Software by which Senate counts are conducted

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,

This request is in two parts. I am happy for you to consider the request as a single request as they are all closely related, or as multiple requests if that is preferable for you.

* Part 1: source code for counting software

I am seeking source code for the software used to conduct the count of votes for a Senate election.

This request includes scripts or interpreted code used within another piece of software (for example, T-SQL scripts, stored procedures etc).

This request excludes software used for data entry or for interpretation of those scripts but includes data validation software if that is distinct from data entry software.

This request may encompass more than one piece of software and I seek source code for each.

* Part 2: data specifications

I am seeking any documents which describe bespoke data formats used by any of the software sought in Part 1, either as input or output formats.

This request excludes any data formats which are human readable or for which published specifications are available (e.g. PDF).

For clarity, the types of documents I am seeking may include database table specifications, EBNF specifications for bespoke input data, column descriptors for CSV files, XML schemas or similar documents.

I am seeking a waiver of all associated access charges on the basis
that publication of these documents would be in the public
interest. In particular it would provide public confidence that the electronic count is conducted in accordance with the law.

Yours faithfully,

Michael Cordover

Link to this

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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Alex Sadleir left an annotation ()

Some (potentially out of date) information about the AEC Senate Count software entitled EasyCount is available on pages 24/25 of this 2003 committee submission http://www.aph.gov.au/parliamentary_busi...

The EasyCount system was independently verified in 2010 under this contract https://www.tenders.gov.au/?event=public...

The AEC website says the "Easycount Senate User Guide" is available under FOI. http://www.aec.gov.au/about_aec/Publicat...

Link to this

From: Owen Jones
Australian Electoral Commission


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For-Official-Use-Only

Dear Mr Cordover

I refer to your email of 4 October 2013 5:43 PM in which you request for
access to documents relating to source code and data specifications for
counting software under the [1]Freedom of Information Act 1982. I have
taken your request in two parts to be for:

1.           software used to conduct the count of votes for a Senate
election including scripts or interpreted code used within another piece
of software (for example, data validation  software that is not data entry
software, T-SQL scripts, stored procedures etc) but excluding software
used for data entry or for interpretation of those scripts; and

2.           documents that describe bespoke data formats used by any of
the software sought in Part 1, either as input or output formats database
table specifications, EBNF specifications for bespoke input data, column
descriptors for CSV files, XML schemas or similar documents excluding any
data formats which are human readable or for which published
specifications are available (e.g. PDF).

We received your request on 4 October 2013 and the 30 day statutory period
for processing your request commenced from the day after that date. You
should therefore expect a decision from us by 4 November 2013. 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.

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.

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

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. My contact details appear below
my signature block.

Yours sincerely

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal & Compliance Branch

Australian Electoral Commission

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

--------------------------------------------------------------------------

[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.

--------------------------------------------------------------------------

 

-----Original Message-----
From: Michael Cordover
[[5]mailto:[FOI #435 email]]
Sent: Friday, 4 October 2013 5:43 PM
To: INFO
Subject: Freedom of Information request - Software by which Senate counts
are conducted

 

     Dear Australian Electoral Commission,

    

     This request is in two parts. I am happy for you to consider the

     request as a single request as they are all closely related, or as

     multiple requests if that is preferable for you.

    

     * Part 1: source code for counting software

    

     I am seeking source code for the software used to conduct the count

     of votes for a Senate election.

    

     This request includes scripts or interpreted code used within

     another piece of software (for example, T-SQL scripts, stored

     procedures etc).

    

     This request excludes software used for data entry or for

     interpretation of those scripts but includes data validation

     software if that is distinct from data entry software.

    

     This request may encompass more than one piece of software and I

     seek source code for each.

    

     * Part 2: data specifications

    

     I am seeking any documents which describe bespoke data formats used

     by any of the software sought in Part 1, either as input or output

     formats.

    

     This request excludes any data formats which are human readable or

     for which published specifications are available (e.g. PDF).

    

     For clarity, the types of documents I am seeking may include

     database table specifications, EBNF specifications for bespoke

     input data, column descriptors for CSV files, XML schemas or

     similar documents.

    

     I am seeking a waiver of all associated access charges on the basis

     that publication of these documents would be in the public

     interest. In particular it would provide public confidence that the

     electronic count is conducted in accordance with the law.

    

     Yours faithfully,

    

     Michael Cordover

    

     -------------------------------------------------------------------

    

     Please use this email address for all replies to this request:

     [6][FOI #435 email]

    

     Is [7][AEC request email] the wrong address for Freedom of Information

     requests to Australian Electoral Commission? If so, please contact

     us using this form:

     [8]http://www.righttoknow.org.au/help/contact

    

     Write your response as plain text. Only send PDF documents as a

     last resort. Government guidelines make it clear that PDF is not an

     acceptable format for you to use in the delivery of government

     information.

