Roll divergence
Dear Australian Electoral Commission,
I write to request under the Freedom of Information Act the following documents relating to roll divergence issues identified by the AEC in its 2016 submission to the JSCEM:
[1] Correspondence since 7 September 2013 between the AEC and the Victorian, NSW and WA Electoral Commissions regarding procedural divergence
[2] Records of meetings held within the AEC or between the AEC and third parties where procedural divergence was discussed
[3] Correspondence, briefs, minutes or similar between the AEC and the Special Minister for State regarding procedural divergence
[4] Correspondence between Federal or State Members of Parliament and the AEC regarding procedural divergence
Yours faithfully,
Jeremy Cooper-Stout
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 Jeremy Cooper-Stout
I refer to your email dated 16 December 2016 2:23 PM in which you request
(‘your FOI Request] to the Australian Electoral Commission (‘AEC’) under
the [1]Freedom of Information Act 1982 for access to documents relating to
roll divergence issues identified by the AEC in its 2016 submission to the
Joint Standing Committee on Electoral Matters (‘JSCEM’) inquiry into the
conduct of the 2016 federal election.
I have taken your request to be for:
documents relating to roll divergence issues identified by the AEC in its
2016 submission to the JSCEM, namely:
(a) Correspondence since 7 September 2013 between the AEC and the
Victorian, NSW and WA Electoral Commissions regarding procedural
divergence;
(b) Records of meetings held within the AEC or between the AEC and third
parties where procedural divergence was discussed;
(c) Correspondence, briefs, minutes or similar between the AEC and the
Special Minister for State regarding procedural divergence;
(d) Correspondence between Federal or State Members of Parliament and
the AEC regarding procedural divergence
We received your request on 16 December 2016 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 17 January 2017. The
period of 30 days may be extended if we need to consult third parties,
impose a charge or for other reasons. We will advise you if this happens.
You will be notified of any charges in relation to your request as soon as
possible, before we process any requested documents or impose a final
charge
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
Dear Jeremy Cooper-Stout
I refer to your request (‘FOI Request’) to the Australian Electoral
Commission (‘AEC’) for access to documents relating to roll divergence
issues identified by the AEC in its 2016 submission to the Joint Standing
Committee on Electoral Matters (‘JSCEM’) inquiry into the conduct of the
2016 federal election under the Freedom of Information Act 1982 (FOI Act).
As your request covers documents that concern relations between the
Commonwealth and the Governments of the States, the Australian Capital
Territory and the Northern Territory, the AEC is required to consult with
each Government (under section 26A of the FOI Act) before making a
decision on the release of those documents.
For this reason, the period for processing your request has been extended
by 30 days in order to allow our agency time to consult with the
Governments of the States, the Australian Capital Territory and the
Northern Territory (section 15(6) of the FOI Act). The processing period
for your request will now end on 14 February 2017.
The consultation mechanism under section 26A of the FOI applies when we
believe the State or Territory may wish to contend that the requested
documents are exempt because their release may cause damage to relations
between the Commonwealth and the Governments of the States, the Australian
Capital Territory and the Northern Territory or may divulge information
communicated by that Government in confidence. We will take into account
any comments we receive from the Governments of the States, the Australian
Capital Territory and the Northern Territory but the final decision about
whether to grant you access to the documents you requested rests with the
AEC.
More information about exemptions under the FOI Act is available in Fact
Sheet 8 on the Office of the Australian Information Commissioner’s
website:
[1]www.oaic.gov.au/freedom-of-information/foi-resources/freedom-of-information-fact-sheets/.
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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[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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UNCLASSIFIED
From: Owen Jones
Sent: Monday, December 19, 2016 9:52 AM
To: [FOI #2862 email]
Cc: INFO <[AEC request email]>; Legal Services - NO
<[email address]>
Subject: Your FOI Request LS5881- Roll divergence [SEC=UNCLASSIFIED]
UNCLASSIFIED
Dear Jeremy Cooper-Stout
I refer to your email dated 16 December 2016 2:23 PM in which you request
(‘your FOI Request] to the Australian Electoral Commission (‘AEC’) under
the [4]Freedom of Information Act 1982 for access to documents relating to
roll divergence issues identified by the AEC in its 2016 submission to the
Joint Standing Committee on Electoral Matters (‘JSCEM’) inquiry into the
conduct of the 2016 federal election.
I have taken your request to be for:
documents relating to roll divergence issues identified by the AEC in its
2016 submission to the JSCEM, namely:
(a) Correspondence since 7 September 2013 between the AEC and the
Victorian, NSW and WA Electoral Commissions regarding procedural
divergence;
(b) Records of meetings held within the AEC or between the AEC and third
parties where procedural divergence was discussed;
(c) Correspondence, briefs, minutes or similar between the AEC and the
Special Minister for State regarding procedural divergence;
(d) Correspondence between Federal or State Members of Parliament and
the AEC regarding procedural divergence
We received your request on 16 December 2016 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 17 January 2017. The
period of 30 days may be extended if we need to consult third parties,
impose a charge or for other reasons. We will advise you if this happens.
