FOI 2425 079 IR Notice of Decision.pdf

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Working with Aboriginal and Torres Slroil Islander peoples
FREEDOM OF INFORMATION ACT 1982
REQUEST BY:  Francis Markham (Right to Know)
DECISION BY:  Jessica Guthrie
Group Manager
Jobs and Economic Development
REFERENCE:  FOl/2425/079/IR
NOTICE OF INTERNAL REVIEW DECISION
Dear Mr Markham,
Decision on Internal Review - Freedom of Information Act 1982
1. The purpose of this notice is to advise you of my decision. This follows your request for internal review of the
National Indigenous Australians Agency's (NIAA) decision (the Original Decision) to refuse access to one
document within the scope of your request under the Freedom of Information Act 1982 (FOi Act).
Authority to make decision
2. I am an officer authorised under section 23(1) of the FOi Act to make decisions in relation to FOi requests,
including internal review decisions.
Your original request
3. On 14 May 2025, you requested access to documents under the FOi Act was as follows:
"Pursuant to the Freedom of Information Act 1982, I am requesting access to documents relating to the
new Remote Australia Employment Service.
Specifically, I seek copies of the following documents, if they exist:
* Theory of Change
* Program Logic
* Outcomes Framework
If these documents are not yet finalised, I request access to the most recent drafts. If drafts of these
documents do not currently exist, please confirm this in your response."
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The NIAA's original access refusal decision dated 15 May 2025
4. On llJune 2025, you were advised of the NIAA's Original Decision on the one (1) document in scope of your
request, being to:
a. exempt access in full.
Attachment C to the Original Decision listed the reasons why the original decision maker exempted the
release of this document to you. This included: financial or property interests of the Commonwealth (s4 7D of
the FOi Act); operations of an agency (s47E(d) of the FOi Act); and irrelevant material (s22(1) of the FOi Act).
Request for internal review
5. On 15 June 2025, you sought internal review of the NIAA's decision referred to at (4] above.
The terms of your review request are broadly outlined as follows:
• Section 47D
o the application of section 47D (releasing the Terms of Reference (ToR) would "provide an unfair
advantage to potential suppliers") was incorrect as:
■
equal access principle: FOi documents are released into the public domain, meaning all potential
Request for Quote (RfQ) respondents would have equal access to the same information
■
notification mechanisms: All RfQ respondents can be notified of the ToC's release, ensuring
complete transparency and eliminating any possibility of unfairness between suppliers, and
■
standard practice: In normal procurement processes, background documentation including
program logic and frameworks is routinely provided to suppliers to ensure they are well
informed about the services being procured.
o Contrary to the decision maker's reasoning, releasing the ToC would enhance value for money by:
■
enabling suppliers to better understand the program they are being asked to evaluate
■
allowing for more targeted and effective MEL proposals
• reducing the risk of misaligned services that fail to meet program objectives, and
• following standard procurement best practices of providing comprehensive background
information
o The Commonwealth Procurement Rules require evaluation criteria used to assess submissions be
included in request documentation. The decision fails to address how withholding fundamental
program information aligns with these transparency requirements.
• Section 47E(d)
o The application of section 47E(d) is unclear and unsupported as:
■
no substantial adverse effect was demonstrated
• the decision states disclosure would "raise probity concerns" but fails to explain:
• what specific probity concerns would arise from public disclosure
• how public release of program documentation could compromise procurement integrity, or
• why standard transparency practices would be problematic in this instance?
■
Contradiction with Proper Operations
• Per paragraph 6.115 of OAIC's Guidelines, section 47E does not apply where disclosure
reveals "the Agency is undertaking its expected activities in an expected manner." If the
agency's procurement process cannot withstand the release of basic program
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documentation, it suggests the process may be flawed rather than disclosure being
problematic.
• Public Interest Considerations
o The public interest assessment is inadequate and fails to properly weigh relevant factors:
■
The assessment minimizes the significant public interest benefits of disclosure, including:
• enhanced accountability through public scrutiny of how taxpayer funds are used to design
and evaluate employment services
• improved policy outcomes: external expertise and feedback could improve program design
• transparency in procurement: ensuring procurement processes are open and fair
• The claimed procurement integrity concerns are speculative and unsupported, given:
• standard procurement practice involves providing comprehensive background information
• equal access to information enhances competitive processes, and
• transparency improves, not hinders, procurement outcomes
• Flawed Reasoning Process
o The decision conflates legitimate competitive procurement principles with inappropriate secrecy. The
concern about "positioning responses to their own financial and competitive advantage"
misunderstands the purpose of competitive procurement (to encourage suppliers to provide the best
possible service at the best possible price based on a clear understanding of requirements).
Material I have taken into account
6. I have taken the following material into account in making my decision:
• the terms of your original request
• your internal review request
• original and confirmed searches completed by NIAA advisers
• the content of the document that falls within the scope of your request
• consultation with NIAA advisers
• the provisions of the FOi Act, and
• the guidelines made by the Office of the Australian Information Commissioner under section 93A of the
FOi Act (the FOi Guidelines).
Internal review decision
7. After considering the matters listed in [6] above, I have decided to release the one document within the
scope of your request to you in full.
8. My reasons for this decision are given below.
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Reasons for my decision
Your contentions
9. I acknowledge your contentions about the Original Decision, as outlined in your request for review. I have
decided to make a different decision to the original decision maker, and release the document in full.
Therefore, I do not address your contentions in detail.
Document 1
Procurement - request for quotes - concluded
10. The Approach to Market (AtM) for Monitoring, Evaluation and Learning work relevant to your request has
now concluded. This procurement process opened on 13 June 2025 and closed on 27 June 2025.
11. This means the circumstances and considerations presented to me as decision maker are different from those
that were before the original decision maker.
12. Most relevantly, as the AtM has concluded, I do not consider releasing the relevant document would now:
a. have a substantial c1dverse effect on the Commonwealth's financial interests
b. prejudice the Agency's requirement to obtain value for money
c. unfairly advantage any tenderers for this ATM, or
d. raise probity or process concerns for the RfQ.
13. For these reasons I have made a decision that is different to the Original Decision.
Your review rights
14. If you are dissatisfied with my decision, you may apply to the Office of the Australian Information
Commissioner (OAIC) for review.
15. The OAIC is an independent office that can review the decisions of agencies under the FOi Act.
16. The OAIC review process is free. You must apply to the OAIC within 60 days of being given notice of the
decision. You must apply in writing, and further details are available on the OAIC website: www.oaic.gov.au
17. If you cannot access the website, please contact the FOi Coordinator (contact details at the end of this
notice), and further details will be provided to you.
Your complaint rights
18. 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. Making a complaint about the way the NIAA has handled
an FOi request is a separate process to seeking review of the NIAA's decision.
19. If you are not satisfied with our response, you can make a complaint to OAIC.
20. A complaint to the OAIC must be in writing and identify the agency in respect of which the complaint is made.
Details about how you may contact the OAIC can be found on their website: https://www.oaic.gov.au/about
us/contact-us/.
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21. If you cannot access the website, please contact the FOi Coordinator {contact details at the end of this
notice), and further details will be provided to you.
Contact details
22. If you have any questions about this decision, or the FOi process, please contact the NIAA FOi Coordinator at
xxx@xxxx.xxx.xx.
Group Manager
Jobs and Economic Development
15 July 2025
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NIAA I Notice of Internal Review Decision