27 May 2016
Ms Revelly Robinson
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1516/67.02
Dear Ms Robinson,
FOI Application – Documents relating to alleged leaks
I am writing in relation to your request, made under the
Freedom of Information Act, 1982 (
the FOI Act).
Scope of FOI Application On 20 May 2016,
nbn received
a request from you under the FOI Act, seeking “
all records relating to the
referral of the [alleged] leaks from NBN Co to the AFP”. In order to search and retrieve the documents relating to the alleged leaks,
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 across a significant time frame. 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.
More generally, it may be of assistance to consider limiting the scope of the
request to:
A smaller group of
nbn officers, such as specific senior executives,
A shorter time period,
Specific types of documents, such as a formal briefing document or memo, and
Excluding legally privileged, draft documents and commercially sensitive information.
Further, I would refer you to
section 37 of the FOI Act, noting that the Australian Federal Police are undertaking
an ongoing investigation in relation to alleged leaks at
nbn.
In addition,
nbn’s policy is to levy processing charges in relation to FOI requests, subject to contentions
regarding public interest. In that regard, I would refer you to
nbn’s FOI processing charges policy, which is
outlined at the following hyperlink
: Submission to the OAIC Charges Review. Moreover,
nbn supports – and will
generally apply – Recommendation 24 in the
Hawke Review into FOI Legislation, (
the Hawke Review), which
suggests a (roughly) 40-hour ceiling for FOI processing time. In light of the points above, I am of the opinion
that it would be an unreasonable diversion of
nbn’s resources to commence the processing of this FOI
application in its current form. In that regard, I am relying upon
sections 24 and
24AA of the FOI Act. Request Consultation Process
Section 24 of the FOI Act requires
nbn to undertake a request consultation process before issuing a notice to
refuse access. Before issuing a refusal noti
ce, section 24AB of the FOI Act requires Government authorities to
provide applicants with written notice stating their intention to refuse access and to initiate a request
consultation process. In that context, I request that you review the scope of your FOI request and notify me by
10 June 2016 as to whether you wish to:
withdraw the request; or
make revised request; or
not revise the request.
Our team would be happy to assist you in refining the scope of your request. In that regard, I would invite you
to discuss the terms of this request with
nbn’s FOI Group on the numbers, below. If you have not notified me
by the above-mentioned date,
nbn will consider that this application has been withdrawn as per section
24AB(6) of the FOI Act. In accordance with section 24AB(8) of the FOI Act, the time taken to consult with you
regarding the scope of a request is not taken into account when calculating the 30-day statutory time limit for
processing FOI applications. For reference, 7 days out of 30 have passed in relation to this FOI application.
nbn’s Commercial Activities Exemption
I also refer you to
nbn’s commercial activities exemption (
the CAE), as pe
r section 7(3A) and
Part II of
Schedule 2 of the FOI Act. In particular, you should be aware that 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 (
the 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. The OAIC completed an additional review at
the end of July 2013 –
the Battersby Decision, which further clarified the scope of
nbn’s CAE or commercial
activities exemption. 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 Notification In accordance with the FOI Act,
nbn is required to publish documents provided to FOI applicants within 10
working days after release. The information you seek may be published in full (as released to you) or with
some additional redactions as per section 11C of the FOI Act. For further information, visit ou
r Disclosure Log
on
nbn’s website.
If you have any questions or need to discuss your FOI application, please feel free to contact me on Tel. 8918
8596 or via email on
xxxxxxxxxxx@xxxxx.xxx.xx. Sincerely,
David J Mesman
General Counsel
FOI, Privacy & Knowledge Management