     [9]http://www.righttoknow.org.au/help/offic...

    

     Disclaimer: This message and any reply that you make will be

     published on the internet. Our privacy and copyright policies:

     [10]http://www.righttoknow.org.au/help/offic...

    

     If you find this service useful as an FOI officer, please ask your

     web manager to link to us from your organisation's FOI page.

    

     

     -------------------------------------------------------------------

 

For-Official-Use-Only

For-Official-Use-Only

 

DISCLAIMER:

If you have received this transmission in error please notify us
immediately by return email and delete all copies. If this email or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the email or attachments.

 

References

Visible links
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3. http://emailfooter.aec.gov.au/email/
4. http://emailfooter.aec.gov.au/email-promo/
5. mailto:[FOI #435 email]
6. mailto:[FOI #435 email]
7. mailto:[AEC request email]
8. http://www.righttoknow.org.au/help/contact
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From: Owen Jones
Australian Electoral Commission


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Attachment LS4849 Letter to M Cordover notifying decision 20131104.pdf
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For-Official-Use-Only

Dear Mr Cordover

I refer to your email of 4 October 2013 5:43 PM in which you made a
request for for counting software under the [1]Freedom of Information Act
1982 and my email of 9 October 2013 9:53 AM acknowledging your request.

I enclose a scanned version of the letter to you dated 4 November 2011
from Paul Pirani, Chief Legal Officer of the Australian Electoral
Commission notifying you of his decision about your request.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal & Compliance Branch

Australian Electoral Commission

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

--------------------------------------------------------------------------

[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.

--------------------------------------------------------------------------

 

 

For-Official-Use-Only

From: Owen Jones
Sent: Wednesday, 9 October 2013 9:53 AM
To: '[FOI #435 email]'
Cc: Paul Pirani
Subject: LS4849 Your FOI Request [DLM=For-Official-Use-Only]

 

For-Official-Use-Only

Dear Mr Cordover

I refer to your email of 4 October 2013 5:43 PM in which you request for
access to documents relating to source code and data specifications for
counting software under the [4]Freedom of Information Act 1982. I have
taken your request in two parts to be for:

1.           software used to conduct the count of votes for a Senate
election including scripts or interpreted code used within another piece
of software (for example, data validation  software that is not data entry
software, T-SQL scripts, stored procedures etc) but excluding software
used for data entry or for interpretation of those scripts; and

2.           documents that describe bespoke data formats used by any of
the software sought in Part 1, either as input or output formats database
table specifications, EBNF specifications for bespoke input data, column
descriptors for CSV files, XML schemas or similar documents excluding any
data formats which are human readable or for which published
specifications are available (e.g. PDF).

We received your request on 4 October 2013 and the 30 day statutory period
for processing your request commenced from the day after that date. You
should therefore expect a decision from us by 4 November 2013. 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.

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.

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

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. My contact details appear below
my signature block.

Yours sincerely

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal & Compliance Branch

Australian Electoral Commission

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

--------------------------------------------------------------------------

[6]Australian Electoral Commission logo [7]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.

--------------------------------------------------------------------------

 

-----Original Message-----
From: Michael Cordover
[[8]mailto:[FOI #435 email]]
Sent: Friday, 4 October 2013 5:43 PM
To: INFO
Subject: Freedom of Information request - Software by which Senate counts
are conducted

 

     Dear Australian Electoral Commission,

    

     This request is in two parts. I am happy for you to consider the

     request as a single request as they are all closely related, or as

     multiple requests if that is preferable for you.

    

     * Part 1: source code for counting software

    

     I am seeking source code for the software used to conduct the count

     of votes for a Senate election.

    

     This request includes scripts or interpreted code used within

     another piece of software (for example, T-SQL scripts, stored

     procedures etc).

    

     This request excludes software used for data entry or for

     interpretation of those scripts but includes data validation

     software if that is distinct from data entry software.

    

     This request may encompass more than one piece of software and I

     seek source code for each.

    

     * Part 2: data specifications

    

     I am seeking any documents which describe bespoke data formats used

     by any of the software sought in Part 1, either as input or output

     formats.

    

     This request excludes any data formats which are human readable or

     for which published specifications are available (e.g. PDF).

    

     For clarity, the types of documents I am seeking may include

     database table specifications, EBNF specifications for bespoke

     input data, column descriptors for CSV files, XML schemas or

     similar documents.

