5 December 2019
BIFMA
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1920/41.03
To whom this may concern:
FOI Application
Thank you for your request under the
Freedom of Information Act 1982 (Cth) (
the FOI Act) sent via the Right-
to-Know (
RTK) website and which sought the following:
“Can you please advise how many premises are mapped for a Skymuster connection (as at
12/11/2019) within a 25km radius of the GPO in each Capital City for each State? (NT & ACT are
excluded from this request). Please breakdown the number of premises by each City. Eg; Sydney: ###,
Melbourne: ###, Brisbane: ###, Perth: ###, Adelaide: ###, Hobart: ###.”
Under the FOI Act, applicants have a right to seek documents, rather than information or datasets. However,
section 17 of the FOI Act permits FOI agencies to draw information from computers or other equipment and
to collate that information into a document, which had previously not existed. This requirement is subject to
a caveat, i.e. that an FOI agency is not required to collate the information if it would substantially and
unreasonably divert the agency’s resources. Noting the above points, subject matter experts within
nbn have
identified relevant information from
nbn’s IT systems. Those SMEs were able to produce a document in the
form requested, above, and without unreasonably and substantially diverting
nbn’s resources.
Final Payment Request
In accordance with subsection 29(1) of the FOI Act, I have determined that a charge is payable in respect of
the processing of this FOI request.
nbn staff have undertaken a search for the requested information, and the search and retrieval time is
detailed, below.
nbn staff also completed an assessment of the work involved in processing your FOI request,
as well as making a formal FOI decision. The applicable charges are as follows:
Search and Retrieval Time
2 hours @ $15.00 per hour
$30.00
Decision Making Time
4.5 hours @ $20.00 per hour
$90.00
Sub-total
$120.00
Less first 5 (or less) hours decision making time (*)
($90.00)
TOTAL
$30.00
(*) Per the
Freedom of Information (Fees and Charges) Regulations,
nbn has not charged you for the first 5 hours of decision-making time.
As the processing charges do not exceed $100, no deposit is required. However, a final payment is required
prior to
nbn issuing its FOI decision in relation to this matter.
nbn-Confidential: Commercial
Next steps
Within 30 days of this notice, you are required to:
• agree to pay the charge and make payment; or
• contend that the charge has been wrongly assessed, or should be reduced or not imposed (you should
provide full reasons for your contention); or
• withdraw your request.
If you fail to notify
nbn in a manner mentioned above, within 30 days of this notice, your request will be taken
to have been withdrawn. In addition, if you contend that the estimated charge has been wrongly assessed, or
should be reduced or not imposed, you must notify
nbn of your contention, providing reasons, and evidence
where relevant, to support your submission. In deciding whether to reduce or not to impose a charge, the FOI
decision-maker will consider all relevant factors, including:
• whether payment of the charge, or a part of it, would cause you financial hardship; and
• whether the giving of access is in the general public interest.
If you choose to contend that the charge has been wrongly assessed or should be reduced or not imposed,
this will not constitute a request for internal review. You will be advised of your review rights under sections
53A and 54 of the FOI Act following consideration of your contentions.
Once
nbn has completed the processing of your request, the assessment of the charge payable will be revised
based on the actual amount of work involved in processing your request. If you are refused access to any of
the documents that are relevant to your request,
nbn may not impose an actual charge that is higher than the
final estimated charge. This means that, if you are refused access to any document, the actual charge that will
be payable will be lower than or equal to, but not more than, the final estimate of charges. It is only if you are
granted access to all the documents that are relevant to your request that the actual charge imposed may be
higher than the estimated charge.
It is important to note that the payment of FOI processing fees does not
guarantee access to documents or information. If you agree to pay the estimated charge set out above, or the deposit for that charge, you should arrange to
pay
nbn, using the following electronic banking details:
Bank name:
CBA
Name:
nbn co limited FOI
BSB:
062-438
Account no: 10240782
Reference:
CRM # FOI-0002
When making a payment, please ensure you include the reference noted above. Please note that if you provide a deposit and the processing of your request progresses to a point where a
decision on access is made, a determination about the imposition of the actual charge will be made at that
time. The balance of the actual charge will become a debt due to the Commonwealth, which
nbn would be
obliged to pursue, unless other arrangements are made, or if
nbn agrees to waive the fees.
nbn-Confidential: Commercial
Per section 31 of the FOI Act, the time limit for processing your request is suspended from the day you receive
this notice, being today’s date. Please also be advised that the charge notice day is not counted in calculating
the processing time limit. For your reference, 21 days
have passed
and the processing time limit will resume:
• On the day upon which
nbn receives your payment; or
• Alternatively, if you decide to contest the charge, the processing time limit will resume on the day
upon which
nbn notifies you of its decision not to impose a charge – if
nbn so makes a decision; or
• In the event that
nbn decides to reduce the charge and deposit is required, the processing time limit
will recommence on the day upon which you pay the reduced deposit.
More information about charges under the FOI Act, rights of review and redress are available at the Office of
the Australian Information Commissioner’s (
OAIC) website and in part 4 of the OAI
C FOI Guidelines. 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.
Disclosure Log Notification
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 our
Disclosure Log on
nbn’s website.
Please feel free to contact me by email if you have any questions or would like to discuss your request.
Yours sincerely
David Mesman
General Counsel
FOI, Privacy & Knowledge Management
