18 May 2020
Our Ref: FOI-1920/76.02
Request for Information
I am writing in relation to your correspondence to nbn
’s FOI Officer email address on 3 May 2020 in the following
“Seeking documentation contained within any electronic of physical storage that reports on failure rate of
customer premises equipment (CPE) by technology type.
Disclosing the mean time to failure (MTF) or life expectancies for customer premises equipment Vs actually
recorded failures on equipment since 2013.
To be CLEAR.
Reports on number of CPE that has failed since 2013.
Reports on any manufacturing MTF data on all CPE types.”
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. Under 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 information related to “customer premises equipment (CPE) by technology type
reference to “customer premises equipment (CPE)
” is uncertain in the context of fixed wireless and satellite
technology types. Do you refer to the nbn
supplied network termination device box installed inside the end
customer’s home, or to the externally installed dish or antenna, or to both? If you wish to proceed with your
request, please clarify this.
In relation to technology type, do you mean all technology types used on the nbn
™ network, or only to those
listed in your request.
Your request refers to “failure rate
” of equipment. It is unclear whether this refers to failures due to malfunction
within the equipment itself, or failure of the equipment as a result of external factors, or both. Please clarify this
if you wish to continue with your request.
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. 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)
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. The following link summarises and provides general background information
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 the Battersby Decision
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
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 Commissioner Charges Review.
In particular, nbn
– and will generally apply – Recommendation 24 in the Hawke Review into FOI Legislation,
(the Hawke Review
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 in Fact Sheet 7
Office of the Australian Information Commissioner’s (OAIC
) website and in part 4 of the OAIC FOI Guidelines.
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 o
Please feel free to contact me on (02) 9031 3022 if you have any questions, or if you would like to discuss your
Yours sincerely Rohan Singh
Senior Legal Counsel
FOI Privacy & Knowledge Management