External review of NDIA FOI 24/25-0592
Dear Office of the Australian Information Commissioner,
I hereby request an external review from the Office of the Australian Commissioner (OAIC) of the NDIA's response to my FoI request 24/25-0592 - see https://www.righttoknow.org.au/request/t...
I have been refused access to the entirety of the 13 documents for the following stated reasons:
1. Documents 1-13 are said to contain information relating to certain operations of the NDIA, specifically: Internal guidance given to staff in relation to the quantum of supports to include within a participant’s plan in determining the level of supports a participant may require.
2. The disclosure of this information would reveal methodologies the NDIA uses to assist in determining levels of support provided to NDIS participants, which is to better ensure that participants receive supports that are reasonable and necessary.
3. 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.
4. The release of this information would potentially result in the public disclosure of internal methodologies that, through improper use, would, or could, lead to a distortion of funding levels that would substantially and adversely affect the integrity of the NDIS and its financial sustainability.
5. Should the materials be available as public documents, there is a risk that the circumstances described in these articles, that resulted in a positive determination for the requested funded supports, can be utilised as a threshold criterion to meet reasonable and necessary criteria. This may enable providers to manipulate their justifications / recommendations for prescribed supports or levels of support for participants to indicate they are likely to be reasonable and necessary for the NDIS to fund. This may significantly compromise the integrity and financial sustainability of the scheme.
6. Disclosure could reasonably be expected to prejudice the ability of the Agency to provide guidance to staff and to decision makers in classifying applicants based on support needs in order to comply with their obligations and make informed decisions in relation to the quantum of funding to add to each reasonable and necessary support, which, in turn, helps to ensure the financial stability and integrity of the NDIS.
I dispute these reasons, and seek that OAIC conducts an external review, on the following grounds:
1. The NDIA provides no reasoning or evidence to support its claim that disclosure would result in the prejudice of the effectiveness of the Agency’s operational methods and procedures.
2. The NDIA provdes no reasoning or evidence to support its claim that such disclosure 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.
3. The NDIA provides no reasoning or evidence to support its claim that "improper use" would, or could, lead to a distortion of funding levels that would substantially and adversely affect the integrity of the NDIS and its financial sustainability. It does not provide any examples of what might constitute "improper use", other than assumed fradulent activity by providers (see point 4 below).
4. The NDIA provides no reasoning or evidence as to how providers would or could use the information to 'manipulate their justifications / recommendations for prescribed supports or levels of support for participants to indicate they are likely to be reasonable and necessary for the NDIS to fund.' Such a statement presuposes a level of dishonesty by providers, implying they will intentionally provide false or fraudulent information to the NDIA (and also potentially the Administrative Review Tribunal). This would not only be illegal, but also contrary to these providers' professional codes of conduct/ethics. There is no valid basis for such an assumption that many (if any) providers would do this.
5. There already exists a large body of informatiion in the public realm, which is accessible to providers, explaining threshold criteria to meet reasonable and necessary supports, including guidelines and other materials published by the NDIA on its website (e.g. https://ourguidelines.ndis.gov.au/how-nd...). There also exist a multitude of Administrative Appeal Tribunal/Administrative Review Tribunal published decisions providing judicial guidance on these threshold criteria. There is no evidence that providers presently 'manipulate' this information so as to result in a distortion of funding levels, which substantially and adversely affects the integrity of the NDIS and its financial sustainability. If the agency was really concened about providers manipulating this information, it would remove this guidance material from its website. But it has not done so.
6. For all the reasons set out above, there is no basis for the claim that disclosure could reasonably be expected to prejudice the ability of the Agency to provide guidance to staff and to decision makers in classifying applicants based on support needs in order to comply with their obligations and make informed decisions in relation to the quantum of funding to add to each reasonable and necessary support, which, in turn, helps to ensure the financial stability and integrity of the NDIS.
Yours faithfully,
David Wright
Your email has been received by the Office of Australian Information
Commissioner (OAIC).
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Our reference: MR25/00136
Agency reference: FOI 24/25-0592
Applicant: David Wright
Respondent: National Disability Insurance Agency
By email: [FOI #12747 email]
Your Information Commissioner review application
Good afternoon David,
On 18 January 2025, you applied for Information Commissioner review (IC review) about a Freedom of Information (FOI) decision made by the respondent referenced at the top of this email.
Why we are writing to you:
We have received, and are currently considering, your application for IC review.
Please note paragraph 2.7 the Direction as to certain procedures to be followed by applicants in Information Commissioner reviews advises:
‘An application for IC review must be made in writing and should be made online using the Information Commissioner Review Application form available on the OAIC website.’
In future, and to avoid any delays with manual registration, please use our online webform.
Assistance
Please note: You can withdraw an IC review application at any time. There is no penalty if you do this. You can also lodge a new FOI request to the Agency at any time.
If you require assistance regarding this email, please contact us at [email address].
Please quote the reference MR25/00136 in all correspondence.
Kind regards,
Alex
Intake and Eligibility Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P: 1300 363 992
W: Enquiry form
The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and present.
Subscribe to Information Matters
Our reference: MR25/00136
Agency/Minister reference: FOI 24/25-0592
FOI Contact Officer
National Disability Insurance Agency
By email: [1][email address]
David Wright
By email: [2][FOI #12747 email]
Information Commissioner review - Notice of commencement
Dear Parties,
Please find attached notice of commencement for the above referenced
Information Commissioner review (IC review).
As outlined in the notice, it appears that the National Disability
Insurance Agency’s decision dated 17 January 2025, was not made within the
statutory timeframe. As such, the IC reviewable decision remains the
National Disability Insurance Agency’s deemed access refusal decision of
12 December 2024. The purported decision, taken to be a submission, cannot
be considered a variation of an access refusal decision under s 55G of the
FOI Act. Should the National Disability Insurance Agency decide to grant
access during the IC review process, this must be made in accordance with
s 55G of the FOI Act.
The OAIC requires the agency to engage with applicants to resolve or
narrow the issues in dispute. Applicants are encouraged to actively
communicate with the agency to facilitate this engagement.
