Internode NBN FOI request rejected

update The Freedom of Information Commissioner has upheld a decision by NBN Co not to release the full details of its $11 billion deal with Telstra to rival internet service provider Internode under Freedom of Information laws.

Internode first put in a request for the four agreements between NBN Co on 23 June 2011, when Telstra and NBN Co first announced that they had made a definitive agreement. The deal sees Telstra lease its ducts and pits to NBN Co and decommission its copper and hybrid fibre-coaxial networks in fibre areas while shifting its fixed-line customers onto the NBN.

NBN Co refused the application on 25 July 2011, stating that the documents requested related to commercial activities undertaken by the government-owned company and were thus exempt from the Freedom of Information Act 1982.

In an appeal to the Freedom of Information Commissioner, Internode argued that the Act "does not specify how the exemption is to be applied when particular documents are received or brought into existence in the course of more than one type of activity or for more than one purpose" and argued that the documents requested from NBN Co were not commercial because they were in place to "fulfil the Australian Government's agenda" for telecommunications industry reform.

"[The documents] are predominantly an exercise of political mandate, and as such, they should not be exempt from disclosure ... Access to [the documents] should be granted with reasonable redactions to protect legitimately confidential information," Internode argued to the Freedom of Information Commissioner Dr James Popple.

While Popple noted that the documents may be "an exercise of political mandate", they also detail NBN Co's commercial activities, and as such he affirmed NBN Co's decision to refuse Internode's request on Friday.

Although Internode is able to appeal this decision to the Administrative Appeals Tribunal, founder Simon Hackett told ZDNet Australia that he had no plans to follow it up.

"No, we don't plan to further appeal it," he said.

"Our referral of the matter to the Australian Office of the Information Commissioner was sufficient to make it clear that we can't 'win' this one unless there is a Federal Government change of heart on the insulation of NBN Co from this form of request."

Updated at 1:13pm, 23 January 2012: added Internode comment