2013 federal election - complaints, WA Senate recount

Andrew Donnellan made this Freedom of Information request to Australian Electoral Commission

The request was successful.

From: Andrew Donnellan

Dear sir/madam

Pursuant to section 15 of the Freedom of Information Act 1982
(Commonwealth) (FOI Act), I request access to the following
documents in relation to the elections for the Parliament of the
Commonwealth conducted on 7 September 2013:

In relation to the half-Senate election for Western Australia:

* any documents prepared prior to any requests for a recount
anticipating a recount

* all documents relating to the requests for a recount lodged by
Senator Scott Ludlam and Mr Wayne Dropulich, including but not
limited to:
- the original requests to the AEO Western Australia
- documents relating to the consideration of those requests by the
AEO Western Australia
- the record of and reasons for decision by the AEO Western
Australia
- the appeals to the Electoral Commissioner
- documents relating to the consideration of those appeals by the
Electoral Commissioner
- the record of and reasons for decision by the Electoral
Commissioner
- legal advice obtained by the AEC in relation to the request for
a recount (including documents subject to legal professional
privilege insofar as the documents fall within the definition of
operational information as given in section 8A of the FOI Act, or
the AEC is prepared to waive legal professional privilege)

* all documents relating to the loss of 1,375 ballot papers as
announced in an AEC media release of 31 October 2013, including but
not limited to:
- memoranda prepared by AEC staff (whether in Western Australia or
elsewhere) in relation to the loss of ballot papers
- reports prepared in relation to the loss of ballot papers
- documents (including memoranda, reports, presentations or
evidentiary material) provided to Mr Mick Keelty in the course of
his inquiry
- legal advice obtained by the AEC in relation to the lost ballots
(including documents subject to legal professional privilege
insofar as the documents fall within the definition of operational
information as given in section 8A of the FOI Act, or the AEC is
prepared to waive legal professional privilege)

In relation to all House of Representatives and half-Senate
elections:

* any documents relating to complaints by members of the public,
scrutineers, candidates or AEC staff relating to the conduct of the
election

I note that some of the documents requested may be conditionally
exempt under section 47C of the FOI Act as they constitute
deliberative matter. I note that access must still be granted
unless access would be contrary to the public interest. I ask that
the AEC consider the strong public interest in free and fair
elections, and in particular the public interest relating to the
Western Australian Senate recount.

I also request a waiver of all fees and charges on the grounds of
general public interest. Furthermore, I am a full-time university
student without regular employment, and my main source of income is
from Centrelink payments. As such, I request a waiver of charges on
the ground of financial hardship.

I request that documents be provided via email to this address.

Yours sincerely

Andrew Donnellan

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Australian Electoral Commission

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.

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From: Andrew Donnellan

Dear sir/madam

I write in relation to my FOI request of 8 November 2013.

In view of the understandably high workload of AEC staff in
relation to the WA Senate investigations, I am prepared to narrow
the scope of the request to reduce the volume of documents if
necessary.

I also consent to a voluntary extension of time of up to 30 days
under section 15AA of the FOI Act, if the AEC deems such an
extension necessary.

Yours sincerely

Andrew Donnellan

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From: Andrew Kristjanson
Australian Electoral Commission


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Sensitive:Legal

Dear Mr Donnellan

 

I refer to the request you made to the Australian Electoral Commission
(AEC) pursuant to the Freedom of Information Act 1982.  Please find
attached a letter from Mr Paul Pirani, the Chief Legal Officer of the AEC,
in response to your request.

 

Please do not hesitate to contact me if you need any information.

 

Yours sincerely,

 

 

Andrew Kristjanson | Senior Lawyer

Legal Services Section | Legal and Compliance Branch

Australian Electoral Commission

T: (02) 6271 4638 | F: (02) 6271 4457

E: [email address]

show quoted sections

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From: Andrew Donnellan

Dear Mr Kristjanson,

Thank you for your response of 20 November.

