Our reference: EN19/19599

Dear Mr Nothdurft

I refer to the below email from Mr David Mesman at NBN that we were copied
in to.

Please advise if there is any assistance you require from the OAIC in
relation to your FOI request with NBN (reference: FOI1920/48).

In Freedom of Information matters, the OAIC has two main functions:

·         We can review FOI decisions made by an Australian government
agency or Minister (IC review)

·         We can also investigate complains about how an agency has
handled and FOI request (FOI complaints)

I will provide further information about these two functions below.

IC review

If you disagree with an agency’s or minister’s decision You can ask for a
review of the decision. After reviewing a decision, the Information
Commissioner must do one of three things:

·         set the decision aside and make a fresh decision

·         affirm the decision, or

·         vary the decision.

An agency or minister can also be ordered to undertake further searches
for documents. 

FOI complaints

Complaints usually focus on how an agency has handled your FOI request or
complied with other obligations under the FOI Act, rather than the
decision itself.

In some cases, the Information Commissioner's investigation of a complaint
may lead to the agency addressing the issues that you have complained
about. In other cases, the Information Commissioner may make suggestions
or recommendations that the agency should implement. The Information
Commissioner can only make non-binding recommendations as a result of a
complaint. You and the agency will be notified of the outcome of the
investigation.

Next steps

Can you please advise by 3 January 2020, if there is any assistance you
are seeking in this instance.

Should you wish to discuss your matter please do not hesitate to contact
me on 02 9284 9711 or [1][email address].

Kind regards

Stephanie Mayhew

[2]cid:image001.jpg@01D446AF.83C3DEE0   Intake and Early Resolution Team

Freedom of Information

Office of the Australian Information Commissioner

GPO Box 5218 Sydney NSW 2001  |  [3]oaic.gov.au

1300 363 992  |  [4][email address]
[9]Subscribe
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newsletter

-----Original Message-----
From: David Mesman <[email address]>
Sent: Friday, 13 December 2019 5:34 PM
To: Timothy Nothdurft <[email address]>
Cc: FOIOfficer <[email address]>; FOIDR <[email address]>;
Enquiries <[email address]>
Subject: nbn FOI matter

Dear Mr Nothdurft - I note your request for a review of my FOI processing
charges estimate (nbn’s reference FOI1920/48). I will complete an FOI
Charges Decision in due course. If my initial estimate matches the final
charges determination, I will consider your email, below, as a request for
an Internal Review of that decision. In the interim, could you please
provide further particulars regarding your contentions – that would be of
assistance. I would also request that you email those contentions directly
to [10][email address]. If I have not received any further
contentions by 23 December 2019, I will proceed to a Charges Decision by 3
January 2020. If you require more time to provide your contentions, please
inform me before 2 January 2020.

For reference, the appointment of nbn’s FOI Officer, the choice of FOI
decision-makers and the processing of FOI applications are matters for
nbn’s management. As outlined previously, I am nbn’s FOI Officer and I
will continue to manage nbn’s FOI requests, including this and other FOI
matters. nbn has informed you on at least six occasions of your right to
make a complaint to the Office of the Australian Information Commissioner
(OAIC) if you consider any complaints to be valid. My understanding is
that you have not made a complaint to the OAIC to date. For your
reference, I have copied the OAIC’s enquiries email address. I would
suggest that you direct your concerns to the OAIC.

I again request that you refrain from posting any further personal 
commentary about nbn staff members and I will relay the same request to
the moderators of this website.

Best regards, David Mesman

-----Original Message-----

From: Timothy Nothdurft <[11][email address]>

Sent: Saturday, 7 December 2019 1:53 PM

To: David Mesman <[12][email address]>

Subject: [External] Re: nbn FOI matter

This message is from an external sender - be cautious, particularly with
links and attachments.

Dear David Mesman,

The cost around retrieval and decision making is unreasonable. I would
like it to be reviewed.

