Commerce Commission confirms confidentiality order

The Commerce Commission confirmed today that protection for confidential information under a confidentiality order in relation to commercial interconnection agreements provided by telecommunications companies for the Commission’s investigation into mobile termination rates will remain in place.

The Commission requests and is supplied with a wide range of information in order to make fully informed decisions. Where confidential information, such as commercially sensitive information, is likely to be provided, the Commission will generally issue a confidentiality order under the Commerce Act to protect that information. Parties request orders to limit the disclosure confidential information.

Confidentiality orders, as used by the Commission in making complex determinations, can set out the terms under which confidential information may be disclosed. These orders also provide a process whereby parties can, subject to certain protections, view each other’s confidential information. Specific conditions may be placed on parties’ access to particularly sensitive information and access in exceptional circumstances may be restricted to the Commission only.

“The Commission aims to make all information publicly available. However, confidentiality means this is not always possible. Accordingly, the Commission may limit disclosure to particular parties or in rare circumstances limit disclosure to the Commission only. When parties have access to the information they need, they can make informed submissions and cross-submissions and the Commission can make better decisions,” said Telecommunications Commissioner Dr Ross Patterson.

“The Commission considers and comes to its own conclusions about whether information does indeed require confidentiality protections. Claims for confidentiality are balanced against the need for a transparent and informed decision-making process. However, when confidentiality is necessary, it is important that all parties can respect and trust that the process and protections are robust,” said Dr Patterson.

The Commission’s use of confidentiality orders in this case has been the subject of public comment in recent weeks. As part of the mobile termination rates investigation the Commission has received a wide range of confidential information, including commercial interconnection agreements. Telecom, Vodafone and 2degrees all requested the Commission treat the agreements they provided to the Commission as confidential. Recently Vodafone requested the agreement it has with 2degrees be made public. 2degrees has requested that the agreement remain confidential.

The Commission’s decision today means that all agreements remain confidential, but access will be permitted subject to specific protections. The Commission has declined Vodafone’s request that the agreement between it and 2degrees be made public. The Commission’s decision is available on its website www.comcom.govt.nz under Industry regulation/Telecommunications/ /Investigations/Mobile to Mobile Termination

The Commission has opened an investigation into a potential breach of the confidentiality order following the disclosure of details of the commercial interconnection agreement between Vodafone and 2degrees. As this matter remains under investigation, there will be no further comment at this stage.

Background
Section 15(i) of the Telecommunications Act 2001 incorporates s100 of the Commerce Act Section 100 provides the Commission with powers to prohibit disclosure of information, documents, and evidence. .

Section 100(1) states that the Commission may make an order prohibiting:
(a) The publication or communication of any information or document or evidence which is furnished or given or tendered to, or obtained by, the Commission in connection with the operations of the Commission:
(b) The giving of any evidence involving any such information, document, or evidence.

Section 100(4) states that:
Every person who, contrary to any order made by the Commission under subsection (1) of this section, publishes or communicates any information or document or evidence commits an offence and is liable, on summary conviction, to a fine not exceeding $4,000 in the case of a person not being a body corporate, and $12,000 in the case of a body corporate.

Only the courts can decide if an offence has been committed and set appropriate penalties.

The confidentiality order in relation to the mobile termination rates investigation is available on the Commission’s website at: Industry Regulation/Telecommunications/Investigations/Mobile Termination Access Services/Confidentiality Order

Under this confidentiality order, information has been classified:
§ Restricted Information – this classification applies under clause 8 of the confidentiality order, where it is certified that this protection is necessary in order to avoid likely unreasonable prejudice to the commercial position of the person who supplied or who is the subject of the Information. Restricted information can be accessed, in accordance with clause 11 of the confidentiality order, by specified persons who have signed the Deed of Undertaking at Schedule 1 to the confidentiality order;
§ Additional Protection – this classification has now been applied to all commercial interconnection agreements, so that certain additional conditions must be met before parties can access this information; and
§ Commission Only Information – the Commission has accepted that some information should be restricted so that only the Commission could view it.