28 April 2014
Mr Nathan Lee
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1314/48.03
Dear Mr Lee
FOI Application – Cost Benefit Analysis
I am writing in relation to your email, making a request under the
Freedom of Information Act, 1982 (
the FOI Act) “to see any
NBN Co senior exec or Malcolm Turnbull (or his office/staff) correspondence about "cost benefit analysis" since the most recent
federal election”.
Request to Clarify FOI Application
Based upon the terms you have outlined, it is unclear as to the documents that you are seeking. In particular, it is uncertain:
Whether you are seeking any correspondence:
o containing the terms “cost benefit analysis”; or
o dealing specifically with the independent cost-benefit analysis of broadband and review of the regulatory
arrangements for the National Broadband Network (
the Vertigan Review); or
o related to the Vertigan Review; or
o a combination of these matters;
Which executives you intend to cover by the scope of this request. In that regard, applicants have tended to specify the
members of NBN Co executive reporting directly to the CEO;
Whether you intend to include only correspondence between specific NBN Co senior executives and Mr Turnbull, his
office and staff; and
Whether you intend to include hard copy and email correspondence, as well as attachments to those documents,
among other matters.
On a practical level, the current request terms are likely to require NBN Co to undertake a review of the email accounts of a
significant number of employees and, in particular, a number of NBN Co senior executives. Among other sources of documents,
NBN Co’s IT Group would be required to create a set of data cubes, based upon approximately eight months of email traffic.
Those emails would need to be searched, culled for relevance and organised. That process alone would involve very significant
effort and cost. Relevant senior executives of NBN Co may also need to be involved in the consideration of the documentation,
which may be a significant interference with the performance of their usual responsibilities. Moreover, these search-related
tasks would not include the more difficult and time-consuming task of making a formal FOI decision and applying exemptions to
complex documents and factual scenarios. In that regard, it is recommended that applicants seek to limit their requests, so as to
exclude draft documents, as well as documents that are subject to legal privilege, Cabinet and other similar exemptions,
including commercial matters, as outlined below.
As per sectio
n 15(2)(b) of the FOI Act, please be advised that I cannot identify the relevant documents which you are seeking
and will not be able to commence processing this application. Until your FOI application has been clarified, this request will
remain on hold and the statutory processing period will not commence running. However, please don’t hesitate to contact me to
discuss the terms of your FOI request.
PHONE
(02) 9926 1900
FAX
(02) 9926 1901
EMAIL
xxxx@xxxxx.xxx.xx
WEB
www.nbnco.com.au
LEVEL 11, 100 ARTHUR STREET, NORTH SYDNEY NSW 2060
NBN Co Limited ACN 136 533 741 © NBN Co 2013
Processing Charges
Please also be aware that processing charges may be imposed in relation to your FOI application. In that regard, I would refer
you to NBN Co’s FOI processing charges policy, which is outlined at the following hyperlink
: Submission to the Office of the
Australian Information Commissioner Charges Review. In particular, NBN Co supports – and will generally apply –
Recommendation 24 in the
Hawke Review into FOI Legislation (
the Hawke Review), which suggests a 40-hour ceiling for all
FOI processing charges. In that context, please note that if you were seeking all documents relating to the various points
outlined above, this may constitute an unreasonable diversion of NBN Co’s resources, as p
er section 24 and section 24AA of
the FOI Act. As such, I would refer you
to section 24AB of the FOI Act, which provides for a formal request consultation process
with applicants. Please note that I have not yet begun to identify relevant documents so as to ascertain whether a request
consultation process will be necessary.
NBN Co’s Commercial Activities
There is a possibility that documents within the scope of your request may relate to NBN Co’s commercial activities and would
not be subject to the operation of the Act. In that regard, I refer yo
u to section 7(3A) and Part II of Schedule 2 of the FOI Act,
which outline the scope of NBN Co’s commercial activities exemption (
the CAE). For your reference, the Office of the Australian
Information Commissioner (
the OAIC) completed a review decision in January 2012 (
the Internode Decision), which provides
background and guidance as to the application of the CAE to NBN Co. The Internode Decision may be found by clicking on the
followin
g link. The OAIC completed an additional review at the end of July 2013 –
the Battersby Decision, which further clarified
the scope of NBN Co’s CAE. While I am not making a formal decision nor have I begun a review of relevant documents, you
should be aware that certain documents may be subject to NBN Co’s CAE and other FOI exemptions.
Disclosure Log Notification
In accordance with the FOI Act, NBN Co 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 redactions as per
section 11C of the FOI Act. For further information, visit
our Disclosure Log on NBN Co’s website a
t www.nbnco.com.au/about-
us/media/freedom-of-information/disclosure-log.html.
If you have any questions or need to discuss your FOI application, please feel free to contact the writer on Tel. (02) 8918 8596
or via email
on xxxxxxxxxxx@xxxxx.xxx.xx.
Sincerely,
David J Mesman
GM Legal - FOI and Knowledge Management
PHONE
(02) 9926 1900
FAX
(02) 9926 1901
PAGE
2
EMAIL
xxxx@xxxxx.xxx.xx
WEB
www.nbnco.com.au
LEVEL 11, 100 ARTHUR STREET, NORTH SYDNEY NSW 2060
NBN Co Limited ACN 136 533 741 © NBN Co 2013
