17 November 2017
Mr Rick Torre
Sent via em
ail: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1718/52.02
Dear Mr Torre,
Information Request
I am writing in relation to your request, sent to
nbn’s FOI email address on 12 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. Unde
r 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.
Although you have stated that the request for information is an application for the purposes of the FOI Act, the terms of your
request are unclear as to which particular document(s) are being requested.
We understand, generally, that your request relates to matters including the:
“…location of the NBN node that 10 Targhee Street Doreen VIC 3754 is connected to?
I would also like the cable length run between the 2 locations?
Given the distance of the requested address and the NBN node what would be the optimum plan offered by a RSP?”
Unfortunately, the particular document(s) which fall within the parameters of the request, as it is currently drafted, are not
reasonably identifiable, as required under the FOI Act. The terms of the request, as currently drafted, pose questions in
relation to several matters. Therefore, in order to respond to your request as currently drafted,
nbn would be required to
conduct searches for disparate information. Accordingly,
nbn’s position is that it has not been provided with sufficient
information concerning the document(s) as is reasonably necessary to identify those responding to the request, as is required
for a valid FOI request.
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 almost 6,500 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 t
o sections 24 and
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.
Proof of Identity
Further,
nbn must ensure that it does not inadvertently release information and documents that could be the subject of
objections from third parties, based upon their personal, professional or business affairs. Your request seeks information that
may include personal, professional or business information, relating to an identifiable individual or business.
Accordingly, assuming that you would like to proceed with a formal FOI request and meet the requirements as outlined
above,
nbn would need to confirm your identity and relationship with the subject property. Please note that
nbn cannot
begin processing an FOI request, until the relationship of the person making the request, as either resident or owner of the
subject property, is established.
You will be able to confirm your identity by providing to us a certified copy of your driver’s license (or some other form of
relevant identification) which includes your full name and address (per above), together with a certified copy of a local
council rates notice or utility bill (ie. your service provider’s invoice for the
nbn).
You may forward certified, hard copy documents to “
nbn FOI Officer, c/- Level 10/100 Arthur Street, North Sydney, NSW,
2060”.
Until the above details are provided, my view is that it would be an unreasonable diversion of
nbn’s resources to process this
request for information.
nbn will not formally acknowledge, nor commence the processing of this request, until you have
sufficiently clarified the terms of the application and your identity - until such time, the statutory time frame for completing
this request cannot commence, in any event.
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. In that
regard, I note that you have requested network data which possibly relates to
nbn’s commercial activities and therefore will
likely fall within the subject exemption.
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 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. For your reference, 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.
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
