Employee information provided to ballot agents in Enterprise Agreement bargaining

James Smith made this Freedom of Information request to Australian Electoral Commission

The request was successful.

From: James Smith

Delivered

Dear Australian Electoral Commission,

This is a request for information under the Freedom of Information Act.

I request the document(s) which describe the data provided to the external organisation(s) responsible for conducting the ballot(s) for all Enterprise Agreements put to staff for a vote.

The scope of this request is limited only to those ballots undertaken for enterprise agreements which were proposed to take effect after 30 June 2014.

The document shall describe the data given to the ballot agent. For example, employee name, employee identification number, employee email address, etc. I exclude the data for specific employees here; I am only after the 'meta-data'.

If it assists you to treat this as an administrative request for information I encourage you to do so. Otherwise, please consider this a formal FOI request.

Yours faithfully,

James Smith

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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: Owen Jones
Australian Electoral Commission


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Mr James Smith
C/o Right to Know Organisation

Dear Mr Smith

I refer to your email dated 16 February 2017 7:51 PM in which you request
(‘your FOI Request’) to the Australian Electoral Commission (‘AEC’) under
the [1]Freedom of Information Act 1982 (the ‘FOI Act’) for access to
documents relating to employee information provided to ballot agents in
Enterprise Agreement bargaining.

2                    We received your request on 16 February 2017,
however, for the reasons that I explain below, the 30 day statutory period
for processing your request has not commenced.

Consultation for the purposes of subsection 15(3) of the FOI Act

3                    I am unable to understand what you seek by the terms
that you have expressed in your request. To my reading there is an
inconsistency in what you ask. I do not see how you can concurrently ask
for employee name, employee identification number, employee email address,
etc. but exclude the data for specific employees.

4                    In this regard I do not find that your reference to
'meta-data' helpful. There is no settled meaning as to what constitutes
meta-data. It follows, that I need to know what you mean by that
expression

5                    As your request now stands, it is my view it does not
satisfy the requirement of paragraph 15(2)(b) of the FOI Act.

6                    Paragraph 15(2)(b) of the FOI Act provides:

15  Requests for access

Requirements for request

(2)     The request must:

(b)     provide such information concerning the document as is reasonably
necessary to enable a responsible officer of the agency, or the Minister,
to identify it; and

7                    I await your clarification as to what it is that you
seek.

8                    I take this opportunity to warn you that if you are
indeed seeking information about individuals who were eligible to
participate in an enterprise agreement ballot that you risk creating a
‘practical refusal reason’ within the meaning given to that expression by
section 24AA of the FOI Act.

9                    Section 24AA of the FOI Act provides:

24AA  When does a practical refusal reason exist?

(1)     For the purposes of section 24, a practical refusal reason exists
in relation to a request for a document if either (or both) of the
following applies:

(a)     the work involved in processing the request:

(i)      in the case of an agency—would substantially and unreasonably
divert the resources of the agency from its other operations; or

(ii)     in the case of a Minister—would substantially and unreasonably
interfere with the performance of the Minister’s functions;

(b)     the request does not satisfy the requirement in paragraph 15(2)(b)
(identification of documents).

(2)     Subject to subsection (3), but without limiting the matters to
which the agency or Minister may have regard, in deciding whether a
practical refusal reason exists, the agency or Minister must have regard
to the resources that would have to be used for the following:

(a)     identifying, locating or collating the documents within the filing
system of the agency, or the office of the Minister;

(b)     deciding whether to grant, refuse or defer access to a document to
which the request relates, or to grant access to an edited copy of such a
document, including resources that would have to be used for:

(i)      examining the document; or

(ii)     consulting with any person or body in relation to the request;

(c)     making a copy, or an edited copy, of the document;

(d)     notifying any interim or final decision on the request.

(3)     In deciding whether a practical refusal reason exists, an agency
or Minister must not have regard to:

(a)     any reasons that the applicant gives for requesting access; or

(b)     the agency’s or Minister’s belief as to what the applicant’s
reasons are for requesting access; or

(c)     any maximum amount, specified in the regulations, payable as a
charge for processing a request of that kind.