This is a administrative lookup that requires very little effort or
diversion of resources.

It also does not compare reasonably to other FOI requests that have been
carried out.  It is also unreasonable to attempt to extract Money from a
public that is trying to hold NBN to account.

I would also like to request that you personally are no longer involved in
any of the FOI requests and that it is diverted to another qualified
individual within the organisation.  If this cannot be actioned a suitable
explanation will be required as to why?

-----Original Message-----

Please find a letter in relation to your FOI request to nbn.

If you would like to discuss the processing fees in a non-public forum, 
please revert to me using the email address, below.

David J Mesman

General Counsel │FOI, Privacy & Knowledge Management  Corporate Advisory
and Systems Engineering & Operations Legal Team  E [1][email address] 
Level 13/100 Mount Street, North Sydney NSW 2060  nbn acknowledges and
pays respects to the traditional custodians of all  the lands upon which
we work.

Notice to recipient: This e-mail is intended only to be read or used by 
the addressee. It is confidential and may contain information that is 
subject to legal professional privilege or protected by copyright. If you 
are not the addressee indicated in this message (or responsible for 
delivery of the message to that person), you may not copy or deliver this 
message to anyone, and you should destroy this message and kindly notify 
the sender by reply e-mail. Copyright, confidentiality and legal 
professional privilege are not waived or lost by reason of mistaken 
delivery to you. Emails to/from nbn co limited ABN 86 136 533 741 may 
undergo email filtering and virus scanning, including by third party 
contractors, however, nbn co limited does not guarantee that any email or 
any attachment is secure, error-free or free of viruses or other unwanted 
or unexpected inclusions. Any views expressed in this message are those
of  the individual sender, except where the sender specifically states
them to  be the views of nbn co limited.

PLEASE CONSIDER OUR ENVIRONMENT BEFORE PRINTING

References

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This request has been made by an individual using Right to Know. This
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hide quoted sections

Thank you for your email.

This is an automated response to confirm that your email was received by
the Office of the Australian Information Commissioner (the OAIC) Freedom
of Information Dispute Resolution (FOIDR) mailbox. Please note this
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New Information Commissioner review applications and FOI complaints

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Information regarding the IC review process can be found at:
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and in [2]Part 10 of the [3]FOI Guidelines.

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Information for FOI applicant regarding extensions of time under the FOI
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Information for agencies regarding the extension of time provisions in the
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website.

Kind regards

Intake and Early Resolution Team

Freedom of Information Dispute Resolution

Office of the Australian Information Commissioner

GPO Box 5218 Sydney NSW 2001  |  [10]oaic.gov.au

1300 363 992   |  [11][email address]

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WARNING: The information contained in this email may be confidential.
If you are not the intended recipient, any use or copying of any part
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hide quoted sections

Dear Mr Northurft

Thank you for your email.

It appears that you do not wish the OAIC to take any further action at this point and that your concerns are being dealt with by the agency.

If your circumstances change and you wish to approach the OAIC for assistance please quote the reference number EN19/19599.

Kind regards

Stephanie

Intake and Early Resolution Team
Freedom of Information
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
1300 363 992 | [email address]

-----Original Message-----
From: Timothy Nothdurft <[FOI #5998 email]>
Sent: Tuesday, 17 December 2019 3:38 PM
To: FOIDR <[email address]>
Subject: Re: EN19/19599 - FOI decision by NBN (ref: FOI1920/48) [SEC=OFFICIAL]

Dear FOIDR,

Why has the core of the correspondence been hidden and removed from RTK? Unfortunately I don't have any visibility into Mr Mesman correspondence and confused as to why this has gone to OAIC for such a simple request? If possible I would like this forwarded to me or put back on public record.

Once again this demonstrates the lack of professionalism and understanding of the FOI processes by NBN Australia and its staff.

I will attempt to make contact using the reference number due to your email being removed.

Previous OAIC Ref EN19/04504 EN19/04202 on NBN decisions and conduct.