You will be notified of any charges in relation to your request as soon as
possible, before we process any requested documents or impose a final
charge
Please note that information released under the FOI Act may later be
published online on the AEC’s disclosure log [5]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: [6][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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[7]Australian Electoral Commission logo [8]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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Dear Owen Jones,
In that event I would like to withdraw my request as to not unreasonably divert the AEC's resources.
Yours sincerely,
Jeremy Cooper-Stout
UNCLASSIFIED
Dear Mr Jeremy Cooper-Stout
I refer to your email dated 16 December 2016 2:23 PM in which you request
(‘your FOI Request) to the Australian Electoral Commission (‘AEC’) under
the [1]Freedom of Information Act 1982 for access to documents relating to
roll divergence issues identified by the AEC in its 2016 submission to the
Joint Standing Committee on Electoral Matters (‘JSCEM’) inquiry into the
conduct of the 2016 federal election.
2 I also refer to your email of 16 January 2017 8:50 PM
in which you withdrew that part of your FOI Request that related to
documents that required the AEC to consult with State, ACT and NT
Governments under section 26A of the FOI Act. I thank you for your
consideration on this point. I now write to give you a decision about the
remainder of your FOI Request.
Summary
3 I, Owen Jones, Senior Lawyer 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 I have taken your revised FOI Request to
access to:
documents relating to roll divergence issues identified by the AEC in its
2016 submission to the JSCEM, namely:
(a) Records of meetings held within the AEC or between the AEC and third
parties where procedural divergence was discussed;
(b) Correspondence, briefs, minutes or similar between the AEC and the
Special Minister for State regarding procedural divergence;
(c) Correspondence between Federal or State Members of Parliament and
the AEC regarding procedural divergence
5 I identified 26 documents that fell within the scope
of your request.
6 I did this by directing inquiries to the AEC’s Roll
Management Branch.
7 The schedule of retrieved documents in the attached
Acrobat file LS5881 Schedule of Relevant Documents .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 you requested (set out
in Attachment A), I have decided to:
(a) grant access to 14 documents;
(b) refused access to 7 documents and to offer in lieu to grant
access to edited versions those documents; and
(c) refuse access to the remaining 5 documents.
9 More information, including my reasons for my
decision, is set out below.
Decision and reasons for decision
Decision
10 With regard to the documents identified in Attachment
A, I have decided:
(a) to grant access in full to Document Nos 7 – 9, 11 – 13 and 15 –
22;
(b) to refuse access to Document No. 14 under section 47B of the
FOI Act (Public interest conditional exemptions—Commonwealth‑State
relations etc.) as providing access would be contrary to the public
interest and in lieu to offer to grant access in part to those documents
with exempt matter redacted under section 22 of the FOI Act;
(c) to refuse access to Document Nos 1 – 6 which contain material
outside the scope of your revised FOI Request and in lieu to offer to
grant access in part to those documents with irrelevant matter redacted
under section 22 of the FOI Act;
(d) to refuse access to Documents Nos. 10 and 23 − 26 under section
4 of the FOI Act because each is outside the definition of ‘document’ that
may be requested as a ‘document of an agency’ as those definitions are
defined by that section and so are not able to be requested under section
15 of the Act;
Material taken into account
11 I have taken the following material into account in
making my decision:
(a) the content of the documents that fall within the scope of the
FOI Request;
(b) [2]Commonwealth Electoral Act 1918 (the ‘Electoral Act’),
specifically section 88;
(c) the FOI Act, specifically sections 3, 3A, 4, 11A, 11B, 15, 22,
47B and 47F; and
(d) the guidelines (‘[3]FOI Guidelines’] issued by the Australian
Information Commissioner under section 93A of the FOI Act, 2.29 – 2.44,
3.85 – 3.90, 6.1 – 6.28 and 6.124 – 6.179;
Reasons
12 Attachment A indicates each document to which access is
refused. My reasons for refusing access are given below.
Public interest conditional exemption – personal privacy
13 With respect to Document No. 14, I found that:
(a) Document No. 14 contains a facsimile of an individual’s
signature and a facsimile of an individual’s manuscript initialling;
(b) a signature or manuscript initialling is personal information
about the individual that identifies the individual;
(c) a signature or manuscript initialling is used to authenticate
acts by the relevant individual.
14 Subsection 47F(1) of the FOI Act conditionally exempts
personal information where it is unreasonable to give access under an FOI
Request.
15 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).
