20 November 2023
John Smith
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
nbn Ref: FOI2324017
Dear John
Freedom of Information Application
I am writing in relation to your request, made under the
Freedom of Information Act 1982 (
the FOI Act) seeking
access to communications regarding a complaints case.
The Statement of Reasons (
attached) outlines the specific terms of the FOI request, the decision-maker’s findings,
and the access decision.
An FOI decision may be reviewed, subject to sections 53A and 54 of the FOI Act. Please refer to the Office of the
Australian Information Commissioner’s website at the followin
g link, which provides details about your rights of
review and other avenues of redress under the FOI Act.
Please feel free to contact me on (02) 9031 3022 if you have any questions, or if you would like to discuss your
request. The access decision for your request will issue shortly.
Yours sincerely
Rohan Singh
Freedom of Information Officer
Level 13, 100 Mount Street, North Sydney NSW 2060
Phone (02) 9926 1900
© 2023 nbn co limited I ABN 86 136 533 741
Fax (02) 9926 1901
Web nbn.com.au
FREEDOM OF INFORMATION REQUEST – FOI2324017.004
20 NOVEMBER 2023
ACCESS DECISION
STATEMENT OF REASONS
Summary of Access Decision
1.
I find that the Relevant Documents (as defined below) are not subject to the
Freedom of Information Act 1982 (the
FOI Act) because they relate to
nbn’s commercial activities. Accordingly, I refuse access to the
Relevant Documents.
Background – nbn and the FOI Act
2.
nbn is a government business enterprise (
GBE), which has the mandate of realising the Australian
Government’s vision for the development and operation of Australia’s broadband infrastructure.
3.
nbn recognises that information is a vital and an invaluable resource, both for the company and for the
broader Australian community. That is why
nbn fosters and promotes a pro-disclosure culture, with the
goal of creating an organisation that is open, transparent, and accountable. To that end,
nbn makes a large
amount of information freely available to the public on our web
site: http://nbnco.com.au/.
4.
nbn also manages its information assets within the terms and spirit of the
Freedom of Information Act 1982
(the
FOI Act). We endeavour to release information proactively, while considering our commercial and
other legal obligations.
5.
Subject to relevant exemptions, the FOI Act gives the Australian community the right to access documents
held by Commonwealth Government agencies, as well as “prescribed authorities” such as
nbn.
6.
Under subsection 23(1) of the FOI Act,
nbn’s Chief Executive Officer authorises me, to make decisions
about access to documents and related matters under the FOI Act.
7.
Under subsection 26(1) of the FOI Act, I am required to provide a Statement of Reasons for my decisions
in relation to FOI applications. I am also required to set out my findings on any material questions of fact,
referring to the material upon which those findings were based. Those findings are outlined below.
Application Chronology and Scope of Request
8.
On 21 October 2023,
nbn received an email from a person identifying themselves as “John Smith” (the
Applicant) requesting the following:
“the communications in the case with the reference number 16183789.”
9.
On 23 October 2023,
nbn wrote to the Applicant to acknowledge receipt of his email informally, and again
on 20 November 2023 to inform the Applicant that this access decision would follow shortly.
10.
On the date set out above, I made my access decision, as outlined below.
Findings on material questions of fact
11.
Following receipt of the Applicant’s amended request,
nbn staff undertook searches within the company’s
records for documents falling within the scope of the request (
Relevant Documents).
12.
nbn staff located documents falling within the scope of the Relevant Documents. The Relevant Documents
consist of communications between
nbn and an individual (
Individual) in relation to a query made to
nbn.
The communications are comprised of email messages and records of communications stored in
nbn’s
computerised complaints and queries case management system.
13.
The Relevant Documents include details of the subject of the query, which relates to
nbn™ network
assets, locations of
nbn™ network assets which are the subject of the Individual’s query, personal
information concerning the Individual, and personal information of
nbn staff. The communications also
contain details of
nbn’s activities in relation to its network assets.
Access Decision - Relevant Documents
14.
In undertaking my review of the Relevant Documents, it is my view, having regard to the nature and subject
matter of the request and the relevant provisions of the FOI Act, that one or more exemptions to release
are applicable, as outlined below.
15.
In making my decision, I took into account relevant parts of the FOI Act and related legislation, the Office of
the Australian Information Commissioner (
OAIC) FOI Guidelines, relevant case law and other sources,
inclu
ding the 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 Commercial Activities Carve-out (
CAC):
the Internode Decision (in January 2012) and t
he Battersby
Decision (in July 2013).
nbn’s commercial activities carve-out
16.
Application of the CAC is a threshold issue, and I must consider it first before considering any other
grounds for refusal of access.
17.
Section 7(3A) of the FOI Act excludes documents that are related to
nbn’s “commercial activities” from the
operation of the FOI Act. Part II of Schedule 2 to the FOI Act specifies that certain agencies are exempt
from the operation of the FOI Act in respect of particular documents.
nbn is exempt from the operation of
the FOI Act “in relation to documents in respect of its commercial activities”.
18.
Per section 7(3A) of the FOI Act, “commercial activities” means:
(a) activities carried on by NBN Co on a commercial basis; or
(b) activities, carried on by NBN Co, that may reasonably be expected in the foreseeable future to be
carried on by NBN Co on a commercial basis.
19.
As per section 7(4) of the FOI Act, in "
subsection (2AA) and Part II of Schedule 2, a reference to
documents in respect of particular activities shall be read as a reference to documents received or brought
into existence in the course of, or for the purposes of, the carrying on of those activities."
