OAIC Reference: MR25/00038
NDIA reference: FOI 24/25-0317
Preliminary submission by the NDIA in support of exemptions
Background
1. On 8 November 2024, the Agency provided the Applicant with reasons for decision (
Decision) in
respect of the Applicant's FOI request of 6 September 2024 for:
“A copy of all “Advice Support Tool” documents held by the NDIA.
I agree for the surnames and contact details of any staff to be redacted, but please
otherwise provide the documents in their entirety.”
2. Specifically, the Decision refused access to all 67 documents within scope of the request on the
basis that the decision-maker considered that the documents were conditionally exempt under s
47E(d) of the
Freedom of Information Act 1982 (
FOI Act), and that their disclosure was contrary
to the public interest.
3. The Agency has now revisited the Decision, and is currently in the process of making a decision
pursuant to section 55G of the FOI Act, which it will provide to the Applicant and to OAIC as soon
as possible.
4. The Agency currently anticipates that its new decision will refuse access to particular parts of
each document on the basis that those parts are conditionally exempt under s 47E(d) of the FOI
Act, and that their disclosure was contrary to the public interest.
5. In these circumstances, having regard to the requirement to provide OAIC with submissions in
support of the claimed exemptions by 2 May 2025, the Agency provides these preliminary
submissions in respect of the Agency's claim that parts of each document is exempt from
disclosure.
Application of s 47E(d)
6. The documents within scope of the FOI request, the Agency's "Advice Support Tools" (
tools),
have been developed by the Agency for the exclusive use of its Technical Advisors, being allied
health professionals engaged by the NDIA to ensure consistency in the provision of advice to
delegates of the NDIA. The tools outline specific detail on how to determine if supports are
reasonable and necessary against a specific criterion, and the quantum / intensity / volume of the
supports that a participant should receive based on evidence provided – such as reports from
therapists or providers.
7. The Agency notes that each document within scope of the FOI request, being an Advice Support
Tool, typically contains three main columns, with the third column titled "Considerations (including
evidence used)" (
third column).
8. The Agency submits that parts of the text within this third column (which the Agency anticipates
will be identified in its s 55G decision) are conditionally exempt under s 47E(d) in circumstances
where:
a. the tools provide specific guidance to a group of experts engaged by the Agency for the
purpose of assisting those experts to assess submissions and evidence lodged by NDIS
providers as against the relevant statutory criteria, in order to produce technical expert
advice to NDIA delegates in making their decisions as to eligibility for particular supports
and the level in which those supports should be provided;
b. parts of the information in the third column contain specific examples, or references to
particular kinds of situations or circumstances, for the expert's consideration in assessing
whether the information and evidence submitted by NDIS providers may be considered to
satisfy the relevant criteria in the legislation;
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c. the public disclosure of this guidance to technical experts would mean that NDIS
providers, NDIS participants, and participants' treating practitioners, will know how a
technical expert is likely to assess particular evidence and information so as to determine
whether relevant statutory criteria are satisfied, and the kind of evidence and
submissions that is likely to ensure that particular requested supports are then
recommended by the expert to be approved, both generally and in particular
circumstances and examples noted in the third column;
d. accordingly, the disclosure of that information is highly likely to result in:
i. the manipulation and tailoring of evidence and submissions by at least some
NDIS providers and NDIS participants, so as to ensure that their claims will be
assessed as meeting the relevant criteria;
ii. prescribing therapists, with knowledge of the factors considered and thresholds
for each criteria, are likely to report to address that criteria in a manner that
"matches" the described considerations and/or circumstances in the tools, rather
than reporting objectively on the participant's function and anticipated support
needs;
iii. NDIS participants, armed with the knowledge of the guidance it the third column,
are more likely (whether knowingly or unknowingly) to provide answers to their
treating practitioners and/or to the Agency that are more likely to fit within the
guidance in the third column;
iv. the manipulation or "tailoring" of information or submissions (whether knowingly
or unknowingly), will in turn result in findings that requested supports are
reasonable and necessary in circumstances where they would otherwise not be
approved;
v. the NDIS provider market being harmed because participants will be more likely
to engage providers and practitioners that report against the guidance in the third
column, as opposed to providing objective reporting on a participant's condition
and circumstances; and
vi. the increase in fraud by NDIS participants and providers, which is unfortunately a
prevalent and well-known issue that the Agency is actively addressing.
9. In all of these circumstances, OAIC should be satisfied that parts of the text in the third column in
each document within scope is conditionally exempt under s 47E(d) because its disclosure would,
or could reasonably be expected to, have a substantial adverse effect on the proper and efficient
conduct of the operations of the NDIA.
10. In considering the public interest, the Agency acknowledges that it can be said that the disclosure
of the information would promote the objects of the FOI Act.
11. However, the Agency submits that the public interest considerations against disclosure, being:
a. the public interest in preventing and minimising manipulation of the NDIS and ensuring
that information provided by participants in support of their claims are as accurate as
possible;
b. the public interest in preventing and minimising fraud;
c. the public interest in ensuring the integrity of expert advice and assessment, and of the
NDIA's decision-making process; and
d. the public interest in maintaining the sustainability and integrity of the National Disability
Insurance Scheme as a whole;
outweigh any public interest in favour of disclosure.
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12. Having regard to the likely extensive and substantial damage that disclosure of the information
would cause to the Agency's operations and to the Scheme as a whole (as described above), the
Agency contends that OAIC should be satisfied that disclosure of the conditionally exempt
information in the third column in each document would be contrary to the public interest.
Clayton Utz
Solicitors for the Respondent
2 May 2025
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