NBN Co not keeping secrets unnecessarily, finds review


news A review of NBN Co’s compliance with Freedom of Information laws has found that the company is meeting its legal responsibilities with regard to the release of information, despite the fact that out of 35 FoI requests over the past year, only two resulted in the information sought being fully released.

Like other Federal Government departments, NBN Co is subject to the Freedom of Information Act, a piece of legislation which requires that the bodies it applies to must release information they hold to the public upon request, as long as there are not solid reasons for withholding the information, and as long as an appropriate cost can be applied to sourcing and releasing the information. However, over the past year, NBN Co has blocked a number of Freedom of Information requests from the public on high-profile matters.

For example, in July, NBN Co, in consultation with associated Federal Government Departments used a complex series of legal arguments, including national security grounds, to block the public Freedom of Information release of a series of documents relating to the decision to block Chinese vendor Huawei from tendering for NBN contracts.

In late March this year, Federal Attorney-General Nicola Roxon confirmed that her department had banned Huawei from participating in the multi-billion dollar National Broadband Network tendering process, despite the company not being accused of having broken any pertinent laws in Australia. Chinese diplomatic representatives and Huawei itself protested the ban strongly, but it was defended by Prime Minister Julia Gillard that same month, with the Labor leader emphasising the Australian Government’s right to make its own choice with regards to network suppliers.

Subsequently, technology media outlet ZDNet sought access to emails and memorandums within NBN Co relating to Huawei and NBN tenders.

NBN Co published its response to ZDNet’s inquiry (available online here in full). Unfortunately the news was not good. After determining that “hundreds of thousands of documents” could potentially be included in the initial dataset sought by ZDNet and successfully working with the publication to narrow the scope of its enquiry, NBN Co today said it had identified ten documents falling within its remit. However, NBN Co’s Freedom of Information office noted that it had decided to refuse access to all of those documents. ZDNet reported this story first.

NBN Co has also blocked the release of a number of other documents.

In February this year, for example, NBN Co blocked a freedom of information request which would have seen information released about the amount which it will cost Australians outside the company’s planned fibre broadband footprint extended to reach their premises. In a statement emailed to Delimiter responding to the FoI issue at the time, NBN Co said that it had “appropriately assessed the FoI request” within the terms of existing legislation and “its role as a commercial entity operating within a highly competitive market”.

“NBN Co is a government business enterprise, and like any business it doesn’t make sense to release information that could jeopardise commercial activities and our ability to negotiate prices for similar services in the future,” the company said. “The quotes provided as part of the network extension trial were based on actual costs, and will vary for each location based on distance, geography and accessibility in a specific area.”

In January 2011, the Federal Government’s Information Commissioner rejected an attempt by internet service provider Internode to obtain the complete text of Telstra’s $11 billion deal with the National Broadband Network Company under Freedom of Information laws, after NBN Co had already rejected the attempt to release the information.

A decision document published by the Office of Australia Information Commissioner on its web site revealed that Internode first applied to retrieve the text of the deal — expected to be hundreds or thousands of pages in length — on 23 June 2011, just weeks after Freedom of Information laws had begun to apply to NBN Co on 11 June, following a judgment by the Federal Government on the matter.

The OAIC’s document published revealed that just one month later, NBN Co refused Internode’s application, stating that the Telstra contract was exempt from being released because it related to commercial activities being carried out by NBN Co — for which there is a specific provision in the legislation. “NBN Co also claimed that the requested documents, if they were not exempt from the operation of the FOI Act, would be exempt under [section] 45 (documents containing material obtained in confidence) and [section] 47 (documents disclosing trade secrets or commercially valuable information),” the OAIC judgement stated.

A report published this week by senior lawyer and Queen’s Counsel Stuart Morris evaluated NBN Co’s compliance with FoI laws. The purpose of the review was to examine whether NBN Co. has complied with its obligations under the FOI Act, and, in particular, whether NBN Co.’s “commercial activities” exemption was working in practice. It broadly cleared NBN Co of any wrongdoing.
“This review has not identified any vexatious use of freedom of information provisions in relation to NBN Co,” wrote Morris. In my view, NBN Co has not only fulfilled its lawful responsibilities under the FOI Act, but also has achieved a high standard in its administration of the Act.”

“My review of the operation of the FOI Act in relation to the NBN Co. does not reveal any basis to change the “commercial activities” exemption. There is no basis to conclude that the broad nature of “commercial activities” exemption has been abused; or that it has had the effect of unreasonably broadening the field of exempt documents. Moreover, in my view, an attempt to confine the exemption is likely to add complexity and uncertainty to the concept; and is likely to produce anomalous outcomes.”

