10 November 2017
By Em
ail xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1718/49.02
Dear Ms Karen L
FOI Request
I am writing in relation to your request dated 7 November 2017.
Request to Clarify
Under the
Freedom of Information Act 1982 (Cth) (
the FOI Act), members of the public have a general right of access to
specific documents, subject to certain exemptions. Under section 15(2) of the FOI Act, a valid FOI request must state that the
request is an application for the purposes of the FOI Act and also provide such information concerning the requested
document as is reasonably necessary to enable
nbn to identify it, among other things.
You have stated that the request for information is an application for the purposes of the FOI Act. However, unfortunately,
the terms of your request are unclear, such that I am uncertain as to which document(s) are being requested.
In the circumstances of it being unclear which specific document(s) you are seeking,
nbn will not formally acknowledge, nor
commence the processing of this request, until you have sufficiently clarified the terms of the application. Until those terms
are clarified, the statutory time frame for completing this request will not commence. In that regard, please inform me if
there is a specific document, or set of documents you are seeking.
While it may be possible that
nbn holds information that relates to your request broadly, this would need to be confirmed
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 a significant number 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. In that regard, I refer you to
sections 24 an
d 24AA of the FOI Act.
I would be glad to discuss how to best limit the scope of the request and can be contacted directly on the number below.
nbn’s Commercial Activities Exemption I refer you to
nbn’s commercial activities exemption (
the CAE), pe
r section 7(3A) and
Part II of Schedule 2 of the FOI Act.
Please be aware that documents that are in relation to
nbn’s “commercial activities” are not subject to the operation of the
FOI Act and would be exempt from release. The following link summarises and provides
general background information
concerning
nbn’s commercial activities carve-out. That background document references two reviews by the Australian
Information Commissioner that considered
nbn’s CAE: the
Internode Decision (in January 2012) and the
Battersby Decision
(in July 2013).
While I am not making a formal decision and have not reviewed any documents, I note that there is a distinct possibility that
documents falling within the terms of this request may be subject to the CAE, among other exemptions from release.
FOI Processing Period and 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. In particular, third party consultations would likely increase the processing period to
60 days. 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 request.
For your 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. Recommendation 24 suggests a 40-hour ceiling for all FOI processing charges.
Disclosure Log
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) or with some additional redactions as per section
11C of the FOI Act. For further information and other details, please visit ou
r Disclosure Log on
nbn’s website.
Please note, the hard copy of this correspondence includes blue underlined text for your reference, indicating links to
relevant legislation, decisions, documents and information which are available in the soft copy version of this
correspondence. If you need to discuss your application, please feel free to contact the writer on (02) 9031 3471.
Yours faithfully,
Paul Kosterman
Senior Legal Counsel
FOI Privacy & Knowledge Management
