13 June 2013
Mr Joel Dickins
Sent via email:
foi+request-85-50ae1d01@right oknow.org.au
foi+request-111-1600658b@right oknow.org.au
Our Ref:
FOI1213/19.42
FOI1213/25.12
Dear Mr Dickins,
FOI Application
I am writing in relation to your requests made under the
Freedom of Information Act 1982 (
the FOI Act). In particular,
you sought NBN Co’s rol out and activation figures for the periods ending 31 March 2013 and 30 April 2013.
The Statement of Reasons (
Attached) outlines the specific terms of these FOI requests, the decision-maker’s
findings and the access decisions, one of which is a supplemental decision following on from NBN Co’s FOI previous
decision (FOI1213/19.24). For your reference, this decision is subject to review under sections 53A and 54 of the FOI
Act. The Of ice of the Australian Information Commissioner’s
FOI Fact Sheet 12 – Your review rights is at ached for
your information and may be found at the following
link.
If you have any questions, need to discuss your FOI application or require any other information relating to this
mat er, please feel free to contact the writer on Tel. (02) 8918 8596 or via email o
n xxxxxxxxxxx@xxxxx.xxx.xx.
Sincerely,
David Mesman
FOI Officer
NBN Co Limited ACN 136 533 741
A Level 11, 100 Arthur Street, North Sydney NSW 2060
P +61 2 9926 1900
F +61 2 9926 1901
E xxxx@xxxxx.xxx.xx W www.nbnco.com.au
1
FREEDOM OF INFORMATION REQUEST – 1213A/19 & 1213A/25
JOEL DICKINS – RIGHT TO KNOW
ACCESS DECISION
STATEMENT OF REASONS
Background
1. NBN Co Limited (
NBN Co) is a government business entity (
GBE), which has the mandate of realising the
Australian Government’s vision to develop a national broadband network that is truly national in character.
2. NBN Co recognises that information is a vital and an invaluable resource, both for the company and for the
broader Australian community. That is why NBN Co fosters and promotes a pro-disclosure culture, with the goal of
creating an organisation that is open, transparent and accountable. In that light, members of the public wil be able
to find a large amount of information freely available on our
website.
3. In addition, NBN Co manages its information assets within the terms and spirit of the
Freedom of Information Act
1982 (
the FOI Act or
the Act). We also endeavour to release information proactively, while taking into account
our commercial and other legal obligations.
4. Subject to relevant exemptions, the FOI Act gives the Australian community the right to access documents held by
Commonwealth Government agencies, as well as “prescribed authorities”, such as NBN Co.
5. Under subsection 23(1) of the FOI Act, NBN Co’s Chief Executive Of icer has authorised me, David Mesman, to
make decisions about access to documents under the FOI Act.
6. Under section 26 of the FOI Act, I am required to provide a Statement of Reasons for my decisions in relation to
FOI access applications. I am also required to set out my findings on any material questions of fact, referring to
the material upon which those findings were based.
Application Chronology and Terms of Request
7. On 8 April 2013, NBN Co received an FOI request from Mr Joel Dickins from the “Right-To-Know” website (
the
Applicant), which sought the fol owing information:
1. Brownfields Fibre Rol out
a. Number of premises under construction;
b. Number of premises passed (able to order a service);
c. Number of premises with an active Brownfield Fibre NBN service.
2. Fixed Wireless Rollout
a. Number of premises covered by an 'actively under construction' tower site;
b. Number of premises covered by active tower site (able to order a service);
c. Number of premises with an active Fixed Wireless NBN Service.
3. Interim Satelite coverage – Number of premises with an active Interim Satelite NBN Service.
NBN Co Limited ACN 136 533 741
A Level 11, 100 Arthur Street, North Sydney NSW 2060
P +61 2 9926 1900
F +61 2 9926 1901
E xxxx@xxxxx.xxx.xx W www.nbnco.com.au
2
8. On 11 April 2013, NBN Co acknowledged receipt of the Applicant’s FOI request, as required by section 15(5) of
the FOI Act.
9. On 8 May 2013, I made my original FOI decision – our reference FOI1213-19.24, which deferred access to the
information requested, as permit ed by section 21(1)(b) of the FOI Act. In my decision, I also made reference to
section 21(2) of the FOI Act, which requires Commonwealth authorities to inform applicants of the reasons for their
decision and, as far as practicable, the period for which the deferral wil operate. At the time of my decision, I
received advice that NBN Co planned to table the relevant information during Budget Estimates Hearings, with the
intention to make the information public on or around the end of May 2013.
10. On 9 May 2013, NBN Co received an additional request (FOI1213/25) from the Applicant in the same terms as
outlined above, but seeking rollout data for the period ending 30 April 2013. As required by section 15(5) of the
FOI Act, NBN Co acknowledged the Applicant’s additional request on 9 May 2013.
11. On 8 June 2013, the Applicant wrote to NBN Co, requesting an explanation as to the delay in the finalisation of his
FOI request in relation to FOI1213/19.
12. On 12 June 2013, I emailed the Applicant apologising for the delay and indicated that I would be making a
decision on that day or 13 June 2013 at the latest. For reference, FOI1213/25 was due for determination on 8
June 2013, which was a Saturday. As outlined at paragraph
8.73 of the OAIC’s FOI Guidelines, Commonwealth
entities are permit ed to make an FOI decision on the next available business day fol owing the end of the 30-day
processing period, which was 11 June 2013.
