REF: LEX 3971
Nosey Rosey
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Nosey Rosey,
Freedom of Information Request No. (73) - 24/25 - (2)
Notice of Decision on Access under the Freedom of Information Act 1982 (Cth)
I refer to your email received by the NDIS Quality and Safeguards Commission (NDIS Commission) on 19
December 2024, in which you requested access to documents under the Freedom of Information Act 1982
(Cth) (FOI Act).
Specifical y, your request sought access to:
Any documents within your agency that concern the sharing of personal information
originating from the Department of Veterans’ Affairs (DVA)
Any material that your agency may hold, including any records of direct data transfers
from or to the DVA, memoranda of understanding involving DVA client information, or any
policies and procedures governing such exchanges.
Copies of any ethics committee approvals, privacy impact assessments, internal review
board decisions, or other documents that reflect deliberations or authorizations for
obtaining DVA client information. This includes records that show the agency considered
the ethical, legal, or privacy implications of receiving or using DVA client data.
Documents that outline the intended uses or practical applications of the DVA client data,
such as project proposals, business cases, internal strategy papers, or briefings that explain
why NDIS Commission sought access to this information, how it was intended to be
integrated into the agency’s operations, and any expected outcomes or benefits.
A representative sample (in a suitably de-identified or redacted form) of the data or data
fields received, so long as providing this sample does not breach any exemption under the
FOI Act.
The purpose is to understand the nature and granularity of the information shared, without
disclosing identifiable personal details
Administration of your request
On 14 December 2024, the NDIS Commission’s FOI team received your initial email requesting access to
information under the FOI Act.
On 16 December 2024, we responded to your email seeking clarification on your request. Specifical y, we
noted that you had not identified the name of the agency that could potential y hold the requested
information. We asked you to respond with an amended scope to identify the relevant agency so we could
consider your request accordingly.
On the same date, you clarified by email that you were “indeed making this request to the NDIS Quality and
Safeguards Commission”.
On 17 December 2024, we acknowledged your request by email. In the same email we sought your
confirmation on the fol owing points:
that we had understood the scope of your request correctly;
agreement to the extension of time and confirm whether you consent to be identified
as the FOI applicant for the purposes of any third-party consultation that may be
required; and
confirm that you do not seek the personal information of staff below SES level and
consent to the removal of duplicate documents and the provision of the final email in
any email chains.
To date, we have not received a response to the acknowledgement email sent on 17 December 2024.
As no extension of time is applied in this request, the decision in relation to your request was due on 13
January 2025. Your request has been deemed to be refused by the NDIS Commission under s 15AC of the FOI
Act. However, the NDIS Commission has continued to process your request. The NDIS Commission
apologises for the delay of processing this request. The NDIS Commission has now made a decision in
relation to your request.
I am an officer authorised under section 23 of the FOI Act to make decisions regarding access to documents
and this letter sets out my reasons for decision on access to documents in scope of your request.
Decision
The NDIS Commission has located two documents, compromising of 37 pages, that fal s within the scope of
your freedom of information (FOI) request. These documents were identified by searches undertaken in
NDIS Commission systems. The documents are set out in the schedule attached to this notice.
I have decided to refuse access in ful to both documents under sections 37(2), 47C and 47E of the FOI Act.
Additional y, access is refused to point 3, 4 and 5 of the scope of your request under section 24A of the FOI
Act on the basis that the NDIS Commission does not hold the document that you seek in a discrete form, and
that 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
col ating stored information.
The table at Attachment A summarises my decision as it applies to the documents covered by your request.
In reaching my decision I have relied on the fol owing material:
the terms of your FOI request;
the FOI Act (in particular, sections 24A, 37(2), 47C and 47E );
submissions made during a courtesy consultation process with relevant government agencies;
the results of searches undertaken by relevant NDIS Commission staff; and
the guidelines issued by the Australian Information Commissioner under section 93A 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 'al
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 apply to your request.
