29 October 2024
Ref: LEX 3696
Mr Mark Pietsch
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Pietsch,
Freedom of Information Request No. (45) 24/25-2
Notice of Decision on Access under the Freedom of Information Act 1982 (Cth)
I refer to your request dated 2 October 2024 which sought access to documents held by the NDIS
Quality and Safeguard Commission (the Commission), under the
Freedom of Information Act 1982
(Cth) (FOI Act).
Specifically, your request sought access to:
“Data from both the National Disability Insurance Agency (NDIA) and the NDIS Quality and
Safeguards Commission regarding participant critical incidents, reportable incidents, and
deaths. Specifically, I am interested in incidents from June 1, 2022, to the present, where
investigations have indicated that lack of action, duty of care failures, errors, or delays
associated with the NDIA, the Commission, as wel as unmet needs associated with
mainstream state-funded services, may have contributed to these incidents.
Please provide the following:
Total numbers of participant critical incidents (PCIs), reportable incidents, and deaths:
- Include cases where investigations have noted that actions, inactions, duty of care failures,
as wel as errors or delays by the NDIA or the Commission, were contributing factors.
-Data should also indicate where instances where unmet needs associated with mainstream
state-funded services were identified as a contributing factor.
Please break down this data monthly.
Total numbers of participants who were waiting on:
-Equipment or Assistive Technology (AT) approval, -Section 48 reviews, -New plan approvals,
-Indicate how many of these participants died or suffered an injury while waiting, with data
also provided on a monthly basis, and the number of days waiting.”
In regard to the last scope point (marked in bold text), the NDIS Commission does not have access to
documents held by the NDIA, those parts of your request were transferred to the NDIA in accordance
with section 16 of the FOI Act. Any further communication in relation to documents held by the NDIA
will be sent to you from that agency directly.
Administration of your FOI request
On 4 October 2024, the NDIS Commission acknowledged your request by email.
I am an authorised decision maker for the purposes of section 23 of the FOI Act and this letter gives
notice of my decision.
Decision
I am refusing access to the requested documents as the NDIS Commission does not hold the data that
you seek, as described above, in a discrete form. I am satisfied that all reasonable steps have been
taken to locate the requested documents and that they do not exist.
The NDIS Commission cannot produce a document containing the requested information in a discrete
form by the use of a computer or other equipment that is ordinarily available to the agency for
retrieving or collating stored information. In reaching my decision, I have taken into consideration:
• the terms of your request on 2 October 2024;
• the relevant provisions of the FOI Act (specifically sections 17 and 24A)
• the types of information and documents that are in the NDIS Commission’s possession;
• the content of the document that fal within the scope of you request;
• the results of searches undertaken by relevant NDIS Commission staff; and
• Guidelines issued by the Office of the Australian Information Commissioner (OAIC) under s93A
of the FOI Act (
FOI Guidelines)
Reasons for decision
Section 24A – Requests may be refused if documents cannot be located, do not exist or have not
been received.
Under s 24A(1) of the FOI Act, an agency or minister may refuse a request if it has taken 'all
reasonable steps' to find the document requested, and is satisfied that the document cannot be
found or does not exist. I am satisfied that both elements for this apply to your request.
Searches of the records that NDIS Commission compiles for reporting have been undertaken. I have
conferred with staff with relevant responsibility for data governance and reporting to ascertain
whether any documents could be located in response to your request. There has not been any
previous requirement or need for the NDIS Commission to produce reports in the same terms as
your request.
I have also considered whether documents could be produced containing the information in a
discrete form by the use of a computer or other equipment for retrieving or col ating the requested
information. On the information before me, I am satisfied that documents could not be produced by
ordinary use of a computer and the obligation in section 17(1) of the FOI Act does not apply in this
instance (see discussion below). Accordingly, I am satisfied that no documents exist or can be
produced, and I refuse your request for access to the documents under s 24A of the FOI Act.
Section 17 - Requests involving use of computers etc.
Section 17 of the FOI Act relevantly provides the following:
(1) Where:
(a) a request (including a request in relation to which a practical refusal reason exists)
is made in accordance with the requirements of subsection 15(2) to an agency;
(b) it appears from the request that the desire of the applicant is for information that
is not available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the applicant wishes to be provided with
a computer tape or computer disk on which the information is recorded; and
(c) the agency could produce a written document containing the information in
discrete form by:
(i) the use of a computer or other equipment that is ordinarily available to the
agency for retrieving or col ating stored information; or
(ii) the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written
document so produced and containing that information and, for that purpose, this
Act applies as if the agency had such a document in its possession.
(2) An agency is not required to comply with subsection (1) if compliance would
substantially and unreasonably divert the resources of the agency from its other operations.
The right of access under the FOI Act is to existing documents, rather than to information. The FOI Act
does not require the NDIS Commission to create a new document in response to a request for access,
except in limited circumstances where the applicant seeks access in a different format or where the
information is stored in an agency computer system rather than in discrete form.