Please note, Annexure A and B of the notice provide further information
about the obligations of parties during the IC review process.
Kind regards,
[3][IMG] Ishraq Quashem
Casework Support Officer
FOI Case Management Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [4][email address]
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[5]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. mailto:[email address]
2. mailto:[FOI #12747 email]
3. https://www.oaic.gov.au/
4. mailto:[email address]
5. https://www.oaic.gov.au/engage-with-us/n...
Your reference: MR25/00136
Our reference: FOI 24/25-0592
OAIC
By email: [1][email address]
David Wright
By email: [2][FOI #12747 email]
Dear Ishraq,
Thank you for your email requesting submissions in relation to this
matter.
To support our submissions, we have consulted with staff in our Legal team
for assistance. They are currently reviewing the matter and have requested
additional time to provide their response.
As a result, we kindly request an extension of time to provide our
submissions to 3 April 2025.
This will enable us with the additional time to review legal’s advice,
then consult with the original business units and draft comprehensive
submissions.
Thank you for considering our request.
If you require any further information, please let us know.
Kind regards,
Sussan
Senior Freedom of Information Officer
Complaints Management & FOI
Governance, Risk & Legal – Government Division
National Disability Insurance Agency
Email: [3][email address]
[4]NDIA logo
[5]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
[6]Aboriginal and Torres Strait Islander flags graphic
From: OAIC - FOI DR <[7][email address]>
Sent: Thursday, 6 February 2025 10:39 AM
To: David Wright <[8][FOI #12747 email]>; foi
<[9][email address]>
Subject: OAIC – Response due 20 March 2025 - MR25/00136 - Notice of
Information Commissioner review – Agency reference FOI 24/25-0592
[SEC=OFFICIAL]
Our reference: MR25/00136
Agency/Minister reference: FOI 24/25-0592
FOI Contact Officer
National Disability Insurance Agency
By email: [10][email address]
David Wright
By email: [11][FOI #12747 email]
Information Commissioner review - Notice of commencement
Dear Parties,
Please find attached notice of commencement for the above referenced
Information Commissioner review (IC review).
As outlined in the notice, it appears that the National Disability
Insurance Agency’s decision dated 17 January 2025, was not made within the
statutory timeframe. As such, the IC reviewable decision remains the
National Disability Insurance Agency’s deemed access refusal decision of
12 December 2024. The purported decision, taken to be a submission, cannot
be considered a variation of an access refusal decision under s 55G of the
FOI Act. Should the National Disability Insurance Agency decide to grant
access during the IC review process, this must be made in accordance with
s 55G of the FOI Act.
The OAIC requires the agency to engage with applicants to resolve or
narrow the issues in dispute. Applicants are encouraged to actively
communicate with the agency to facilitate this engagement.
Please note, Annexure A and B of the notice provide further information
about the obligations of parties during the IC review process.
Kind regards,
[12][IMG] Ishraq Quashem
Casework Support Officer
FOI Case Management Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [13][email address]
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[14]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. mailto:[email address]
2. mailto:[FOI #12747 email]
3. mailto:[email address]
5. https://intranet.ndiastaff.ndia.gov.au/h...
7. mailto:[email address]
8. mailto:[FOI #12747 email]
9. mailto:[email address]
10. mailto:[email address]
11. mailto:[FOI #12747 email]
12. https://www.oaic.gov.au/
13. mailto:[email address]
14. https://www.oaic.gov.au/engage-with-us/n...
Our reference: MR25/00136
Your reference: FOI 24/25-0592
Good afternoon, Sussan
We apologise for the delay in responding to your request for an extension
of time and confirm an extension until 3 April 2025 is granted.
Kind regards
[1][IMG] Rachel McCormack
A/g Assistant Director | Early
Resolution
FOI Case Management Branch
Office of the Australian Information
Commissioner
GPO Box 5218 Sydney NSW 2001 |
[2]oaic.gov.au
1300 363 992 |
[3][email address]
[4][IMG] | [5][IMG] | [6][IMG] | [7]Subscribe to OAICnet
newsletter
The OAIC has revised its IC review procedure directions from 1 July 2024.
For more information, including new resources to assist applicants and
respondents, see our webpage: [8]Information Commissioner reviews.
The OAIC acknowledges Traditional Custodians of Country across Australia
and their continuing connection to land, waters and communities. We pay
our respect to First Nations people, cultures and Elders past and present.
[9]Subscribe to Information Matters
From: foi <[email address]>
Sent: Tuesday, 25 February 2025 11:33 AM
To: OAIC - FOI DR <[email address]>
Cc: foi <[email address]>; '[FOI #12747 email]'
<[FOI #12747 email]>
Subject: RE: OAIC – Response due 20 March 2025 - MR25/00136 - Notice of
Information Commissioner review – Agency reference FOI 24/25-0592
[SEC=OFFICIAL]
CAUTION: This email originated from outside of the organisation. Do not click
links or open attachments unless you recognise the sender and know the content
is safe.
Your reference: MR25/00136
Our reference: FOI 24/25-0592
OAIC
By email: [10][email address]
David Wright
By email: [11][FOI #12747 email]
Dear Ishraq,
Thank you for your email requesting submissions in relation to this
matter.
To support our submissions, we have consulted with staff in our Legal team
for assistance. They are currently reviewing the matter and have requested
additional time to provide their response.
As a result, we kindly request an extension of time to provide our
submissions to 3 April 2025.
This will enable us with the additional time to review legal’s advice,
then consult with the original business units and draft comprehensive
submissions.
Thank you for considering our request.
If you require any further information, please let us know.
