Requests for amendment to 2015-16 financial disclosures
Dear Australian Electoral Commission,
I write seeking access to all requests for amendment made by the AEC to political parties or associated entities in relation to the 2015-16 annual financial disclosures.
Please initially treat this as a request for administrative access. If the request cannot be fulfilled under administrative access please treat this as a formal request under the Freedom of Information Act.
I would like to be advised if the information I have sought is due to be released under FOI to individuals or organisations prior to finalisation of my application.
I also note the onus rests with the agency to prove why any information should not be released under the Act and I request the agency provide evidence in support of any assumptions or assertions used to justify non-disclosure.
Yours sincerely,
Simon Elvery
Thank you for contacting us.
This is an automatic response from the Australian Electoral Commission to confirm we have received your email.
For more information on enrolling to vote, federal elections or the AEC, visit www.aec.gov.au.
Please do not respond to this email.
UNCLASSIFIED
Dear Mr Elvery,
At this stage I am unable to grant you access to all requests for
amendment made by political parties and associated entities to the AEC for
the 2015-16 annual financial disclosures as the original returns and any
amendments to them are required to be held under embargo until 1 February
2017, in accordance with the Commonwealth Electoral Act 1918 (the Act).
Section 320(5) of the Act states that:
“A person is not entitled under this section to peruse, or obtain a copy
of:
a) a return under s305B; or
b) a return under Division 5A;
until February in the calendar year after the return is furnished”
However, on 1 February 2017 the AEC will publish on its website all
2015-16 annual disclosure returns, as well as any amendments to these
returns that have been requested and processed by that date. The AEC also
publishes, on a regular basis, any subsequent amendments to returns which
are lodged and processed at any time after 1 February 2017.
After 1 February 2017 you will be able to access those amendments here:
[1]http://periodicdisclosures.aec.gov.au/
If you have any further questions regarding this matter, please don’t
hesitate to contact me on (02) 6271 4430 or by return email.
Kind regards,
Giles Tranter | A/g Assistant Director
Funding & Disclosure | Disclosure, Assurance and Engagement Branch
Australian Electoral Commission
T: (02) 6271 4430
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[2]Australian Electoral Commission logo [3]Australian Electoral Commission
James Baldwin left an annotation ()
Interesting response indeed. I think the correct response to the request is to make a decision granting access to the document, and then deferring actual access to the document under section 21 of the FOI Act. It's not clear whether the response from the AEC is supposed to be a refusal, or a granting, or is instead asking if you will wait.
I would have thought the sensible response, given the timing, would be to wait to say anything until it was publicly available and then refer you there.
UNCLASSIFIED
Dear Mr Elvery
I refer to your email dated 24 January 2017 5:52 PM in which you request
(‘your FOI Request] to the Australian Electoral Commission (‘AEC’) under
the [1]Freedom of Information Act 1982 (the ‘FOI Act’)for access to
documents relating to requests for amendment to 2015-16 financial
disclosures.
Your request was referred to me for processing under the FOI Act in light
of the refusal of your request for administrative access to the documents.
I have taken your request to be for:
all requests for amendment made by the AEC to political parties or
associated entities in relation to the 2015-16 annual financial
disclosures.
We received your request on 24 January 2017 5:52 PM and the 30 day
statutory period for processing your request commenced from the day after
that date. You should therefore expect a decision from us by 23 February
2017. The period of 30 days may be extended if we need to consult third
parties or for other reasons. We will advise you if this happens.
You may wish to consider withdrawing your FOI Request in light of Mr
Tranter’s email to you dated 25 January 2017 8:41 AM (appended) because
once the requests to amend the returns are published by the AEC (which
will occur on 1 February 2017) the documents will not fall within the
scope of that which may be requested as a document under section 15 of the
FOI Act. The embargo mentioned by Mr Tranter applies to release under the
FOI Act before then: see paragraph 21(1)(a) of the FOI Act. I will explain
why if you require a decision on this FOI Request.
Please note that information released under the FOI Act may later be
published online on the AEC’s disclosure log [2]at
http://www.aec.gov.au/information-access..., subject to certain
exceptions. (For example, personal information will not be published where
this would be unreasonable.)
We will contact you using the email address that you provided. Please
advise if you would prefer us to use an alternative means of contact. If
you have any questions, please contact me at:
email: [email address]
fax: 02 6293 7657
post: Locked bag 4007, Canberra ACT 2601
telephone: 02 6271 4528
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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[3]Australian Electoral Commission logo [4]Australian Electoral
Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
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UNCLASSIFIED
From: FAD
Sent: Wednesday, 25 January 2017 8:41 AM
To: '[FOI #2980 email]'
<[5][FOI #2980 email]>
Cc: INFO <[6][AEC request email]>
Subject: RE: Freedom of Information request - Requests for amendment to
2015-16 financial disclosures [SEC=UNCLASSIFIED]
UNCLASSIFIED
Dear Mr Elvery,
At this stage I am unable to grant you access to all requests for
amendment made by political parties and associated entities to the AEC for
the 2015-16 annual financial disclosures as the original returns and any
amendments to them are required to be held under embargo until 1 February
2017, in accordance with the Commonwealth Electoral Act 1918 (the Act).
Section 320(5) of the Act states that:
“A person is not entitled under this section to peruse, or obtain a copy
of:
a) a return under s305B; or
b) a return under Division 5A;
until February in the calendar year after the return is furnished”
However, on 1 February 2017 the AEC will publish on its website all
2015-16 annual disclosure returns, as well as any amendments to these
returns that have been requested and processed by that date. The AEC also
publishes, on a regular basis, any subsequent amendments to returns which
are lodged and processed at any time after 1 February 2017.
After 1 February 2017 you will be able to access those amendments here:
[7]http://periodicdisclosures.aec.gov.au/
If you have any further questions regarding this matter, please don’t
hesitate to contact me on (02) 6271 4430 or by return email.
Kind regards,
Giles Tranter | A/g Assistant Director
Funding & Disclosure | Disclosure, Assurance and Engagement Branch
Australian Electoral Commission
T: (02) 6271 4430
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[8]Australian Electoral Commission logo [9]Australian Electoral Commission
Dear Mr Tranter and Mr Jones,
Thank you for your prompt reply to my request. I understand the embargo restrictions and am happy to wait until 1 February for access to the requested documents. However, I'm not sure you've understood my request correctly.
I'm seeking access to communications from the AEC to political parties or associated entities (as opposed to the "Request for Amendment" disclosure return form lodged by the entities). As far as I'm aware these are not made available on http://periodicdisclosures.aec.gov.au/.
If I'm wrong, I would appreciate if you could point out specifically where they can be found for the 2014-16 year (and by extension where the 2015-16 documents will be released next week).
