“No public interest”: NBN obstructs release of board minutes


news The NBN company has refused to reduce hefty Freedom of Information charges for the release of minutes of its board meetings, claiming there is “no general public interest” in the documents being released.

In late January, Delimiter issued several Freedom of Information requests to the NBN company seeking the release of minutes pertaining to meetings of the company’s board of directors. Delimiter is seeking both a copy of minutes from the most recent NBN board meeting, as well as a copy of the most recent set of minutes to be approved (these may be different things).

Delimiter took this step due to the fact that the NBN company has recently made a number of key decisions with respect to its infrastructure.

For example, it has been recently revealed that the NBN board has blocked a shift of the NBN’s infrastructure rollout to a Fibre to the Distribution Point model, despite the fact that cost improvements have brought the cost of FTTdp close to the technically inferior Fibre to the Node option.

The NBN board has also recently considered other key issues relating to the NBN rollout, such as using so-called ‘Skinny Fibre’ to cut costs in its rollout.

In our request, Delimiter pointed to the NBN company that it is currently involved in delivering Australia’s largest ever infrastructure project. This project is an initiative which will touch the premises of every Australian, as well as reshaping the national telecommunications industry.

With this in mind, Delimiter argued in its request there is a significant public interest argument that the NBN company should be as transparent as possible with its governance arrangements. This is to ensure that the public and industry can have certainty that the project is being governed in a competent manner.

The release of NBN board minutes (as both of these requests seek) would directly aid in ensuring that the public can have confidence in the governance of the NBN company and of the project as a whole.

As a part of the Federal Parliamentary Press Gallery, Delimiter would commit to publishing and analysing these board minutes as soon as they are released, in order to assist with this process.

Delimiter also indicated that we were willing to have the names of NBN directors, staff and third parties at any particular board meeting to be redacted from the minutes, to help ensure their release.

However, in response, the NBN company has chosen to levy substantial fees – to a total of $767.50 – to have the documents examined to see if they can be released.

In several letters to Delimiter, the NBN company wrote that there had been no media coverage of decisions taken by its board that would cause it to waive the fees in the name of the public interest.

“NBN staff reviewed various media sources and found no media coverage relating to the NBN Board’s management or its consideration of commercial matters over the last quarter … the lack of extensive media coverage during the last quarter by major news publications suggests that the provision of access to the most recent minutes would not be in the general public interest or be in the interest of a substantial section of the public,” the NBN company’s general counsel in charge of FOI, David Mesman, wrote.

“I also note that NBN is not aware of any issues discussed in Parliament, including Senate hearings, regarding NBN Board activities over the last quarter – or in the recent past.”

In response, Delimiter wrote back to the NBN company and requested an internal review.

Delimiter pointed out to the NBN company that its statements regarding media coverage and Senate hearings were inaccurate, given that NBN chief executive Bill Morrow earlier this year told the NBN Senate Select Committee that a proposal had been taken to the NBN board regarding a switch to a Fibre to the Distribution Point model for the NBN rollout.

Delimiter sent the NBN company a number of media articles discussing this topic. However, the NBN company again refused to waive the charges.

“I am of the opinion that there is no ‘general public interest’ in the specific documents requested,” NBN acting general counsel Sarah Hosey wrote.

The news is only the first time that the NBN company has sought to obstruct the release of its board minutes.

For example, in February 2014 the NBN company denied a similar FOI request put to the company by Fairfax Media. At the time, the NBN company said it could not release its minutes because the reputation of its directors could be damaged if it revealed which ones of them attended a certain meeting.

It is disappointing – but not surprising – to see that the NBN company continues to attempt to levy substantial charges on FOI attempts for basic information such as the minutes of its board of directors. The NBN company has rapidly earned itself a lasting reputation as one of the toughest nuts to crack in Australia when it comes to basic Freedom of Information requests. The company’s default position is that nothing gets out.

I simply cannot see how it would cost the company $400 per document to ascertain which parts of its most recent board minutes can safely be released.

Unfortunately Delimiter cannot afford to weather this cost at present, so we have been forced to abandon this FOI request for the NBN company’s latest set of board minutes.

I am sure some readers will point out that it would be possible to crowdsource these fees, and that’s true. It’s something I’ve done before at Delimiter when attempting to fund NBN-related FOI requests.

I haven’t done so in this case, because I am conscious that readers have contributed a great deal to Delimiter’s operations recently – via memberships and support for my forthcoming book, The Frustrated State. I want to ensure I deliver on those commitments before hitting you guys up for more funds ;)


  1. Just part of the increased transparency on the NBN we were promised by Malcolm and Co.

    • Erm, they are not saying no, just that there is a cost involved. If the files turned up with pages of black ink obscuring everything but the odd “if” and “but”, you would certainly have a point.

