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Monday, July 07, 2014

AEC way too quick in reaching for the 'vexatious' FOI button.

Cordover self portrait
Lots of interest on Twitter (@mjec) last week about the Australian Electoral Commission and Michael Cordover's Freedom of Information application for the software used to count votes during Senate elections. 

Particularly that two requests and an application for internal review of the decision on the first of those, and a request for Information Commissioner review by Cordover were enough to send the AEC off to the Australian Information Commissioner seeking a declaration that Cordover was a vexatious applicant.

The AEC's reasoning is puzzling, and the claim seems more like another in the all too frequent gaming the system stakes. 

But it brings to light the fact that it isn't necessary to use the FOI act repeatedly to run the risk of being sent to the FOI sin bin.

While repeated use and abuse of process is one ground, the commissioner can but has never exercised the power, make a declaration where a particular access action involves, or would involve, an abuse of the process, or would be manifestly unreasonable. None of this applies in Cordover's case, a genuine attempt to find out more about the way votes are counted in an agency that is central to the exercise of our democratic right.

The AEC's claim however is a telling example of what an agency could do if it had power itself to deal with an application it regarded as vexatious. Exactly what the Hawke report (90-92) sitting in an in-tray in the Attorney General's Department for 11 months now, recommends: an amendment to permit an agency to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant’s ability to make other requests or remake the request that was not accepted. The applicant could appeal against such a decision to the OAIC.

Back to the Cordover matter- and by the way follow me on Twitter:@FOIguru
The AEC had knocked back Cordover's request on 'trade secrets' and 'information of commercial value' grounds (s 47) and decided not to provide a schedule of the 56 relevant documents held as this would "necessitate disclosing exempt material by reason it would give general guidance to a person on how to uncover the trade secret protecting the EasyCount software."

Cordover sought Information Commissioner review of the knock back for the software and related documents but mindful that a decision not to provide a schedule to accompany a decision letter is not itself an "access refusal decision" subject to review, made a separate application to the AEC for the schedule.

The AEC refused this application on the grounds that making a decision on release of the schedule would require a decision whether the reference in the schedule to each document was exempt information. This would involve substantial and unreasonable diversion of AEC resources from its other operations.

Then in the bit that had the twittershere buzzing Chief Legal Officer Paul Pirani added
"I will ask the Australian Information  Commissioner to make a declaration under subsection 89K(1) of the FOI act declaring you to be a vexatious applicant."
Pirani also asserted also that a separate application to the AEC by Michael Landauer of Open Australia which runs Righttoknow, for a machine readable copy of a letter connected with the Cordover application showed collusion between them, "was intended to harass the AEC about its refusal to comply with your request" and will also be brought to the attention of the Information Commissioner.

Pirani's letter isn't clear about the grounds for seeking the vexatious applicant declaration. He quotes twice from OAIC Guidelines including this:
"12.2 Before declaring a person to be a vexatious applicant the Information Commissioner must be satisfied that (a) the person has repeatedly engaged in access actions that involve an abuse of process (b) the person is engaging in a particular access action that would involve an abuse of process,or (c) a particular access action by the person would be manifestly unreasonable.89L(1)."
Cordover and others including me (@Foiguru) were flabbergasted that a couple of applications were enough to touch off the "repeatedly engaged" provision which Pirani's letter seemed to suggest. (Someone reminded of the now Human Rights Commissioner Tim Wilson in a previous life making 750 applications to one agency-that included 440 in one day. Presumably he would agree there is nothing vexatious about exercising the freedom to use the FOI act although the law is against him.)

But the quote above doesn't accurately reflect the provisions of Section 89L. The commissioner may issue a declaration if satisfied of any of the following-a, b or c:
(a)  that:

 (i)  the person has repeatedly engaged in access actions; and

 (ii) the repeated engagement involves an abuse of the process for the access action;

 (b)  a particular access action in which the person engages involves, or would involve, an abuse of the process for that access action;

 (c) a particular access action in which the person engages would be manifestly unreasonable. 

The AEC would seem to be shooting for (b) and/or (c) but never actually says so. 

Just one application could be enough to get you there but I'd be amazed if the Information Commissioner concluded such a declaration is warranted in this case. Looks to me like classic gaming or an overdose of frustration in having to deal with people who exercise their rights under the law of the land.

All previous declarations involved the 'repeatedy engaged' provision and the abuse of process aspect has been on another planet compared to the polite, measured but detailed nature of Cordover's dealings with the AEC. 

On the AEC trying to rope in Matthew Landauer, words fail me.

The substantive issue of the exempt status of the software has been waved through by the Information Commissioner to the Administrative Appeals Tribunal and involves other complex issues. At the time of writing Cordover has crowd sourced $5300 to fund the review.

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