    

     I am seeking a waiver of all associated access charges on the basis

     that publication of these documents would be in the public

     interest. In particular it would provide public confidence that the

     electronic count is conducted in accordance with the law.

    

     Yours faithfully,

    

     Michael Cordover

    

     -------------------------------------------------------------------

    

     Please use this email address for all replies to this request:

     [9][FOI #435 email]

    

     Is [10][AEC request email] the wrong address for Freedom of Information

     requests to Australian Electoral Commission? If so, please contact

     us using this form:

     [11]http://www.righttoknow.org.au/help/contact

    

     Write your response as plain text. Only send PDF documents as a

     last resort. Government guidelines make it clear that PDF is not an

     acceptable format for you to use in the delivery of government

     information.

     [12]http://www.righttoknow.org.au/help/offic...

    

     Disclaimer: This message and any reply that you make will be

     published on the internet. Our privacy and copyright policies:

     [13]http://www.righttoknow.org.au/help/offic...

    

     If you find this service useful as an FOI officer, please ask your

     web manager to link to us from your organisation's FOI page.

    

     

     -------------------------------------------------------------------

 

For-Official-Use-Only

For-Official-Use-Only

 

DISCLAIMER:

If you have received this transmission in error please notify us
immediately by return email and delete all copies. If this email or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the email or attachments.

 

References

Visible links
1. http://www.comlaw.gov.au/Series/C2004A02...
2. http://emailfooter.aec.gov.au/email/
3. http://emailfooter.aec.gov.au/email-promo/
4. http://www.comlaw.gov.au/Series/C2004A02...
5. http://www.aec.gov.au/About_AEC/foi/foi....
6. http://emailfooter.aec.gov.au/email/
7. http://emailfooter.aec.gov.au/email-promo/
8. mailto:[FOI #435 email]
9. mailto:[FOI #435 email]
10. mailto:[AEC request email]
11. http://www.righttoknow.org.au/help/contact
12. http://www.righttoknow.org.au/help/offic...
13. http://www.righttoknow.org.au/help/offic...

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Henare Degan left an annotation ()

This request was mentioned in this article: http://www.theregister.co.uk/2013/11/07/...

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From: Michael Cordover

Delivered

Dear Australian Electoral Commission,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Australian Electoral Commission's handling of my FOI request 'Software by which Senate counts are conducted'.

A full history of my FOI request and all correspondence is available on the internet at this address: https://www.righttoknow.org.au/request/s...

I also recognise that things are quite busy at the AEC at the moment. I am happy for this to be taken to have been received as late as 3 December (30 days from when the original decision was made) and therefore not to receive a response until early January. However I am keen not to prejudice any external review rights that might arise and I consent to the increased time on that basis.

Decisions to be reviewed
------------------------

I refer to the statement of reasons for refusing access given by Paul Pirani dated 4 November 2013 (received 5 November 2013). There are three decisions contained in this letter for which I seek review:

1. The decision not to disclose the schedule of documents (reasons at [24])

2. The decision that all of the documents are exempt under s 47(1)(a) as trade secrets (reasons at [7])

3. The decision that all of the documents are exempt under s 47(1)(b) as containing commercially valuable information, the value of which could reasonably be expected to be destroyed or diminished by disclosure (reasons at [7])

As they are closely related, I will deal with the second and third decisions together.

Matters of policy
-----------------

Before particularising the reasons I believe the decision was wrong at law, I note the following matters which suggest to me that the AEC should release the documents I request as a matter of policy.

The AEC s 9 FOI statement (http://www.aec.gov.au/about_aec/Publicat... provides that the Easycount Senate User Guide is available under FOI and does not indicate that it would be exempt or partially exempt.

The AEC indicated in its supplementary submission (number 181, dated 7 February 2003) to the JSCEM inquiry into the 2001 Federal Election at [8.12] that:

"In the interests of transparency, and because there are no security implications, the code [for EasyCount] will be available for review."

As that statement recognises, confidence in the electoral system can only exist where the system is transparent. The AEC does an exceptionally good job and I do not suggest any improper motive for refusing to disclose this material. However, despite s 273A(5) of the CEA, to withhold this information is inconsistent with the the general openness of the AEC's dealings.

I recognise, of course, that those policy reasons are not sufficient to suggest the original decision be varied and that there is no public interest test in the s 47 exemptions under the FOI Act. For that reason, other than as disclosed below, I do not rely on those policy reasons in seeking a review of the decision.

Schedule of documents
---------------------

The reasons at [24] state that disclosure of the schedule would "give general guidance to a person on how to uncover the trade secret protecting the EasyCount Software."

