27 November 2020
MG
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI 2021/28.06
Dear Mr Wilkinson
FOI Application - processing charges decision
This correspondence is in response to your request made under the Freedom of Information Act 1982
(Cth) (
FOI Act), particularly your email sent 27 October 2020, seeking a waiver of processing charges.
Please see the
attached Statement of Reasons outlining my decision in that regard.
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 follo
wing link, which provides details about
your rights of review and other avenues of redress under the FOI Act.
If you have any questions or need to discuss your FOI application, please feel free to contact me on (02)
9031 3022.
Yours sincerely
Rohan Singh
Senior Legal Counsel
FOI Privacy & Knowledge Management
Freedom of Information Request – 2021/28.06
Processing Charges Decision – Statement of Reasons
Background
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 network.
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. In
that light, members of the public will be able to find a large amount of information freely
available on our website at the following lin
k: http://nbnco.com.au/.
3.
nbn manages its information assets within the terms and spirit of the
Freedom of Information Act
1982 (Cth) (FOI Act). We also 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, the Chief Executive Officer of
nbn has authorised me to
make decisions about access to documents and related determinations under the FOI Act.
6.
Under section 29(8) of the FOI Act, I am required to provide a Statement of Reasons for my
decisions in relation to charges for FOI applications.
Application Chronology and Terms of Request
7.
On 1 October 2020,
nbn received an FOI request from MG (
the Applicant), in the following terms:
“On 17 Feb 2020 (in an email with "Charllick Rd" in the title), NBNCo stated the following:
"Mr Wilkinson lives in one of 15 premises on Charlick Rd, Crafers West, which have been
allocated Sky Muster™ (satellite) as their nbn™ access technology.
These 15 premises have the option of maintaining an ADSL service beyond the completion of
the NBN-ADSL co-existence period for this area. Typically, when co-existence concludes in an
area, the Downstream Power Back-Off (DPBO) is switched off.
Mr Wilkinson’s observation that this change can result in interference to ADSL services
within an area is valid. However, in the case of Charlick Rd, NBN Co has investigated options
and found that there will not be a need to turn-off the DPBO, and therefore does not intend
to do so.
This will ensure no interference to ADSL services in the area and will not affect the nbn™
access network’s ability to deliver stable broadband service which meet our mandated
speed targets to fixed line services in the area."
I am requesting the following information:
1. Identification of the "area" where NBN Co does not intend to turn-off DPBO. (Suburb
name(s) are sufficient)
2. The total number of "fixed line services in the area" affected by NBN Co's intention to not
turn-off DPBO.
("Total number" means any premises that is already connected or can potentially connect to
a NBNCo fixed line service in "the area".)”
8.
On 27 October 2020, I notified the Applicant of
nbn’s processing charges in relation to the
Applicant’s request.
9.
On 29 October 2020, the Applicant requested a waiver of the processing charges and at the same
time narrowed the scope of his request to:
“Identification of the "area" where NBN Co does not intend to turn-off DPBO. (Suburb
name(s) are sufficient).”
10.
I made this processing charges decision on the date set out above.
Findings of Material Fact
11.
As the decision maker, I made certain findings of fact in relation to the processing time required
to respond to this FOI request. In particular, I calculated a total (estimated) application cost of
$155. The calculation of the processing time took into account the time estimated to:
a.
search and retrieve the subject documents;
b.
conduct a preliminary review/reading of the documents, identifying relevant
nbn subject
matter experts (
SMEs), setting up meetings with SMEs, drafting initial considerations of
potential exemptions, commercial considerations and other related questions before
meetings with SMEs;
c.
conduct SMEs’ assessment and review, along with detailing commercial sensitivities and
confirmation of findings of facts with each SME, as well as file noting this information; and
d.
complete the decision.
12.
The total processing time included a statutory discount for the first five hours of decision-making.
In making the above estimate, I endeavoured to be as accurate as possible. In addition, I
considered paragraph 4.24 of the Office of the Australian Information Commissioner (
OAIC) FOI
Guidelines. I also took guidance from
nbn’
s previous experience in responding to requests relating
to
nbn’s commercial activities carve-out, noting that such matters tend to be complex and require
substantial assessment time by SMEs as well as review and FOI decision-making time.
13.
In making my decision, I considered the Applicant’s contentions made in the fee waiver request. I
also reviewed relevant sections of the FOI Act, the
Freedom of Information (Charges) Regulations
2019 (Cth)
(
the Charges Regulation), the FOI Guidelines, case law and other relevant sources.
