FOI 19.20 0514 Decision Decision Letter.pdf

Our reference: FOI 19/20-0514

GPO Box 700
Canberra   ACT   2601
1800 800 110
18 December 2019
ndis.gov.au

Ms Janet Baker

By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Baker

Your Freedom of Information request — Notification of decision

Thank you for your correspondence of 3 November 2019, in which you requested access
under the Freedom of Information Act 1982 (FOI Act) to documents held by the National
Disability Insurance Agency (NDIA).

You have requested access to documents relating to the costs associated with an AAT
matter. Specifically, you requested access to:

“Please provide all documents that related to the costs charged to the National

Disability Insurance Scheme and or any other Government Department (including

costs worn by the department in relation to the commonwealth defending the case

2018/5420 Morrison-Francis and National Disability Insurance Agency within the

Administration Appeals Tribunal.

This  includes  any  documents  that  relate  to  the  hours  worked  and  have  not  been

charged to another government department as of the date of this request.”

The purpose of this letter is to provide you with a decision on your request.

Decision on access to documents

I am authorised to make decisions under the FOI Act.  My decision on your request and the
reasons for my decision are set out below.

I have identified seven documents which fall within the scope of your request.

The documents were identified by consulting with the relevant area within the NDIA.

I have decided to grant access to seven documents in part.

In reaching my decision, I took into account:

  your correspondence outlining the particulars of the request;
  the content of the documents falling within the scope of the request;
  the FOI Act;
  the FOI Guidelines;
  relevant case law concerning the operation of the FOI Act;
  consultation with relevant areas of the NDIA and other Commonwealth agencies;

  factors relevant to my assessment of whether or not disclosure would be in the
public interest;
  the nature of the documents; and
  the NDIA’s operating environment and functions.

Reasons for decisions

Access to edited copies with exempt or irrelevant material deleted (section 22)

I have decided that the documents falling within the scope of your request contain material
that is exempt from disclosure under the FOI Act.

I  have  also  identified  that  the  documents  falling  within  the  scope  of  your  request  contain
material  that  is  irrelevant  to  your  request.    The  material  which  is  irrelevant  to  your  request
relates to the names of NDIA staff.

In accordance with section 22 of the FOI Act, I have considered whether it is possible to
delete the exempt and irrelevant material from the documents and have concluded that it is
reasonably practicable to do so. Accordingly, I have prepared an edited copy of the
documents, with the exempt and irrelevant material removed.

Documents subject to legal professional privilege (section 42)

Section 42 of the FOI Act exempts a 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.

The documents within the scope of your request contain material that is of such a nature that
it would be privileged from production in legal proceedings on the ground of legal professional
privilege and that this privilege has not been waived.

The documents contain detailed narration that discloses, either directly or indirectly,
communications regarding matters that are protected by legal professional privilege such as
instructions given to the NDIA’s legal adviser.

In deciding whether this material is exempt under section 42 of the FOI Act, I have
considered whether:

a.  there was a legal adviser-client relationship;
b.  the communication was for the purpose of giving or receiving legal advice or
for use or in connection with actual or anticipated litigation;
c.  the advice given was independent; and
d.  the advice given was confidential.

Against  these  criteria,  I  have  formed  the  view  that  the  there  was  a  legal  adviser-client
relationship, the communication  was  in connection  with  actual  litigation, and that the  advice
was  confidential  and  independent.    I  am  therefore  satisfied  that  the  documents  are  exempt
under section 42 of the FOI Act.

Personal privacy (section 47F)

Section 47F of the FOI Act conditionally exempts a document if its disclosure would involve
the unreasonable disclosure of personal information about any person (including a deceased
person).

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Personal  information  includes  information  or  an  opinion,  whether  true  or  not,  about  an
individual whose identity is apparent, or can reasonably be ascertained.

I have identified material in the documents falling within scope of your request which contains
personal information of third parties.

Under  section  47F(2)  of  the  FOI  Act,  in  determining  whether  the  disclosure  of  documents
would involve unreasonable disclosure of personal information, regard must be had to:

a.  the extent to which the information is well 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; and
d.  any other matters that the agency considers relevant.

Against these criteria, I take the view that:

a.  it is apparent from the information that multiple individuals are identifiable;
and
b.  the information referred to above is not readily available from publicly
accessible sources.

With reference to the assessment above, I consider that it would be unreasonable to disclose
publicly this personal information and that the documents are  therefore conditionally exempt
under section 47F(1) of the FOI Act.

Public interest considerations – section 47F

Under  the  FOI  Act,  access  to  a  document  covered  by  a  conditional  exemption  must  be
provided unless disclosure would be contrary to the public interest.

After considering the public interest factors outlined in section 11B(3) of the FOI Act, I have
determined that disclosure of the material identified as subject to conditional exemptions would
provide access to information relating to your request. However, I have considered that:

  disclosure of the information would not contribute to the publication of information of
sufficient public interest to justify the likely harm caused by release;
  disclosure of the information would not enhance Australia’s representative democracy
in the ways described in section 11B(3) of the FOI Act; and
  disclosure  of  the  information  would  not  inform  any  debate  on  a  matter  of  public
importance or promote oversight of public expenditure.

