6 December 2019
Mr Joshua Michael
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/47.02
Dear Mr Michael
I am writing in relation to your application
made under the
Freedom of Information Act 1982 (Cth) (
FOI Act).
The Statement of Reasons (
Attached) outlines the specific terms of your FOI request, the decision-maker’s
findings and the access decision.
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
FREEDOM OF INFORMATION REQUEST – 1920/47
ACCESS DECISION – STATEMENT OF REASONS
Background Information
1. In making this decision, I took into account relevant parts of the
Freedom of Information Act 1982 (Cth)
(
FOI
Act) and related legislation, the Office of the Australian Information Commissioner’s (
OAIC)
FOI Guidelines,
relevant case law and other applicable sources.
2. P
er section 7(3A) and
Part II of Schedule 2 of the FOI Act, documents relating to
nbn’s commercial activities are
carved-out from the application of the FOI Act. The following
link provides general background information
concerning
nbn’s Commercial Activities Carve-out (
CAC) and should be considered as an integral part of this
FOI determination.
Terms of Request & Chronology 3. On 26 November 2019,
nbn’s FOI Team received an email from Mr Joshua Michael (
the Applicant) via the Right-
To-Know website, seeking:
“… I hear from people socially that Opticomm fibre is a better internet connection than NBN fibre, however
no one can provide any sort of data, quantification, or any particular network characteristics regarding
this claim… Has NBN Co done any comparisons relating to this? Has Opticomm done any comparisons
between itself and other fibre network installers from a network characteristics comparison standpoint? I
would like those documents/presentations.”
4. On 6 December 2019, I completed this FOI access decision and subsequently forwarded it to the Applicant.
Findings on Material Questions of Fact & Access Decision
5. Following receipt of your request,
nbn’s FOI Team undertook relevant enquiries concerning this matter,
including consultations with subject matter experts within
nbn. I was informed that there are no documents
that fall within the terms of this request.
6. Per
section 24A of the FOI Act, I make a finding that
nbn staff have taken all reasonable steps to find the
requested documents and I am satisfied that they do not exist.
7. While I have not reviewed any relevant documents (noting the above ‘no documents’ decision), it should also
be noted that an analysis by
nbn regarding the relative quality of a product or service provided by a
telecommunications network builder would likely relate to
nbn’s commercial activities. If
nbn held documents
similar to those requested by the Applicant in this instance,
nbn would likely have been able to rely upon the
CAC to refuse access p
er section 7(3A) an
d Part II of Schedule 2 of the FOI Act (among other grounds).
Processing Charges
8. In this FOI application,
nbn staff spent approximately 1.5 hours searching for relevant documents, which were
subsequently found not to exist. In addition,
nbn’s FOI Team spent 4.5 hours making enquiries from relevant
nbn staff and drafting this decision. The latter processing time would not be ‘chargeable’ under the FOI Act,
as the first five hours of decision-making time are free. However, the former processing time (search &
retrieval) is chargeable and would equate to $22.50.
9. In
its Submission to the OAIC Charges Review, nbn outlined its support of fees and charges and their importance
to the Commonwealth FOI scheme. In particular,
nbn indicated that the company levied charges in line with
user-pays principles, the need to manage scarce public resources and to assist in regulating voluminous
requests. This approach also reflects
nbn’s mandate to operate as any other commercial entity and generate a
commercial return on investment for our Shareholder Ministers.
10. Normally,
nbn would charge applicants for processing fees incurred in relation to FOI requests. However, I also
considered
nbn’s commitment to the objects of the FOI Act and, in particular, section 3(4). That section outlines
that entities subject to the FOI Act should seek to facilitate and promote public access to information, promptly
and at the lowest reasonable cost. Noting that principle and that “no documents” were identified,
nbn has
determined not to impose any charges in relation to this FOI request per the
Freedom of Information (Charges)
Regulations 2019 (Cth).
Review Rights
11. If you are dissatisfied with this decision, you have certain rights of review and other avenues of redress. These
are outlined in the covering letter, provided with this Statement of Reasons.
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