25 September 2020
Felix Friedlander
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI 1920/92.10
Dear Mr Friedlander
FOI Act Application – Access Decision
I am writing in relation to your application
made under the
Freedom of Information Act, 1982 (
FOI Act) seeking
access to the location of
nbn’s FTTN node cabinets.
The Statement of Reasons (
attached) outlines the specific terms of the FOI request, the decision-maker’s findings
and the access decision.
An FOI decision may be reviewed, subject to sections 53A and 54 of the FOI Act. Please refer to the Office of the
Australian Information Commissioner’s website at the following
link, which provides details about your rights of
review and other avenues of redress under the FOI Act.
Please feel free to contact me on (02) 9031 3022 if you have any questions, or if you would like to discuss your FOI
application.
Yours sincerely
Rohan Singh
Senior Legal Counsel
FOI Privacy & Knowledge Management
FREEDOM OF INFORMATION REQUEST – FOI 1920/92.10
25 September 2020
ACCESS DECISION
STATEMENT OF REASONS
Background – nbn and the FOI Act
1.
nbn is a government business enterprise (
GBE), which has the mandate of realising the Australian
Government’s vision for the development of Australia’s new broadband infrastructure.
2.
nbn recognises that information is a vital and an invaluable resource, both for the company and for the
broader Australian community. That is why
nbn fosters and promotes a pro-disclosure culture, with the
goal of creating an organisation that is open, transparent and accountable. To that end,
nbn makes a large
amount of information freely available to the public on our website
: http://nbnco.com.au/.
3.
nbn also manages its information assets within the terms and spirit of the
Freedom of Information Act 1982 (the
FOI Act). We endeavour to release information proactively, while taking into account our
commercial and other legal obligations.
4.
Subject to relevant exemptions, the FOI Act gives the Australian community the right to access documents
held by Commonwealth Government agencies, as well as “prescribed authorities” such as
nbn.
5.
Under subsection 23(1) of the FOI Act,
nbn’s Chief Executive Officer authorises me, to make decisions
about access to documents and related matters under the FOI Act.
6.
Under subsection 26(1) of the FOI Act, I am required to provide a Statement of Reasons for my decisions
in relation to FOI applications. I am also required to set out my findings on any material questions of fact,
referring to the material upon which those findings were based. Those findings are outlined below.
Application Chronology and Scope of Request
7.
On 22 June 2020,
nbn received an email from Felix Friedlander (the
Applicant) making an application
under the FOI Act requesting:
“a copy of an electronic document (spreadsheet, database extract, or similar) showing the
location and distribution area (a string of the form [four letters]:[number]) of all existing FTTN
cabinets.”
8.
On 8 July 2020,
nbn asked for clarification so as to comply with the provisions of section 15(2) of the FOI
Act.
9.
On 12 July 2020, the Applicant clarified his definition of “
distribution area”.
10.
On 29 July 2020,
nbn asked for further clarification so as to comply with the provisions of section 15(2) of
the FOI Act.
11.
On 2 August 2020, the Applicant clarified his desired format of location data, therby agreeing to amend
the scope of the request to:
“
a copy of an electronic document (spreadsheet, database extract, or similar) showing the location,
expressed as a street address, and distribution area (a string of the form [four letters]:[number]) of all
existing FTTN cabinets as at 22 June 2020”.
12.
On 20 August 2020, I confirmed:
a. the scope of the Applicant’s request as required by section 15(5) of the FOI Act;
b. the processing period commenced the day after receipt of confirmation of the scope of the
request;
c. a processing charge was payable;
d. an advance deposit request in the sum of $45.62, based on a fee estimate of $182.50;
e. the materials within the scope of this FOI request could potentially fall within the
nbn
Commercial Activities Carve-out (
CAC) provided under section 7(3) of the FOI Act, placing subject
materials outside the application of the FOI Act (among other exemptions from release). I also
provided the Applicant with information relating to
nbn’s CAC, together with relevant links
containing background information and OAIC reviews; and
f. 16 days of the processing period had transpired as at the date of that correspondence.
13.
On 19 September 2020, the Applicant paid an advance deposit, in the sum of $45.62.
14.
On the date set out above, I made my access decision, as outlined below.
Findings on material questions of fact
15.
Under section 3(1)(b) of the FOI Act, the public has a right to seek access to “documents” rather than to
discrete bits of information. However, section 17 of the FOI Act enables
nbn to provide applicants with
information where such information is not available in a discrete written form but it is
“ordinarily
available to the agency for retrieving or collating stored information”. In that regard, I received advice
from
nbn staff that it would be possible to create a document containing the information within the scope
of the current request (
Relevant Information).
16.
I have consulted with
nbn’s relevant subject matter experts (
SMEs) in relation to the Relevant
Information.
nbn’s SMEs prepared a sample of the Relevant Information, comprising a dataset containing
number of rows of the Relevant Information. I find that this sample is representative of the entire
dataset, and sufficient for me to make this access decision as it contains all data attributes or fields for the
rows given.
Access Decision
17.
In undertaking my review of the Relevant Information, it is my view, having regard to the nature and
subject matter of the request and the relevant provisions of the FOI Act, that one or more exemptions to
release are applicable, as outlined below.
18.
In making my decision, I took into account relevant parts of the FOI Act and related legislation, the Office
of the Australian Information Commissioner (
OAIC) FOI Guidelines, relevant case law and other sources.
