Dear Ben
Thank you for your email attached, seeking access to information under the Freedom of Information Act 1982 (the FOI Act).
As a starting point, I would point out that nbn invests considerable time and resources into providing a publicly available rollout map and 3 year construction plan on our website, which may assist you. To view the rollout map, please visit: http://www.nbnco.com.au/connect-home-or-business/check-your-address.html, and to view the construction plan, please visit: http://www.nbnco.com.au/learn-about-the-nbn/three-year-construction-plan.html.
Further, nbn issued an FOI access decision in response to an FOI request (FOI1415/01) that is similar to part of your request below, which you can view at the following link (https://www.righttoknow.org.au/request/664/response/2484/attach/3/19A.Final%20Access%20Decision.pdf). 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. Further, 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.
Scope of request
While it may be possible that we hold information that relates to your request broadly, I will need to confirm with our business units.
nbn has more than five thousand full, part time and temporary staff members and your request in its current form would require
nbn to undertake searches with many of those individual staff members.
In light of the time likely to be required to process this request in its current form, 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 that regard, I am relying on sections 24 and 24AA of the FOI Act.
More generally, it may be of assistance to consider limiting the scope of the request to:
· Current status,
· A particular address or street, and
· Excluding legally privileged, draft documents and commercially sensitive information.
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 notice, section 24AB of the FOI Act requires nbn 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 31 October 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 call me on (02) 9927 4118. 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.
nbn’s Commercial Activities Exemption
Documents that relate to nbn’s “commercial activities” are not subject to the operation of the FOI Act. The following link summarises and provides general background information concerning nbn’s commercial activities exemption (CAE) or carve-out. 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), with those decisions hyperlinked. While I am not making a formal decision, nor have I reviewed any relevant documents, there is a possibility that documents falling within this FOI request may be subject to the CAE.
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. Please also note that processing charges may be imposed in relation to FOI requests. You will be advised of any charges in relation to your FOI request. 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, which suggests a (roughly) 40-hour ceiling for FOI processing time.
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.
Please let me know if you have any questions.
Regards
Kate
Kate Friedrich
Legal Counsel – FOI, Privacy & Knowledge Management
P +61 2 9927 4118| E [email address]
Level 11, 100 Arthur Street, North Sydney, NSW 2066
* Monday, Tuesday, Wednesday, Thursday