Your reference: FOI 20/21-0805
GPO Box 700
Canberra ACT 2601
1800 800 110
30 July 2021
ndis.gov.au
Karen Reynolds
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Karen Reynolds
Freedom of Information request — Notification of Decision
Thank you for your correspondence of 1 June 2021, in which you requested access under the
Freedom of Information Act 1982 (FOI Act) to documents held by the National Disability
Insurance Agency (NDIA).
The purpose of this letter is to provide you with a decision on your request.
On 1 July 2021, the Office of the Australian information Commissioner granted the NDIA an
additional 30 days to process your request, under section 15AB of the FOI Act. Accordingly,
the new due date to provide a decision on access became 2 August 2021.
Scope of your request
You have requested access to documents about the National Disability Insurance Scheme
(NDIS). Specifical y, you requested access to:
“I refer to the fol owing response by Mr Oliver Bladek on the 25.3.21 Community Affairs
Committee -
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committ
ees%2Festimate%2F22c34e3c-d8ac-47c2-9bb3-787f23065247%2F0004%22;src1=sm1
-
(Response: Mr Bladek : We used a limited tender, consistent with the Commonwealth
procurement rule 10.3(b)B.)
Given that the appointment of former CEO Rob de Luca's company was carried out in
accordance with this finance rule, (when, for reasons of extreme urgency brought about
by events unforeseen by the relevant entity, the goods and services could not be
obtained in time under open tender) I make this request in accordance with the relevant
rules:
I request the fol owing information in relation to both Plena Healthcare and Healthstrong:
The written reports that were required to be provided that include:
- the value and type of goods and services procured;
- a statement indicating the circumstances and conditions that justified the use of limited
tender; and
- a record demonstrating how the procurement represented value for money in the
circumstances.
I further request a copy of the request documentation associated with the two
companies, including:
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- a complete description of the procurement, including the nature, scope and the quantity
of the goods and services to be procured or, where the quantity is not known, - - the
estimated quantity, and any requirements to be fulfil ed, including any technical
specifications, conformity certification, plans, drawings, or instructional materials;
- any conditions for participation, including any financial guarantees, information and
documents that potential suppliers are required to submit;
- any minimum content and format requirements;
- evaluation criteria to be considered in assessing submissions and, if applicable to the
evaluation, the relative importance of those criteria;
- any dates for the delivery of goods or supply of services, taking into account the
complexity of the procurement; and
- any other terms or conditions relevant to the evaluation of submissions.”
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 16 documents, including attachments, which fal within the scope of your
request.
The documents were identified by conducting searches of NDIA’s systems, using al
reasonable search terms that could return documents relevant to your request, and consulting
with relevant NDIA staff who could be expected to be able to identify documents within the
scope of the request.
I have decided to refuse access to 16 documents in ful .
In reaching my decision, I took into account the fol owing materials:
your correspondence outlining the scope of your request
the nature and content of the documents fal ing within the scope of your request
the FOI Act
the FOI Guidelines
relevant case law concerning the operation of the FOI Act
consultation with relevant NDIA staff
factors relevant to my assessment of whether or not disclosure would be in the public
interest
the NDIA’s operating environment and functions.
Reasons for decisions
Deliberative processes (section 47C)
Under Section 47C of the FOI Act a document is conditional y exempt if its disclosure would
disclose deliberative matter. Deliberative matter is content that is in the nature of, or relating
to either:
an opinion, advice or recommendation that has been obtained, prepared or recorded; or
a consultation or deliberation that has taken place in the course of, or for the purposes
of, a deliberative process of the government, an agency or minister.
Documents within the scope of your request contain advice and recommendations prepared
in order to inform and brief executive level staff within the NDIA about agency considerations
regarding current and future NDIA functions and processes.
Deliberative matter does not include purely factual material, however, where material was
gathered as a basis for intended deliberations, it may be deliberative matter (see FOI
Guidelines [6.67]). The FOI Guidelines [6.73] also explain that
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‘Purely factual material’ does not extend to factual material that is an integral part of the
deliberative content and purpose of a document, or is embedded in or intertwined with
the deliberative content such that it is impractical to excise it.
As the FOI Guidelines explain [6.59]:
‘Deliberative process’ general y refers to the process of weighing up or evaluating
competing arguments or considerations or to thinking processes – the process of
reflection, for example, upon the wisdom and expediency of a proposal, a particular
decision or a course of action’.
