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Dear Ms Moran
Right to Know Organisatioin

I refer to your email of 23 August 2017 4:09 PM in which you request
information about claims for enrolment and claims for transfer of
enrolment rejected by the Australian Electoral Commission (‘AEC’).

I am writing today to acknowledge receipt of your request and to alert you
that your request is not properly made under the [1]Freedom of Information
Act 1982 (the ‘FOI Act’). I explain why below.

Access to documents

Under Part III of the FOI Act a person is given the right to access to
documents that exist which are held by a Minister or an agency (e.g. the
AEC): see section 11 of the FOI Act and the definitions of ‘document’ amd
‘document of an ageny’ provided by section 4 of the FOI Act.

In so far as is material, section 4 of the FOI Act provides:

4           Interpretation

(1)     In this Act, unless the contrary intention appears:

document includes:

(a)     any of, or any part of any of, the following things:

(i)      any paper or other material on which there is writing;

(ii)     a map, plan, drawing or photograph;

(iii)     any paper or other material on which there are marks, figures,
symbols or perforations having a meaning for persons qualified to
interpret them;

(iv)    any article or material from which sounds, images or writings are
capable of being reproduced with or without the aid of any other article
or device;

(v)     any article on which information has been stored or recorded,
either mechanically or electronically;

(vi)    any other record of information; or

(b)     any copy, reproduction or duplicate of such a thing; or

(c)     any part of such a copy, reproduction or duplicate;

but does not include:

(d)     material maintained for reference purposes that is otherwise
publicly available; or

(e)     Cabinet notebooks.

document of an agency: a document is a document of an agency if:

(a)     the document is in the possession of the agency, whether created
in the agency or received in the agency; or

(b)     in order to comply with section 6C, the agency has taken
contractual measures to ensure that it receives the document.

In so far as is material, section 11 of the FOI Act provides:

11      Right of access

(1)     Subject to this Act, every person has a legally enforceable right
to obtain access in accordance with this Act to:

(a)     a document of an agency, other than an exempt document; or

I also draw to your attention guidelines (the ‘[2]FOI Guidelines’) issued
by the Australian Information Commissioner under subsection 93A of the FOI
Act, specifically paragraphs 2.33 and 2.34 which say:

Documents in existence

2.33   The right of access under the FOI Act is to existing documents,
rather than to information.The FOI Act does not require an agency or
minister to create a new document in response to a request for access,
except in limited circumstances where the applicant seeks access in a
different format or where the information is stored in an agency computer
system rather than in discrete form (see Part 3 of these Guidelines). A
request may nevertheless be framed by reference to a document that
contains particular information.

2.34   The right of access applies to documents that exist at the time the
FOI request was made. An applicant cannot insist that their request cover
documents created after the request is received. However, the agency or
minister could consider whether to include documents that were created
after the request was received. This could be more administratively
efficient because the applicant might otherwise submit a new request for
the later documents.

The emphasis is mine.

The substance of your request seeks information and not access to a
document. Further that request relates to information in the future. It
follows that your request falls outside the scope of that which may be
requested under the FOI Act.

As the information that you seek does not yet exist, the AEC is unable to
accede to your request.

Assistance in making an FOI Request

The AEC is required to assist you to make a valid FOI Request by
subsection 15(3) of the FOI Act. To this end I direct your attention to
paragraphs 3.48 – 3.56 of the FOI Guidelines which say:

The formal requirements of an FOI access request

3.48   A request for documents under the FOI Act must meet the following
formal requirements:

·             The request must be in writing (s 15(2)(a)).

·             The request must state that it is a request for the purposes
of the FOI Act (s 15(2)(aa)). This requirement distinguishes an FOI
request from a simple enquiry. Agencies and ministers should nevertheless
take a flexible approach when assessing whether an applicant has met this
requirement. If an applicant’s intention is not clear the agency or
minister should contact them to confirm whether the request was intended
to be made under the FOI Act.

·             The request must provide such information as is reasonably
necessary to enable a responsible officer of the agency or the minister to
identify the document that is requested (s 15(2)(b)) (see [ 3.97]). Before
refusing a request for failing to meet this requirement an agency or
minister must undertake a ‘request consultation process’ (see
[3.111]–[3.115]).

