24 December 2019
Mr Timothy Nothdurft
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/48.05
Dear Mr Nothdurft
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 information, being:
“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.”
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 (
OAIC) website at the follo
wing link, which provides details about
your rights of review and other avenues of redress under the FOI Act.
I note that you have already requested a review of my preliminary fee estimate, which I have confirmed in
the Charges Decision, below. As flagged previously,
nbn will assign an Internal Reviewer in due course and
provide you with an Internal Review of this fee decision.
If you have any questions or need to discuss your FOI application, please contact the writer via email on
xxxxxxxxxxx@xxxxx.xxx.xx. Yours sincerely
David Mesman
General Counsel
FOI Privacy & Knowledge Management
FOI APPLICATION – FOI CHARGES DECISION
FOI1920/48
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. A summary of OAIC and Administrative Appeals
Tribunals decisions concerning
nbn’s commercial activities carve-out (
CAC) may be found at the following
link –
CAC Background Information.
Application, Chronology and Terms of Request 3. On 30 November 2019,
nbn’s FOI Team received an email from Mr Timothy Nothdurft (
the Applicant) via
its xxxxxxxxxx@xxxxx.xxx.xx account in the terms below.
“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.”
4. On 6 December 2019,
nbn’s FOI Team acknowledged the Applicant’s current request and provided
the Applicant with an advance deposit request of $41.88. This was based upon a processing fee
estimate of $167.50, reflecting 13 hours of decision-making time and one half hour for search and
retrieval.
5. On 7 December 2019, the Applicant reverted to
nbn, indicating the following:
“The cost around retrieval and decision making is unreasonable. I would like it to be reviewed….
This is a (sic) administrative lookup that requires very little effort or diversion of resources… It
also does not compare reasonably to other FOI requests that have been carried out. It is also
unreasonable to attempt to extract Money from a public that is trying to hold NBN to account… I
would also like to request that you personally are no longer involved in any of the FOI requests
and that it is diverted to another qualified individual within the organisation. If this cannot be
actioned a suitable explanation will be required as to why?”
6. On 13 December 2019,
nbn’s FOI Team reverted to the Applicant, indicating:
“I note your request for a review of my FOI processing charges estimate (nbn’s reference
FOI1920/48). I will complete an FOI Charges Decision in due course. If my initial estimate matches
the final charges determination, I will consider your email, below, as a request for an Internal
Review of that decision. In the interim, could you please provide further particulars regarding your
contentions – that would be of assistance. I would also request that you email those contentions
directly to xxxxxxxxxx@xxxxx.xxx.xx. If I have not received any further contentions by 23
December 2019, I will proceed to a Charges Decision by 3 January 2020. If you require more time
to provide your contentions, please inform me before 2 January 2020.
For reference, the appointment of nbn’s FOI Officer, the choice of FOI decision-makers and the
processing of FOI applications are matters for nbn’s management. As outlined previously, I am
nbn’s FOI Officer and I will continue to manage nbn’s FOI requests, including this and other FOI
matters. nbn has informed you on at least six occasions of your right to make a complaint to the
Office of the Australian Information Commissioner (OAIC) if you consider any complaints to be
valid. My understanding is that you have not made a complaint to the OAIC to date. For your
reference, I have copied the OAIC’s enquiries email address. I would suggest that you direct your
concerns to the OAIC.
I again request that you refrain from posting any further personal commentary about nbn staff
members and I will relay the same request to the moderators of this website.”
7. On 23 December 2019, I noted that the Applicant had not provided any further contentions
regarding the public interest or other matters.
8. On 24 December 2019, I completed this FOI Charges Decision.
nbn’s approach to FOI processing charges 9. 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.
10. Per paragraph 4.4 of th
e 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 GBE.
11. Unlike Commonwealth Government agencies and departments,
nbn is expected to operate as a
business entity. Per paragraph 1.8 of th
e GBE Governance and Oversight Guidelines (
the GBE
Guidelines) 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.
12. 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.
13. FOI processing fees are set by regulation and, in particular, the
Freedom of Information (Fees and
Charges) Regulations (
the Charges Regulation). The two most common processing activities are
decision-making ($20/hour) and search-and-retrieval ($15/hour), which are roughly equivalent to
current Australian minimum wages. According to th
e Fair Work Ombudsman’s website, the national
minimum wage is currently $19.49 per hour. In that context, it would not be unreasonable to
assume that commercial entities would charge significantly higher rates for performing similar tasks.
It also follows that Government agencies and GBEs would have much higher processing costs than
those outlined in the Charges Regulation. In fact, Commonwealth Government agencies and GBEs do
incur significantly more costs than those captured by the Charges Regulation. This was made clear in
the OAIC’s
Review of Charges under the FOI Act (
the Charges Report). In the Charges Report, the
OAIC indicated that FOI charges only represented 2% of the actual costs incurred by agencies and
similar bodies since the Act’s commencement in 1982.