      If Delimiter/Renai can’t afford to stump up the cost, that is neither here nor there. You could always cough up the funds yourself (aka putting your money where your mouth is) if you feel so strongly about it, being a zealot and all. ; )

      ps. Whirlpool and Delimiter readers do not constitute “general public interest”, no matter how much you guys would wish otherwise. Neither does specialty tech sector coverage.

      And as per Tinman’s post further down, there is an appeals process that sits with an (ostensibly) impartial adjudicator. Although I imagine that if it get’s knocked back from them, it’ll still be a gov. conspiracy… /grin

      • Valid points org’…

        However, what seems to be being overlooked/ignored is the promised complete transparency.

        The transparency expectation/demands the current PM had when he was shadow comms Minister, now seems to have dissipated/disappeared, in relation to his own roll out!

        And looking at both roll outs the previous Quigley roll out was obviously, much more transparent.

      • My point is it should be free, or at least far, far cheaper.

        The NSW Ombudsman says this about “public interest”:

        The concept of the ‘public interest’ has been described as
        referring to considerations affecting the good order and
        functioning of the community and government affairs, for the
        well-being of citizens. The expression ‘for the common good’ is
        also used.

        I’d say the management choices in a project that will affect at least 93% of Australians would fit that, IMHO.

        You can see the fees here:


        That FAQ also states:

        An agency or minister may impose a charge on an FOI applicant in accordance with the FOI Act and Charges Regulations. The charge should fairly reflect the work involved in providing access to documents on request. A charge cannot be used to discourage someone from exercising their right of access under the FOI Act.

        Which I do not believe nbn™ is following the spirit of.

  2. As the largest monopoly infrastructure project in at least a generation the only reason that it is not in the ‘public’ interest is that it would embarrass their political masters. Turnbull’s Folly!

  3. How on earth is the level of media coverage a meaningful measure of “public interest”

    From Macquarie Dictionary, quoting Hansard

    “17. the public interest, the benefit or advantage to a whole community, as opposed to the individual: *It was and is in the public interest that these deals were and continue to be exposed and that we are all made aware of how naive many of us have been. In other words, it raises the question: who is in bed with whom? –FEDERAL HANSARD, 1999.”

    • Because Public interest is interpreted by the courts and common law, not the Macquarie Dictionary or hansard. The parliament has not offered an explicit definition of public interest, but it has been scoped through various court decisions. Public Interest is more restrictive than you think and as someone said above, just because tech sites and delimiter feels its in the PI does not make it “public interest of Australia”

      • So, as a genuine question, have our courts determined that the “public interest” is synonymous with the “public is interested” as demonstrated by the level of mainstream media coverage?

        Given that is the reasoning applied by nbnco in their rejection of the FOI request.

        • NBN didnt reject the FOI request. Thats an important legal distinction. If theres no rejection theres no appeal mechanism.
          NBNCo just set a charge for finding the information, which while people might find it outrageous at just shy of $900, they have not denied access.
          Considering this the other way, a fee for obtaining the information is considered usually reasonable because when FOI’s first came out people bombarded government institutions with FOI requests which ended up costing thousands or millions or no real reason. Basically people were FOI trolling.

          And no, mainstream media coverage may be one of the indicia or factors that a court could consider, but of itself is not determinative. If you want more clarity I suggest either studying or reading a textbook on administrative law and FOI.

          • No, but they are breaching the following:

            “A charge cannot be used to discourage someone from exercising their right of access under the FOI Act.” – OAIC

          • Just because someone is charging an access fee does not constitute a breach.
            Case law and judicial interpretation would be applied. Hint: 900 is not outrageous for this information, in fact, its fairly standard.

          • Just because someone is charging an access fee does not constitute a breach.
            Case law and judicial interpretation would be applied. Hint: 900 is not outrageous for this information, in fact, it’s fairly standard.

            Whatever TJ, I can see you’re “one of them”.

            These are the charges for a federal FOI:

            search and retrieval – $15 per hour
            decision making – $20 per hour
            photocopy – 10c per page
            transcript – $4.40 per page
            supervised inspection – $6.25 per half hour
            delivery – cost of postage or delivery.

            Where do you think the $900 comes from for 4-6 pages of minutes?

          • Oh, and PS: What part of “A charge cannot be used to discourage someone from exercising their right of access under the FOI Act.” don’t you understand?

  4. Internet these days is an essential service just like water and electricity. It’s obvious someone or afew people are personally benefiting financially from pursuing the FTTN roll-out (whether its with equipment makers or with those contracted to build the NBN) because why wouldn’t you go with other options that are just expensive but offer greater benefits aesthetically, lower ongoing maintenance costs, are more reliable and offer a greater opportunity for expansion. I doubt it’s pride with those in charge, because this will come back to bite them, so there has to be financial gain personally for some of these members organizing this whole operation.

