12 November 2019
Mr M. Wilkinson (MG)
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/38.02
Dear Mr Wilkinson
nbn FOI request
I am writing in relation to your request to
nbn under the
Freedom of Information Act 1982 (
FOI Act).
FOI Request Terms
On 2 November 2019,
nbn’s FOI Team received a request from “MG” (
the Applicant) via the “Right to Know”
website. In that request, the Applicant sought:
A breakdown by each State/Territory for the following:
1. The total number of premises in Band 2 Exchange Service Areas (ESA) mapped to receive an NBN service
(of any type).
2. The number of premises in Band 2 ESA's mapped to receive an NBN Service via NBN's "Skymuster"
satellites.
Band 2 ESA's (listed by State and ESA) are defined in this list:
https://www.telstrawholesale.com.au/content/dam/tw/products/Facilities%20Access/Unconditioned%20
Local%20Loop/ULL_Bands.pdf
EG:
NSW: Premises in Band 2 ESA's mapped to receive an NBN service = ### Premises in Band 2 ESA's mapped
to receive a Skymuster service = ###
VIC: Premises in Band 2 ESA's mapped to receive an NBN service = ### Premises in Band 2 ESA's mapped
to receive a Skymuster service = ### etc.
Background information and findings
Following receipt of the Applicant’s request, I undertook discussions with relevant subject matter experts within
nbn in relation to the terms of your FOI application. In that regard, I was informed that:
• The term “ESA” is employed by one of
nbn’s wholesale customers, i.e. a retail service provider (
RSP), for
its own internal purposes.
•
nbn does not employ the term (or concept) of ESAs as part of its network architecture or planning
processes.
• As such,
nbn does not hold extracts or data linked to ESAs.
No documents
nbn holds no documents within the terms of your request and I refer you to
section 24A of the FOI Act.
nbn’s FOI Team spent approximately three hours reviewing and considering relevant information, making
enquiries of relevant
nbn personnel and drafting this FOI decision. This is in addition to the time spent searching
for documents, which were ultimately found not to exist.
nbn has determined not to impose any charges in
relation to this FOI request per the
Freedom of Information (Charges) Regulations 2019 (Cth).
An FOI decision may be reviewed, subject to sections 53A and 54 of the FOI Act. Please refer to the Office of the
Australian Information Commissioner’s (
OAIC) website at the following
link, which provides details about your
rights of review and other avenues of redress under the FOI Act.
nbn’s Commercial Activities Carve-out The FOI Act provides members of the public with 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. In circumstances where the scope of an FOI application is unclear,
nbn will neither formally acknowledge,
nor commence the processing of such requests. If you wish to make further FOI requests, I would ask that you
review in detail the following paragraphs and links concerning
nbn’s commercial activities carve-out (
the CAC).
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 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.
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. 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 hyperlink below outlines
nbn’s approach to
processing charges: Submission to the OAI
C Charges Review. More information about charges under the FOI Act is
set out 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. Information
sought by FOI applicants may be published in full 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.
Yours sincerely
David Mesman
General Counsel
FOI, Privacy & Knowledge Management
