20 May 2021
ST
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI 2021/54.11
Dear ST
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 a list of the criteria used for selecting certain geographic areas for a network upgrade.
The Statement of Reasons (
attached) outlines the specific terms of the FOI request, the decision-maker’s findings
and the access decision.
Where applicable, an FOI decision may be reviewed under Part VI and Part VII 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 2021/54.11
ACCESS DECISION
STATEMENT OF REASONS
20 MAY 2021
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 and operation of Australia’s 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 its 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).
nbn endeavours to release information proactively, while considering its 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 12 February 2021,
nbn received an email from “ST” (the
Applicant) in the following terms:
“I refer to the following two media releases:
-
https://www.nbnco.com.au/corporate-information/media-centre/media-statements/nbn-
extends-fibre-to-additional-100k-premises
-
https://www.nbnco.com.au/corporate-information/media-centre/media-statements/nbn-co-
announces-next-100k-premises-in-fttn-to-fttp-upgrade
As the media statements appear to not provide any reasoning as to why these areas are selected, I
am requesting the following information under the FOI act:
1. Any statement, documentation, or internal correspondence that that would show the following:
1.1: Explanations, reasons or rational as to why the areas mentioned in the media releases have
been selected as locations where the fibre network is to be extended.
1.2: Any areas that were considered but ruled out, and the rational behind this.
2. The split in technology types within the areas for both 1.1 and 1.2
3. If any parties external to NBN have been consulted on the areas selected in both 1.1 and 1.2”
8.
On 26 February 2021,
nbn wrote to the Applicant to ask for clarification so as to comply with the
provisions of section 15(2) of the FOI Act.
9.
Following an exchange of correspondence with the Applicant, the Applicant agreed on 23 March 2021 to
amend the scope of the request, to:
“a list of the criteria that nbn uses to take into account which has made them select all of these
areas that ultimately ended up selected”.
As per the Applicant’s email sent 12 February 2021, the wording “these
areas” in the above request
means the two tranches of areas selected for fibre upgrade as referenced in
nbn’s media statements
dated 27 October 2020 and 10 February 2021, being:
Tranche 1:
•
Belmont North, Charlestown, Toronto, Carramar, Castle Hill, Holsworthy, Liverpool, and
Wetherill Park in New South Wales;
•
Lyndhurst and Narre Warren in Victoria;
•
Acacia Ridge, Browns Plains, Eight Mile Plains and Oxenford in Queensland;
•
Osborne in South Australia, and
•
Cannington and Double View in Western Australia.
Tranche 2:
•
Campbelltown, Elderslie, Narellan, Maitland, Singleton, Tarro, New Lambton, Bathurst and
Orange in New South Wales;
•
Deer Park, Sydenham, Berwick South, Cranbourne and additional areas of Narre Warren in
Victoria;
•
Albany Creek, Ashgrove, Bald Hills, Ferny Hills, Robina, Burleigh Heads and Townsville in
Queensland;
•
Elizabeth, Gepps Cross, Salisbury and Golden Grove in South Australia, and
•
Girrawheen, Kingsley, Wanneroo, Canning Vale and Jandakot South in Western Australia.”
10.
On 12 April 2021, 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 $48.75, based on a fee estimate of $195.00;
e. the materials within the scope of this FOI request could potentially fall within the
nbn
Commercial Activities Exemption 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 Exemption,
together with relevant links containing background information and OAIC reviews; and
f. 19 days of the processing period had transpired as at the date of that correspondence.
11.
On 15 April 2021, the Applicant corresponded by email requesting a waiver of
nbn’s FOI processing
charges.
12.
On 14 May 2021, I made a processing charges decision, waiving all processing charges for this request.
13.
On the date set out above, I made my access decision, as outlined below.
Findings on material questions of fact
14.
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).
15.
In addition, I reviewed the Relevant Information and discussed it with relevant
nbn staff.
16.
I make the following findings in relation to the Relevant Information:
a. the Relevant Information was brought into existence in connection with plans for works
undertaken by or for
nbn in relation to upgrading the
nbn™ network;
b. the Relevant Information is used by
nbn for a number of commercial purposes, including to plan,
construct, maintain and rollout upgrades to the
nbn™ network;
c. the Relevant Information is not in the public domain and includes
nbn's commercial-in-confidence
information, including information in relation to:
i.
nbn's current operations; namely the way that it selects parts of the
nbn™ network using
Fibre to the Node (
FTTN) technology to be upgraded to Fibre to the Premises (
FTTP)
technology; and
ii. how
nbn undertakes its business activities and involves its delivery partners in the
relevant works.
Access Decision
17.
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 the Relevant Information is
exempt from release on the grounds specified below.
18.
In making my decision, I took into account relevant parts of the FOI Act and related legislation, the OAIC
FOI Guidelines, relevant case law and other sources, including th
e General Background Information
regarding
nbn’s CAC. 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).
19.
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”.
20.
Per section 7(3A) of the FOI Act, “commercial activities” mean:
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.
21.
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."
22.
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
(see page 7, paragraph 1.8 (c) of the Commonwealth Government Business
Enterprise – Governance and Oversight Guidelines at this link).
23.
Accordingly,
nbn operates as a commercial entity and, having regard to the foregoing, is bound to do so.
24.
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"; 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".
25.
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.”
26.
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.
27.
Furthermore, for the CAC to apply, the document or information under consideration need not meet a
commercial value threshold or be commercially significant. All that is required is that the document or
information 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.
28.
In looking at the whole of the circumstances, I consider that the Relevant Information is in respect of
nbn’s commercial activities for the following reasons:
a. The Relevant Information is comprised of commercial criteria used by
nbn to select geographic
areas for the
nbn™ network to be upgraded from FTTN to FTTP technology for use by end
customers of
nbn’s direct and indirect retail service provider customers. The subject matter and
content of the Relevant Information is therefore directly related to
nbn upgrading its network
and ultimately achieving a commercial outcome given that operation of the
nbn™ generates
revenue streams for
nbn. The goal of generating profits, income or revenue is considered a key
element in deciding that a document or information relates to
nbn's commercial activities.
b. The Relevant Information contains business information about
nbn’s business processes,
including information in relation to how and where
nbn plans to upgrade its network. This
information is commercially valuable to
nbn and the broader telecommunications market. If
nbn
were to release the Relevant Information, it 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 quality assurance and the potential commercial advantages associated with
these methods and processes.
29.
In my view, it would undermine the above commercial purposes and would have a significant impact on
nbn's commercial activities, if
nbn was required to reveal the business and commercial information as
described above.
30.
For the above reasons, I am of the opinion that the Relevant Information is in respect of
nbn’s commercial
activities and are exempt from release under section 7(3A) of the FOI Act.
31.
Considering my determination above, it is unnecessary to consider any further exemptions in light of my
determination that the Relevant Information falls within the meaning of the commercial activities carve-
out. There are other grounds upon which access to the Relevant Information could potentially be refused.
In my opinion, the Relevant Information may also be exempt from release under the following sections of
the FOI Act:
a. s47 (documents disclosing commercially valuable information) of the FOI Act;
b. s47D (substantive adverse effect on the financial or property interests of the Commonwealth);
and
c. s47G (business, commercial or financial affairs).
32.
However, I have determined not to provide reasons in relation to any general or conditional exemptions.
Decision-making Time and Fees
33.
As set out in my charges decision dated 14 May 2021, all processing charges in respect of the Applicant’s
request are waived. Accordingly, no fees in respect of this application are payable.
34.
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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