4 June 2014
Mr/Ms S McLaughlin
Sent via email
: mailto:xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1314/62.03
Dear Mr/Ms McLaughlin,
FOI Application –
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 29 May 2014. That request sought the following:
“I wish to obtain a document containing the number of proposed FSAMs and an approximate "Construction Instruction" for
FSAMs for Victoria, Australia a) a contract instruction to commence "detailed design and field inspection work" has been
issued to NBN Co's delivery partners ** b) a contract instruction to commence "build work... consistent with the completed
Detailed Design Document" has been issued to NBN Co's delivery partners ** between 1st January 2014 up until 31st
December 2014 for the purposes of the NBN Co Brownfields Fibre build.
** as defined in Monthly Ready for Service plans”
On 30 May 2014, the DoC made a request to transfer this application to NBN Co Limited (
NBN Co) und
er 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 parti
cular 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
Under section 3(1)(b) of the FOI Act, the public has a right to seek access to “documents”, rather than discrete bits of information.
Drawing from the terms of the request above, 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 in relation to the phrase
“proposed FSAMs”, nor in relation to the phrase “approximate construction instruction” as you appear to be referencing prospective
instructions that have not yet been issued.
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. In addition, NBN Co recently released details of the coverage areas for 8 Victorian FSAMs in its
Disclosure Log, found at the foll
owing link. It may be of assistance to refer to the language in that request to assist you in clarifying
this application. 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 hyper
link: Submission to the Office of the Australian
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
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 pe
r section
24AB of the FOI Act.
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 t
o 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 or a
re deliberative materials, 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, visi
t our Disclosure Log on NBN Co’s website
at 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
ema
il 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
