Our reference: FOI 20/21-0851
GPO Box 700
Canberra ACT 2601
1800 800 110
8 September 2021
ndis.gov.au
Shirley
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Shirley
Freedom of Information request — Notification of Decision
Thank you for your 2 requests of 9 June 2021, under the
Freedom of Information Act 1982
(FOI Act) for copies of documents held by the National Disability Insurance Agency (NDIA).
Scope of your request
As per previous correspondence, under section 24(2) of the FOI Act an agency may treat 2 or
more requests as a single request if the subject matter is substantially the same; therefore, as
previously advised, we have combined your 2 requests into one request.
The scope of this combined request is:
“…a copy of the NDIA's COVID-19 pandemic/epidemic risk, hazard and threat
assessment specific to the State of Victoria. That is, the structured, documented
assessment informing the NDIS’ classification and prioritisation of participants, providers,
processes, staff, physical sites and business activities rated as ‘high’, ‘medium’ or ‘low'
risk. This applies for both ‘COVID normal’ and ‘lockdown’ periods. In sum, the NDIS work
product informing the NDIA's business continuity and/or resilience action…
…a copy of the NDIA's COVID-19 pandemic/epidemic risk, hazard and threat
assessment specific to the State of New South Wales. That is, the structured,
documented assessment informing the NDIS’ classification and prioritisation of
participants, providers, processes, staff, physical sites and business activities rated as
‘high’, ‘medium’ or ‘low’ risk. This applies for both ‘COVID normal’ and ‘lockdown’
periods…”
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 note that the NDIA’s response to the pandemic has been holistic and considered the
impacts of the COVID-19 across Australia. During searches a number of documents were
located that related to NDIA’s response to the COVID-19 pandemic and business continuity
planning. While these documents are not specific only to New South Wales or Victoria, they
are applicable to those regions and are relied upon. I have therefore reasonably interpreted
them to be in scope.
I have identified 3 documents which fall within the scope of your request.
The documents were identified by conducting searches of NDIA’s systems, using all
reasonable search terms that could return documents relevant to your request, and consulting
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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 3 documents in full.
In reaching my decision, I took into account the following materials:
your correspondence outlining the scope of your request;
the nature and content of the documents falling within the scope of your request;
the FOI Act;
the FOI Guidelines;
consultation with relevant NDIA staff;
factors relevant to my assessment of whether or not disclosure would be in the public
interest; and
the NDIA’s operating environment and functions.
Reasons for decisions
Deliberative processes (section 47C)
Section 47C of the FOI Act conditionally exempts a document if its disclosure would disclose
deliberative matter in the nature of, or relating to, opinion, advice or recommendation obtained,
prepared or recorded, or consultation or deliberation that has taken place, in the course of, or
for the purposes of, the deliberative processes involved in the functions of an agency.
The document within the scope of your request contains deliberative matter in the form of
opinion, advice and recommendations, recorded in the course of providing a prospective
estimation of COVID-19 risks and potential responses or mitigation strategies.
As provided in the FOI Guidelines, the deliberative processes involved in the functions of an
agency are its thinking 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:
‘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.
I am satisfied that the information contained within the document falling within the scope of
this request is conditionally exempt under section 47C of the FOI Act.
Certain operations of agencies (section 47E(d))
Section 47E(d) of the FOI Act conditionally exempts a document if its disclosure would, or
could reasonably be expected to, have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
The document within the scope of your request contains information relating to certain
operations of the NDIA, specifically, internal operations related to risk management processes
that affect the functions of the NDIA, its operational decision making, and the delivery of
services through the National Disability Insurance Scheme (NDIS) during the COVID-19
pandemic.
The disclosure of this information would reveal methodologies the NDIA uses to assist in its
operational risk determination in relation to specific NDIS programs, as well as the NDIA as
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an agency. That is, the methodology used by the NDIA to determine appropriate risk
management strategies to respond to the pandemic.
I am satisfied that the release of this information would potentially result in the public disclosure
of internal methodologies and information that, through improper use, would, or could,
compromise internal decision making or affect business continuity planning that would
substantially and adversely affect the integrity of the NDIS.
Public interest considerations – section 47C and 47E(d)
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
not provide access to information relating to the applicant. 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 47C and 47E(d), 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; and
prejudice the ability of the Agency to provide guidance on program risks, plan appropriate
risk mitigation, and inform the executive in improving decision making, which in turn, helps
to ensure the financial stability and integrity of the NDIS.
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.
Access to edited copies with exempt or irrelevant material deleted (section 22)
In accordance with section 22 of the FOI Act I have given 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.
The document contains 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 document to
delete the deliberative matter and produce copies that would not disclose exempt material.
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 document listed in the attached schedule contains factual material, it is
so embedded in the deliberative matter that it is not possible to separate it.
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I consider that it would not be practicable to produce edited version of the document.
Release of documents
The document considered as part of this decision has been references in the Schedule of
Documents at
Attachment A.
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
Assistant Director
Freedom of Information Officer
Parliamentary, Ministerial & FOI Branch
Government Division
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Attachment A
Schedule of Documents for FOI 20/21-0851
Document
Page
Description
Access Decision
number
number
COVIDSafe Workplace Risk Assessment and
REFUSED ACCESS
1
-
Action Plan
Exemptions claimed:
Dated: 24.07.2020
s47C – deliberative processes
Participant Experience Delivery Critical services
REFUSED ACCESS
2
-
& BCP actions
Exemptions claimed:
Dated: 19.04.2020
s47C – deliberative processes
s47E(d) – certain operations of agencies
COVID-19 Risk Register
REFUSED ACCESS
3
-
Exemptions claimed:
s47C – deliberative processes
s47E(d) – certain operations of agencies
5
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
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 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 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 NDIA in relation to your request. The Ombudsman will 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 call 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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