Yours sincerely,
Simon Elvery
UNOFFICIAL
Dear Mr Elvery
Thank you for your emai of 25 January 2017 5:39 PM in which you clarify
the scope of your FOI Reqeust.
I now take your request to be for:
All correspondence by the Australian Electoral Commission (‘AEC’) with
political parties or associated entities in relation amendment of the
2015-16 annual financial disclosure by each party. or entity.
I will give directions for the retrieval of relevant documents on that
basis. Please let me know if you wish to further clarify your request.
As mentioned in my email to you of 25 January 2017 5:16 PM, you may expect
a decision on your FOI Request by 23 February 2017.
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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Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
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Dear Owen Jones,
A response to this request is now overdue (and therefore a deemed refusal under the Act). Before requesting a review by the Information Commissioner I wanted to first check with you that the AEC's lack of response isn't simply an oversight.
If I haven't heard from you by COB Monday 27 February I will ask the Information Commissioner to review this decision.
Yours sincerely,
Simon
Dear Mr Elvery
Thank you for your email of 24 February 2017 11:44 AM.
Your FOI Request is being processed. I am able to make the observation
that half the documents retrieved have already been published on the AEC
website and thus are outside the scope of that which may be requested
under Part III of the Freedom of Information Act 1982. I will explain why
when giving a decision about the FOI Request. The remainder of the
documents are formal correspondence submitting the attached amendment to
the return.
It is a matter for your whether you seek IC review of the deemed refusal.
My intention is to continue to process your FOI Request. This is the
course preferred by the Office of the Information Commissioner: see
paragraph 10.33 of the he guidelines (‘[1]FOI Guidelines’] issued by the
Australian Information Commissioner under section 93A of the FOI Act.
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
--------------------------------------------------------------------------
[2]Australian Electoral Commission logo [3]Australian Electoral
Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
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Original Message-----
From: Simon [mailto:[FOI #2980 email]]
Sent: Friday, February 24, 2017 11:44 AM
To: Owen Jones <[email address]>
Subject: Re: Your FOI Request No. LS5915 for requests for amendment to
2015-16 financial disclosures [SEC=UNCLASSIFIED] [SEC=UNOFFICIAL]
Dear Owen Jones,
A response to this request is now overdue (and therefore a deemed refusal
under the Act). Before requesting a review by the Information Commissioner
I wanted to first check with you that the AEC's lack of response isn't
simply an oversight.
If I haven't heard from you by COB Monday 27 February I will ask the
Information Commissioner to review this decision.
Yours sincerely,
Simon
Dear Owen Jones,
It's unclear to me why the processing of my request should take longer than the statutory timeframe. Had the lack of response simply have been an oversight, I was more than willing to overlook the late response—I completely understand that things can sometimes be accidentally overlooked. However your reply suggests that the AEC is simply taking as long as it pleases to fulfil my request. This is not within the spirit or the letter of the Act, nor is it suggested as a preferred course of action for requests which require longer than the statutory period.
I note that your reply does not suggest or request a specific time period within which the AEC intends to have finalised my request.
Paragraph 10.33 of the current Guidelines relate to applicants applying for an IC review and does not, as you state, suggest the Commissioner's preference that agencies simply continuing to process overdue (deemed decision) requests.
The guidelines do however state clearly, in Table 3, the correct process for seeking an extension period when an agency cannot, for whatever reason, meet the response deadline.
Further, from your response I have concerns that you have continued to misinterpret my request. I am still unable to locate any correspondence from the AEC to political parties or entities which you say has been publicly released. If I'm simply looking in the wrong place, your help locating this information would, of course, be much appreciated.
Nevertheless, your response does indicate that there are some documents which fall within the scope of my request which have not been made public to date. I still very much want access to those documents so I intend to seek IC review of this request as I believe it has been handled poorly and not met the AEC's FOI obligations.
A complete history of the communication in relation to this request is available at https://www.righttoknow.org.au/request/r...
Yours sincerely,
Simon
Dear Mr Elvery
I refer to your 24 January 2017 5:52 PM to the Australian Electoral
Commission (‘AEC’) in which you request (your ‘FOI Request’) access under
the [1]Freedom of Information Act 1982 (the ‘FOI Act’) access to
information about requests for amendment to 2015-16 financial disclosures.
I also refer to your email of 24 February 2017 11:44 AM and my reply of 24
February 2017 3:35 PM and your further email of 24/02/2017 5:07 PM about
your FOI Request.
2 I am writing today to give you a decision about
access to Document Nos. that you requested in your FOI Request.
Summary
3 I, Owen Jones, Senior of the AEC, am an officer
authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests.
4 Specifically you sought access to:
access to all requests for amendment made by the AEC to political parties
or associated entities in relation to the 2015-16 annual financial
disclosures
5 I identified 36 documents that fell within the scope
of your request.
6 I did this by directing inquiries to the AEC’s
Disclosure, Assurance and Engagement Branch which is responsible for
disclosures under Part XX of the [2]Commonwealth Electoral Act 1918 (the
‘Electoral Act).
7 The schedule of relevant Documents in the attached
Acrobat file LS5915 Decision Attachment A.pdf (‘Attachment A’) provides a
description of each document that falls within the scope of your request
and the access decision for each of those documents.
8 With regard to the documents that you requested (set
out in Attachment A), I have decided to:
(a) grant access to 16 documents;
(b) refused access to 4 documents and to offer in lieu to grant
access to edited versions those documents; and
(c) refuse access to the remaining 16 documents.
9 More information, including my reasons for my
decision, is set out below.
10 There was a delay in processing this FOI Request
because other FOI Requests were on hand for processing at the same time. I
apologise for that delay.
Decision and reasons for decision
Decision
11 With regard to the Document Nos. identified in
Attachment A, I have decided:
(a) to grant access in full to Document Nos. 2, 4, 6, 8, 10, 12,
14, 16, 18, 20, 22, 24, 26, 29, 33 and 35; and
(b) to refuse access to Document Nos. 27, 30, 31 and 36 under
section subsection 47F(1) of the FOI Act (Public interest conditional
exemptions—personal privacy) as providing access would be contrary to the
public interest and in lieu to offer to grant access in part to those
Document Nos. with exempt matter deleted under section 22 of the FOI Act;
12 In addition I found that for the purposes of paragraph
(d) of the definition of ‘document’ provided by subsection 4(1) of the FOI
applies to Document Nos. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25,
28, 32 and 34 with the consequence that these documents are not included
in the scope of that which may be requested as a document under subsection
15(2) of the FOI Act in an FOI Request.
