The RACP and RACGP presidential elections this year both involved unprecedented and sophisticated email marketing tactics from the winning candidates. But where did the emails come from?
In the early hours following the release of the initial and unaudited result of Royal Australasian College of Physicians (RACP) board election on April 3 the then board and administrators faced a conundrum.
During the course of the election the campaign tactics used by the winning group – a faction that had named themselves The Reform Candidates – had resulted in several complaints, specifically in relation to the use of email data by the group.
It had become apparent through the election that the group was using an email database of more than 21,000 registrars and physicians, and the complainants were wondering how The Reform Candidates had obtained such an extensive database and why others didn’t have access to it.
But the incumbent board was between a rock and a hard place. The Reform Candidates had won a landslide victory according to the unaudited results with an unprecedented turnout of voters. A clear mandate, as the leaders of the reform group would later claim when questioned over the matter. But more relevant potentially, the Reform Candidates were the fierce opponents of the incumbent board, campaigning on a platform that the incumbent board had been responsible for a litany of misdeeds.
Initially the incumbent board decided to hold back on the election results in order to look at what it regarded as potential breaches of both the college’s code of conduct, and of federal privacy laws and the Corporations Act.
But any hope of understanding what really happened was scuttled within a few days when someone leaked the unaudited results to the medical newspaper Australian Doctor. The leak was the subject of legal threats. But on April 10 the paper led with a story titled Exclusive: What the RACP won’t tell you – who won the college’s presidential elections.
The story was incendiary. It said the Reform Candidates had won the election in a landslide and provided the numbers for each candidate’s winning margin, results that were supposedly not provided to any of the candidates at that stage.
It reported that the board was maintaining that it was withholding the results because it had received complaints “claiming the reform group may have been given an unfair advantage during the campaign” but that the reform group was urging its members to intervene because the incumbent board was conflicted in overseeing any such complaints.
In an email the previous night the reform group had sent to many members they said:
“We understand that the hearing of complaints about the election will be presided over by members of the current board, who are obviously conflicted in relation to a hotly contested election in which the conduct of many of them came under scrutiny.”
This email and the Australian Doctor story put the incumbent board in an invidious position. The next day it released the unaudited results of the election. At that point the board conceivably would have assessed that any more delay would now reflect very poorly on it. It was in a corner with very little room to move.No-one knows who leaked the election results but this is now the subject of complaints to the current board as well. The board appointed an external scrutineer, as required, and on April 18 the scrutineer confirmed the validity of the votes cast in the election.
And that might have been the end of it. Except the incumbent board decided to have one last throw of the dice before its formal tenure ended. It appointed a forensic accountant, KordaMentha, to quickly attempt to investigate what had occurred.
At the core of the complaints, and of concern to the incumbent board, was whether the Reform Candidates had illegally obtained and used a database of RACP members throughout the election, and before the election, to run a survey on behalf of one of the group, which was used as content for emails sent in the election.
The use of such a database would give the reform group a significant advantage over any other candidate.
It was in plain evidence that the Reform Candidates did have a huge database – of some 21,000 doctor and registrar emails – and that they used it to campaign. The question is whether that database was obtained and used within the limits of RACP Code of Conduct and Constitution, and within the scope of stringent federal legislation on the use of email data.
We will return to this question, but while we are thinking big doctor email databases, and medical college election campaigning, let’s look at what happened not long after the RACP election through the course of the Royal Australian College of General Practitioners (RACGP) presidential election.
The eventual winner of the RACGP election was a candidate regarded by many as an outsider, Dr Harry Nespolon. Dr Nespolon had campaigned in two previous elections before and not come close, according to college insiders. This time, he, like the Reform Candidates in the RACP, won by a significant margin.
Whether coincidence or not, Dr Nespolon seemed to be using the same tactics used by the reform group in the RACP elections. He had found himself a large email database that included a good number of RACGP members to market his ideas to. And he used that database initially to run a survey of the attitudes of the members of the college and then publish the results during the campaigning.
In the RACP election, Professor John Wilson extensively surveyed members of that college in September the year before the RACP election . He subsequently used some of the results in the reform group email campaigning.
In both the RACP and the RACGP results this year, record numbers of members voted, by a significant margin. In both, the winning candidates used significant email databases to the potential effect that they both gained a lot more access to members than their competitors.
Both were also clever in how they engaged with their email audiences. They were talking to the members with something that was reasonably compelling to them – results of a survey about what members wanted to see change in their colleges.
