19 December 2022
Alex Sullivan
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
nbn ref: FOI2223024.003
Dear Alex
Request for Information
I am writing in relation to your correspondence to
nbn’s FOI Officer email address on 5 December 2022 seeking:
“
any relevant documents relating to the current progress of the NBN's ongoing expansion of Fibre to the
Premises (FTTP) technology, as of 5 December 2022. This includes progress reports, the number of
premises connected, and number of homes eligible for the upgrade.”
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. Und
er 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.
nbn’s Commercial Activities Carve-out I refer you to
nbn’s commercial activities carve-out (
CAC) or carve-out from the application of the FOI Act and
refer you to
section 7(3A) an
d 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 provid
es general background information concerning
nbn’s
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 th
e Battersby Decision (in
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.
Scope of Request
Your request seeks “
any relevant documents relating to …”
nbn’s relevant network “
expansion”. Although you
have indicated that this includes “
reports”, it is still not clear what documents your request covers and what it
does not cover. By “
any relevant” documents, are you intending to capture all documents in the category of
interest, or only a single document? This issue may have a bearing on what “
relating to” the subject matter
means in this context. That is, “
relating to” could mean documents directly related to the subject matter, or
alternatively it could mean documents that have any relationship to the subject matter. Alternatively, strictly
interpreted, this wording could potentially encompass a very broad range of documents.
Your request refers to
nbn’s “
ongoing expansion of Fibre to the Premises (FTTP) technology”. Is this a reference to
the use of FTTP technology more broadly, or is it a reference to
nbn’s upgrade of FTTN technology to FTTP
technology only?
Your request makes reference to “
the number of premises connected, and number of homes eligible for the
upgrade”. Are these the only data types that you are seeking as at the relevant date?
In relation to the relevant date of 5 December 2022. Does this refer to data as at a date on or around 5 December
if data for that precise date is not readily available?
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. In that regard, please inform me if there is a
specific document, or set of documents, which you are seeking – at least to the extent that you can identify them.
In light of the time likely to be required to process this request in its current form, I am also of the opinion that it
would most likely be an unreasonable diversion of
nbn’s resources,
per sections 24 and
24AA of the FOI Act. This
is because there are various types of documents that may fit within the scope of your request. Moreover, a
request for “all documents” would require
nbn staff to undertake searches through all of its hard copy, digital and
email records of more 5000 staff members and a significant number of consultants working with
nbn.
As a starting point, it may be helpful to specify a given work area at
nbn. Otherwise, I would be happy to discuss
how to best clarify the scope of the request – and feel free to call me on the number below.
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’s
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 Commission
er Charges Review. In particular,
nbn supports
– and will generally apply – Recommendation 24 in th
e Hawke Review into FOI Legislation, (
the Hawke Review) as
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 on the Office of the
Australian Information Commissioner’s (
OAIC) website and in part 4 of the OAIC
FOI Guidelines.
Disclosure Log
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 on
nbn’s website.
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Please feel free to contact me on (02) 9031 3022 if you have any questions, or if you would like to discuss your
request.
Yours sincerely
Rohan Singh
Freedom of Information Officer
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