20210824 LEX418 Decision Documents on Senate Counting Arrangements.pdf

LEX418
Vanessa Teague
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Ms Teague
Freedom of Information request - Senate Counting Arrangements
I refer to your request dated 8 June 2021 for access to documents under the
Freedom of Information Act 1982 (FOI Act), as revised on 13 July 2021. Your
request is for:
… documents (excluding source code) dated 2016, 2017 or 2018 which are
procurement and contracting documents relating to the engagement of
information and communication contractors and contract staff to undertake
projects relating to the development of the EasyCount software (i.e. a(iii) in your
letter).
Background
On 8 June 2021, you requested access to:
… based on the released email dated Friday October 12, 2018, which states
that the Scytl contract was not used because "there was another suitable
arrangement used for this purpose."
I request, under the Freedom of Information Act, all documents related to this
other "suitable arrangement" for the Senate Counting Solution.
On that date, you notified the Australian Electoral Commission (AEC) that you
agreed to exclude from scope the names and signatures of particular individuals
and, in separate correspondence, that you were seeking access to ‘all documents
related to this solution’ and not the source code.
On 16 June 2021, the AEC provided you with a notice to advise you of an intention
to refuse access to documents in accordance with your request on the grounds that
a practical refusal reason existed under s 24AA of the FOI Act and invited you to
narrow the scope of your request.
On 18 June 2021, you responded advising you request documents (excluding
source code) dated 2016, 2017 or 2018 which:
•
relate to the development of the EasyCount software, other than the source
code
•
are procurement and contracting documents relating to the engagement of
information and communication contractors and contract staff to undertake
projects relating to the development of the EasyCount software

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•
are authored by external software testing consultants engaged to
independently validate and verify the Senate Counting Solution.
On 28 June 2021, the AEC provided a further notice of intention to refuse access to
documents on the grounds that a practical refusal reason existed and invited you to
further revise the scope of your request.
On 13 July 2021, you further narrowed the scope of your request, as set out above.
On 20 July 2021, you were asked if you agreed to exclude from the scope of your
request the names, signatures or handwritten initials and contact details of AEC
staff, contractors and contract staff. On that date, you agreed to exclude this
information from the scope of your request.
In accordance with s 24AB(8) of the FOI Act, the consultation periods between you
being given notice of the intention to refuse your request and your responses do not
count toward the 30 day statutory timeframe for providing you with a decision on
your request and therefore the decision became due on 26 July 2021.
On 23 July 2021, the AEC notified you that the period for processing your request
had been extended by 30 days to enable us to consult with a third party under s 27
of the FOI Act. Accordingly, a decision on your request is due Tuesday, 24 August
2021.
Authorisation
I am authorised under s 23 of the FOI Act to make this decision.
Material taken into account
In making my decision, I have had regard to:
•
the terms of your request
•
the content of the documents identified as relevant to your request
•
the FOI Act
•
guidelines issued by the Office of the Australian Information Commissioner
under s 93A of the FOI Act (the Guidelines)
•
consultation responses from third parties consulted in accordance with the FOI
Act.
Decision
I arranged for searches to be undertaken and have identified documents set out in
the attached schedule that fall within the scope of your request.
I have decided to release the documents except for the information you agreed to
exclude from scope and material I have decided is exempt under ss 47E(d) and
47G(1)(a) of the FOI Act. My reasons for decision follow.