Point 3: Copies of any ethics committee approvals, privacy impact assessments, internal review board
decisions, or other documents that reflect deliberations or authorizations for obtaining DVA client
information. This includes records that show the agency considered the ethical, legal, or privacy implications
of receiving or using DVA client data do not exist. This is because NDIS Commission does not routinely share
information with or obtain data from DVA. When information from DVA is required, it is requested on an ad
hoc basis, similar to how we approach request for information with other external parties, including
government agencies. There are no formal arrangements in place other than the Memorandum of
Understanding (Document 1).
Point 4: Documents that outline the intended uses or practical applications of the DVA client data, such as
project proposals, business cases, internal strategy papers, or briefings that explain why NDIS Commission
sought access to this information, how it was intended to be integrated into the agency’s operations, and
any expected outcomes or benefits are also not held by the NDIS Commission. As we do not routinely obtain
or hold DVA client data, there are no records reflecting any intended uses.
Point 5: A representative sample (in a suitably de-identified or redacted form) of the data or data fields
received, so long as providing this sample does not breach any exemption under the FOI Act in your request
is unavailable. Since the NDIS Commission does not routinely obtain or hold DVA’s client data, there are no
records to provide sample as described.
In addition to the above, a search conducted by the NDIS Commission’s Data and Insight team confirmed
that there are no regular data transfers (incoming or outgoing) between NDIS Commission and DVA
operated by the Data and Insight team. This further supports the conclusion that documents corresponding
to points 3, 4 and 5 do not exist.
Based on the information before me, I am satisfied that documents in this subject area 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.
Accordingly, I am satisfied that al reasonable steps have been taken to locate the documents and
that the NDIS Commission does not hold the requested documents. As the documents do not exist,
access to those documents is refused.
Section 37- Documents affecting enforcement of law and protection of public safety
Document 1 contain information that I consider exempt under section 37(2)(b) of the FOI act.
Relevantly, section 37(2)(b) provides that:
(2) a document is an exempt document if its disclosure under this Act would, or could
reasonably be expected to:
(…)
(b) disclose lawful methods or procedures for preventing, detecting,
investigating, or dealing with matters arising out of, breaches or evasions of the
law the disclosure of which would, or would be reasonably likely to, prejudice
the effectiveness of those methods or procedures
In order to utilise the exemption, the NDIS Commission must demonstrate two factors (FOI Guidelines,
5.111). Firstly, there must be a ‘reasonable expectation’ that a document wil disclose a “method or
procedure”. Secondly, there must be a “reasonable expectation or a real risk of prejudice” that disclosing the
document would jeopardise the effectiveness of those methods.
The Guidelines provides an example of a situation where the exemption has been applied previously. In the
case of Re Murphy and Australian Electoral Commission, the AAT found the exemption applied in relation to
examples of acceptable reasons for refusing to vote, which were kept in the AEC’s internal manual.
Specifical y, the AAT found that the disclosure of these reasons would al ow people who failed to vote to
circumvent the relevant procedures, by tailoring their reasons to match the examples.
In relation to point 2 of your FOI request, we have identified Document 1, which is a Memorandum of
Understanding (MOU) between NDIS Commission and DVA. However, access to this document is refused in
ful under section 37(2)(b) of the FOI Act.
The purpose of the MOU is to formalise, a col aborative, productive and col igate working relationship
between the NDIS Commission, DVA and other government agencies, to effectively address the impact of
fraud on the NDIS and other government support programs and payments (including related risks to
participants, intended providers and other stakeholders) and to reduce the impact of fraud on the
sustainability of these programs through reduction of government outlays, particularly with respect to losses
from serious and organised crime.
The FOI Guidelines refer to a case where the AAT found that “authoritative knowledge of the particular law
enforcement method used” could assist applicants to evade them. The content of the MOU includes findings
and information from the NDIS Commission’s Fraud Fusion Taskforce team, detailing methods and processes
used to investigate and address fraudulent activity. In turn, this MOU could be relied on by NDIS providers to
evade the NDIS Commission’s regulatory and investigative processes.
