21 December 2020
MG
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI-2021/28.11
Dear MG
FOI Act Application – Access Decision
I am writing in relation to your application
made under the
Freedom of Information Act, 1982 (
FOI Act) seeking
access to the area in which
nbn does not intend to switch off DPBO.
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 following
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 FOI
application.
Yours sincerely
Rohan Singh
Senior Legal Counsel
FOI Privacy & Knowledge Management
FREEDOM OF INFORMATION REQUEST – FOI-2021/28.11
ACCESS DECISION
STATEMENT OF REASONS
Background – nbn and the FOI Act
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 infrastructure.
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. To that end,
nbn makes a large
amount of information freely available to the public on our website
: http://nbnco.com.au/.
3.
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 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 authorises me, to make decisions
about access to documents and related matters under the FOI Act.
6.
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
7.
On 1 October 2020,
nbn received an FOI request from MG (
the Applicant), in the following terms:
“On 17 Feb 2020 (in an email with "Charllick Rd" in the title), NBNCo stated the following: "Mr Wilkinson lives in one of 15 premises on Charlick Rd, Crafers West, which have been allocated
Sky Muster™ (satellite) as their nbn™ access technology.
These 15 premises have the option of maintaining an ADSL service beyond the completion of the
NBN-ADSL co-existence period for this area. Typically, when co-existence concludes in an area, the
Downstream Power Back-Off (DPBO) is switched off. Mr Wilkinson’s observation that this change can result in interference to ADSL services within an
area is valid. However, in the case of Charlick Rd, NBN Co has investigated options and found that
there will not be a need to turn-off the DPBO, and therefore does not intend to do so.
This will ensure no interference to ADSL services in the area and will not affect the nbn™ access
network’s ability to deliver stable broadband service which meet our mandated speed targets to
fixed line services in the area."
I am requesting the following information:
1. Identification of the "area" where NBN Co does not intend to turn-off DPBO. (Suburb name(s) are
sufficient) 2. The total number of "fixed line services in the area" affected by NBN Co's intention to not turn-off
DPBO. ("Total number" means any premises that is already connected or can potentially connect to
a NBNCo fixed line service in "the area".)”
8.
On 27 October 2020, I confirmed:
a. the scope of the Applicant’s request as required by section 15(5) of the FOI Act;
b. the processing period commenced the day after receipt of confirmation of the scope of the
request;
c. a processing charge was payable;
d. an advance deposit request in the sum of $38.75, based on a fee estimate of $155.00;
e. the materials within the scope of this FOI request could potentially fall within the
nbn
Commercial Activities Carve-out provided under section 7(3) of the FOI Act, placing subject
materials outside the application of the FOI Act (among other exemptions from release). I also
provided the Applicant with information relating to
nbn’s Commercial Activities Carve-out,
together with relevant links containing background information and OAIC reviews; and
9.
26 days of the processing period had transpired as at the date of that correspondence.
10.
On 29 October 2020, the Applicant requested a waiver of the processing charges and at the same time
narrowed the scope of his request to:
“Identification of the "area" where NBN Co does not intend to turn-off DPBO. (Suburb name(s) are
sufficient).”
11.
On 27 November 2020, I made a processing charges decision, determining that the Applicant was liable to
pay a fee for the processing of his request, in accordance with the provisions of the FOI Act.
12.
On 30 November 2020, the Applicant corresponded by email and supplemented his reasons for
requesting an exemption from processing charges.
13.
On 16 December 2020, I wrote to the Applicant indicating that, due to his supplemental submissions in
relation to his fee waiver request, that I would withdraw my processing charges decision and waive
nbn’s
processing fees.
14.
On the date set out above, I made my access decision, as outlined below.
Summary of decision
15.
As an FOI decision maker, I am obliged to consider whether the information requested by the Applicant
falls within the terms of section 7(3A) of the FOI Act, being
nbn’s commercial activities carve-out (
CAC)
and is therefore not subject to the FOI Act. It is my decision that the information requested by the
Applicant falls within the CAC and is therefore exempt from release.
Findings on material questions of fact
16.
Under section 3(1)(b) of the FOI Act, the public has a right to seek access to “documents” rather than to
discrete bits of information. However, section 17 of the FOI Act enables
nbn to provide applicants with
information where such information is not available in a discrete written form but it 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 within the scope
of the current request (
Relevant Information).
17.
I undertook discussions with subject matter experts within
nbn regarding the Relevant Information and
made the following findings:
a. The Relevant Information is the suburb name(s) comprising the “area” where
nbn does not intend
to turn off downstream power back off (
DPBO) as per the email quoted in the Applicant’s
correspondence dated 1 October 2020.
b. DPBO is a technique used to facilitate “co-existence” of communications systems. Co-existence is
the term used to indicate that two (or more) communications systems operate on the same cable
at the same time. Newer systems can co-exist on the same cables as older “legacy” systems;
however the new system may disturb the legacy system if the power to the new system is not
appropriately reduced. This reduction in power to a new system sharing a cable with a legacy
system is known as downstream power back off, or DPBO.
c. If DPBO is in effect on part of a network, optimal network speeds may not be possible for
premises in the relevant area. End users in the relevant area may be affected by DPBO,
depending on several factors including network demand in that location and the maximum speed
of each end user’s plan with their retail service provider (
RSP).