Decision and Reasons – nbn’s Charging Policy
14.
Per regulation 8 of the Charges Regulation, a decision maker has the discretion to impose or not
impose a charge, or impose a reduced charge for the processing of an FOI request.
nbn has
developed an FOI charging policy in line with the FOI Act, the Charges Regulation and the FOI
Guidelines. In accordance with the FOI Guidelines at paragraph 4.3,
nbn’s does not impose FOI
processing charges in a manner that discourages applicants from exercising their rights to access.
Rather,
nbn seeks to ensure that its FOI charges fairly reflect the work involved in providing access
to documents on request.
15.
nbn adopted its charging policy in light of the company’s status as a GBE. Unlike Commonwealth
Government agencies,
nbn is expected to operate as a competitive commercial entity. The
Commonwealth GBE Governance and Oversight Guidelines (January 2018) make this clear. In
particular, the Guidelines’ “Mandate and Objectives” section indicates that the principal objective
for GBEs is to add to shareholder value. To achieve this objective, GBEs are required to operate
efficiently, at minimum cost for a given scale and quality of outputs, price efficiently and earn a
commercial rate of return, among other matters.
16.
It is clear that
nbn has an obligation to operate according to sound commercial and business
practices. In that regard, good business practice dictates that
nbn should put a value on the time
spent by its staff and charge accordingly for its services. This reasoning applies equally to FOI
applications, which require input from dedicated FOI staff, together with the expertise and efforts
of other
nbn staff members such as SMEs. As such, FOI processing takes staff time away from core
commercial activities, which by definition, impacts on
nbn’s resourcing for those core commercial
activities, and therefore its ability to meet corporate targets. In that context,
nbn is obliged to
account for and place a value on staff members’ time in respect of FOI processing efforts - to do
otherwise would undermine
nbn’s obligations to operate as a commercial entity.
17.
In relation to regulated FOI processing fees, the two most expensive activities are decision-making
($20/hour), and search and retrieval ($15/hour), which are roughly equivalent to current
Australian minimum wages. For reference -
the national minimum wage is currently $19.84 per
hour. In that context, it is reasonable to assume that commercial entities would charge
significantly higher rates for similar functions and tasks. It also follows that Government agencies
and GBEs also have much higher processing costs than those outlined in the Charges Regulation.
In fact, Commonwealth Government agencies and GBEs do incur significantly more costs than
those captured by the Charges Regulation. This was made clear in the
OAIC’s Review of Charges
under the Freedom of Information Act 1983 (Cth) (February 2012) (
OAIC Charges Review Report).
In the OAIC Charges Review Report, the OAIC indicated the FOI charges only represented 2% of
the actual costs incurred by agencies and similar bodies since the Act’s commencement in 1982.
18.
In light of the above points, entities subject to the FOI Act charge FOI processing fees at a
significant discount to the actual costs incurred. This appropriately reflects the importance of FOI
processes, particularly in respect of their role in helping to inform public debate. However, there
are a number of key public interests served by Government agencies and authorities having the
ability to charge for FOI processing time. In it
s Submission to the OAIC Charges Review, nbn
outlined its support of fees and charges and their importance to the FOI scheme, generally
reflecting the points made below.
•
Government agencies and authorities should be able to recoup some of their costs
associated with processing FOI requests, while - at the same time, providing key public
services, in accordance with user-pays principles.
•
The ability to charge for FOI processing time reflects Parliament’s and the community’s
recognition that public servants’ time is a valuable resource. Moreover, such resources
should only be spent in appropriate public undertakings. This argument could be applied
with greater weight to GBEs, which are expected to operate as any other commercial
entity in the marketplace. Similar reasoning applies to section 24AA of the FOI Act, which
enables decision makers to refuse requests that would substantially and unreasonably
divert agencies’ resources from their operations.
•
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 proceed with the application
to a final access determination. In addition, the requirement for a deposit tends to limit
the scope of preliminary work “written off” by government entities in the event that an
applicant was to withdraw an FOI request. This dovetails with the public interest in not
wasting government public resources, funded by Australian taxpayers.
•
At page 5 of the OAIC Charges Review Report, 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.
19.
In light of the above points, it is
nbn’s policy to charge applicants for FOI processing time.
