[E-voting] Appeals to the Information Commisioner - progress and obstacles

Fergal Daly fergal at esatclear.ie
Sun Oct 29 23:25:44 GMT 2006

Not helpful for your case but if you lose on these grounds then you
should request a tally of the number of people who know this
information and could hack the system,


On 29/10/06, Joe McCarthy <joe.mccarthy at arkaon.com> wrote:
>  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.
>  However:
> The hack did not happen in Ireland.
> The hack was done on machines owned by the Dutch group who did the hacking.
> 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 per
> se.
>  Your comments and ideas would be welcome.
>  ---
>  Joe
> ------------------------------------------------------------
> 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
> 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 (22-10-2001);
> 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.
>  Preliminary Views
>  Section 23
> 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.
>  Section 27
> 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 being protected.
>  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 possible
> thereafter.
>  Yours sincerely
>  Xxx
>  Investigator
> ------------------------------------------------------------
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