Material taken into account
13 I have taken the following material into account in
making my decision:
(a) the content of the Document Nos. that fall within the scope of
the FOI Request;
(b) the FOI Act, specifically sections 3, 3A, 4 11A; 11B, 15, 22
and 47F; and
(c) the guidelines (‘[3]FOI Guidelines’] issued by the Australian
Information Commissioner under section 93A of the FOI Act, specifically
paragraphs 2.29 – 2.44, 6.1 – 6.28 and 6.124 – 6.179;
Reasons
14 Attachment A indicates each document to which access is
refused. My reasons for refusing access are given below.
Public interest conditional exemption – personal privacy
15 With respect to Document Nos. 27, 30, 31 and 36, I
found that each document contained a facsimile of the signature of Delyse
Paliaga.
16 I further found, for the reasons that appear below,
that there was no need to consult Ms Paliaga about giving access to
Document Nos. 27, 30, 31 and 36 because it is obviously unreasonable to
give access to a version of the documents that contains a facsimile of her
signature.
17 Subsection 47F(1) of the FOI Act conditionally exempts
personal information where it is unreasonable to give access under an FOI
Request.
18 Subsection 47F(1) of the FOI Act provides:
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this
Act would involve the unreasonable disclosure of personal information
about any person (including a deceased person).
19 In making my decision I had regard to:
(a) the extent to which the information is well known – Ms Paliaga
signature is not well known;
(b) whether the person to whom the information relates is known to
be (or to have been) associated with the matters dealt with in the
document – Ms Paliaga is known to be associated with her signature, it is
a means of identifying her acts with her;
(c) the availability of the information from publicly accessible
sources – facsimiles of Ms Paliaga’s signature are not readily available
from public accessible sources;
(d) FOI Guidelines, Part 6 (Exemptions);
(e) the following additional matters that I considered relevant:
(i) access to documents has been requested by email with the
consequence that electronic copies of documents released will be given;
(ii) a signature authenticates the acts of the actor; and
(iii) there is a risk of harm arising from identity theft
facilitated by access to a facsimile of a signature; and
(iv) the AEC has a duty to an individual in dealing with their
personal information to take all reasonable measures to protect that
individual from harm arising from its dealings with that personal
information.
20 Accordingly, I am satisfied that the document falls
within the scope of the conditional exemption for personal privacy
provided by section 47F of the FOI Act.
Weighing of public interest factors
21 Under subsection 11A(5) of the FOI Act, access to a
document covered by a conditional exemption must be given unless it would
be contrary to the public interest.
22 My weighing of public interest factors follows.
(a) I identified the following harm that would affect Ms Paliaga,
namely loss arising from identity theft facilitated by access to a
facsimile of the signature.
(b) I considered the following factors favouring disclosure:
(i) The public has an interest in overseeing the performance by
the AEC of its functions in relation to Part XX of the Electoral Act.
(c) I considered the following factors that militate against
disclosure:
(i) The harm to Ms Paliaga identified in paragraph 22(a) of this
letter.
(d) In accordance with subsection 11B(4) of the FOI Act I excluded
from my consideration the following matters:
(i) access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the Commonwealth
Government;
(ii) access to the document could result in any person
misinterpreting or misunderstanding the document;
(iii) the author of the document was (or is) of high seniority in
the agency to which the request for access to the document was made; and
(iv) access to the document could result in confusion or unnecessary
debate.
23 In considering the weighing of public interest factors
I had regard to the FOI Guidelines at paragraphs 6.7 – 6.28.
24 In my view, the factors against disclosure of the
document outweigh the factors in favour of disclosure for the following
reasons:
(a) The harm that Ms Palagia may suffer could be substantial and it
is difficulty to minimise that harm if access is given electronically to a
facsimile of her signature given the ease on on-publication of that
facsimile;
(b) The public interest in overseeing Part XX of the Electoral Act
can be vindicated without giving access to a facsimile of Ms Paliaga’s
signature; and
(c) It is sufficient to know that Ms Paliaga was the signatory of
Document Nos. 27, 30, 31 and 36 without seeing the signature on the
documents.
25 Accordingly, I am satisfied that the Document Nos. 27,
30, 31 and 36 are conditionally exempt under subsection 47F(1) of the FOI
Act and because disclosure would be contrary to the public interest and
that Document Nos. 27, 30, 31 and 36. should be treated as exempt from
disclosure under the FOI Act.
Preparation of an edited copy
26 In accordance with section 22 of the FOI Act I next
considered whether it is both possible and practicable to prepare an
edited copy of each of Document Nos. 27, 30, 31 and 36 from which the
facsimile of Ms Pagliaga’s signature is redacted.
27 Section 22 of the FOI Act provides:
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that
would reasonably be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an
edited copy) of the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under
section 11A (access to Document Nos. on request); and
(ii) the edited copy would not disclose any information that would
reasonably be regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare
the edited copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the
applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:
(a) that the edited copy has been prepared; and
(b) of the grounds for the deletions; and
(c) if any matter deleted is exempt matter—that the matter deleted is
exempt matter because of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision
to refuse access to the whole document unless the applicant requests the
agency or Minister to give the applicant a notice in writing in accordance
with that section.
28 I had regard to paragraphs 3.85 – 3.90 of the FOI
Guidelines.
29 I found that it is both possible and practicable to
prepare an edited copy of to Document Nos. 27, 30, 31 and 36 from which Ms
Paliaga’s signature is redacted.
30 The offer in paragraphs 40 and 41 of this letter is
made for the purpose of the consultation required by paragraph 22(1)(d) of
the FOI Act.
Documents. out of Scope of an FOI Request
31 Section 15 of the FOI Act enables a person to seek
access, among other things, to a document of an agency. The AEC is an
agency for the purposes of the FOI Act.
32 In so far as is material subsection 15(1) of the FOI
Act provides:
15 Requests for access
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a
document of an agency or an official document of a Minister may request
access to the document.
33 Section 15A of the FOI Act makes provision with respect
to requests for access to personnel records and has no relevance to the
FOI Request.
34 The expression ‘document of an agency’ is defined by
subsection 4(1) of the FOI Act and depends on the definition given by that
subsection to the word ‘document’.
35 In so far as is material, subsection 4(1) of the FOI
Act provides:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
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.
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.
36 Document Nos. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21,
23, 25, 28, 32 and 34 are material maintained for reference purposes by
the AEC that is otherwise publicly available at the AEC website. The
description of each document in Attachment A indicates the URL for that
document by which it may be accessed.
37 It follows that the carve out in paragraph (d) of the
definition of ‘document’ provided by subsection 4(1) of the FOI Act
applies to Document Nos. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25,
28, 32 and 34 with the outcome that none of those documents is included in
the expression ‘document of an agency’ and thus cannot be requested under
subsection 15(1) of the FOI Act.
38 For this reason, I refused access to Document Nos. 1,
3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 28, 32 and 34.