10                 This would occur if the AEC is obliged to consult the
individuals for the purposes of section 27A of the FOI Act: see paragraph
24AA(2)(b)(ii) of the FOI Act.

How the FOI Request will be processed.

11                 You should therefore expect a decision from us within
30 days of providing a statement of the scope of your FOI Request that
satisfies the requirements of paragraph 15(2)(b) of the FOI Act. The
period of 30 days may be extended if we need to consult third parties,
impose a charge or for other reasons. We will advise you if this happens.

12                 You will be notified of any charges in relation to your
request as soon as possible, before we process any requested documents or
impose a final charge.

13                 Please note that information released under the FOI Act
may later be published online on the AEC’s disclosure log [2]at
http://www.aec.gov.au/information-access..., subject to certain
exceptions. (For example, personal information will not be published where
this would be unreasonable.)

14                 We will contact you using the email address that you
provided. Please advise if you would prefer us to use an alternative means
of contact. If you have any questions, please contact me at:

email:                          [email address]

fax:                              02 6293 7657

post:                            Locked bag 4007, Canberra ACT 2601

telephone:                   02 6271 4528

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

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

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[3]Australian Electoral Commission logo [4]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: James Smith

Delivered

Dear Owen Jones,

Thanks for your email.

I confirm I am not after the actual details of the employees. The ballot provider would have been supplied a data file and in that file each field would have a specific type of data. For example, employee name in one column, employee email address in another.

The document I seek will describe what data was provided. If the data was sent to the ballot provider in an Excel file, then the information I seek would be the list of column headings which describe what the data actually is. I suggest this list of column headings, or equivalent, would be contained in correspondence between your department and the ballot provider.

A general definition of meta data is that is "data about data", rather than the data itself.

I trust this provides the clarification you require however if you are still unsure please let me know.

Yours sincerely,

James Smith

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From: Owen Jones
Australian Electoral Commission


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Dear Mr Smith

Thank you for your email of 17 February  2017 1:12 PM about your FOI
Request.

2                    I regret that I find your definition of metadata
unhelpful. There is a degree of circularity in the definition.

3                    I take your FOI Request to seek documents namely:

an extract from a spreadsheet provided to an external ballot agent in for
the purpose of conducting a ballot requested by an employer under section
181 of the [1]Fair Work Act 2009 showing the list of column headings (or
row, as the case require) that describe the type of data used to populate
the spreadsheet about employees listed in the spreadsheet to participate
in each ballot held since for enterprise agreements which were proposed to
take effect after 30 June 2014.

4                    I have taken your reference to an external ballot
agent as excluding from the scope of your FOI Request those ballots
conducted by the AEC.

5                    I have also taken you to have consented to the
Australian Electoral Commission to treat the data about individuals listed
as voters in the ballot being treated as irelevant to the FOI Request and
you will accept an edited copy of each document from which the information
about individuals is redacted.

6                    Please confirm that I have correctly expressed the
terms of your FOI Request. Time for processing the FOI Request will start
when I am satisfied that the request conforms with the requirements of
subsection 15(2) of the [2]Freedom of Information Act 1982.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

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

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[3]Australian Electoral Commission logo [4]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: James Smith

Delivered

Dear Mr Jones

Thank you for your email.

Your interpretation of the terms of my request is correct.

For further reference, you may wish to view the response that was provided to me by the Australian Commission on Safety and Quality in Health Care at the following URL:

https://www.righttoknow.org.au/request/e...

I do not need to see a copy of the actual documents; a simple list of the column headings will suffice.

Yours sincerely,

James Smith

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From: Owen Jones
Australian Electoral Commission


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Dear Mr Smith

Thank you for the clarification in you email of 17 February 2017 6:31 PM.
I have visited the site at the link provided by you.

I take it that your FOI Request is directed to the enterprise bargaining
ballots requested by the AEC under section 181 of the [1]Fair Work Act
2009 and that those enterprise bargaining ballots conducted by the AEC
are out of scope.