Kind regards,
Sussan
Senior Freedom of Information Officer
Complaints Management & FOI
Governance, Risk & Legal – Government Division
National Disability Insurance Agency
Email: [12][email address]
[13]NDIA logo
[14]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
[15]Aboriginal and Torres Strait Islander flags graphic
From: OAIC - FOI DR <[16][email address]>
Sent: Thursday, 6 February 2025 10:39 AM
To: David Wright <[17][FOI #12747 email]>; foi
<[18][email address]>
Subject: OAIC – Response due 20 March 2025 - MR25/00136 - Notice of
Information Commissioner review – Agency reference FOI 24/25-0592
[SEC=OFFICIAL]
Our reference: MR25/00136
Agency/Minister reference: FOI 24/25-0592
FOI Contact Officer
National Disability Insurance Agency
By email: [19][email address]
David Wright
By email: [20][FOI #12747 email]
Information Commissioner review - Notice of commencement
Dear Parties,
Please find attached notice of commencement for the above referenced
Information Commissioner review (IC review).
As outlined in the notice, it appears that the National Disability
Insurance Agency’s decision dated 17 January 2025, was not made within the
statutory timeframe. As such, the IC reviewable decision remains the
National Disability Insurance Agency’s deemed access refusal decision of
12 December 2024. The purported decision, taken to be a submission, cannot
be considered a variation of an access refusal decision under s 55G of the
FOI Act. Should the National Disability Insurance Agency decide to grant
access during the IC review process, this must be made in accordance with
s 55G of the FOI Act.
The OAIC requires the agency to engage with applicants to resolve or
narrow the issues in dispute. Applicants are encouraged to actively
communicate with the agency to facilitate this engagement.
Please note, Annexure A and B of the notice provide further information
about the obligations of parties during the IC review process.
Kind regards,
[21][IMG] Ishraq Quashem
Casework Support Officer
FOI Case Management Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [22][email address]
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[23]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.oaic.gov.au/
2. https://www.oaic.gov.au/
3. mailto:[email address]
4. http://www.facebook.com/OAICgov
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7. https://www.oaic.gov.au/media-and-speech...
8. https://www.oaic.gov.au/freedom-of-infor...
9. https://www.oaic.gov.au/engage-with-us/n...
10. mailto:[email address]
11. mailto:[FOI #12747 email]
12. mailto:[email address]
14. https://intranet.ndiastaff.ndia.gov.au/h...
16. mailto:[email address]
17. mailto:[FOI #12747 email]
18. mailto:[email address]
19. mailto:[email address]
20. mailto:[FOI #12747 email]
21. https://www.oaic.gov.au/
22. mailto:[email address]
23. https://www.oaic.gov.au/engage-with-us/n...
Dear OAIC - FOI DR,
The extension of time granted to 3 April 2025 has now lapsed.
Yours sincerely,
David Wright
Dear David Wright,
I am writing to provide you with an update on your matter MR25/00136 that
is currently under Information Commissioner review.
The NDIA has considered the decision under review and has determined that
it would be appropriate to make a new decision under s 55G of the Freedom
of Information Act 1982.
To allow the NDIA to make the new decision, I have requested an extension
of time from the Office of the Australian Information Commissioner (OAIC)
until 22 May 2025.
I have included the correspondence sent to the OAIC below. Please note I
have removed staff last names and email addresses for privacy reasons.
Yours sincerely
Karla
Karla
Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
Email: [1][email address]
[2]NDIA logo
[3]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
From: foi <[email address]>
Sent: Tuesday, 15 April 2025 3:56 PM
To: OAIC - FOI DR <[email address]>
Cc: foi <[email address]>
Subject: RE: OAIC –MR25/00136 - Notice of Information Commissioner review
– Agency reference FOI 24/25-0592 [SEC=OFFICIAL]
Dear Rachel,
MR25/00136 – Application for an Extension of Time
We refer to the Notice of IC review and request for documents of 6
February 2025 (Notice), requiring the NDIA to complete the engagement with
the applicant and share its submissions with the OAIC and the applicant
and to provide the relevant documents to OAIC by 20 March 2025.
The NDIA acknowledges that it has not been able to meet the above
timeframe and apologises to OAIC and to the applicant. The NDIA confirms
it has given further consideration to the decision under review and has
determined that it would be appropriate to make a new decision under s 55G
of the Freedom of Information Act 1982.
To allow the NDIA to make the new decision, the NDIA respectfully requests
that the compliance date in the Notice be amended to Thursday 22 May 2025.
Yours sincerely
Karla
Karla
Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
Email: [4][email address]
[5]NDIA logo
[6]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
References
Visible links
1. mailto:[email address]
3. https://intranet.ndiastaff.ndia.gov.au/h...
4. mailto:[email address]
6. https://intranet.ndiastaff.ndia.gov.au/h...
OAIC reference: MR25/00136
Agency reference: FOI 24/25-0592
Good afternoon, Mr Wright,
The National Disability Insurance Agency has requested an extension of
time until 22 May 2025 to enable them to make a revised decision on your
FOI request. (See email below)
We would be grateful if you could reply to this email before 28 April 2025
and advise us if you have any concerns with this timeframe.
Kind regards
[1][IMG] Rachel McCormack
A/g Assistant Director | Early
Resolution
FOI Case Management Branch
Office of the Australian Information
Commissioner
GPO Box 5218 Sydney NSW 2001 |
[2]oaic.gov.au
1300 363 992 |
[3][email address]
[4][IMG] | [5][IMG] | [6][IMG] | [7]Subscribe to OAICnet
newsletter
The OAIC has revised its IC review procedure directions from 1 July 2024.
For more information, including new resources to assist applicants and
respondents, see our webpage: [8]Information Commissioner reviews.
The OAIC acknowledges Traditional Custodians of Country across Australia
and their continuing connection to land, waters and communities. We pay
our respect to First Nations people, cultures and Elders past and present.
[9]Subscribe to Information Matters
From: foi <[email address]>
Sent: Tuesday, 15 April 2025 4:52 PM
To: [FOI #12747 email]
Cc: foi <[email address]>; OAIC - FOI DR <[email address]>
Subject: RE: OAIC –MR25/00136 - Notice of Information Commissioner review
– Agency reference FOI 24/25-0592 [SEC=OFFICIAL]
CAUTION: This email originated from outside of the organisation. Do not click
links or open attachments unless you recognise the sender and know the content
is safe.
