Applications to register to vote by people under the voting age

Anonymous User made this Freedom of Information request to Australian Electoral Commission

The request was partially successful.

From: Anonymous User

Delivered

Dear Australian Electoral Commission,

Has the AEC received any applications to register as an elector by people under the minimum age?

If so, how many have there been over the last five years, and could you please provide a breakdown by the applicant's age at the time of the request?

If possible, please treat this as an administrative/informal request. Otherwise, please proceed with my request as a formal information request under the Act.

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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: Paul Pirani
Australian Electoral Commission

Dear Anonymous User

 

The AEC is of the view that this email from you does not comply with the
requirements of section 15 of the Freedom of Information Act 1982 (FOI
Act). 

 

There are several reasons for this.  First, it is implicit in the
requirements of section 15(2) of the FOI Act that a person (the requestor)
is able to be identified.  This is further enforced by the right of access
in section 11 of the FOI Act only being available to a “person”.  In
addition, under the FOI Act fees and charges are able to be imposed for
the processing of an FOI request.  Without the provision of identity
information it is clearly not possible for an invoice to be raised. 
Accordingly, the AEC is of the view that this is not a valid FOI request.

 

There is an additional concern about the actual scope of documents that
are being sought.  Section 93(1)(a) of the Commonwealth Electoral Act 1918
(Electoral Act) contains the qualifications for a person to be on the
Commonwealth electoral Roll which includes that a person has “attained 18
years of age”.  However, section 100 of the Electoral Act provides that a
person who “has turned 16, but is under the age of 18 years of age”  is
able to be provisionally enrolled on the Commonwealth electoral Roll”.
Section 100 of the Electoral Act was added to the Electoral Act in 1983. 
At that time the then section 41A that became section 100 of the Electoral
Act specified the age as 17 years.  This age was lowered to 16 years in
2010.

 

Based on the above it is not clear exactly what documents you are actually
seeking to access as persons who have turned 16 years of age are eligible
to be placed on the Commonwealth electoral Roll on a provisional basis. 

 

I also note that the obligation under the FOI Act is only to provide
access to documents in the possession of an agency and not to create
documents as suggested by your email. 

 

In addition, I note that the AEC has published arrange of enrolment
statistical information on our website that includes an age breakdown. 
Those statistics can be found at the following link:

[1]http://www.aec.gov.au/Enrolling_to_vote/...
This information includes a column listing persons who are 16 and 17 years
of age.  Information that is already in the public domain cannot be
accessed under the FOI Act.

 

Yours sincerely

 

 

Mr. Paul Pirani | Chief Legal Officer

Legal & Procurement Branch Executive | Legal & Procurement Branch

Australian Electoral Commission

T: (02) 6271 4474 | M: 0401 144 531 | F: (02) 6293 7657

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Michael Cordover left an annotation ()

The Chief Legal Officer is demonstrably wrong about the need for an applicant to provide their identity prior to the request being accepted for processing. The OAIC has issued binding guidance precisely on point: https://www.oaic.gov.au/freedom-of-infor...

Conversely, the point about this not being a request for documents is probably valid.

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Ben Fairless left an annotation ()

It doesn't stop the AEC from answering the persons questions. It just means they aren't legally obliged to. Which means they could be a Good Government AgencyTM but choose to be difficult.

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From: Anonymous User

Delivered

Dear Paul Pirani,

Thank you for your response.

Documentation from the Office of the Australian Information Commissioner makes clear that a person does not need to provide their identity and may use a pseudonym when requesting documents under the Act. I include a link for your reference (see section 3.39):

https://www.oaic.gov.au/freedom-of-infor...

To clarify my request, I would like to request:

All correspondence sent after 1 January 2007 in which a person is informed that they are unable to be placed on the Commonwealth electoral roll on account of their age.

If you require further clarification, I would be more than happy to assist you.

Yours sincerely,

Anonymous User

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From: Paul Pirani
Australian Electoral Commission

Dear Anonymous User

The paragraph quoted from the OAIC is not absolute as suggested in your email. Paragraph 3.39 goes on to state in part that:

"Two exceptions to APP 2 are when an entity is required or authorised by a law or court or tribunal order to deal with an identified individual or it is not practicable to deal with an individual who is not identified. Those exceptions may apply to some FOI requests, but not in all instances. Agencies may have a duty to accept a request that does not identify an applicant who is a natural person."

The use of the word "may" indicates that there are circumstances where the identity of the FOI requestor is required. Accordingly, there is no blanket exemption that requires an agency to accept and act upon an anonymous FOI requests as suggested in your email. I am of the view that as your original request would have involved the AEC incurring considerable costs and that charges were therefore likely to be imposed under section in 29 of the FOI Act. Accordingly, it was both necessary and practical that the identity of the FOI requestor be known.

However, this is now a side issue.

What is now the main issue is the scope of your request. I note that I have previously directed you to the relevant provisions of the Commonwealth Electoral Act 1918 (Electoral Act) dealing with provisional enrolment of persons aged 16 and 17 years of age who are unable to vote until they turn 18 years of age. I have also directed you to the tables on our website that show the numbers of persons aged 16 and 17 years old who have been provisionally enrolled for the years 2007 to 2016.

