24 January 2020
“BIFMA”, a pseudonym
Sent via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI1920/61.02
To whom this may concern:
FOI Application – Satellite Services
I am writing in relation to your request
made under the
Freedom of Information Act, 1982 (
the FOI Act).
The Statement of Reasons (
Attached) outlines the specific terms of your 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 (
OAIC) website at the following
link, which provides details about your
rights of review and other avenues of redress under the FOI Act.
If you have any questions or need to discuss your FOI application, please contact me via email on
xxxxxxxxxxx@xxxxx.xxx.xx. Yours faithfully,
David J Mesman
General Counsel
FOI, Privacy & Knowledge Management
FREEDOM OF INFORMATION REQUEST – 1920/61
ACCESS DECISION – STATEMENT OF REASONS
Application Chronology and Terms of Request
1. On 12 November 2019, “BIFMA” (a pseudonym, and
the Applicant) made a request (
Original Request) under
the
Freedom of Information Act, 1982 (
the FOI Act) seeking the following:
“Can you please advise how many premises are mapped for a Skymuster connection (as at 12/11/2019)
within a 25km radius of the GPO in each Capital City for each State? (NT & ACT are excluded from this
request). Please breakdown the number of premises by each City. Eg; Sydney: ###, Melbourne: ###,
Brisbane: ###, Perth: ###, Adelaide: ###, Hobart: ###.”
2. On 22 November 2019, I acknowledged the Original Request per section 15(5) of the FOI Act.
3. On 5 December 2019,
nbn’s FOI Team
informed the Applicant of the estimated final processing charges
payable in relation to the Original Request. In that same email,
nbn’s FOI Team requested that the Applicant
make payment and provided details in that regard, among other matters.
4. On 7 December 2019,
nbn’s FOI Team confirmed that
nbn’s Finance Group had received the final processing
payment in relation to the Original Request. On the same date, the Applicant emailed
nbn and made a series
of contentions, requesting that
nbn waive processing fees in relation to the Original Request. As outlined in
those contentions, the Applicant paid the fees to expedite the processing of the Original Request.
5. On 17 December 2019, I completed the FOI decision in the Original Request and subsequently forwarded it to
the Applicant.
6. On 3 January 2020, I completed the Charges Decision in relation to the Original Request and refused the
Applicant’s request for a fee waiver –
nbn FOI reference 1920/41.06.
7. On 17 January 2020, the Applicant emailed
nbn’s FOI Team and, among matters, requested:
a) An assurance the information released in the FOI is for all premises mapped for Skymsuter, and not just
active connections; and
b) If the information released only provides for active connections, an update to the FOI providing
information on all premsies (sic) mapped to receive Skymuster (whether the connection is active or not).
8. On 22 January 2020, I reverted to the Applicant and indicated the following:
“I confirm that that data provided was in relation to active Sky Muster™ connections. For reference, nbn
does not use the term “mapped” to describe unconnected or inactive premises. nbn will consider your
request for unconnected or inactive premises designated as Sky Muster™ connections in current nbn™
network deployment planning.
nbn will not charge you for the processing of this request for additional information, noting the confusion
regarding the original terms. We will revert to you as soon as possible. Please note that nbn’s FOI Team
will need to consider whether the additional data relates to nbn’s commercial activities and/or whether
the data may be exempt from release.”
9. On 24 January 2020 – and after reviewing this revised request (
nbn reference FOI1920/61) and receiving
input from
nbn subject matter experts (
SMEs), I completed this FOI decision.
Background Information
10. In completing this FOI 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
applicable sources.
11.
nbn is treated differently from other agencies and Commonwealth entities that are subject to the FOI Act. Per
section 7(3A) and
Part II of Schedule 2 of the FOI Act, documents relating to
nbn’s commercial activities are
carved-out from the application of the FOI Act.
12.
nbn has summarised the OAIC’s and the Administrative Appeals Tribunal’s decisions concerning
nbn’s and
similar entities’ commercial activities carve-out (
CAC) in a General Background Information Document (
GBI
Document) found at the follo
wing link.