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Reasons for decision
Section 22(1)(a)(ii) – irrelevant material
Section 22(1)(a)(ii) provides that information in a document that is irrelevant to the
scope of a request can be redacted. Information that has been redacted under s 22
is the information you agreed to exclude from the scope of your request: the names,
signatures or handwritten initials and contact details of Australian Electoral
Commission staff, contractors and contract staff.
Section 24A – Documents cannot be found or do not exist
Section 24A of the FOI Act provides that an agency may refuse a request for access
to a document if all reasonable steps have been taken to find the document and the
agency or Minister is satisfied that the document:
•
is in the agency's or Minister's possession but cannot be found; or
•
does not exist.
In response to your request, the AEC has undertaken searches of the internal
commercial records management system. The AEC also considered whether the
documents relevant to your request could have been found in other locations, such
as older records management systems, hardcopy files or files saved on computers
or portable devices.
After consulting with the Digital Technology and Communication Branch and the
Commercial Law and Procurement Section, I am satisfied that the internal
commercial records management system is the location in which all documents
relevant to your request for the relevant time period would be held.
In order to retrieve these documents, searches were undertaken by staff in the Legal
Services Section, ICT Finance, Digital Technology and Communications Branch and
the Commercial Law and Procurement Section. The search terms used included the
date, the contractor’s given name, family name and contract number. The possibility
of different spellings of common names was also considered, and the search terms
included different alternatives of frequently used spellings of such names. The
searches were conducted over the course of approximately one week, with several
staff members involved across the aforementioned areas. Staff did not work full time
on the request but spent approximately 10 hours compiling these materials.
Limitations of the search largely stemmed from the fact that organisational
restructuring between 2016 and the present resulted in changes to the internal
commercial records management system. Noting these limitations, the Digital
Technology and Communications Branch and ICT Finance were consulted in order
to confirm that no other documents within the scope of this FOI Request were likely
to be in the agency’s possession
After undertaking these thorough searches, the AEC has been unable to locate
documents in relation to 4 AEC contractors. Accordingly, I am satisfied that the
documents cannot be found or do not exist and have decided to refuse access to
the documents under s 24A.

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Section 17 – Information stored in electronic form
Section 17 requires an agency to produce a written document of information that is
stored electronically and not in a discrete written form, subject to certain exceptions.
Document 62 contains information held in AEC’s online contracting management
software. This information was not held or able to be downloaded in a discrete form,
so I have decided to provide access to a PDF document containing screenshots
from our system.
Section 47E(d) – Certain operations of agencies exemption
Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its
disclosure would, or could reasonably be expected to have a substantial adverse
effect on the proper and efficient conduct of the operations of an agency.
The parts of the documents which I have found to be conditionally exempt under
s 47E(d) comprise the hourly rates paid to contractors for the engagement of
personnel for services to the AEC, and information from which hourly rates could be
deduced: maximum work hours, GST components and service charges. The rates
paid to contracted service providers is confidential in nature and its disclosure could
undermine the procurement functions of the AEC in future competitive tenders for
similar personnel contracts.
The AEC is required to ensure that in all procurements, it achieves value for money
and encourages competition: Commonwealth Procurement Rules [4.4]. The
engagement of contracted service personnel is highly competitive and the release of
hourly rates would have a substantial adverse effect on the AEC’s ability to engage
in the tender process and negotiate for similar contracts in future.
I have had regard to the age of the documents, which are 2-5 years old. There is
nothing before me to suggest that the sensitivity of the information has diminished
over time. I consider that the rates agreed to by the parties at the relevant points in
time remain sensitive and would reveal information which is relevant to the current
commercial environment.
I have therefore decided that the documents are exempt in part under s 47E(d) as
set out the attached schedule.
Section 47G(1)(a) – Business documents exemption
Section 47G of the FOI Act provides that a document is conditionally exempt if its
disclosure would disclose information concerning a person in respect of his or her
business or professional affairs or concerning the business, commercial or financial
affairs of an organisation or undertaking, in a case in which the disclosure of the
information:
(a) would, or could reasonably be expected to, unreasonably affect that
person adversely in respect of his or her lawful business or professional
affairs or that organisation or undertaking in respect of its lawful business,
commercial or financial affairs; or
…
The parts of documents which I have found to be conditionally exempt in part under
s 47G(1)(a), contain information relating directly to the business affairs of contracted
service providers. This comprises hourly rates paid to contractors and information