Dear David Wright,
I am writing to provide you with an update on your matter MR25/00136 that
is currently under Information Commissioner review.
The NDIA has considered the decision under review and has determined that
it would be appropriate to make a new decision under s 55G of the Freedom
of Information Act 1982.
To allow the NDIA to make the new decision, I have requested an extension
of time from the Office of the Australian Information Commissioner (OAIC)
until 22 May 2025.
I have included the correspondence sent to the OAIC below. Please note I
have removed staff last names and email addresses for privacy reasons.
Yours sincerely
Karla
Karla
Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
Email: [10][email address]
[11]NDIA logo
[12]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
From: foi <[13][email address]>
Sent: Tuesday, 15 April 2025 3:56 PM
To: OAIC - FOI DR <[14][email address]>
Cc: foi <[15][email address]>
Subject: RE: OAIC –MR25/00136 - Notice of Information Commissioner review
– Agency reference FOI 24/25-0592 [SEC=OFFICIAL]
Dear Rachel,
MR25/00136 – Application for an Extension of Time
We refer to the Notice of IC review and request for documents of 6
February 2025 (Notice), requiring the NDIA to complete the engagement with
the applicant and share its submissions with the OAIC and the applicant
and to provide the relevant documents to OAIC by 20 March 2025.
The NDIA acknowledges that it has not been able to meet the above
timeframe and apologises to OAIC and to the applicant. The NDIA confirms
it has given further consideration to the decision under review and has
determined that it would be appropriate to make a new decision under s 55G
of the Freedom of Information Act 1982.
To allow the NDIA to make the new decision, the NDIA respectfully requests
that the compliance date in the Notice be amended to Thursday 22 May 2025.
Yours sincerely
Karla
Karla
Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
Email: [16][email address]
[17]NDIA logo
[18]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
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Dear Rachel
I doubt whether expressing any concerns over the timeframe would make any difference. In my expreience, the agency regularly fails to meet whatever timeframe extension it is given to it.
Yours sincerely,
David Wright
OAIC reference: MR25/00136
Agency reference: FOI 24/25-0592
National Disability Insurance Agency
By email: [email address]
David Wright
By email: [FOI #12747 email]
Good afternoon, Karla
Given the Agency has not yet provided its response despite an extended due
date, we do not consider a further extension until 22 May 2025 to be
appropriate in the circumstances.
Action required by close of business 8 May 2025:
If the Agency is unable to finalise its revised decision under s 55G of
the FOI Act by close of business 8 May 2025, we require the Agency to
provide to the OAIC, the documents and information outlined in the notice
issued under s 54Z of the FOI Act on 6 February 2025.
Non-compliance may result in:
If we do not receive a response by close of business 8 May 2025, we will
proceed with the requirement for the production of documents under section
55R of the FOI Act. The s 55R Notice will be issued to the relevant SES
band 2 (or equivalent) within your Agency. Failure to comply with the
notice is an offence punishable by six months’ imprisonment (per section
55R(5)).
For further details, refer to paragraphs 2.10 and 3.18 of the [1]Direction
as to certain procedures to be followed by agencies and ministers in
Information Commissioner reviews.
Kind regards
[2][IMG] Rachel McCormack
A/g Assistant Director | Early
Resolution
FOI Case Management Branch
Office of the Australian Information
Commissioner
GPO Box 5218 Sydney NSW 2001 |
[3]oaic.gov.au
1300 363 992 |
[4][email address]
[5][IMG] | [6][IMG] | [7][IMG] | [8]Subscribe to OAICnet
newsletter
The OAIC has revised its IC review procedure directions from 1 July 2024.
For more information, including new resources to assist applicants and
respondents, see our webpage: [9]Information Commissioner reviews.
The OAIC acknowledges Traditional Custodians of Country across Australia
and their continuing connection to land, waters and communities. We pay
our respect to First Nations people, cultures and Elders past and present.
[10]Subscribe to Information Matters
From: foi <[email address]>
Sent: Tuesday, 15 April 2025 4:52 PM
To: [FOI #12747 email]
Cc: foi <[email address]>; OAIC - FOI DR <[email address]>
Subject: RE: OAIC –MR25/00136 - Notice of Information Commissioner review
– Agency reference FOI 24/25-0592 [SEC=OFFICIAL]
CAUTION: This email originated from outside of the organisation. Do not click
links or open attachments unless you recognise the sender and know the content
is safe.
Dear David Wright,
I am writing to provide you with an update on your matter MR25/00136 that
is currently under Information Commissioner review.
The NDIA has considered the decision under review and has determined that
it would be appropriate to make a new decision under s 55G of the Freedom
of Information Act 1982.
To allow the NDIA to make the new decision, I have requested an extension
of time from the Office of the Australian Information Commissioner (OAIC)
until 22 May 2025.
I have included the correspondence sent to the OAIC below. Please note I
have removed staff last names and email addresses for privacy reasons.
Yours sincerely
Karla
Karla
Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
Email: [11][email address]
[12]NDIA logo
[13]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
From: foi <[14][email address]>
Sent: Tuesday, 15 April 2025 3:56 PM
To: OAIC - FOI DR <[15][email address]>
Cc: foi <[16][email address]>
Subject: RE: OAIC –MR25/00136 - Notice of Information Commissioner review
– Agency reference FOI 24/25-0592 [SEC=OFFICIAL]
Dear Rachel,
MR25/00136 – Application for an Extension of Time
We refer to the Notice of IC review and request for documents of 6
February 2025 (Notice), requiring the NDIA to complete the engagement with
the applicant and share its submissions with the OAIC and the applicant
and to provide the relevant documents to OAIC by 20 March 2025.
The NDIA acknowledges that it has not been able to meet the above
timeframe and apologises to OAIC and to the applicant. The NDIA confirms
it has given further consideration to the decision under review and has
determined that it would be appropriate to make a new decision under s 55G
of the Freedom of Information Act 1982.