I have decided to narrow the scope of the request down to the
specific set of documents I explicitly listed in my original
request, rather than requesting any/all documents in relation to
the overall matter. In relation to the loss of ballot papers, I
have also limited my request to documents prepared prior to the
commencement of the Keelty Inquiry, and removed the request for
Keelty Inquiry documents in general. I have removed the final
section of my request relating to complaints against the AEC.

I thus revise my request to the following:

* in relation to the requests for a recount of the 2013 WA Senate
election lodged by Senator Scott Ludlam and Mr Wayne Dropulich:

- the original requests submitted by Senator Ludlam and Mr
Dropulich to the AEO Western Australia

- documents relating to the consideration of those requests by the
AEO Western Australia

- the record of and reasons for decision by the AEO Western
Australia

- the appeals submitted by Senator Ludlam and Mr Dropulich to the
Electoral Commissioner

- documents relating to the consideration of those appeals by the
Electoral Commissioner

- the record of and reasons for decision by the Electoral
Commissioner

- legal advice obtained by the AEC (including documents subject to
legal professional privilege insofar as the documents fall within
the definition of operational information as given in section 8A of
the FOI Act, or the AEC has waived legal professional privilege)

* in relation to the loss of 1,370 ballot papers in the 2013 WA
Senate election:

- memoranda or reports prepared prior to the commencement of the
Keelty Inquiry on 5 November 2013

- legal advice obtained by the AEC prior to the commencement of the
Keelty Inquiry on 5 November 2013 (including documents subject to
legal professional privilege insofar as the documents fall within
the definition of operational information as given in section 8A of
the FOI Act, or the AEC has waived legal professional privilege)

I hope that the revised request is sufficiently narrow and
manageable as to allow the AEC to process it.

Yours sincerely,

Andrew Donnellan

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From: Andrew Donnellan

Dear Mr Kristjanson,

I write to ask for an update on the status of my request.

Pursuant to Mr Pirani's letter of 20 November 2013, I made a
revised request on the same day (20 November 2013), narrowing the
scope of my enquiry. I include the terms of the revised request at
the end of this email.

It has now been 47 days since I submitted my revised request, and I
have not received any further correspondence from the AEC regarding
my request, including acknowledgement of receipt or notification of
extension of time. As such, it appears to me that a decision has
not been made within the statutory 30 day period and is thus a
deemed refusal.

As advised in my email of 10 November 2013, if the AEC wishes to
extend the deadline, I consent to a 30 day extension under s 15AA -
if the AEC wishes to do this, I would appreciate written
confirmation of the extension. I am not sure of the legalities
surrounding such an extension after the initial decision period has
expired, but in any case I am prepared not to take any further
action on this request until 20 January 2014, in accordance with a
30 day extension.

I would appreciate a response to this email as soon as possible.

Yours sincerely,

Andrew Donnellan

================

SCOPE OF REVISED REQUEST
(lodged by email, 20 November 2013)

* in relation to the requests for a recount of the 2013 WA Senate
election lodged by Senator Scott Ludlam and Mr Wayne Dropulich:

- the original requests submitted by Senator Ludlam and Mr
Dropulich to the AEO Western Australia

- documents relating to the consideration of those requests by the
AEO Western Australia

- the record of and reasons for decision by the AEO Western
Australia

- the appeals submitted by Senator Ludlam and Mr Dropulich to the
Electoral Commissioner

- documents relating to the consideration of those appeals by the
Electoral Commissioner

- the record of and reasons for decision by the Electoral
Commissioner

- legal advice obtained by the AEC (including documents subject to
legal professional privilege insofar as the documents fall within
the definition of operational information as given in section 8A of
the FOI Act, or the AEC has waived legal professional privilege)

* in relation to the loss of 1,370 ballot papers in the 2013 WA
Senate election:

- memoranda or reports prepared prior to the commencement of the
Keelty Inquiry on 5 November 2013

- legal advice obtained by the AEC prior to the commencement of the
Keelty Inquiry on 5 November 2013 (including documents subject to
legal professional privilege insofar as the documents fall within
the definition of operational information as given in section 8A of
the FOI Act, or the AEC has waived legal professional privilege)

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From: Michael Ross
Australian Electoral Commission


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For-Official-Use-Only

Dear Mr Donnellan

 

Please find attached a letter and schedule of documents in relation to
your email request.

