9 December 2016
Mr Geoff Winestock
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1617/28.02
Dear Mr Winestock,
FOI Application – nbn Credit Ratings Matters
I am writing in relation to your request
made under the
Freedom of Information Act, 1982 (
the FOI Act) to the
Department of Finance (the
DOF) – DOF reference 16/128. Under section 16 of the FOI Act, the DOF
transferred part of that FOI request to
nbn on 5 December 2016.
nbn accepted the part transfer in relation to:
Any correspondence in the Department of Finance's possession with either NBN or credit rating
agencies that discusses the request for the credit rating, the negotiations for obtaining the credit rating
or the final credit rating itself.
For the sake of clarity, I understand that
nbn would hold copies of all correspondence falling within the terms
of the above request.
Request to clarify
Under section 15(2) of the FOI Act, a valid FOI request must provide such information concerning the requested
document/s as is reasonably necessary to enable
nbn to identify them. Your application seeks “any
correspondence”, which would include all hard copy letters, emails and other forms of correspondence, which
relate to the entire credit rating process undertaken by
nbn and shared with the DOF. In addition, you have not
specified a time frame. In order to find “any” such correspondence,
nbn would be required to review all
employees’ email accounts dating back to
nbn’s inception. It would also require reviews of hard copy and
electronic record systems across different parts of our business. Please also note that
nbn has more than 5000
full, part time and temporary staff members.
It follows that
nbn’s IT Group would be required to create a set of (email) data cubes, which would 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 documents, which would be a significant interference with the
performance of their usual responsibilities. As you could imagine, identifying and sorting all relevant emails and
other correspondence would require an enormous effort, and that does not account for legal review of those
documents for potential exemption from release.
For reference, I would recommend that you consider limiting your FOI request terms to:
a specific (shorter) time period,
types of documents (contained in an email or letter), such as a formal briefing document or memo,
those addressed to/sent by a senior executive of the company, such as
nbn’s CEO or CFO, and
excluding legally privileged, draft documents and commercially sensitive information, among other
grounds of potentially exempt information under the FOI Act.
In addition, I would happy to discuss the terms of your FOI request, so as to help you limit its scope. In that
regard, please do not hesitate to contact me on the number listed at the end of this letter – or via email. I
would also ask that you refer to
nbn’s approach to processing charges. I would also refer you to the summary
information below, regarding the treatment of
nbn’s
commercial activities under the FOI Act.
Request consultation process In light of the volume of documents likely to fall within the scope of your request – and for the reasons set out
above, I am of the opinion that it would be an unreasonable diversion of
nbn’s resources to process this FOI
application in its current form. In that regard, I am relying upon
sections 24 and
24AA of the FOI Act. 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 entities 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 the
writer by
23 December 2016 as to whether you wish to withdraw the request; or make a revised request; or
not revise the request.
If you have not notified the writer 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. As such, 17 days have passed in calculating the
processing period for this FOI application.
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 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 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.
Processing Charges
nbn’s policy is to levy processing charges in relation to FOI requests, subject to contentions regarding public
interest. 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
Commissione
r 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.
Third Party Consultation Required
As per section 15(6) of the FOI Act, please be advised that I have determined to extend the FOI processing
period to 60 days, so as to comply with the consultation requirements per section 27 and 27A of the FOI Act.
FOI decision-makers are required to provide individuals – as well as businesses and other organisations, where
required – with a reasonable opportunity to make submissions relating to documents that may potentially be
exempt under the FOI Act.
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. If you have any questions, need to discuss your FOI application or require any other information relating to this
matter, please feel free to contact the writer on Tel. (02) 8918 8596 or vi
a xxxxxxxxxxx@xxxxx.xxx.xx. Yours faithfully,
David J Mesman
General Counsel
FOI, Privacy & Knowledge Management