To allow the NDIA to make the new decision, the NDIA respectfully requests
that the compliance date in the Notice be amended to Thursday 22 May 2025.
Yours sincerely
Karla
Karla
Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
Email: [17][email address]
[18]NDIA logo
[19]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
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References
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Dear Rachel,
We are finalising our response to the section 54Z notice and confirm it
will be provided tomorrow. As such, we kindly request a 1-day extension to
close of business tomorrow, 9 May 2025.
We sincerely apologise for the delay.
Kind Regards
Liz
Senior Freedom of Information Officer
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
E: [1][email address]
[2]NDIA logo
[3]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia and their continuing connection to land, sea and community. We
pay our respects to them and their cultures and to Elders past, present
and emerging.
[4]Aboriginal and Torres Strait Islander flags graphic
From: OAIC - FOI DR <[email address]>
Sent: Wednesday, 23 April 2025 1:46 PM
To: foi <[email address]>; [FOI #12747 email]
Subject: RESPONSE DUE 8 MAY 2025: OAIC –MR25/00136 - Notice of Information
Commissioner review – Agency reference FOI 24/25-0592 [SEC=OFFICIAL]
OAIC reference: MR25/00136
Agency reference: FOI 24/25-0592
National Disability Insurance Agency
By email: [5][email address]
David Wright
By email: [6][FOI #12747 email]
Good afternoon, Karla
Given the Agency has not yet provided its response despite an extended due
date, we do not consider a further extension until 22 May 2025 to be
appropriate in the circumstances.
Action required by close of business 8 May 2025:
If the Agency is unable to finalise its revised decision under s 55G of
the FOI Act by close of business 8 May 2025, we require the Agency to
provide to the OAIC, the documents and information outlined in the notice
issued under s 54Z of the FOI Act on 6 February 2025.
Non-compliance may result in:
If we do not receive a response by close of business 8 May 2025, we will
proceed with the requirement for the production of documents under section
55R of the FOI Act. The s 55R Notice will be issued to the relevant SES
band 2 (or equivalent) within your Agency. Failure to comply with the
notice is an offence punishable by six months’ imprisonment (per section
55R(5)).
For further details, refer to paragraphs 2.10 and 3.18 of the [7]Direction
as to certain procedures to be followed by agencies and ministers in
Information Commissioner reviews.
Kind regards
[8][IMG] Rachel McCormack
A/g Assistant Director | Early
Resolution
FOI Case Management Branch
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW 2001 |
[9]oaic.gov.au
1300 363 992 |
[10][email address]
[11][IMG] | [12][IMG] | [13][IMG] | [14]Subscribe to OAICnet
newsletter
The OAIC has revised its IC review procedure directions from 1 July 2024.
For more information, including new resources to assist applicants and
respondents, see our webpage: [15]Information Commissioner reviews.
The OAIC acknowledges Traditional Custodians of Country across Australia
and their continuing connection to land, waters and communities. We pay
our respect to First Nations people, cultures and Elders past and present.
[16]Subscribe to Information Matters
From: foi
Sent: Tuesday, 15 April 2025 4:52 PM
To: [17][FOI #12747 email]
Cc: foi ; OAIC - FOI DR
Subject: RE: OAIC –MR25/00136 - Notice of Information Commissioner review
– Agency reference FOI 24/25-0592 [SEC=OFFICIAL]
CAUTION: This email originated from outside of the organisation. Do not click
links or open attachments unless you recognise the sender and know the content
is safe.
Dear David Wright,
I am writing to provide you with an update on your matter MR25/00136 that
is currently under Information Commissioner review.
The NDIA has considered the decision under review and has determined that
it would be appropriate to make a new decision under s 55G of the Freedom
of Information Act 1982.
To allow the NDIA to make the new decision, I have requested an extension
of time from the Office of the Australian Information Commissioner (OAIC)
until 22 May 2025.
I have included the correspondence sent to the OAIC below. Please note I
have removed staff last names and email addresses for privacy reasons.
Yours sincerely
Karla
Karla
Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
Email: [18][email address]
[19]NDIA logo
[20]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
From: foi <[21][email address]>
Sent: Tuesday, 15 April 2025 3:56 PM
To: OAIC - FOI DR <[22][email address]>
Cc: foi <[23][email address]>
Subject: RE: OAIC –MR25/00136 - Notice of Information Commissioner review
– Agency reference FOI 24/25-0592 [SEC=OFFICIAL]
Dear Rachel,
MR25/00136 – Application for an Extension of Time
We refer to the Notice of IC review and request for documents of 6
February 2025 (Notice), requiring the NDIA to complete the engagement with
the applicant and share its submissions with the OAIC and the applicant
and to provide the relevant documents to OAIC by 20 March 2025.
The NDIA acknowledges that it has not been able to meet the above
timeframe and apologises to OAIC and to the applicant. The NDIA confirms
it has given further consideration to the decision under review and has
determined that it would be appropriate to make a new decision under s 55G
of the Freedom of Information Act 1982.
To allow the NDIA to make the new decision, the NDIA respectfully requests
that the compliance date in the Notice be amended to Thursday 22 May 2025.
Yours sincerely
Karla
Karla
Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
Email: [24][email address]
[25]NDIA logo
[26]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
**********************************************************************
IMPORTANT: This e-mail is for the use of the intended recipient only and
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Dear OAIC
What is happening with my request? The agency has requested an extension of time that has now expired.
Yours sincerely,
David Wright
Thank you for your email to the National Disability Insurance Agency
(NDIA) Freedom of Information (FOI) team.
Please note: due to a high volume of requests, our ability to respond to
you in a timely manner may be affected. We will action your request as
soon as possible and will endeavour to process your matter within the
legislative deadlines. We may need to seek your agreement to an extension
of time. We appreciate your understanding if this is required.
Participant Information
Did you know the NDIA has other ways to access the documents and
information that we hold?
Participants, Guardians and Nominees can obtain copies of some participant
information through our National Contact Centre (NCC). For more
information about what’s available through the NCC, please contact 1800
800 110.