On that basis, you may expect a decision on your FOI Request by 19 March
2017.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

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

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[2]Australian Electoral Commission logo [3]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: Owen Jones
Australian Electoral Commission


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Mr James Smith

Email at: [1]mailto:[FOI #3078 email]

Dear Mr Smith

Your Freedom of Information Request No. LS5940

I refer to your email dated 6 February 2017 19:51PM to the Australian
Electoral Commission (‘AEC’) in which you request (your ‘FOI Request’)
access under the [2]Freedom of Information Act 1982 (the ‘FOI Act’) to
information about the data type used to compile employee information for
the AEC’s Enterprise Agreement Ballot.

2                    I am writing today to give you a decision about
access to documents that you requested in your FOI Request.

Summary

3                    I, Owen Jones, Senior Lawyer of the AEC, am an
officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests.

4                    Specifically you sought access to:

“an extract from a spreadsheet provided to an external ballot agent for
the purpose of conducting a ballot requested by an employer under section
181 of the [3]Fair Work Act 2009 showing the list of column headings (or 
row, as the case requires) that describe the type of data used to populate
the spreadsheet about employees listed in the spreadsheet to participate
in each ballot held since for enterprise agreements which were proposed to
take effect after 30 June 2014.”

5                    I identified one document that fell within the scope
of your request.

6                    I did this by directing inquiries to the Employee
Relations and Services Section, People Services Branch of the AEC. The
outcome was that the same template recording voters’ details was used by
the AEC when engaging an external ballot agent to conduct the Enterprise
Bargaining Ballots that it requested under section 181 of the [4]Fair Work
Act 2009 that closed on 11 February 2016 and 12 May 2016.

7                    The schedule of retrieved documents in the attached
Acrobat file LS5940 Decision Attachment A.pdf (Attachment A) provides a
description of the document that fell within the scope of your request and
the access decision for that document.

8                    With regard to the documents you requested (set out
in Attachment A), I have decided to grant access to one document.

9                    More information, including my reasons for my
decision, is set out below.

Decision and reasons for decision

Decision

10                 With regard to the document identified in Attachment A,
I have decided to grant access in full to Document No. 1.

Material taken into account

11                 I have taken the following material into account in
making my decision:

(a)        the content of the document that fell within the scope of the
FOI Request;

(b)        the FOI Act, specifically sections 3, 3A, 4, 11, 11A, 11B and
15.

(c)        the guidelines (‘[5]FOI Guidelines’) issued by the Australian
Information Commissioner under section 93A of the FOI Act, specifically
paragraphs 1.13 - 1.17.

Your review rights

12                 If you are dissatisfied with my decision, you may apply
for internal review or Information Commissioner review of the decision. We
encourage you to seek internal review as a first step as it may provide a
more rapid resolution of your concerns.

Internal review

13                 Under section 54 of the FOI Act, you may apply in
writing to the AEC for an internal review of my decision. The internal
review application must be made within 30 days of the date of this letter.

14                 Where possible please attach reasons why you believe
review of the decision is necessary. The internal review will be carried
out by another officer within 30 days.

Information Commissioner review

15                 Under section 54L of the FOI Act, you may apply to the
Australian Information Commissioner to review my decision. An application
for review by the Information Commissioner must be made in writing within
60 days of the date of this letter, and be lodged in one of the following
ways:

Online:                             
[6]https://forms.business.gov.au/aba/oaic/f...

Email:                    [7][email address]

Post:                      GPO Box 52189, Sydney NSW 2001

In person:               Level 3, 175 Pitt Street, Sydney NSW

16                 More information about Information Commissioner review
is available on the Office of the Australian Information Commissioner
website. Go to [8]www.oaic.gov.au/freedom-of-information/foi-reviews.

