Our reference: FOI 22/23-0066
GPO Box 700
25 October 2022
Canberra ACT 2601
1800 800 110
Me
ndis.gov.au
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Me
Freedom of Information request — Notification of Decision
Thank you for your correspondence of 12 July 2022, in which you requested access to
documents held by the National Disability Insurance Agency (NDIA), under the
Freedom of
Information Act 1982 (FOI Act).
The purpose of this letter is to provide you with a decision on your request.
Scope of your request
You have requested access the following documents:
I request all personnel records regarding Ken Skelton (xxx.xxxxxxx@xxxx.xxx.xx).
This includes but is not limited to:
- code of conduct issues (broadly defined)
- HR issues (broadly defined)
- performance agreements where behaviour (as against competence) is at issue
It excludes:
- leave and other payroll records
I have reason to believe Ken Skelton is involved in a criminal enterprise. I would like
more information to assist me in deciding whether to make an APS complaint and/or
police complaint.
I am open to suggestion as to ameliorating privacy concerns, such as, a disclosure
that is not required to be published on the disclosure log.
I am not satisfied that you have the authority to receive the requested information on behalf
of Ken Skelton.
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 decided to refuse access to your request under section 47F of the FOI Act. The
reasons for my decision are set out below.
In reaching my decision, I took the following into account:
• 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 published under section 93A of the FOI Act
• the NDIA’s operating environment and functions.
Reasons for decision
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).
Paragraph 6.127 of the FOI Guidelines states that The FOI Act shares the same definition of
‘personal information’ as the Privacy Act, which regulates the handling of personal
information about individuals (see s 4(1) of the FOI Act and s 6 of the Privacy Act). The
cornerstone of the Privacy Act’s privacy protection framework is the Australian Privacy
Principles (APPs), a set of legally binding principles that apply to both Australian
Government agencies and private sector organisations that are subject to the Act. Detailed
guidance about the APPs is available in the Information Commissioner’s
APP Guidelines. Paragraphs 6.128 of the FOI Guidelines provides that personal information means
information or an opinion about an identified individual, or an individual who is reasonably
identifiable:
a. whether the information or opinion is true or not
b. whether the information or opinion is recorded in a material form or not.
Paragraph 6.129 of the FOI Guidelines provides that personal information is:
• information about an identified individual or an individual who is reasonably identifiable
• says something about a person
• may be opinion
• may be true or untrue
• may be recorded in material form or not.
I am satisfied that documents that fall within the scope of your request, were they to exist,
would meet the definition of ‘personal information’.
Section 47F(2) of the FOI Act provides that 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
d. any other matters that the agency considers relevant.
With reference to this assessment, and without any evidence before me that you are
authorised to obtain documents on behalf of Ken Skelton, I have decided that it would be
unreasonable to publicly disclose any personal information to you, were it to exist.
I have also consulted with Ken Skelton in regards to the potential release of his personal
information. Ken Skelton has objected to the release of his personal information on the
grounds of personal privacy.
Accordingly, I have decided that any information, if it were to exist, would be conditionally
exempt under section 47F of the FOI Act. My considerations of the public interest test are
set out below.
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Public interest considerations – section 47F
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.
I have not considered any of the irrelevant factors as set out under section 11B(4) of the FOI
Act in making this decision.
After considering the public interest factors outlined in section 11B(3) of the FOI Act, I have
determined that if the information were to exist:
a. disclosure would not contribute to the publication of information of sufficient public
interest value to justify impinging on personal privacy rights
b. disclosure would not enhance Australia’s representative democracy in the ways
described in section 11B(3) of the FOI Act
c. disclosure would not inform any debate on a matter of public importance or promote
oversight of public expenditure
In view of the fact that there is limited public interest in the disclosure of personal
information, the factors against disclosure of the information, were it to exist, outweigh the
factors in favour of disclosure. The harm that may result from the disclosure of any such
exempt information is that it may unreasonably affect an individual’s right to privacy by
having their personal information in the public domain. On balance, I am satisfied that if the
information were to exist, it would be contrary to the public interest to release this information
to you, and would be exempt under section 47F of the FOI Act.
Rights of review
Your rights to seek a review of my decision, or lodge a complaint, are set out at
Attachment A.
Please contact us at
xxx@xxxx.xxx.xx if you have any questions or require help.
Yours sincerely
Kylie Senior Freedom of Information Officer
Parliamentary, Ministerial & FOI Branch
Government Division
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Attachment A
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
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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