Application of FOI Act to NBN Co
On 11 June 2011, the Freedom of Information Act 1982 (FOI Act) began to apply to NBN Co (nbn or the Company).
The FOI Act gives members of the public a general right of access to documents held by Australian Government agencies, Ministers and Government Business Enterprises (GBEs), such as nbn. The FOI Act also enables individuals to access personal records held by Government bodies and correct information that is incomplete, incorrect, out-of-date or misleading.
The public's general right of access is subject to various exemptions relating to national security, law enforcement and public security, material obtained in confidence, Cabinet documents and other matters set out in the FOI Act. In addition to the general exemptions under the FOI Act, Parliament has determined that documents relating to nbn's commercial activities are exempt from the operation of the FOI Act. Similar exemptions operate for other GBEs and organisations, such as Australia Post, CSIRO and Comcare, among others. Further details on how the FOI Act applies to nbn can be found in the documents below.
Review into operation of FOI Act at nbn
In April 2012, the Commonwealth Attorney General commissioned Mr Stuart Morris, QC, to undertake a review into the operation of the FOI Act at nbn. Mr Morris is a former justice of the Supreme Court of Victoria and a former President of the Victorian Civil and Administrative Tribunal, with very wide experience in FOI matters. The review was required under ss. 100A(1) of the National Broadband Network Companies Act 2011. Among the considerations of the review were the number and nature of FOI requests already made to nbn, the responses to those requests, and the reasons for any exemptions.
The terms of reference and background information about the legislative requirement for the review are available below.
Accessing information outside of FOI processes
nbn recognises that information is a vital and invaluable resource, both for our company and for the broader Australian community. That's why we foster and promote a pro-disclosure culture at nbn, with the goal of creating an organisation that is open, transparent and accountable. In that light, you will be able to find a large amount of information freely available on our website.
We also welcome suggestions regarding information that you think should be published by nbn. In that regard, please send any comments or suggestions to FOIofficer@nbnco.com.au. If we are unable to publish the information requested, our staff will contact you to explain why the information was unavailable or provide you with other options regarding information that may be available.
The FOI Act also requires nbn to publish an Information Publication Scheme (IPS), which details our procedures for managing and disclosing nbn's information assets. Under the IPS, nbn must release information regarding our company's organisation, operations and functions, among other matters. In addition, the FOI Act requires nbn to publish a Disclosure Log, which lists and provides access to information made available pursuant to FOI requests. The Disclosure Log will not include personal, business or certain other information outlined at section 11C of the Act. FOI applicants are invited to review the above links before making an FOI request, as they may find that the information they are seeking has already been published.
Making an FOI request
To make an FOI request, applicants should apply in writing:
- Specify that documents are being sought for the purposes of the FOI Act;
- Provide a postal or email address where correspondence can be sent. A telephone number will also help in case further information is required; and
- Describe as clearly as possible the information being sought. Please include any reference numbers or details that may assist in identifying specific material.
FOI request process
nbn will generally process FOI requests within 30 days unless:
- The subject matter is more closely connected to another government entity. In this case, nbn will transfer the application to the more relevant agency;
- Third party consultations are required, in which case an additional 30 days of processing time may be added;
- The applicant agrees to additional time for the processing of the request;
- Additional time is requested from the Australian Information Commissioner in cases of complex or voluminous requests; or
- nbn has decided to impose processing charges for the request.
Once nbn has completed its decision regarding access in relation to each FOI request, we will forward any available documents to the applicant. If the requested documents or parts of them fall within an exemption specified in the FOI Act, nbn will provide reasons for the decision to exempt the material from release. After making an FOI decision, nbn will publish the results of the decision on our Disclosure Log, along with details as to how to access the released documents.
There is no application fee for making an FOI request. Processing charges may apply to requests other than for documents containing personal information. The charges are in accordance with the Charges Regulations made under the FOI Act. The most common charges are:
- Search and retrieval - $15 per hour
- Decision-making - $20 per hour (first five hours are free)
- Photocopy - 10c per page
- Transcript - $4.40 per page
- Supervised inspection - $6.25 per half hour
- Delivery - Cost of postage or delivery
Please note that decision making includes time spent by nbn in deciding to grant or refuse a request, including examining documents, consulting with other parties, making deletions, among other matters. Regarding other charges, nbn will provide an applicant with the relevant details.
If charges are applicable, the applicant will receive a written estimate and advice as to how the charge was calculated. nbn's policy is to charge deposits in accordance with the requirements outlined in the FOI Act and its Regulations.
Applicants may request that a charge be waived or reduced for a number of reasons, including financial hardship or on public interest grounds. nbn will generally require applicants to provide reasons to substantiate their fee waiver or reduction request. Some form of documentary evidence may be required to substantiate these claims.
Reviewing or appealing FOI decisions
Applicants have the following review and appeal rights in relation to nbn's FOI decisions:
Internal review. An internal review may be granted in relation to a decision not to grant access to documents or parts of documents, among other matters. An application for review should be made within 30 days of receiving the decision. This time can be extended in certain circumstances. An independent review of the decision will be undertaken and a decision made within 30 days.
Review by the Australian Information Commissioner. Applications may be made to the Australian Information Commissioner for a review of the following decisions:
- Internal reviews;
- Deemed decisions (where a decision was not made in the specified time);
- Original decisions (electing to skip an internal review); or
- Decisions to refuse additional time to make an Internal Review request.
Applications must be made within 60 days after receiving the decision to be reviewed. The Information Commissioner may extend that time in certain circumstances. More information can be found on the Information Commissioner's website.
Administrative Appeals Tribunal. Applicants may appeal the Information Commissioner's decisions to the Administrative Appeals Tribunal. The Office of the Information Commissioner will provide details on how to appeal a decision by that office. More information can be found at Applying to the Administrative Appeals Tribunal.