16 In making my decision I had regard to:
(a) the extent to which the information is well known−
I concluded that the signatures are 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−
I concluded that the nature of a signature is that it is associated with
the relevant individual
(c) the availability of the information from publicly accessible
sources−
I concluded that the signatures are not readily available from publicly
accessible sources;
(d) FOI Guidelines, Part 6 (Exemptions);
(e) the following matters that the I considered relevant−
The applicant’s expectation is that access to documents under the FOI
Request will be given in an electronic form that will be published on the
Right to Know website at
[4]https://www.righttoknow.org.au/request/r....
17 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
18 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.
19 My weighing of public interest factors follows.
20 I identified the following harm that would affect the
relevant individuals, namely loss occasioned by identity theft facilitated
by having access to an electronic copy of a facsimile of each individual’s
signature.
21 I considered the following factors favouring
disclosure−
The public have an interest in understanding the consequence for them as
electors arising from divergence of criteria for eligibility for federal
enrolment and eligibility for State or Territory enrolment in the State or
Territory in which they enrol.
22 I considered the following factors that militate
against disclosure−
The harm to each of the individuals identified in paragraph 20 of this
email. That harm would be exacerbated by giving access to each signature
in electronic form.
23 In accordance with subsection 11B(4) of the FOI Act I
excluded from my consideration the following matters:
(a) access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the Commonwealth
Government;
(b) access to the document could result in any person
misinterpreting or misunderstanding the document;
(c) 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;
(d) access to the document could result in confusion or unnecessary
debate.
24 In considering the weighing of public interest factors
I had regard to the FOI Guidelines at paragraphs 6.7 – 6.28.
25 In my view, the factors against disclosure of the
document outweigh the factors in favour of disclosure for the following
reason−
The public interest in preventing the crystallisation of the potential
harm to each individual arising from identity theft facilitated by access
to an electronic facsimile of their signature is greater than the public
interest in seeing the facsimile of each signature.
The public interest, in knowing that the individual as the relevant author
of the letter in Document Nos 16 - 18, 20, 22 or 32, would be sufficiently
vindicated in knowing that the individual had signed the relevant letter.
26 Accordingly, I am satisfied that the Document No. 14 is
conditionally exempt under subsection 47F(1) of the FOI Act and because
disclosure would be contrary to the public interest and that the documents
should be treated as exempt from disclosure under the FOI Act.
Withholding access to irrelevant material
27 I found that Documents Nos. 10 and 23 − 26 contain
material that is out of scope of the FOI Request (‘irrelevant material).
Preparation of an edited copy
28 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 Document Nos 1 − 6 and 14 from which the facsimiles of
signatures or a manuscript initialling (in the case of Document No. 14)
and irrelevant are redacted.
29 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 documents 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.
30 I had regard to paragraphs 3.85 – 3.90 of the FOI
Guidelines.
31 I found that it is both possible and practicable to
prepare an edited copy of each of Document Nos 1 − 6 and 14 from which
from which the facsimiles of signatures or a manuscript initialling (in
the case of Document No. 14) and irrelevant are redacted are redacted.
32 I therefore decided to offer access to edited copies of
Document Nos 1 − 6 and 14 from which from which the facsimiles of
signatures or a manuscript initialling (in the case of Document No. 14)
and irrelevant are redacted are redacted on the terms of paragraphs 42 and
43 of this email.
33 The offer in paragraphs 42 and 43 is made as a
consultation as required by paragraph 22(1)(d) of the FOI Act.
Documents out of Scope of an FOI Request
34 As regards Document Nos. 10 and 23 – 26, 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.
35 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.
36 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.
37 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’.
38 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.
39 Document Nos. 10 and 23 – 26 are material maintained
for reference purposes by the Australian Parliament that is otherwise
publicly available at the Universal Address Locator (‘URL’) indicated in
the entry in Attachment A for each of Document Nos. 10 and 23 – 26.
40 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. 10 and 23 – 26 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.
41 For this reason, I have refused access to Document Nos.
10 and 23 – 26.
Offer of access to edited copies
42 In paragraph 10 of this email I indicated that I would
offer you access to edited copies of Document Nos 1- 6 and 14 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 you accept the edited copies in
satisfaction of your FOI Request for the relevant documents; and
(c) the offer must be accepted in writing signed by you (this may
be scanned and sent by email to me (my contact details are below).
43 If this offer is not accepted within the 60 day period,
my decision to refuse access to Document Nos 1- 6 and 14 will stand.
Your review rights
44 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
45 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.
46 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
47 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:
[5]https://forms.business.gov.au/aba/oaic/f...
email: [6][email address]
post: GPO Box 52189, Sydney NSW 2001
in person: Level 3, 175 Pitt Street, Sydney NSW
48 More information about Information Commissioner review
is available on the Office of the Australian Information Commissioner
website. Go to [7]www.oaic.gov.au/freedom-of-information/foi-reviews.
Questions about this decision
49 If you wish to discuss this decision, please contact me
at:
email: [8][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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[9]Australian Electoral Commission logo [10]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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