Our reference: FOI 21/22-0187
GPO Box 700
Canberra ACT 2601
1800 800 110
ndis.gov.au
18 October 2021
Bob Buckley
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Bob Buckley
Freedom of Information request — Notification of Decision
Thank you for your correspondence of 18 August 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.
Scope of your request
You have requested access to documents about the National Disability Insurance Scheme
(NDIS). Specifically, you requested access to:
“…information your agency gave to Minister Reynolds, and records of briefings, on the
sustainability of the NDIS since she took office as Minister for the NDIS.”
Decision on access to documents
I am authorised to make decisions under section 23(1) of the FOI Act. My decision on your
request and the reasons for my decision are set out below.
I have identified 5 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 with relevant NDIA staff who could be expected to be able to identify documents
within the scope of the request.
I have decided to:
grant access to three documents in full
refuse access to two documents in full.
There are three further documents which fall within scope of your request that are publicly
available at the following links:
Report to disability ministers for Q3 of Y8
Report to disability ministers for Q4 of Y8
Annual Financial Sustainability Report 2020-21
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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)
Section 47C of the FOI Act conditional y exempts a document if its release 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.
Paragraph 6.59 of the FOI Guidelines provides that ‘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.
Documents 4 and 5 are Minister deep dives, which contain deliberative matter in the form of
analysis, opinion, advice and recommendations of officers within the Agency, recorded in the
course of assisting the Minister to reach decisions and make ongoing plans regarding the
financial sustainability of the NDIS.
Section 47C(2) of the FOI Act provides that deliberative matter does not include purely
factual material. The FOI Guidelines provide 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 documents 4 and 5 contain information that meets the definition of
‘deliberative matter’. I am also satisfied that to the extent that the parts of the documents that
contain factual material, the factual material is an integral part of the deliberative content, or
is embedded or intertwined with the deliberative content such that is it impractical to excise.
Therefore, I find that documents 4 and 5 do not contain purely factual material, and are
conditional y exempt under section 47C of the FOI Act. My considerations of the public
interest test are set out below.
Certain operations of agencies (section 47E(d))
Section 47E(d) of the FOI Act conditional y 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.
As mentioned above, documents 4 and 5 contain analysis, opinion, advice and
recommendations of officers within the Agency in relation to the sustainability of the NDIS.
Disclosure of this information would, or could reasonably be expected to have a substantial
adverse effect on the proper and efficient administration of the of the NDIS, on the basis that
such a disclosure would reveal methodologies, processes and analysis the NDIA uses to
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make decisions, ongoing plans and administration processes to ensure the Scheme’s
sustainability. Any disclosure resulting in the prejudice of the effectiveness of the Agency’s
operational methods and procedures would, or could reasonably be expected to, result in the
need for the Agency to change those methods and procedures to ensure the future
effectiveness and sustainability of the Agency and the Scheme. I am satisfied that the
release of this information would result in public disclosure of internal methodologies that,
through improper use, would, or could, lead to a distortion of funding levels that would
adversely affect the integrity of the NDIS and its financial sustainability.
Accordingly, I find that disclosure of this information would, or could reasonably be expected
to, have a substantial adverse effect on the operations of the Agency and is, therefore,
conditionally exempt under section 47E(d) of the FOI Act. My considerations of the public
interest test are set out below.
Public interest considerations – section
s 47C, 47E(d)
As I have decided that documents 4 and 5 are conditionally exempt under sections 47C and
47E(d) of the FOI Act, I must now consider whether access to the conditionally exempt
material would be contrary to the public interest. Section 11A(5) of the FOI Act provides that
access to a document covered by a conditional exemption must be provided unless
disclosure would be contrary to the public interest.
In favour of disclosure, I have considered the factors outlined in section 11B(3) of the FOI
Act, and I have determined that disclosure of documents 4 and 5 would promote the objects
of the FOI Act by providing access to documents held by the government, and would
promote effective oversight of public expenditure.
Against disclosure, I consider 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
there is strong public interest in maintaining the Agency’s ability to effectively manage its
programs towards strategic outcomes and maintaining Scheme sustainability.
I have not taken into consideration any of the factors set out in section 11B(4) of the FOI Act
in making my decision.
While there is limited public interest in the disclosure of information conditionally exempt
under sections 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 NDIS
adversely affect the ability of the Agency to maintain internal processes and
methodologies, 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 documents 4 and 5 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.
Release of documents
The documents for release, as referred to in the Schedule of Documents at Attachment A,
are enclosed.
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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
Carolyn
Assistant Director – FOI
Parliamentary, Ministerial & FOI Branch
Government Division
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Attachment A
Schedule of Documents for FOI 21/22-0187
Document
Page
Description
Access Decision
Comments
number
number
1
1-6
SQ21-000071
FULL ACCESS
Irrelevant material removed
Question on Notice – Additional
under section 22 of the FOI
Estimates Spil Over
Act.
Dated: 03.05.2021
2
7-10
IQ21-000022
FULL ACCESS
Irrelevant material removed
Question on Notice – Joint Standing
under section 22 of the FOI
Committee Hearing
Act.
Dated: 18.05.2021
3
11-14
IQ21-000024
FULL ACCESS
Irrelevant material removed
Question on Notice – Joint Standing
under section 22 of the FOI
Committee Hearing
Act.
Dated: 18.05.2021
4
-
Sustainability Action Taskforce –
REFUSED ACCESS
Minister Deep Dive
Exemptions claimed:
Dated: 24.03.2021
47C – deliberative processes
47E(d) – certain operations of agency
5
-
NDIS Sustainability Response –
REFUSED ACCESS
Minister Deep Dive
Exemptions claimed:
Dated: 28.07.2021
47C – deliberative processes
47E(d) – certain operations of agency
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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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