This is predicated on there being a protected trade secret in the EasyCount software. I will explain below why I do not believe that to be the case.

However, even if there is a trade secret which makes the software source code exempt, I do not believe the list of documents also attracts that exemption.

Mr Pirani relies on an exemption under s 26(2) of the FOI Act. This exemption applies where the schedule would be an exempt document. Given the wording at [24], the reasons clearly imply exemption is claimed under s 47(1)(a) as the schedule would disclose a trade secret. However s 47(1)(a) requires disclosure of a trade secret; that it would "provide guidance ... on how to uncover [a] trade secret" is not sufficient. This type of material is perhaps more analogous to "know how" which is not protected.

To be protected the schedule must be itself of commercial value and confidential in nature. At most the schedule discloses the functionality and structure of the EasyCount software and its documentation. It does not disclose the way in which this functionality is implemented. This amounts merely to a statement of purpose, not to information which is of the type which receives the protection of confidentiality.

Furthermore that meta-data is already the subject of disclosure by the AEC. Manuals for Senate and fee-for-service election editions of EasyCount are listed on http://www.aec.gov.au/about_aec/Publicat... as being available by FOI; this at least discloses their existence in the same way as the schedule would. Significant details about the structure and functionality of EasyCount are in the public domain, having been disclosed in the AEC's supplementary submission dated 7 Feb 2003 to the JSCEM enquiry into the 2001 election (submission no 181).

Even if some elements of the schedule would be exempt, certainly not all of the schedule is exempt. The names and nature of some documents have already been published. In those circumstances the AEC should provide at least an edited copy of the schedule under s 22 of the FOI Act.

Trade secrets & commercially valuable information
-------------------------------------------------

I accept the definition of trade secret given in DEWRSB v Staff Development and Training Company (2001) 114 FCR 301 and reiterated in the OAIC Guidelines on FOI required to be taken into account by s 93A of the FOI Act.

To be a trade secret, the information must be able to be put to advantageous use by someone involved in an identifiable trade (DEWRSB at [43]). The decision identified two areas of competition at [18]: industrial elections (under the Fair Work (Registered Organisations) Act) and fee for service elections.

My request was not for documents relating to those elections. My request was solely for documents relating to the senate count. Consistent with the reasons, this is not subject to any degree of competition.

The decision relies on the claim at [14] that the code base for EasyCount is shared between editions to such an extent that the fee for service versions are inseparable from the senate count versions. However, at [18](c) it is made clear that both industrial and fee for service elections have customised versions of EasyCount.

Furthermore the different counting mechanisms must form separate subroutines or functions within the computer code (if they did not, the counting method would be the same). As such those parts of the code are necessarily separable.

The decision clearly makes no attempt to provide an edited version of the documents under s 22 of the FOI Act. On the basis that the senate count functionality is separable, this is a clear error in law.

In addition, however, I contend that there is no trade secret even in the versions of EasyCount used for fee for service and industrial elections. In essence my position is that this material has no commercial value, or that the commercial value would not be diminished by its publication, or that the any advantage the AEC holds would not be diminished by publication. This is sufficient to deal with both claimed exemptions under s 47 of the FOI Act.

To explain my position it is necessary to differentiate the source code of a program (the instructions in a particular programming language) and the algorithm used by the program (the generic description of the way in which a result is achieved). Disclosure of the source code results in disclosure of the algorithm. However algorithms can be implemented in other languages once known.

As an example, the bubble sort algorithm is a well-known way of sorting a list of data. The algorithm is a way of doing things (an idea) which can be implemented in a range of programming languages.

The source code of computer programs is protected by the Copyright Act. The disclosure of source code under the FOI Act does not limit the applicability of copyright. Using or making copies of the source code, or creating an adaptation derived from the source code, would be an unlawful infringement of copyright.

On that basis no competitor could lawfully use any source code released under the FOI Act. For that reason the commercial value of the source code would be preserved and the advantage the AEC holds would not be diminished. For that reason the source code itself cannot constitute a trade secret or attract the protection of s 47(1)(b).

Algorithms do not attract the protection of copyright. Therefore an algorithm could attract the protection of s 47(1). To the extent that these algorithms are trade secrets (or commercially valuable) the release of source code may result in their disclosure and a loss of commercial advantage.

In order for these to be capable of being trade secrets they must be confidential. The algorithms used by EasyCount are not confidential. The algorithms used for various forms of industrial elections are all specified at http://www.aec.gov.au/About_AEC/AEC_Serv... with sufficient detail to re-implement them. The Senate and House of Representatives electoral count algorithms are described at http://www.aec.gov.au/Voting/counting/in... and in the Commonwealth Electoral Act.