Yours sincerely,

Timothy Nothdurft

-----Original Message-----

Our reference: EN19/19599

Dear Mr Nothdurft

I refer to the below email from Mr David Mesman at NBN that we were copied
in to.

Please advise if there is any assistance you require from the OAIC in
relation to your FOI request with NBN (reference: FOI1920/48).

In Freedom of Information matters, the OAIC has two main functions:

· We can review FOI decisions made by an Australian government
agency or Minister (IC review)

· We can also investigate complains about how an agency has
handled and FOI request (FOI complaints)

I will provide further information about these two functions below.

IC review

If you disagree with an agency’s or minister’s decision You can ask for a
review of the decision. After reviewing a decision, the Information
Commissioner must do one of three things:

· set the decision aside and make a fresh decision

· affirm the decision, or

· vary the decision.

An agency or minister can also be ordered to undertake further searches
for documents.

FOI complaints

Complaints usually focus on how an agency has handled your FOI request or
complied with other obligations under the FOI Act, rather than the
decision itself.

In some cases, the Information Commissioner's investigation of a complaint
may lead to the agency addressing the issues that you have complained
about. In other cases, the Information Commissioner may make suggestions
or recommendations that the agency should implement. The Information
Commissioner can only make non-binding recommendations as a result of a
complaint. You and the agency will be notified of the outcome of the
investigation.

Next steps

Can you please advise by 3 January 2020, if there is any assistance you
are seeking in this instance.

Should you wish to discuss your matter please do not hesitate to contact
me on 02 9284 9711 or [1][email address].

Kind regards

Stephanie Mayhew

[2]cid:image001.jpg@01D446AF.83C3DEE0 Intake and Early Resolution Team

Freedom of Information

Office of the Australian Information Commissioner

GPO Box 5218 Sydney NSW 2001 | [3]oaic.gov.au

1300 363 992 | [4][email address]
[9]Subscribe
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-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #5998 email]

This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
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If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.

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hide quoted sections

Dear Mr Nothdurft – Please find attached a letter in relation to your FOI
request.
 
David J Mesman
General Counsel │FOI, Privacy & Knowledge Management
Corporate Advisory and Systems Engineering & Operations Legal Team
| E [1][email address]
Level 13/100 Mount Street, North Sydney NSW 2060
nbn acknowledges and pays respects to the traditional custodians of all
the lands upon which we work.
Notice to recipient: This e-mail is intended only to be read or used by
the addressee. It is confidential and may contain information that is
subject to legal professional privilege or protected by copyright. If you
are not the addressee indicated in this message (or responsible for
delivery of the message to that person), you may not copy or deliver this
message to anyone, and you should destroy this message and kindly notify
the sender by reply e-mail. Copyright, confidentiality and legal
professional privilege are not waived or lost by reason of mistaken
delivery to you. Emails to/from nbn co limited ABN 86 136 533 741 may
undergo email filtering and virus scanning, including by third party
contractors, however, nbn co limited does not guarantee that any email or
any attachment is secure, error-free or free of viruses or other unwanted
or unexpected inclusions. Any views expressed in this message are those of
the individual sender, except where the sender specifically states them to
be the views of nbn co limited.
PLEASE CONSIDER OUR ENVIRONMENT BEFORE PRINTING
 
 

References

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1. mailto:[email address]

Dear Mr Nothdurft - I'm resending this email, noting that it has not appeared on the RTK website.

Best, David Mesman

-----Original Message-----
From: Timothy Nothdurft <[FOI #5998 email]>
Sent: Thursday, 12 December 2019 10:56 AM
To: FOIOfficer <[email address]>
Subject: [External] Freedom of Information request - Seeking number or aerial FDAs after 2016

This message is from an external sender - be cautious, particularly with links and attachments.