·             The request must give details of how notices under the FOI
Act may be sent to the applicant (s 15(2)(c)). The return address may be a
physical, postal or electronic address (such as an email address).

·             The request must be sent to the agency or minister, in any
of the following ways: delivery of the request in person to a central or
regional office of the agency or minister as specified in a current
telephone directory; by pre-paid post to a specified address of the agency
or minister; or by electronic communication to a specified email or fax
address of the agency or minister (for example, [3][email address]) (s
15(2A)). This requirement can be met by posting the request on a public
website which forwards the request to a specified address of the agency or
minister.^14 This requirement will not be met if the request is sent to
an address or number other than a specified address (for example, the
email address of an agency staff member). If the agency or minister has
not specified an email address or fax number for FOI requests, the request
may be sent to the general email address or fax number of the agency or
minister.

Assisting an applicant

3.49   An agency or minister may refuse a request that does not meet the
formal requirements set out in s 15 (subject to conducting a request
consultation process before basing a decision on s 15(2)(b)). However, an
agency also has a duty to take reasonable steps to assist a person to make
a request that complies with the formal requirements of the FOI Act (s
15(3)). This duty applies both when a person wishes to make a request and
when they have made a request that does not meet the formal requirements.
While the Act places an obligation only on agencies, ministers’ offices
may adopt a similar approach to assisting applicants.

3.50   An agency has a separate duty to take reasonable steps to assist a
person to direct their request to the appropriate agency or minister (s
15(4)). This duty may arise, for example, if the document requested is not
in the possession of the agency but is known or likely to be in the
possession of another agency or minister. An agency or minister may also
transfer a request to another agency or minister under s 16 of the Act if
it does not have the document in its possession, or the document requested
is more closely connected with the functions of the other agency or
minister (see [3.57]–[3.68]).

3.51   The nature of the duty to take ‘reasonable steps’ to assist an
applicant to make a request, and to direct the request to the appropriate
agency or minister, will depend on the circumstances of each request.
Factors that may be relevant include the nature of a request, the extent
of detail required to clarify the scope of a request, an applicant’s
knowledge (or lack of knowledge) of the structure of government and the
functions of agencies, and whether an applicant needs special assistance
because of language or literacy issues or a disability.

3.52   If a person has not yet made a request and contacts an agency or
minister’s office to enquire whether they hold particular information, it
is appropriate to explain the agency’s functions and the type of
information that is held. A person should be advised if the request
relates to information that the agency or minister’s office has already
published in its disclosure log or as part of the Information Publication
Scheme (IPS) (see Parts 14 and 13 of these Guidelines respectively).

3.53   An agency or minister should also be flexible in assisting an
applicant to provide the details necessary for a request to fulfil the
formal requirements of the FOI Act (for example, notifying the applicant
of a missing detail by telephone or email). This contact can be made
either before or after a request is formally acknowledged. It should
rarely be necessary to require the submission of a fresh written FOI
request if only a minor detail, such as a date relevant to a particular
document or the applicant’s return address, has been omitted from the
access request. Once the further information is provided, the agency or
minister’s office should inform the applicant that their request meets the
statutory requirements and that the timeframe for deciding the request has
commenced. It is important to keep good records of contact with
applicants, such as file notes of conversations, so that an agency can
demonstrate if required that it has taken reasonable steps in accordance
with s 15(3) or (4).

Interpreting the scope of a request

3.54 A request should be interpreted as extending to any document that
might reasonably be taken to be included within the description the
applicant has used.^15 A request for a ‘file’ should be read as a request
for all of the documents contained in the file, including the file cover.

3.55   A request for all documents relating to a particular subject would
also include any document or print-out which lists the names of all of the
files the agency may consider relevant to the request. An agency will need
to exercise care in relation to any sensitive material, such as personal
names, that may appear on the list. If in doubt, the agency or minister
should consult the applicant to discuss exactly what documents are being
requested. Other considerations relevant to construing the scope of a
request are discussed below at [3.98].

