11 March 2016
Mr Josh Stewart
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1516/50.02
Dear Mr Stewart,
FOI Application – Information Concerning nbn Technicians
I am writing in relation to your request made under the
Freedom of Information Act, 1982 (
the FOI
Act), in the following terms:
“
I am seeking any records you have that show instances where NBN technicians have not
attended installations or service call outs when scheduled to do so. This includes missed
bookings with reasons such as (But not limited to) "Technician Shortfall" etc… Ideally I would
like to see records for this over a recent 12 month period (Rolling 12 month or 2015 calendar
year). I do not need any record details that would include any personal information, just a
date and a reason for not attending the booking. If other details such as installation type
(FTTP, FTTB, FTTN etc) can be included, that would also be of assistance.”
Request to Clarify FOI Application
The FOI Act provides members of the public with a general right of access to specific documents,
subject to certain exemptions. I note that you have not outlined any specific documents that you are
seeking, other than “any records” in relation to instances where “NBN technicians have not attended
installations or service call outs when scheduled to do so”. Your application also does not make it
clear that you definitively seeking a specific time frame for the request, beyond a (roughly) 12
month period, nor the type of document requested, such as a report, brief, etc.
Under section 15(2) of the FOI Act, a valid FOI request must provide such information concerning
the requested document as is reasonably necessary for
nbn to identify it, among other things. 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. Until
those terms are clarified, the statutory time frame for completing this request will not commence.
In addition, the breadth of your request – in its current form – would also require extensive
searches across many
nbn business units. In order to find “any” documents relating to the non-
attendance at installations or service calls, etc.,
nbn would be required to undertake a review of all
the email accounts of
nbn’s employees, temporary staff and others, which currently number more
than five thousand. Your request would also require reviews of hard copy and electronic record
systems across different parts of the business. It follows that
nbn’s IT Group would be required to
create exceptionally large sets of data cubes, which would then need to be searched, culled for
relevance and organised. Relevant executives and senior managers of
nbn would also need to be
involved in consideration of the documentation, which would be a significant interference with the
performance of their usual responsibilities. In that context, I am of the opinion that it is likely that
this FOI application – in its current form, would unreasonably divert
nbn’s resources. In that regard,
I would refer you to
section 24 and following of the FOI Act in relation to Commonwealth entities’
obligations related to FOI matters.
More generally, it would be of assistance if you were to limit your request to specific types of
documents, such as a report or briefing – and one in final form, as draft documents are more likely
to be considered exempt from release, as would documents that are legally privileged, commercially
sensitive and so forth. I would refer you to
section 31A of the FOI Act and following, which outlines
relevant exemptions to release of documents under the legislation. Our team would be happy to
assist you in refining the scope of your request.
nbn’s Commercial Activities Exemption
For your reference, documents that relate to
nbn’s “commercial activities” are not subject to the
operation of the FOI Act. The following link summarises and provide
s general background
information concerning
nbn’s commercial activities exemption (
CAE). That background document
references two Office of the Australian Information Commissioner reviews that considered
nbn’s CAE in January 2012 (the
Internode Decision) and again in July 2013 (the
Battersby Decision).
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 hyperlin
k: 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
xxxxxxxxxxx@xxxxx.xxx.xx. Yours faithfully,
David Mesman
General Counsel – FOI, Privacy & Knowledge Management