I note that you have now amended the scope of your request to include " All correspondence sent after 1 January 2007 in which a person is informed that they are unable to be placed on the Commonwealth electoral roll on account of their age".

As a matter of logic, such correspondence (if it exists) would only come into existence where a person has actually lodged a claim for enrolment under section 101 of the Electoral Act. This therefore gives rise the possible application of the exemption contained in section 47A(2)(e ) of the FOI Act i.e. that the document sets out particulars of only one elector and was used to prepare an electoral roll. The fact that the person was not included in the electoral roll at that time, does not alter the fact that a claim for enrolment is used to prepare an electoral roll.

In addition, given the 10 year period that is now covered in your request, this will also likely given rise to the possible application of the grounds for a practical refusal in sections 24 (diversion of resources). First the AEC would need to undertake a search of all records held through our dispersed network of 150 Divisional Offices to attempt to identify any such records over the past 10 year period. Second, as such correspondence involves the personal affairs of an individual, the AEC would be required to first attempt to locate any relevant records and then to engage in consultation with that individual under section 27A of the FOI Act.

Accordingly, in accordance with section 24AB of the FOI Act you are hereby formally consulted to revise the request so that the practical refusal reason no longer exists.

Yours sincerely

Mr. Paul Pirani | Chief Legal Officer
Legal & Procurement Branch Executive | Legal & Procurement Branch
Australian Electoral Commission
T: (02) 6271 4474 | M: 0401 144 531 | F: (02) 6293 7657

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From: Anonymous User

Delivered

Dear Paul Pirani,

Thank you for your email.

I think that you may be misunderstanding my request. The reason for my making this request is not to find out information about people between 16 and 18 (who can be placed on the roll), but rather to find out information about people under 16 (who cannot be placed on the roll).

As for the issue of s47A(2)(e) of the FOI Act, the exemption only applies to the "particulars of only one elector", and an unsuccessful applicant is clearly not an elector.

The point is moot, however. The exemption is qualified by s47A(5) and s47A(3), and I have refined my request so that privacy issues cannot arise.

I will modify my request to read:

----
Any digitally scanned enrolment forms present on the AEC's computer network, received on or after 1 January 2016, where the date of birth given by the applicant indicates that the applicant was under 16 at the time the application was made, with personal information redacted to the extent (if any) that it is legally necessary for the request to be fulfilled or expedited.
----

Please note that you will not have to contact any divisional offices to fulfill this request.

Yours sincerely,

Anonymous User

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From: Paul Pirani
Australian Electoral Commission

Dear Anonymous User

I refer to your email of 17 March 2017 below.

At the outset I will indicate that I have caused a search of the relevant AEC database that contains the scanned images of applications for enrolment to be undertaken.

However, before turning the results of that search, I will address the legal argument put forward in your email about the scope of section 47A of the FOI Act. The exceptions contained in subsection 47A(3) and (5) of the FOI Act only apply where the request for access to a claim for enrolment is from that individual person seeking to be enrolled. These exceptions mirror subsection 47F(3) of the FOI Act that applies access to documents that contain personal information. The information contained in a completed claim for enrolment form can contain a range of personal information including full name, date of birth, street address, telephone numbers, email address, citizenship number, passport number, driver's license number and the applicant's signature. It is readily apparent that this information is personal information that would be unreasonable to be disclosed to third parties. I note that as you have chosen to remain anonymous in this matter then paragraph 3.40 of the OAIC Guidelines would apply.

Section 47A was inserted in the FOI Act by Act No. 219 of 1992. The Explanatory Memorandum stated:

"11. This clause inserts new section 47A of the Principal Act to limit access to personal roll information under the Freedom of Information Act 1982, by creating a new class of exempt documents being a document that is an electoral roll, a print, microfiche, tape or disc of an electoral roll, a document used in preparation of an electoral roll, or a document derived from the electoral roll; with the exception that individuals will retain their rights of access and review in relation to records pertaining to themselves as are presently contained in the Freedom of Information Act.

12. This amendment is complementary to the amendments to sections 91, 91A and 91B of the Commonwealth Electoral Act 1918 made by clauses 9, 10 and 11. The effect of the amendment will be to ensure that the end-use restrictions placed on personal electoral roll data by the above clauses cannot be circumvented by obtaining personal enrolment information under the Freedom of Information Act 1982."

The above statements in the Explanatory Memorandum make it clear that the Parliament intended that personal information contained in an application for enrolment provided to the AEC for the purpose of maintaining the Commonwealth electoral Roll could not be accessed under the FOI Act. The only exception was where the access request was from the person who lodged the claim for enrolment.

Accordingly, I do not accept the argument put forward in your email that the word "elector" in section 47A of the FOI Act is limited to a person who was actually placed on the Commonwealth electoral Roll. I am of the view that section 47A of the FOI Act covers all applications for enrolment that are received by the AEC in which the person claims to be entitled to be placed on the Commonwealth electoral Roll.