3.56   It is irrelevant whether or not the applicant already has copies of
the documents they have requested.

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14            For example, see [4]www.righttoknow.org.au.  

15            [5]Re Gould and Department of Health [1985] AATA 63.  

For more information about making an FOI request to the AEC please visit
our website, specifically the Access to AEC information page:
[6]http://www.aec.gov.au/information-access/

Other matters

I also draw to your attention that the information that you seek seems to
be exempt under section 47A of the FOI Act which says:

47A    Electoral rolls and related documents

(1)     In this section:

Electoral Act means the Commonwealth Electoral Act 1918.

electoral roll means:

(a)     a Roll of the electors of:

(i)      a State or Territory; or

(ii)     a Division (within the meaning of the Electoral Act); or

(iii)     a Subdivision (within the meaning of the Electoral Act);

prepared under the Electoral Act; or

(b)     any part of a Roll referred to in paragraph (a).

(2)     Subject to this section, a document is an exempt document if it
is:

(a)     an electoral roll; or

(b)     a print, or a copy of a print, of an electoral roll; or

(c)     a microfiche of an electoral roll; or

(d)     a copy on tape or disk of an electoral roll; or

(e)     a document that:

(i)      sets out particulars of only one elector; and

(ii)     was used to prepare an electoral roll; or

(f)      a document that:

(i)      is a copy of a document referred to in paragraph (e); or

(ii)     contains only copies of documents referred to in paragraph (e);
or

(g)     a document (including a habitation index within the meaning of the
Electoral Act) that:

(i)      sets out particulars of electors; and

(ii)     was derived from an electoral roll.

(3)     The part of an electoral roll that sets out the particulars of an
elector is not an exempt document in relation to the elector.

(4)     Any print, copy of a print, microfiche, tape or disk that sets out
or reproduces only the particulars entered on an electoral roll in respect
of an elector is not an exempt document in relation to the elector.

(5)     A document that sets out only the particulars of one elector and:

(a)     is a copy of a document referred to in paragraph (2)(e); or

(b)     is a copy, with deletions, of a document referred to in
paragraph (2)(e), (f) or (g);

is not an exempt document in relation to the elector.

Further, paragraphs 5.207 – 5.209 of the FOI Guidelines say:

Electoral rolls and related documents (s 47A)

5.207 A document is an exempt document under s 47A(2) if it is:

(a)     an electoral roll

(b)     a print, or a copy of a print, of an electoral roll

(c)     a microfiche of an electoral roll

(d)     a copy on tape or disc of an electoral roll

(e)     a document that sets out particulars of only one elector and was
used to prepare an electoral roll

(f)      a document that is a copy of a document that sets out particulars
of only one elector and was used to prepare an electoral roll

(g)     a document that contains only copies of a document that sets out
particulars of only one elector and was used to prepare an electoral roll

(h)     a document (including a habitation index within the meaning of the
Commonwealth Electoral Act 1918) that sets out particulars of electors and
was derived from an electoral roll.

5.208 The exemption extends to electoral rolls (or part of an electoral
roll) of a State or Territory or a Division or Subdivision (within the
meaning of the Commonwealth Electoral Act) prepared under that Act (s
47A(1)).

5.209 The exemption does not apply where an individual is seeking access
to their own electoral records. That is:

·             the part of the electoral roll that sets out the particulars
of the elector applying for access (s 47A(3))

·             any print, copy of a print, microfiche, tape or disk that
sets out or reproduces only the particulars entered on an electoral roll
in respect of the elector (s 47A(4))

·             a document that sets out only the particulars of the elector
and was used to prepare an electoral roll (s 47A(5)(a))

·             a copy, with deletions, of a document that sets out
particulars of only one elector and was used to prepare an electoral roll
(or a copy of such a document) (s 47A(5)(b))

·             a copy, with deletions, of a document (including a
habitation index within the meaning of the Commonwealth Electoral Act)
that sets out particulars of electors and was derived from an electoral
roll (s 47A(5)(b)).

Please contact me to discuss how to make a compliant FOI Request if you
are unsure after reading the above material.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

                    Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

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