3 January 2019
“BIFMA”, a pseudonym
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/41.06
To whom this may concern:
FOI Application – Processing fee determination
I am writing in relation to your request made under the
Freedom of Information Act 1982 (
the FOI Act)
in which you sought certain data regarding the number of premises mapped to the Sky Muster™
satellite service.
As you are aware,
nbn released the relevant documents in full. This FOI decision relates to your request
for a reduction in FOI processing fees.
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 website at the following
link, which provides details about your
rights of review and other avenues of redress under the FOI Act.
If you have any questions or need to discuss your FOI application, please contact me via email on
xxxxxxxxxxx@xxxxx.xxx.xx. Yours sincerely
David Mesman
General Counsel
FOI Privacy & Knowledge Management
FOI APPLICATION – FOI CHARGES DECISION
FOI1920/41
Background Information
1. In making this decision, I took into account relevant parts of the
Freedom of Information Act 1982 (
FOI
Act or
Act) and related legislation, the Office of the Australian Information Commissioner (
OAIC) FOI
Guidelines, relevant case law and other sources.
2.
nbn is treated differently from other agencies and Commonwealth agencies that are subject to the FOI
Act. P
er section 7(3A) and
Part II of Schedule 2 of the Act, documents relating to
nbn’s commercial
activities are carved-out from the application of the Act. The following link –
CAC Background Document
contains a summary of OAIC and Administrative Appeals Tribunal decisions concerning
nbn’s and other
Commonwealth entities’ commercial activities carve-outs (
CAC). The CAC Background Document should
be considered as an integral part of this FOI Charges Decision.
Application, Chronology and Terms of Request 1. On 12 November 2019, “BIFMA” (a pseudonym, and
the Applicant) made a request under the
Freedom
of Information Act, 1982 (Cth) (
the FOI Act), seeking 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: ###.”
2. On 22 November 2019, I acknowledged this request as required under by section 15(5) of the FOI Act.
3. On 5 December 2019,
nbn’s FOI Team
informed the Applicant of the processing charges payable in
relation to this FOI request. In that same email,
nbn’s FOI Team requested that the Applicant make
payment and provided details in that regard, among other matters.
4. On 16 December 2019,
nbn’s FOI Team confirmed that
nbn’s Finance Group had received the final
processing payment in relation to this matter and subsequently emailed the final decision, releasing the
requested information in full.
5. Also on 16 December 2019, the Applicant emailed
nbn and made a series of contentions in support of a
request for
nbn to waive processing fees in relation to this FOI application. Per the Applicant’s
contentions, he had paid the processing fees so as to expedite the processing of this FOI matter. In
particular, the Applicant made the following contentions in support of the fee reduction request:
1) The scope of the request is for the number of premises mapped to Skymuster within a 25km
radius of a Capital City's GPO.
2) Any premises within 25km/h of a Capital City would not (by any reasonable definition) be
considered Regional, Rural or Remote.
3) NBNco in all it's (sic) published literature regarding Skymuster (websites and hard copies),
including social media posts by NBNco hosted on 3rd party websites and blog posts hosted on
NBNCo's websites refer to Skymuster as delivering "the nbn™ broadband access network to
homes and businesses in regional and remote Australia”
4) NBNco's CTO in a blog post dated 5 July 2017 implies that "outer suburban areas cannot be
shoved onto Skymuster - NBNco must preserve this capacity for Regional and Remote
Australians"
5) If premises within a 25km radius of a Capital City's GPO (these could reasonably be defined as
"outer suburban areas") are mapped for Skymuster, this demonstrates NBNCo are misinforming
the public in regards to how Skymuster is being used to conenct (sic) premises to NBN's network.
6) If NBNCo are misinforming the public, this is of public interest.
6. On 3 January 2020, I completed this Charges Decision and subsequently emailed it to the Applicant.
nbn’s approach to FOI processing charges 7. As outlined at section 3(4) of the FOI Act (Objects of the FOI Act), FOI agencies are expected to exercise
their functions and powers, as far as possible, to facilitate and promote public access to information,
promptly, and at the lowest reasonable cost.
8. Per paragraph 4.4 of
the FOI Guidelines, agencies should have regard to the “lowest reasonable cost to
the applicant, to the agency or minister, and the Commonwealth as a whole”, when exercising their
discretion to impose processing charges. In that context,
nbn has adopted an FOI processing fee policy,
which seeks to balance the lowest reasonable cost to applicants,
nbn and the Commonwealth, while
taking into consideration
nbn’s status as a Government Business Entity (
GBE).