    • It is absolutely an essential service. The US will have 50% of its jobs come from online freelancing by 2020. That is the biggest change to the workforce since the industrial revolution. In that light Fraudband is absolute madness.

  5. As with almost all government secrecy, it’s secret simply because the government wants to control the narrative.
    There is no point paying the fee because there is no chance they will release anything.

  6. What garbage! They are using our taxes to pay for this dud project so I do think it is in public interest to know. Although NBN does have an interest to refuse to release information because if it ever got out, more people would realise how foolish this government has been and how it has been poorly managed. It would topple their plan to drive the NBN off the cliff completely.

  7. So apparently media coverage is the measure by which they determine whether the public needs to know about it and hence release the details…

    WTF?! If that’s your measure then no wonder documents are leaking out of NBN because in order to ascertain whether they can be officially released the public must first be made to aware they exist and apparently the official mechanism that’s achieved through is leaking it to the press.

  8. Could you please set up a petition to guage “public interest”? Only marginally acquainted with this but would sign a petition simply on the grounds of opposing ” no public interest” so that media can do their rightful investigative duty.

    • Even if the petition had the 270,000 signatures of the most notable one about the NBN, well, we saw the result. Nothing. We need something other than a petition.

        • Actually survey’s/petitions of that magnitude are all but unheard of. Your average survey/poll won’t contact more than 2000 people to get a representative breakdown of the entire population!!

          10+% of the population being prepared to sign their name and be identified for a cause is bar none the largest petition of its kind in the history of the parliament/Australia!

          But hey just go ignore it completely its only ~10% etc.

        • The White House is REQUIRED to answer any petition that reaches 100,000 signatures. So a country with 80 times the population of Australia is required to answer a petition 3 times smaller than the one in question.

          To claim that is not public interest is fraud.

          • But remember, you cannot talk about anything from another country if it frames your argument in a good light….

            Unless you are a MTM supporter, then any FTTN rollouts around the world are perfect examples of why FTTN is best for Australia, but FTTP around the world isn’t a perfect example of FTTP in Australia.

        • @ org,

          I once signed an online petition via facebook, to have a cancer drug available to dying patients here, as our pollies (read Labor and Coalition!!!) apparently DGAF :(

          I now get peppered with online petitions…

          But the most surprising part… “it was successful” … as are many (I won’t say most because I don’t know) petitions.

          It’s eye opening to think how much these shiny arsed fucks in Canberra actually take note (Read: think they will get arse holed) and actually have to act

          Imagine being the minister who stopped a dying mother of 3 from obtaining the drug which, if not a life saver, could at least prolong her life and make it more pleasant.

          So whilst I recognise broadband is of no importance in comparison… we (well you) can scoff but, if enough people shake the cage these grubs must act or their snouts will be removed from the trough indefinitely (I’m looking at you Bronnie)…

  9. We are at a critical point in the project. Continuing with FTTN to completion is likely to be financially disastrous. The other segments should be left for now, as they are not ideal but we could live with them, unlike the abomination called FTTN that will also have the unique ability to sink it. A shift from FTTN to FTTdp would be expected to limit the continual upward revisions of the funding requirement that have been seen since the beginning of the FTTN rollout. An election is 2 months away. It has to change.

    I have $50 ready for a crowd-funded FOI request.

  10. If only HoWARd had split copper/ fibre, HFC and wireless during the privatisation of Telecom/ OTC from the late nineties.
    Fast forward to 2007, even 2016, a GBE depending (so far) on say half of AUD/$56B from taxpayers to 2020 (or previously unlimited of AUD/$90B and 2023 to 2028), essentially seems to hide behind FOI and CiC way more than focusing on getting premises passed and activated.
    So there are no Tweets, posts, articles, and because there are none, … no public interest?
    Not even Sir Humphrey of “brave, courageous even, minister” could sort this one.
    Chances are the left will focus on striking fibre to the farm in favour of fibre to the driveway, accepting HFC, whilst the right will focus on pretty much the same.
    When both sides of pollyTICs in Versailes on Lake Blwxyz Griffin agree, Washminster repressive democracy style, well it’s FUBAR.
    In the meantime the monopolistic approach at network/ wholesale level, layered with oligopolistic approach at the service provider level, given 121 PoI, well … Spending billions (say half the cost of them French subs) of taxpayer dollars so Telstra loses half its marketshare, really?
    PollyTICs will probably not do a revised statement of expectations till after the 2016 federal election. In the mean time nbn/ PMG lite …/ Ruddstra – which goes back to the 2007 federal election – will continue to send troops on to the beaches, up against heavily defended cliffs, whilst the generals are having tea on battlewagons offshore.
    Let’s see how many premises have been passed or activated by 2016 Jun 30. Because nbn/ PMG lite might go back to 2013, NBN/ PMG mk2 was Godzilla-ed in 2009, even Ruddstra announced in 2007.