This would have an adverse impact on the NDIS Commission’s ability to detect, prevent and treat fraud in
the NDIS and other government programs and payments.
With respect to the question of prejudice, releasing this document could prejudice the effectiveness of the
NDIS Commission’s enforcement functions and role in investigating fraud. In addition, disclosure could
prejudice the ability of the NDIS Commission to perform its role effectively, including gathering critical
information during investigations. This could also affect the wil ingness of other government agencies to
share information with the NDIS Commission, knowing that sensitive information might be disclosed.
The effectiveness of the NDIS Commission in conducting investigation with other government support
programs would be undermined, reducing the department’s ability to protect clients and programs from
fraud if the NDIS Commission were forced to disclose the methods and procedures relied upon. I am satisfied
that the disclosure of Document 1, would prejudice the lawful methods and procedures used by the NDIS
Commission. Therefore, access to this document is refused under section 37(2)(b) of the FOI Act.
Section 47E(d) – Documents affecting certain operations of agencies
Section 47E conditional y exempts document where disclosure would, or could reasonably be expected to,
prejudice or have a substantial adverse effect on certain identified agency operations. In order to apply the
exemption at s47E(d), I must be satisfied that disclosure of the documents would have a “substantial adverse
effect” on the efficiency of the operations of the NDIS Commission.
Document 1, MOU outlines administrative arrangements between the NDIS Commission and DVA, including
processes for col aboration, data sharing and investigative efforts.
Releasing this document would provide insight into sensitive administrative practices, including the internal
frameworks for managing and addressing fraud. Such disclosure could lead to:
- a reduction in wil ingness of DVA or other government agencies to engage in open and col aborative
arrangements with the NDIS Commission;
- a negative impact on the ability of the NDIS Commission to maintain the confidentiality of
operational arrangements; and
- revealing administrative details could provide NDIS providers with information to exploit the systems
designed to detect and prevent fraud.
-
Given that MOU is an administrative agreement, disclosure would set a precedent for revealing inter-agency
agreements, potential y affecting the efficient functioning of other administrative col aborations.
Considering the above, I am satisfied that releasing this document would prejudice the effectiveness of NDIS
Commission investigative methods under section 37(2)(b) and adversely affect the agency operations under
section 47E(d). For these reasons access to Document 1 is refused in ful .
Section 47C –Documents subject to deliberative processes
Section 47C(1) of the FOI Act states:
(1) A document is conditional y exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes, of the deliberative process involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Section 47C exempts documents that contain deliberative matters, which includes opinions, advice or
recommendations prepared for the deliberative processes involved in the functions of an agency.
Document 2 includes the draft Care Economy Regulatory Alignment (CERA) Cross Agency Working Group
Information Sharing Framework.
Deliberative matter
Paragraph 6.59 of the FOI Guidelines states that ‘deliberative matter’ is a shorthand term for ‘opinion, advice
and recommendation’ and ‘consultation and deliberation’ that is recorded or reflected in a document. There
is no reason general y to limit the ordinary meanings given to the words ‘opinion, advice or
recommendation, consultation or deliberation’.
As noted above, the document is a draft document that was intended to be a framework for information
sharing, a function that was intended to be exercised by government agencies. Currently, this draft
framework has not been endorsed and no information has been shared under its provisions.
As such, the department contends that the document contains material that meets the criteria of
deliberative matter, and that this material forms part of a deliberative process. The document can be
characterised as the thinking process of the department or the process of reflection upon the wisdom and
expediency of a particular proposal.
Applicant of the public interest test – sections 47C and 47E
Section 11A(5) of the FOI Act provides:
The agency or Minister must give the person access to the document if it is conditional y
exempt at a particular time unless (in the circumstances) access to the document at that time
would, on balance, be contrary to the public interest.