9. Unlike Commonwealth Government agencies,
nbn is expected to operate as a competitive, commercial
business entity. The Shareholder Minister
s' Statement of Expectations makes it clear that:
“nbn is a commercial entity operating in a market environment and can compete and innovate like
other companies in this environment.”
10. The commercial nature of
nbn’s operations is reinforced at paragraph 1.8 of
the GBE Governance and
Oversight Guidelines (the GBE Guidelines), which indicate that a GBE’s principal objective is to add to
shareholder value. To achieve this objective, GBEs are required to operate and price efficiently; at
minimum cost for a given scale and quality of outputs; and earn, at least, a commercial rate of return.
11. Based on the above points, it is clear that
nbn has an obligation to operate according to sound
commercial and business practices. In that regard, good business practice dictates that
nbn should put a
value on the time spent by its staff and charge accordingly for its services. This reasoning applies equally
to FOI applications, which require input from dedicated FOI staff, but also the expertise and efforts of
other
nbn staff members. As FOI processing takes
nbn staff time away from core commercial activities, it
will have an impact on the company’s bottom line and its ability to meet corporate objectives. In that
context,
nbn is obliged to account for and place a value on staff members’ FOI processing efforts. To do
otherwise would tend to undermine
nbn’s obligations to operate as a commercial entity and per the GBE
Guidelines.
12. In addition, FOI processing fees are set by regulation and, in particular, the
Freedom of Information
(Charges) Regulations 2019 (Cth) (
the Charges Regulation). The two most common processing activities
are decision-making ($20/hour) and search-and-retrieval ($15/hour), which have not been increased
since the FOI Act’s inception in 1982. It is important to note that decision-making and search-and-
retrieval charges are on par with the current Australian (national) minimum wage, which is set at
$19.49/hour – per the
Fair Work Ombudsman’s website. It would not be unreasonable to assume that
commercial entities would charge significantly higher rates than the national minimum wage for
performing complex and specialised tasks, such as document discovery (i.e. search and retrieval) or for
drafting an administrative law determination.
13. In my opinion, Parliament has, in all likelihood, chosen to retain (what are effectively) below-market
rates, so as to reflect the public importance of FOI processes and their role in helping to inform public
debate. This is also reflected in the fact that Parliament has not raised FOI processing costs in nearly 40
years, which effectively provides the Australian public with access to FOI processing services at a
discount from market rates.
14. It clear that FOI processing fees are set at a discount to the actual and overall costs incurred by agencies
and GBEs, like
nbn. This assertion is reinforced by the OAI
C’s Review of Charges under the FOI Act (
the
Charges Report) at page 23, where the then-Australian Information Commissioner, Professor John
McMillian, flagged that the:
“…total amount of fees and charges collected since the commencement of the FOI Act represent
2.08% of the estimated total cost of administering the FOI Act during the same period.”
15. While not recommending a full cost-recovery model for processing fees, the OAIC reinforced the
importance of FOI fees and charges at page 5 of the Charges Report, indicating that:
“Fees and charges play an important role in the FOI scheme. It is appropriate that applicants can be
required in some instances to contribute to the substantial cost to government of meeting individual
document requests. Charges also play a role in balancing demand, by focusing attention on the scope
of requests and regulating those that are complex or voluminous and burdensome to process.”
16. In
nbn’s
Submission to OAIC in relation the Charges Report Review,
nbn outlined its support of fees and
charges. Among other points,
nbn’s key contentions include the following:
a. Government entities should be able to recoup some of their costs associated with processing FOI
requests, while providing a key public service. This is in line with user-pays principles.
b. The ability to charge for FOI processing time reflects Parliament’s and the community’s
recognition that public servants’ (and GBE staff members’) time is a valuable resource.
Moreover, such resources should only be spent in appropriate public undertakings. This
argument could be applied with even greater force to GBEs, which are expected to operate as
any other commercial player in the marketplace. Similar reasoning animates section 24AA of the
FOI Act, which enables decision-makers to refuse requests that would substantially and
unreasonably divert the resources of an agency from its operations.
c. The ability to charge for the processing of FOI applications assists in ensuring that applicants
have a serious interest in the subject matter and are likely to proceed with the application to a
final determination. Additionally, the requirement of a deposit tends to limit the scope of
preliminary work “written off” by Government entities in the event that an applicant withdraws
a request. This dovetails with the public interest in not wasting taxpayer-funded, public
resources.
17. In light of the above points, it is
nbn’s general policy to charge applicants for its FOI processing time,
subject to financial hardship grounds or valid contentions regarding the general public interest in the
specific subject matter of the FOI request. In that regard,
nbn will examine every FOI application on its
individual merits. As such, there may be grounds to exempt or reduce processing fees for a given FOI
request. In relation to the current matter, those grounds are explored below.