But Dr Nespolon’s campaigning might have one simple but very important differences to the RACP Reform Candidates campaigning. The provenance of the email database he used seems to be clear. He sought out an independent and verified external database which had been built legally, and paid to use it under terms which seem to be compliant with privacy legislation and the RACGP’s rules. There does not seem to be any grey over where he got his data and whether that data was being used within the rules of the RACGP and general data laws.
That he likely used a much bigger email database than other candidates in this circumstance might still be viewed as unfair by some. But in the case of Dr Nespolon, it looks as if the access he had and the tactic he used was also available to other candidates.
If it were a state or federal election, that would be seen as smart electioneering, pure and simple. His only crime seems to be he outsmarted his competitors with some marketing ideas that an ad agency might be proud of.
But back to the RACP.
TMR doesn’t follow RACP politics, at least not as extensively as Australian Doctor, so feasibly, the Reform Candidates landslide win, was, as they maintain, a reaction by the members to years of poor conduct by the old board, and a desire for reform.
But if the reform group did have a much larger database, it seems likely that it may have played some part in its win, at least by giving them far better direct access to more members.
Isn’t this just like the RACGP election? Clever marketing tactics well applied?
It might be, except that in the case of the RACP election, the provenance of the reform candidate database has not been made clear yet, not publicly, at least.
Earlier this week The Guardian reported that the new RACP board is refusing to explain how it obtained the email database used in the election.
The Guardian story raises the spectre of what happened to the interim audit report looking at the complaints around the database during the election, once the reform group took power.
It appears, so far at least, nothing.
The new board would not provide comment to The Guardian on their story, only saying that the matter was confidential.
What might have happened is that the new board dismissed the auditors’ report as the last gasp of a desperate and failing previous board.
This stance would be in line with a Reform Candidates’ email to candidates during the election advising them not to trust the old board with any investigation around irregularities in the election process.
OK, but what’s actually in the interim auditors report?
KordaMentha, the commissioned auditor, is a pretty trusted brand when it comes to forensic investigations. And if the current RACP board is so confident of its use of the database, why not just release the report, and let members decide for themselves about the findings?
Possibly because some of the material in the report raises issues surrounding the tactics of the Reform Candidates, including the origin of the database used.
In one key finding, the report’s authors say that they “found on the balance of probabilities that the results of the election were influenced, both in terms of numbers of votes cast and votes cast for the Reform Candidates, as a result of the emails forwarded on behalf of the Reform Candidates”.
On spec, that could still be considered just clever campaigning, per Dr Nespolon.
The KordaMentha report goes on to say:
“We are concerned with the legitimacy of the methods used by the Reform Candidates in the collection of the email addresses of college members.”
The authors of the report immediately follow this statement with the clarification that they are not at this point of time able to establish a breach of the college constitution or code of conduct. But they then go on to say that they did not have enough time to complete their investigation and that the reform group would not co-operate with them in the investigation.
You can see why the reform group probably would not want to co-operate, given the enmity between this incoming group and the outgoing group who commissioned the report. But the issue of the provenance of the email database used remains regardless.
The essence of any wrongdoing in the matter comes down to how the Reform Candidates obtained such a large database of doctors and registrars.
If, as some formal complaints to the outgoing board suggested, the Reform Candidates had somehow obtained the database directly from the college, or even part of it, then it would almost certainly be in breach of the code of conduct, and of email privacy laws.
In a letter signed by three Reform Candidates addressed to the chief investigator at KordaMentha, the group succinctly puts their position on the matter.
Of the most damaging allegation made of the Reform Candidates, they say in their letter that none of the email data “originated from any compilations of such addresses by the college”. They go on to be even more explicit, saying that the emails “were privately compiled by the endeavours of the candidates and their supporters from publicly available sources of information”. (TMR has done the underlining here for emphasis).
The problem with this of course for a group like KordaMentha is that a statement of position is not forensic evidence. KordaMentha needed to see the database to do their job properly and establish if what they had been told was correct.
But the reform group letter made it pretty clear that would not be happening. They say after declaring that they compiled the database themselves from publicly available sources that having answered this allegation, “the college can have no legitimate right to demand any other answers from us”.
And true to this position, they don’t answer any other questions asked directly of them by KordaMentha.
