IR no.4 Final notice of decision Bob Buckley.pdf

LEX REF: 4312
MATTER ID: FOI IR (4) 24/25-3

Attention: Mr Bob Buckley
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Buckley
Outcome of Internal Review ‐ Freedom of Information Request (4) 24/25 – 3
The purpose of this letter is to inform you of the outcome of the internal review of your Freedom of
Information (FOI) (FOI No.98-24/25(3)) submitted by you, on 7 March 2025 to the NDIS Quality and
Safeguard Commission (NDIS Commission).
I am the authorised decision maker pursuant to section 23 of the Freedom of Information Act 1982
(Cth) (FOI Act) who conducted the internal review. I declare that I was not involved in substantive
processing or decision-making in respect of the original FOI decision made by Deepika (position
number: 50091780) on 25 February 2025 (original FOI decision).

The original FOI request
The scope of your original FOI request, is as follows:
“Copies of all policies, policy guidance, practice guides, tools, templates and grant funded
materials (i.e. information) produced since September 2022 for the purpose of lifting the
capability of Behaviour Support Providers and improving the quality of NDIS plans that include
a behaviour support component, along with copies of relevant project and communication
plans for each product (where they exist), plus copies of reports showing relevant outcome
measures achieved as a result."

The original FOI decision
The original FOI decision maker of 25 February 2025, decided to:
•  grant full access to thirty‐four (34) documents;
•  grant partial access to seven (7) documents with redactions made under section 22 of the FOI
Act [delete/redact exempt or irrelevant material]; and
•  refuse access in full to one (1) document with redactions made under sections 47E(d) of the
FOI Act [certain operations of agencies].

Application for internal review
On 7 March 2025, you lodged an application for internal review of the original FOI decision. In support
of your request for the internal review, you submitted the following:
“I am writing to request an internal review of NDIS Quality and Safeguards Commission's
handling of my FOI request 'Actions to lift capability and improve quality of behaviour
support.”

The response includes the unsubstantiated assertion that the release of Document 42 – BSP –
QE11 Recommendations Communications Plan would "prejudice the internal processing
functions of the agency and their associated safeguarding practices and, as a result, the
operations of the NDIS Commission."  The response omits any evidence or reasoning to support
this assertion.
Please review this aspect of the decision.”

Materials considered
In making the internal review decision of the FOI, I have had regard to:
•  your submissions;
•  the original FOI decision dated 25 February 2025;
•  the FOI Act, in particular sections 22 and 47E(d);
•  the unredacted version of Document 42, withheld as part of the original FOI decision;
•  information/documents obtained from the associated NDIS Commission team in response
to your original FOI request; and
•  the Guidelines issued by the Australian Information Commissioner (OAIC) under section
93A of the FOI Act to which agencies must have regard in performing a function or
exercising a power under the FOI Act (FOI Guidelines).

FOI internal review decision
Having regard to all relevant material available to me as part of this review, including the original FOI
decision made on 25 February 2025.  I have decided to set aside the original access refusal decision of
Document 42 and substitute it with a decision to grant partial access to this document under section
22. The reasons for my review decision including the findings I have made and the evidence that
supports those findings are outlined below.
The decision of the application of Section 22 exemption in Documents 2 to 5 and Documents 7, 9, and
14 remain unchanged. A review of the decisions pertaining to these documents does not fall within
this internal review scope, given that you have not expressed any concerns regarding these documents
from the original decision.

Reasons for the internal review FOI decision
You have challenged the application of the conditional exemption under section 47E(d) of the FOI
Act to exempt material in Document 42.
A document is conditionally exempt under section 47E(d) of the FOI Act, if its disclosure would or could
reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.
2