Dear NBN Co Limited,

I am seeking documents/information on how many brownfield FSAs (Fibre Distribution Areas) used aerial fibre deployment methods or were installed on aerial assets (eg power utilities) after 2016

I simple executive summary on the number should be easily obtainable within the standard 5 hours.

Yours faithfully,

Timothy Nothdurft

-------------------------------------------------------------------

Please use this email address for all replies to this request:
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Is [NBN Co Limited request email] the wrong address for Freedom of Information requests to NBN Co Limited? If so, please contact us using this form:
https://www.righttoknow.org.au/change_re...

This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...

If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.

-------------------------------------------------------------------

hide quoted sections

Dear Mr Nothdfurt – I’ve attached an advance deposit request (PDF letter),
which also outlines the points, below, among other matters.
 
Following the clarification of your FOI request, I had discussions with
nbn subject matter experts (SMEs) and was informed of the following:
 

* The term FDA or "Fibre Distribution Area" relates to nbn’s (previous)
Fibre-to-the-Premises (FTTP) network rollout coding nomenclature and
its related technology. For reference, nbn no longer uses this term
(FDA) in the current multi-technology mix (MTM) network rollout.
* nbn’s SMEs informed me that that they assume that your request is
referring to Access Distribution Areas (ADAs), which are roughly
equivalent to FDAs within the MTM network build.
* Your request also refers to NAPs, which is a term used by nbn to
describe an aerial piece of network equipment that nbn deploys only
with FTTP and FTTC connections.
* As you may be aware, there are a variety of different technologies
deployed with the MTM rollout, including FTTP, Fibre-to-the-node
(FTTN), Fibre-to-the-curb (FTTC), Fibre-to-the-basement (FTTB), Fixed
wireless (FW) and satellite.
* In addition, it is important to note that:

* nbn connections via FTTB, Fixed wireless and satellite technology
would not generally involve an aerial fibre deployment.
* With the remaining technologies, i.e. FTTN and HFC connections, nbn
would generally acquire existing networks, which may include existing
aerial connections. These connections would not be referred to as NAPs
(since “NAP” is fibre-specific term), but rather specific equipment
related to copper and coaxial delivery mechanisms.

* Assuming that you are only seeking data on the number of NAPs, any
data set produced would only include data concerning FTTP and FTTC
ready-for-service (RFS) connections since 1 January 2017.
* Based upon those parameters, nbn’s SMEs informed me that it would take
16.25 hours to obtain the relevant data. For reference, nbn’s SMEs
would be required to undertake the following steps in relation to this
request:

* Identify the appropriate systems and tools to perform the data
extract;
* Build the relevant query tools, by identifying specific network
elements within data sets and models that match the relevant
parameters,
* Identify and filter for relevant NAPs and relevant network
architecture within the data sets and models;
* Filter for premises that were RFS since 1 January 2017;
* Combine the data sources and run extracts, then validate and check
results for accuracy; and
* Package the data outputs and prepare a draft extract summary for
review by nbn’s FOI Team and other relevant nbn staff.

 
Based on those points and parameters (i.e. NAPs with FTTC and FTTP
connections), I have prepared an advance deposit request. As the
decision-making time is likely to be below five hours, that charge would
be waived and the only applicable FOI processing fees would be for search
and retrieval. The estimated processing fees are $243.75 (for search &
retrieval), with an advance deposit of $60.93.
 
David J Mesman
General Counsel │FOI, Privacy & Knowledge Management
Corporate Advisory and Systems Engineering & Operations Legal Team
E [1][email address]
Level 13/100 Mount Street, North Sydney NSW 2060
nbn acknowledges and pays respects to the traditional custodians of all
the lands upon which we work.
Notice to recipient: This e-mail is intended only to be read or used by
the addressee. It is confidential and may contain information that is
subject to legal professional privilege or protected by copyright. If you
are not the addressee indicated in this message (or responsible for
delivery of the message to that person), you may not copy or deliver this
message to anyone, and you should destroy this message and kindly notify
the sender by reply e-mail. Copyright, confidentiality and legal
professional privilege are not waived or lost by reason of mistaken
delivery to you. Emails to/from nbn co limited ABN 86 136 533 741 may
undergo email filtering and virus scanning, including by third party
contractors, however, nbn co limited does not guarantee that any email or
any attachment is secure, error-free or free of viruses or other unwanted
or unexpected inclusions. Any views expressed in this message are those of
the individual sender, except where the sender specifically states them to
be the views of nbn co limited.
PLEASE CONSIDER OUR ENVIRONMENT BEFORE PRINTING
 