But they do attempt to provide detailed legal advice to Korda Mentha on the use of email databases in Australia. They spend much time quoting legal cases on data privacy and advise Korda Mentha that, as it is not a firm of lawyers, its commission is likely inappropriate for what it is attempting to investigate. In other words, the reform candidates believe the commissioning of KordaMentha for this investigation is inappropriate in any case.
At one point in the letter the reform group even suggests that “it was at all times open to any candidate seeking support for his or her election in the recent RACP elections to compel the production by the RACP of a complete list of the names and addresses of every member of the RACP. The purported complaints by some members of the RACP that their privacy was somehow infringed by receiving email communications seem in such circumstances to involve a misunderstanding of the law”.
A question that comes to mind reading this is why, if the Reform Candidates knew this, didn’t they demand the RACP list themselves during the campaign? If the database they did use wasn’t from the RACP why not do the job properly, get the RACP database, as they say in their letter they would be entitled to do, and really go to town on their email campaigning?
It seems feasible that the reform group may have been missing the point in their letter. KordaMentha’s main role was to establish scientifically the provenance of the database first and foremost. The legal opionions and lawyers could probably come later.
If what the reform group claim in their letter is true, then they would very likely have nothing to worry about. This might explain their stubbornness in refusing to release the KordaMentha report, not answer ongoing questions being put to them by members about the database, or address any questions from The Guardian.
Or it may not.
If this database is as clean as they claim in their letter, why not release it for independent verification and have the whole messy affair cleaned up in a matter of days?
All the current board needs to do is to make the database available for examination by a respectable IT forensic firm.
That would be game over for all those troublemakers, surely?
KordaMentha doesn’t think much of legal prowess of the reform group. Nor its assertion that it compiled the database from publicly available sources.
While the report doesn’t go so far as to say that it has identified a breach of the college code or privacy law, it does say that there are significant reasons to be suspicious about the source of the Reform Candidates email database.
This, the auditors say, is based on their knowledge and experience of email database collection. KordaMentha conclude further work is needed to establish exactly where the database came from.
“Given the nature of the member email accounts obtained by Korda Mentha from the college, in that 65% of the email accounts are private email accounts such as Gmail, it appears unlikely that these emails [the ones sourced by the Reform Candidates] were sourced from publicly available databases or information…”
The auditors conclude: “We are concerned that email accounts used as part of the election by Reform Candidates are a combination of The Reform Candidates publicly available sourced emails, their personal email contacts and information they have received as a consequence of access to the college resources.”
During the actual campaign, when asked by the college on two occasions during the election where they obtained their emails, the Reform Candidates did not respond.
TMR put the possibility that all 21,000 emails had been compiled privately from public sources by a few doctors in their spare time to a past manager of Australia’s largest and most respected doctor database provider, Ampco. This expert expressed his view that “it was highly unlikely that they could build a database with lots of private doctor addresses from publicly available sources”.
The current RACP board appears to have chosen to ignore the KordaMentha report on the pretext that it was commissioned by a conflicted previous board.
But whether conflicted or not, the questions being raised in the report seem to remain relevant.
The new RACP board might be a great bunch of well meaning reformers. But if it obtained an email database illegally then it has done something wrong.
Simply stating to KordaMentha that the database came from publicly available sources is probably not enough to avoid continuing speculation around the database’s provenance.
In its letter to the auditors, the reform group says no-one has any right to question it or look at the database.
Why not?
At the best of times, people tend to get pretty snarky about other people using their private data without appropriate permission. They get cranky even when there is implied permission. The My Health Record didn’t ask permission for opt out and look what happened. It’s now a fair mess.
If the RACP board continues to refuse to allow independent examination of the database, then people would be right to be suspicious and sceptical. And surely it would cast a cloud over a new board that campaigned on a platform of reform and integrity.
As to whether having a better email database if you’re a medical college candidate is fair or unfair, that might end up being an issue for all the colleges to discuss.
Now that college candidates realise what they have to do to win, we might expect some escalation in marketing tactics in future elections.
That is, if the colleges don’t revise their rules in the interim to avoid the inevitable marketing arms race.
For the Record: The Medical Republic put all the key questions raised in this article to the RACP board prior to publication in order that they were given a fair and reasonable opportunity to respond to the issues that this article raises.
The response from an RACP spokesman was:
“At this point the college doesn’t have anything further to say about the report and the associated issues you’re querying. We will be advising our members first when we’re ready to make any comments.”
