OAIC Reference: MR25/00136
NDIA reference: FOI 24/25-0592
Preliminary submission by the NDIA in support of exemptions
Background
1. On 17 January 2025, the Agency provided the Applicant with reasons for decision (
Decision) in
respect of the Applicant's FOI request of 13 October 2024 for:
FOI 23/24-1400, Document 4, pages 39-40 states the following:
"TAT publishes a list of de-identified, general advices on the TAT Digest
page NDIS Intranet. A recent tracking exercise has identified that the
TAT Digest page is widely utilised across the agency as a key resource.
There are eight TAT Published Digest relating to ASD:
1) Request title: Funding of out of school hours care, 6 hours access to
community on Saturday, 576 hours short term accommodation for a 10
year old.
2) Request title: Review of high cost plans for twin brothers submitted for
approval and determination of reasonable and necessary supports.
3) Request title: Assistance Animal for a child with Autism and Epilepsy.
4) Request title: Request for NDIS to fund Applied Behavioural Analysis
(ABA) link.
therapy and Music Therapy for 10 year old child with Autism Spectrum
Disorder (ASD).
5) Request title: AT - Freedom jogger pusher fitted with Pelvic strap,
Rain canopy and Highback Kit.
6) Request title: Weighted Blanket for participant with Autism.
7) Request title: Swimming and flexible respite/recreation/holiday care
for a 6 year old with Autism."
I note that the document says there are eight TAT 'Published Digest' but there are
only seven listed.
I seek a copy of these and other such de-identified, general advices relating to ASD
held by the NDIA.
2. On 28 October 2024, the Applicant confirmed that NDIA staff members’ surnames and contact
details are irrelevant to the FOI request.
3. Specifical y, the Decision refused access to all 13 documents determined by the original decision-
maker to be within scope of the request on the basis that the decision-maker considered that the
documents were conditional y exempt under s 47E(d) of the
Freedom of Information Act 1982
(
FOI Act), and that their disclosure was contrary to the public interest.
4. 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 wil provide to the Applicant and to OAIC as soon
as possible.
5. The Agency has provided OAIC with all 13 documents considered in the Decision to be within
scope of the FOI request. However, the Agency notes that:
a. Documents 1-7 are not technical y within the scope of the request. However, a number
of the de-identified documents could not be located. A generous interpretation of the
scope of the FOI request sought to consider access to the identified documents on which
the de-identified articles were based; and
b. Documents 8-13 were correctly regarded as within scope of the request in the Decision.
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6. The Agency currently anticipates that its new decision wil in respect of documents within scope
of the request, refuse access to particular parts of each document on the basis that those parts
are conditionally exempt under s 47E(d) and 47F of the FOI Act, and that their disclosure was
contrary to the public interest.
7. In these circumstances, having regard to the requirement to provide OAIC with submissions in
support of the claimed exemptions, 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)
8. The documents within scope of the FOI request, the Agency's Technical Advice and Practice
Improvement Branch's digests (
digests), 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.
9. The de-identified digests have been prepared as examples, derived from
a specific participant's
(de-identified) individual circumstances and their individual support needs, for the use of the
Agency's Technical Advisors for the purpose of assisting them to make relevant assessments of
claims as against the statutory criteria in order to provide correct internal advice in respect of
those claims.
10. The Agency submits that parts of the text within each document within scope (which the Agency
anticipates wil be identified in its s 55G decision) are conditional y exempt under s 47E(d) in
circumstances where:
a. the digests provide specific guidance, by way of a particular example of an individual's
circumstances, 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 and
participants 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 digests contain specific examples, or references to particular kinds of
situations or circumstances, and the recommendations made previously in respect of
those particular situations or circumstances as they related to a specific participant, for
the expert's consideration in assessing whether the information and evidence submitted
by NDIS providers and participants may be considered to satisfy the relevant criteria in
the legislation;
c. the public disclosure of this guidance to technical experts would mean that NDIS
providers, NDIS participants, and participants' treating practitioners, wil 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 outlined in the digests;
d. accordingly, the disclosure of that information within the digests 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 wil be
assessed as meeting the relevant criteria;
ii. prescribing therapists, with knowledge of circumstances and situations that are
likely to satisfy the Agency that each criteria is met, are likely to report to address
that criteria in a manner that "matches" the examples in the digests, rather than
reporting objectively on the participant's function and anticipated support needs;
iii. NDIS participants, armed with the knowledge of the examples in the digests, are
more likely (whether knowingly or unknowingly) to provide answers to their
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treating practitioners and/or to the Agency that are more likely to align with the
relevant examples;
iv. the manipulation or "tailoring" of information or submissions (whether knowingly
or unknowingly), wil 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 wil be more likely
to engage providers and practitioners that report in a matter aligned with the
relevant examples in the digests, 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.
11. In al of these circumstances, OAIC should be satisfied that parts of the text in each document
within scope is conditional y 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.
12. 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.
13. 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.
14. 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 parts of each document within scope of the request would be contrary to the public
interest.
Application of s 47F
15. Documents 1-7 contain personal information of participants and their family members, including
their names, ages, details relating to their disability and supports they are receiving or seeking,
details relating to their NDIS plans, and other identifying information. They also contain personal
information of NDIS officers, although it is noted that the last names and contact details of NDIS
officers are out of scope of the request.
16. OAIC should be satisfied that disclosure of the personal information of participants and their
family members would be unreasonable, in circumstances where:
a. the information is not wel known;
b. the participants and their family members are not generally known to be associated with
the matters dealt with in the documents;
c. the information is not available from publicly accessible sources;
d. much of the personal information comprises 'sensitive information' for the purposes of the
Privacy Act 1988, being personal information that is health information;
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e. the personal information should be regarded as highly sensitive in circumstances where it
details participants' and their family members' most private day-to-day circumstances and
challenges;
f. having regard to the personal information in question, it would be reasonable to conclude
that the disclosure of the personal information would cause stress to the relevant
individuals; and
g. no public purpose would be achieved through release of the personal information, and
disclosure would not advance the public interest in government transparency (particularly
noting that the FOI request was for de-identified articles).
17. In considering the public interest, the Agency contends that no public interest factors weigh in
favour of disclosure of the personal information of participants and their family members in
circumstances where, as noted above, the FOI request was for de-identified articles and the
Agency submits that no public purpose would be achieved through release of the personal
information.
18. The Agency submits that the public interest considerations against disclosure include that
disclosure could reasonably be expected to prejudice the protection of the relevant individuals'
right to privacy, including the right to privacy of individual participants who are children.
19. The Agency contends that OAIC should be satisfied that, in circumstances where there are no
public interest factors favouring disclosure of the personal information, the public interest factor
against disclosure heavily outweighs the public interest in disclosure, particularly having regard to
the nature and sensitivity of the personal information at issue, and to the fact that it can
reasonably be expected that disclosure would cause considerable stress to the individuals
concerned for no identified public purpose.
20. In al of these circumstances, the Agency contends that OAIC should be satisfied that disclosure
of the conditionally exempt personal information of participants and their family members in
document 1-7 would be contrary to the public interest.
Clayton Utz
Solicitors for the Respondent
9 May 2025
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