Findings of Fact & Access Decision 13. Under the FOI Act, applicants have a right to seek documents, rather than information or datasets. However,
section 17 of the FOI Act permits FOI agencies to draw information from computers or other equipment and
to collate that information into a document, which had previously not existed. This requirement is subject to
a caveat, i.e. that an FOI agency is not required to collate the information if it would substantially and
unreasonably divert the agency’s resources.
14. Noting the above points,
nbn SMEs were able to identify relevant information within
nbn’s IT systems and
collate the same into a new document (
the Requested Document –
found at
Attachment A) – and without
unreasonably and substantially diverting
nbn’s resources.
15. Drawing from discussions with
nbn SMEs, I made the following findings of fact:
a. As flagged in Original Request Decision (FOI1920/41.05), the distance from a capital city’s GPO is not
necessarily an indicative measure of whether a given premises can expect to be connected to the
nbn™ network via satellite vs. fixed line or fixed wireless services. It is
nbn’s practice to deploy Sky
Muster™ satellite services where providing fixed line or fixed wireless connections to that area would
be unworkable.
b.
nbn does not generally provide data regarding the
nbn™ network rollout unless it is accurate. Among
other reasons, this helps to ensure that
nbn™ network end-users, our retail service providers and the
general community can make accurate and reliable assessments about the
nbn™ network services.
This has implications for
nbn’s brand and its perception in the broader community and commercial
markets, which can impact upon the speed at which end-users migrate to and purchase
nbn™
network services from retail service providers (
RSPs), i.e.
nbn’s wholesale broadband customers. This
can have a corresponding effect upon
nbn’s revenue streams, the company’s ability to meet long and
short-term corporate targets and overall profitability.
c. In relation to the Original Request,
nbn’s FOI Team provided the Applicant with data concerning
active Sky Muster™ connections. For reference,
nbn does not use the term “mapped” to describe
unconnected premises. In that regard, it is important to note the following points:
i.
nbn tentatively assigns premises an
nbn™ network technology based on
nbn’s current
deployment plans (
Potential Connection Data or PCD), which are subject to change. This is
made clear at
nbn’s
“Check your address” website, which outlines the following:
“This… technology is based on nbn’s current deployment plans and is subject to change.
Network rollout information is accurate as at (date of search) and is updated weekly.
Rollout areas and boundaries are subject to change as construction planning is finalised.”
ii.
nbn regularly revises its network deployment plans so as expedite the speed of the rollout,
minimise costs and enable, where possible, that upgrade paths are available to end-users.
This is made clear in
nbn’s Shareholders’ Statement of Expectations, which indicates that
nbn should operate its business on a commercial basis and that:
“nbn should roll out a multi-technology mix network and build the network in a cost
effective way using the technology best matched to each area of Australia. nbn will
ensure upgrade paths are available as required.”
iii. In relation to
nbn Sky Muster™ network connections,
nbn’s deployment plans regularly
change and the PCD:
• Is reflective of a given point in time and may change due to alterations in
nbn’s
network deployment plans;
• Includes RSP trial sites that will not be connected to end-users’ premises;
• Includes monitoring sites which
nbn uses to check the “health” of the
nbn™ network,
which will not be connected to end-users’ premises;
• Contains sites that may never be connected to the
nbn™ network, e.g. an isolated
building in a rural, remote or inaccessible location, where retail end-users may not
wish to obtain an
nbn™ network connection; and
• Unlike the case with
nbn™ network connections within the fixed line footprint, there
is no requirement to disconnect a legacy (copper line) connection. As such, premises
that are categorised as a potential satellite connection may continue with their legacy
service or a combination of Sky Muster™ connection and legacy services.
16. Based upon the above points, the PCD is not an accurate reflection of the number of premises that can
connect, nor those that will definitively connect to the
nbn™ network via a Sky Muster™ connection. It
follows that the disclosure of the PCD could be considered as relating to
nbn’s commercial activities, noting
the potential effects upon
nbn’s brand, noted above.
