24 January 2020
GPON
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1920/57.02
To whom this may concern:
FOI Application
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:
“Please release internal standard operating procedures (SOPs), processes, guidelines that are
published on NBN Intranet that relates to classification of documentation, release of information to
the public, social media policy and use, security clearance and training.
By published
HTML pages
PDF Documents
Word or Excel Documents
By Intranet - any internal pages accessed with a web browser and accessible to a staff.”
Scope of request
Under the FOI Act, members of the public have a general right of access to specific documents, subject to
certain exemptions. P
er section 15(2) 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, this application is not sufficiently clear to enable
nbn to commence
processing it. This is because it is difficult to identify all relevant documents, which you are seeking, noting
that you have requested “SOPs, processes and guidelines.” It is not clear what is specifically meant by SOPs
and processes.
However, it would appear that you are seeking (what is, in effect)
nbn’s internal policies or guidelines
governing
nbn staff member’s conduct and in relation the following categories:
1. Classification of documentation;
2. Release of information to the public;
3. Social media policy and use; and
4. Security clearance and training.
In addition, your request appears to be seeking virtually any document that is accessible to
nbn staff via its
intranet, noting that you referred to HTML pages as well as PDF, Word or Excel documents (
PWE
Documents). While it would be relatively straightforward to identify PWE Documents, it would not possible
nbn-Confidential: Commercial
to identify with certainty all relevant HTML documents, particularly noting that your request is seeking (in
effect) all documents that “relate to” the four categories noted above.
In circumstances where the scope of an FOI application is unclear,
nbn will neither formally acknowledge, nor
commence the processing of that request. Until you clarify the terms of this request, the statutory time
period for
nbn to complete this FOI application will not commence.
In addition,
nbn would likely require significant time and resources to process this request in its current form.
Unless you clarify your request, I would also consider it to be an unreasonable division of
nbn’s resources to
process your request at the current time (refer to
sections 24 and
24AA of the FOI Act). This is because there
are various types of documents that may fit within the scope of your request, as flagged above.
I would ask that please clarify what specific document or set of documents, you require, e.g. a formal
(internal policy) document. It would also assist if you would exclude documents that are likely to be exempt
under the FOI Act. In that regard, please refer to my comments, below, concerning
nbn’s commercial
activities carve-out (
CAC). I also refer you to
nbn’s approach to FOI processing charges, below, when
reconsidering the scope of this request.
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.
Previous FOI requests for internal nbn policies, procedures, guidelines and training
It is important to note that
nbn reviews every FOI application on its individual merits. While I have not yet
identified any relevant documents, nor have I begun to assess documents in relation to this FOI request, it is
important to note that
nbn has made findings that its internal policies, guidelines and standards relate to
nbn’s commercial activities and are not subject to the FOI Act. Please note the following points:
•
nbn design standards – I refer you to
nbn’s decision and other correspondence published on the RTK
website regardin
g nbn MTM design standards (FOI1819/116). Among other reasons,
nbn refused access
to its design standards and related documentation on the basis of the CAC, noting that these documents
are not published externally; are confidential; relate to internal
nbn business processes and constitute
nbn’s intellectual property, among other commercial factors.
• Social media protocols - In relation to an FOI request fo
r social media protocols (FOI1920/29),
nbn did
not complete a formal decision. However,
nbn’s FOI Team flagged the following:
nbn-Confidential: Commercial
“In relation to scripts and social media protocols, I note that such documents are a core part of nbn’s
– and any company’s – outward or client facing communications efforts. These types of corporate
communication efforts involve a significant number of staff members and a large investment by nbn.
In that regard, nbn has refused access to similar documents, noting that they are part of an iterative
communications strategy that assists in building nbn’s brand and corporate image. In previous FOI
decisions, nbn also noted that non-government businesses closely guard corporate communications
strategies, so as to protect their corporate messaging and strategic protocols from competitors, while
promoting their brand and advancing strategic corporate objectives.
Disclosure nbn’s social media strategy would almost certainly put nbn at a strategic disadvantage to
other parties in the market and particularly those which are not subject to the FOI Act. Accordingly,
disclosure could potentially undermine nbn’s ability to function as any other commercial player in the
marketplace, thereby potentially subverting Parliament’s intention in providing nbn with the CAC.”
• Human resources (HR) policies, guidelines and training materials –
nbn has previously received FOI
requests for a variety of (internal) human resources policies, guidelines and training materials. In relation
to those matters,
nbn made findings that these documents constituted
nbn’s intellectual property; were
confidential documents; were not to be published externally; and related to
nbn’s commercial activities.
More generally, HR policies, protocols, guidelines and training may be considered as relating to the
effective management of
nbn staff. In that regard,
nbn’s FOI Team has made findings that the successful
management of staff is also closely linked to
nbn’s efforts in meeting its corporate objectives as a
Government Business Entity (
GBE), as well as the company’s ability to make a commercial rate of return
for our Shareholder Ministers. As such, there is a strong possibility that documents which you are seeking
may fall within the meaning of
nbn’s CAC – and not be subject to the FOI Act.
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 an 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 Office of the Australian Information Commissioner (
OAIC)
Charges Review. More
information about charges under the FOI Act is set out in part 4 of the OAI
C FOI Guidelines.
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
