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Dear Brenden J Parker

I am writing to in relation to your email of 8 July 2014 11:16 AM in which
you make a purported request under the [1]Freedom of Information Act 1982
for access to certain open source code. Your purported FOI Request has
been referred to me for reply on behalf of the Australian Electoral
Commission (‘AEC’).

My purpose in writing is to explain why your purported request does not
meet the requirements of Part III of the FOI Act for the making of a valid
request under that part (an ‘FOI Request’) and to give guidance about how
to make a valid FOI Request.

First, the terms of your purported request seeks documents that are
outside the scope of Part III of the FOI Act. This is so because open
source code is material maintained for reference purposes that is
otherwise publicly available. This follows from the application of
paragraph (d) of the definition of ‘document’ in subsection 4(1) of the
FOI Act, which definition is as follows:

document includes:

(a)      any of, or any part of any of, the following things:

(i)       any paper or other material on which there is writing;

(ii)      a map, plan, drawing or photograph;

(iii)     any paper or other material on which there are marks, figures,
symbols or perforations having a meaning for persons qualified to
interpret them;

(iv)     any article or material from which sounds, images or writings are
capable of being reproduced with or without the aid of any other article
or device;

(v)      any article on which information has been stored or recorded,
either mechanically or electronically;

(vi)     any other record of information; or

(b)     any copy, reproduction or duplicate of such a thing; or

(c)      any part of such a copy, reproduction or duplicate;

but does not include:

(d)     material maintained for reference purposes that is otherwise
publicly available; or

(e)      Cabinet notebooks.

You will see that paragraph (d) of the definition of ‘document’ in
subsection 4(1) falls within the carve out provision in that definition
with the effect that material falling with paragraph (d) of that
definition is not within the scope of Part III of the FOI Act.

Second, you have not complied with your obligations under Section 15(2) of
the FOI Act.

Section 15(2) of the FOI Act provides:

15  Requests for access

Requirements for request

(2)      The request must:

(a)      be in writing; and

(aa)    state that the request is an application for the purposes of this
Act; and

(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

(c)      give details of how notices under this Act may be sent to the
applicant (for example, by providing an electronic address to which
notices may be sent by electronic communication).

You need to give further thought to the specification of what you want for
the purposes of paragraph 15(2)(b) of the FOI Act.

To assist you in this regard, I direct your attention to the description
of counting Senate votes given on the AEC’s webpage [2]Counting the votes

Central Senate Scrutiny (CSS) Centre

Votes marked BTL that are received at the CSS centre will be data entered
into an automated scrutiny system called EasyCount Senate (ECS). Each
ballot paper will be entered twice by AEC data entry operators as a
quality assurance check. The initial data entry and the second entry (for
verification) will be undertaken by different data entry operators.

During this process, the AEC system is able to detect whether there is a
discrepancy in the data entered by the two operators or whether a vote is
informal. Discrepancies in the data entry are resolved immediately.

EasyCount Senate is a subset of the AEC’s proprietary software known as
EasyCount and its source code is a trade secret. (It is also subject to a
registered trade mark.) There is an application pending in the
Administrative Appeals Tribunal (the ‘AAT’) (No. No. 2014/3361 Hobart
Registry) to review a decision by the AEC to refuse access to the
EasyCount software source code for this reason.

If you are minded to also request access to the EasyCount source code, the
AEC will exercise its right under subsection 24(2) of the FOI Act to join
your request to the matter pending in the AAT.

Subsection 24(2) of the FOI Act provides:

24  Power to refuse request—diversion of resources etc.

(2)      For the purposes of this section, the agency or Minister may
treat 2 or more requests as a single request if the agency or Minister is
satisfied that:

(a)      the requests relate to the same document or documents; or

(b)      the requests relate to documents, the subject matter of which is
substantially the same.

The purpose in joining a similar FOI Request to the FOI Request pending in
the AAT is to avoid the AEC having to substantially and unreasonably
divert its resources from its other operations in dealing with the same
matter twice (or more times).

Please do not hesitate to contact me (my contact details are below) if you
require further assistance to make a valid FOI Request. When submitting
the FOI Request, please use the [3][AEC request email] mailbox so that it is
properly receipted by the AEC.

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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