Source code of Budget 2012 App

Joshua Grainger made this Official Information request to The Treasury

The request was refused by The Treasury.

From: Joshua Grainger

Dear The Treasury,

The Treasury released an app to provide information related to the 2012 Budget earlier this year (http://www.treasury.govt.nz/budget/app). I would like to request under the Official Information Act:

* the source code of the NZ Budget application for iPad, iPhone and Android.

Feel free to contact me if you want me to clarify my request: I could imagine a request for source code maybe somewhat different than a normal OIA request.

Yours faithfully,

Joshua Grainger

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From: Maxine O'Neil
The Treasury


Attachment Acknowledgement letter Grainger.doc
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Dear Mr Grainger,

 

Please find attached the acknowledgement letter for your request under the
Official Information Act.

 

Regards,

 

Maxine O'Neil | Ministerial Coordinator | The Treasury

Tel: +64 4 917 6253 | Maxine.O'[email address]

   

CONFIDENTIALITY NOTICE

The information in this email is confidential to the Treasury, intended
only for the addressee(s), and may also be legally privileged. If you are
not an intended addressee:

a. please immediately delete this email and notify the Treasury by return
email or telephone (64 4 472 2733);

b. any use, dissemination or copying of this email is strictly prohibited
and may be unlawful.

 

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From: Maxine O'Neil
The Treasury


Attachment OIA Reply Grainger J.pdf
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Dear Joshua,

 

Please find attached the reply to your request under the Official
Information Act.

 

Regards,

Maxine

 

Maxine O'Neil | Ministerial Coordinator | The Treasury

Tel: +64 4 917 6253 | Maxine.O'[email address]

   

CONFIDENTIALITY NOTICE

The information in this email is confidential to the Treasury, intended
only for the addressee(s), and may also be legally privileged. If you are
not an intended addressee:

a. please immediately delete this email and notify the Treasury by return
email or telephone (64 4 472 2733);

b. any use, dissemination or copying of this email is strictly prohibited
and may be unlawful.

 

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Joshua Grainger left an annotation ()

Thoughts everyone?

My first thought is that s9(2)(b) usually relates to information owned by third parties but held by the agency, whetheras here the Treasury actually owns the code. Given that the Treasury owns the code, the prejudice would be to the Treasury itself, not to the third party.

Indeed, the other context is where an agency is behaving as a commercial party, for example negotiating a contract, or competing against the private sector. Neither of these considerations apply to the Treasury here.

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Alex Harris left an annotation ()

I agree. It looks quite dubious. Respond quoting the Practice Guidelines at them, then take it to the Ombudsman if necessary. At the least, we'll get some guidance about whether government departments can have "trade secrets" about non-commercial activities.

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Mike McGavin left an annotation ()

Hi Joshua. I may have missed something, but why do you believe that Treasury owns the code?

At http://www.beehive.govt.nz/release/budge... Bill English's press release states that the application was developed by a Wellington company called PaperKite.

In my own experience---occasional open source companies excepted---it's common for third party software development companies to retain ownership and distribution rights of the source code, even if the customer's negotiated a clause to be allowed to see it and keep a copy for their own reference. Source code, patterns and techniques are often re-used across multiple products, and I'd not be surprised if this is exactly what Paperkite does. If it's a traditional closed source company, it's likely it'd consider the code to be a trade secret. If Treasury actually has a copy then it may be written into the contract that it can't be given to anyone else.

I should add a disclaimer with my comment, since in the past I've worked as part of Treasury's IT team. I left a couple of years back and have had nothing to do with the Budget app.

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Joshua Grainger left an annotation ()

Hmm. Good point Mike: I may need to OIA a copy of the contract between Treasury and the contractor.

It is worth noting however that they could not put a statement in the contract which prohibited disclosure of the code under the Official Information Act. The Ombudsmen has ruled that you cannot contract out of the Official Information Act (but that would increase the chances of it being subject to a s9(2)(b) [Commercial interests] or s9(2)(ba) [prejudice the supply of such information in the future] exemption.

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marty left an annotation ()

I think under the Copyright Act, the Crown autpmatically owns any IP of software developed for it.. And that cannot be contracted out. So Treasury owns the code (unless it was off the shelf)

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Mike McGavin left an annotation ()

Hi marty. I've taken a quick look as a non-lawyer. The closest thing I can easily find to that is section 62, but aside from not specifically applying to software, it also only applies for works that were communicated with the intent of being redistributed, or when the copyright holder might reasonably expect that to happen.

http://www.legislation.govt.nz/act/publi...

S63 also goes on to define circumstances where copyright isn't infringed by the crown if a work is transmitted for reasons of safety or national security. I'm trying to browse the act on my phone, though, which isn't easy.

Do you know of a specific post of the copyright act? If it exists and something like this were to set a precedent, I expect more than a few software development companies would suddenly start to think really really hard about how they handled government contracts, if it's still worth trying for them and how much they'd charge.

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Mike McGavin left an annotation ()

Hi marty. On a re-read this morning, I realised you may have meant section 26 about Crown Copyright, where sub-section (1) states: "Where a work is made by a person employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services" ... then the Crown is the first owner of the copyright.

Again as a non-lawyer, I don't believe this applies unless there was a very loose contractual arrangement, because sub-section (6) then goes on to say "Subsection (1) applies subject to any agreement to the contrary."

http://www.legislation.govt.nz/act/publi...

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Eion Robb left an annotation ()

Since the apps contain GPL licenced code the source is required to be produced on demand anyway, OIA or no.

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Mike McGavin left an annotation ()

Eion, where have you seen information that the app contains GPL'd code?

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Eion Robb left an annotation ()

Mike, the Android app links against and embeds a compiled version of libpdfview2.so as well as uses Java code from http://code.google.com/p/apv/ which is under a GPL 3.0+ licence

After months of requesting the source from them their latest response is "We do intend to release the source code under the GPL very shortly. However, we are just checking with the GCIO whether the Crown has any particular guidance or rules around how we do this."

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