Transmission of released documents
39 I will transmit to Document Nos. 2, 4, 6, 8, 10, 12,
14, 16, 18, 20, 22, 24, 26, 29, 33 and 35 to you in two later emails due
to the size of the transmission.
Offer of access to edited copies
40 In paragraph 11(b) of this letter I indicated that I
would offer you access to edited copies of Document Nos. 27, 30, 31 and 36
from which exempt or irrelevant matter had been redacted, the terms of
that offer follow:
(a) The offer remains open for 60 days from the dated of this
letter;
(b) The offer is conditional that accept the edited copies in
satisfaction of you FOI Request for the relevant Document Nos.; and
(c) the offer must be accepted in writing signed by you (this may
be scanned and sent by email to me using my contact details below.
41 If this offer is not accepted within the 60 day period,
my decision to refuse access to Document Nos. 27, 30, 31 and 36 will
stand.
Your review rights
42 If you are dissatisfied with my decision, you may apply
for internal review or Information Commissioner review of the decision. We
encourage you to seek internal review as a first step as it may provide a
more rapid resolution of your concerns.
Internal review
43 Under section 54 of the FOI Act, you may apply in
writing to the AEC for an internal review of my decision. The internal
review application must be made within 30 days of the date of this letter.
44 Where possible please attach reasons why you believe
review of the decision is necessary. The internal review will be carried
out by another officer within 30 days.
Information Commissioner review
45 Under section 54L of the FOI Act, you may apply to the
Australian Information Commissioner to review my decision. An application
for review by the Information Commissioner must be made in writing within
60 days of the date of this letter, and be lodged in one of the following
ways:
online:
[4]https://forms.business.gov.au/aba/oaic/f...
email: [5][email address]
post: GPO Box 52189, Sydney NSW 2001
in person: Level 3, 175 Pitt Street, Sydney NSW
46 More information about Information Commissioner review
is available on the Office of the Australian Information Commissioner
website. Go to [6]www.oaic.gov.au/freedom-of-information/foi-reviews.
Questions about this decision
47 If you wish to discuss this decision, please contact me
at:
email: [7][email address]
fax: 02 6293 7657
post: Locked bag 4007, Canberra ACT 2601
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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[8]Australian Electoral Commission logo [9]Australian Electoral
Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
--------------------------------------------------------------------------
From: Owen Jones
Sent: Wednesday, January 25, 2017 5:16 PM
To: '[FOI #2980 email]'
<[10][FOI #2980 email]>
Cc: FAD <[11][email address]>; Legal Services - NO
<[12][email address]>
Subject: Your FOI Request No. LS591 for requests for amendment to 2015-16
financial disclosures [SEC=UNCLASSIFIED]
UNCLASSIFIED
Dear Mr Elvery
I refer to your email dated 24 January 2017 5:52 PM in which you request
(‘your FOI Request] to the Australian Electoral Commission (‘AEC’) under
the [13]Freedom of Information Act 1982 (the ‘FOI Act’)for access to
documents relating to requests for amendment to 2015-16 financial
disclosures.
Your request was referred to me for processing under the FOI Act in light
of the refusal of your request for administrative access to the documents.
I have taken your request to be for:
all requests for amendment made by the AEC to political parties or
associated entities in relation to the 2015-16 annual financial
disclosures.
We received your request on 24 January 2017 5:52 PM and the 30 day
statutory period for processing your request commenced from the day after
that date. You should therefore expect a decision from us by 23 February
2017. The period of 30 days may be extended if we need to consult third
parties or for other reasons. We will advise you if this happens.
You may wish to consider withdrawing your FOI Request in light of Mr
Tranter’s email to you dated 25 January 2017 8:41 AM (appended) because
once the requests to amend the returns are published by the AEC (which
will occur on 1 February 2017) the documents will not fall within the
scope of that which may be requested as a document under section 15 of the
FOI Act. The embargo mentioned by Mr Tranter applies to release under the
FOI Act before then: see paragraph 21(1)(a) of the FOI Act. I will explain
why if you require a decision on this FOI Request.
Please note that information released under the FOI Act may later be
published online on the AEC’s disclosure log [14]at
http://www.aec.gov.au/information-access..., subject to certain
exceptions. (For example, personal information will not be published where
this would be unreasonable.)
We will contact you using the email address that you provided. Please
advise if you would prefer us to use an alternative means of contact. If
you have any questions, please contact me at:
email: [15][email address]
fax: 02 6293 7657
post: Locked bag 4007, Canberra ACT 2601
telephone: 02 6271 4528
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
--------------------------------------------------------------------------
[16]Australian Electoral Commission logo [17]Australian Electoral
Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
--------------------------------------------------------------------------
UNCLASSIFIED
From: FAD
Sent: Wednesday, 25 January 2017 8:41 AM
To: '[FOI #2980 email]'
<[18][FOI #2980 email]>
Cc: INFO <[19][AEC request email]>
Subject: RE: Freedom of Information request - Requests for amendment to
2015-16 financial disclosures [SEC=UNCLASSIFIED]
UNCLASSIFIED
Dear Mr Elvery,
At this stage I am unable to grant you access to all requests for
amendment made by political parties and associated entities to the AEC for
the 2015-16 annual financial disclosures as the original returns and any
amendments to them are required to be held under embargo until 1 February
2017, in accordance with the Commonwealth Electoral Act 1918 (the Act).
Section 320(5) of the Act states that:
“A person is not entitled under this section to peruse, or obtain a copy
of:
a) a return under s305B; or
b) a return under Division 5A;
until February in the calendar year after the return is furnished”
However, on 1 February 2017 the AEC will publish on its website all
2015-16 annual disclosure returns, as well as any amendments to these
returns that have been requested and processed by that date. The AEC also
publishes, on a regular basis, any subsequent amendments to returns which
are lodged and processed at any time after 1 February 2017.
After 1 February 2017 you will be able to access those amendments here:
[20]http://periodicdisclosures.aec.gov.au/
If you have any further questions regarding this matter, please don’t
hesitate to contact me on (02) 6271 4430 or by return email.
Kind regards,
Giles Tranter | A/g Assistant Director
Funding & Disclosure | Disclosure, Assurance and Engagement Branch
Australian Electoral Commission
T: (02) 6271 4430
--------------------------------------------------------------------------
[21]Australian Electoral Commission [22]Australian Electoral
logo Commission
Dear Mr Elvery
Here is the first tranche of released documents.
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
--------------------------------------------------------------------------
[1]Australian Electoral Commission logo [2]Australian Electoral
Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
--------------------------------------------------------------------------
From: Owen Jones
Sent: Tuesday, February 28, 2017 11:13 AM
To: ''[FOI #2980 email]'
<'[FOI #2980 email]>
Cc: Legal Services - NO <[3][email address]>
Subject: Your FOI Request No. LS591 for requests for amendment to 2015-16
financial disclosures [SEC=UNCLASSIFIED]
Dear Mr Elvery
I refer to your 24 January 2017 5:52 PM to the Australian Electoral
Commission (‘AEC’) in which you request (your ‘FOI Request’) access under
the [4]Freedom of Information Act 1982 (the ‘FOI Act’) access to
information about requests for amendment to 2015-16 financial disclosures.
