19 December 2014
Sent via email: [FOI #799 email]
Our Ref: FOI1415/27
FOI Application – NBN Multi-Technology Deployment
I am writing in relation to your request made under the Freedom of Information Act, 1982
(the FOI Act
), seeking access to the
detailed, technical guideline from which the “NBN Multi-Technology Deployment Principles” summary was based.
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 sections 53A and 54 of the FOI Act. The Office
of the Australian Information Commissioner’s FOI Fact Sheet 12 – Your review rights
is attached for your information and may be found here.
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) 89185670 or via email on [email address].
Acting GM Legal Counsel
FOI, Privacy and Knowledge Management
cc. Justin Forsell, Chief Legal Counsel, NBN Co
(02) 9926 1900
(02) 9926 1901
LEVEL 11, 100 ARTHUR STREET, NORTH SYDNEY NSW 2060
NBN Co Limited ACN 136 533 741 © NBN Co 2013
FREEDOM OF INFORMATION REQUEST – 1415/27
STATEMENT OF REASONS
1. NBN Co Limited (NBN Co
) is a government business entity (GBE
), which has the mandate of realising the Australian Government’s
vision to develop a national broadband network that is truly national in character.
2. NBN Co recognises that information is a vital and an invaluable resource, both for the company and for the broader Australian
community. That is why NBN Co 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
3. In addition, NBN Co 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 Co.
5. Under subsection 23(1) of the FOI Act, NBN Co’s Chief Executive Officer has authorised me, Yvette Deerness, to make decisions about
access to documents under the FOI Act.
6. Under section 26 of the FOI Act, I am required to provide a Statement of Reasons for my decisions in relation to FOI access
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.
Application Chronology and Terms of Request
7. On 13 November 2014, NBN Co received an email from Jxeeno of the “Right to Know” website (Applicant
), in which he made an
application under the Freedom of Information Act, 1982 (FOI Act or Act
), seeking access to:
the detailed, technical guideline from which the summary called the "NBN Multi-Technology Deployment Principles" was based off.
8. On 14 November 2014, NBN Co staff acknowledged receipt of the Applicant’s application as required by section 15 of the Act and
informed the Applicant that a determination would be due on 13 December 2014. However, as 13 December 2014 fell on a Saturday,
NBN was required to make a determination by Monday, 15 December 2014.
9. On 19 November 2014, NBN Co informed the Applicant that he was liable to pay a charge of $245 in respect of the processing of this
request. As the charge exceeded $100, the Applicant was informed that he was liable to pay a deposit of 25% ($61.25
10. On 21 November 2014, NBN Co received confirmation of the Applicant’s payment of $61.25.
11. On 15 December, I sought the Applicant’s consent to extend the due date for issue of my final decision to, Friday 19 December 2014.
On the same day, the Applicant agreed to the new deadline, and NBN Co advised the Office of the Australian Information
Commissioner that the Applicant had agreed, as per section 15AA of the FOI Act, to extend the processing deadline.
(02) 9926 1900
(02) 9926 1901
LEVEL 11, 100 ARTHUR STREET, NORTH SYDNEY NSW 2060
NBN Co Limited ACN 136 533 741 © NBN Co 2013
12. On 19 December 2014 I finalised my decision as outlined below and forwarded this decision to the Applicant, advising the Applicant
that I had waived the balance of the processing charges owing, as permitted by regulation 3 of the Freedom of Information (Charges)
Findings of Material Fact
13. Following receipt of the Applicant’s request, NBN Co staff undertook searches through the company’s relevant files. Following these
searches, I identified one document as falling within the scope this FOI request (Document
14. To assist in making my decision, I sought advice from internal business experts regarding the commercial nature of the Document.
Summary of Access Decision
15. As an FOI decision maker, it is open to me to consider whether the Document falls within the terms of section 7(3A) of the FOI Act –
NBN Co’s commercial activities exemption (CAE
) – and is, therefore, not subject to the operation of the Act. General background
information regarding NBN Co’s FOI processes and the principles underpinning NBN Co’s CAE may be found at the following link.
my decision that the Document falls within NBN Co’s CAE.
16. It is also my decision that the Document is exempt from release based upon section 47 (Commercially valuable information) of the FOI
Reasons for Decision
Commercial Activities Exemption
17. As outlined above at paragraph 15, I refer you to a summary explanation regarding NBN Co’s CAE, found at the following link.
It is my
decision that the Document falls within the CAE.
18. The Document is a PowerPoint presentation and contains detailed descriptions of each element of NBN’s Multi-Technology Mix (MTM
planning process. It contains other details regarding NBN’s corporate planning process, including the internal outputs required to feed
into the overall MTM planning process, estimates of the resourcing required to support the process and details of core data sets
required, including those related to financial modelling and performance metrics. The company’s ability to plan, forecast resourcing –
both labour and technology – and define core datasets, are all integral to the company’s ability to stay within budget, meet timelines for
building the network, and operate efficiently. This in turn, will impact on NBN’s ability to return a profit. In this context, it is clear that the
Document meets the threshold test, in that there is a link to the company’s profit-making or commercial goals. It follows therefore, that
the Document may be described as falling within the section 7(3A) definition, and is not subject to the operation of the FOI Act.
