31 May 2016
Mr Josh Stewart
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1516/50.13
Dear Mr Stewart,
FOI Application – Installation Data
I am writing in relation to your request, made under the
Freedom of Information Act, 1982 (
the FOI
Act), requesting information concerning
nbn installation data.
The Statement of Reasons (
Attached) outlines the specific terms of the FOI request, the decision-
maker’s findings and the access decision. For your reference, the FOI decision is subject to review
under the FOI Act. The Office of the Australian Information Commissioner’s FOI Fact Sheet 12 –
Your review rights may be found at the following
link. If you have any questions, need to discuss your FOI application or require any other information
relating to this matter, please feel free to contact the writer on Tel. (02) 8918 8596 or via
xxxxxxxxxxx@xxxxx.xxx.xx. Yours faithfully,
David J Mesman
General Counsel
FOI, Privacy & Knowledge Management
FREEDOM OF INFORMATION REQUEST –1516/50 (Josh Stewart)
ACCESS DECISION
STATEMENT OF REASONS
Background
1.
nbn is a government business enterprise (
GBE), which has the mandate of realising the
Australian Government’s vision for the development of Australia’s new broadband network.
2.
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. In
that light, members of the public will be able to find a large amount of information freely
available on our website, which may be found at the following lin
k: http://nbnco.com.au/.
3.
nbn manages its information assets within the terms and spirit of the
Freedom of Information Act 1982 (
the FOI Act). We also endeavour to release information
proactively, while taking into account our commercial and other legal obligations.
4. 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.
5. Under subsection 23(1) of the FOI Act,
nbn’s Chief Executive Officer authorised me, David
Mesman, to make decisions about access to documents and related determinations under the
FOI Act.
6. Under section 29(8) 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 Terms of Request 7. On 10 March 2016,
nbn received an email from Mr Josh Stewart (
the Applicant), in which he
made an application under the
Freedom of Information Act, 1982 (
the FOI Act or
the Act)
requesting access to:
…any records you have that show instances where nbn technicians have not attended
installations or service call outs when scheduled to do so. This includes missed bookings with
reasons such as (But not limited to) "Technician Shortfall" etc. Ideally I would like to see
records for this over a recent 12 month period (Rolling 12 month or 2015 calendar year). I
do not need any record details that would include any personal information, just a date and a
reason for not attending the booking. If other details such as installation type (FTTP, FTTB,
FTTN etc) can be included, that would also be of assistance.
8. On 11 March 2016,
nbn’s FOI Group wrote to the Applicant and requested that he clarify the
terms of his request as per section 15 of the FOI Act. In particular, the Applicant had not
specified the type of document or documents that he was seeking, nor had he specified a
timeframe in which the relevant searches should be undertaken. In
nbn’s letter of 11 March, the
FOI Group also indicated that the Applicant’s request, in its then-current form, would likely be
considered a substantial and unreasonable diversion of resources as per section 24 and following
of the FOI Act.
9. On 15 March 2016, the Applicant reverted to
nbn, confirming that he was:
…seeking data from NBN Co's service job tracking system, commonly interfaced by RSPs and
the NSOC through the 'Service Portal'. The extract of these records should show all instances
in the below period where an appointment was made for service or installation of an NBN
service, but where this was cancelled or postponed by NBN Co or the service agent. Other
details requested remain per the original request (Eg record date, reason for cancellation
etc). These records should cover the period March 1st 2015 through 29th Feb 2016
10. On 23 March 2016 – and after having undertaking detailed discussions with relevant subject
matter experts in the business –
nbn’s FOI Group emailed the Applicant and acknowledged
receipt of this FOI application. In the same letter,
nbn’s FOI Group provided the Applicant with
an advance deposit request in the amount of $115.63, based upon an estimated decision making
period of roughly 19 hours, along with search and retrieval time of approximately 11.5 hours.
For reference,
nbn could have charged the Applicant the market rate for the time expended to
create the Relevant Document. However in the interests of transparency and the objects of the
FOI Act,
nbn chose not to charge market rates in this instance. Regulation 3 of the
Freedom of
Information (Charges) Regulations 1982 provides decision-makers with a general discretion to
impose or not impose a charge, or impose a reduced charge for the processing of an FOI
request.