Any system implemented in EasyCount which is not so described is likely described algorithmically elsewhere.

Any system algorithmically described could be reproduced easily by any programmer. In accordance with Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2007] FCA 2054 at [77]-[80] this is a relevant consideration to whether the material is capable of being a trade secret. Where it is easily reproduced it is not capable of being a trade secret. This operates in addition to the fact that the algorithms are not confidential.

In particular, because the algorithms are already known, their disclosure by the AEC cannot result in a loss of commercial value. They have no commercial value because they are not secret.

The only algorithms which could constitute trade secrets are those which count votes in a unique way that has never otherwise been publicly disclosed. I accept that such an algorithm could constitute a trade secret to the extent it was used in industrial or fee-for-service elections. However, if the counting method is broadly known, for example having been disclosed to a wide range of electors, this would diminish the degree of protection available.

Identical arguments apply to the disclosure of information about data structures representing votes and documentation describing the operation of the software.

To the extent that any of this argument fails, relevant portions of the documents should be excluded and an edited version of the requested documents provided under s 22 of the FOI Act.

Should you wish for any clarification or to discuss this please do not hesitate to contact me by reply email.

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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Mark R. Diamond left an annotation ()

Mr Cordover, thank you for using Right to Know to make your request and, more particularly, for using Right to Know to apply for an internal review.

I have been unable to find any other application for internal review (either on Right to Know or elsewhere) that shows so clearly how an FOI applicant might address issues that are raised by an adverse decision from an agency. I learned a great deal from the approach you have taken of distinguishing matters of law from matters of policy. I also found your inclusion of relevant case law to be instructive.

I doubt that your purpose was to provide a tutorial for readers like me; nonetheless, you have done exactly that. For other readers who are interested, the case of Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2007] FCA 2054 is accessible through the Australian Legal Information Institute website (AustLII) at http://www.austlii.edu.au/au/cases/cth/F...

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Michael Cordover left an annotation ()

Spoke to Owen Jones by telephone today (incidental to an unrelated matter) who indicated this request was under review by an alternate decision maker. He further indicated that he did not anticipate any issue with a response being provided within the statutory time frame.

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From: Owen Jones
Australian Electoral Commission


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Attachment LS4883 Letter to M Cordover notifying decision 20131209.pdf
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For-Official-Use-Only

Dear Mr Cordover

I refer to your email of 8 November 2013 3:52 PM requesting internal
review of the decision by Mr Paul Pirani, Chief Legal Officer made 4
November 2013 to refuse your FOI Request No. LS4849 relating to the source
code of the EasyCount Software.

I enclose a scanned version of the letter dated 9 December 2013 from Tom
Rogers, Deputy Electoral Commissioner, notifying you of the outcome of his
review of your FOI Request Nol LS4849.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal & Compliance Branch

Australian Electoral Commission

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

--------------------------------------------------------------------------

[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.

--------------------------------------------------------------------------

 

 

For-Official-Use-Only

From: INFO
Sent: Monday, 11 November 2013 10:03 AM
To: Legal Services - NO
Subject: FW: Internal review of Freedom of Information request - Software
by which Senate counts are conducted [DLM=For-Official-Use-Only]
Importance: High

 

For-Official-Use-Only

Legal Services,

 

Michael Cordover has replied re his FOI request.  LS4849 FOI Request.

 

Sally Bolton | Project Officer

Enrolment & Internal Communication Section | Education & Communications
Branch

Australian Electoral Commission

T: (02) 6271 4404 | F: (02) 6215 9999

--------------------------------------------------------------------------

[3]Australian Electoral Commission logo [4]Australian Electoral Commission

 

-----Original Message-----
From: Michael Cordover
[[5]mailto:[FOI #435 email]]
Sent: Friday, 8 November 2013 3:52 PM
To: INFO
Subject: Internal review of Freedom of Information request - Software by
which Senate counts are conducted

 

Dear Australian Electoral Commission,

 

Please pass this on to the person who conducts Freedom of Information
reviews.

 

I am writing to request an internal review of Australian Electoral
Commission's handling of my FOI request 'Software by which Senate counts
are conducted'.

 

A full history of my FOI request and all correspondence is available on
the internet at this address:
[6]https://www.righttoknow.org.au/request/s...

 

I also recognise that things are quite busy at the AEC at the moment. I am
happy for this to be taken to have been received as  late as 3 December
(30 days from when the original decision was made) and therefore not to
receive a response until early January. However I am keen not to prejudice
any external review rights that might arise and I consent to the increased
time on that basis.

