3 February 2020
Mr Tim McBride
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1920/60.02
Dear Mr McBride
Request for Information
I am writing in relation to your correspondence to
nbn’s FOI Officer email address on 20 January 2020 seeking:
“
GeoGSON or CSV/TSV data of the status (planned, construction or available) and technology type
(described above) on a per site / premises level, nationally.”
The
Freedom of Information Act 1982 (Cth) (
FOI Act) provides that members of the public have a general right of
access to specific documents, subject to certain exemptions. Und
er section 15(2) of the FOI Act, a valid FOI
request must state that the request is an application for the purposes of the FOI Act and provide such information
concerning the requested documents as is reasonably necessary to enable
nbn to identify them, among other
things.
Notice and Scope of Request
Your request seeks certain data on a per site/premises level, nationally, however, the subject timeframe in
respect of which the data relates is not defined. In addition, your request does not indicate the data required to
identify the “site/premises”, i.e. it is unclear if you are referring to a street address (alone) or a latitude and
longitudinal reference, or both. Further, your request relates to “GeoGSON”, but I assume this should be
“GeoJSON” – please confirm.
As currently drafted, the terms of your request are not sufficiently clear and the particular documents that fall
within the parameters of the request are therefore not reasonably identifiable. Accordingly,
nbn cannot process
your FOI request in its current form. Until you clarify those terms,
nbn will not formally acknowledge your
request, and the statutory period for completing this request will not commence.
nbn’s Commercial Activities Carve-out I refer you to the commercial activities carve-out (
the CAC) from the application of the FOI Act and refer you to
section 7(3A) and
Part II of Schedule 2 of the FOI Act. Please be aware that documents that are in relation to
nbn’s “commercial activities” are not subject to the operation of the FOI Act and would be exempt from release
or consideration under the FOI Act. The following link summarises and provid
es general background information
concerning
nbn’s commercial activities carve-out. That background document references two reviews by the
Australian Information Commissioner that considered
nbn’s CAC: th
e Internode Decision (in January 2012) and
the Battersby Decision (in July 2013). While I am not making a formal decision and have not reviewed any
documents, I note that there is a distinct possibility that documents falling within the terms of this request may
be subject to the CAC, among other exemptions from release.
For your reference,
nbn has previously made findings that its mapping data, which would be included in the
subject of this request, related to its commercial activities.
nbn has not made a formal decision regarding the
release of map details. However,
nbn’s FOI Team provided submissions to the Office of the Australian Information
Commissioner (
OAIC) in a Fee Charges Review that rollout map details related to
nbn’s commercial activities.
Among other reasons,
nbn obtained the data pursuant to commercial arrangements with third party suppliers
and the information had inherent value to
nbn and other commercial parties.
Further,
nbn is a wholesale supplier of broadband services, which are sold to individual end-users through various
retail service providers (
RSPs), such as Telstra, Optus, iiNet, TPG, etc.
nbn provides the relevant mapping data to
RSPs on a secure portal and on a confidential basis.
nbn shares certain mapping data with RSPs to assist them to
plan their marketing campaigns. For that and other reasons,
nbn considered that certain mapping and rollout
data related to
nbn’s commercial activities.
In addition, it is important to note that
nbn has, in the past, received request for prospective rollout information.
Per
nbn’s FOI decision 1415/01.13, published on the Right-to-Know website,
nbn refused access to such
information on the basis of the commercial activities carve-out.
FOI Processing Period and Charges
The statutory period for processing an FOI application is 30 days, subject to any suspension of the processing
period or extension of the time for deciding the application. Please also note that
nbn may impose processing
charges in relation to FOI requests. You will be advised 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 following hyperlink outlines
nbn’s approach to processing charges:
Submission to the Office of the Australian Information Commission
er Charges Review. In particular,
nbn supports
– and will generally apply – Recommendation 24 in th
e Hawke Review into FOI Legislation, (
the Hawke Review) as
a benchmark in reviewing FOI applications. For your reference, Recommendation 24 suggests a 40-hour ceiling for
all FOI processing charges. More information about charges under the FOI Act is available on the OAIC’s website
and in part 4 of the OAI
C FOI Guidelines.
Disclosure Log
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 redactions as per section 11C of the FOI Act. For further information and other details, please visit our
Disclosure Log on
nbn’s website.
Please feel free to contact me if you have any questions, or if you would like to discuss your request.
Yours sincerely
Rohan Singh
Senior Legal Counsel
FOI Privacy & Knowledge Management