20.
Relevantly,
nbn:
a. is a public company limited by shares incorporated under the
Corporations Act 2001 (Cth)
(
Corporations Act);
b. is wholly owned by the Commonwealth and a prescribed GBE;
c. is subject to the same obligations as other public companies incorporated under the Corporations Act;
d. generates sales and profit; and
e. operates for a commercial purpose, with a mandate or objective to earn at least a commercial rate of
return.
21.
Accordingly,
nbn operates as a commercial entity and, having regard to the foregoing, is bound to do so.
22.
In the Internode Decision, the then Freedom of Information Commissioner, Dr James Popple, considered
the meaning of "commercial activities" in relation to
nbn's CAC. Relevantly, he noted as follows:
a. in
Bell v Commonwealth Scientific and Industrial Research Organisation, the Full Court of the
Federal Court considered the meaning of "commercial activities" with reference to analogous
provisions to sections 7(2) and 7(3A) of the FOI Act. In that case, the Court said that "
activities are
conducted on a commercial basis if they are related to, engaged in or used for commerce" and
referred to
"the importance of the whole of the circumstances including the commercial goal (profit
making or the generation of income or return) in determining whether particular activities are
sufficiently related to commerce to be characterised as commercial activities" [
Bell v
Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40 as referred to in
Internode Pty Ltd and NBN Co Ltd [2012] AICmr4 at paragraph 12.]; and
b. in
Johnston and Australian Postal Corporation, the Administrative Appeals Tribunal concluded that
commercial activity "
can be regarded as a business venture with a profit-making objective and,
strictly speaking, will involve activity to generate trade and sales with a view to profit. This is
particularly so when the volume of activity is on a large scale". [
Johnston and Australian Postal
Corporation [2006] AATA 144 as referred to in
Internode Pty Ltd and NBN Co Ltd [2012] AICmr4 at
paragraph 13.]
23.
The subsequent Battersby Decision reinforced the aforementioned considerations and further noted:
“…
there is no doubt that the definition of ‘commercial activities’ is broader for NBN Co than it is for
other government business enterprises listed in Part II of Schedule 2.” [
Battersby and NBN Co Ltd [2013] AICmr 61 at paragraph 16.]
24.
As outlined above, there are various factors that may weigh in favour of an activity being categorised as
commercial for the purposes of the FOI Act, such as (among other factors), if those activities:
a. have a commercial goal or purpose;
b. are related to, engaged in, or used for commerce; and/or
c. are related to a profit-making motive, generating income or revenue, among other matters.
25.
Furthermore, for the CAC to apply, the document under consideration need not meet a commercial value
threshold or be a commercially significant document. All that is required is that the document is received
by
nbn or brought into existence in the course of, or for the purposes of, the carrying on of
nbn’s
commercial activities.
26.
In looking at the whole of the circumstances, I conclude that the Relevant Documents are in respect of
nbn’s commercial activities for the following reasons:
a. The communications comprising the Relevant Documents were created or received by
nbn in the
course of
nbn carrying out its queries and complaints process about the
nbn™ network.
Operation of the
nbn™ network is
nbn’s primary commercial purpose, and handling complaints or
queries regarding assets and equipment that form part of the
nbn™ network therefore directly
relates to
nbn’s commercial operations and activities.
b. The Relevant Documents are captured in
nbn’s system for handling complaints and queries, which
includes data that forms part of
nbn’s intellectual property, both in the content of the
communications regarding
nbn’s assets, and the business and quality assurance processes
disclosed by those communications and system. If they were made public, these data could be
commercialised by others in the telecommunications retail and wholesale markets, as well as by
other network asset owners who may be able to use the Relevant Documents to their commercial
advantage in their own businesses. This information is commercially valuable to
nbn and the
broader telecommunications market. If
nbn were to release the Relevant Documents, they would
potentially provide
nbn's competitors, including other telecommunications players in the market,
with an unfair advantage. In effect, this would make
nbn’s business methods and processes “open
source”, thereby undermining
nbn’s investments in these methods and processes.
27.
For the above reasons, I am of the opinion that the Relevant Documents relate to
nbn’s commercial
activities.
28.
It is unnecessary to consider any further exemptions considering my determination that the Relevant
Documents fall within the meaning of the commercial activities carve-out. Without limiting the above, there
are other grounds upon which access to the Relevant Documents could potentially be refused. In my
opinion, the Relevant Documents may also be exempt from release on the basis of the following sections of
the FOI Act:
a. s47 (documents disclosing commercially valuable information);
b. s47D (substantive adverse effect on the financial or property interests of the Commonwealth);
c. s47F (personal privacy);and
d. s47G (business, commercial, or financial affairs).
29.
However, I have determined not to provide reasons in relation to those general and conditional exemptions.
Decision-making Time and Fees
30.
nbn staff spent time searching for the Relevant Documents to respond to the request. Additionally, I have
spent time in drafting and finalising this FOI decision, in addition to completing relevant correspondence in
respect of the request.
31.
No fees are levied for the first five hours of FOI decision-making time and on this basis, no fees are
payable in respect of the decision-making time in this instance.
32.
Considering the relatively small sum involved for staff searches, together with
nbn’s commitment to
transparency, I have exercised my discretion to waive all relevant fees.
33.
If you are dissatisfied with this decision, you have certain rights of review. Details regarding your rights of
review and appeal are outlined in the covering letter, provided with this Statement of Reasons.
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