21 December 2017
Mr Ben Fairless
By em
ail: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1718/62.07
Dear Mr Fairless
FOI Request – nbn Online Masterclasses
I am writing in relation to your application to
nbn of 5 December 2017, seeking information under the
Freedom of
Information Act 1982 (Cth) (
the FOI Act or
the Act). In particular, you were seeking:
“A copy of the final invite for every online Master Class”
“A copy of any recordings created for every Online Master Class.”
The Statement of Reasons (
Attached) outlines the specific terms of the FOI request, the decision-maker’s findings and the
access decision. For your reference, the FOI decision is subject to review under sections 53A and 54 of the FOI Act. The Office
of the Australian Information Commissioner’s FOI Fact Sheet 12 – Your review rights may be found at the followin
g 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 v
ia xxxxxxxxxxx@xxxxx.xxx.xx. Yours faithfully,
David Mesman
General Counsel
FOI, Privacy & Knowledge Management
FREEDOM OF INFORMATION REQUEST –1718/62
Mr Ben Fairless
ACCESS DECISION – STATEMENT OF REASONS
Background
1.
nbn is a government business enterprise (
GBE), which has the mandate of realising the Australian Government’s vision
for the development of Australia’s new broadband access network.
2.
nbn recognises that information is a vital and an invaluable resource, both for the company and for the broader
Australian community. That is why nbn fosters and promotes a pro-disclosure culture, with the goal of creating an
organisation that is open, transparent and accountable. In that light, members of the public will be able to find a large
amount of information freely available on our website, which may be found at the following lin
k: http://nbnco.com.au/.
3.
nbn manages all of its information assets within the terms and spirit of the
Freedom of Information Act 1982 (the
FOI
Act).
nbn also endeavours to release information proactively, while taking into account our commercial and other legal
obligations. Subject to relevant exemptions, the FOI Act gives the Australian community the right to access documents
held by Commonwealth Government agencies, as well as “prescribed authorities”, such as
nbn.
4. Under subsection 23(1) of the FOI Act,
nbn’s Chief Executive Officer has authorised me, David Mesman, to make
decisions about access to documents and related determinations.
5. Under section 29(8) of the FOI Act, I am required to provide a Statement of Reasons for my decisions in relation to FOI
applications. I am also required to set out my findings on any material questions of fact, referring to the material upon
which those findings were based. Those findings are outlined below.
Application Chronology and Terms of Request
6. On 5 December 2017, Mr Ben Fairless (the
Applicant) made a request under the
Freedom of Information Act, 1982 (
the
FOI Act), seeking:
“A copy of the final invite for every online Master Class
A copy of any recordings created for every Online Master Class.”
7. On 8 December 2017, a member of the
nbn FOI Team
acknowledged receipt of the Applicant’s request as required by
section 15(5) of the FOI Act.
8. On 10 December 2017, the Applicant confirmed his consent to enable
nbn’s FOI Team redact teleconference dial-in
numbers, together with other details such as conference PIN numbers and associated links, in addition to the personal
contact details of
nbn staff.
9. On 13 December 2017, a member of the
nbn FOI Team requested that the Applicant confirm his consent to third party
contact details being redacted from the subject documents.
10. On 17 December 2017, the Applicant also confirmed his consent to third party contact details being redacted from the
subject documents.
11. On 20 December 2017, I completed my FOI decision and subsequently forwarded it to the Applicant.
Access Decision
12. Following receipt of the Applicant’s request,
nbn staff undertook searches through the company’s electronic and other
files, so as to locate any relevant documents falling within the scope of the Applicant’s request. In that regard, I received
confirmation that
nbn staff had located certain documents containing some, but not all, of the information requested by
the Applicant (the
Relevant Documents). In addition,
nbn staff confirmed that no recordings were made of the subject
Master Classes. As per section 24A(1) of the FOI Act, I confirm that all reasonable steps were taken to locate the relevant
recordings and I am satisfied that no such recordings exist.
13. As an FOI decision maker, I am obliged to consider whether the information requested by the Applicant falls within the
terms of section 7(3A) of the FOI Act, being
nbn’s commercial activities exemption (
CAE) and is, therefore, not subject to
the FOI Act. The following link summarises and provides
general background information (
the Backgrounder) concerning
nbn’s CAE or carve-out from the FOI Act. The Backgrounder is included as a link in the soft copy of this Access Decision,
on the grounds that it ought to be considered as forming an integral part of this document.
14. In making my access determination, I consulted with the relevant business units at
nbn and was satisfied that there were
no commercial sensitivities arising from the release of the Relevant Documents, despite the fact that some of the
documents were marked as “commercial in confidence”. As such, I came to the conclusion that the Relevant Documents
would not be considered as relating to
nbn’s CAE.
15. While there may be other grounds upon which to (potentially) exempt access to the Relevant Documents, I sought to be
guided by both the spirit and terms of the FOI Act. I also made reference to the objects of the FOI Act, which provide for
agencies to exercise their functions and powers, as far as possible, to facilitate and promote public access to
information. In that context, I have determined to grant access in full to the Relevant Documents under sections 11 and
11A of the FOI Act, which are attached to the emailed copy of this access decision.
FOI Charges & Publication of Documents 16. It is
nbn’s general policy to charge applicants for FOI processing time. In its
Submission to the OAIC Charges Review, nbn
outlined its support of fees and charges and their importance to the FOI scheme. However, in making my decision in
relation to FOI processing charges, I took into account the Applicant’s willing engagement with the
nbn FOI team in
respect of the request and the narrow, specific scope of the request, which made locating the subject documents
relatively straightforward. I also considered
nbn’s commitment to the objects of the FOI Act and, in particular, section
3(4) of the FOI Act, which seeks to facilitate and promote public access to information, promptly and at the lowest
reasonable cost.
17. In light of the above points, I have determined to waive all processing fees in relation to this FOI application. This is
permitted by Regulation 3 of the
Freedom of Information (Charges) Regulations 1982, which provides decision-makers
with a general discretion to impose or not impose a charge, or impose a reduced charge for the processing of an FOI
request. However, for reference,
nbn is likely to charge the Applicant for any subsequent FOI requests related to this
matter, in line with the company’s general policy, as set out above.
18. 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 exceptions
as per section 11C of the FOI Act. For further information, visit ou
r Disclosure Log on
nbn’s website.
19. If you are dissatisfied with this decision, you have certain rights of review. Details regarding your rights of review and
appeal are outlined in the covering letter, provided with this Statement of Reasons.