While there is limited public interest in the disclosure of information conditionally exempt under
section 47F, the harm that would result from disclosure is that it could reasonably be expected
to  affect  an  individual’s  right  to  privacy  by  having  their  personal  information  in  the  public
domain.

In summary, I am satisfied that the factors against disclosure of the information outweigh the
factors in favour of disclosure and that, on balance, it would be contrary to the public interest
to release this information to you.

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Release of documents

The documents for release, as referred to in the Schedule of Documents at  Attachment A,
are enclosed.

Rights of review

Your rights to seek a review of my decision, or lodge a complaint, are set out at Attachment B.

Should you have any enquiries concerning this matter, please do not hesitate to contact me
by email at xxx@xxxx.xxx.xx.

Yours sincerely

Matthew Curtis
Director
Freedom of Information and Privacy Section
Legal Services Branch

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Attachment A

Schedule of Documents for FOI 19/20-0514
Document
Page
Description
Access Decision
Comments
number
number
1
1
Invoice
PARTIAL ACCESS
Irrelevant material removed

Exemptions Claimed:
under section 22.

s42 – Legal professional privilege; and

Dated: 14.12.2018
s47F – personal privacy
2
5
Invoice
PARTIAL ACCESS
Irrelevant material removed

Exemptions Claimed:
under section 22.

s42 – Legal professional privilege; and

Dated: 14.01.2019
s47F – personal privacy
3
8
Invoice
PARTIAL ACCESS
Irrelevant material removed

Exemptions Claimed:
under section 22.

s42 – Legal professional privilege; and

Dated: 14.02.2019
s47F – personal privacy
4
13
Invoice
PARTIAL ACCESS
Irrelevant material removed

Exemptions Claimed:
under section 22.

s42 – Legal professional privilege; and

Dated: 14.03.2019
s47F – personal privacy
5
17
Invoice
PARTIAL ACCESS
Irrelevant material removed

Exemptions Claimed:
under section 22.

s42 – Legal professional privilege; and

Dated: 15.05.2019
s47F – personal privacy
6
20
Invoice
PARTIAL ACCESS
Irrelevant material removed

Exemptions Claimed:
under section 22.

s42 – Legal professional privilege; and

Dated: 06.09.2019
s47F – personal privacy
7
25
Invoice
PARTIAL ACCESS
Irrelevant material removed

Exemptions Claimed:
under section 22.

s42 – Legal professional privilege; and

Dated: 02.10.2019
s47F – personal privacy

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Attachment B
Your review rights

Internal Review
Section 54 of the FOI Act gives you the right to apply for an internal review of this decision. The
review will be conducted by a different person to the person who made the original decision.

If you wish to seek an internal review of the decision, you must apply for the review, in writing, within
30 days of receipt of this letter.

No particular form is required for an application for internal review, but to assist the review process,
you should clearly outline your grounds for review (that is, the reasons why you disagree with the
decision). Applications for internal review can be lodged by email to xxx@xxxx.xxx.xx or sent by post
to:
Freedom of Information & Privacy Section
Legal Services Branch
Governance, Legal & Compensation
National Disability Insurance Agency
GPO Box 700
Canberra   ACT 2601

External Review by the Office of the Australian Information Commissioner
Section 54L of the FOI Act gives you the right to apply directly to the Office of the Australian
Information Commissioner (OAIC) to seek a review of this decision.

If you wish to have the decision reviewed by the OAIC you may apply for the review, in writing or by
using the online merits review form available on the OAIC’s website at www.oaic.gov.au, within 60
days of receipt of this letter. To assist the OAIC, your application should include a copy of this
decision and your contact details. You should also clearly set out why you are objecting to the
decision. You can also complain to the OAIC about how the Agency handled your FOI request, or
other actions the Agency took under the FOI Act.

Applications for review or complaints can be lodged with the OAIC in the following ways:

Online:   www.oaic.gov.au
Post: GPO Box 5218, Sydney NSW 2001
Email:  xxxxxxxxx@xxxx.xxx.xx
Phone:   1300 363 992 (local call charge)

Complaints to the Office of the Australian Information Commissioner or the Commonwealth
Ombudsman

You may complain to either the Commonwealth Ombudsman or the OAIC about actions taken by the
Agency in relation to your request. The Ombudsman will consult with the OAIC before investigating a
complaint about the handling of an FOI request.

Your enquiries to the OAIC can be directed to the contact details identified above.

Your enquiries to the Ombudsman can be directed to:

Phone:  1300 362 072 (local call charge)
Email:   xxxxxxxxx@xxxxxxxxx.xxx.xx
No particular form is required to make a complaint to the Ombudsman or the OAIC. The request
should be in writing and should set out the grounds on which it is considered that the actions taken in
relation to the request should be investigated and identify the NDIA as the relevant agency.

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