The NDIA has the responsibility for weighing up or considering proposals and actions aimed
at efficient and effective execution of functions of the NDIA. The material within the
requested documents includes suggestions, opinions, advice and recommendations relating
to the particular functions and activities of the NDIA, which are weighed and evaluated by
the NDIA as part of the deliberative processes of the NDIA.
I am satisfied that the documents considered as part of this decision contain deliberative
material and that they are conditional y exempt under section 47C of the FOI Act.
Personal privacy (section 47F)
Section 47F of the FOI Act conditional y exempts a document if its disclosure would involve
the unreasonable disclosure of personal information about any person.
I have identified material in the documents fal ing 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 wel 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 an individual is identifiable; and
b. the information referred to above is not readily available from publicly accessible
sources.
With reference to the assessment above, it would be unreasonable to disclose publicly this
personal information and is therefore conditional y exempt under section 47F(1) of the FOI
Act.
Business Information (section 47G)
Section 47G of the FOI Act conditional y exempts a document if its disclosure would disclose
information concerning a person in respect of their business or professional affairs or
concerning the business, commercial or financial affairs of an organisation or undertaking, in
which the disclosure of the information:
would or could reasonably be expected to, unreasonably affect that person adversely in
respect of their lawful business or professional affairs of that organisation or undertaking
in respect of its lawful business, commercial or financial affairs; or
could reasonably be expected to prejudice the future supply of information to the
Commonwealth or an agency for the purpose of the administration of a law of the
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Commonwealth or of a Territory or the administration of matters administered by an
agency.
The information that is conditional y exempt includes sensitive business details of thirds
parties that were provided to the Agency in confidence with an expectation that they would
not be disclosed further.
I am satisfied that the disclosure of this information could unreasonably and adversely affect
the business affairs of a third party and affect any potential or current business relationship
with the Agency.
Public interest considerations – sections 47C, 47F and 47G
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, to some extent, oversight of public expenditure. However, I have also 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; and
disclosure of the information would not inform debate on a matter of public importance or
promote oversight of public expenditure of sufficient public interest to justify the likely
harm caused by release.
While there is limited public interest in the disclosure of information conditional y exempt
under sections 47C, 47F and 47G, the harm that would result from disclosure is that it could
reasonably be expected to:
hinder the Agency’s thinking processes and the ability of Agency decision-makers to
comply with their obligations and make informed decisions, which, in turn, helps to ensure
the financial stability and integrity of the National Disability Insurance Scheme;
affect an individual’s right to privacy by having their personal information in the public
domain; and
compromise the business or professional affairs of third parties and interfere with their
ability to undertake their lawful business.
I also note that the Minister for the NDIA has recently announced that independent
assessments will not be implemented. 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.
The documents considered as part of this decision have been referenced in the Schedule of
Documents at Attachment A.
Access to edited copies with exempt or irrelevant material deleted (section 22)
In accordance with section 22 of the FOI Act I have given to consideration to whether it would
be practicable to prepare and provide to you an edited copy of any of the documents with
exempt material deleted.
A number of documents contain deliberative matter that is exempt from disclosure under
section 47C of the FOI Act. I have considered whether it would be practicable to edit the
documents to delete the deliberative matter and produce copies that would not disclose
exempt material.
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As the FOI Guidelines explain [6.73], factual material may be so embedded in deliberative
matter that it becomes part of the deliberative matter and cannot be separated. The FOI
Guidelines also explain [3.98] that a common sense approach should be taken in considering
whether the number and extent of deletions would result in the remaining document being of
little or no value to the applicant or would leave only a skeleton of the former document that
conveys little of its content or substance.
To the extent that the documents listed in the attached schedule contain factual material, it is
so embedded in the deliberative matter that it is not possible to separate it.
I consider that it would not be practicable to produce edited versions of the documents listed
in the attached schedule.
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
Ausilia Woodhead
Assistant Director
Parliamentary, Ministerial & FOI Branch
Government Division
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Attachment A
Schedule of Documents for FOI 20/21-0805
Document
Page
Description
Access Decision
Comments
number
number
1
-
Spending Proposal for the provision of
REFUSED ACCESS
Pilot 3 Independent Assessments.