 

Decisions to be reviewed

------------------------

 

I refer to the statement of reasons for refusing access given by Paul
Pirani dated 4 November 2013 (received 5 November 2013). There are three
decisions contained in this letter for which I seek review:

 

1. The decision not to disclose the schedule of documents (reasons at
[24])

 

2. The decision that all of the documents are exempt under s 47(1)(a) as
trade secrets (reasons at [7])

 

3. The decision that all of the documents are exempt under s 47(1)(b) as
containing commercially valuable information, the value of which could
reasonably be expected to be destroyed or diminished by disclosure
(reasons at [7])

 

As they are closely related, I will deal with the second and third
decisions together.

 

Matters of policy

-----------------

 

Before particularising the reasons I believe the decision was wrong at
law, I note the following matters which suggest to me that the AEC should
release the documents I request as a matter of policy.

 

The AEC s 9 FOI statement
([7]http://www.aec.gov.au/about_aec/Publicat... provides that
the Easycount Senate User Guide is available under FOI and does not
indicate that it would be exempt or partially exempt.

 

The AEC indicated in its supplementary submission (number 181, dated 7
February 2003) to the JSCEM inquiry into the 2001 Federal Election at
[8.12] that:

 

"In the interests of transparency, and because there are no security
implications, the code [for EasyCount] will be available for review."

 

As that statement recognises, confidence in the electoral system can only
exist where the system is transparent. The AEC does an exceptionally good
job and I do not suggest any improper motive for refusing to disclose this
material. However, despite s 273A(5) of the CEA, to withhold this
information is inconsistent with the the general openness of the AEC's
dealings.

 

I recognise, of course, that those policy reasons are not sufficient to
suggest the original decision be varied and that there is no public
interest test in the s 47 exemptions under the FOI Act. For that reason,
other than as disclosed below, I do not rely on those policy reasons in
seeking a review of the decision.

 

Schedule of documents

---------------------

 

The reasons at [24] state that disclosure of the schedule would "give
general guidance to a person on how to uncover the trade secret protecting
the EasyCount Software."

 

This is predicated on there being a protected trade secret in the
EasyCount software. I will explain below why I do not believe that to be
the case.

 

However, even if there is a trade secret which makes the software source
code exempt, I do not believe the list of documents also attracts that
exemption.

 

Mr Pirani relies on an exemption under s 26(2) of the FOI Act. This
exemption applies where the schedule would be an exempt document. Given
the wording at [24], the reasons clearly imply exemption is claimed under
s 47(1)(a) as the schedule would disclose a trade secret. However s
47(1)(a) requires disclosure of a trade secret; that it would "provide
guidance ... on how to uncover [a] trade secret" is not sufficient. This
type of material is perhaps more analogous to "know how" which is not
protected.

 

To be protected the schedule must be itself of commercial value and
confidential in nature. At most the schedule discloses the functionality
and structure of the EasyCount software and its documentation. It does not
disclose the way in which this functionality is implemented. This amounts
merely to a statement of purpose, not to information which is of the type
which receives the protection of confidentiality.

 

Furthermore that meta-data is already the subject of disclosure by the
AEC. Manuals for Senate and fee-for-service election editions of EasyCount
are listed on [8]http://www.aec.gov.au/about_aec/Publicat... as
being available by FOI; this at least discloses their existence in the
same way as the schedule would. Significant details about the structure
and functionality of EasyCount are in the public domain, having been
disclosed in the AEC's supplementary submission dated 7 Feb 2003 to the
JSCEM enquiry into the 2001 election (submission no 181).

 

Even if some elements of the schedule would be exempt, certainly not all
of the schedule is exempt. The names and nature of some documents have
already been published. In those circumstances the AEC should provide at
least an edited copy of the schedule under s 22 of the FOI Act.

 

Trade secrets & commercially valuable information

-------------------------------------------------

 

I accept the definition of trade secret given in DEWRSB v Staff
Development and Training Company (2001) 114 FCR 301 and reiterated in the
OAIC Guidelines on FOI required to be taken into account by s 93A of the
FOI Act.

 

To be a trade secret, the information must be able to be put to
advantageous use by someone involved in an identifiable trade (DEWRSB at
[43]). The decision identified two areas of competition at [18]:
industrial elections (under the Fair Work (Registered Organisations) Act)
and fee for service elections.

 

My request was not for documents relating to those elections. My request
was solely for documents relating to the senate count. Consistent with the
reasons, this is not subject to any degree of competition.

 

The decision relies on the claim at [14] that the code base for EasyCount
is shared between editions to such an extent that the fee for service
versions are inseparable from the senate count versions. However, at
[18](c) it is made clear that both industrial and fee for service
elections have customised versions of EasyCount.

