Case Note: the first of its kind - NBN Co Limited and Bogle (Freedom of Information) [2025] ARTA 67

On 7 February 2025, the new Administrative Review Tribunal (Tribunal) delivered its first  published decision regarding a request for documents made under the Freedom of Information Act 1982 (Cth) (FOI Act).

The Tribunal’s decision: The central issue on review was whether the documents fell within the ‘commercial activities’ exemption in section 7 of the FOI Act.

NBN Co argued that the documents were created in the course of its commercial activities, specifically managing and caring for its staff.

The Tribunal agreed with NBN Co, finding that ‘managing and caring for its staff is essential to NBN Co’s ability to generate revenue and to make a profit.’

The Tribunal found that these sorts of activities should ‘not be sought to be characterised as a back-office or administrative matter for NBN Co.’ Rather, managing and caring for its staff, including the assessment of their fitness for work, was in the Tribunal’s view, a commercial activity of NBN Co.

Takeaway for other agencies: There are several Commonwealth agencies listed in Part II of Schedule 2 of the FOI Act as being exempt agencies in respect of their commercial activities. When responding to FOI requests relating to employee medical assessments, those agencies (or their advisors) should be turning their mind to whether section 7(2) of the FOI Act might provide a basis to exempt the documents from release.

Background: The review arose from an FOI request made by a former employee of NBN Co, seeking access to emails, correspondence and meeting minutes and attendee lists relating to a medical assessment booking.

Section 7 of the FOI Act exempt certain persons and bodies from the application of the FOI Act in particular circumstances. Relevant to this matter, section 7(2) provides that:

The persons, bodies and Departments specified in Part II of Schedule 2 are exempt from the operation of this Act in relation to the documents referred to in that Schedule in relation to them.

NBN Co is specified in Part II of Schedule 2 as being exempt from the operation of the FOI Act in relation to documents in ‘respect of its commercial activities.’

NBN Co refused access to the requested documents on the basis that they were documents in respect of NBN’s commercial activities.

The FOI Commissioner set aside the NBN Co decision, deciding the documents were not exempt from release.