[E-voting] Appeals to the Information Commisioner - progress and
joe.mccarthy at arkaon.com
Sun Oct 29 22:23:50 GMT 2006
I have seven appeals running with the Information Commissioner since
2003 and I received the first decision from her on 10th October. She
found in my favour on all 7 records relating to release of tally data.
I will post this information on fiasco.ie when I receive it.
But I also received the attached letter from her. Two similar letters
re case 040103 and case 031018 also arrived.
Her Investigator is now suggesting that Section 23 of the FoI Act will
be applied to prevent me getting various records because "access could
reasonably be expected to facilitate the commission of an offence". The
offence in question is to "wilfully and without authority interfere with
any voting system equipment".
Her view is based on the recent hack of the Nedap machine in Holland.
* The hack did not happen in Ireland.
* The hack was done on machines owned by the Dutch group who did the
* The hack infringed no law in Ireland.
* In my opinion, no offence was committed in Holland.
* An offence can only happen if the interference is to "voting
system equipment" as defined in the 2004 Act.
So the question is - could the information I'm seeking make it easier to
commit an offence in Ireland?
Bear in mind that the role of the OIC is to supervise the application of
the law and not to have any opinion on the merits of electronic voting
Your comments and ideas would be welcome.
Office of the Information Commissioner
18 Lower Leeson Street, Dublin 2. Tel: +353 1 639 5689 Fox: +353 1 639
5674 Web: www.oic.ie
Our Reference : 030197
10 October 2006
Mr Joe McCarthy
52 Claremont Road
Sandymount Dublin 4
Dear Mr McCarthy
I refer to previous correspondence from this Office concerning your
application for a review of the decision of the Department of
Environment, Heritage and Local Government on your request dated 14
January 2003. The records the subject of this particular review are
those in relation to which the Department consulted with third parties,
further to section 29 of the F01 Act. At the point at which the
application was made to this Office, the Department's view was that the
records were exempt under section 27 of the F01 Act, and that the public
interest did not warrant their release.
The records at issue in this case are as follows:
* Record 2 -The three appendices to the document "Detailed Software
Design NedapVoting System ESIl ES11-1 i.e. Appendix AI (FUNCTION
STD), Appendix A21 (ELECTION STD) and Appendix A3 SERVICE STD;
* Record 31 (j): Integration Tests (Apr 02);
* Record 31 (k) State Machine Tests (Apr 02);
* Record 31 (l) Support Function Layer Tests (Apr 02);
* Record 31 (m) Driver Tests (Apr 02);
* Record 31 (n) Event Handling Tests (Apr 02);
* Record 31 (o) Communication Tests (Apr 02);
* Record 31 (p) Connection Board Function Tests 18-10.-01 Vn 0. l ;
* Record 31 (q) Display Board Function Tests 18-10.-01 Vn 0.1 ;
* Record 31 (r) Test Description Vote Storage at Power Failure
* Record 31 (s) Software Updates 01 .01 to 01.02 (28-09-2001);
* Record 31 (t) Software Updates 01.02 to 01.03 (19-10-2001);
* Record 31 (u) Software Updates 01.03 to 01.04 (14-12-2001).
Scope of the Review
The Commissioner's review decisions are de novo, which means that they
are based on the circumstances and the law as they pertain at the time
of her decision. In the High Court judgement in the case of Minister for
Education and Science v Information Commissioner -the text of this
judgement is available at www.oic.ie -Mr. Justice O'Caoimh, commenting
on the nature of a review under section 34 of the F01 Act, said that
"importance must be attached to the fact that the nature of the appeal
agreed between the parties arising under Section 34 of the Act is by way
of a hearing de novo by the Information Commissioner" and that "the
decision that was to be made by Information Commissioner in light of the
appeals taken to him were to be made in light of the facts and
circumstances applying at the date of the review by him and not those
facts and circumstances pertaining on the date of the original decision".
Accordingly, her review will be concerned with whether the Department
is in accordance with the F01 Act in refusing to release the above records.
Firstly, given the recent hacking of a Nedap machine in Holland, the
Commissioner may decide that the records at issue are exempt from
release under section 23(l)(c) of the FOI Act -whereby a record may be
refused where access to it could reasonably be expected to facilitate
the commission of an offence.
This is not to imply that you might commit an offence -however, it must
be borne in mind that release of information under FOI is akin to the
release of information to the world at large. It seems to me that the
key to the application of section 23(l)(c) is not the issue of who might
commit an offence, but whether the commission of an offence could be
made easier by the release of the information at issue.
Given that hackers infiltrated the Dutch system using information
contained in the Commission on e-Voting Report, I am of the view that
the information in the records under review in this case could
reasonably be expected to facilitate further hacking. Thus, release of
the records could reasonably be expected to make it easier to commit an
offence (a person being guilty of an offence, under section 2(1) of the
Electoral (Amendment) Act 2004, if they wilfully and without authority,
interfere with any voting system equipment).
Significantly, should the Commissioner be satisfied that section
23(l)(c) applies in this case, the records will remain exempt from
release to you because section 23(l)(c) does not require the
consideration of the public interest.
Apart from the prospective application of section 23, it also seems to
me that the above records contain technical information the release of
which could prejudice the competitive position of the producers of the
Nedap voting machines. You may argue that the recent hacking of the
voting machines in Holland means that the competitive position of Nedap
cannot be further prejudiced through the release of the above records.
However, it seems to me that the release of the records would involve
the disclosure of information not already in the public domain, which
could indeed further prejudice Nedap's competitive position.
Accordingly, I would accept that section 27(l)(b) applies.
You have made a number of arguments in respect of case 031018 in
particular, and in respect of other applications to this Office, to
support your position that the records at issue in such cases should be
released to you in the public interest.
However, it seems to me that there is a further public interest
argument to be considered -that of preventing the disclosure of
information that could facilitate the commission of an offence, which in
my view, is a very strong public interest in support of the information
Please note that any comments you wish to make on this view will only
be considered by the Commissioner, along with other arguments you have
made in support of the release to you in the public interest of
commercially sensitive information, if she does not accept that it is
appropriate to consider section 23 in relation to the records.
If you wish to comment in relation to this letter, please do so by 2
November 2006. Any comments made by that date will be taken into account
by the Commissioner in her decision, which will issue as soon as
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