2 September 2019
Mr Timothy Nothdurft
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/16.02
Dear Mr Nothdurft
FOI Application – OAIC statistics
I am writing in relation to your request made under the
Freedom of Information Act 1982 (
the FOI Act or
the Act) in which you sought information regarding
nbn’s FOI activities and what was described in the
Right-to-Know (
RTK) website as “statistical data on
nbn FOI teams”.
In particular, you made an FOI request for the following:
Number of FOI requests received – breakdown by year;
Number of approved FOI requests and approving officer – breakdown by year;
Number of declined FOI requests and declining officer;
The clause for declining the request – breakdown by year i.e. Number of FOI declined due to
Commercial in confidence;
Number of FOI declined based of cyber security or other threats;
Staff turnover and numbers that are responsible for FOI requests; and
Revenue generated from FOI requests (both declined and approved).
Statistics available at data.gov.au
I refer you to the followin
g link, which contains the statistical breakdown of FOI matters in relation to all
relevant Commonwealth FOI entities, including
nbn. That link provides downloadable dataset – in Excel
spreadsheets, and includes breakdowns by FOI agency of all FOI applications received and determined,
exemptions claimed, fees advised, revenue collected and details regarding the number of staff members
responsible for FOI matters, among other matters. It is my understanding that the Office of the
Australian Information Commissioner (
the OAIC) collects these data on a quarterly basis and publishes
the same via data.gov.au on an annual basis. The OAIC has, at times, also published the same
information via the OAIC website and in conjunction with its annual reporting efforts.
Specific terms of FOI request
Approving and declining officer – By the term “approved” FOI request or “approving” officer, I
presume that you are referring to FOI determinations in which a document was released. Similarly, I
presume that by “declined” and “declining”, you are referring to FOI determinations which were
refused by
nbn. In the past,
nbn has refused to provide staff members’ details and other information
regarding the nature of their work on the basis of
nbn’s commercial activities carve-out (
the CAC). In
that regard, I refer you to the paragraphs below concerning
nbn’s CAC. I also refer you to
nbn’s FOI
page and th
e following link, which outlines
nbn’s submission to the OAIC’s Review into the
disclosure of public servants’ names and other details.
Per its submission to the OAIC,
nbn indicated that its staff members are not public servants and
there is no requirement that their details be made public as they are not performing “public
functions.” Rather, they are employed under individual employment contracts and similar
commercial arrangements. In addition,
nbn has consistently asserted that there are clear links between
employee engagement, staff morale and our company’s ability to assist in protecting the personal
privacy and professional reputations of
nbn staff. In turn, these factors have an impact upon
nbn’s ability
to achieve corporate goals, not least of which is
nbn’s ability to generate revenue and maintain a
minimum return on investment, as required by
nbn’s Shareholders’ Statement of Expectations. In that regard,
nbn has refused to disclose its staff members’ names, contact details, working
arrangements and work product on the basis of the CAC. Similarly, information regarding the
management of a given business unit, such as the FOI Team, work allocation and the identity of FOI
decision-makers would also fall within the terms of
nbn’s CAC. In my opinion, there is a clear link
between the ability to manage staff and
nbn’s capacity to operate effectively and, thereby, generate
profits. As this information would be subject to the CAC,
nbn would not be obliged to disclose staff
members’ details, nor their individual refusal/release rates in relation to FOI applications.
Notwithstanding the above points, I can confirm that I (David Mesman) have been employed by
nbn and have acted as the company’s FOI Officer since 2011 to the present. To date, I have completed
the vast majority of FOI decisions in that period. As such, you may cross reference the data found at
the above link, and attribute the vast majority of decisions to me.
Number of FOIs declined base on cyber security or other threats – It is unclear what you mean by
this part of your request, i.e. “other threats”. In addition, there is no formal exemption under the
FOI Act relating to cyber (or other threats). If you could please outline in more detail what you are
seeking, that would be appreciated.
Staff turnover – As flagged above,
nbn would likely refuse a request regarding staff turnaround on
the basis of the CAC – and for the reasons outlined above. In addition, it is unclear what you mean
by the phrase “numbers that are responsible for FOI requests”. It is my understanding that the FOI
statistics at this
link contain details regarding the breakdown of staff numbers – full time equivalents
– within
nbn’s FOI Group.
Under the FOI Act, members of the public have a general right of access to specific documents, rather than
information, subject to certain exemptions. P
er section 15(2) of the FOI Act, a valid FOI request must provide
such information concerning the requested documents as is reasonably necessary for
nbn to identify them,
among other things. As currently drafted – and per my notes above, the terms of your request are not
sufficiently clear to enable
nbn to commence the processing of this application, nor will the statutory
deadlines for responding to an FOI request commence.
nbn’s Commercial Activities Carve-out nbn’s commercial activities are carved-out from the application of the FOI Act pe
r section 7(3A) and
Part II of
Schedule 2 of the Act. Documents that relate to
nbn’s current or future commercial activities are not subject
to the operation of the FOI Act and would be exempt from release. The following link provid
es general
background information (
GBI Document) concerning
nbn’s CAC. The GBI Document refers to two Australian
Information Commissioner Reviews that considered
nbn’s commercial carve-out –
Internode Pty Ltd and NBN
Co Ltd [2012] AICmr 4 and th
e Battersby and NBN Co Ltd [2013] AICmr 61. In practical terms, the CAC ensures that
nbn is not exposed to disadvantage in the marketplace and similar
commercial environments. The CAC also enables
nbn to function as any other commercial player in
Australia’s highly competitive telecommunications industry. If
nbn were required to release commercially-
related information under the FOI regime, this would undermine
nbn’s ability to protect the company’s
valuable intellectual property, negotiate competitive contracts, develop products and services, grow market
share and manage its staff, among other adverse effects. Disclosure of commercially-related information
would also undermine
nbn’s capacity to generate revenues, while driving up rollout costs. Ultimately,
Australian taxpayers would have to bear those cost increases and other potentially adverse consequences.
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. Please also note that
nbn may impose processing
charges in relation to FOI requests. I will inform you of any charges in relation to your request. For your
reference, processing charges for FOI applications are set by regulation and may be found at
nbn’s website –
and, in particular, its
FOI page. The following hyperlink outlines
nbn’s approach to processing charges:
Submission to the Office of the Australian Information Commission
er Charges Review. In particular,
nbn supports – and will generally apply – Recommendation 24 in th
e 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. More information about
charges under the FOI Act is available at the Office of the Australian Information Commissioner’s (
OAIC)
website and in part 4 of the OAI
C FOI Guidelines. Disclosure Log
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 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 have any questions or need to discuss your FOI application, please contact the writer via email on
xxxxxxxxxxx@xxxxx.xxx.xx. Yours sincerely
David Mesman
General Counsel
FOI Privacy & Knowledge Management