11. On 18 April 2016, the Applicant wrote to
nbn, indicating his intention to pay the advance deposit
and he also requested that
nbn change the scope of the request along the following lines:
"I am seeking data from NBN Co's service job tracking system, commonly interfaced by RSPs
and the NSOC through the 'Service Portal'. The extract of these records should show all
instances in the below period where an appointment was made for service or installation of
an NBN service, but where this was cancelled or postponed by NBN Co or the service agent.
This should include occurrences where the technician failed to attend without the
appointment being cancelled or postponed in advance. Other details requested remain per
the original request (E.g. record date, reason for cancellation etc). These records should
cover the period March 1st 2015 through 29th Feb 2016." As this is only a clarification of the
existing request, I do not believe this should materially change the fulfilment time required,
but if it does so please do let me know”.
12. On 21 April 2016, I responded to the Applicant, indicating that it was possible to extend the
period and the terms, as outlined above. However, I would first need to revert to the business to
confirm whether the scope has changed significantly, and whether this may constitute a
substantial and unreasonable diversion of resources, as per section 24 and following of the FOI
Act. On the same day, I confirmed that it would be possible to change the scope of the FOI
application without a significant impact upon the FOI decision making time. As such, I informed
the Applicant that the advance deposit fee would remain the same.
13. On 26 April 2016,
nbn’s Finance Group confirmed that the Applicant had paid the advance
deposit.
14. On 18 May 2016, the Applicant emailed me, requesting what further actions were required to
finalise this FOI application. On the same day, I emailed the Applicant, indicating that once he
made the final processing fee payment, I would release the decision and any relevant
documents, if the FOI decision contemplated the release of documents. In that email, I also
stressed that the payment of FOI processing fees would not guarantee access to information or
documents and I also invited the Applicant to discuss his application with me.
15. On 20 May 2016, I completed my FOI decision and requested that the Applicant pay the
remaining processing fees. For reference,
nbn staff spent more than the estimated 11.5 hours,
per the Advance Deposit Request, searching and retrieving information and data for this FOI
request. In addition, I spent approximately 12 hours in drafting and finalising this FOI decision,
as well as completing relevant correspondence and undertaking discussions with
nbn’s IT group
and other experts in our business regarding this request.
16. On 31 May 2016,
nbn’s Finance Group confirmed that the Applicant had made the final, FOI
processing fee payment and I subsequently forwarded a copy of this decision to the Applicant.
Findings of Material Fact
17. Following receipt of the Applicant’s request,
nbn staff undertook searches through the
company’s electronic and other files, so as to locate any relevant documents falling within the
scope of the Applicant’s request.
18. As per section 3(1)(b) of the FOI Act, members of the public have the right to seek access to
“documents”, rather than discrete bits of information. It is clear from the terms of the Applicant’s
FOI request that he was seeking data, rather than a document. Moreover,
nbn does not
normally prepare a report in the form requested by the Applicant. To respond to the request,
nbn would be required to create a document, which is contemplated under section 17 of the FOI
Act. In particular, Government authorities may provide applicants with information, where such
information is not available in a discrete written form and where the information is “
ordinarily
available to the agency for retrieving or collating stored information”. In that regard, I received
advice from
nbn staff that it would be possible to create a document containing the information
requested by the Applicant (the
Relevant Document).
19.
nbn staff created the Relevant Document by importing data from various
nbn internal
repositories and creating a new data set. For the sake of simplicity, I will refer to the data in the
Relevant Document as missed appointment information (
MAI). For reference, the Applicant’s
FOI request seemed to suggest that the MAI could be found within
nbn’s Service Portal.
However, that is not factually accurate. The Service Portal was only one of various sources used
to collect the MAI.