I also refer to your email of 24 February 2017 11:44 AM and my reply of 24
February 2017 3:35 PM and your further email of 24/02/2017 5:07 PM about
your FOI Request.
2 I am writing today to give you a decision about
access to Document Nos. that you requested in your FOI Request.
Summary
3 I, Owen Jones, Senior of the AEC, am an officer
authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests.
4 Specifically you sought access to:
access to all requests for amendment made by the AEC to political parties
or associated entities in relation to the 2015-16 annual financial
disclosures
5 I identified 36 documents that fell within the scope
of your request.
6 I did this by directing inquiries to the AEC’s
Disclosure, Assurance and Engagement Branch which is responsible for
disclosures under Part XX of the [5]Commonwealth Electoral Act 1918 (the
‘Electoral Act).
7 The schedule of relevant Documents in the attached
Acrobat file LS5915 Decision Attachment A.pdf (‘Attachment A’) provides a
description of each document that falls within the scope of your request
and the access decision for each of those documents.
8 With regard to the documents that you requested (set
out in Attachment A), I have decided to:
(a) grant access to 16 documents;
(b) refused access to 4 documents and to offer in lieu to grant
access to edited versions those documents; and
(c) refuse access to the remaining 16 documents.
9 More information, including my reasons for my
decision, is set out below.
10 There was a delay in processing this FOI Request
because other FOI Requests were on hand for processing at the same time. I
apologise for that delay.
Decision and reasons for decision
Decision
11 With regard to the Document Nos. identified in
Attachment A, I have decided:
(a) to grant access in full to Document Nos. 2, 4, 6, 8, 10, 12,
14, 16, 18, 20, 22, 24, 26, 29, 33 and 35; and
(b) to refuse access to Document Nos. 27, 30, 31 and 36 under
section subsection 47F(1) of the FOI Act (Public interest conditional
exemptions—personal privacy) as providing access would be contrary to the
public interest and in lieu to offer to grant access in part to those
Document Nos. with exempt matter deleted under section 22 of the FOI Act;
12 In addition I found that for the purposes of paragraph
(d) of the definition of ‘document’ provided by subsection 4(1) of the FOI
applies to Document Nos. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25,
28, 32 and 34 with the consequence that these documents are not included
in the scope of that which may be requested as a document under subsection
15(2) of the FOI Act in an FOI Request.
Material taken into account
13 I have taken the following material into account in
making my decision:
(a) the content of the Document Nos. that fall within the scope of
the FOI Request;
(b) the FOI Act, specifically sections 3, 3A, 4 11A; 11B, 15, 22
and 47F; and
(c) the guidelines (‘[6]FOI Guidelines’] issued by the Australian
Information Commissioner under section 93A of the FOI Act, specifically
paragraphs 2.29 – 2.44, 6.1 – 6.28 and 6.124 – 6.179;
Reasons
14 Attachment A indicates each document to which access is
refused. My reasons for refusing access are given below.
Public interest conditional exemption – personal privacy
15 With respect to Document Nos. 27, 30, 31 and 36, I
found that each document contained a facsimile of the signature of Delyse
Paliaga.
16 I further found, for the reasons that appear below,
that there was no need to consult Ms Paliaga about giving access to
Document Nos. 27, 30, 31 and 36 because it is obviously unreasonable to
give access to a version of the documents that contains a facsimile of her
signature.
17 Subsection 47F(1) of the FOI Act conditionally exempts
personal information where it is unreasonable to give access under an FOI
Request.
18 Subsection 47F(1) of the FOI Act provides:
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this
Act would involve the unreasonable disclosure of personal information
about any person (including a deceased person).
19 In making my decision I had regard to:
(a) the extent to which the information is well known – Ms Paliaga
signature is not well known;
(b) whether the person to whom the information relates is known to
be (or to have been) associated with the matters dealt with in the
document – Ms Paliaga is known to be associated with her signature, it is
a means of identifying her acts with her;
(c) the availability of the information from publicly accessible
sources – facsimiles of Ms Paliaga’s signature are not readily available
from public accessible sources;
(d) FOI Guidelines, Part 6 (Exemptions);
(e) the following additional matters that I considered relevant:
(i) access to documents has been requested by email with the
consequence that electronic copies of documents released will be given;
(ii) a signature authenticates the acts of the actor; and
(iii) there is a risk of harm arising from identity theft
facilitated by access to a facsimile of a signature; and
(iv) the AEC has a duty to an individual in dealing with their
personal information to take all reasonable measures to protect that
individual from harm arising from its dealings with that personal
information.
20 Accordingly, I am satisfied that the document falls
within the scope of the conditional exemption for personal privacy
provided by section 47F of the FOI Act.
Weighing of public interest factors
21 Under subsection 11A(5) of the FOI Act, access to a
document covered by a conditional exemption must be given unless it would
be contrary to the public interest.
22 My weighing of public interest factors follows.
(a) I identified the following harm that would affect Ms Paliaga,
namely loss arising from identity theft facilitated by access to a
facsimile of the signature.
(b) I considered the following factors favouring disclosure:
(i) The public has an interest in overseeing the performance by
the AEC of its functions in relation to Part XX of the Electoral Act.
(c) I considered the following factors that militate against
disclosure:
(i) The harm to Ms Paliaga identified in paragraph 22(a) of this
letter.
(d) In accordance with subsection 11B(4) of the FOI Act I excluded
from my consideration the following matters:
(i) access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the Commonwealth
Government;
(ii) access to the document could result in any person
misinterpreting or misunderstanding the document;
(iii) the author of the document was (or is) of high seniority in
the agency to which the request for access to the document was made; and
(iv) access to the document could result in confusion or unnecessary
debate.
23 In considering the weighing of public interest factors
I had regard to the FOI Guidelines at paragraphs 6.7 – 6.28.
24 In my view, the factors against disclosure of the
document outweigh the factors in favour of disclosure for the following
reasons:
(a) The harm that Ms Palagia may suffer could be substantial and it
is difficulty to minimise that harm if access is given electronically to a
facsimile of her signature given the ease on on-publication of that
facsimile;
(b) The public interest in overseeing Part XX of the Electoral Act
can be vindicated without giving access to a facsimile of Ms Paliaga’s
signature; and
(c) It is sufficient to know that Ms Paliaga was the signatory of
Document Nos. 27, 30, 31 and 36 without seeing the signature on the
documents.