14. In light of the above points, it seems clear that FOI processing fees are set at a discount to the actual
costs incurred by agencies and GBEs, like
nbn. In my opinion, Parliament has, in all likelihood,
chosen these below-market rates, to reflect the public importance of FOI processes and particularly
for its role in helping to inform public debate. However, there are a number of key public interests
served by Government agencies and authorities having the ability to charge for FOI processing time.
In
its Submission to OAIC for the Charges Report,
nbn outlined its support of fees and charges and
their importance to the FOI scheme and that:
• 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.
• The ability to charge for FOI processing time reflects Parliament’s and the community’s
recognition that public servants’ 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 the
agency from its operations.
• The ability to charge for the processing of FOI applications also ensures that applicants have a
serious interest in the subject matter and are likely to proceed with the application to a final
determination. In addition, 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.
• At page 5 of the OAIC Charges Review Report, the OAIC reinforced the importance of fees and
charges, outlining 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.”
15. In light of the above points, it is
nbn’s general policy to charge applicants for its FOI processing time.
However,
nbn’s charging policy also requires the company to examine every application on its
individual merits. As such, there may be grounds to exempt or reduce processing fees for a given FOI
request. Those grounds are explored below.
Calculation of processing time 16. Per section 29(4) of the FOI Act, I considered your contentions that the FOI processing fees were
unreasonable. It is my finding that the fees are typical of
nbn’s FOI processing charges in similar FOI
requests.
17. In relation to the search and retrieval time, I confirmed that these fees reflected the work required
to collect the information requested (30 minutes). The majority of the (estimated) chargeable
processing time would involve decision-making (13 hours). In reviewing the processing charges, I
considered relevant (and similar)
nbn FOI decisions, as well as recent decision involving the
Applicant, one of which was the subject of an Internal Review. That Internal Review confirmed that
the processing fees were appropriately assessed and the processing fees were similar to those
assessed in the current matter.
18. It is important to note that
nbn’s FOI decision-making processes involve a preliminary assessment of
the relevant documents or data sets to determine whether they relate to
nbn’s commercial
activities. In addition,
nbn’s FOI decision-makers must undertake discussions with relevant
nbn staff
regarding any commercial or other sensitivities relating to the potential disclosure of relevant
information and any personal or business implications of release; review case law and the OAIC
Guidelines; confirm findings of fact with
nbn staff; and draft or write a comprehensive decision that
considers all the relevant steps and issues. This is in addition to reviewing other potentially
applicable exemption grounds, e.g. personal privacy, business affairs, etc. In my experience, an
estimate of 13.5 hours to complete an FOI decision is an appropriate assessment of decision-making
time for the current matter.
Public interest considerations 19. 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 the applicant is experiencing financial hardship. The Applicant has not
provided evidence of financial hardship. As such, I have only considered the public interest grounds
for a fee reduction.
20. 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.”
21. 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 provides 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. In that context,
nbn’s FOI Team generally recommends that
FOI applicants support any public interest contentions with evidence of media, Parliamentary or
related coverage concerning the subject matter of the requested documents. In that regard, the
Applicant did not refer to media, Parliamentary or related consideration of these issues.
22. I undertook general internet searches and found a significant number of media articles regarding
nbn’s Technology Choice Program (
TCP), generally. However, I was not able to find any references to
the specific issue of applications vs. conversions. This suggests that there may be some public
interest in
nbn’s TCP, broadly, but not in the issue of conversions. I also note that the Applicant has
made a very narrow request, relating to specific FSAM or Fibre-Serving-Area, which a relatively small
number of premises. It follows that this request is not likely to have a broad public interest.
23. On balance, I am not persuaded that there is a general public interest in the information requested
by the Applicant. As such, I consider that a fee waiver would not be appropriate.
24. It should be noted that
nbn has not yet made an access decision in relation to the current FOI
matter or related information or documents. Completing an FOI Charges Decision is a discrete
process from an FOI access determination. Subject to any review rights and/or if the Applicant
agrees to pay the processing charges,
nbn’s FOI decision-maker would need to complete an FOI
access decision. In that scenario, it is a possibility that the decision-maker may conclude that
relevant documents or information are exempt from the operation of the FOI Act per
nbn’s CAC, as
well as other general and conditional exemptions. In other words, the payment of FOI processing
fees does not equate to disclosure. Rather, processing fees are levied to account for the time and
effort required to complete an FOI determination.
25. The Applicant should be aware that five days (of 30) had passed at the point at which this
application was suspended for the purpose of requesting an advance deposit.
26. 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.