20. In addition, I undertook discussions with subject matter experts within
nbn regarding the MAI
and made the following findings:
i.
nbn collects various data sets, which the company uses to generate metrics relating to
the operation of the
nbn™ network.
ii. Among other purposes,
nbn collects and reports on various data to assist in meeting its
contractual reporting obligations under the
Wholesale Broadband Agreement (
WBA),
including but not limited to
nbn’s Product Catalogue - Service Levels Schedule (
the
SLS).
iii. Under sections 2.2 and 15.3 of the SLS,
nbn is required to produce various
Performance Reports for our wholesale customers, i.e. retail service providers (
RSPs).
iv. Relevant to the current FOI request, section 2.2 of the SLS outlines certain performance
objectives, which
nbn reports to RSPs, in relation to end user connection appointments.
v. Under section 2.2 of the SLS,
nbn reports on rescheduled appointments. It follows that
this performance objective data (
PO Data) and report are similar to, but not the same
as the request for data made by the Applicant, noting that the Applicant requested all
cancelled and postponed, i.e. rescheduled, appointments, among other information.
vi. Section 15.2(a) of the SLS makes it clear that “Performance Reports and any
measurement and monitoring information produced by NBN Co are the Confidential
Information of NBN Co”. This confidentiality provision covers the PO Data and related
reports under the SLS.
vii. The WBA contains a rebate scheme in 1.4 of the SLS which is related to the PO Data. In
particular, individual RSPs may potentially make a rebate claim to
nbn if the company
has not met various target metrics, including certain data contained in the PO Data. It
follows that the details of the PO Data concerning individual RSPs are highly sensitive
commercial information.
viii.
nbn only shares RSP specific Performance Reports with the individual RSPs to which the
data relates.
ix. Via the Service Portal, RSPs may access their own individual metrics, including the PO
Data. Again, the data on the Service Portal only contains information on which
nbn reports. For the purposes of this FOI request, the key data set is rescheduled
appointments.
x.
nbn has not publicly disclosed its Performance Reports under WBA, nor associated
data/metrics such as the PO Data, nor data sets similar to the MAI.
xi. There is no regulatory requirement that the Performance Reports under the WBA, the
PO Data or associated metrics be disclosed.
xii.
nbn uses the PO Data, among other data sets and information, to track the company’s
internal key performance indicators.
xiii.
nbn also uses the PO Data, among other data sets and information, to benchmark the
performance of various delivery partners under certain
nbn construction, network
rollout and maintenance contractual regimes.
Access Decision - Reasons
21. 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.
22. As per
section 7(3A) and
Part II of Schedule 2 of the FOI Act, documents that relate to
nbn’s
“commercial activities” are not subject to the operation of the FOI Act. The following link
summarises and provide
s general background information (
the Backgrounder) concerning
nbn’s commercial activities exemption (
CAE) and should be referenced and considered as
forming part of this access decision.
23. As outlined in the Backgrounder, there are various criteria against which to make a
determination that a given activity is commercial for the purposes of the FOI Act. In summary,
nbn’s commercial activities are those that are related to, engaged in or used for commerce, but
should be considered in the whole of the circumstances. A key issue is whether there is a profit-
making objective and it involves activity to generate trade and sales with a view to profit. As
outlined in the Backgrounder, it is clear that
nbn, as a company, is focussed on generating sales
and making a profit. As related to the current application,
nbn generates sales revenue by
selling its services to RSPs, which then resell
nbn™ network packages to their retail customers –
in homes, businesses and so forth.
24. Per the Findings of Material Fact, it is clear that
nbn’s PO Data and reports relate to the
company’s commercial activities, noting that these metrics provide a basis upon which RSPs may
seek a rebate from
nbn for its supply of wholesale broadband services. The commercial
sensitivity of this information is highlighted in the WBA, which contains a confidentiality
provision. Moreover, these metrics relate directly to
nbn’s profit making activities, as any
rebates would impact
nbn’s overall profitability. For those and other reasons,
nbn tracks the PO
Data – and other metrics – internally as a means to gauge effective corporate performance and
set benchmarks for various business units.
25. However,
nbn’s PO Data are not the same as the MAI. As outlined above, the Applicant made a
request for all postponed and cancelled appointments across the network, while
nbn only reports
on rescheduled appointments and at the RSP-specific level. In addition, the MAI does not relate
directly to a given RSP, nor does it give details that are regional or State specific. This would
suggest that the MAI may not be readily linked to a given RSP’s performance, nor that of a
construction delivery partner. These facts could be viewed as supporting the contention that the
MAI, in its current form, may not have the same level of commerciality as PO Data linked to
individual RSPs.
26. Irrespective of the above contentions, I am of the opinion that the MAI and the Relevant
Document relate to
nbn’s commercial activities for the following reasons:
i.
