29 May 2014
Mr/Ms S McLaughlin
Sent via email
: xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1314/50.02
Dear Mr/Ms McLaughlin,
FOI Application – 3RES
I am writing in relation to a request made under the
Freedom of Information Act, 1982 (
the FOI Act or
the Act) and received by
the Commonwealth Department of Communications (DoC) on 26 May 2014. That request sought the following:
“I wish to find out when the area known as 3RES will receive FTTP NBN. Under the previous government the
commencement date was Q2 2014. Specifically, I request information regarding detailed design and field inspection
information, with information regarding a construction instruction (CI) being issued’
On 29 May 2014, the DoC made a request to transfer this application to NBN Co Limited (
NBN Co)
under section 16 of the FOI
Act. NBN Co accepted the transfer request on the same day. I note that your request is seeking general rollout information. In
that regard, I would refer you to NBN Co’s website and in particular
the when-do-I-get-it? webpage, which contains detailed
information concerning the progress of the rollout. You may also wish to speak with our
contact centre by calling 1800 OUR
NBN (1800 687 626).
Request to Clarify FOI Application
U
nder section 3(1)(b) of the FOI Act, the public has a right to seek access to “documents”, rather than discrete bits of
information. In relation to your request for details relating to “3RES”, it appears that your application is seeking information,
rather than a document. Despite this point
, section 17 of the FOI Act enables Government authorities to provide applicants with
information, where such information is not available in a discrete written form and where the information is “ordinarily available
to the agency for retrieving or collating stored information”. As such, it may be possible to locate relevant information,
presuming that it is in a readily extractable format, but subject to any relevant exemption claims, as outlined below.
However, it is not clear what information you are seeking by the reference “3RES”. In that regard, I am uncertain as to what part
of the country or fibre serving access module you are referencing. Similarly, I cannot begin to search for relevant design or field
inspection documentation without that information. As
per section 15(2)(b) of the FOI Act, applicants are required to provide
sufficient detail so as to enable an FOI officer to locate relevant documents. Based upon the above points, I would ask that you
clarify the terms of this FOI request. Please feel free to contact me on the numbers below to discuss this application. In addition,
I would ask that you consider the points made below in reformulating your FOI request. Please also note that the legislative time
frames for completing this FOI request will not commence until such time as those details are clarified.
Background Information
NBN Co’s approach to FOI matters is to liaise with applicants, so as to minimise processing fees incurred and to ensure that the
company completes any search & retrieval, review and FOI decision-making as efficiently as possible. In that regard, I would
refer you to NBN Co’s FOI processing charges policy, which is outlined at the following hyperlink
: Submission to the Office of
the Australian Information Commissioner Charges Review. In particular, NBN Co supports – and will generally apply –
Recommendation 24 in the
Hawke Review into FOI Legislation, (the Hawke Review), which suggests a 40-hour ceiling for all
FOI processing charges. In the event that an FOI request is likely to exceed that ceiling, NBN Co will generally initiate a request
consultation process, as
per section 24AB of the FOI Act.
PHONE
(02) 9926 1900
FAX
(02) 9926 1901
EMAIL
xxxx@xxxxx.xxx.xx
WEB
www.nbnco.com.au
LEVEL 11, 100 ARTHUR STREET, NORTH SYDNEY NSW 2060
NBN Co Limited ACN 136 533 741 © NBN Co 2013
In addition, there is a possibility that documents within the scope of this request may relate to NBN Co’s commercial activities
and would not be subject to the operation of the Act. In that regard, I refer you
to section 7(3A) and Part II of Schedule 2 of the
FOI Act, which outline the scope of NBN Co’s commercial activities exemption (
the CAE). For your reference, the Office of the
Australian Information Commissioner (
the OAIC) completed a review decision in January 2012 (
the Internode Decision),
which provides background and guidance as to the application of the CAE to NBN Co. The Internode Decision may be found by
clicking on the followin
g link. The OAIC completed an additional review at the end of July 2013
– the Battersby Decision, which
further clarified the scope of NBN Co’s CAE. While I am not making a formal decision nor have I begun a review of relevant
documents, there is a possibility that documents falling within the terms of this FOI request may be subject to the CAE and
other exemptions from release under the FOI Act.
Clarifying FOI Applications
It is generally recommend that FOI applicants limit their requests:
for documents relating to or held by specific officers within NBN Co;
to specific types of documents;
to a specific time frame; and
to exclude documents that are in draft form, legally privileged, commercially sensitive or contain confidential
materials or could be subject to clear exemptions from release, etc. I would refer y
ou to section 31A of the FOI
Act and following, which outlines relevant exemptions to release of documents under the legislation.
As outlined above, some of the information requested may fall within various exemptions from release, including NBN Co’s
CAE. This fact would likely – and significantly – increase the complexity and breadth of any access decision, along with the time
required to make such a decision and, thereby, FOI processing fees. Again, I would refer you to NBN Co’s approach to
processing charges, outlined above. In addition, your request may require NBN Co to review documents relating to NBN Co’s
commercial dealings with its business partners, suppliers and, by extension, individual staff members, past staff members, third
parties, as well Government departments in relation to policy and other issues. As a result, NBN Co may be required to
undertake formal third party consultations with these parties. Those consultations could significantly increase the review and
decision-making time needed to make an access decision under the FOI Act.
Disclosure Log Notification
In accordance with the FOI Act, NBN Co 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, visit
our Disclosure Log on NBN Co’s website a
t www.nbnco.com.au/about-
us/media/freedom-of-information/disclosure-log.html.
If you have any questions or need to discuss your FOI application, please feel free to contact the writer on Tel. (02) 8918 8596
or via email
on xxxxxxxxxxx@xxxxx.xxx.xx. Sincerely,
David J Mesman
GM Legal - FOI and Knowledge Management
PHONE
(02) 9926 1900
FAX
(02) 9926 1901
PAGE
2
EMAIL
xxxx@xxxxx.xxx.xx
WEB
www.nbnco.com.au
LEVEL 11, 100 ARTHUR STREET, NORTH SYDNEY NSW 2060
NBN Co Limited ACN 136 533 741 © NBN Co 2013
