Vodafone Hutchison Australia could receive a copy of Telstra’s 20-year contract with the government within weeks, after a more than five-year battle for the contents of the agreement.
The Department of Infrastructure, Transport, Regional Development, Communications and the Arts has until mid-September to give Vodafone a copy of the Telstra Universal Service Obligation Performance Agreement (TUSOPA), or to appeal the ruling by acting FoI commissioner Toni Pirani.
Spokespeople for the Department and for VHA have been contacted for comment.
The payments Telstra receives for the universal service obligation have long been a bone of contention, not least because other telcos contribute financially to the arrangement.
At the time VHA first sought a copy of the TUSOPA, in early 2018, it and Telstra were publicly sparring on how “lucrative” the deal is to Telstra.
Attempts to view the TUSOPA text also occurred against a backdrop of a savage audit months before, which questioned the value for money and “net public benefit” of the agreement.
VHA was initially rebuffed in its attempts to have the agreement, any variations and “analysis… that sets out the costs and/or benefits to the government” released under Freedom of Information (FoI).
But a review by the FoI commissioner has found in favour of VHA.
It ordered the Department to turn over the agreement and related documentation, with limited edits, while also noting the possible appeal options.
Both the Department and Telstra failed to convince the FoI commissioner that they intended for the agreement to be confidential from the outset.
The commissioner said the “face of the documents” weren’t marked as such, and that a claim of confidentiality could not be “retrospectively” applied.
The commissioner accepted that the terms of the agreement and its variations were currently only known to Telstra and Departmental officials, but did not see a problem with sharing it outside of that small circle.
“It is apparent that the relevant information merely sets out the expectations and obligations agreed between Telstra and the Department with respect to the delivery of the USO,” the commissioner wrote.
“I am not persuaded that the information is particularly sensitive in nature.”
Telstra unsuccessfully argued that turning over the agreement to VHA could give competitors “a commercial advantage and allow them to undercut Telstra in the future; have an adverse impact on its commercial negotiations, and present cyber security risks with respect to services provided by Telstra or its infrastructure.”
The commissioner did not accept these assertions, while also noting Telstra couldn’t substantiate the alleged cyber risks of releasing the text.
“I am not persuaded that disclosure of the information contained in the documents would confer a competitive advantage on Telstra’s competitors,” the commissioner wrote.
“In my view, the information contained in the … agreement and its variations do not contain any details that would allow a competitor to ascertain how Telstra undertakes its delivery of the USO, such that it would provide the competitor with a commercial advantage.
“Even if the information could be said to possess commercial value, I have no evidence before me to establish that disclosure of the information would harm or diminish Telstra’s value or profitability.”
The commissioner also said that releasing the TUSOPA text would not endanger either the Department’s ability to negotiate future telecommunications-related deals, or Telstra’s appetite to bid for government work.