Incentive regime under construction, maintenance and rollout contracts –If the
MAI were released under the FOI Act, it could be used to undermine
nbn’s commercial
position in negotiating construction, maintenance and operational contracts. In
particular,
nbn has negotiated contractual regimes that incentivise our delivery partners
to meet and exceed connection appointment targets, with the objective of accelerating
the rollout of the
nbn™ network and meeting
nbn’s contractual commitments to its
customers, the RSPs. Some of these incentives relate to our delivery partners’
performance in completing end-user activation appointments in a certain time, rather
than
nbn’s own performance regarding meeting appointments.
However, the two metrics noted above are connected in a commercial sense. In
particular,
nbn’s ability to negotiate increased performance from its delivery partners
could be undermined if those delivery partners knew
nbn’s MAI data in advance. In
other words, there may be less incentive for delivery partners to do more than simply
meet
nbn’s own MAI rate, thereby undermining a key objective in
nbn’s contracting
model of accelerating the rollout and meeting nbn’s contracted commitments to its RSP
customers. A slower rollout would likely translate into lower take up of
nbn™ network
services by end users and potential exposure to greater rebate claims from
nbn’s own
customers, the RSPs. These factors could adversely impact upon
nbn’s ability to make
an adequate return on investment and its overall profitability. In my opinion, this clearly
relate to
nbn’s commercial activities.
ii.
Impact on WBA regime - The Relevant Document contains a large data set with
numerous postponed/cancelled appointments broken day by days over an entire year. I
also note that details of
nbn’s customers, the RSPs, are made public, as are their
relative market share across
nbn’s various technologies by the Australian Competition
& Consumer Commission (
ACCC) in it
s Wholesale Market Indicators Report (
WMI
Report). If the MAI were made public, it may be possible to use the information in
ACCC’s WMI Report to extrapolate individual RSPs’ estimated or likely PO Data. It may
also be possible to estimate the rebates available to individual RSPs, which is
confidential information under the WBA. The potential release of the MAI could also
adversely impact the company’s ability to negotiate favourable contractual terms under
its wholesale supply arrangements via the WBA in relation to performance, among other
metrics. This could impact
nbn’s profitability, thereby relating clearly to
nbn’s
commercial activities.
iii.
Impact upon nbn’s standing in business community – Drawing from the previous
point, the release of, what is effectively, confidential information under the WBA, could
also have an impact upon
nbn’s standing in the business community. In particular,
commercial partners may be less willing to share confidential information with
nbn, or
may only do so at an increased cost to
nbn, noting that the company could be required
to release such information pursuant to an FOI request. This could have an impact on
nbn’s commercial affairs, particularly in its ability to attract and retain commercial
partners of the highest quality, thereby impacting on
nbn’s ability to sell it services and
rollout its network.
iv.
Internal assurance processes and benchmarking -
nbn also employs data in the
Relevant Document for internal assurance processes that relate directly to one of
nbn’s
key corporate performance indicators, being premises activated. Beyond
nbn’s goal of
activating 8 million premises by 2020, there are weekly, quarterly and yearly (as well as
longer term) milestones that
nbn is required to meet. The number of activations and
any delays in activating premises caused by rescheduling, cancellations and so forth are
the subject of intense scrutiny by
nbn’s executive. In that regard, significant executive
and line management efforts go into business modelling and planning efforts to ensure
that corporate targets are met. Again, I note that
nbn does not report on the specific
data set created for this FOI application. It follows that the release of MAI may not fully
reflect the company’s performance, as it is a mixture of data and indices brought
together from various sources. On that basis, the release of the MAI – as well as
extrapolated PO Data – could undermine
nbn’s ability to develop robust business plans
to ameliorate its own, internal performance regarding activations, among other
benchmarks. This could have the effect of reducing the efficacy of business modelling
and plans, as well as limit
nbn’s executives’ ability to conceptualise, time and
implement these plans. On that basis as well, I am of the opinion that the MAI relates
to
nbn’s commercial activities.
27. For the above reasons, I am of the opinion that the Relevant Document and the MAI relate to
nbn’s commercial activities. As such, they are not subject to the application of the FOI Act. This
decision is subject to review under the FOI Act. The Office of the Australian Information
Commissioner’s FOI Fact Sheet 12 – Your review rights may be found at the following
link.
