NBN Co review leaves broad blanket exemption in creative hands

The Morris review of NBN Co's handling of freedom of information found the agency: 
. complied with its lawful requirements in administering the FOI Act

. used a careful process to identify exempt documents, has clearly articulated the reasons for the  claimed exemptions, and has not been extravagant in claiming exemptions;

. sought to minimise the cost to applicants by actively assisting in identifying possible documents that are the real basis of the request; 

. operated in a timely manner; and

. generally adopted a pro-disclosure attitude.

Mr Morris described the primary purpose of the review as to ascertain whether the provisions of the Freedom of information Act that apply to NBN Co. “have achieved the correct balance in practice between the pro-disclosure requirements of the FOI Act and the protection of commercially sensitive information that NBN Co. may hold." In essence how NBN Co in practice administered its FOI obligations. It came up well, perhaps on best behaviour in the first 12 months knowing all along this review was coming.  Applicants will hope it continues to comply with spirit and intent without too much smart lawyering to test the potential of available exemptions. The broad blanket nature of the exemption that defines what NBN Co. information is excluded from the act would appear to leave scope for that.

Interesting also that NBN Co. commendably links the FOI function with "knowledge management" and that Mr Morris rates its FOI staff well above others in his experience- according to NBN Co's main man he has a "passion for screenwriting' but we won't go there...

The terms of reference for the review did not extend to whether Parliament had got the balance right on disclosure versus commercial sensitivities, particularly in enacting a broad exemption for NBN Co to sit alongside all the exemptions the company enjoys along with government agencies.

In examining the NBN Co. exemption "in relation to documents in respect of its commercial activities" (s 7 and Schedule 2) the report focuses only on the interpretation and application of the term "commercial activities" (page 33 and following) in dealing with applications over the last 12 months. There is no analysis or comment on the associated words used in Schedule 2 to frame this exemption and the similar exemptions that apply to other agencies "in relation to...in respect of" documents of various kinds.

If Mr Morris had gone into this and the potential breadth of the exemption he would have found some complex case law concerning the meaning of these words. They add considerable reach to the already broad "commercial activities", defined in the act as activities carried on by NBN Co. on a commercial basis; or that may reasonably be expected in the foreseeable future to be carried on by NBN Co. on a commercial basis) and in practice by NBN Co as information about “active business or trade operations that would be capable of returning a profit either at present or in the reasonably foreseeable future.”

For example with regard to a somewhat similar exemption enjoyed by CSIRO, AAT Deputy President Forgie devoted 42 paragraphs [at 53-95-she can go on) in Bell and Commonwealth Scientific and Research Organisation [2007] 46 AAR to the meaning of "in relation to" and "in respect of" noting some authority that "in respect of" is a term of the widest possible scope, before apparently concluding it covers any document that has a direct or indirect connection with commercial activities. Along the way  she expressed some bemusement at how to apply a binding precedent in another Federal Court decision Australian Broadcasting Corporation and The University of Technology Sydney [2006] FCA 964.

In the Morris report NBN Co cite instances of the application of the exemption in order to protect from disclosure information that would allegedly harm its various interests (33). However the exemption does not contain a harm test. It would be enough that information sought is "in relation to documents in respect of its commercial activities."

The broad statutory review  of the Freedom of Information Act due to commence before the end of the year will be an opportunity to argue for and against the merits of broadly framed blanket exemptions that contain no harm from disclosure or public interest tests.

As to NBN Co performance, it largely came down to quality FOI administration, according to Mr Morris, apparently in the hands of David Mesman, Senior Corporate Counsel, FOI and Knowledge Management (with a 'passion for screenwriting' according to his profile on Linkedin) and Jessica Blacklaws, both mentioned elsewhere in the report:

As is often the case, outcomes are influenced as much by people as systems.  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. NBN Co. has handled freedom of information requests intelligently, by seeking to assist the applicant to identify the document or information that is sought.  When a document has been claimed as exempt, the FOI officer has provided carefully crafted reasons.  Responses have been timely. I question whether this high standard is commonplace in Commonwealth and State agencies.  I attribute the high standard achieved by NBN Co. – at least in part – to the appointment of a trained and competent FOI officer.  Other agencies would do well to replicate this practice.

(Renai LeMay on Delimiter recounts different experiences and Malcolm Turnbull and others
 are not as comforted as Mr Morris.) 

Interesting to see FOI at NBN Co linked with "Knowledge Management", still a rare beast in public and private sector bodies. It suggests NBN Co at least gives a nod to managing FOI in a broader framework than those agencies, Commonwealth and state, that still have FOI/RTI tightly sealed in a straight legal unit or branch, otherwise disconnected from information management functions.