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from which hourly rates could be deduced: hourly rates, maximum work hours, GST
components and service charges.
In relation to procurements for contracted service personnel, there is a general
understanding that hourly rates paid to recruiters is highly sensitive. This information
is not generally provided to individual contractors and, in turn, the AEC is not
generally privy to how much the recruiters pay the individual personnel. The AEC
takes steps to protect information of this nature in its document management
systems, including limiting the internal availability of procurement documents and
strictly controlling access permissions.
I find that disclosure of the information could reasonably be expected to
unreasonably affect third parties in respect of their lawful business, commercial or
financial affairs by disclosing commercially sensitive information that could be used
by competitors to gain an advantage in future tender processes.
The word ‘unreasonably’ in s 47G(1)(a) implies a need to balance public and private
interests’ (Kazakhstan Potash Corporation Ltd and Australian Securities and
Investments Commission [2019] AATA 5035 at [81], citing the Guidelines at [6.187]-
[6.191]).
I consider that the disclosure of these parts of the documents in response to this
request would only minimally contribute to the public interest, given that I have
decided to largely release the documents with only minor redactions. In that regard,
I note that the total sums with respect to each the contracts are being released. On
the other hand, the disclosure of the information could unreasonably impact on the
third party’s business interests by releasing information that is generally understood
to be confidential.
I have also taken into account that the information is not otherwise publicly known
and that the FOI Act does not limit the dissemination of the information. Further, I
have taken into account the risk that personnel could be identified by their title and
the period of the contract, and the disclosure of the hourly rates that apply to them
may unreasonably impact their privacy.
I have decided that the documents are also exempt in part under s 47G(1)(a) as set
out the attached schedule.
Section 11A(5) – The public interest
Conditionally exempt documents must be disclosed unless, in the circumstances,
access at this time would, on balance, be contrary to the public interest (s 11A(5)
FOI Act).
I have taken into account the public interest in disclosing information held by a
Government agency. I have also taken into account the objects of the FOI Act which
include increasing public participation and debate in Government processes and
increasing scrutiny, discussion and review of Government activities, as well as
promoting oversight of public expenditure. I consider that release of the information
would promote these public interest factors to a small degree. To the extent
disclosure is in the public interest, that is satisfied by the disclosure of most of the
information in the documents, including the overall amount of the contracts.
Weighing against those factors, I find that disclosure of the information could
reasonably be expected to unfairly prejudice a business by disclosing information
that competitors could use to determine their pricing and competitiveness in tender

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processes. Disclosure could also undermine the ability of the AEC to engage in
competitive tenders for contracted services personnel. I give these factors
substantial weight.
On balance, I find that disclosure would be contrary to the public interest and the
documents are exempt in part under ss 47E(d) and 47G(1)(a) of the FOI Act.
Review Rights
If you are dissatisfied with any part of the decision you can ask for an internal review
or request an independent review by the Office of the Australian Information
commissioner (OAIC). You can also apply to the OAIC after an internal review has
been conducted. Attachment A contains information about how to arrange a
review.
For more information
If you have any questions, please contact me at:
Email: xxxxx@xxx.xxx.xx
Fax: 02 6293 7657
Post: Locked bag 4007, Canberra ACT 2601
Telephone: 02 62714662

Yours sincerely

Megan Weimar
Principal Government Lawyer

24 August 2021

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Schedule of documents – LEX418
Document no.
Date
Description
Decision on access
Exemption
1
Release in part; irrelevant information
47E(d) and
29-Feb-16
AEC16 063 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)1
2
Release in part; irrelevant information

1-Mar-16
AEC14-101 - Draft Work Order
redacted under s 22(1)(a)(ii)
3
Release in part; irrelevant information
47E(d) and
1-Mar-16
AEC16 068 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
4
Release in part; irrelevant information
47E(d) and
8-Mar-16
AEC16-111 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
5
Release in part; irrelevant information
47E(d) and
8-Mar-16
AEC16-112 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
6
Release in part; irrelevant information
47E(d) and
9-Mar-16
AEC16-118 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
7
Release in part; irrelevant information
47E(d) and
11-Mar-16
AEC16-106 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
8
Release in part; irrelevant information
47E(d) and
15-Mar-16
AEC16-124 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
9
AEC14-101 - IV & V contract management
Release in part; irrelevant information

16-Mar-16
plan
redacted under s 22(1)(a)(ii)

1 Where the redaction in the documents shows 47E(d), this material is also exempt under s 47G(1)(a).

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10
Release in part; irrelevant information

16-Mar-16
Internal email regarding SuperFAD search
redacted under s 22(1)(a)(ii)
11
Release in part; irrelevant information
47E(d) and
16-Mar-16
AEC16-128 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
12
Release in part; irrelevant information

21-Mar-16
AEC14-101 - Work Order
redacted under s 22(1)(a)(ii)
13
Release in part; irrelevant information
47E(d) and
22-Mar-16
AEC16-138 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
14
Release in part; irrelevant information
47E(d) and
26-Mar-16
AEC16-063 - Change Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
15
AEC14-101 - Deed of Variation No. 1 to
Release in part; irrelevant information

29-Mar-16
Contract AEC14-101-01 (executed)
redacted under s 22(1)(a)(ii)
16
AEC14-101 - Deed of Variation No. 1 to
Release in part; irrelevant information