25 Accordingly, I am satisfied that the Document Nos. 27,
30, 31 and 36 are conditionally exempt under subsection 47F(1) of the FOI
Act and because disclosure would be contrary to the public interest and
that Document Nos. 27, 30, 31 and 36. should be treated as exempt from
disclosure under the FOI Act.
Preparation of an edited copy
26 In accordance with section 22 of the FOI Act I next
considered whether it is both possible and practicable to prepare an
edited copy of each of Document Nos. 27, 30, 31 and 36 from which the
facsimile of Ms Pagliaga’s signature is redacted.
27 Section 22 of the FOI Act provides:
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that
would reasonably be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an
edited copy) of the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under
section 11A (access to Document Nos. on request); and
(ii) the edited copy would not disclose any information that would
reasonably be regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare
the edited copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the
applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:
(a) that the edited copy has been prepared; and
(b) of the grounds for the deletions; and
(c) if any matter deleted is exempt matter—that the matter deleted is
exempt matter because of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision
to refuse access to the whole document unless the applicant requests the
agency or Minister to give the applicant a notice in writing in accordance
with that section.
28 I had regard to paragraphs 3.85 – 3.90 of the FOI
Guidelines.
29 I found that it is both possible and practicable to
prepare an edited copy of to Document Nos. 27, 30, 31 and 36 from which Ms
Paliaga’s signature is redacted.
30 The offer in paragraphs 40 and 41 of this letter is
made for the purpose of the consultation required by paragraph 22(1)(d) of
the FOI Act.
Documents. out of Scope of an FOI Request
31 Section 15 of the FOI Act enables a person to seek
access, among other things, to a document of an agency. The AEC is an
agency for the purposes of the FOI Act.
32 In so far as is material subsection 15(1) of the FOI
Act provides:
15 Requests for access
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a
document of an agency or an official document of a Minister may request
access to the document.
33 Section 15A of the FOI Act makes provision with respect
to requests for access to personnel records and has no relevance to the
FOI Request.
34 The expression ‘document of an agency’ is defined by
subsection 4(1) of the FOI Act and depends on the definition given by that
subsection to the word ‘document’.
35 In so far as is material, subsection 4(1) of the FOI
Act provides:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
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.
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.
36 Document Nos. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21,
23, 25, 28, 32 and 34 are material maintained for reference purposes by
the AEC that is otherwise publicly available at the AEC website. The
description of each document in Attachment A indicates the URL for that
document by which it may be accessed.
37 It follows that the carve out in paragraph (d) of the
definition of ‘document’ provided by subsection 4(1) of the FOI Act
applies to Document Nos. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25,
28, 32 and 34 with the outcome that none of those documents is included in
the expression ‘document of an agency’ and thus cannot be requested under
subsection 15(1) of the FOI Act.
38 For this reason, I refused access to Document Nos. 1,
3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 28, 32 and 34.
Transmission of released documents
39 I will transmit to Document Nos. 2, 4, 6, 8, 10, 12,
14, 16, 18, 20, 22, 24, 26, 29, 33 and 35 to you in two later emails due
to the size of the transmission.
Offer of access to edited copies
40 In paragraph 11(b) of this letter I indicated that I
would offer you access to edited copies of Document Nos. 27, 30, 31 and 36
from which exempt or irrelevant matter had been redacted, the terms of
that offer follow:
(a) The offer remains open for 60 days from the dated of this
letter;
(b) The offer is conditional that accept the edited copies in
satisfaction of you FOI Request for the relevant Document Nos.; and
(c) the offer must be accepted in writing signed by you (this may
be scanned and sent by email to me using my contact details below.
41 If this offer is not accepted within the 60 day period,
my decision to refuse access to Document Nos. 27, 30, 31 and 36 will
stand.
Your review rights
42 If you are dissatisfied with my decision, you may apply
for internal review or Information Commissioner review of the decision. We
encourage you to seek internal review as a first step as it may provide a
more rapid resolution of your concerns.
Internal review
43 Under section 54 of the FOI Act, you may apply in
writing to the AEC for an internal review of my decision. The internal
review application must be made within 30 days of the date of this letter.
44 Where possible please attach reasons why you believe
review of the decision is necessary. The internal review will be carried
out by another officer within 30 days.
Information Commissioner review
45 Under section 54L of the FOI Act, you may apply to the
Australian Information Commissioner to review my decision. An application
for review by the Information Commissioner must be made in writing within
60 days of the date of this letter, and be lodged in one of the following
ways:
online:
[7]https://forms.business.gov.au/aba/oaic/f...
email: [8][email address]
post: GPO Box 52189, Sydney NSW 2001
in person: Level 3, 175 Pitt Street, Sydney NSW
46 More information about Information Commissioner review
is available on the Office of the Australian Information Commissioner
website. Go to [9]www.oaic.gov.au/freedom-of-information/foi-reviews.
Questions about this decision
47 If you wish to discuss this decision, please contact me
at:
email: [10][email address]
fax: 02 6293 7657
post: Locked bag 4007, Canberra ACT 2601
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
--------------------------------------------------------------------------
[11]Australian Electoral Commission logo [12]Australian Electoral
Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
Dear Mr Elvery
Here is the second tranche of released documents.
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
--------------------------------------------------------------------------
[1]Australian Electoral Commission logo [2]Australian Electoral
Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
--------------------------------------------------------------------------
From: Owen Jones
Sent: Tuesday, February 28, 2017 11:13 AM
To: ''[FOI #2980 email]'
<'[FOI #2980 email]>
Cc: Legal Services - NO <[3][email address]>
Subject: Your FOI Request No. LS591 for requests for amendment to 2015-16
financial disclosures [SEC=UNCLASSIFIED]
Dear Mr Elvery
I refer to your 24 January 2017 5:52 PM to the Australian Electoral
Commission (‘AEC’) in which you request (your ‘FOI Request’) access under
the [4]Freedom of Information Act 1982 (the ‘FOI Act’) access to
information about requests for amendment to 2015-16 financial disclosures.
I also refer to your email of 24 February 2017 11:44 AM and my reply of 24
February 2017 3:35 PM and your further email of 24/02/2017 5:07 PM about
your FOI Request.
2 I am writing today to give you a decision about
access to Document Nos. that you requested in your FOI Request.
Summary
3 I, Owen Jones, Senior of the AEC, am an officer
authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests.
4 Specifically you sought access to:
access to all requests for amendment made by the AEC to political parties
or associated entities in relation to the 2015-16 annual financial
disclosures
5 I identified 36 documents that fell within the scope
of your request.
6 I did this by directing inquiries to the AEC’s
Disclosure, Assurance and Engagement Branch which is responsible for
disclosures under Part XX of the [5]Commonwealth Electoral Act 1918 (the
‘Electoral Act).