  11. Just putting it out there if Delim has such an issue with this, so much so to write a news article blasting it, then you could consider your actual legal options, such as raising the issue with the AAT.
    I’m concerned that avenues werent really invoked/explored before throwing stones.

    Further its worth noting to the tinfoil’ers, a normal Corporation does not have to release its board minutes to the public at large (There are reporting requirements but this doesnt mean the whole board minutes – See Corporations Act and ASX listing rules) and indeed are immune to FOI requests because they are not public entities.
    If you really want to push the Government and be unreasonable by all means continue, but then you just need to look at say the AWB case to realise they can place NBN Co beyond FOI requests.

    • Westconnex, FOI on the state gov side, CiC on the company side, …
      What’s that phrase at the airport, if you have nothing to hide, you’d not mind a few questions, (nude) scans, …?

      • Your statement may make sense when you wrote it, but it surely does not when read by another.

        • What he’s saying is that they are hiding behind one of two screens. Freedom of Information, and Commercial in Confidence.

          But if they have nothing to hide, why are they hiding?

          The FOI request is a perfectly valid one, because this ISNT a normal corporation. Its a Government Business Enterprise, so is subject to the rules most public service departments are subject to.

          So, the request is fair.

          Then they might try to use commercial in confidence, where the argument is that releasing the information causes undue grief or effect on a contractor or other commercial entity.

          Say for example they have some private dealings with Telstra, to do certain things at certain times. Their rivals might be able to take advantage of that.

          But they havent used CiC, they’ve just said theres no reason to release it. Which is wrong. They are the minutes of a Government entity, and those minutes are subject to public scrutiny unless there is just reason not to.

          They havent given a just reason.

        • “Your statement may make sense when you wrote it, but it surely does not when read by another.”
          It actually does when not being read by somebody not trying to twist it to mean something else and failing, thus having to provide a deflective non-answer.

          • A statement was made not a question asked. So actually theres no answer to be given and indeed my response was not ‘deflective’.

            Funnily enough your response is both off topic and contributes nothing.

          • answer
            noun reply
            verb reply

            noun answer

            answer ‎(plural answers)
            1. A response or reply; something said or done in reaction to a statement or question.

            You are a shitlord.

      • Actually as a GBE it falls under the GBE Act, FOI Act, ADJR Act, Corporations Act, and a bunch of others.
        Commercial activities can be exceptionally broad as a result.

        Again it is important to highlight here: There has been NO rejection of the FOI request. Merely a person unwilling to pay the information access fee. To slightly modify my comments prior RE: The AAT – if there has been no decision then it cannot be subject to an appeal. If however the access fee was paid and an odd result received then merits (and if appropriate judicial) review could be engaged.

        It seems a lot of people who read and post here are obviously very concerned with FOI and government accountability. I’d humbly suggest however for those who are concerned beyond simply commenting on a news article and would actually like to know more about the issues (and the legal basis) you acquire a good administrative law book. There are some really good ones that speak a lot about FOI, Ombudsmen, Merits review and so on and it would be helpful to everyone I think if a bit more knowledge about how the current system works before people rail against it. Of course once you find out how the law currently stands you may still want to rail against it but at least you’ll be properly informed to make such an argument.

        • It’s true nbn co haven’t refused anything, however they are “obstructing” the release of the documents by placing artificially high cost barriers in the way while simultaneously claiming there is “no general public interest”.

          • Its a bit more rocket science once it enters judicial interpretation.

            RE: Derek above
            Don’t confuse “no public interest” to automatically release (or release without cost) with ‘no public interest to release at all’.
            It seems people are intentionally confusing the two. The first basically says, they wont release unless someone pays them a fee to put the information together. The second is a higher burden on the responding party as there is a inclination to release providing conditions are met.

            Again there is a lot of administrative law on this matter, and certain bodies cant be compelled to release information event if you want it due to the nature of the body or the information. For example when someone attempted to lodge an FOI request to obtain access to how the GG determined the Australia Day awards/medals this was deemed not in the public interest (also the GG has an exemption)

          • Hi TJ, if you read the article again you’ll note that Renai replied and provided evidence to support his claim of public interest which directly proved nbn’s claims of no media coverage etc wrong.

            Nbn are clearly doing this because they can and they know they’ll get away with it.

          • @Derek O Like Richard and Reality, TJ is obviously A-OK with an LPA government hiding it’s due process from those that elected it.

          • Tbh he sounds like a lawyer and they make money from representing clients trying to wade thru gov b.s.

  12. They don’t want anyone to see the process they used to give Millionaire Malone his new gig.

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