13. On 13 June 2013, I forwarded a copy of this decision to the Applicant. As outlined below, I made a supplementary
FOI decision in relation to FOI1213/19 and another FOI decision in relation to FOI1213/25. As permit ed by the
FOI Act and Charges Regulation, I have determined to waive any relevant fees applicable to this access decision.
Findings of Material Fact
14. Under section 3(1)(b) of the FOI Act, the public has a right to seek access to “documents”, rather than discrete bits
of information. Notwithstanding the above point, section 17 of the FOI Act enables Government authorities to
provide applicants with information, where such information is not available in a discrete writ en form and where
the information is “ordinarily available to the agency for retrieving or col ating stored information”.
15. In light of the above points, NBN Co staff undertook searches through the company’s hard copy, electronic and
other files, so as to locate the relevant information. NBN Co staff also informed me that it would be possible to
establish a preliminary data set, covering most of the information sought in the Applicant’s requests. As permit ed
by section 17 of the FOI Act, it would then be possible to create a new document containing the relevant
information.
16. NBN Co’s Chief Financial Of icer (
CFO) also informed me that our company had initiated an external review in the
lead-up to NBN Co’s end-of-financial year. That external review will provide assurances on the accuracy of NBN
Co’s data and performance metrics, including the data requested by the Applicant. The CFO also indicated that he
expected that this external review would be completed on or around the week commencing 15 July 2013.
17. The fol owing points should also be noted:
• NBN Co published a media release on 19 April 2013, with an at achment containing a series of key NBN Co
metrics, current to 31 March 2013. This document included some of the statistics and information that
NBN Co Limited ACN 136 533 741
A Level 11, 100 Arthur Street, North Sydney NSW 2060
P +61 2 9926 1900
F +61 2 9926 1901
E xxxx@xxxxx.xxx.xx W www.nbnco.com.au
3
responds in part to the Applicant’s FOI original request (FOI1213-19). That information may be found at the
following link:
ht p:/ nbnco.com.au/assets/media-releases/2013/report-to-parliamentary-joint-committee.pdf
• NBN Co also published a press release on 15 May 2013, which contained various statistics, which contained
some, but not al , of the March 2013 data requested by the Applicant. That information may be found at the
following link:
ht p:/ www.nbnco.com.au/assets/media-releases/2013/press_release_march_rollout_update_2013-
15-may-2013.pdf
• NBN Co tabled certain preliminary data during the 30 May Budget Estimates Hearings – that information
may be found at the fol owing link:
http:/ www.aph.gov.au/Parliamentary_Business/Commit ees/Senate_Commit ees?url=ec_ct e/estim
ates/bud_1213/bcde/nbn_288-345.pdf
Access Decision
18. NBN Co is a “prescribed authority” and is subject to the FOI Act. However, Part I of Schedule 2 of the FOI Act
exempts NBN Co from the operation of the Act in respect of documents relating to its commercial activities.
Section 7(3A) of the FOI Act defines “commercial activities” as:
(a) activities carried on by NBN Co on a commercial basis; or
(b) activities, carried on by NBN Co, that may reasonably be expected in the foreseeable future to be carried
on by NBN Co on a commercial basis.
19. As an FOI decision maker, it is open to me to consider whether the requested information falls within the terms of
section 7(3A) of the FOI Act. It would also be open to me to consider the application of other exemptions, such as
sections 47 (Commercial y valuable information). However, I have not formal y considered these exemptions, as
NBN Co plans to release the requested data, as outlined below.
20. As permit ed by section 21(1)(b) of the FOI Act, I have determined to defer access to al of the data requested in
relation to FOI1213-19 and FOI1213-25. For reference, section 21 of the FOI Act enables Commonwealth entities
to defer access to a document:
(b) if the document concerned has been prepared for presentation to Parliament or for the purpose of being
made available to a particular person or body or with the intention that it should be so made available -- until
the expiration of a reasonable period after its preparation for it to be so presented or made available.
21. In relation to section 21(1)(b) of the FOI Act, NBN Co plans to provide the relevant data to its Board for review and
consideration in relation to NBN Co’s corporate planning ef orts.
22. In addition, section 21(2) of the FOI Act requires Commonwealth authorities to inform applicants of the reasons for
their decision and, as far as practicable, the period for which the deferral wil operate. In my opinion, it would be
inappropriate to release the requested data, pending the outcome of NBN Co’s external review of its performance
NBN Co Limited ACN 136 533 741
A Level 11, 100 Arthur Street, North Sydney NSW 2060
P +61 2 9926 1900
F +61 2 9926 1901
E xxxx@xxxxx.xxx.xx W www.nbnco.com.au
4
metrics. The review wil ensure the accuracy of this information and dovetail with NBN Co’s corporate reporting
processes, thereby limiting unnecessary expense and the duplication of ef orts.
23. Al owing for the external review to be finalised and presented to NBN Co’s Board, it is expected that the data wil
be ready for publication on or around mid-to-late July 2013. At roughly the same time, this information should be
made publicly available on NBN Co’s website.
24. If you are dissatisfied with this decision, you have certain rights of review. Details regarding your rights of review
and appeal are outlined in the covering let er, provided with this Statement of Reasons.
NBN Co Limited ACN 136 533 741
A Level 11, 100 Arthur Street, North Sydney NSW 2060
P +61 2 9926 1900
F +61 2 9926 1901
E xxxx@xxxxx.xxx.xx W www.nbnco.com.au
5
Document Outline
