27 February 2015
Sam
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1415/37
Dear Sam,
FOI Application – NBN Rollout Terrigal and Narara
I am writing in relation to your request made under the
Freedom of Information Act, 1982 (
the FOI Act). In particular you were
seeking access to:
…all documents regarding the NBN Rollout for the suburb of Terrigal 2260 and Narara 2250 and its approximated
completion date.
Acknowledgment of Application
NBN Co received your request on 19 February 2015 and the period for processing your request commenced from the day after
that date. For your reference, the statutory period for processing an FOI request is 30 days. However, in this case we will be
undertaking a request consultation process with you as aspects of your FOI request are unclear and other aspects of your
request, in our view, amount to an unreasonable diversion of NBN Co resources for the reasons set out below. This will impact
the period for processing your FOI request.
Scope of FOI Application
As set out above, your FOI application indicates that you are seeking access to all documents regarding the NBN rollout in
Terrigal and Narara and their approximated completion dates. As you have not identified the specific documents that you are
seeking, your request would require extensive searches across all NBN Co business units which may fall within the terms of
your request. It will require NBN Co to undertake a review of the email accounts of a significant number of employees. NBN
Co’s IT Group would be required to create a set of data cubes which would need to be searched, culled for relevance and
organised. Relevant executives and senior managers of NBN Co would also need to be involved in consideration of the
documentation, which would be a significant interference with the performance of their usual responsibilities.
Please also be aware that processing charges may be imposed in relation to your FOI application. 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 OAIC 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 light of the volume of documents, I am of the opinion that it would be an unreasonable diversion of NBN Co’s resources to
commence the processing of this FOI application in its current form. In that regard, I am relying u
pon sections 24 and 24AA of
the FOI Act.
Request Consultation Process
Section 24 of the FOI Act requires NBN Co to undertake a request consultation process before issuing a notice to refuse
access. Before issuing a refusal notic
e, section 24AB of the FOI Act requires Government authorities to provide applicants with
written notice stating their intention to refuse access and to initiate a request consultation process. In that context, I request that
you review the scope of your FOI request and notify the writer by
13 March 2015 as to whether you wish to:
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
withdraw the request; or
make revised request; or
not revise the request.
If you have not notified the writer by the above-mentioned date, NBN Co will consider that this application has been withdrawn
as per section 24AB(6) of the FOI Act. In accordance with section 24AB(8) of the FOI Act, the time taken to consult with you
regarding the scope of a request is not taken into account when calculating the 30-day statutory time limit for processing FOI
applications. In addition, I would invite you to telephone the writer on the number below to discuss or clarify the terms of this
FOI application.
NBN Co’s Commercial Activities
In addition to the section 24 issues, there is a strong possibility that many of the documents within the scope of this request
would 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) a
nd Part II of Schedule 2 of the FOI Act, which outlines 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.
I also wanted to draw your attention to a recent decision NBN Co issued which related to a similar request for "instructions to
commence detailed design and inspection work" found at
https://www.righttoknow.org.au/request/664/response/2484/attach/3/19A.Final%20Access%20Decision.pdf. While I am not
making a determination nor have I examined the relevant documents in connection to your request, I thought it might be helpful
for you to understand the reasons given for not releasing those documents in that instance.
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.
If you have any questions or need to discuss your FOI application, please feel free to contact the writer on Tel. 8918 5655 or via
email
on xxxxx@xxxxx.xxx.xx.
Sincerely,
An Vo
Associate Legal Counsel FOI, Privacy & Knowledge Mgmnt
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
