29 June 2021
Chris
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: FOI 2021/87.06
Dear Chris
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
Freedom of Information
FREEDOM OF INFORMATION REQUEST – FOI 2021/87.06
ACCESS DECISION
STATEMENT OF REASONS
29 June 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 6 May 2021,
nbn received an email from “Chris” (the
Applicant) in the following terms:
“Under Freedom of Information, can you please advise me of the distance between my house and
the node I will be/am contacted to?”
8.
The Applicant also provided the relevant address.
9.
On 20 May 2021, I wrote to the Applicant to ask for clarification so as to comply with the provisions of
section 15(2) of the FOI Act. At that time, I also indicated to the Applicant that the materials within the
proposed 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
10.
On 30 May 2021, the Applicant sent me an email in which he agreed to amend the scope of the request,
to:
“Either the direct distance or the length of any cabling to from my premises to the relevant node”.
11.
On 30 May 2021, I confirmed receipt of the Applicant’s email.
12.
On the date set out above, I made my access decision, as outlined below.
Findings on material questions of fact
13.
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).
14.
In addition, I reviewed the Relevant Information and discussed it with relevant
nbn staff.
15.
I make the following findings in relation to the Relevant Information:
a. the Relevant Information came into
nbn’s possession or was brought into existence in relation to
the connection of premises to 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 or may disclose
nbn's
commercial-in-confidence information, including information in relation to:
i. the distance of the copper cabling between the premises, and inferentially nearby
premises, and the location of the node serving those premises; and
ii. the route or location of cabling from the premise to the node.
Access Decision
16.
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.
17.
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).
18.
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”.
19.
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.
20.
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."
21.
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).
22.
Accordingly,
nbn operates as a commercial entity and, having regard to the foregoing, is bound to do so.
23.
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".
24.
The subsequent Battersby Decision reinforced the considerations referenced above, 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.”
25.
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.
26.
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.
27.
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 the distance from premises to the node servicing those
premises.
b. 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 by disclosing
the copper cable length to a specific residence, from which the length to nearby premises could
be inferred. The Relevant Information could be used by
nbn’s commercial competitors to inform
decisions about where to offer competitive services, either using fixed line or alternate
technology. The Relevant Information is therefore commercially valuable to
nbn and the broader
telecommunications market.
c. If the distance to the node is known, this may indicate or allow a person to determine the
location of the relevant node servicing the premises and the location or route of cabling from the
premises to the node.
d. The Relevant Information describes an aspect of the
nbn™ network which may have an effect on
the performance and operation of the network. The subject matter and content of the Relevant
Information is therefore directly related to
nbn achieving a commercial outcome because
operation of the
nbn™ network generates revenue 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.
28.
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.
29.
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.
30.
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).
31.
However, I have determined not to provide reasons in relation to any general or conditional exemptions.
Decision-making Time and Fees
32.
In light of the above points, and the small time taken for
nbn staff to locate the Relevant Information on
this occasion, I have 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. Given my decision to refuse access to the Relevant Information, I
have also not pressed my request for the Applicant to prove his identity and connection to the premises.
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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