Our Ref: EDRM050-37833590-1066
9 February 2021
Dr Vanessa Teague
By email t
o xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Dr Teague
Freedom of Information Request
I refer to your request, made to the Victorian Electoral Commission (“
VEC”) under the
Freedom of
Information Act 1982 (“
FOI Act”), and clarified by email to the VEC on 29 January 2021 for access
to documents described in the following terms:
“
a document that contains the complete preference data file for votes cast in the Northwest Ward in the
Moreland local government election held on Saturday, 24 October 2020” (“
Request”).
Decision
I am an officer authorised under s 26 of the FOI Act to make decisions in relation to freedom of
information requests made to the VEC.
I have determined to refuse to grant access to the documents sought in the Request on the basis
of s 25A(5) of the FOI Act.
Section 25A(5) provides:
An agency or Minister may refuse to grant access to the documents in accordance with the
request without having identified any or all of the documents to which the request relates
and without specifying, in respect of each document, the provision or provisions of this Act
under which that document is claimed to be an exempt document if –
(a)
it is apparent from the nature of the documents as described in the request that all
of the documents to which the request is expressed to relate are exempt
documents; and
(b)
either –
(i)
it is apparent from the nature of the documents as so described that no
obligation would arise under section 25 in relation to any of those documents
to grant access to an edited copy of the document; or
(ii) it is apparent, from the request or as a result of consultation by the agency or
Minister with the person making the request, that the person would not wish to
have access to an edited copy of the document.
link to page 3
There are two elements to be satisfied before a decision can be made to refuse under s 25A(5):
(a) First, if it is apparent from the nature of the documents as described in the request that all
the documents would be exempt.
(b) Secondly, if it is apparent:
(i)
from the request, or as a result of consultation with the applicant, that they would not
under s 25 wish to have access to an edited copy of the documents (s 25A(b)(i )); or
(ii)
from the nature of the documents that no obligation would arise under s 25 to grant
access to an edited copy (s 25A(b)(i)).
The VEC has determined that both of these circumstances are satisfied in relation to your Request.
First element: is it apparent that all documents would be exempt?
It is apparent from the nature of the documents described in your Request that each and every
document sought would be exempt from disclosure under s 38 of the FOI Act, being documents to
which secrecy provisions of enactments apply.
Section 38 of the FOI Act provides:
Documents to which secrecy provisions of enactments apply
A document is an exempt document if there is in force an enactment applying specifically to
information of a kind contained in the document and prohibiting persons referred to in the
enactment from disclosing information of that kind, whether the prohibition is absolute or is
subject to exceptions or qualifications.
In summary, under the
Local Government (Electoral) Regulations 2020 (“
Regulations”) the VEC is
required to protect election records, including electronic copies of preferences used for electronic
counting of votes. Regulation 78 requires election records to be enclosed, secured and sealed in
one or more separate packets and regulation 79 requires the VEC to keep the packets of election
results safely and secretly.
Section 296 of the
Local Government Act 2020 (“
LG Act”) establishes a penalty for a person to
open a parcel sealed under the LG Act or the Regulations, except as authorised by the LG Act or
the Regulations.
Therefore, s 296 of the LG Act and regulations 78 and 79 of the Regulations prohibit a relevant
person, being the Electoral Commissioner and VEC officers, from accessing the packets of
electoral records for a purpose that is not set out within the LG Act or Regulations.
As a result, the exemption under s 38 of the FOI would apply to any document that might exist
meeting your request.
For completeness, I note that the Victorian Civil and Administrative Tribunal considered a similar
FOI request on review and determined that the then equivalent of regulation 79 was sufficient to be
a secrecy provision under s 38 of the FOI Act.
1
1
Van Der Craats v City of Stonnington [2015] VCAT 2039.
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Second element: is there a partial access obligation?
The second limb of s 25A(5) of the FOI Act provides that a request for documents can be refused
under that section where it is objectively apparent from the nature of the documents, as described
in the request, that there is no obligation for access to be granted to an edited copy of any of the
documents.
There would be no obligation to provide edited copies of any documents of the type described in
the FOI Request: it would not be practicable under s 25(b) of the FOI Act for the VEC to grant
access to a copy of
any document with such deletions as to make the copy either not an exempt
document, or a document that would not disclose such information (as the case would require).
Outcome
Following the above, I have determined, without having identified any or all of the documents
sought in the FOI Request, that it is apparent from the nature of the documents described in the
request that
all of the documents sought are exempt documents under s 38 of the FOI Act, and
that there would be no obligation under s 25 of the FOI Act to provide edited copies.
Therefore, I have determined to refuse access to the documents sought under s 25A(5) of the FOI
Act.
Review rights
If you are dissatisfied with my decision to refuse access to the documents, you have the right to
seek review of the decision by applying in writing to the Information Commissioner, within 28 days
of receiving this notice, to the contact details set out below:
Information Commissioner
Freedom of Information Reviews
PO Box 24274
MELBOURNE VIC 3001
Phone: 1300 842 364
Email:
xxxxxxxxx@xxxx.xxx.xxx.xx
Further information about the Office of the Victorian Information Commissioner is available at
https://ovic.vic.gov.au/. The Information Commissioner’s reviews process is described at
https:/ ovic.vic.gov.au/freedom-of-information/for-the-public/apply-for-a-review/, where a review
application form is also available for lodging an application to review the decision.
Yours sincerely
Anika Clynick
Manager, Information Protection
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