However,
nbn’s charging policy also requires the company to examine every application on its
individual merits. As such, there may be grounds to exempt or reduce the processing fees for a
given FOI request. I explore those grounds further below.
Public Interest Grounds and Other Relevant Matters for Fee Reduction or Waiver
20.
Subsections 29(4) and (5) of the FOI Act detail the process that agencies must follow if an
applicant contends that processing charges should not be imposed or reduced. Those sections
read as follows:
(4)
Where the applicant has notified the agency or Minister, in a manner mentioned in
subparagraph (1)(f)(ii), that the applicant contends that the charge should be reduced or
not imposed, the agency or Minister may decide that the charge is to be reduced or not to
be imposed.
(5)
Without limiting the matters the agency or Minister may take into account in determining
whether or not to reduce or not to impose the charge, the agency or Minister must take
into account:
a)
whether the payment of the charge, or part of it, would cause financial hardship to
the applicant, or to a person on whose behalf the application was made; and
b)
whether the giving of access to the document in question is in the general public
interest or in the interest of a substantial section of the public.
21.
In addition, paragraph 4.99 of the
FOI Guidelines states that an “agency is entitled to consider
matters that weigh against those relied upon by an applicant.” Paragraph 4.99 of the FOI
Guidelines also lists a number of instances where it is appropriate to impose an FOI charge.
22.
As outlined above, I am required to consider whether the payment of the FOI charge, or part of it,
would cause financial hardship to the Applicant. I note that while the Applicant asserted that any
fees requested will cause him financial hardship, he has not provided any details of the nature or
scale of this hardship, nor any evidence of financial hardship in support of the fee reduction
request. Accordingly, I am not convinced that payment of the FOI charge would cause financial
hardship to the Applicant.
23.
The Applicant alluded to there being general public interest in the subject matter of the request
when requesting a waiver of the FOI charge. In particular, the Applicant asserted that:
“
It is in the public interest that NBN be open and honest with the public by clearly identifying
the area where NBN does not intend to switch off DPBO.
Even though their fixed line service may be capable of achieving higher speeds, by leaving
DBPO switched on in this area, the end users of NBN's fixed line network are not guaranteed a
Peak Information Rate (PIR) greater than 12/1 (as per NBN's WBA Section 3.2(c))”
24.
The determining factor for a charges review is whether disclosure will be of general or identifiable
public interest. This is known as the public interest test (
PIT). Given the scope and breadth of
nbn’s mandate, I accept that there is general public interest the rollout of
nbn services. There is
also public interest in the general subject of network speed.
25.
As to the question of whether there is general public interest in the specific information sought by
the Applicant so as to satisfy the PIT,
nbn staff reviewed various media sources. The objective
was to determine whether there was media coverage relating to the particular subject matter of
the request, being the area referred to in the relevant correspondence where
nbn did not intend
to turn DPBO off. Whilst not determinative, I find that media coverage during the preceding two
(2) quarters to the date of the request did not suggest that the relevant documents would be in
the general public interest, or in the interest of a substantial section of the public, such as people
outside the relevant area.
26.
I further note that the Applicant has revised the scope of his application. However, this would
have only a minor difference on the amount of time for
nbn staff to process the amended request
and I consider that the estimated charges are still appropriate in the circumstances.
27.
On balance, I am not persuaded that a fee reduction is appropriate in respect of this request.
Accordingly, an advance deposit of $38.75 is payable as set out in my letter dated 27 October
2020.
28.
The Applicant should note that an access decision has not yet made, nor is required to be made in
relation to any documents falling within the scope of this FOI request. In the event that the
Applicant agrees to pay the requisite processing charges in the abovementioned amount,
nbn’s FOI decision maker may still conclude that the documents are exempt from the operation of the
Act, per the commercial activities carve-out found at section 7(3) of the FOI Act.
29.
Additionally,
nbn’s FOI decision maker may conclude
nbn will not release the documents, based
upon both general and conditional exemptions, the latter of which requires
nbn to apply the
public interest test in section 11B of the FOI Act. In that regard, please note that the public
interest test found at section 11B is similar to, but different from the PIT employed for the
purposes of deciding to reduce or not impose an FOI processing charge.
30.
The Applicant should be aware that 26 days out of 30, had passed at the point at which this
application was suspended to request an advance deposit. If dissatisfied with this decision, the
Applicant has certain rights of review. I have included details regarding your rights of review and
appeal in the covering letter provided with this Statement of Reasons.
*****