19.
The Relevant Information relates to
nbn’s commercial activities, being the siting, and installation, or
potential installation of network infrastructure employed by
nbn for the delivery of its services.
Accordingly,
nbn’s Commercial Activities Carve-out (
CAC), enlivened under section 7(3A) of the FOI Act, is
applicable in respect of this request.
20.
From the terms of the request, it is apparent that the Applicant seeks information that identifies the
location of a significant component part of
nbn’s network infrastructure, being all of the nodes used in
nbn’s FTTN technology network. I find that the Relevant Information sought by the Applicant has the
potential to compromise the security of the
nbn™ network and, therefore, the Commonwealth, if
released.
21.
There are legitimate security concerns and risks attendant to the release of document(s) depicting or
identifying sites where
nbn network equipment is, or may be, placed. For instance, the disclosure of such
documents could potentially increase
nbn’s vulnerability to physical and other attacks (whether from
hackers, vandalism, criminal elements or terrorists), each of which would, or could reasonably be,
expected to cause damage to the security of the Commonwealth.
22.
Were such a document to be released, this precedent could oblige
nbn to release the details of the
location of network infrastructure, in future.
23.
Additionally, were similar information to be disclosed to that requested by the Applicant,
nbn may be
required to increase the level of security associated with or applied to the network, as well as providing
for increased security costs in its budget and commercial planning. This could conceivably lead to cost and
time overruns, which could adversely impact
nbn’s profitability.
For this reason, I find that the Relevant
Information is subject to the CAC and accordingly I refuse access to the Relevant Information.
24.
It is unnecessary to consider any further exemptions in light of my determination that the Relevant
Information fall within the meaning of the CAC. Without limiting the foregoing, there are other grounds
upon which access to the Relevant Information could potentially be refused. In my opinion, the Relevant
Information would also be exempt from release on the basis of the following sections of the FOI Act:
a. s47 (documents disclosing commercially valuable information) of the FOI Act;
b. s47D (substantive adverse effect on the financial or property interests of the Commonwealth);
and
c. s47G (business, commercial or financial affairs).
25.
However, I have determined not to provide reasons in relation to those general and conditional
exemptions.
Decision-making Time and Fees
26.
nbn staff spent time searching for the Relevant Information in order to respond to the request, being
approximately 2 hours. Additionally, I have spent approximately 8 hours in drafting and finalising this FOI
decision, in addition to completing relevant correspondence in respect of the request.
27.
No fees are levied for the first five hours of FOI decision-making time and accordingly no fees are payable
in respect of the decision-making time in this instance.
28.
As fees are not levied for the first five hours of FOI decision-making time, the fees payable would be $90.
This is based on 8 hours of decision-making time (8-5 hours = 3 hours x $20 = $60) and 2 hours (2 x $15 =
$30) of search time.
29.
It is
nbn’s general policy to charge applicants for FOI processing time. In its
Submission to the OAIC
Charges Review, nbn outlined its support of fees and charges and their importance to the FOI scheme.
30.
Among other points,
nbn highlighted the following issues:
a. Government agencies and authorities should be able to recoup some of their costs associated
with processing FOI requests, while providing a key public service. This is in line with user-pays
principles and that users should share in the cost of service provision;
b. The ability to charge for FOI processing time reflects the Commonwealth Parliament’s and the
community’s recognition that public servants’ time is a valuable resource and that such resources
should only be spent in appropriate public undertakings. Similar reasoning animates section 24AA
of the FOI Act, which enables decision-makers to refuse requests that would substantially and
unreasonably divert the resources of an agency or Government Business Entities (GBEs) from
their operations;
c. The above contention, along with the need to utilise resources efficiently, may be applied with
even greater force to GBEs, which are expected to operate as any other player in the commercial
marketplace;
d. The ability to charge for the processing of FOI applications also ensures that applicants have a
serious interest in the subject matter and are likely to see the application to a final determination.
In that regard, processing fee payments and advanced deposits tend to limit the scope of
preliminary and other similar work typically “written off” by Government entities in the event
that an applicant withdraws a request. This dovetails with the public interest in not wasting
government and – taxpayer funded – public resources; and
e. At page 5 of the Office of the Australian Information Commissioner’s (the OAI
C) Review of
Charges under the FOI Act 1983, the OAIC reinforced the importance of fees and charges,
outlining that “
Fees and charges play an important role in the FOI scheme. It is appropriate that
applicants can be required in some instances to contribute to the substantial cost to government
of meeting individual document requests. Charges also play a role in balancing demand, by
focusing attention on the scope of requests and regulating those that are complex or voluminous
and burdensome to process”.
31.
Notwithstanding the above, given that I was able to base my decision on a sample of the dataset, rather
than the entire dataset comprising the Relevant Information, together with
nbn’s commitment to
transparency, I have decided to now exercise my discretion to waive the remainder of the applicable fees.
This equates to a reduction in the applicable fees payable by the Applicant of $44.38, such that fee levied
in respect of the request is the amount of the advance deposit only, being $45.62. Accordingly, no further
sum will be payable.
32.
If you are dissatisfied with this decision, you have certain rights of review. Details regarding your rights of
review and appeal are outlined in the covering letter, provided with this Statement of Reasons.
*****