In applying the public interest test, I am required to have regard to the FOI Guidelines and the fol owing
factors for release listed in section 11B(3) of the FOI Act. Those public interest factors are that release would:
(a) promote the objects of the Act
(b) inform debate on a matter of public importance
(c) promote effective oversight of public expenditure
(d) al ow personal to access his or her personal information (s 11B(3))
The objects of the FOI Act include providing for a right of access to information in the possession of
Commonwealth government agencies and promoting accountability and transparency in government
decision making. In this case, the release of the documents supports the objects of the FOI Act by making
available information which concerns government agency decision making.
Given the nature of the documents, I do consider that access of these documents would overal inform
debate on a matter of public importance and promote effect effective oversight of public expenditure.
However, I also note that for factor 4, as the entire document bundle do not contain your personal
information, therefore there is no consideration under this factor to release such information to you.
The Australian Information Commissioner’s FOI Guidelines also set out a non-exhaustive list of factors
weighing against disclosure. These factors relate to harm that may result from the disclosure of the
documents in certain circumstances. In reaching my decision, I consider that the factors weighing against
disclosure are that disclosure could be reasonably expected to:
(a) Disclosure of the document that is conditional y exempt under section 47E(d) of the FOI Act could
reasonably be expected to inhibit frankness and candour in the making of communications, within
the NDIS Commission internal y and between NDIS Commission and DVA.
(b) Disclosure of the document that is conditional y exempt under section 47E(d) of the FOI Act would
have a substantial adverse effect on the ability of the relevant operational areas within the NDIS
Commission and DVA to conduct their business as usual.
(c) Disclosure of conditional y exempt information under section 47C of the FOI Act could reasonably be
expected to prejudice the deliberative processes of forming opinion, advice and/or
recommendations by creating an environment in which there is a chil ing effect on the open
consideration of al options available to the department. Any impediment to the deliberative process
could adversely impact the effectiveness of the department’s decision-making, which is against the
public interest.
(d) Disclosure of conditional y exempt information under section 47C of the FOI Act could also
reasonably be expected to establish a precedent of release of deliberative material, which could
hinder the flow of suggestions, preliminary opinions, device and/or recommendations within the
department. Any impediment to the deliberative process could reasonably be expected to adversely
impact the department’s ability to innovate, iterate and improve its policy and procedures, which is
against the public interest.
Based on these factors, I have decided that the public interest is weighted more heavily against
disclosure and that giving access to the conditional y exempt material would, on balance, be contrary
to the public interest.
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:
https://www.ndiscommission.gov.au/about/freedom-information/foi-disclosure-log
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: Using the OAIC smartform
Email: xxxxx@xxxx.xxx.xx
Post: GPO Box 5288 Sydney NSW 2001
More information about Information Commissioner review is available on the website of the Office of the
Australian Information Commissioner.
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 fol owing ways:
Online: Using the OAIC smartform
Email: xxxxx@xxxx.xxx.xx
Post: GPO Box 5288 Sydney 2001
More information about complaints is available on the Office of the Australian Information
Commissioner website.
If you are not sure whether to lodge an Information Commissioner review or an Information
Commissioner complaint, the website of the Office of the Australian Information Commissioner has
more information.
Contact
If you wish to discuss my decision, please contact the FOI Team on email at xxx@xxxxxxxxxxxxxx.xxx.xx
Yours sincerely,
Shandel e McNeil
A/g Director – Internal Integrity Unit, Administrative Review and Governance
Legal and Internal Integrity Division
NDIS Quality and Safeguards Commission
30 January 2025
FOI Request No. (73) - 24/25 - (2)
SCHEDULE OF DOCUMENTS
Doc
Pages
Description
Decision / Exemption
No.
1. 1-24
Memorandum of Understanding (MOU) Refused in ful under sections 37(2) and 47E
of the FOI Act
2. 25-37
Care Economy Regulatory Alignment
Refused in ful under section 47C of the FOI
Act
(CERA)