29-Mar-16
Contract AEC14-101-01
redacted under s 22(1)(a)(ii)
17
Email IV & V to AEC regarding work order
Release in part; irrelevant information

29-Mar-16
variation
redacted under s 22(1)(a)(ii)
18
AEC14-101 - Deed of Variation No. 2 to
Release in part; irrelevant information

19-May-16
Contract AEC14-101 (executed)
redacted under s 22(1)(a)(ii)
19
Release in part; irrelevant information
47E(d) and
10-Jun-16
AEC16-670 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
20
AEC14-101 - Deed of Variation No. 3 to
Release in part; irrelevant information

15-Jun-16
Contract AEC14-101-01 (executed)
redacted under s 22(1)(a)(ii)
21
Email IV & V to AEC regarding deed of
Release in part; irrelevant information

15-Jun-16
variation
redacted under s 22(1)(a)(ii)

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22
AEC14-101 - Deed of Variation No. 3
Release in part; irrelevant information

16-Jun-16
Contract AEC14101-01
redacted under s 22(1)(a)(ii)
23
Release in part; irrelevant information
47E(d) and
17-Jun-16
AEC16-675 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
24
Internal email regarding Rule 18 approval of
Release in part; irrelevant information

17-Jun-16
IV&V Variation No 3
redacted under s 22(1)(a)(ii)
25
Release in part; irrelevant information

20-Jun-16
AEC16-106 - Letter of extension
redacted under s 22(1)(a)(ii)
26
Release in part; irrelevant information
47E(d) and
20-Jun-16
AEC16-124 - Change Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
27
Release in part; irrelevant information
47E(d) and
20-Jun-16
AEC16-138 - Change Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
28
Release in part; irrelevant information
47E(d) and
21-Jun-16
AEC16-106 - Deed of Variation 1
redacted under s 22(1)(a)(ii)
47G(1)(a)
29
Release in part; irrelevant information
47E(d) and
27-Jul-16
AEC16-138 - Change Order 2
redacted under s 22(1)(a)(ii)
47G(1)(a)
30
Release in part; irrelevant information
47E(d) and
1-Aug-16
AEC16-106 - Deed of Variation 2
redacted under s 22(1)(a)(ii)
47G(1)(a)
31
Release in part; irrelevant information
47E(d) and
8-May-17
AEC17-070 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
32
Release in part; irrelevant information
47E(d) and
18-May-17
AEC17-082 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
33
Release in part; irrelevant information
47E(d) and
24-May-17
AEC17-088 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)

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34
Release in part; irrelevant information
47E(d) and
1-Jun-17
AEC17-101 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
35
Release in part; irrelevant information
47E(d) and
15-Jun-17
AEC17-113 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
36
Release in part; irrelevant information
47E(d) and
4-Jul-17
AEC17-165 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
37
Release in part; irrelevant information
47E(d) and
31-Jul-17
AEC17-201 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
38
Release in part; irrelevant information
47E(d) and
3-Aug-17
AEC17-201 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
39
Release in part; irrelevant information
47E(d) and
9-Aug-17
AEC17-200 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
40
Release in part; irrelevant information
47E(d) and
18-Aug-17
AEC17-219 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
41
Release in part; irrelevant information
47E(d) and
10-Oct-17
AEC17-256 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
42
Release in part; irrelevant information
47E(d) and
24-Nov-17
AEC17-103 - Change Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
43
Release in part; irrelevant information
47E(d) and
24-Jan-18
AEC18-014 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
44
Release in part; irrelevant information
47E(d) and
24-Jan-18
AEC18-017 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
45
Release in part; irrelevant information
47E(d) and
21-Mar-18
AEC17-070 - Change order
redacted under s 22(1)(a)(ii)
47G(1)(a)

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46
Release in part; irrelevant information
47E(d) and
21-Mar-18
AEC17-101 - Change Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
47
Release in part; irrelevant information
47E(d) and
21-Mar-18
AEC17-201 - Change Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
48
Release in part; irrelevant information
47E(d) and
21-Mar-18
AEC17-256 - Change Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
49
Release in part; irrelevant information

23-Mar-18
AEC18-143 - Work Order
redacted under s 22(1)(a)(ii)
50
Release in part; irrelevant information
47E(d) and
9-Apr-18
AEC18-056 - Change Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
51
Release in part; irrelevant information

9-Apr-18
Page 9 of Change Order
redacted under s 22(1)(a)(ii)
52
Release in part; irrelevant information
47E(d) and
10-Apr-18
AEC18-155 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
53
Release in part; irrelevant information

