Reasons for decision
What you requested
“access to documents held by the Commission, including correspondence, relating to:
the definition of a "surplus" in the Electoral Act 1992 for the 2020 election,
the decision of the ACT Electoral Commission to treat the definition of a "surplus" in the
Electoral Act 1992 as a legislative drafting error for the 2020 election (as described in the
eVACS counting module audit report), and
the decision of the ACT Electoral Commission to make the 2020 version of eVACS count votes
by transferring any surplus calculated, including fractional surpluses (as described in the
eVACS counting module audit report).”
What I took into account
In reaching my decision, I took into account:
Your original access application dated 8 December 2020
The documents containing the information that fall within the scope of your access application
Consultations with ACT government officers about the nature of the documents
The FOI Act
The ACT Ombudsman’s FOI guidelines documentation
Reasons for my decision
I am authorised to make decisions under section 18 of the FOI Act.
I have decided that some parts of some documents that contain the information you requested
contain information that includes personal contact information such as mobile phone numbers or
email address that are unnecessary for your application. Accordingly, where applicable, I have
redacted this information in accordance with s 50 of the FOI Act and have notated as such via
pinned comments within the relevant pdf copy of the document.
I have decided that some documents that contain the information you requested contain
information that is taken to be contrary to the public interest to disclose under Schedule 1 of the
FOI Act.
Schedule 2, section 2.2(a)(ii)
I have decided that the prejudice to individuals’ privacy is the determinative factor in favour of
non-disclosure of parts of documents 1 and 2.
Schedule 2, section 2.2(a)(ii) is a factor favouring nondisclosure if:
disclosure of the information could reasonably be expected to prejudice the protection of an
individual’s right to privacy or any other right under the Human Rights Act 2004.
– 2 –
I am satisfied the disclosure of some information contained in this document could reasonably be
expected to prejudice the protection of an individual’s right to privacy.
The information I have decided not to disclose includes an individual’s personal contact phone
number and/or email address.
The public interest test set out in section 17 of the FOI Act involves a process of balancing public
interest factors favouring disclosure against public interest factors favouring nondisclosure to
decide whether, on balance, disclosure would be contrary to the public interest.
When weighing up the public interest for and against disclosure under Schedule 2 of the FOI Act, I
have taken into account relevant factors in favour of disclosure. In particular, I have considered
the extent to which disclosure would promote the objects of the FOI Act and promote open
discussion of public affairs and enhance the government’s accountability.
Based on the above, I have decided that in this instance, the public interest in disclosing this
private contact information in these documents is outweighed by the public interest against
disclosure because the disclosure of information of this nature would significantly prejudice the
relevant individual’s privacy.
On this basis, I am satisfied disclosure of some information contained in this document could
reasonably be expected to prejudice the protection of an individual’s right to privacy.
Schedule 1, section 1.2 – Information subject to legal professional privilege
I have decided that documents 3 through 6 contain ‘contrary to public interest information’ by
virtue of section 1.2 of Schedule 1 of the FOI Act and therefore disclosure of documents 3, 4, 5
and 6 is refused in accordance with s35(1)(c) of the FOI Act.
Section 1.2 of Schedule 1 of the FOI Act provides that “information that would be privileged from
production or admission into evidence in a legal proceeding on the ground of legal professional
privilege”, is taken to be contrary to the public interest to disclose unless the information identifies
corruption or the commission of an offence by a public official or that the scope of a law
enforcement investigation has exceeded the limits imposed by law.
In reaching my decision to withhold disclosure of these documents I formed the view that the
documents are subject to legal professional privilege.
Ro Spence | Deputy Electoral Commissioner
ACT Electoral Commission
Phone: 02 6205 0224 | Mobile: 0434 906 940
xxxxx.xxxxxx@xxx.xxx.xx |
www.elections.act.gov.au |
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Level 6, 221 London Circuit, Canberra City
Document Outline