8 October 2019
Ms Monica Brown
Sent via ema
il: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/28.02
Dear Ms Brown
nbn FOI request – Request for information re distance to node/cabinet
I am writing in relation to your request to
nbn under the
Freedom of Information Act 1982 (
FOI Act).
Background
On 26 September 2019,
nbn’s FOI Team received a request from you via the “Right to Know” website. In
that request you sought information, concerning “…
the distance between the NBN node or FTTN cabinet
to [your] address at 21 Silvereye Close East Cannington…”
Und
er section 15(2)(aa) of the FOI Act, an FOI request must state that the request is an application for
the purposes of the FOI Act. As you have made the request via the “Right to Know” website,
nbn considers that it is a request made under the FOI Act and I am therefore dealing with your request in
accordance with that Act. I also acknowledge your request under the same section of the FOI Act.
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
provides
general background information (
GBI Document) concerning
nbn’s commercial activities carve-
out (
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 the
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.
Location of nbn infrastructure and nbn’s commercial activities carve-out
nbn has previously made FOI decisions refusing access to requests for documents which relate to the
location of nodes and other
nbn infrastructure. These FOI decisions were made on the basis of
nbn’s
CAC. While I am not making a formal decision and have not completed my review of your FOI request,
based on the current scope of your request,
nbn will most likely rely upon the CAC to refuse access to
the information requested (among other possible exemption grounds under the FOI Act).
To provide you with some background, disclosure of information related to the distance of an
nbn node,
cabinet or other
nbn infrastructure from a particular location could set a precedent whereby
nbn was
required to release the same or similar information in response to other FOI requests. This would
expose
nbn to commercial disadvantage as it would tend to reveal the company’s business model for
rolling out
nbn™ network infrastructure. There is also a risk that disclosure of this information could
have the potential to compromise the security of the
nbn™ network, which comprises critical
telecommunications infrastructure.
Documents and information revealing the location of telecommunications infrastructure could also
increase
nbn’s vulnerability to physical and other attacks from hackers, vandals, criminals, terrorists and
others. Furthermore, if such information
were made publicly available,
nbn may be required to increase
security costs in its budget and commercial planning processes. This could lead to cost and time
overruns and delays in the
nbn rollout.
Request Consultation Process
In light of
nbn’s previous FOI decisions regarding
nbn infrastructure placement, I consider that it would
be an unreasonable diversion of
nbn’s resources to revisit this decision. 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 notice
, section 24AB of the FOI Act requires
nbn to provide applicants with
written notice stating their intention to refuse access and to initiate a request consultation process.
Accordingly, I request that you review the scope of your FOI request and notify me by 23 October 2019
as to whether you wish to:
withdraw the request, or
make a revised request, or
not revise the request.
If you have not notified me by the abovementioned date,
nbn will consider that this application has
been withdrawn, 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. For reference, 11 days have
passed in the processing deadline.
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 period 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, it
s FOI page. The hyperlink below outlines
nbn’s approach to processing
charges: Submission to the OAIC
Charges Review. More information about charges under the FOI Act is
set out in part 4 of the OAIC
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, please visit the
Disclosure Log on
nbn’s website.
Please contact me if you have any questions in relation to the above or would like assistance to re-draft
your request.
Yours sincerely
David Mesman
General Counsel
FOI, Privacy & Knowledge Management