17. The PCD may also be considered to relate to
nbn’s commercial activities on the basis that it is reflective of
nbn’s internal business planning regarding deployment of a specific technology solution at a given point in
time. As outlined above, these figures may and will likely change based upon
nbn’s internal business planning
processes. I would generally consider such a dataset as relating to
nbn’s commercial activities if the data were
linked to specific premises, locations or suburbs. The reason is that such data would tend to reveal changes to
nbn’s planning processes prior to
nbn making such processes publicly available.
18. Noting the above points,
nbn has consistently refused access to prospective rollout data, as well as refusing
access to the location of
nbn assets, mapping data and similar information.
nbn’s FOI Team made these
findings on the basis that the information and data are
nbn’s intellectual property and/or have been gleaned
pursuant to commercial contracts, under which
nbn owes obligations of confidentiality. This is particularly the
case in relation to
nbn data that has been produced through licensing arrangements with its delivery
partners. More generally, disclosure could reveal to competitors the specific premises, locations or suburbs
on which to focus their marketing efforts. There would be acute commercial sensitivities and particularly
where competing technologies may be promoted, such as 5G mobile or other networks. Such efforts could
undermine
nbn’s business modelling as well as the company’s commercial and strategic goals.
19. Notwithstanding those points, the PCD is not tied to specific locations, but merely a broad geographic area,
i.e. within 25 kms of capital cities’ GPOs. As flagged in the Original Request and above, the distance from a
capital city’s GPO is not necessarily an indicative measure of whether a given premises can expect to be
connected to the
nbn™ network via satellite vs. fixed line or fixed wireless services. In my opinion, disclosure
of the PCD would not tend to reveal prospective rollout information or other data that may be used to
undermine
nbn’s commercial efforts. It is important to note that this reasoning would not necessarily apply to
FOI requests for more specific locations.
20. After a review of relevant sections of the FOI Act, the OAIC Guidelines and other sources, I have determined
to grant access in full to the Requested Document under sections 11 and 11A of the FOI Act.
21. 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.
Attachment A – FOI1920/61 – Document Released in Full
Under the
Freedom of Information Act, 1982 (
the FOI Act), FOI applicants have a right to seek documents, rather
than information or datasets. However, section 17 of the FOI Act permits FOI agencies to draw information from
computers or other equipment and to collate that information into a document, which had previously not existed
(
the Requested Document).
nbn’s FOI Officer determined to release the Requested Document to the Applicant.
General Post Office (GPO) (*)
Active nbn satellite services within
Potential, inactive nbn satellite services (**) within
25km of GPO at 12 Nov/2019
25km of GPO at 12 Nov/2019
Adelaide GPO
462
1917
Brisbane GPO
103
545
Hobart GPO
264
777
Melbourne GPO
61
802
Perth GPO
115
492
Sydney GPO
28
111
Grand Total
1033
4644
(*) It is important to note that distance from a capital city’s GPO is not necessarily an indicative measure of
whether a given premises can expect to be connected to the nbn™ network via satellite vs. fixed line or fixed
wireless services. It is nbn’s practice to deploy Sky Muster™ satellite services where providing fixed line or fixed
wireless connections to that area would be unworkable.
(**) It is also important to note that potential, inactive connection numbers:
•
are reflective of a point in time and may change due to alterations in nbn’s network deployment plans,
such as with upgrades in access technologies;
•
would include sites designated for nbn’s wholesale broadband clients, i.e. retail service provider or RSP
trial locations and nbn’s own monitoring sites for testing the health of the nbn™ network;
•
would also represent sites or locations where end-users may not wish to connect to the nbn™ network,
e.g. at an isolated building in a rural, remote or inaccessible location;
•
would also include premises where end-users may have chosen not to connect to the nbn™ network and to
retain legacy services; and
•
would also include premises where end-users may subsequently choose to connect to nbn™ network
services at a future date, noting that end-users with Sky Muster™ connections can continue using their
legacy (copper line) services and for which there is no mandatory disconnection requirement. This is not
the case within the nbn™ network’s fixed-line (copper) footprint, where end-users have roughly 18 months
in which to migrate to the nbn™ network before they are disconnected from legacy services.
