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This is an HTML version of an attachment to the Freedom of Information request 'External review of NDIA FOI 24/25-0592'.

Date: Fri, 17 Jan 2025 13:25:21 +0000
Subject: Freedom of Information request - External review of NDIA FOI 24/25-0592
From: David Wright <xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx>
To: OAIC - FOI <xxx@xxxx.xxx.xx>

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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/technical_advisory_team_tat_de_i#incoming-39646

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-ndis-supports-work-menu/reasonable-and-necessary-supports). 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

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