Lawyer: Minchin too soft on NBN FOI

A senior associate from law firm Henry York Davis reckons Shadow Communications Minister Nick Minchin failed to adequately argue his case to have the $25,000 in fees to process his NBN document hunt waived.

"It appears that although the senator has requested that the fees be waived for reasons of 'public interest', he has not gone into any detail as to why his request for access is in the public interest. This is where the application by the senator falls down," Peter Mulligan, a senior associate with law firm Henry Davis York told ZDNet.com.au recently.

Minchin had in May used the Freedom of Information Act to attempt to access documents related to the government's decision to ditch the first NBN request for proposal (RFP) process. These included advice from the NBN expert panel, which assessed proposals under the failed NBN RFP process, the ACCC regulatory reform submission and a "short secret letter" supposedly given to the government from the panel, which Minchin believed outlined the "way forward" for it.

The departments of Broadband, Communications and the Digital Economy (BCDE); Prime Minister and Cabinet; Finance and Deregulation; and Treasury had estimated a minimum processing fee of around $25,000. It was then up to Minchin to make a case for why it was in the public's interest to have the documents released and fees waived.

Minchin said at the time that the "Opposition is not in the position to waste $24,000 on this FOI request" and went on to blame Labor's secrecy and obfuscation surrounding its broadband policies.

But Mulligan said Minchin did not argue his case to its end. While Minchin had stated that there was a public interest in releasing the documents, he had not, when asked, given his reasons for why they were in the public's interest. Portions of his request was subsequently turned down due to his failure to respond.

Mulligan also said there had been a "public interest" precedent, related to the Digital TV switch over, for waiving the fees imposed by DBCDE. Vocal Digital TV commentator Alex Encel had contested the proposed fees in the Administrative Appeals Tribunal last year.

"In a previous case regarding access to information held by the Department of Broadband, Communications and the Digital Economy, it was held that there is a public interest in having 'sufficient and appropriate information to facilitate the public's ability to discuss, review and criticise government action'," said Mulligan. "There are good grounds to go back to the government and argue that the fees should be waived because of the public interest in discussing, reviewing and criticising the government's action in respect of the NBN tender process."

"If the senator had put a stronger case to the government, he may have succeeded in having the fees waived," said Mulligan. He did concede that Cabinet documents Minchin had requested were protected from FOI law.

However, as Minchin's spokesperson pointed out to ZDNet.com.au last week, the minimum 30 days required to argue for the fees to be waived has already passed, and the request was considered closed.