7 The schedule of relevant Documents in the attached
Acrobat file LS5915 Decision Attachment A.pdf (‘Attachment A’) provides a
description of each document that falls within the scope of your request
and the access decision for each of those documents.
8 With regard to the documents that you requested (set
out in Attachment A), I have decided to:
(a) grant access to 16 documents;
(b) refused access to 4 documents and to offer in lieu to grant
access to edited versions those documents; and
(c) refuse access to the remaining 16 documents.
9 More information, including my reasons for my
decision, is set out below.
10 There was a delay in processing this FOI Request
because other FOI Requests were on hand for processing at the same time. I
apologise for that delay.
Decision and reasons for decision
Decision
11 With regard to the Document Nos. identified in
Attachment A, I have decided:
(a) to grant access in full to Document Nos. 2, 4, 6, 8, 10, 12,
14, 16, 18, 20, 22, 24, 26, 29, 33 and 35; and
(b) to refuse access to Document Nos. 27, 30, 31 and 36 under
section subsection 47F(1) of the FOI Act (Public interest conditional
exemptions—personal privacy) as providing access would be contrary to the
public interest and in lieu to offer to grant access in part to those
Document Nos. with exempt matter deleted under section 22 of the FOI Act;
12 In addition I found that for the purposes of paragraph
(d) of the definition of ‘document’ provided by subsection 4(1) of the FOI
applies to Document Nos. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25,
28, 32 and 34 with the consequence that these documents are not included
in the scope of that which may be requested as a document under subsection
15(2) of the FOI Act in an FOI Request.
Material taken into account
13 I have taken the following material into account in
making my decision:
(a) the content of the Document Nos. that fall within the scope of
the FOI Request;
(b) the FOI Act, specifically sections 3, 3A, 4 11A; 11B, 15, 22
and 47F; and
(c) the guidelines (‘[6]FOI Guidelines’] issued by the Australian
Information Commissioner under section 93A of the FOI Act, specifically
paragraphs 2.29 – 2.44, 6.1 – 6.28 and 6.124 – 6.179;
Reasons
14 Attachment A indicates each document to which access is
refused. My reasons for refusing access are given below.
Public interest conditional exemption – personal privacy
15 With respect to Document Nos. 27, 30, 31 and 36, I
found that each document contained a facsimile of the signature of Delyse
Paliaga.
16 I further found, for the reasons that appear below,
that there was no need to consult Ms Paliaga about giving access to
Document Nos. 27, 30, 31 and 36 because it is obviously unreasonable to
give access to a version of the documents that contains a facsimile of her
signature.
17 Subsection 47F(1) of the FOI Act conditionally exempts
personal information where it is unreasonable to give access under an FOI
Request.
18 Subsection 47F(1) of the FOI Act provides:
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this
Act would involve the unreasonable disclosure of personal information
about any person (including a deceased person).
19 In making my decision I had regard to:
(a) the extent to which the information is well known – Ms Paliaga
signature is not well known;
(b) whether the person to whom the information relates is known to
be (or to have been) associated with the matters dealt with in the
document – Ms Paliaga is known to be associated with her signature, it is
a means of identifying her acts with her;
(c) the availability of the information from publicly accessible
sources – facsimiles of Ms Paliaga’s signature are not readily available
from public accessible sources;
(d) FOI Guidelines, Part 6 (Exemptions);
(e) the following additional matters that I considered relevant:
(i) access to documents has been requested by email with the
consequence that electronic copies of documents released will be given;
(ii) a signature authenticates the acts of the actor; and
(iii) there is a risk of harm arising from identity theft
facilitated by access to a facsimile of a signature; and
(iv) the AEC has a duty to an individual in dealing with their
personal information to take all reasonable measures to protect that
individual from harm arising from its dealings with that personal
information.
20 Accordingly, I am satisfied that the document falls
within the scope of the conditional exemption for personal privacy
provided by section 47F of the FOI Act.
Weighing of public interest factors
21 Under subsection 11A(5) of the FOI Act, access to a
document covered by a conditional exemption must be given unless it would
be contrary to the public interest.
22 My weighing of public interest factors follows.
(a) I identified the following harm that would affect Ms Paliaga,
namely loss arising from identity theft facilitated by access to a
facsimile of the signature.
(b) I considered the following factors favouring disclosure:
(i) The public has an interest in overseeing the performance by
the AEC of its functions in relation to Part XX of the Electoral Act.
(c) I considered the following factors that militate against
disclosure:
(i) The harm to Ms Paliaga identified in paragraph 22(a) of this
letter.
(d) In accordance with subsection 11B(4) of the FOI Act I excluded
from my consideration the following matters:
(i) access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the Commonwealth
Government;
(ii) access to the document could result in any person
misinterpreting or misunderstanding the document;
(iii) the author of the document was (or is) of high seniority in
the agency to which the request for access to the document was made; and
(iv) access to the document could result in confusion or unnecessary
debate.
23 In considering the weighing of public interest factors
I had regard to the FOI Guidelines at paragraphs 6.7 – 6.28.
24 In my view, the factors against disclosure of the
document outweigh the factors in favour of disclosure for the following
reasons:
(a) The harm that Ms Palagia may suffer could be substantial and it
is difficulty to minimise that harm if access is given electronically to a
facsimile of her signature given the ease on on-publication of that
facsimile;
(b) The public interest in overseeing Part XX of the Electoral Act
can be vindicated without giving access to a facsimile of Ms Paliaga’s
signature; and
(c) It is sufficient to know that Ms Paliaga was the signatory of
Document Nos. 27, 30, 31 and 36 without seeing the signature on the
documents.
25 Accordingly, I am satisfied that the Document Nos. 27,
30, 31 and 36 are conditionally exempt under subsection 47F(1) of the FOI
Act and because disclosure would be contrary to the public interest and
that Document Nos. 27, 30, 31 and 36. should be treated as exempt from
disclosure under the FOI Act.
Preparation of an edited copy
26 In accordance with section 22 of the FOI Act I next
considered whether it is both possible and practicable to prepare an
edited copy of each of Document Nos. 27, 30, 31 and 36 from which the
facsimile of Ms Pagliaga’s signature is redacted.
27 Section 22 of the FOI Act provides:
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that
would reasonably be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an
edited copy) of the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under
section 11A (access to Document Nos. on request); and
(ii) the edited copy would not disclose any information that would
reasonably be regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare
the edited copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the
applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:
(a) that the edited copy has been prepared; and
(b) of the grounds for the deletions; and
(c) if any matter deleted is exempt matter—that the matter deleted is
exempt matter because of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision
to refuse access to the whole document unless the applicant requests the
agency or Minister to give the applicant a notice in writing in accordance
with that section.
