Further statistics on digital searches in 2013

Alex Harris made this Official Information request to New Zealand Customs Service

The request was refused by New Zealand Customs Service.

From: Alex Harris

Dear New Zealand Customs Service,

Today Customs released statistics showing that it had "detained 295 computers and 548 electronic devices for detailed examination of equipment that were suspected to contain objectionable material or other evidence of border offending". I would like to request the following information under the OIA:

* how many of those searches were for "objectionable material" and how many were for "other evidence of border offending"?
* how many of those searches were conducted on behalf of other agencies, such as the NZ Police, SIS, GCSB, or FBI?
* how many of those searches resulted in finding
something prohibited from entering NZ? I'd like a categorization of (broadly) what was this material (objectionable material, copyright violation, national security, other)

I would prefer to receive an electronic response. Queries about this request will be automatically forwarded to me by the fyi.org.nz website.

With regards to s12 of the OIA, I am an NZ citizen and in NZ.

Yours faithfully,

Alex Harris

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From: OIA
New Zealand Customs Service

Dear Ms Harris

On behalf of the New Zealand Customs Service (Customs) I acknowledge
receipt of your request for information under the Official Information Act
1982 (the OIA).

Customs will respond to your request as soon as reasonably practicable,
and in any case not later than 20 working days after the day on which your
request was received.

Please be advised that as your request is a request for official
information there may be a charge, as set out in section 15 of the OIA. 
This would be a charge of $38 per half hour (including GST) after the
first hour of staff time spent actioning your request.

Yours sincerely

Chief Customs Officer – Procedures and Support

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From: IPC Procedures and Support
New Zealand Customs Service

Dear Ms Harris

Further to my previous message, the New Zealand Customs Service (Customs)
has assessed the work that would be involved in providing the information
you have requested.

As you have previously been advised, where Customs has undertaken a
baggage search, and that search included the search of a computer or
electronic device, a report is created in Customs’ database recording that
search.  The report includes noting whether or not items were detained and
why.  Similar reports are created to record other situations where items
are detained, for instance where a consignment of household goods is
examined on arrival in New Zealand.

The format for these reports varies, so in order to provide the
statistical breakdowns you have requested a Customs officer would need to
re-read the whole of the report narrative of every individual report about
the 295 computers and 548 electronic devices detained in 2013, and record
data relevant to your questions.  We estimate this may take between 12 and
15 hours of staff time. 

Customs considers this is a substantial amount of time to spend on
collating data, and invites you to refine the first and third bullet
points of your request in order to reduce the time needed to compile data
for the response.  The overall scheme of the Official Information Act 1982
recognises that there is a balance between promoting readier access to
official information and the administrative cost of that access in time,
labour and materials.  In its current form your request will be refused
pursuant to section 18(f) of the Official Information Act 1982, which
allows a request to be refused if the information requested cannot be made
available without substantial collation or research.

With regard to the second bullet point of your request, please note that
Customs can only conduct searches within the scope of the Customs and
Excise Act 1996 and other border-related legislation such as the Films,
Videos, and Publications Classification Act 1993 (in relation to
objectionable material) or the Misuse of Drugs Act 1975 (in relation to
illicit drugs).  This activity does not extend to conducting searches on
behalf of the other agencies you have mentioned in your request.

Yours sincerely

Chief Customs Officer – Procedures and Support

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From: Alex Harris

Dear IPC Procedures and Support,

Rather than you spending time to read those reports, I have a bettr plan: I'll do it. Send me those 843 reports (with appropriate redactions for privacy, maintenance of law and order etc), and I'll happily extract the data myself.

Yours sincerely,

Alex Harris

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From: IPC Procedures and Support
New Zealand Customs Service

Dear Ms Harris

In my response of 12 March 2014 you were invited by Customs to refine some aspects of your 13 February 2014 request for information under the Official Information Act 1872 (the OIA) in order to reduce the time needed to compile data for the response.

In order to answer your refined request (dated 12 March 2014), the report narrative of every report about the 295 computers and 548 electronic devices detained in 2013 would have to be re-read and also edited by a Customs officer to make the appropriate redactions and annotations. This is likely to take considerably longer than simply recording data relevant to the questions in your original request. In addition, the reports would then have to be printed on OIA watermark paper and scanned in order be presented in the electronic format you have indicated is acceptable to you. Because of the large number of reports it is likely that the information would need to be broken up into a large number of separate scanned files which may need to be emailed separately, depending on their size.

Customs considered your original request should be refused pursuant to section 18(f) of the OIA, which allows a request to be refused if the information requested cannot be made available without substantial collation or research. The information you have asked for in your refined request would take a great deal more time to collate than the data to answer your original request. Therefore your refined request is also refused pursuant to section 18(f) of the OIA.

If you are dissatisfied with this response you have the right under section 28(3) of the Act, by way of complaint to the Office of the Ombudsman, to seek an investigation and review of this decision.

Yours sincerely
Chief Customs Officer – Procedures and Support

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Alex Harris left an annotation ()

Interesting. I'd refined my request to the raw reports because an agency can only charge for collation, not for redaction. I'm currently investigating whether they can refuse because of the need for redaction before deciding whether to take this to the Ombudsman.

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Alex Harris left an annotation ()

Update: the Ombudsman has sent me their provisional ruling upholding the decision to withhold under s18(f). I'm challenging that because they've included redaction time in the time estimate, which seems unlawful. Agencies don't get to charge you for not giving you information, and they certainly shouldn't be able to refuse a request because they'll want to redact either.

I've also suggested that Customs has not considered extending the time limit or fixing a charge. If they do the latter, would anyone be interested in paying it?

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Alex Harris left an annotation ()

Update: The Ombudsman has upheld Customs refusal under section 18(f). They've also upheld the initial refusal under section 18(f) on the basis that it would take even more time to extract the requested information than to redact the documents. The decision not to fix a charge (which would have offered a chance to crowdfund release) was also upheld.

Fortunately, I have a new avenue forward which should avoid these problems.

The decision is #377297 for future reference

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Oliver Lineham (FYI.org.nz volunteer) left an annotation ()

Alex, this decision is very interesting and will have implications for many requests. Are you able to publish the decision somewhere?

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Things to do with this request

Anyone:
New Zealand Customs Service only: