3 February 2016
Ms Lynette Ohlson
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1516/38.02
Dear Ms Ohlson,
FOI Application – Paradise Beach area in Gippsland
I am writing in relation to your request made under the
Freedom of Information Act, 1982 (
the FOI Act), in
the following terms, “
please provide dates for NBN cable installation to Paradise Beach area in Gippsland.”
Request to Clarify FOI Application
Under the FOI Act, members of the public have a general right of access to specific documents, rather than to
discrete bits of data, subject to certain exemptions. It is unclear to me as to what you meant by the phrase,
“NBN cable installation.” To the extent that you are seeking information about the
nbn rollout in the Paradise
Beach area in Gippsland, I would refer you to ou
r public website which contains helpful information which might
assist you. Further, I would also refer you to
nbn’s corporate reports and plan which also contain information
which may assist. In addition, please refer to the points, under the heading “Previous Related FOI Decision.”
Under section 15(2) of the FOI Act, a valid FOI request must provide such information concerning the requested
document as is reasonably necessary to enable
nbn to identify it, among other things. For the reasons set out
above, I am of the opinion that you have not provided enough information to enable me to identify the specific
documents that you are seeking.
As a result,
nbn will not formally acknowledge, nor commence the processing of this request until you have
sufficiently clarified the terms of this FOI application. In that regard, I would ask that you contact the writer on
the numbers below to discuss the terms of your application. For your reference, it is generally recommended
that FOI requests exclude documents that are not commercially sensitive, confidential or in draft. I would also
refer you to
section 31A of the FOI Act and following, which outlines relevant exemptions to release of
documents under the legislation.
Previous Related FOI Decision For reference,
nbn issued an FOI access decision that is similar to part of your FOI request regarding the
nbn rollout (FOI1415/01.13), which you can view at the following
link. That decision related to an application
seeking rollout information (detailed design and field inspection work documentation), among other matters. In
particular, the documents contained prospective rollout coverage information that had not then been finalised
by
nbn. As part of
nbn’s decision in FOI1415/01.13, my colleague determined that the relevant documents fell
within
nbn’s commercial activities carve-out from the application of the FOI Act. While I am not making a
formal decision with respect to your FOI request, nor have I formally reviewed any relevant documents, there is
a strong possibility that the reasons provided by the decision maker in the previous FOI decision could apply
equally to documents falling with the scope of your request.
nbn’s Commercial Activities Exemption
I refer you to
nbn’s commercial activities exemption (
CAE), as pe
r section 7(3A) and
Part II of Schedule 2 of
the FOI Act. Documents that are in relation to
nbn’s “commercial activities” are not subject to the operation of
the FOI Act. For your reference, the Office of the Australian Information Commissioner (
OAIC) completed a
review decision in January 2012 (
the Internode Decision), which provides background and guidance as to the
application of the CAE to
nbn. The Internode Decision may be found by clicking on the following
link. While I
am not making a formal decision, there is a possibility that documents falling within the terms of this FOI
request may be subject to the CAE, among other exemptions from release.
Disclosure Log
Please also be advised that
nbn is required to publish documents on its website within 10 working days after
the release of the documents to an FOI applicant. The information you seek may be published in full (as
released to the applicant) or with some additional redactions, based upon exceptions under section 11C of the
FOI Act. For further information please visit our website and click on the
Disclosure Log link.
Processing Period & Charges
The statutory period for processing an FOI request is 30 days, subject to any suspension of the processing
period or extension of the time for deciding the application. For the reasons outlined above,
nbn will not
formally acknowledge, nor commence the processing of this request until the terms of this FOI application have
been sufficiently clarified. Again, please do not hesitate to ring me to discuss the terms of this request.
Please note that processing charges may be imposed in relation to FOI requests. You will be advised of any
charges in relation to your request. For reference,
nbn’s approach to processing charges is outlined at the
following hyperlink
: Submission to the Office of the Australian Information Commissioner Charges Review. In
particular,
nbn supports – and will generally apply – Recommendation 24 in the
Hawke Review into FOI
Legislation, (
the Hawke Review) as a benchmark in reviewing FOI applications. For your reference,
Recommendation 24 suggests a 40-hour ceiling for all FOI processing charges.
If you have any questions or need to discuss your application, please feel free to contact the writer on Tel. (02)
8918 8596 or via email on
xxxxx@xxxxx.xxx.xx. Yours faithfully,
An Vo
Associate Legal Counsel – FOI, Privacy & Knowledge Management
