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][NDIA request email]

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][NDIA request email]  

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. 

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References

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7. mailto:[NDIA request email]
mailto:[NDIA request email]
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9. mailto:[email address]
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11. mailto:[NDIA request email]

Dear Scott Dwyer
 
Thank you for your email below requesting access to documents held by the
National Disability Insurance Agency.
 
Your request has been registered as FOI 23/24-1055.
 
You made your request on 25 March 2024 meaning that we are required by the
Freedom of Information Act 1982 to provide you with a decision on your
request by 26 April 2024.
 
I am writing to you to ask that you consider agreeing to extend the time
for processing your request. We have been experiencing a backlog of FOI
requests and, although you made your request some weeks ago, it has only
been allocated to my team today.  I therefore seek your agreement to
extend the time for providing a decision until 20 May 2024.
 
If you agree to this extension, we will begin processing your request by
communicating with you about its scope, searching and retrieving documents
falling within the scope of your request, assessing the documents and
consulting with relevant line areas within the NDIA.
 
Your agreement will be notified to the Office of the Australian
Information Commissioner and will have the effect of preserving your right
to seek an internal review of the decision should you be dissatisfied with
it.
 
I look forward to hearing from you.
 
Regards
 
Helen (HIL533)
Assistant Director – Freedom of Information
Complaints Management & FOI Branch
General Counsel Division
National Disability Insurance Agency
 
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.
 

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Dear Scott Dwyer
 
Thank you for your email below, agreeing to extend the time for processing
this request.
 
I am writing to you about the scope of your request.
 
You have requested access to:
 
"... all documents which are related to the costs charged to the National
Disability Insurance Scheme and or any other Government Department
(including costs borne by the department in relation to the Commonwealth,
defending the matter 2022/3429 Dwyer vs National Disability Insurance
Agency in the Administrative Appeals Tribunal (AAT), as well as in house.
 
This includes any documents:
a.      Hours worked and have not been charged to another government
department.
b.      All invoices issued by External Law Contractors.
c.      Any other document which falls within the scope of this request
that the department holds.
 
This is from period April 2022 - current."
 
It would be helpful to clarify your intention and refine the scope to
documents that are likely to be of interest to you.  To assist with this, 
I advise the following:
 
 

* The NDIA is unlikely to hold information that is also held by another
Government department. The right of access is to documents of an
agency (in this case, the NDIA). “Documents of an agency” is defined
by the FOI Act to means documents in possession of the agency. There
is no requirement under the FOI Act for the NDIA to request documents
from another Government agency for the purposes of an FOI application.
Therefore, if you consider that other Government agencies hold
documents relating to the litigation in the AAT, I suggest that you
lodge separate FOI applications to those agencies.

* With respect to the first part of your request:

* can you please confirm that you are seeking details of the costs
charged to the NDIA by lawyers the NDIA instructed to represent it in
the AAT litigation?
* please note that in-house lawyers employed by the NDIA would not have
charged the NDIA for any work they performed for the purposes of the
AAT litigation. They are salaried employees who receive the same
annual salary regardless of the work they perform during the year.

* With respect to Part (a) of your request, can you please confirm that
you are seeking details of the hours worked by both lawyers who
represented the NDIA in the AAT litigation as well as the hours worked
by in-house lawyers in connection with that litigation?

* With respect to Part (b) of your request, invoices issued to the NDIA
by lawyers representing the NDIA in the litigation are likely to
contain business information of those law firms. Before I can release
that information, the FOI Act requires me to consult with those firms
to find out if they wish to contend that the information is exempt
under section 47G of the FOI Act. If you were to refine the scope of
your request to the total amount spent by the NDIA in engaging
external lawyers to represent the NDIA in the litigation, there would
be less likelihood of objections from the firms.

* Those invoices are also likely to contain personal information of the
law firms’ employees. Again, before I release such information, I am
required to consult with those individuals to find out if they wish to
contend that the information is exempt under section 47F of the FOI
Act. If you were to refine the scope of your request to exclude the
names, contact details and any other personal information of
individuals that might appear in the invoices, there would be less
likelihood of any objections from those individuals.

* With respect to Part (c) of your request, the words “Any other
document which falls within the scope of this request that the
department holds” is non-specific and cannot be processed in its
current form. Without further parameters regarding the documents you
seek access to, I cannot undertake reasonable searches for them. Very
broad requests such as the one in Part (c) can give rise to a decision
to refuse access on the basis that processing the same would involve
an unreasonable diversion of the agency’s resources.

 
In view of the above points, I would suggest you revise the scope of your
request to:
 
“All documents which are related to the costs charged to the National
Disability Insurance Agency in relation to the Commonwealth defending the
matter 2022/3429 Dwyer vs National Disability Insurance Agency in the
Administrative Appeals Tribunal (AAT).
 
This includes any documents relating to:
 

 1. The hours worked by both in-house NDIA lawyers and external lawyers in
connection with this litigation; and
 2. All invoices issued to the NDIA by external lawyers in connection with
this litigation. (I only require the total dollar amount of such
invoices and I do not require the personal information of any person
who may be named in such invoices.)

 
This is from 1 April 2022 to 25 March 2024 (date of request).”
 
Could you please review this suggested scope and advise if you agree with
it?
 
Please note this is a genuine attempt to manage this matter and provide
you with a decision on access and releasable documents in a timely manner.
I am happy to speak with you should you wish to discuss this further and
happy for you to provide some available times that suit you and the best
number to contact you on if you wish to proceed down this route.
 
Can I ask that you respond at your earliest convenience and, in any event,
by COB 7 May 2024?
 
Regards
 
Helen (HIL533)
Assistant Director – Freedom of Information
Complaints Management & FOI Branch
General Counsel Division
National Disability Insurance Agency
 
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.
 
 

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