24 December 2019
Mr Timothy Nothdurft
Sent via emai
l: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/53.02
nbn FOI request
I am writing in relation to your request to
nbn under the
Freedom of Information Act 1982 (
FOI Act).
Background & Request for clarification
On 25 November 2019,
nbn’s FOI Team received a request from you, seeking:
“… documents/information on how many brownfield FSAs (Fibre Distribution Areas) used aerial fibre
deployment methods or were installed on aerial assets (eg power utilities) after 2016.”
Under the FOI Act, members of the public have a general right of access to specific documents, subject to certain
exemptions. 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.
It is unclear if you are seeking a specific dataset, noting that you indicated that you are requesting
“documents/information.” It is also unclear if you are seeking a total number of brownfield FSAs (as a
denominator) and a numerator of those FSAs in which aerial assets were deployed. Further, it is unclear if you are
seeking a dataset, as described above, with aerial assets at any point within the FSA or whether
nbn used aerial
assets to connect a premises directly, etc. Please note that
nbn’s aerial assets would include poles and strands
between poles used as supporting structures for associated cabling and equipment. If you could please revert
with respect to those details and
nbn’s FOI Team will be to liaise with relevant subject matter experts within
nbn to confirm what data can (potentially) be extracted. In addition, please refer to my comments, below, concerning
the preliminary time estimates.
Per section 15 of the FOI Act, a valid FOI request must provide such information concerning the requested documents
as is reasonably necessary to enable
nbn to identify them, among other things. As currently drafted, the terms of your
request are not sufficiently clear to enable
nbn to commence the processing of your application. In circumstances
where the scope of an FOI application is unclear,
nbn will neither formally acknowledge, nor commence the processing
of such requests. Until you clarify the terms of this request, the statutory time period for
nbn to complete this FOI
request will not commence.
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 provi
des general background document
(
GB Document) concerning
nbn’s commercial activities carve-out (
CAC). The GB 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 t
he 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.
FOI Processing Period and Charges
The statutory period for processing an FOI request is 30 days, subject to any suspension of the processing period or
extension of the time period for deciding the application. Please also note that
nbn may impose processing charges in
relation to FOI requests. I will inform you of any charges in relation to your request. For your reference, processing
charges for FOI applications are set by regulation and may be found at
nbn’s website – and, in particular, its
FOI page.
The hyperlink below outlines
nbn’s approach to processing charges: Submission to the OAI
C Charges Review. More
information about charges under the FOI Act is set out in part 4 of the O
AIC FOI Guidelines. Please also note that
nbn’s subject matter experts have estimated that they will require roughly 14 hours search and
retrieval time, being six hours to build the relevant queries within
nbn’s systems, then another eight hours to validate
and extract the response. This would not include FOI decision-making time. It is also important to note that processing
fees payments do not guarantee the release of information or documents. Rather, processing fees are charged for the
processing time of an FOI application, regardless of the outcome, but subject to any fee waivers, etc. In that context, FOI
applicants should consider the possibility that information or documents requested may be subject to
nbn’s CAC or
commercial activities’ carve-out, as well as other exemptions from release.
Disclosure Log
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 redactions as per section 11C of the FOI
Act. For further information, please visit t
he Disclosure Log on
nbn’s website.
Please contact me if you have any questions in relation to the above or would like assistance to re-draft your request.
Yours sincerely
David Mesman
General Counsel
FOI, Privacy & Knowledge Management