NBN Co braces for secrecy probe

Opinion: Is commercial sensitivity a catch-all?

Government business enterprises have long been able to escape freedom of information (FoI) requests on the basis of commercial sensitivity and confidentiality arrangements.

None have used this excuse more effectively than NBN Co.

FoI determinations issued to Internode and iTnews in consecutive weeks reveal the National Broadband Network wholesaler is by no means on equal footing with other Government Business Enterprises when it comes to information disclosure.

NBN Co's legal team suggests as much: "NBN Co's commercial activities exemption is broader in scope than that of Australia Post, CSIRO and other similar Commonwealth Government entities", the company stated in one determination.

Although it is recognised that NBN Co must retain some form of commercial confidentiality for the sake of tenders and contracts, the extent to which any single request for information might compromise these commercial activities is open to question.

NBN Co has used the 'commercial activity' clause as a catch-all for any information it does not want released.

The company has fulfilled six individual freedom of information requests since June 2011, covering topics such as site information, labour costs, workforce modelling and internal emails that reveal only that the company has done the job it has been tasked with; no surprises there.

It is a shame that many of those fulfilled have been used to some effect by the mainstream media to build a case against NBN Co (and more often than not the ALP Government).

Any attempt by media or the public to gain any insight into matters of public relevance - such as our request for the costs involved in extending fibre or the (potentially crucial but hidden) details of its agreement with Telstra - have been rejected.

To its credit, NBN Co has been proactive in releasing other information, including the various standardised agreements it has with internet service providers, operations manuals, technical specifications and numerous amounts of consultation it has with industry.

FoI review in sight

Under amendments secured by the Greens in March last year, the "FoI Minister" - currently the Prime Minister - must undertake a review of FoI processes relating to NBN Co before the first anniversary of the legislation's passing.

The review, a "halfway house" concession according to the Liberals, must examine whether or not the information kept from public view would prove to be a  "real detriment" to the Government or to NBN Co's commercial operations.

That review is due within the next two months.

"The idea that the public interest takes a back seat to commercial interests has crept into public discourse over time," Senator Scott Ludlam said at the time.

"[It's] a concern."

It is likely that the issue of detriment will be core to the review, if and when the review goes ahead.

Detriment is highlighted in both of the two most recent FoI determinations by NBN Co (the price paid for a fibre extension and for Telstra's $9 billion agreement with NBN Co).

NBN Co told us, and Internode, that "in the extreme [releasing data] may mean that NBN Co would be unable to proceed with its mandate to roll out the national broadband network, which would have a negative impact on the Australian public".

While it isn't the only grounds for refusal of either request, it does suggest NBN Co has a get-out-of-FoI card to play, no matter what the request.

We'll be watching with interest to see if this detriment clause stands up to scrutiny in the FoI review.