28 I had regard to paragraphs 3.85 – 3.90 of the FOI
Guidelines.
29 I found that it is both possible and practicable to
prepare an edited copy of to Document Nos. 27, 30, 31 and 36 from which Ms
Paliaga’s signature is redacted.
30 The offer in paragraphs 40 and 41 of this letter is
made for the purpose of the consultation required by paragraph 22(1)(d) of
the FOI Act.
Documents. out of Scope of an FOI Request
31 Section 15 of the FOI Act enables a person to seek
access, among other things, to a document of an agency. The AEC is an
agency for the purposes of the FOI Act.
32 In so far as is material subsection 15(1) of the FOI
Act provides:
15 Requests for access
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a
document of an agency or an official document of a Minister may request
access to the document.
33 Section 15A of the FOI Act makes provision with respect
to requests for access to personnel records and has no relevance to the
FOI Request.
34 The expression ‘document of an agency’ is defined by
subsection 4(1) of the FOI Act and depends on the definition given by that
subsection to the word ‘document’.
35 In so far as is material, subsection 4(1) of the FOI
Act provides:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
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.
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.
36 Document Nos. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21,
23, 25, 28, 32 and 34 are material maintained for reference purposes by
the AEC that is otherwise publicly available at the AEC website. The
description of each document in Attachment A indicates the URL for that
document by which it may be accessed.
37 It follows that the carve out in paragraph (d) of the
definition of ‘document’ provided by subsection 4(1) of the FOI Act
applies to Document Nos. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25,
28, 32 and 34 with the outcome that none of those documents is included in
the expression ‘document of an agency’ and thus cannot be requested under
subsection 15(1) of the FOI Act.
38 For this reason, I refused access to Document Nos. 1,
3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 28, 32 and 34.
Transmission of released documents
39 I will transmit to Document Nos. 2, 4, 6, 8, 10, 12,
14, 16, 18, 20, 22, 24, 26, 29, 33 and 35 to you in two later emails due
to the size of the transmission.
Offer of access to edited copies
40 In paragraph 11(b) of this letter I indicated that I
would offer you access to edited copies of Document Nos. 27, 30, 31 and 36
from which exempt or irrelevant matter had been redacted, the terms of
that offer follow:
(a) The offer remains open for 60 days from the dated of this
letter;
(b) The offer is conditional that accept the edited copies in
satisfaction of you FOI Request for the relevant Document Nos.; and
(c) the offer must be accepted in writing signed by you (this may
be scanned and sent by email to me using my contact details below.
41 If this offer is not accepted within the 60 day period,
my decision to refuse access to Document Nos. 27, 30, 31 and 36 will
stand.
Your review rights
42 If you are dissatisfied with my decision, you may apply
for internal review or Information Commissioner review of the decision. We
encourage you to seek internal review as a first step as it may provide a
more rapid resolution of your concerns.
Internal review
43 Under section 54 of the FOI Act, you may apply in
writing to the AEC for an internal review of my decision. The internal
review application must be made within 30 days of the date of this letter.
44 Where possible please attach reasons why you believe
review of the decision is necessary. The internal review will be carried
out by another officer within 30 days.
Information Commissioner review
45 Under section 54L of the FOI Act, you may apply to the
Australian Information Commissioner to review my decision. An application
for review by the Information Commissioner must be made in writing within
60 days of the date of this letter, and be lodged in one of the following
ways:
online:
[7]https://forms.business.gov.au/aba/oaic/f...
email: [8][email address]
post: GPO Box 52189, Sydney NSW 2001
in person: Level 3, 175 Pitt Street, Sydney NSW
46 More information about Information Commissioner review
is available on the Office of the Australian Information Commissioner
website. Go to [9]www.oaic.gov.au/freedom-of-information/foi-reviews.
Questions about this decision
47 If you wish to discuss this decision, please contact me
at:
email: [10][email address]
fax: 02 6293 7657
post: Locked bag 4007, Canberra ACT 2601
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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[11]Australian Electoral Commission logo [12]Australian Electoral
Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
Dear Owen Jones,
Thank you for your emails and for providing access to the relevant documents.
In relation to documents 27, 30, 31 and 36 which contain conditionally exempt material you have asked that I agree to accept edited versions as full satisfaction of my request. Based on your descriptions of the deletions made from the document I'm happy to do so.
However, I note that under section 22(2) of the Act the agency must provide access to these edited documents unless it is apparent I would decline access. Although I'm happy to be consulted, provision of access can not be contingent on my accepting the terms you specify.
Thank you for your work fulfilling this request. I look forward to receiving the final four documents.
Yours sincerely,
Simon
Dear Mr Elvery
Thank you for your email of 28 February 2017 12:46 PM about your FOI
Request.
I attach the edited versions of Documents Nos. 27, 30, 31 and 36.
I have noted your remarks about section 22 of the [1]Freedom of
Information Act 1982.
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
--------------------------------------------------------------------------
[2]Australian Electoral Commission logo [3]Australian Electoral
Commission
This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.
--------------------------------------------------------------------------
From: Simon [mailto:[FOI #2980 email]]
Sent: Tuesday, February 28, 2017 12:46 PM
To: Owen Jones <[email address]>
Subject: Re: Your FOI Request No. LS591 for requests for amendment to
2015-16 financial disclosures [SEC=UNCLASSIFIED]
Dear Owen Jones,
Thank you for your emails and for providing access to the relevant
documents.
In relation to documents 27, 30, 31 and 36 which contain conditionally
exempt material you have asked that I agree to accept edited versions as
full satisfaction of my request. Based on your descriptions of the
deletions made from the document I'm happy to do so.
However, I note that under section 22(2) of the Act the agency must
provide access to these edited documents unless it is apparent I would
decline access. Although I'm happy to be consulted, provision of access
can not be contingent on my accepting the terms you specify.
Thank you for your work fulfilling this request. I look forward to
receiving the final four documents.
Yours sincerely,
Simon
Hi,
I have not saved or distributed any of the documents incorrectly sent in response to this request. Because this request was initiated via Right to Know all responses are automatically made public and I therefore can't guarantee nobody else has done so.
However, as soon as I became aware of the error I contacted Right to Know and they promptly removed the erroneous email and attachments. They are no longer accessible and, to my knowledge, have been deleted.
Yours faithfully,
Simon
Ben Fairless left an annotation ()
I find this response interesting, because the Commonwealth Electoral Act 1918 doesn't invoke the secrecy provisions of the Freedom of Information Act. It's also not "a document that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge".
It would appear that there are 2 conflicting laws - under the FOI Act you are generally entitled to the documents (subject to any relevant exemptions), even if their release would be contrary to the Commonwealth Electoral Act 1918. But the Commonwealth Electoral Act 1918 correctly puts a time limit on when these documents can be accessed.