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.