Public interest considerations 18. The FOI Act allows applicants to request a reduction or waiver of FOI processing fees in circumstances
where it can be shown that the release of the requested documents would be in the general public
interest or if the applicant is experiencing financial hardship. The Applicant has not provided any
evidence of financial hardship. As such, I have only considered the public interest grounds for a fee
reduction.
19. Section 29(5)(b) of the FOI Act outlines the test for granting a fee reduction on the basis of public
interest. In particular, FOI decision-makers must consider “
whether the giving of access to the document
in question is in the general public interest or in the interest of a substantial section of the public.”
20. Paragraph 4.83 of the OAIC Guidelines make it clear that the ‘public interest’ cannot be exhaustively
defined. Applicants relying on section 29(5)(b) of the FOI Act are expected to identify the ‘general public
interest’ or the ‘substantial section of the public’ that would benefit from this disclosure. Among other
issues, the OAIC Guidelines provide examples where providing access may be in the public interest,
including matters of public debate or a policy issue under discussion – and the currency of the topic of
public interest.
21.
nbn’s FOI Team generally recommends that FOI applicants support any public interest contentions with
evidence of media, Parliamentary or related coverage concerning the specific subject matter of the
requested documents or information. In that regard, the Applicant’s public interest contentions did not
refer to media, Parliamentary or related consideration of these issues.
22. Following receipt of the Applicant’s request for a Charges Review, I undertook general internet searches
and found no media or related reference to the data in the Relevant Document. At the same time, I did
find media references to the
nbn™ network connections via the Sky Muster™ satellite service in outer
suburban areas. However, those limited media references date from April 2018 and September 2019.
This suggests that there may be some public interest in the issue of deploying Sky Muster™ services in
outer suburban areas. However, it is not clear that this FOI request (and the document created as a
result of this application) would be of general public interest or add to public knowledge about that
issue. I based this finding on the relatively small data set in question, being roughly 1000 premises – as
compared to
nbn’s overall network (or even satellite service) footprint.
23. In addition, the dataset in question is one based upon Sky Muster™ satellite services within a 25km
radius of capital cities’ GPOs
. I note the Applicant’s point that this “could reasonably be defined as "outer
suburban areas." However, it is not clear how or why “25km from a capital city’s GPO” is an accurate
measure to define what constitutes an “outer suburban area”. For example, this may not be a relevant
measure for smaller capital cities, such as Hobart or for capital cities with significant variations in
topography, elevation and other natural obstacles, such as hills or valleys and bushland.
24. Furthermore, the distance from a capital city’s GPO is not necessarily an indicative measure of whether a
given premises can expect to be connected to the
nbn™ network via satellite vs. fixed line services. It is
my understanding that
nbn deploys Sky Muster™ satellite services as sparingly as possible in outer
metropolitan areas and only when premises are located too far from the fibre network or too far and/or
not in line of sight of our fixed wireless towers.
In fact, it is
nbn’s practice to limit satellite access only to
premises where other technologies are unworkable or unaffordable. These points were also noted in my
substantive decision regarding this matter (
nbn reference FOI1920/41.05).
25. It is my finding that
nbn has made its Sky Muster™ deployment processes clear in media and other
communications, which are summarised above and can be found a
t this hyperlink. On balance, it is not
clear how disclosure of the data set in the Relevant Document would be of general public interest or
increase transparency and accountability regarding the deployment of
nbn’s Sky Muster™ satellite
connections.
26. In addition, I also considered the following points in making this Charges Decision:
a. It is
nbn’s general policy to charge applicants for FOI processing time. This fact was made to the
clear in
nbn’s correspondence to the Applicant, along with
nbn’s rationale for levying charges.
b.
nbn’s subject matter experts were required to collate the information and take time away from
their core commercial functions, so as to process this request. As flagged above,
nbn is required
to operate as a commercial entity and to ensure that its staff members are engaged in
appropriate tasks that maximise corporate resources and add to shareholder value. It follows
that
nbn should be able to recover some of the reasonable costs associated with the processing
of this request and, particularly, for the time taken away from core
nbn™ network operations.
c.
nbn’s FOI processing charges are already discounted as compared to market rates – and would
not reflect the actual cost to
nbn. In addition, the fees were not significant, totalling $30. This
does also does not account for the first five hours of decision-making time, which was waived.
d. The Applicant obtained the Relevant Document and the dataset requested.
27. On balance, I have determined not to waive or reduce processing fees in relation to this FOI application.
If you are dissatisfied with this decision, you have certain rights of review. Those rights of review and
appeal are outlined in the covering letter, provided with this Statement of Reasons.
