28 October 2019
‘Wham’
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/32.02
To whom this may concern:
nbn FOI request
I am writing in relation to your request to
nbn under the
Freedom of Information Act 1982 (
FOI Act).
Background
On 21 October 2019,
nbn’s FOI Team received a request from you (‘Wham’) via the “Right to Know” website. In
that request you sought:
“…the address of nbn co in WA? And what is the relationship between nbn co and service stream in 192
Pilbara road Welshpool WA.”
Request for clarification
For your reference,
nbn does not have a national office in Western Australia. Our two national offices are in
Melbourne and Sydney. Our Sydney office details are found in the footer, below, and our Melbourne offices are
located at Tower 5, Level 14/727 Collins Street, Docklands VIC 3008. If you need to post information to
nbn, you
may do so via either of
nbn’s national offices. You can also reach
nbn via
https://www.nbnco.com.au/corporate-
information/contact-us-form or by telephoning 1800 687 626 and speak to our Contact Centre staff.
In relation to the 2nd half of your application, i.e. the request for information regarding
nbn’s “relationship” with
Service Stream and a specific address in Welshpool, Western Australia, I am unclear as to what you are seeking. In
particular, I am unclear as to whether you are seeking the details of
nbn’s contractual relationship with Service
Stream – or other delivery partners in (potentially) connecting a given address, how
nbn connections are
allocated in terms of the timing of connections, remediation works or how Service Stream allocates its own work
to its staff and others – among other possibilities. To provide you with some context, Service Stream is one of
nbn’s delivery partners in the rollout of the
nbn™ broadband access network across Australia. There are various
media announcements outlining Service Stream’s business dealings with
nbn on
nbn’s website -
https://www.nbnco.com.au/, as well as via other publicly available resources.
Under the FOI Act, members of the public have a general right of access to specific documents, subject to certain
exemptions. P
er section 15(2) of the FOI Act, a valid FOI request must provide such information concerning the
requested document/s as is reasonably necessary to enable
nbn to identify them, among other things. As
currently drafted, the terms of your request are not sufficiently clear to enable
nbn to commence the processing
of your application. In circumstances where the scope of an FOI application is unclear,
nbn will neither formally
acknowledge, nor commence the processing of such requests. Until you clarify the terms of this request, the
statutory time period for
nbn to complete this FOI request will not 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
document (GB Document) concerning
nbn’s commercial activities carve-out (
CAC). The GB 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.
While I have not yet identified any relevant documents, nor am I making formal findings of facts regarding this FOI
application, I would flag that
nbn has previously refused FOI requests for information concerning
nbn’s
contractual relations with its business and delivery partners. I would ask that you refer to the GB Document
before reverting regarding the terms of your (clarified) request. In addition, I would be happy to assist in refining
the terms of your FOI application.
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
