Aus (Quality and Safeguards Commission
Registration ID: 4-4331-4175 / NDIS Registration ID: 4050043895) or any of the board
members and employees attached to the charity/business.
•
Any information held regarding which staff member/s hold the appropriate qualifications to
provide services as a Behaviour Support Practitioner or Specialist Behaviour Support
Practitioner.
•
Information regarding the identification of the staff member attached to the authorisation
number A5398 and NDIS Practitioner number P1101442, for behaviour support.
In that same email, you agreed to exclude duplicates and the personal information of third parties
from the scope. We have interpreted this to include NDIS Commission staff names.
I am an authorised decision maker for the purposes of section 23 of the FOI Act and this letter gives
notice of my decision.
On 6 December 2023, the NDIS Commission notified you of the requirement to consult third parties
under sections 27 and 27A of the FOI Act. This had the effect of extending the timeline for decision by
30 days.
On 13 December 2023, the NDIS Commission sought your consent for an extension of time under
section 15AA of the FOI Act. You agreed to this extension on the same day. This moved the date for
decision to 13 February 2024.
The NDIS Commission undertook searches for documents falling within the scope of your request. The
Commission has identified
23 falling within the scope of your request. The documents were identified
by searches undertaken in various NDIS Commission databases. These documents are set out in the
schedule attached to this notice.
Decision
I have decided to:
• grant access in part to documents 1 to 15; and
• refuse access in ful to documents 16 to 23.
In reaching my decision, I have taken into consideration:
• the terms of your request;
• the relevant provisions of the FOI Act (Specifically sections 22, 37(1)(a), and 47F);
• the results of searches undertaken by relevant NDIS Commission staff;
• Guidelines issued by the Office of the Australian Information Commissioner (OAIC) under s93A
of the FOI Act (
FOI Guidelines); and
• The views of a third party consulted under section 27/27A of the FOI Act.
Reasons for decision
Section 37 – Exemption – Documents affecting enforcement of law and protection of public safety
Document 9 contains information that I consider exempt under section 37(1)(a) of the FOI Act.
Section 37(1)(a) relevantly provides:
(1) A document is an exempt document if its disclosure under this Act would, or could
reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law,
or a failure, or possible failure, to comply with a law relating to taxation or
prejudice the enforcement or proper administration of the law in a particular
instance;
Section 37 generally applies where documents are connected to the “investigative or compliance
activities of an agency” [Guidelines, 5.81]. In respect of 37(1)(a), this includes the actions of the agency
which involve monitoring compliance, and investigating potential breaches. The NDIS Commission
regularly conducts compliance actions based on suspected breaches of the NDIS Act and Rules –
compliance actions are listed as one of the Commissioner’s core functions under section 181E(d) of
the NDIS Act.
The FOI Guidelines at 5.86 outline that this exemption is only available where an investigation is
“current or pending”, and where release of the documents would, or could, “reasonably be expected
to” prejudice the investigation. Determining whether release wil prejudice an investigation is a
question of fact to be determined “on the evidence” – it is not enough that a document may be
relevant to an investigation [Guidelines, 5.89]. In demonstrating prejudice, the FOI Guidelines at 5.79
provide a list of examples of types of potential harms that could occur, should documents covered by
this exemption be released.
Relevantly, Document 9 relates to a compliance matter that is currently under assessment by the NDIS
Commission. At this preliminary stage, the NDIS Commission gathers information and outlines the best
approach. This may involve contacting relevant parties, assessing information from multiple sources,
and considering various compliance tools that may be pertinent. Releasing information prematurely
may place parties on notice of a pending investigation which has not commenced formally, or may
inadvertently reveal the source of particular information. This could prejudice the investigation as it
develops in the following ways:
link to page 3
- Individuals may be unwilling to engage with the NDIS Commission, as information has been
released which has impacted their confidence in their communications;
- The investigation may be tainted as individuals are put on notice earlier than expected, which
could impact the ability of the NDIS Commission to control the investigation; and/or
- The disclosure could imply preliminary findings, which could cause distress to parties where
the investigation has not been finalised, or the findings reported.
I am satisfied that section 37(1)(a) applies to some of the information contained in document 9.
Section 47F – Public interest conditional exemptions – personal privacy
Document 1, 12, and 13, and Documents 16 to 23, contain information that I consider conditionally
exempt under section 47F of the FOI Act.
Section 47F relevantly provides:
(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)
The term ‘personal information’ is defined in section 4 of the FOI Act to have the same meaning as the
Privacy Act 1988 (Cth) (
Privacy Act). Section 6 of the Privacy Act defines personal information as:
…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.
The FOI Guidelines at 6.142 provide that the key factors for determining whether disclosure of a
document would involve unreasonable disclosure of personal information include whether:
• the author of the document is identifiable
• the document contains third party personal information
• release of the documents would cause stress on the third party
• no public purpose would be achieved through release
As discussed in
‘FG’ and National Archives of Australia [2015] AICmr 26, other relevant factors include:
• the nature, age and current relevance of the information
• any detriment that disclosure may cause to the person to whom the information relates
• any opposition to disclosure expressed or likely to be held by that person
• the circumstances of an agency’s collection and use of the information
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act
• any submission an FOI applicant chooses to make in support of their application as to their
reasons for seeking access and their intended or likely use or dissemination of the information,
and
• whether disclosure of the information might advance the public interest in government
transparency and integrity
1
1 FOI Guidelines [6.143]
Documents 1, 12 and 13, and 16 to 23 contain personal information relating to NDIS participants and
workers, including their names, phone numbers and email addresses. I am satisfied that it would be
unreasonable to disclose this personal information because:
• the information is not well known or available from publicly accessible sources;
• disclosure could be reasonably expected to cause detriment to the individuals concerned;
• the individuals would be likely to object to disclosure;
• the content including personal information of NDIS participants and workers that are likely
not to be known by the applicant; and
• the risk of detriment to the individuals, noting the content of the information included, the
fact this information wil be immediately published on the Right to Know website, and the
particular vulnerability of the individuals concerned.
