Attachment B to LS4944

Michael Cordover made this Freedom of Information request to Australian Electoral Commission

The request was refused by Australian Electoral Commission.

From: Michael Cordover

Delivered

Dear Australian Electoral Commission,

I seek administrative access, or if necessary access under the FOI Act, to Attachment B ("schedule of the relevant documents") to the letter from Owen Jones at the AEC to Tania Strathearn at the OAIC dated 17 April 2014, AEC ref LS4944 ~ file 13/945.

A copy of the letter (except attachment B) is available at http://easycount.mjec.net/2014-05-06-aec....

Yours faithfully,

Michael Cordover

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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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Michael Cordover left an annotation ()

This request is for the schedule of relevant documents produced for an earlier FOI request: https://www.righttoknow.org.au/request/s...

The OAIC today confirmed they had no power to compel the AEC to release that document, as it was not a part of the original FOI request.

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From: INFO
Australian Electoral Commission


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UNCLASSIFIED

Dear Michael

 

Thank you for your request. You should find this document on our website's
[1]FOI Disclosure Log. From the quick look I had, I believe you will find
Attachment B on page 20-22 of the first document titled:

 

[2]LS4883 – file 13/945 Letter to M Cordover notifying decision 20131209

 

However if this is not the document you are seeking, please let me know.

 

Regards

 

Sally Bolton | Public Enquiries Officer

Education & Communications Branch

Australian Electoral Commission

Canberra ACT

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From: Michael Cordover

Delivered

Thanks Sally

I'm afraid that's not the document I'm after.

The Attachment B I'm after was an attachment to a later letter sent to the OAIC. In particular, the OAIC requested:

"Either the documents to which access was refused (documents in issue), in electronic format or a detailed schedule and description of the documents."

Attachment B was that schedule and was removed from the copy of the document made available to me by the OAIC.

You can see this in paragraph 2 of the letter at http://easycount.mjec.net/2014-05-06-aec....

Kind regards

Michael Cordover

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From: INFO
Australian Electoral Commission


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UNOFFICIAL

Thanks Michael, I have asked our Legal area to respond in that case.

 

Sally Bolton | Public Enquiries Officer

Education & Communications Branch

Australian Electoral Commission

Canberra ACT

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From: Owen Jones
Australian Electoral Commission


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Attachment LS5069 Letter initiating practical refusal consultation 20140626.pdf
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UNCLASSIFIED

Dear Mr Cordover

I refer to your email dated 13 June 2014 3:57 PM making the above FOI
Request. I enclose a scanned letter to you dated 26 June 2014 from Paul
Pirani, Chief Legal Officer of the Australian Electoral Commission about
your FOI Request.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal, Parliamentary and Procurement Branch

Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

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This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.

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From: Michael Cordover
[[3]mailto:[FOI #648 email]]
Sent: Friday, 13 June 2014 3:57 PM
To: INFO
Subject: Freedom of Information request - Attachment B to LS4944

 

Dear Australian Electoral Commission,

 

I seek administrative access, or if necessary access under the FOI Act, to
Attachment B ("schedule of the relevant documents") to the letter from
Owen Jones at the AEC to Tania Strathearn at the OAIC dated 17 April 2014,
AEC ref LS4944 ~ file 13/945.

 

A copy of the letter (except attachment B) is available at
[4]http://easycount.mjec.net/2014-05-06-aec....

 

Yours faithfully,

 

Michael Cordover

 

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From: Michael Cordover

Delivered

Dear Mr Jones,

I acknowledge receipt of Mr Pirani's letter of 26 June.

For the reasons that follow I do not wish to revise my request.

-- Overlap with LS4849 --

I believe there is no overlap between this request and LS4849. Prior to the closure of that IC review I was informed by the OAIC (Email from Tania Stratheran, 13 June 2014 3:38pm) that:

"... an agency's decision to provide or not to provide a schedule of documents with an FOI decision is not something that the OAIC can review - it is not an 'access refusal decision' as defined in s 53A of the FOI Act."

Regrettably I agree that as a matter of law there was no FOI request (prior to this one) for access to the schedule. Whether such a document is otherwise available (for example because it would need to be provided as a matter of AAT procedure) is frankly irrelevant: see Diamond and Australian Curriculum, Assessment and Reporting Authority [2013] AICmr 57 at [18].

-- Practical refusal reason --

A practical refusal reason only exists where the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations. I note that Mr Pirani's letter does not at any stage specifically make this claim.

I reject outright that performing legal research and considering my contentions is "unnecessary" given LS4849. If that matter proceeds to the AAT (as is my intention) then that work will have been necessary in any case, so is not duplicated. If that matter does proceed to the AAT then that work was required only to address this request.