 

References

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1. mailto:[email address]

Dear Mr Nothdurft - Thank you for your note. I apologise for not reverting earlier - I was away from work, unwell.

In your email, below, you've indicated that the information requested "does not need to be as detailed..." and that you are "happy to reduce the scope." I am unclear what is meant by these points, noting that you have not changed the terms of the request, nor reduced its scope. If you could please provide details in that regard. I am happy to discuss the same at your convenience.

As outlined previously, nbn's subject matter experts (SMEs) informed me that it is not nbn's business practice to produce the datasets requested and I've summarised nbn's obligations regarding the creation of new datasets per section 17 of the FOI Act. The time required to produce the requested dataset is 16.25 hours (search & retrieval time) and would require nbn SMEs to take time away from their core functions in order to process this FOI request in its current form. Please note that the dataset would only encompass FTTP and FTTC ready-for-service (RFS) connections since 1 January 2017.

You also mentioned reducing the scope of this FOI application to "under 5 hours." In that regard, I wanted to flag that the first five hours of "decision-making time" are not chargeable and there is no automatic waiver for any FOI processing fees, except for decision-making time. This is noted in the advance deposit request under the FOI processing charges table, which reads as follows "Per the Freedom of Information (Charges) Regulations, nbn has not charged you for the first 5 hours of decision-making time. Please note that this waiver of fees only applies to decision-making time, but not to other FOI processing charges, such as search & retrieval."

If you would like to make a submission seeking a fee waiver, please refer to the details in the attached letter. In making a submission, I would ask that you please refer to the following hyperlink https://www.nbnco.com.au/corporate-infor... (Submission to the OAIC Charges Review). This Submission outlines nbn’s general approach to FOI processing charges. It is also nbn’s general policy to charge applicants for FOI processing time, subject to general public interest contentions or hardship grounds. For reference, nbn is required to operate as a commercial entity and to ensure that its staff members are engaged in appropriate tasks that maximise corporate resources and add to shareholder value. It follows that nbn should be able to recover some of the reasonable costs associated with the processing of FOI requests and, particularly, for SMEs' time taken away from core nbn™ network operations.

Please also note that I cannot provide an indication or advise you regarding the likelihood of disclosure because this would effectively pre-judge the outcome of an FOI determination. It is important to note that FOI processing fees are levied for specific tasks completed, rather than for a given outcome. You may, of course, refer to previous nbn FOI decisions published on the Right-to-Know website and make an assessment regarding the likelihood of release. I would also refer you to nbn's commercial activities carve-out (CAC) background document, https://www.nbnco.com.au/content/dam/nbn... at paragraphs 7 to 12. In particular, paragraph 9 refers to "Common examples of commercial activities." Please also note that the CAC is a "carve-out" from the FOI Act, and not a specific type or subset of exemptions within the FOI Act. In particular, the FOI Act does not apply to documents that relate to nbn's commercial activities. In considering any documents for release under the FOI Act, nbn's FOI Officer must first make a primary assessment regarding the commercial nature of documents requested. If nbn’s FOI Officer determines that documents relate to nbn’s commercial activities, these documents are outside of the scope of the FOI Act and there is no requirement to consider actual exemptions, e.g. commercially valuable information (s. 47) or confidential materials (s. 45), personal privacy (s.47F), business affairs (s.47G), etc.