I note the intent of connecting a particular identifier with the name of a practitioner. This information
is not publicly available – for example, the NDIS Commission public register is only searchable by name.
Accordingly, I am satisfied that the information outlined above is conditionally exempt under s47F. As
this is a public interest conditional exemption, I have considered the public interest test below.
Public interest test
Section 11A(5) of the FOI Act provides that access must be given to a document covered by a
conditional exemption unless it would, on balance, be contrary to the public interest. In weighing the
public interest, the FOI Act sets out four factors favouring access which must be considered if relevant.
They are that disclosure would:
(a) promote the objects of the Act
(b) inform debate on a matter of public importance
(c) promote effective oversight of public expenditure
(d) allow a personal to access his or her personal information (s 11B(3))
I am of the view that one of the four factors is relevant to this decision, that is, that disclosure would
promote the object of the Act by increasing scrutiny and discussion of the government’s activities.
In addition, the right to access of information as expected by the FOI Act weighs in favour of disclosing
the captured information.
Th
e Australian Information Commissioner’s FOI Guidelines also set out a non-exhaustive list of factors
weighing against disclosure. These factors relate to harm that may result from the disclosure of the
documents in certain circumstances. In reaching my decision, I consider that the factors weighing
against disclosure are that disclosure could be reasonably expected to:
• prejudice the protection of an individual’s right to privacy – noting the content of information
captured;
• harm the interests of an individual, specifically NDIS participants and the relevant
practitioner; and
• The submissions of the relevant third party, which highlighted the use of this exemption
based on their concerns for the privacy of those included.
I place greater weight on the considerations of an individual’s right to privacy including NDIS
participants, their guardians and families, workers, and practitioners. The publication of an individual’s
personal information online is a high risk to consider, particularly this information can be freely
accessed and not be control ed. It would be detrimental to individual’s to have their contact details
publicised this way, particularly without their consent.
Based on these factors, I have decided that the public interests is weighted more heavily against
disclosure and that giving access to the conditionally exempt material would, on balance, be contrary
to the public interest.
Accordingly, I am satisfied that the information contained in document 1, 12, 13, and documents 16
to 23, is exempt under section 47F.
Deletion of exempt or irrelevant material
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
Where possible, this process has been fol owed for documents with exempt information under the
relevant sections of the FOI Act.
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 have considered these exemptions and have decided that they do not apply in this instance.
Accordingly, details of the redacted documents disclosed to you as part of your FOI request will be
published on the Commission’s FOI disclosure log. For further information about the Commission’s
FOI disclosure log please refer to our website
: FOI Disclosure Log | NDIS Quality and Safeguards
Commission (ndiscommission.gov.au)
Your review rights
If you are dissatisfied with my decision, you may apply for internal review or Information
Commissioner review of the decision. We encourage you to seek internal review as a first step as it
may provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the FOI Act, you may apply in writing to NDIS Commission for an internal review
of my decision by another NDIS Commission officer. The internal review application must be made
within 30 days of the date of this letter. The request should be addressed to
xxx@xxxxxxxxxxxxxx.xxx.xx. Where possible please attach reasons why you believe review of the
decision is necessary.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to review
my decision. An application for review by the Information Commissioner must be made in writing
within 60 days of the date of this letter, and be lodged in one of the following ways:
Online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
Email:
xxxxx@xxxx.xxx.xx
Post: GPO Box 5218 Sydney NSW 2001
More information about Information Commissioner review is available on the Office of the Australian
Information Commissioner website. Go to
https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/information-commissioner-review/.
FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. We may be able to rectify the problem. If you are not satisfied with our response,
you can make a complaint to the Australian Information Commissioner. A complaint to the
Information Commissioner must be made in writing. Complaints can be lodged in one of the following
ways:
Online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICCA_1
Email:
xxxxx@xxxx.xxx.xx
Post: GPO Box 5218 Sydney 2001
More information about complaints is available on the Office of the Australian Information
Commissioner at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-
an-foi-complaint/.
If you are not sure whether to lodge an Information Commissioner review or an Information
Commissioner complaint, the Office of the Australian Information Commissioner has more
information at:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/.
Questions about this decision
If you wish to discuss this decision, please contact
xxx@xxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Monique Lindridge
Senior Lawyer
NDIS Quality and Safeguards Commission
SCHEDULE OF DOCUMENTS
Document
Date
Description of
Number of Decision on
Applicable
reference
document
pages
access
exemptions
1
3/12/2020 Email
1
Partial
22, 47F
access
2
Undated
Internal screenshot
5
Partial
22
access
3
Undated
Internal screenshot
6
Partial
22
access
4
Undated
Web form
3
Partial
22
access
5
Undated
Internal screenshot
3
Partial
22
access
6
Undated
Internal screenshot
5
Partial
22
access
7
24/11/2023 Internal screenshot
5
Partial
22
access
8
14/11/2023 Internal screenshot
4
Partial
22
access
9
14/11/2023 Internal screenshot
5
Partial
37(1)(a)
access
10
Undated
Internal screenshot
16
Partial
22
access
11
23/11/2023 Internal screenshot
6
Partial
22
access
12
14/09/2023 Audit report
31
Partial
22, 47F
access
13
14/09/2023 Audit report
31
Partial
22, 47F
access
14
Undated
Internal screenshot
4
Partial
22
access
15
22/08/2023 Correspondence
2
Partial
22
access
Refused
16 - 23
Documents 16 - 23,
Access
47F
including internal
refused
screenshots, and
complaints
information