19. Along with the substantive points set out above, I note that the Document has been watermarked as “commercial in confidence”. This
suggests that the Document is commercial in nature, but this fact is indicative, rather than being determinative.
20. However, notwithstanding that I am of the view that the CAE applies to the Document, I have determined to exercise my discretion and
to partially release the Document as permitted by section 22 of the FOI Act. In particular I have released slide 8 of the Document for the
reason outlined in paragraph 21 below.
21. The ”NBN Multi-Technology Deployment Principles” document dated 13 November 2014 (Principles Document
), which prompted the
Applicant’s FOI request, sets out the business rules established to determine which technology is used in each locality i.e whether:
existing infrastructure can be leveraged to deliver the required bandwidth and reliability to premises;
delivery partners have construction capacity;
network complexity can be reduced by consistent use of technologies within a particular area;
advances in technology may mean an alternative approach may be preferable;
there are opportunities to prioritise underserved areas; and
there are opportunities to achieve early/high revenue (e.g from areas with a large number of business customers).
In making my enquiries of relevant subject matter experts in our business in connection with this FOI request, it quickly became
apparent to me that a comprehensive analysis is involved in the process of determining the deployment of MTM technology. It was in
this context, and in recognition of the community interest in the processes that enable NBN Co to make its decisions as to which areas
are rolled out before others, that I determined to exercise my discretion as outlined in paragraph 20 above, so as to provide the
Applicant with further information, and to support that information already publicly available in the Principles Document, about the
detailed planning that goes into determining the deployment of MTM technology. Slide 8 of the Document provides detail about the
methodology involved in the planning process i.e:
define geo model; model cost and revenue;
optimise technology choice and rollout profile;
apply financial model and validate performance; and
deliver output to NBN Co stakeholders.
General Exemptions (Commercially Valuable Information)
22. Section 47 of the FOI Act exempts documents from release if they would disclose trade secrets or commercially valuable information.
The relevant section of the Act provides:
Trade Secrets or Commercially Valuable Information
47(1) A document is an exempt document if its disclosure under this Act would disclose:
(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if
the information were disclosed.
23. Drawing from the points made in relation to the “commercial activities” exemption above, I consider that the Document falls within the
meaning of commercially valuable information for NBN Co, not least because it goes directly to the corporate planning activities of the
company. As to the commercial value of the information, I am of the opinion that the value would be diminished or destroyed as it
could be used by third parties to disadvantage NBN Co’s rollout and corporate planning efforts. In particular, the Document provides
assumptions about resourcing requirements (both technology and people), which if released could be used by a number of market
players to improve their negotiating position both in commercial arrangements with NBN Co and with other commercial entities in the
telecommunications industry. This could disadvantage NBN Co.
24. Without limiting the reasons noted above, there are other potential FOI exemptions, which could apply to the Document, including:
confidential information (s.45); deliberative matters (s. 47C), and operation of agencies (s. 47E). Despite their potential application, I
have not formally considered these potential exemptions.
25. It is NBN Co’s general policy to charge applicants for FOI processing time. In its Submission to the OAIC Charges Review,
outlined its support of fees and charges and their importance to the FOI scheme. In the Advance Deposit Request sent to the Applicant
in November, estimated processing charges of $245 were detailed. The Applicant paid the advance deposit of $61.25 leaving a final
amount owing of $183.75. While the search, retrieval and decision making time was accurately estimated in the Advance Deposit
Request and in fact, more time was ultimately spent in making the decision - I have determined to waive the remainder of the amount
owing. This fee waiver 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
and in part is an acknowledgment of the Applicant’s responsiveness throughout the process.
Right of Review
26. 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.
Annexure A – NBN Co FOI Matter 1415/27 – NBN Multi-Technology Deployment (Partial Release)
Section 22 of the Freedom of Information Act, 1982
(the FOI Act or the Act
) enables Government authorities to delete exempt or irrelevant
matter from a document that may allow for an edited form of the document to be released.
Five steps in the MTM planning process
Model cost and
Define geo model
to NBN Co
• Define reference
• Define the set of
• Select the most
• Calculate detailed
• Create an output
geo data set for
costs and key
data set to
• Cost each
per DA that
based on timing of
describe the rollout
(DA), FAN, RCP
costs and revenues
for use by all
per DA to provide a
using a set of
in the proposed
set of possible
business rules to
across NBN Co
choices for the
• Validate the rollout
• Provide an
• Propose a practical
explanation as to
• Estimate revenues
rollout profile and
premises and how
they are connected
choice for all
option per DA
premises to ensure
• Calculate the NPV
flows2 within a set
transparency of the
for each technology
bundle per DA
To arrive at a single
To calculate the NPV
To develop an
To forecast a long term
To enable the rest of
a source of truth for geo
per DA for each
achievable rollout plan
NBN financial plan
NBN Co to plan using
spatial data for MTM
with a single technology using the proposed
an achievable rollout
option for the optimiser
bundle and profile for
plan that meets peak
1. Directly optimising for peak funding is extremely complex, so to reduce complexity the optimiser will maximise for NPV as per the Strategic Review. 2. Maximise cash flows are used in order to reduce reliance on funding
requirements as a proxy for minimising peak funding
0. Proposed MTM model summary.pptx
SENSITIVE COMMERCIAL / COMMERCIAL-IN-CONFIDENCE
Draft—for discussion only