 

Furthermore the different counting mechanisms must form separate
subroutines or functions within the computer code (if they did not, the
counting method would be the same). As such those parts of the code are
necessarily separable.

 

The decision clearly makes no attempt to provide an edited version of the
documents under s 22 of the FOI Act. On the basis that the senate count
functionality is separable, this is a clear error in law.

 

In addition, however, I contend that there is no trade secret even in the
versions of EasyCount used for fee for service and industrial elections.
In essence my position is that this material has no commercial value, or
that the commercial value would not be diminished by its publication, or
that the any advantage the AEC holds would not be diminished by
publication. This is sufficient to deal with both claimed exemptions under
s 47 of the FOI Act.

 

To explain my position it is necessary to differentiate the source code of
a program (the instructions in a particular programming language) and the
algorithm used by the program (the generic description of the way in which
a result is achieved). Disclosure of the source code results in disclosure
of the algorithm. However algorithms can be implemented in other languages
once known.

 

As an example, the bubble sort algorithm is a well-known way of sorting a
list of data. The algorithm is a way of doing things (an idea) which can
be implemented in a range of programming languages.

 

The source code of computer programs is protected by the Copyright Act.
The disclosure of source code under the FOI Act does not limit the
applicability of copyright. Using or making copies of the source code, or
creating an adaptation derived from the source code, would be an unlawful
infringement of copyright.

 

On that basis no competitor could lawfully use any source code released
under the FOI Act. For that reason the commercial value of the source code
would be preserved and the advantage the AEC holds would not be
diminished. For that reason the source code itself cannot constitute a
trade secret or attract the protection of s 47(1)(b).

 

Algorithms do not attract the protection of copyright. Therefore an
algorithm could attract the protection of s 47(1). To the extent that
these algorithms are trade secrets (or commercially valuable) the release
of source code may result in their disclosure and a loss of commercial
advantage.

 

In order for these to be capable of being trade secrets they must be
confidential. The algorithms used by EasyCount are not confidential. The
algorithms used for various forms of industrial elections are all
specified at
[9]http://www.aec.gov.au/About_AEC/AEC_Serv...
with sufficient detail to re-implement them. The Senate and House of
Representatives electoral count algorithms are described at
[10]http://www.aec.gov.au/Voting/counting/in... and in the
Commonwealth Electoral Act.

 

Any system implemented in EasyCount which is not so described is likely
described algorithmically elsewhere.

 

Any system algorithmically described could be reproduced easily by any
programmer. In accordance with Dais Studio Pty Ltd v Bullet Creative Pty
Ltd [2007] FCA 2054 at [77]-[80] this is a relevant consideration to
whether the material is capable of being a trade secret. Where it is
easily reproduced it is not capable of being a trade secret. This operates
in addition to the fact that the algorithms are not confidential.

 

In particular, because the algorithms are already known, their disclosure
by the AEC cannot result in a loss of commercial value. They have no
commercial value because they are not secret.

 

The only algorithms which could constitute trade secrets are those which
count votes in a unique way that has never otherwise been publicly
disclosed. I accept that such an algorithm could constitute a trade secret
to the extent it was used in industrial or fee-for-service elections.
However, if the counting method is broadly known, for example having been
disclosed to a wide range of electors, this would diminish the degree of
protection available.

 

Identical arguments apply to the disclosure of information about data
structures representing votes and documentation describing the operation
of the software.

 

To the extent that any of this argument fails, relevant portions of the
documents should be excluded and an edited version of the requested
documents provided under s 22 of the FOI Act.

 

Should you wish for any clarification or to discuss this please do not
hesitate to contact me by reply email.

 

Yours faithfully,

 

Michael Cordover

 

 

 

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Link to this

From: Michael Cordover

Delivered

Dear Owen,

Thank you for this response.

Would it be possible to get unsigned copies of each letter as a word document or PDF, so I can copy and paste from them?

If you'd prefer to send those copies to a private email address please let me know.

Many thanks

Michael Cordover

Link to this

From: Owen Jones
Australian Electoral Commission


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Sensitive:Legal

Dear Mr Cordover

I refer to your email of 10 December 2013 5:06 PM about this matter. I
note that you have received the decision of the Deputy Electoral
Commissioner in relation to the internal review of the decision to refuse
your FOI Request No. LS4849. That completes the AEC’s obligations under
the Freedom of Information Act 1982 in relation to your request.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal & Compliance Branch

Australian Electoral Commission

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

--------------------------------------------------------------------------

[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.