Section 47E(d) of the FOI Act is a public interest conditional exemption and, for the exemption to
apply, it is necessary to establish that the release of the documents would be contrary to the public
interest.
At the time of the original FOI decision, it was decided that Document 42 contained guidance and
process material for NDIS Commission staff concerning the behaviour support quality and
management of a process administered by the NDIS Commission and therefore is relevant to the
conduct of the NDIS Commission’s operations. It was considered that providing this document
classified as for ‘internal use by the Commission staff only,’ which is not publicly available, would
negatively affect the conduct of the NDIS Commission’s operations. The information contained in the
document may allow others to circumvent elements of the NDIS Commission’s processes by omitting
specific information to avoid escalation or investigation of a matter through knowledge of risk
assessment processes. The NDIS Commission assessment processes and escalation points are
important measures to assist with the safeguarding of NDIS participants, and the identification of
persons in the sector who engage in unlawful conduct.
As part of the internal review process, the Practice Quality Division (Division), as the document owner
undertook a re-examination of the information reference in document and the sensitivity of the
content. Since this Communication Plan was delivered from 2022 to 2023 and pertains to various
implemented stages, the Division is agreeable to the partial release of this document to you. I am
therefore satisfied that application of section 47E(d) of the FOI Act to fully exempt material within
Document 42 is not necessary.
Section 11A(5) of the FOI Act requires access to a conditionally exempt document to be granted unless
(in the circumstances) access to the document at that particular time would, on balance, be contrary
to the public interest. In light of my decision that Document 42 is not conditionally exempt under
section 47E(d) of the FOI Act, I am not required to consider the public interest test.

Deletion of exempt material or irrelevant material from documents and provide access to edited
copies
Section 22 of the FOI Act requires an agency to provide access to an edited version of a document
where it is reasonably practicable to edit the document to remove exempt material or material that
is irrelevant to the scope of a request.
On 31 January 2025, you confirmed 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.
On this basis, I have prepared the documents for release by removing the exempt and irrelevant
material in accordance with section 22 of the FOI Act. The material (Document 42) that has been
edited for release is marked within the documents, as well as at the Schedule of Document.
3

Conclusion
For the reasons set above, I am satisfied that that application of section 47E(d) of the FOI Act to fully
exempt material within Document 42 is no longer suitable in this instance.
Accordingly, I have decided to set aside the original access refusal decision of Document 42 and
substitute it with a decision to grant partial access to this document under section 22.  A copy of this
document is enclosed with this decision.
The original FOI decision remains unchanged in relation to the disclosure of the remaining documents
as you do not object the document release decisions of these remaining documents from the original
decision.

Review rights and complaints
If you are unhappy with my decision, you can find information about your rights of review, and how
you can make a complaint about the handling of your request at Attachment B.

Contact
Should you wish to discuss my FOI internal review decision, please contact the FOI team on email at:
xxx@xxxxxxxxxxxxxx.xxx.xx

Yours sincerely,

Shandelle McNeill
A/Director, Internal Integrity
Legal Services and Internal Integrity Division
NDIS Quality and Safeguards Commission

4 April 2025

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LEX REF: 4312
MATTER ID: FOI IR (4) 24/25-3

ATTACHMENT A
SCHEDULE OF DOCUMENT

Doc No.
Pages
Date
Description
Decision / Exemption
42.
627-641
Undated
BSP – QE11 Recommendations Communications Plan
Partial access – section 22 of the FOI Act

LEX REF: 4312
MATTER ID: FOI IR (4) 24/25-3

ATTACHMENT B

INFORMATION ON REVIEW RIGHTS
Review by the Office of the Australian Information Commissioner Review
Section 54M of the FOI Act gives you the right to apply to the Office of the Australian Information
Commissioner (OAIC) to review certain decisions.
If you wish to have the decision reviewed by the OAIC you must apply for the review, in writing or by
using the online merits review form available on the Information Commissioner’s website at
www.oaic.gov.au, within 30 days of receipt of this letter. To assist the Information Commissioner your
application should include a copy of this decision and your contact details. You should also clearly set
out why you are objecting to the decision.
You can also complain to the Information Commissioner about how an agency handled an FOI request,
or other actions the agency took under the FOI Act.
Applications for review or complaints can be lodged in one of the following ways:
Online:
www.oaic.gov.au
Post:
GPO Box 5288 SYDNEY NSW 2001
Phone:
1300 363 992
Email:
xxxxxxxxx@xxxx.xxx.xx