16 January 2020
GPON
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1920/55.02
To whom this may concern:
FOI Application – New developments data
Thank you for your request under the
Freedom of Information Act 1982 (Cth) (
the FOI Act) sent via the Right-
to-Know (
RTK) website and which sought:
“…the total number of new development applications that have been received since 2016.
Further to above, please provide the number of new developments* since 2016 that received the following
technologies? FttP, FttN, HFC, FttC, Fixed Wireless, Other.”
Responses to Questions-on-Notice in Senate
As flagged in the covering email,
nbn has responded to requests for data in Senate Questions-on-Notice
(
QONs). In particular, I refer you to the points, below, where
nbn declined to provide information and data
concerning new developments due to commercial sensitivities.
• In response to QON No. 137 (Senate Standing Committee on Environment and Communications –
Supplementary Budget Estimates Hearings October 2016) and regarding forecasted growth rates for new
premises,
nbn indicated that due to “…infrastructure competition faced by
nbn in new developments,
planning assumptions for green fields and new premises are considered commercially sensitive.”
• In response to QON No. 220 (Additional Estimates Spill-over April 2018),
nbn indicated that the company
operates in a competitive market for new developments and, as such, “take-up rates in greenfield areas
are commercially sensitive.”
It is important to note that statements made by
nbn in the Senate are not determinative of a finding under
the FOI Act that data concerning new developments will be considered “commercially sensitive” or subject to
nbn’s commercial activities and (therefore) not subject to the FOI Act. However,
nbn’s FOI determination will
consider the QONs, mentioned above, as well as input from
nbn subject matter experts (
SMEs) in making a
finding concerning the commercial nature of the data requested. In addition, I would refer the applicant to
the points made in the paragraph entitled “
nbn’s commercial activities’ carve-out”.
FOI requests for data
Under the FOI Act, applicants have a right to seek documents, rather than information or datasets. However,
section 17 of the FOI Act 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. Noting the above points,
nbn SMEs identified relevant
nbn-Confidential: Commercial
information from
nbn’s IT systems. Those SMEs were able to produce a document in the form requested,
above, and without unreasonably and substantially diverting
nbn’s resources.
Payment Request
Per subsection 29(1) of the FOI Act, I have determined that a charge is payable in respect of the processing of
this FOI request. The applicable charges are as follows:
Search and Retrieval Time
1.75 hours @ $15.00 per hour
$26.25
Decision Making Time
12 hours @ $20.00 per hour
$240
Sub-total
$266.25
Less first 5 (or less) hours decision making time (*)
($100)
TOTAL
$166.25
(*) Per the
Freedom of Information (Charges) Regulations 1982,
nbn has not charged you for the first 5 hours of decision-making time. Please note that
this waiver of fees applies only to decision-making time, but not to other FOI processing charges, such as search & retrieval.
As the total estimated processing charges exceeds $100, a deposit of 25% ($41.56) is required. 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. It is also
important to note that a final payment is required prior to
nbn issuing its FOI decision.
Next steps
Within 30 days of this notice, you are required to:
• agree to pay the charge and make payment; 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
• withdraw your request.
If within 30 days of this notice, you fail to notify
nbn in a manner mentioned above, then your request will be
taken to have been withdrawn. If, however, you make contentions that the estimated processing charges have
been wrongly assessed, or should be reduced or not imposed, you must notify
nbn of your contentions,
providing reasons and evidence (where relevant), to support those contentions.
In deciding whether to reduce or not to impose processing charges, 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 FOI applicants wish to make general public interest contentions in support of a fee reduction, it is
recommended that they provide
nbn with media, Parliamentary or other relevant commentary referring to
the specific subject matter of the FOI request. It is also recommended that applicants refer to paragraph 4.70
of the Australian Information Commissioner’s (
OAIC)
FOI Guidelines when making such contentions.
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 and
nbn issuing a Charges Decision.
Again,
nbn will endeavour to inform FOI applicants whether FOI processing fees are likely to increase or
decrease, as compared to initial estimates. In that scenario,
nbn will generally confirm with FOI applicants
whether they would like to revise or reduce the scope of their FOI requests, among other matters.
nbn-Confidential: Commercial
Once
nbn has completed the processing of your request, the assessment of the FOI charges payable will be
revised based on the actual amount of work involved in processing your request. This is permitted by
Regulations 9 and 10 of the
Freedom of Information (Charges) Regulations 1982 (
FOI Charges Regulations).
Please note that payment of FOI processing fees does not guarantee access to documents. 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-0006
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
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.
Per section 31 of the FOI Act, the time limit for processing your request is suspended from the day upon which
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, six days
have passed,
and the processing time limit
will resume:
• On the day upon which
nbn receives your payment; or
• Alternatively, 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 makes such a decision; or
• If
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 the Office of
the 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
nbn-Confidential: Commercial
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