I trust that this information is of assistance.

Best regards, David Mesman

-----Original Message-----
From: Timothy Nothdurft <[FOI #5998 email]>
Sent: Friday, 17 January 2020 1:10 PM
To: David Mesman <[email address]>
Subject: [External] Re: nbn FOI request

This message is from an external sender - be cautious, particularly with links and attachments.

Dear David Mesman,

Thankyou for your response and breakdown of tasks.

The information I have requested does not need to be as detailed as has been indicted. Therefore happy to work to reduce scope to under 5 hour by re clarification of the request.

Working in the public interest I need some confidence that if the deposit is made every effort will be made to release information and the work tasks indicated are a fair representation.
If you believe there will be a strong case for refusal (as usually indicated by highlighting those passages) then this should be indicated prior to any financial fee.

Yours sincerely,

Timothy Nothdurft

-----Original Message-----

Dear Mr Nothdfurt – I’ve attached an advance deposit request (PDF letter), which also outlines the points, below, among other matters.
 
Following the clarification of your FOI request, I had discussions with nbn subject matter experts (SMEs) and was informed of the following:
 

* The term FDA or "Fibre Distribution Area" relates to nbn’s (previous) Fibre-to-the-Premises (FTTP) network rollout coding nomenclature and its related technology. For reference, nbn no longer uses this term
(FDA) in the current multi-technology mix (MTM) network rollout.
* nbn’s SMEs informed me that that they assume that your request is referring to Access Distribution Areas (ADAs), which are roughly equivalent to FDAs within the MTM network build.
* Your request also refers to NAPs, which is a term used by nbn to describe an aerial piece of network equipment that nbn deploys only with FTTP and FTTC connections.
* As you may be aware, there are a variety of different technologies deployed with the MTM rollout, including FTTP, Fibre-to-the-node (FTTN), Fibre-to-the-curb (FTTC), Fibre-to-the-basement (FTTB), Fixed wireless (FW) and satellite.
* In addition, it is important to note that:

* nbn connections via FTTB, Fixed wireless and satellite technology would not generally involve an aerial fibre deployment.
* With the remaining technologies, i.e. FTTN and HFC connections, nbn would generally acquire existing networks, which may include existing aerial connections. These connections would not be referred to as NAPs (since “NAP” is fibre-specific term), but rather specific equipment related to copper and coaxial delivery mechanisms.

* Assuming that you are only seeking data on the number of NAPs, any data set produced would only include data concerning FTTP and FTTC ready-for-service (RFS) connections since 1 January 2017.
* Based upon those parameters, nbn’s SMEs informed me that it would take
16.25 hours to obtain the relevant data. For reference, nbn’s SMEs would be required to undertake the following steps in relation to this
request:

* Identify the appropriate systems and tools to perform the data extract;
* Build the relevant query tools, by identifying specific network elements within data sets and models that match the relevant parameters,
* Identify and filter for relevant NAPs and relevant network architecture within the data sets and models;
* Filter for premises that were RFS since 1 January 2017;
* Combine the data sources and run extracts, then validate and check results for accuracy; and
* Package the data outputs and prepare a draft extract summary for review by nbn’s FOI Team and other relevant nbn staff.

 
Based on those points and parameters (i.e. NAPs with FTTC and FTTP connections), I have prepared an advance deposit request. As the decision-making time is likely to be below five hours, that charge would be waived and the only applicable FOI processing fees would be for search and retrieval. The estimated processing fees are $243.75 (for search & retrieval), with an advance deposit of $60.93.
 
David J Mesman
General Counsel │FOI, Privacy & Knowledge Management Corporate Advisory and Systems Engineering & Operations Legal Team E [1][email address] Level 13/100 Mount Street, North Sydney NSW 2060 nbn acknowledges and pays respects to the traditional custodians of all the lands upon which we work.
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PLEASE CONSIDER OUR ENVIRONMENT BEFORE PRINTING
 
 

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