“Finally, I find that the high standard achieved by NBN Co. in relation to its FOI Act obligations are, in no small part, due to the competence and training of the FOI officer engaged by NBN Co.”
In examining NBN Co’s FoI activities, Morris consulted with Greens Communications Spokesperson and Senator, Scott Ludlam, as well as Freedom of Information Commissioner James Popple, NBN Co’s own FoI staff, staff from Communications Minister Stephen Conroy’s department, and several people who had made FoI requests to NBN Co.

His report found that in the period from 11 June 2011 to 31 May 2012, some 35 FoI requests were made to NBN Co. 17 were withdrawn before a decision was made. NBN Co released all of the requested documents in only two cases. It provided partial access in four cases, and refused access altogether in three cases. In response to four requests, no documents were found to exist. One request was transferred to the Department of the Prime Minister and Cabinet. Three requests are yet to be finalised. Four applications have been made to the Office of the Australian Information Commissioner, which reviews FoI cases if the applicant is not satisfied with the response. All were knocked back.

As someone who has dealt with NBN Co’s FoI department (and has filed many FoI requests with other Government departments over the years), I have to say that I don’t agree with Morris’ findings. As I have previously written, I have found NBN Co’s FoI department less helpful than the FoI teams of other departments, and I believe this is reflected in the amount of FoI applications to NBN Co which fully succeeded — just two, out of 35.


  1. Well, all this depends on your perspective.

    You sought information that you weren’t ultimately able to get a hold of, that you felt was valuable towards article(s) you wanted to right. From your perspective, this is a failure of their FOI obligations, because you didn’t get what you were after.

    That doesn’t mean they did anything wrong, per se. Just that they weren’t able to provide the information you wanted, and the report vindicates that they weren’t bending the rules to be deliberately secretive.

    There’s lots we’d all love to know – (I could write any number of pieces if I knew some of the things they are keeping under their skirts) – but it would seem that nothing untoward is going on.

    While NBN Co is a GBE, and ultimately answerable to the government, and therefore the tax payer – the companies they have to deal with are not, and commercial sensitivities are very important.

    The project I’m on at the moment is VERY sensitive, and we can’t say anything to anyone about anything to do with it, so sensitive are the customer towards leaks of even tiny bits of information may tip of their competitors, and diminish the competitive advantage they are seeking in their industry against those competitors.

    Business is all about who you can out bid, and who doesn’t figure out what you’re up to. They’re not protecting NBN Co directly, they’re protecting the commercial enterprises they are dealing with.

    • I’d agree with that Michael.

      When Renai refers to FOI applications being “successful” – that’s a very subjective thing.

      Documents sought access to under FOI law should either be released in accordance with the law or witheld from release in a accordance with the law.

      There are of course very good reasons, in the public interest, that certain documents should not be released to the public – noting that the interests of journalists, do not automatically correlate with the interests of the general public.

      If you beleive that FOI law has been breached, put that claim. If you think the FOI law should be changed, lobby for change.

      • “If you beleive that FOI law has been breached, put that claim. If you think the FOI law should be changed, lobby for change.”

        It’s a lot more complex situation than this, with a lot of shades of grey. To illustrate this, this is what I wrote in July:

        In general, I find NBN Co’s staff very easy to deal with. They are normally polite, up-front, transparent, honest and helpful. They have a great deal of patience when dealing with Australia’s media, which does not always show the same degree of patience when dealing with NBN Co. However, the exception to this, in my experience, has been NBN Co’s Freedom of Information division.

        In the document released by ZDNet today, there is a section labelled “Application Chronology and Terms of Request”, on page two. I encourage readers to read that section of NBN Co’s response to ZDNet’s FoI request in detail. What it illustrates, in my opinion, is the general approach currently taken by NBN Co’s FoI team.

        The conversation goes back and forth many times, as the two sides discuss how the FoI request will proceed. No doubt NBN Co would argue that it is helping the FoI process in this light. But in my experience, the more times you go back and forth with an FoI officer with respect to this kind of request, the more likely they are to be able to use the kind of extensive legal arguments which NBN Co used today, to block access to almost all — or, as in this case, all — of the information you are seeking. The more they refine your request, in essence, the less you will get back.

        To put this into context, regular readers will be aware that I have filed a number of FoI requests over the past six months with the Federal Attorney-General’s Department, which has been very reluctant to release information about its Internet piracy and data retention initiatives. I have to say that I find NBN much more difficult to deal with when it comes to FoI than I do the Attorney-General’s Department — or, indeed, any other department I have ever dealt with on FoI.

