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A lawyer from Tasmania, who attempted to obtain the source code for the voting software used for the Senate polls last September, has been forced to take his appeal to the Administrative Appeals Tribunal.

Michael Cordover, who also describes himself as a nerd, has had to go this route because the Office of the Australian Information Commissioner, which handles Freedom of Information requests, will be shut at the end of 2014 as one of many money-saving measures in the recent federal budget.

His appeal has recently been complicated by the fact that the Australian Electoral Commission is seeking to declare him as a vexatious litigant.

Cordover told iTWire that he had made his initial Freedom of Information request in October last year after the West Australian Senate election results were delayed; he said the idea that the voting machines themselves were to blame was suggested by a tweet.

It later turned out that more than a thousand ballot papers had gone missing. The election was held again in April this year.

In the US,  in 2004, there were many complaints about the voting machines supplied by Diebold Corporation when several votes did not come out the way that they were implemented.

Cordover said he had responded to the tweet, suggesting that the information about the voting machines could be obtained through a FoI request. "It took me more than a month to get around to it, but eventually I put in a request through Right To Know," he said. Right To Know is a website that helps people to submit FoI requests.

He asked for the source code for the counting software EasyCount, and for documents that described the data formats used by the software. His request was knocked back in November last year. His application clarified what kinds of documents might be included: "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."

In rejecting his request, the Australian Electoral Commission cited trade secrets and also said that the commercial value of its software could be compromised. And it refused to provide a list of documents by which it had come to this decision because, it claimed, such a list could possibly provide general guidance on how to uncover the trade secret protecting the EasyCount software.

Cordover then requested an internal review, pointing out that the algorithms were not secret, having been specified in sufficient detail by the AEC to be re-implemented. He also pointed out that even if source code was supplied, copyright would still apply to the code and it could not be copied and re-used.

He pointed out that when the AEC undertook the conduct of elections other than those for the government, the program used was customised and the source code correspondingly different; thus, releasing the source code used in Senate elections could in no way jeopardise the commercial operations of the AEC. His request was knocked back again.

Cordover then made an appeal to the Information Commissioner and the AEC made its own submission to the same authority when asked.

But given that the federal budget this May abolished the Office of the Australian Information Commissioner, the case cannot proceed further. The OAIC informed Cordover about this in June, and indicated that he could take his case to the AAT as that body would be taking over its FoI tasks from 2015 onwards. He was asked to make a case for the case to remain with the OAIC if he thought this was the correct course of action.

In his application to the AAT, Cordover has clearly delineated what he is asking for and how his request can be met and why it is justified under the score of FoI.

Cordover said he had prepared the application himself. "The application I've done so far by myself, but there's not a lot in that," he told iTWire. "After the first AAT conference (scheduled for 26 August) I will have to provide a statement of facts and contentions to the tribunal. This is where the substantial argument will happen, and that's the document which it's important to get right.

He said he had not had any external legal assistance so far. "Peter Timmins has agreed to look over my work, and I've had a couple of lawyers tentatively offer pro bono assistance. I'm actively pursuing those opportunities in the hope that I can minimise the amount spent on lawyer's time."

Cordover has raised the funds needed so far through a crowd-funding request.

"My pozible (an Australian crowd-funding platform) has just passed $3000, which is an amazing result," he said. "But the cost of paying a lawyer to run the whole case is probably three or four times that.

"Even with a pro bono lawyer there will be costs aside from their time. This is particularly so because the offers I've had for help have come from people on the mainland, so there may be travel costs for them as well."

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Sam Varghese

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A professional journalist with decades of experience, Sam for nine years used DOS and then Windows, which led him to start experimenting with GNU/Linux in 1998. Since then he has written widely about the use of both free and open source software, and the people behind the code. His personal blog is titled Irregular Expression.

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