nbn keeps the areas where DPBO
is in effect confidential so that this information is not used by competitors to their
advantage/
nbn’s detriment.
d.
nbn employs DPBO in where its network co-exists with a legacy network. The period of co-
existence is generally the subject of commercial arrangements between
nbn and the
owner/operator of the legacy system.
nbn may or may not have the option to terminate co-
existence and DPBO, and such termination can in certain circumstances be blocked by the owner
of the legacy system.
e. When the co-existence period ends,
nbn generally switches off DPBO in the relevant location as
permitted by such commercial arrangements. Switching off DPBO can have the effect of
improving the potential performance of
nbn’s network in the relevant location.
f. The Relevant Information essentially describes the area where, according to the letter quoted by
the Applicant, co-existence is in effect and accordingly could indicate properties connected to the
nbn™ network that may not be able to achieve optimal network speeds. It may also indicate
where third party legacy services are being provided or could be available and where third parties
have required co-existence to continue under their commercial arrangements with
nbn.
g. Accordingly, I find that the Relevant Information:
i. contains material which is confidential to nbn;
ii. includes detail and characterisation of the performance (or potential performance) of
nbn’s commercial offering of services;
iii. could be used by nbn’s competitors or other commercial entities to target end users for
rectification, repair, maintenance works, or other related services (including services
using different technologies or the same or similar technologies in parallel, i.e.
‘overbuilding’ in areas in which
nbn already offers its services, or may choose to do so in
the future);
iv. could be used by competitors or other commercial entities to target sales campaigns or
other commercial engagement with end users or retail service providers;
v. could be used by competitors in the telecommunications industry to gain advantage in
respect of dealings, either with
nbn, or as between each other;
vi. if released, and because of the foregoing, may impact upon
nbn’s operations or value as
an enterprise, by adversely impacting
nbn’s:
1. negotiations with third parties in relation to the product offerings of, and
communications about the product offerings of, RSPs;
2. negotiations with third parties in relation to the pricing of current and future
nbn
broadband internet services, in respect of both RSPs and end users; and
3. reputation, whether in respect of the quality, capability, performance, or other
related characteristics of the services it offers.
Access Decision
18.
In undertaking my review of the Relevant Information, 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.
19.
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.
20.
Information relating to
nbn’s commercial activities is exempt, or carved out, from the application of the
FOI Act, pe
r section 7(3A) and
Part II of Schedule 2 of the FOI Act. The following link summarises and
provides
General Background Information concerning
nbn’s commercial activities carve-out (the
CAC) or
carve-out from the application of the FOI Act. That background document references two Office of the
Australian Information Commissioner (
OAIC) reviews that considered
nbn’s CAC in January 2012 (the
Internode Decision) and again in July 2013 (th
e Battersby Decision).
21.
I rely upon the General Background Information, noted above. In addition, it is my decision that the
Relevant Information falls within the meaning of section 7(3A) of the FOI Act, for the reasons outlined
below. Therefore, the Requested Documents are not subject to the operation of the Act.
22.
At issue in this FOI decision is whether the Relevant Information falls within the definition of “commercial
activities”, as provided under the FOI Act. In my view, the Relevant Information falls within the definition
“commercial activities” because it is comprised of information used in relation to activities carried on by
nbn on a commercial basis, as outlined below, per the findings of fact above:
23.
The Relevant information:
a. was determined at least in part due to the way in which
nbn designed its network based on both
technical and commercial considerations;
b. is confidential to
nbn because of its inherently close relationship to the commercial activities
conducted by the company, and is treated as confidential in its dealings with third parties;
c. could be used by third parties to engage in their own commercial activities, which could
potentially impact the profit made by
nbn, or otherwise generate profit at the expense of
nbn,
whether by offering the same or similar services, or services offering different, competing
technology; and
d. could if released have an impact upon future commercial activities to be carried on by
nbn,
including the prospect of further participating in co-existence using DPBO.
24.
I am of the view that the features of the Relevant Information, together with each of the scenarios
outlined above, relate to activities carried on by
nbn on a commercial basis, or activities carried on by
nbn
that may reasonably be expected (in the foreseeable future) to be carried on by
nbn, on a commercial
basis.
25.
Considering the points above, I find that the Relevant Information is exempt from release under the FOI
Act, per section 7(3A) of the FOI Act.
26.
It is unnecessary to consider any further exemptions considering my determination that the Requested
Documents fall within the meaning of the commercial activities carve-out. Without limiting the foregoing,
there are other grounds upon which access to the Requested Documents could potentially be refused. In
my opinion, the Requested Documents would also be exempt from release based on the following
sections of the FOI Act:
a. s47 (documents disclosing commercially valuable information) of the FOI Act;
b. s47G (business, commercial or financial affairs).
27.
However, I have determined not to provide reasons in relation to those general and conditional
exemptions.
Decision-making Time and Fees
28.
In my charges decision of 27 November 2020, I articulated arguments as to the grounds upon which I
decided that the Applicant’s request for a waiver of fees in respect of this application ought not to
succeed. However, the Applicant made supplemental submissions with respect to financial hardship. In
the circumstances, I have withdrawn that decision and determined to waive processing fees in relation to
this FOI application. This is permitted by Regulation 3 of the
Freedom of Information (Charges)
Regulations 1982, which 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.
29.
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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