9 April 2020
MG
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1920/70.02
Dear MG
Request for Information
I am writing in relation to your correspondence to
nbn’s FOI Officer email address on 27 March 2020 seeking:
“
Any correspondence sent to (or from) members of NBNco Government Relations Team discussing:
Downstream Power Back Off (DPBO);
NBN-ADSL co-existence;
interference with (or to) ADSL services.
Please limit this search between the following dates 1 December 2019 to 28 Feburary 2020.” [
sic]
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 “
Any correspondence …” to or from
nbn’s Government Relations team “
discussing” the topics
listed in your email.
The term “
any correspondence” is imprecise as it could refer to a single piece of correspondence or all
correspondence that meets other criteria given. If it is a reference to “all correspondence” this could be a very
large volume of materials.
The term “
discussing” is also imprecise as it does not specify the degree of connection between the subject
matter and the content of the correspondence. This could include correspondence that merely makes a passing
reference to the subject matter, or in which the subject matter is the sole topic of the content. In addition,
“
discussing” could mean only a back-and-forth between two or more individuals, and could exclude
correspondence which in which information is sent “one way” with no element of discussion.
It is possible that a piece of correspondence could “
discuss” the relevant subject matters without using the
precise terms used in your request, and you have not limited the relevant correspondence to email
correspondence. It would therefore not be possible to conduct keyword searches electronically, and
nbn staff
would have to undertake manual searches through all of the relevant team’s hard copy, digital and email records
for the relevant period and assess whether each piece of correspondence deals with a relevant subject matter.
Furthermore, “
interference with (or to) ADSL services” does not indicate what sort of interference is referenced.
Is this intended to reference interference from a specific source, such as interference from fixed line
telecommunications services, interference from devices (and whether such devices are on ADSL services external
to ADSL networks or not), some other form of interference, or interference in general. Could you please specify
this.
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, your FOI request, in
its current form, is invalid. Until you clarify those terms,
nbn will not formally acknowledge your request, and the
statutory period for completing this request will not commence.
Thank you for specifying that personal information is to be removed. As you have requested correspondence, all
relevant documents are likely to have personal information which will have to be removed, and this will add to
the processing time.
In light of the time likely to be required to process this request in its current form, I am also of the opinion that it
would most likely be an unreasonable diversion of
nbn’s resources,
per 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 a starting point, it may be helpful to specify only electronic correspondence meeting containing specific search
terms that you provide.
nbn’s Commercial Activities Carve-out I refer you to
nbn’s commercial activities carve-out (
the CAC) or carve-out from the application of the FOI Act and
refer you to
section 7(3A) an
d 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. 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:
the Internode Decision (in January 2012) and th
e 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.
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 availab
le in Fact Sheet 7 on the
Office of the Australian Information Commissioner’s (
OAIC) 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 via email 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