Section 17 of the FOI Act obliges the NDIS Commission to produce a written document of information
that is stored electronically and not in a discrete written form, if:
•The NDIS Commission can produce a written document containing the requested
information by using a 'computer or other equipment that is ordinarily available' to the NDIS
Commission for retrieving or collating stored information: s17(1)(c)(i); and
•Producing the written document would not substantial y and unreasonably divert the
resources of the agency from its other operations: s17(2) (see paragraph 3.212 of the FOI
Guidelines).
The FOI Guidelines at paragraphs [3.214] - [3.215] discuss the case of Col ection Point Pty Ltd v
Commissioner of Taxation [2013] FCAFC 67 (Collection Point). In Collection Point, the reference to a
'computer or other equipment that is ordinarily available' was held to mean 'a functioning computer
system including software, that can produce the requested document without the aid of additional
components which are not themselves ordinarily available .. [The] computer or other equipment. .
must be capable of functioning independently to col ate or retrieve stored information and to
produce the requested document.'
The Freedom of Information Commissioner has also considered the extent of the obligation in s
17(1) of the FOI Act in an analogous case, Ryan Turner and Department of Home Affairs (Freedom of
information} [2022] AICmr 63 (6 September 2022) in which the Commissioner accepted that:
•the production of a document containing the information sought by the applicant would, at
this time, require the Department to depart from its ordinary or usual conduct and
operations, and
•therefore, the document could not be produced by the use of a computer 'ordinarily
available' to the Department within the meaning of s 17(1)(c)(i) of the FOI Act.
I have consulted with the relevant business areas of the NDIS Commission, and I am satisfied that
producing a document from the Commission's statistical holdings which includes the information
you have requested would extend beyond its ordinary retrieval and reporting capability.
NDIS Commission publishes the reports on reportable incidents and deaths (a type of reportable
incidents) figures regularly via our external homepage:
Quarterly Performance Report (QPR). Please
be advised that the next quarterly report should be made available in November 2024.
The reportable incident categories on the QPR are classified as the following:
• Abuse of a PWD;
• Death of a PWD;
• Neglect of a PWD;
• Serious Injury of a PWD;
• Sexual Misconduct;
• Unauthorised Restrictive Practices;
• Unlawful physical contact; and
• Unlawful sexual contact
Other contributing factors including actions, inactions, duty of care failures, errors, delays and unmet
needs associated with mainstream state-funded services
For other contributing factors which are not covered in the QPR, significant resources and effort will
be required to produce such documents would involve several processes that are not ‘ordinarily
available’.
Data to be presented as a monthly basis
Figures in the QPR are reported in quarterly fashion. While the Commission can break the data down
in a monthly basis, quarterly figures generally provide a more accurate view to the business area as
incidents can develop and be logged across multiple months. As a result, the Department considers
quarterly data reporting is a more suitable approach to this type of departmental statistics. Similarly,
significant resources and effort will be required to produce such documents in the monthly basis
would involve several processes that are not ‘ordinarily available’.
Information relating to participant critical incidents (PCI)
PCI is NDIA owned data, and the agency reports related figures regularly in the
ir Quarterly Reports. If
you would like to seek data and information about PCI, please contact NDIA directly.
FOI Disclosure Log
As documents do not exist, I am not required to consider the requirement to publish details of
information released in this instance.
For further information about the Commission’s FOI disclosure log please refer to our website.
Your review rights
If you are dissatisfied with my decision, you may apply for internal review or Information
Commissioner review of the decision. We encourage you to seek internal review as a first step as it
may provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the FOI Act, you may apply in writing to NDIS Commission for an internal review
of my decision by another NDIS Commission officer. The internal review application must be made
within 30 days of the date of this letter. The request should be addressed to
xxx@xxxxxxxxxxxxxx.xxx.xx. Where possible please attach reasons why you believe review of the
decision is necessary.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to review
my decision. An application for review by the Information Commissioner must be made in writing
within 60 days of the date of this letter, and be lodged in one of the fol owing ways:
• online via th
e OAIC review smartform
• by email to
: xxxxx@xxxx.xxx.xx
• by post to: GPO Box 5288 Sydney NSW 2001
More information about
Information Commissioner review is available on the Office of the Australian
Information Commissioner website.
FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. We may be able to rectify the problem. If you are not satisfied with our response,
you can make a complaint to the Australian Information Commissioner. A complaint to the
Information Commissioner must be made in writing. Complaints can be lodged in one of the following
ways:
• online via the
OAIC Complaint smartform
• by email to:
xxxxx@xxxx.xxx.xx
• by post to: GPO Box 5288 Sydney 2001
More information about
FOI complaints is available on the Office of the Australian Information
Commissioner.
If you are not sure whether to lodge an Information Commissioner review or an Information
Commissioner complaint, the website of th
e Office of the Australian Information Commissioner has
more information.
Contact
If you wish to discuss this decision, please contact xxx@xxxxxxxxxxxxxx.xxx.xx
Yours sincerely,
Deepika
Position No: 50091780
Assistant Director – Freedom of Information
NDIS Quality and Safeguards Commission