Exemptions claimed:
s47C – deliberative processes
s47F – personal privacy
s47G – business information
2
-
Executed contract for the provision of
REFUSED ACCESS
independent assessments.
Exemptions claimed:
s47F – personal privacy
s47G – business information
3
-
Executed contract for the provision of
REFUSED ACCESS
independent assessments.
Exemptions claimed:
s47F – personal privacy
s47G – business information
4
-
Email
REFUSED ACCESS
Subject: RE: FOR APPROVAL: IA Pilot
- Spending Proposal and Draft
Exemptions claimed:
Contracts
s47C – deliberative processes
s47G – business information
Date: 20/01/2021
6
Document
Page
Description
Access Decision
Comments
number
number
5
-
Email
REFUSED ACCESS
Subject: RE: FOR APPROVAL: IA Pilot
- Spending Proposal and Draft
Exemption claimed:
Contracts
s47C – deliberative processes
s47G – business information
Date: 20/01/2021
5.1
-
Attachment to Document 5
REFUSED ACCESS
SPC1244 - Healthstrong IA Pilot
final.docx
Exemptions claimed:
s47C – deliberative processes
s47F – personal privacy
s47G – business information
5.2
-
Attachment to Document 5
REFUSED ACCESS
SPC1245 - Dimple IA Pilot final.docx
Exemptions claimed:
s47C – deliberative processes
s47F – personal privacy
s47G – business information
6
-
Email
REFUSED ACCESS
Subject: Re: Pilot new orgs
Exemption claimed:
Date: 18/01/2021
s47C – deliberative processes
s47G – business information
7
Document
Page
Description
Access Decision
Comments
number
number
7
-
Email
REFUSED ACCESS
Subject: FW: Statement of work for IA
Pilot V1 BB
Exemption claimed:
s47C – deliberative processes
Date: 14/01/2021
s47G – business information
8
-
Email
REFUSED ACCESS
Subject: FW: IA contract extension -
corrected details re APM company
Exemptions claimed:
name
s47C – deliberative processes
s47G – business information
Date: 08/01/2021
8.1
-
Attachment to Document 8
REFUSED ACCESS
Deed of Variation between supplier and
NDIA.
Exemptions claimed:
s47F – personal privacy
s47G – business information
8.2
-
Attachment to Document 8
REFUSED ACCESS
Email
Subject: FW: IA contract extension -
Exemptions claimed:
corrected details re APM company
s47C – deliberative processes
name
s47F – personal privacy
s47G – business information
Date: 15/12/2020
8
Document
Page
Description
Access Decision
Comments
number
number
8.2.1
-
Attachment to Document 8.1
REFUSED ACCESS
20201214 APM Assessment Contract
M000001271- DOV 2.pdf
Exemptions claimed:
s47F – personal privacy
s47G – business information
9
-
Email
REFUSED ACCESS
Subject: FW: IA Pilot Contract and way
forward
Exemption claimed:
s47C – deliberative processes
Date: 04/01/2021
s47G – business information
10
-
Email
REFUSED ACCESS
Subject: RE: IA Pilot
Exemption claimed:
Date: 29/12/2020
s47C – deliberative processes
s47G – business information
11
-
Executed Contract for the provision of
REFUSED ACCESS
independent assessments.
Exemptions claimed:
s47F – personal privacy
s47G – business information
9
Attachment B
Your review rights
Internal Review
The FOI Act gives you the right to apply for an internal review of this decision. The review
wil 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 Section
Parliamentary, Ministerial & FOI Branch
Government Division
National Disability Insurance Agency
GPO Box 700
CANBERRA ACT 2601
Review by the Office of the Australian Information Commissioner
The FOI Act also gives you the right to apply 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.
Applications for review can be lodged with the OAIC in the fol owing ways:
Online:
www.oaic.gov.au
Post:
GPO Box 5218, Sydney NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Phone:
1300 363 992 (local cal 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 NDIA in relation to your request. The Ombudsman wil consult with the OAIC
before investigating a complaint about the handling of an FOI request.
Your complaint to the OAIC can be directed to the contact details identified above. Your
complaint to the Ombudsman can be directed to:
Phone:
1300 362 072 (local cal charge)
Email:
xxxxxxxxx@xxxxxxxxx.xxx.xx
Your complaint 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
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