        When it comes to Freedom of Information, NBN Co is locked up very tight indeed. It will be interesting to see what the current review of NBN Co’s FoI compliance by Victorian QC Stuart Morris finds. Morris’ report should have been handed over by now to the Attorney-General’s Department.

          • @aka Sam: Just how many shades of grey, Renai? How many?

            A question I have asked myself on more than one occasion. It can be frustrating watching him put himself on 5 sides of the one story, simultaneously. But to be fair, once he is given time Renai does eventually settle down to a consistent opinion on things, like he has on the rollout of the NBN.

            Frustrating or not, it’s infinitely better than the alternative, which is some hard nose opinion based on the barest whiff of facts from a breaking story. It’s far better to read something that encourages you to look at the situation from all points of view for a while before settling into a rut.

        • It’s pretty unrealistic to compare NBN Co to anybody else though with respect to FoI. Very few government departments are trying to run a business, and even fewer have confidentiality obligations with business partners. They have plenty of reasons to be secretive, and most of them are genuinely in the best interests of the people.

    • “The project I’m on at the moment is VERY sensitive, and we can’t say anything to anyone about anything to do with it, so sensitive are the customer towards leaks of even tiny bits of information may tip of their competitors, and diminish the competitive advantage they are seeking in their industry against those competitors.”

      That sounds intriguing…. whos the client?? :)

  2. I don’t envy NBN Co’s Freedom of Information department one little bit. Frankly, and as has been discussed here many times, NBN Co are in an uncomfortable position as one of the nations highest profile, political footballs.

    Opponents of our Labor Government’s baby have proven that they’re prepared to take the tiniest bit of information and blow it waaaay out of proportion. They’ll then take that disproportionate response as fuel for further explosions of outrage, and again, and again, ad infinitum. This seems to be the unfortunate reality of today’s politics. The goal of opposition to government policies these days is very rarely to improve those policies for the good of the nation but to destroy them utterly to the advantage of the opposer’s political affiliation. I often wonder how it is our parliament manages to function at all!

    In light of that it seems advisable to give them as little ammo as possible. Can you imagine the outcry if NBN business partners were hurt by the inadvertent release of commercially sensitive information? Or how much longer it would take to design and document business operations if every single utterance was going to be poured over in an effort to find fault with it?

    All that said, I am usually very much against secrets, particularly when exercised by our elected representatives. This time however, I can understand the motivation.

  3. I don’t like secrets in a government department.

    But, I don’t believe this is what is happening here. These “secrets” are commercial-in-confidence in nature.

    We wouldn’t be complaining about this if we were shareholders and the company refused to list the entire contracts of every other company it had contracts with- there are many reasons contracts cannot be made public. Because this is a GBE, we feel we have to know…..even though we’re not shareholders technically…

    This report has found that the “public good” doesn’t outweigh the damage making this information available would do. If an analysis has found they have complied with the law, then I don’t really understand what the issue is…..?

  4. @seven – Ahem, NBN Co isn’t a government department, it’s a GBE company operating in an area where there are a lot of commercial negotiations and agreements.

    Some but not all of the people demanding full disclosure of c-i-c information may be seeking it for reasonable sounding purposes, like Renai.

    But whatever the motives of the applicants, the reality is that any information released will be immediately seized on by both the companies that NBN Co deals with, and by those whose only interest in it is to cherrypick details out of context for the basest political purposes.

    As we have already seen in a number of examples so far.

    • @socrates

      I know NBNCo. is a GBE. I was speaking in general terms of government.

      But, as you say, where government interacts with commercial interests, there will ALWAYS be SOMEONE who has an issue if the details are made public….even if it’s simply a competitor saying they were undercut without being given a second chance…

      My point was, I don’t see the FOI request refusals made so far as beyond moral, lawful or ethical guidelines, as this analysis indicates. We would ALL like more transparency from government. But, as Renai has said before, the transparency of the workings of NBNCo. in general are beyond what you’d get from ANY commercial company AND most government interests- it has, in fact, been outstanding in their information provisions to the public.

      But when dealing with commercial companies, there will ALWAYS be secrecy. I’m sure people have a problem with that too, but that is not the government’s fault. Don’t like the laws? Lobby for them to be changed. But they won’t. Business will refuse work in a world of absolute transparency. Some for dubious ethical reasons but some for reasons of strength of competition, which are valid.

  5. Can I just add: Double negatives decrease the likelihood of not misunderstanding the statement.

  6. People would trust NBNCo more if it released figures on progress. I don’t understand why it is so difficult for NBNCo to provide monthly figures on their website broken down by fibre, wireless and satellite for:
    * number of premises under construction
    * number of premises where a service is available
    * number of premises where a service is active

    It would be great if the figures were broken down by PoI.

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