Dear Ben

 

Thank you for your email attached, seeking access to information under the
Freedom of Information Act 1982 (the FOI Act).

 

As a starting point, I would point out that nbn invests considerable time
and resources into providing a publicly available rollout map and 3 year
construction plan on our website, which may assist you. To view the
rollout map, please visit:
[1]http://www.nbnco.com.au/connect-home-or-...,
and to view the construction plan, please visit:
[2]http://www.nbnco.com.au/learn-about-the-....

 

Further, nbn issued an FOI access decision in response to an FOI request
(FOI1415/01) that is similar to part of your request below, which you can
view at the following link
([3]https://www.righttoknow.org.au/request/6...).
That decision related to an application seeking rollout information
(detailed design and field inspection work documentation), among other
matters. In particular, the documents contained prospective rollout
coverage information that had not then been finalised. Further, as part of
nbn’s decision in FOI1415/01.13, my colleague determined that the relevant
documents fell within nbn’s commercial activities carve-out from the
application of the FOI Act. While I am not making a formal decision with
respect to your FOI request, nor have I formally reviewed any relevant
documents, there is a strong possibility that the reasons provided by the
decision maker in the previous FOI decision could apply equally to
documents falling with the scope of your request.

Scope of request

While it may be possible that we hold information that relates to your
request broadly, I will need to confirm with our business units. nbn has
more than five thousand full, part time and temporary staff members and
your request in its current form would require nbn to undertake searches
with many of those individual staff members.

In light of the time likely to be required to process this request in its
current form, I am of the opinion that it would be an unreasonable
diversion of nbn’s resources to commence the processing of this FOI
application. In that regard, I am relying on [4]sections 24 and [5]24AA
of the FOI Act.

 

More generally, it may be of assistance to consider limiting the scope of
the request to:

 

·        Current status,

·        A particular address or street, and

·        Excluding legally privileged, draft documents and commercially
sensitive information.

 

Request consultation process

Section 24 of the FOI Act requires nbn to undertake a request consultation
process before issuing a notice to refuse access. Before issuing a refusal
notice, [6]section 24AB of the FOI Act requires nbn 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 me by 31 October 2016
as to whether you wish to:

 

·        withdraw the request, or

·        make revised request, or

·        not revise the request.

Our team would be happy to assist you in refining the scope of your
request. In that regard, I would invite you to call me on (02) 9927 4118.
If you have not notified me by the above-mentioned date, nbn 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.

nbn’s Commercial Activities Exemption

Documents that relate to nbn’s “commercial activities” are not subject to
the operation of the FOI Act. The following link summarises and provides
[7]general background information concerning nbn’s commercial activities
exemption (CAE) or carve-out. That background document references two
Office of the Australian Information Commissioner reviews that considered
nbn’s CAE in January 2012 (the [8]Internode Decision) and again in July
2013 (the [9]Battersby Decision), with those decisions hyperlinked. While
I am not making a formal decision, nor have I reviewed any relevant
documents, there is a possibility that documents falling within this FOI
request may be subject to the CAE.

Processing Period & Charges

The statutory period for processing an FOI request is 30 days, subject to
any suspension of the processing period or extension of the time for
deciding the application. For the reasons outlined above, nbn will not
formally acknowledge, nor commence the processing of this request until
the terms of this FOI application have been sufficiently clarified. Please
also note that processing charges may be imposed in relation to FOI
requests. You will be advised of any charges in relation to your FOI
request. In addition, nbn’s policy is to levy processing charges in
relation to FOI requests, subject to contentions regarding public
interest. In that regard, I would refer you to nbn’s FOI processing
charges policy, which is outlined at the following hyperlink:
[10]Submission to the OAIC Charges Review. Moreover, nbn supports – and
will generally apply – Recommendation 24 in the [11]Hawke Review into FOI
Legislation, which suggests a (roughly) 40-hour ceiling for FOI processing
time.

 

Disclosure Log

Please also be advised that nbn is required to publish documents on its
website within 10 working days after the release of the documents to an
FOI applicant. The information you seek may be published in full (as
released to the applicant) or with some additional redactions, based upon
exceptions under section 11C of the FOI Act. For further information
please visit our website and click on the [12]Disclosure Log link.

 

Please let me know if you have any questions.

 

Regards

Kate

 

Kate Friedrich

Legal Counsel – FOI, Privacy & Knowledge Management

P +61 2 9927 4118| E [13][email address]

Level 11, 100 Arthur Street, North Sydney, NSW 2066

 

* Monday, Tuesday, Wednesday, Thursday

 

 

References

Visible links
1. http://www.nbnco.com.au/connect-home-or-...
2. http://www.nbnco.com.au/learn-about-the-...
3. https://www.righttoknow.org.au/request/6...
4. http://www.austlii.edu.au/au/legis/cth/c...
5. http://www.austlii.edu.au/au/legis/cth/c...
6. http://www.austlii.edu.au/au/legis/cth/c...
7. http://www.nbnco.com.au/content/dam/nbnc...
8. http://www.oaic.gov.au/freedom-of-inform...
9. http://www.oaic.gov.au/images/documents/...
10. http://www.nbnco.com.au/corporate-inform...
11. http://www.oaic.gov.au/news-and-events/s...
12. http://www.nbnco.com.au/corporate-inform...
13. mailto:[email address]