Questions about this decision

17                 If you wish to discuss this decision, please contact
me. My details are set out below:

Email:                    [9][email address]

Fax:                       02 6293 7657

Post:                      Locked bag 4007, Canberra ACT 2601

Telephone:             02 6271 4528

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

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

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[10]Australian Electoral Commission logo [11]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: Owen Jones
Australian Electoral Commission


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Dear Mr Smith

Here is Attachment A to my decision

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal 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: Owen Jones
Sent: Wednesday, March 01, 2017 10:40 AM
To: [FOI #3078 email]
Cc: Legal Services - NO <[email address]>
Subject: Your FOI Request LS5940 [SEC=UNCLASSIFIED]

 

Mr James Smith

Email at: [3]mailto:[FOI #3078 email]

Dear Mr Smith

Your Freedom of Information Request No. LS5940

I refer to your email dated 6 February 2017 19:51PM to the Australian
Electoral Commission (‘AEC’) in which you request (your ‘FOI Request’)
access under the [4]Freedom of Information Act 1982 (the ‘FOI Act’) to
information about the data type used to compile employee information for
the AEC’s Enterprise Agreement Ballot.

2                    I am writing today to give you a decision about
access to documents that you requested in your FOI Request.

Summary

3                    I, Owen Jones, Senior Lawyer of the AEC, am an
officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests.

4                    Specifically you sought access to:

“an extract from a spreadsheet provided to an external ballot agent for
the purpose of conducting a ballot requested by an employer under section
181 of the [5]Fair Work Act 2009 showing the list of column headings (or 
row, as the case requires) that describe the type of data used to populate
the spreadsheet about employees listed in the spreadsheet to participate
in each ballot held since for enterprise agreements which were proposed to
take effect after 30 June 2014.”

5                    I identified one document that fell within the scope
of your request.

6                    I did this by directing inquiries to the Employee
Relations and Services Section, People Services Branch of the AEC. The
outcome was that the same template recording voters’ details was used by
the AEC when engaging an external ballot agent to conduct the Enterprise
Bargaining Ballots that it requested under section 181 of the [6]Fair Work
Act 2009 that closed on 11 February 2016 and 12 May 2016.

7                    The schedule of retrieved documents in the attached
Acrobat file LS5940 Decision Attachment A.pdf (Attachment A) provides a
description of the document that fell within the scope of your request and
the access decision for that document.

8                    With regard to the documents you requested (set out
in Attachment A), I have decided to grant access to one document.

9                    More information, including my reasons for my
decision, is set out below.

Decision and reasons for decision

Decision

10                 With regard to the document identified in Attachment A,
I have decided to grant access in full to Document No. 1.

Material taken into account

11                 I have taken the following material into account in
making my decision:

(a)        the content of the document that fell within the scope of the
FOI Request;

(b)        the FOI Act, specifically sections 3, 3A, 4, 11, 11A, 11B and
15.

(c)        the guidelines (‘[7]FOI Guidelines’) issued by the Australian
Information Commissioner under section 93A of the FOI Act, specifically
paragraphs 1.13 - 1.17.

Your review rights

12                 If you are dissatisfied with my decision, you may apply
for internal review or Information Commissioner review of the decision. We
encourage you to seek internal review as a first step as it may provide a
more rapid resolution of your concerns.

Internal review

13                 Under section 54 of the FOI Act, you may apply in
writing to the AEC for an internal review of my decision. The internal
review application must be made within 30 days of the date of this letter.

14                 Where possible please attach reasons why you believe
review of the decision is necessary. The internal review will be carried
out by another officer within 30 days.

Information Commissioner review

15                 Under section 54L of the FOI Act, you may apply to the
Australian Information Commissioner to review my decision. An application
for review by the Information Commissioner must be made in writing within
60 days of the date of this letter, and be lodged in one of the following
ways:

Online:                             
[8]https://forms.business.gov.au/aba/oaic/f...

Email:                    [9][email address]

Post:                      GPO Box 52189, Sydney NSW 2001

In person:               Level 3, 175 Pitt Street, Sydney NSW

16                 More information about Information Commissioner review
is available on the Office of the Australian Information Commissioner
website. Go to [10]www.oaic.gov.au/freedom-of-information/foi-reviews.

Questions about this decision

17                 If you wish to discuss this decision, please contact
me. My details are set out below:

Email:                    [11][email address]

Fax:                       02 6293 7657

Post:                      Locked bag 4007, Canberra ACT 2601

Telephone:             02 6271 4528

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

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

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[12]Australian Electoral Commission logo [13]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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Things to do with this request

Anyone:
Australian Electoral Commission only: