6 December 2019
Mr Joshua Michael
Sent via email: [FOI #5952 email]
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, w
hich 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 [email address].
Yours sincerely David Mesman
FOI Privacy & Knowledge Management
FREEDOM OF INFORMATION REQUEST – 1920/47
ACCESS DECISION – STATEMENT OF REASONS
1. In making this decision, I took into account relevant parts of the Freedom of Information Act 1982
) and related legislation, the Office of the Australian Information Commissioner’s (OAIC
) FOI Guidelines,
relevant case law and other applicable sources.
2. Per section 7(3A) an
d Part II of Schedule 2 o
f 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
’s Commercial Activities Carve-out (CAC
) and should be considered as an integral part of this
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
similar to those requested by the Applicant in this instance, nbn
would likely have been able to rely upon the
CAC to refuse access per section 7(3A)
and Part II of Schedule 2
of the FOI Act (among other grounds).
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
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
determined not to impose any charges in relation to this FOI request per the Freedom of Information (Charges)
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.