But even if work may need to be unnecessarily duplicated in order to process this request, that alone is not sufficient to raise a practical refusal reason. As the FOI Guidelines state, this "power applies only in strictly limited circumstances" [3.58]. In particular, "agencies must ensure that appropriate resources are allocated to dealing with FOI matters" (ibid).

My request is for access to a single six-page document that has already been located by the AEC. Making a decision whether to grant access is not a diversion of resources but a statutory duty of the agency.

-- Vexatiousness --

Mr Pirani states at [11] that he considers this request to be vexatious. This is not a relevant consideration as to whether a practical refusal reason exists (s 24AA(3)).

If the AEC wishes to do so you are free to make an application under s 89K for a vexatious applicant declaration. In absence of such a declaration, my alleged vexatiousness is not a basis on which to refuse (or refuse to deal with) this request.

-- Further consultation --

I am happy to engage in further informal consultation but otherwise I look forward to your decision by 14 July.

Yours sincerely,

Michael Cordover

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From: Owen Jones
Australian Electoral Commission


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Attachment LS5069 Letter to Mr Cordover notifying decision 20140704.pdf
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UNCLASSIFIED

Dear Mr Cordover

I refer to  your email of 26 June 2014 12:13 PM in reply to Mr Pirani’s
letter to you of 26 June 2014 about your FOI Request No. LS5069.

I enclose a scanned letter dated 4 July 2014 from Paul Pirani, Chief Legal
Officer of the Australian Electoral Commission notifying you of his
decision about FOI Request No. LS5069

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal, Parliamentary and Procurement Branch

Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

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Commission

This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.

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From: Michael Cordover

Delivered

Dear Mr Jones,

Please accept my sincere apologies if any AEC staff feel harassed. It was certainly not my intention to harass anyone and I believe all my correspondence has been appropriate.

I am considering my review rights in relation to this refusal. At paragraph 24 Mr Pirani asks that I seek internal review as a first step. However, I have no desire to do this if the AEC will perceive it as harassment or a vexatious act. If that's the case I'll happily go straight to the OAIC.

I'm yet to decide whether or not I will be seeking a review of this decision. However I'll be guided by you as to the appropriate forum in which to do that, should I wish to do so. I'd appreciate your reply either confirming that the AEC would prefer me to first go through internal review, or that you'd prefer me to approach the OAIC immediately.

Yours sincerely,

Michael Cordover

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From: Owen Jones
Australian Electoral Commission


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UNCLASSIFIED

Dear Mr Cordover

I refer to your email of 7 July 2014 9:21 AM about this matter.

I have noted your apology. Whether or not you intended to harrass the AEC
about the refusal of your FOI Request No. LS4849, the unnecessary work
generated by the collateral FOI Requests has had that effect.

It is a matter for you whether you first seek an internal review of Mr
Pirani’s refusal of your FOI Request No. LS5079. However, in the
circumstances. the AEC would not criticise you if you decided to apply
directly to the Information Commissioner to review the decision to refuse
FOI Request No. LS5069.

As you have applied to the Administrative Appeals Tribunal to review the
decision to refuse your FOI Request No. LS4849, the AEC is of the view
that the Tribunal is the appropriate forum to determine that matter and
cognate issues.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal, Parliamentary and Procurement Branch

Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

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[1]Australian Electoral Commission logo [2]Australian Electoral
Commission

This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.

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From: Michael Cordover

Delivered

Dear Mr Jones,

Does the AEC still intend to ask the Information Commissioner to make a declaration under s 89K of the FOI Act that I am a vexatious applicant?

Yours sincerely,

Michael Cordover

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From: Owen Jones
Australian Electoral Commission


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Attachment LS5069 Letter to the Australian Information Commissioner 20140704.pdf
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UNCLASSIFIED

Dear Mr Cordover

I refer to your email of 21 July 2014 10:09 AM about this matter.

The AEC on 4 July 2014 applied to the Australian Information Commissioner
under paragraph 89K(2)(a) of the Freedom of Information Act 1982 (the ‘FOI
Act’) to have you declared to be a vexatious applicant. I enclose a copy
of Mr Pirani’s letter of 4 July 2014 to the Australian Information
Commissioner making the application.

I direct your attention to paragraph 3 of Mr Pirani’s letter. The
application under paragraph 89K(2)(a) of the FOI Act should not affect the
continuance of your application No. 2014/3361 pending in the
Administrative Appeals Tribunal.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal, Parliamentary and Procurement Branch

Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

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[1]Australian Electoral Commission logo [2]Australian Electoral
Commission

This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.

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Michael Cordover left an annotation ()

The AEC has provided me with a copy of this attachment B as part of the AAT process. A transcript of it is available at http://easycount.mjec.net/files.html

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Things to do with this request

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