 

The documents follow by subsequent email

 

Regards

 

Michael

 

Michael Ross | Director Legal Services

Legal Services Section | Legal & Compliance Branch

Australian Electoral Commission

T: (02) 6271 4742 | M: 0401 148 609 | F: (02) 6271 4457

show quoted sections

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From: Michael Ross
Australian Electoral Commission


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For-Official-Use-Only

Dear Mr Donellan

 

Please find attached the documents relevant to your email request.

 

Regards

 

Michael

 

Michael Ross | Director Legal Services

Legal Services Section | Legal & Compliance Branch

Australian Electoral Commission

T: (02) 6271 4742 | M: 0401 148 609 | F: (02) 6271 4457

show quoted sections

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From: Andrew Donnellan

Dear Mr Ross,

I confirm receipt of the notice of decision and released documents.

Thank you very much for handling my request.

Yours sincerely,

Andrew Donnellan

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From: Andrew Donnellan

Dear Mr Ross,

Sorry for bringing this up so late - I have noticed that the
documents that were provided to me in response to my request have
not been posted up on the AEC's FOI Disclosure Log, as required by
the FOI Act. Could this please be rectified?

Yours sincerely,

Andrew Donnellan

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Locutus Sum left an annotation ()

I make this comment about the most recent email of Mr Donnellan only to make it clearer exactly it is a department must do when it has given access to a document.

Mr Donnellan correctly implies something must (subject to some exceptions) be posted on the Disclosure Log of the department. The demand is in section 11C of the FOI Act (http://www.austlii.edu.au/au/legis/cth/c...). If there is no applicability of the exceptions stated in section 11C(1), then section 11C(3) says that "The agency, or the Minister, must publish the information to members of the public generally on a website by: (a) making the information available for downloading from the website; or (b) publishing on the website a link to another website, from which the information can be downloaded; or (c) publishing on the website other details of how the information may be obtained."

I show the section details only to explain that the Australian Electoral Commission does not have to put on the website actual links to the accessed documents. They have a choice. For example, it is enough to explain how a person can get the documents.

But it is a fact that the AEC is very consistent and very good to make accessed documents directly available with a link (http://www.aec.gov.au/information-access...)! Also on that page it says, "If a document is not available directly through this list, interested individuals should contact the FOI Coordinator for further information".

I have said that the AEC is very good to make links available, so maybe they made a mistake with Mr Donnellan's request. Not all departments are good. Some departments make a very poor history to publish links to documents. For example, I have looked now at the Department of Education website (http://docs.education.gov.au/disclosure-...) and a person can see information about 11 requests for access granted unto now in 2014 (information creation date from (20 January 2014 to 10 June 2014). Eleven requests; ten with no link to documents. If you look at the Disclosure Log of every department (you can find a list of departments on this Right to Know website) then you can find a very big difference from the Good to the Poor.

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Andrew Donnellan left an annotation ()

Thanks for your comment, Locutus - to clarify, it's not just that the AEC hasn't posted up the PDFs, but it hasn't placed my request on the Disclosure Log at all.

You're right about other agencies which don't actually upload the documents and require specific contact to get documents - not really in a spirit of openness and transparency!

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Andrew Donnellan left an annotation ()

For the record, the request is still not listed on the Disclosure Log. I sent a follow-up email on 18 July to AEC Legal Services, to which I received no reply, and I have sent a further follow-up email on 11 August to the AEC's general enquiries address.

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Andrew Donnellan left an annotation ()

I have now filed a complaint with the Office of the Australian Information Commissioner. Failing to respond after you've been told three times is just poor form, really.

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