--------------------------------------------------------------------------

 

-----Original Message-----
From: Michael Cordover
[mailto:[FOI #435 email]]
Sent: Tuesday, 10 December 2013 5:06 PM
To: Owen Jones
Subject: Re: LS4883 Your request for internal review of the refusal of
your FOI Request No. LS4849 [DLM=For-Official-Use-Only]

 

Dear Owen,

 

Thank you for this response.

 

Would it be possible to get unsigned copies of each letter as a word
document or PDF, so I can copy and paste from them?

 

If you'd prefer to send those copies to a private email address please let
me know.

 

Many thanks

 

Michael Cordover

 

-----Original Message-----

 

For-Official-Use-Only

 

Dear Mr Cordover

 

I refer to your email of 8 November 2013 3:52 PM requesting internal

review of the decision by Mr Paul Pirani, Chief Legal Officer made 4

November 2013 to refuse your FOI Request No. LS4849 relating to the source

code of the EasyCount Software.

 

I enclose a scanned version of the letter dated 9 December 2013 from Tom

Rogers, Deputy Electoral Commissioner, notifying you of the outcome of his

review of your FOI Request Nol LS4849.

 

Regards

 

Owen Jones

 

Owen Jones | Senior Lawyer

 

Legal Services Section | Legal & Compliance Branch

 

Australian Electoral Commission

 

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

 

--------------------------------------------------------------------------

 

[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.

 

--------------------------------------------------------------------------

 

 

 

 

 

For-Official-Use-Only

 

From: INFO

Sent: Monday, 11 November 2013 10:03 AM

To: Legal Services - NO

Subject: FW: Internal review of Freedom of Information request - Software

by which Senate counts are conducted [DLM=For-Official-Use-Only]

Importance: High

 

 

 

For-Official-Use-Only

 

Legal Services,

 

 

 

Michael Cordover has replied re his FOI request.  LS4849 FOI Request.

 

 

 

Sally Bolton | Project Officer

 

Enrolment & Internal Communication Section | Education & Communications

Branch

 

Australian Electoral Commission

 

T: (02) 6271 4404 | F: (02) 6215 9999

 

--------------------------------------------------------------------------

 

[3]Australian Electoral Commission logo [4]Australian Electoral Commission

 

 

 

-------------------------------------------------------------------

Please use this email address for all replies to this request:

[FOI #435 email]

 

Write your response as plain text. Only send PDF documents as a last
resort. Government guidelines make it clear that PDF is not an acceptable
format for you to use in the delivery of government information.

https://www.righttoknow.org.au/help/offi...

 

Disclaimer: This message and any reply that you make will be published on
the internet. Our privacy and copyright policies:

https://www.righttoknow.org.au/help/offi...

 

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

 

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Sensitive:Legal

 

DISCLAIMER:

If you have received this transmission in error please notify us
immediately by return email and delete all copies. If this email or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the email or attachments.

 

References

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Link to this

Alex Sadleir left an annotation ()

However AEC's obligations under the Disability Discrimination Act as interpreted by AGIMO that "Agencies must provide other alternative formats upon request" would still apply http://webguide.gov.au/accessibility-usa...

As they offer on their website, "If there is data that you require and it is in a format that you cannot access, or if you experience any other accessibility difficulties, please contact us." http://www.aec.gov.au/footer/accessibili...

Link to this

From: Michael Cordover

Delivered

Dear Owen,

I agree that you have no further obligations under the FOI Act in relation to this request.

I was hoping, however, that as a matter of courtesy you might provide me with the letters in a more usable format.

I note that I could perhaps make another FOI request for those response letters in their settled but unsigned form. If I were to request access in the form of a digital copy of the Microsoft Word files I suspect s 20(2) would then require they be provided to me in that form.

I will not make such a request, however, and I will not push this matter further.

Thank you again for your assistance with my requests.

Michael Cordover

Link to this

Matthew Landauer left an annotation ()

If the officer isn't courteous and helpful by not providing the document in the alternate format requested I think I will make an FOI request for that document.

Let's hope Owen Jones does the right thing and not waste everyone's time and tax payers' dollars.

Link to this

Matthew Landauer left an annotation ()

No doubt pointless follow up request for the original document https://www.righttoknow.org.au/request/m...

Link to this

Michael Cordover left an annotation ()

This matter went for IC review on 5 Feb 2014.

Their process is to begin with an informal preliminary assessment and negotiation process. They are seeking information from the AEC and will be back to me in 6-8 weeks from today.

Link to this

Michael Cordover left an annotation ()

I've set up a microsite to host all the documentation associated with this request as it progresses through IC review. All the latest details can be found at http://easycount.mjec.net/

Link to this

Things to do with this request

Anyone:
Australian Electoral Commission only: