6 December 2019
Mr Timothy Nothdurft
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/48.02
Dear Mr Nothdurft,
nbn FOI Request
I am writing in relation to your request under the
Freedom of Information Act 1982 (Cth) (
the FOI Act). In
particular, you were seeking the following information:
“How many Technical Choice applications (TCP) or conversions from FttN to FttP have been
undertaken (completed only) in Fibre Serving Area (FSA) 9SCU with SAM identifier 20 and the date the
service was active.”
Requests for information, not documents
Under the FOI Act, applicants have a right to seek documents, rather than information or datasets.
However, section 17 of the FOI Act also 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.
For reference, subject matter experts within
nbn were able to identify relevant information within
nbn’s IT
systems and collate the same into a new document (
the Requested Document) – and without unreasonably
and substantially diverting
nbn’s resources.
Advance Deposit Request
Per subsection 29(1) of the FOI Act, I have determined that a charge is payable in respect of processing this
FOI request. In that regard, the search and retrieval time is detailed, below.
nbn staff also completed a
preliminary assessment of the work involved in completing a formal FOI decision. Our processing charges
estimate is as follows:
Search and Retrieval Time
30 minutes @ $15 per hour
$7.50
Decision-Making Time
13 hours @ $20 per hour
$260
Sub-total
$267.50
Less first 5 hours decision making time (*)
($100)
TOTAL
$167.50
(*) Per the
Freedom of Information (Fees and Charges) Regulations,
nbn has not charged you for the first 5 hours of decision-making time.
Please note that the estimated processing time and related fees may increase (or decrease), depending on the
nature of the work required. However, I will inform you if the fees increase beyond the estimate above. As the
total estimated processing charges exceeds $100, a deposit of 25% ($41.88) is required.
nbn-Confidential: Commercial
Next steps
Within 30 days of this notice, you are required to:
• agree to pay the charge and forward the deposit; or
• contend that the charge has been wrongly assessed, or should be reduced or not imposed (you should
provide full reasons for your contentions); or
• narrow the scope of your request (which may reduce the charge payable); 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.
You may wish to refer to paragraph 4.70 of the Office of the Australian Information Commissioner’s (
OAIC) FOI
Guidelines to assist in that regard. 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. Please also refer to nbn’s guidance regarding FOI processing
fees, found at the following link and the points, below, concerning nbn’s commercial activities. 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-0004
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
nbn-Confidential: Commercial
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.
As set out above and 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, five days
have passed in the processing
period for this FOI application and the processing time limit will resume:
• On the day upon which
nbn receives your deposit; or
• Alternatively and 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 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