Please visit our [1]Access to Information webpage to find out more about
accessing information through:
* The [2]Participant Information Access (PIA) scheme
* The [3]Information Publication Scheme (IPS)
* The [4]myplace portal for participants
* The [5]myplace portal for providers
Access to Data
You can also request data and statistics. Please visit our [6]Data and
insights webpage page for further information.
If you are able to obtain your information from a source listed above, you
can withdraw your FOI request by emailing [7][email address]
Further Information
Information about how to make an FOI request can be found on our website:
[8]Freedom of Information
Should you have a query unrelated to FOI, please contact the Agency by
email at [9][email address] or via webchat at [10]ndis.gov.au.
Alternatively, you can also contact us by phoning 1800 800 110.
Kind regards
Freedom of Information Team
Complaints Management & FOI Branch
General Counsel Division
National Disability Insurance Agency
E [11][email address]
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia and their continuing connection to land, sea and community. We
pay our respects to them and their cultures and to Elders past, present
and emerging.
References
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6. https://data.ndis.gov.au/
7. mailto:[email address]
8. https://www.ndis.gov.au/about-us/policie...
9. mailto:[email address]
10. https://www.ndis.gov.au/
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Dear David Wright
OAIC reference: MR25/00136; Agency reference: FOI 24/25-0592
We act for the National Disability Insurance Agency (NDIA) in relation to
IC review matter MR25/00136 regarding your attached request made under the
Freedom of Information Act 1982 (FOI Act). Please direct all
correspondence to the NDIA in relation to this review to us at
[1][email address].
The NDIA confirms that it is currently in the process of preparing a
decision under s 55G of the FOI Act, which the NDIA anticipates will
result in the disclosure of parts of the documents within scope to you. We
confirm we have notified OAIC of this, and that the NDIA is committed to
provide this decision to you and to OAIC as promptly as possible.
Please find attached the Agency's preliminary submissions in respect of
the application of ss 47E(d) and 47F to parts of the documents. We have
provided these preliminary submissions to OAIC.
Yours sincerely
Tal Aviram
Senior Associate
Clayton Utz
Level 10, NewActon Nishi, 2 Phillip Law Street, Canberra ACT 2601
Australia | +612 6279 4031 | +61 434 651 070 | [2][email address] |
[3]claytonutz.com
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Dear OAIC
I respond to the NDIA's 'Preliminary submission by the NDIA in support of exemptions.'
Paragraphs 8-14 of the submission present arguments that text in the requested documents are conditionally exempt under s 47E(d). The submission essentially relies on the entirely speculative claim that providers will 'manipulate' and 'tailor' evidence based on the information contained in the documents, in order to secure funded supports for their clients.
This submission fails to address the following points I made in my original request, which I repeat below:
1. The Agency's position presupposes a level of dishonesty by providers, implying they will intentionally provide false or fraudulent information to the NDIA (and also potentially the Administrative Review Tribunal). This would not only be illegal, but also contrary to these providers' professional codes of conduct/ethics. There is no valid basis for such an assumption that many (if any) providers would do this.
2. There already exists a large body of information in the public realm, which is accessible to providers, explaining threshold criteria to meet reasonable and necessary supports, including guidelines and other materials published by the NDIA on its website (e.g. https://ourguidelines.ndis.gov.au/how-nd...). There also exist a multitude of Administrative Appeal Tribunal/Administrative Review Tribunal published decisions providing judicial guidance on these threshold criteria. There is no evidence that providers presently 'manipulate' this information so as to result in a distortion of funding levels, which substantially and adversely affects the integrity of the NDIS and its financial sustainability. If the Agency was really concerned about providers manipulating this information, it would remove this guidance material from its website. But it has not done so.
To elaborate on these points, the Agency presents no evidence in its preliminary submission that many (if any) providers who already submit information to it on a regular basis are prepared to, or presently do, 'manipulate' or 'tailor' this evidence in a dishonest or fraudulent way to satisfy the guidelines already published on the NDIS website, or the criteria explained in publicly available Tribunal decisions, both of which go directly to NDIS funding decisions. The Agency fails to recognise this point in its preliminary submission, or explain how the release of the requested documents will somehow increase this so-called 'risk'.
Further, paragraph 10(d)(vi) of the preliminary submission presents as a further reason against disclosure 'the increase in fraud by NDIS participants and providers, which is unfortunately a prevalent and well-known issue that the Agency is actively addressing.' This is a misleading submission. The 'prevalent' and 'well known' fraud is by a TINY MINORITY of NDIS participants and providers. As reported in the media, this activity has focussed entirely on either the providers defrauding participants, or participants using their NDIS funding on goods and services that are not included in their NDIS plans. There have been no documented cases of providers producing fraudulent evidence or recommendations in planning documents in order to secure funding for their clients, or of participants producing fraudulent evidence in order to secure this funding. Unless the Agency can verify the existence of this type of fraud, the OAIC should place no weight on its submission.
The preliminary submission also states at paragraphs 13-14 that preventing this speculated 'manipulation' of the scheme by providers is necessary to maintain its 'sustainability', and that disclosure would result in 'extensive and substantial damage' to the Agency's operations. Again, this is totally unsubstantiated. The NDIS is a $44 billion scheme that services approximaely 700,000 participants. In order for the release of the information in this very limited number of documents to create 'extensive and substantial damage' to such a massive scheme, to the extent that its sustainability is compromised, many thousands of providers would need to manipulate their evidence upon viewing the documents. This is simply not plausible, particularly given the very limited and specific nature of the case studies contained in the documents, which should only be applicable to a very small minority of participants.
By way example, one of the documents presents the case study of an 'Assistance Animal for a child with Autism and Epilepsy.' The percentage of the 700,000 NDIS participants who are children with both autism and epilepsy, and who are also seeking funding for an assistance animal, would be extremely small. Of this extremely small cohort, a very large percentage of their providers would need to produce fraudulent evidence and recommendations (in violation of their legal and professional obligations) in order to have even a tiny impact on the Agency's operations and financial sustainability. This scenario cannot be considered even remotely likely to occur.
The preliminary submission also states as a reason against disclosure that 'Documents 1-7 contain personal information of participants and their family members, including their names, ages, details relating to their disability and supports they are receiving or seeking, details relating to their NDIS plans, and other identifying information.'
This needs to be read in context of paragraph 9 of the preliminary submission, which states 'The de-identified digests have been prepared as examples, derived from a specific participant's (de-identified) individual circumstances and their individual support needs, for the use of the Agency's Technical Advisors for the purpose of assisting them to make relevant assessments of claims as against the statutory criteria in order to provide correct internal advice in respect of those claims.'
As the documents have already been de-identified by the Agency in order to protect the privacy of the individuals, there should be no risk that the disclosure of the information through release under FOI would violate their privacy. It follows that there is no need to redact this information.
The preliminary submission asserts at paragraph 17 that 'In considering the public interest, the Agency contends that no public interest factors weigh in favour of disclosure of the personal information of participants and their family members in circumstances where, as noted above, the FOI request was for de-identified articles and the Agency submits that no public purpose would be achieved through release of the personal information.'
There is a clear public interest purpose in disclosing this information - that of transparency in Government. If all (de-identified) personal information was to be redacted from the documents, as the Agency appears to argue should occur, it would render them unintelligible. This is not in the public interest.
Yours sincerely,
David Wright
Dear David,
Please find attached correspondence and documents in relation to your FOI
request (Our Ref: FOI 24/25-0592). I sincerely apologise for the delay in
getting these to you. If you require these in a different format, please
let us know.
As you have applied to the Office of the Australian Information
Commissioner (OAIC) for a review, we have copied in OAIC to this
correspondence.
Please contact us at [1][email address] if you have any questions or
require help.
Thank you
Karla
Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
National Disability Insurance Agency
E: [2][email address]
[3]NDIA logo
[4]LGBTIQA+ rainbow graphic
The NDIA acknowledges the Traditional Custodians of Country throughout
Australia
and their continuing connection to land, sea and community. We pay our
respects to
them and their cultures and to Elders past, present and emerging.
References
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4. https://intranet.ndiastaff.ndia.gov.au/h...
Our reference: MR25/00136
Agency reference: FOI 24/25-0592
Applicant: David Wright
Respondent: National Disability Insurance Agency
By email: [1][FOI #12747 email]
David Wright’s Information Commissioner review application
Good afternoon David,
On 13 October 2024, you made a Freedom of Information request to the
respondent referenced at the top of this email.
On 18 January 2025, you applied for Information Commissioner review (IC
review). This was because you indicated you were unhappy with the FOI
decision.
On 26 August 2025, the Agency notified the Office of the Australian
Information Commissioner (OAIC) that it has now provided you with a
decision
The Agency notified the OAIC that the decision was provided to the email
address [2][FOI #12747 email] on 26 August
2025.
As you have now received a decision, the reason for your IC review
application appears to be resolved.
Action required by you before 18 September 2025:
o If you no longer require an IC review, please reply to this email
stating ‘I no longer require an IC review’.
o If you wish to proceed with your IC review application, you must tell
us which parts of the decision you disagree with and why.
Specifically:
o what documents you think are missing that relate to your request
o which exemptions/redactions you disagree with
Participation in IC review process:
You are required to comply with the [3]Direction as to certain procedures
to be followed by applicants in Information Commissioner reviews. If an
applicant fails to comply with a direction of the Information
Commissioner, including the Direction as to certain procedures to be
followed by applicants in Information Commissioner reviews, the
Information Commissioner may in some cases decide not to undertake or
continue to undertake an IC review. The Direction specifically states:
o An applicant or nominated representative must advise the OAIC if there
are any changes to their contact details as soon as it is possible to
do so. The IC may decide not to undertake a review, or not continue to
undertake a review, if the applicant or their nominated representative
cannot be contacted after making reasonable attempts (s 54W(a)(iii))
[2.13]
o An application for IC review should also:
o identify the parts of the decision the applicant wants the
Information Commissioner to review
o state why the applicant disagrees with the agency’s or minister’s
decision
o identify which documents the applicant considers have been wrongly
refused or which exemptions have been incorrectly applied
o if the FOI request has been refused on the ground that it would
substantially or unreasonably divert an agency’s resources or
interfere with the performance of a minister’s functions (ss 24 and
24AA) – specify the reasons why the applicant believes the FOI
request would not have this impact [2.16]
o A revised decision does not automatically conclude the IC review, and
the revised decision becomes the decision under review (s 55G(2)(b)).
The OAIC will generally consult the IC review applicant as to whether
they want to continue the IC review on the basis of the revised
decision. Applicants who are not satisfied with the revised decision
must explain why they disagree with the revised decision and the basis
on which they wish to proceed with the IC review. If the applicant
does not respond to the OAIC’s correspondence, the Information
Commissioner may decide not to continue to undertake the IC review (s
54W of the FOI Act) [2.25]
o Applicants must respond to requests for information from the OAIC
within the time provided unless there are exceptional circumstances
warranting a longer period to respond. If more time is needed, a
request for an extension of time must be made to the OAIC at the
earliest opportunity within the period provided for response, and no
later than 2 days before that period is due to expire. Requests for
more time must explain the exceptional circumstances that necessitate
additional time and propose a new date for response. Approval of an
extension request is at the discretion of the OAIC [2.22]
o During an IC review, applicants will be given a reasonable opportunity
to present their case. This generally includes having the opportunity
to comment on relevant, adverse information provided to the OAIC by
other parties [2.26]
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review process, with respect and courtesy [2.23]
As such, if you do not provide the information we need for the IC review
application by 18 September 2025, we intend to close your IC review
application.
Assistance
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Kind regards,
[5][IMG] Melih Sayan
Assistant Review Advisor
Office of the Australian Information Commissioner
Sydney NSW | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [6][email address]
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Dear OAIC,
I wish to proceed with my IC review application, on the basis that I disagree with the agency’s stated exemptions under section 47E(d).