14-May-18
AEC18-056 - Change Order 2
redacted under s 22(1)(a)(ii)
54
Release in part; irrelevant information
47E(d) and
24-May-18
AEC17-113 - Change Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
55
Release in part; irrelevant information
47E(d) and
13-Jun-18
AEC18-267 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
56
Release in part; irrelevant information
47E(d) and
22-Jun-18
AEC18-276 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
57
Release in part; irrelevant information
47E(d) and
22-Jun-18
AEC18-329 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)

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58
Release in part; irrelevant information
47E(d) and
22-Jun-18
AEC18-350 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
59
Release in part; irrelevant information
47E(d) and
27-Jun-18
AEC18-355 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)
60
Release in part; irrelevant information

4-Dec-18
AEC14-101 Letter of extension to IV & V
redacted under s 22(1)(a)(ii)
61
Release in part; irrelevant information
47E(d) and
11-Dec-18
AEC18-268 - Deed of Variation 1
redacted under s 22(1)(a)(ii)
47G(1)(a)
62
Release in part; irrelevant information

11-Dec-18
14-101 - Deed of Standing Offer Information redacted under s 22(1)(a)(ii)
63
Release in part; irrelevant information
47E(d) and
12-Dec-18
AEC17-201 - Deed of Variation 1
redacted under s 22(1)(a)(ii)
47G(1)(a)
64
Release in part; irrelevant information
47E(d) and
Undated
AEC18-056 - Work Order
redacted under s 22(1)(a)(ii)
47G(1)(a)

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ATTACHMENT A
RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
The Freedom of Information Act 1982 (FOI Act) gives you the right to apply for a review of a
Freedom of Information (FOI) decision. Under section 54 and section 54L of the FOI Act, you can
apply for a review of an FOI decision by:
1.  an internal review officer in the Australian Electoral Commission (the AEC); and/or
2.  the Office of the Australian Information Commissioner (the OAIC).

There are no fees associated with requesting a review of an FOI decision.
Applying for an internal review by the AEC
If you apply for internal review, a different decision maker to the delegate who made the original
decision will carry out the review. The internal review officer will consider all aspects of the original
decision and decide whether the decision should be changed. An application for internal review must
be:
•
made in writing;
•
made within 30 days of receiving this letter;
•
be sent, quoting reference number LEX418;
o
by email to xxxxx@xxx.xxx.xx; or
o
by mail to Locked bag 4007 CANBERRA  ACT  2601.
Applying for external review by the OAIC
If you disagree with the original decision or the internal review decision, you can ask the OAIC to
conduct an independent review of the original FOI decision.
You may also apply to the OAIC if you have not been informed of the outcome of an internal review
within 30 days.
Your application for OAIC review must:
•
be sent within 60 days of being notified of the decision;
•
if you have one, include a copy of the decision on your FOI request;
•
set out the reasons(s) why you disagree with the decision; and
•
include an address where notices can be sent (eg your email address).
You may lodge your application for OAIC review:
•
online by using the OAIC ‘Review Application Form’, available at:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/
•
by email to xxxxx@xxxx.xxx.xx
•
by mail to:
Director of FOI Dispute Resolution
GPO Box 5218
SYDNEY  NSW  2001
•
by fax to 02 9284 9666

Address  P 00 0000 0000  F 00 0000 0000
www.aec.gov.au

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For further details regarding the OAIC visit www.oaic.gov.au
Complaints
Office of the Australian Information Commissioner
Any complaint about the processing of your FOI request can be forwarded to the OAIC. The
complaint must be in writing and identify the agency against which the complaint is made. There is no
particular form required to make a complaint, but the complaint should set out the grounds on which
you consider the action should be investigated. The OAIC’s contact details are:
•
telephone: 1300 363 992
•
website: www.oaic.gov.au
Commonwealth Ombudsman
The Commonwealth Ombudsman also has the power to investigate the AEC’s actions and make
recommendations where appropriate. Complaints made to the Commonwealth Ombudsman may be
made in person, by telephone or in writing. The Commonwealth Ombudsman will consult with the
OAIC before deciding who should investigate your complaint. The Commonwealth Ombudsman’s
contact details are:
•
telephone: 1300 362 072
•
website: www.ombudsman.gov.au

Address P 00 0000 0000 F 00 0000 0000
www.aec.gov.au

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