In addition, given the range of personal information contained in a completed claim for enrolment, it is apparent that section 47F of the FOI Act would apply to exempt the disclosure of these documents to a third person.

Based on the above I therefore do not accept your assertion that you have revised your FOI request so that privacy issues cannot arise. It is readily apparent that they would still arise as your request specifically seeks to access scanned completed claims for enrolment.

I am therefore once again consulting with you about the scope of your FOI request in this matter before I make a final decision on this matter.

To assist in in this regard, I am advised that a search of the database containing the scanned images of the claims for enrolment received by the AEC for the period 1 January 2016 to 21 March 2017 has identified a total of 20 applications from individuals under 16 years of age.

Yours sincerely

Mr. Paul Pirani | Chief Legal Officer
Legal & Procurement Branch Executive | Legal & Procurement Branch
Australian Electoral Commission
T: (02) 6271 4474 | M: 0401 144 531 | F: (02) 6293 7657

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From: Anonymous User

Delivered

Dear Paul Pirani,

Thank you very much for causing the database to be searched.

I would like to revise my request to:
All correspondence available in digital form between the AEC and the 20 individuals found in your database search relating to their applications to register as an elector (excluding exempt documents), with all personally identifying information redacted, with the exception of the month and year of birth (which I deny is personally identifying information) should it appear in the correspondence.

I have tried to reduce the scope to a manageable level, but if it is necessary to further reduce it, just let me know.

Yours sincerely,

Anonymous User

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From: Paul Pirani
Australian Electoral Commission


Attachment Enrolment rejection letter not at least 16 years of age.pdf
109K Download View as HTML


Dear Anonymous User

I am once again consulting you as to the scope of your request before proceeding to make a decision on this matter.

In relation to the revised scope of your request for access to documents in the possession of the AEC, I note that you have indicated that it now excludes "exempt documents". Given the previous correspondence on this matter, I have assumed that you have now excluded seeking access to the enrolment claims forms that were received by the AEC for the 20 persons who claimed an entitlement to have their name on the Commonwealth electoral Roll but had not yet turned 16 years of age. As previously advised, the AEC is of the view that all claims for enrolment received by the AEC are exempt documents under section 47A of the FOI Act and are only able to be lawfully accessed by the person about whom they relate.

I have now caused a further search to be undertaken of the relevant AEC database and am advised that for each of the 20 applicants there are only two documents. First the scanned image of the claim for enrolment form. Second, the scanned image of the letter back to the person who has been found to not be entitled to appear on the Commonwealth electoral Roll (whether on a provisional basis or otherwise).

For each of the 20 persons who had lodged a claim for enrolment in the period 1 January 2016 to 21 March 2017 and who had not yet turned 16 years of age they received a letter that is in the form set out in the attachment to this email. I note that this letter does not include any actual date of birth details.

Accordingly, as there are no such documents in the possession of the AEC that contain the date of birth information about these 20 persons (except for the exempt documents), your revised request is now likely to be refused under section 24A of the FOI Act. Section 24A of the FOI Act provides that an agency may refuse an FOI request if the document does not exist.

I should also note that the date of birth information contained on a claim for enrolment form is clearly personal information. While I note that the APP Guidelines issued by the OAIC refers to the de-identification of personal information (see paragraphs B.59 to B. 62) that is only of relevance where there is some requirement to create or publish the information. Paragraphs B.91 to B.94 of the Guidelines also refers to the test of "reasonably identifiable". Paragraph B.94 states that:

"Where it is unclear whether an individual is 'reasonably identifiable', an APP entity should err on the side of caution and treat the information as personal information."

In the context of claims for enrolment, section 390 of the Commonwealth Electoral Act 1918 is also of relevance given the specific references made in the Explanatory Memorandum in 1992 which inserted section 47A into the FOI Act. Section 390(1)(b) of the Commonwealth Electoral Act 1918 prohibits an AEC officer from disclosing or communicating to a court any matter or thing that has come under the person's notice In the performance of duties or functions under this Act in relation to a claim for enrolment. It is apparent that date of birth information (including partial date of birth information) would fall within that prohibition. Accordingly, I do not accept that the AEC is somehow able to disclose such information pursuant to an FOI request as this would clearly circumvent the restrictions contained in the Act.

Given the above, I am therefore once again consulting with you concerning the scope of your request before proceeding to make a final decision on this matter.

Yours sincerely

Mr. Paul Pirani | Chief Legal Officer
Legal & Procurement Branch Executive | Legal & Procurement Branch
Australian Electoral Commission
T: (02) 6271 4474 | M: 0401 144 531 | F: (02) 6293 7657

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From: Anonymous User

Delivered

Dear Paul Pirani,

Thank you for your response.

Because of the information that you have given me, I am happy to withdraw my freedom of information request. (I do, however, reserve my previously outlined positions with regards to exempt documents and date of birth information.)

Thanks for the help,

Anonymous User

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