In Shafran; Secretary, Department of Veterans Affairs and [2024] AATA 115 at [36], the Tribunal summarised the authorities relevant to the words “would or could reasonably be expected to” in s 47E(d) as follows: “The decision-maker ought to have “...real and substantial grounds for thinking that the production of the document could ...[have the requisite outcome].”
The agency states that public disclosure of the materials would ‘likely’ result in providers dishonestly or fraudulently manipulating their reports and recommendations, and that NDIS participants ‘may’ tailor the information that they give to those practitioners. It says that such ‘tailoring’ of information or submissions (whether knowingly or unknowingly), will in turn result in findings that requested supports are reasonable and necessary in circumstances where they would otherwise not be approved.
This is baseless speculation, and does not meet the standard set out in Shafran that the is risk must ‘real’ or ‘substantial’. The Agency's position presupposes a level of dishonesty by providers, implying they will intentionally provide false or fraudulent information to the NDIA (and also potentially the Administrative Review Tribunal, for matters that proceed to external review). This would not only be illegal, but also contrary to these providers' professional codes of conduct/ethics. There is no valid basis for such an assumption that many (if any) providers would do this. The statement that some participants ‘may’ tailor the information they give to practitioners also does not meet the standard required by Sharfran that they ‘would or could reasonably be expected to’ do this.
There already exists a large body of information in the public realm, which is accessible to providers and participants, explaining threshold criteria to meet reasonable and necessary supports, including guidelines and other materials published by the NDIA on its website (e.g. https://ourguidelines.ndis.gov.au/how-nd...). There also exist a multitude of Administrative Appeal Tribunal/Administrative Review Tribunal published decisions providing judicial guidance on these threshold criteria. The agency presents no evidence that many (if any) providers or participants, who already submit information to it on a regular basis are prepared to, or presently do, 'manipulate' this information in a dishonest or fraudulent way to satisfy the guidelines already published on the NDIS website, or the criteria explained in publicly available Tribunal decisions, both of which go directly to NDIS funding decisions. If the Agency was really concerned about providers manipulating this information, it would remove this guidance material from its website. But it has not done so.
Further, the agency states as ‘likely’ that ‘the NDIS provider market being impacted because participants may be more likely to engage providers and practitioners that report in a manner that is aligned with the examples and circumstances described in the digests, as opposed to providing objective reporting on a participant's condition and circumstances’. This is totally implausible, as it presupposes that thousands of participants would ‘screen’ providers on the basis that they might provide fraudulent or manipulated recommendations in response to the information contained in these documents. Even if some providers were inclined to do this (for which there is no basis, as explained above), it is implausible to suggest that they would then admit this to prospective clients during such a ‘screening’ process.
The agency also states that it is ‘likely’ that that disclosure would result in an ‘increase in fraud by NDIS participants and providers, which is unfortunately a prevalent and well-known issue that the Agency is actively addressing’. Again, this is baseless, and also very misleading. The 'prevalent' and 'well known' fraud is by a TINY MINORITY of NDIS participants and providers. As reported in the media, this activity has focussed entirely on either the providers defrauding participants, or participants using their NDIS funding on goods and services that are not included in their NDIS plans. There have been no documented cases of providers producing fraudulent evidence or recommendations in planning documents in order to secure funding for their clients, or of participants producing fraudulent evidence in order to secure this funding. As the Agency has not provided any evidence verifying the existence of this type of fraud, the OAIC should place no weight on its submission.
The agency also argues that the exemption is necessary because of ‘the public interest in maintaining the sustainability and integrity of the National Disability Insurance Scheme as a whole’. Again, this is totally unsubstantiated. The NDIS is a $44 billion scheme that services approximately 700,000 participants. In order for the release of the information in this very limited number of documents to create financial substantial damage to such a massive scheme, to the extent that its sustainability is compromised, many thousands of providers would need to manipulate their evidence upon viewing the documents. This is simply not plausible, particularly given the very limited and specific nature of the case studies contained in the documents, which should only be applicable to an extremely small minority of participants.
By way example, one of the documents presents the case study of an 'Assistance Animal for a child with Autism and Epilepsy.' The percentage of the 700,000 NDIS participants who are children with both autism and epilepsy, and who are also seeking funding for an assistance animal, would be extremely small. Of this extremely small cohort, a very large percentage of their providers would need to produce fraudulent evidence and recommendations (in violation of their legal and professional obligations) in order to have even a tiny impact on the Agency's operations and financial sustainability. This scenario cannot be considered even remotely likely to occur.
Accordingly, the asserted risk to the sustainability and integrity of the scheme does not meet the threshold of "substantial adverse effect", explained in Sharfran at [38] as follows: “As for the “substantial adverse effect” words, they are said in the FOI Guidelines to encompass an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person’”
I also ask that OAIC review the stated exemptions under s 47F - personal information of participants and their family members.
The agency states that the personal information should not be provided, but simultaneously acknowledges that:
- the personal information in the digests is not well known;
- the participants and their family members are not generally known to be associated with the matters dealt with in the documents;
- the information is not available from publicly accessible sources;
- the de-identified digests have been prepared as examples, derived from a specific participant's (de-identified) individual circumstances and their individual support needs.
As the documents have already been de-identified by the Agency in order to protect the privacy of the individuals, and any attempts to cross-reference this information to information in the public sphere to match it to identified individuals would be fruitless, there should be no risk that the disclosure of the information through release under FOI would violate their privacy. It follows that there is no need to redact this information.
The agency asserts that ‘there are no public interest factors that weigh in favour of disclosure of the information.' There is a clear public interest purpose in disclosing this information - that of transparency in Government. The current level of redaction in the documents render them unintelligible. This is not in the public interest.
Accordingly I ask the OAIC to review the level and extent of information that has been redacted from the documents under this exemption.
Yours sincerely,
David Wright
Emily Lacey left an annotation ()
A week after the NDIA said "it will be provided tomorrow"... no documents. Classic.