Prof John McMillan
Australian Information Commissioner
Office of the Australian information Commissioner
GPO Box 2999
Canberra ACT 2601
I am pleased to provide you with comments from the NSW Office of the Information Commissioner in response to the first discussion paper to be issued by the Office of the Australian Information Commissioner: Issues Paper 1, Towards an Australian Government Information Policy.
In this response I have provided some general comments about the New South Wales jurisdiction, and then offered some comments against those of the draft principles where we believe we may be able to make a useful contribution.
As you would be aware, the New South Wales Office of the Information Commissioner (OIC) differs from the Commonwealth model in a number of ways. In particular, the newly established NSW Information and Privacy Commission comprises separate heads for each jurisdiction: an information Commissioner to champion the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) and a Privacy Commissioner to ensure protection of individual privacy, each with equal standing, who are to consult each other on issues which overlap.
A significant difference between the New South Wales regime and the Commonwealth's is the fact that the Australian Information Commissioner has an additional discrete function that goes beyond the traditional FOI and privacy functions, that of giving strategic advice to the Australian Government on information policy and management. A comparable information policy function for New South Wales does not yet exist. White the NSW State Records Authority has information management functions, in terms of record keeping, management, administration, preservation and use of government information, and a range of other agencies have related jurisdictions to a greater or lesser extent, there is no single entity within the State charged with the responsibility of advising on or setting information policy for government.
However, the objective of working towards nationally consistent government information policy is one we fully support, and the OIC is committed to collaboration across jurisdictions to assist achieve outcomes that will benefit all stakeholders.
Effective information policy that promotes release and re-use of government information enhances transparency and accountability. The object of the GIPA Act clearly supports this, Section 3 (1) of the Act states:
In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
a. authorising and encouraging the proactive release of government information by agencies, and
b. giving members of the public an enforceable right to access government information, and
c. providing that access to government information is restricted only where there is an overriding public interest against disclosure.
My office regularly consults with the NSW State Records Authority, the NSW Department of Services, Technology and Administration (which has absorbed some of the function of the former NSW Government Chief Information Officer), and other agencies involved in information management functions to promote responsible information management and reporting.
As well, the OIC delivers targeted assistance to improve information access across all NSW government agencies, and to enable agencies to report on their performance on complying with the GIPA Act.
Turning now to the ten principles outlined in the discussion paper we offer the following comments.
The approach taken in NSW aligns with this principle. The GIPA Act requires agencies to make certain types of government information, referred to as open access information, available free of charge primarily by publishing the information on their website, The Act also encourages the proactive release of additional information that is likely to be of interest to the public. Accordingly, consistent with this draft principle, the GIPA Act places a proactive and pro-disclosure obligation on agencies to use information technology to disseminate information, maximise the amount of information published voluntarily, and apply a presumption of openness, as well as making the publication of certain information mandatory
A consideration in ensuring access to information is truly open is to identify duplication of effort and information silos where agencies might be creating similar information in isolation. We expect this will become more apparent as agencies begin to proactively publish more information. In NSW for example, government corporate services reform opens up the opportunity to introduce a whole-of-government common policy framework around procurement, asset management, HR, finance, travel, governance, ICT and information management. By engaging with citizens to participate in the policy development process, agencies could not only benefit from consistency in corporate services policy development but also realise efficiencies in freeing up resources for other purposes.
While this is an issue that my office is looking into at a state level, the situation would not be dissimilar at the national level, Draft principle 1 therefore opens up a pathway towards achieving nationally consistent policies. The identification of duplication and information silos, we expect, will be an important benefit flowing from implementing draft principle 1.
These three principles are vital to ensuring government accountability and transparency, as the existence, accuracy, reliability and retrievability of information is essential to effective government information management, Good records management is a foundation for maintaining and improving the quality and integrity of information assets as a valuable public resource.
In formulating policy guided by these principles, one of the primary considerations will be to clarify and clearly define the roles of key government information management agencies. A further consideration will then be to set consistent standards in information management. These principles therefore must be afforded sufficient importance and value by developing robust and adequately detailed policies to provide clear guidance to government agencies. It would also be beneficial to support the policies with robust compliance strategies.
Transparent government decision-making and complaints processes are vital to good public administration and citizen-centric service. This is an area which NSW has a particular focus on and which the GIPA Act addresses. The Act contains more prescriptive provisions than the former Freedom of Information Act 1989 (NSW), and provides greater support and guidance around accessing information and the related decision-making process.
The GIPA Act introduces a presumption in favour of disclosure and explicitly outlines the finite and specific considerations against disclosure of government information which an agency may take into account in applying the public interest test to determine whether government information should be disclosed or not. The process for reaching a decision to disclose or not disclose government information is set out in the legislation. The requirement to provide reasons for refusing to disclose information is also clearly outlined. This framework guides sound decision-making. In addition, the NSW QIC is charged with assisting agencies to develop good practice in decision-making processes.
Similarly, in the NSW context, the GIPA Ac! also sets out a transparent complaints process, and provides the QIC with power to investigate and report on those complaints.
Clear guidance and standards on complaint and decision-making processes at the Commonwealth level would be highly beneficial to achieve nationally consistent standards on decision-making and complaints processes.
This principle is pivotal to facilitating access to government information to a range of people who will have different needs, capacities, and uses for that information.
We note however that a significant proportion of Australians, particularly vulnerable and disadvantaged persons, do not have readily available Internet access.
It could therefore be worth considering broadening this principle to have an overarching commitment to accessibility, including open and accessible formats online. This would reinforce a citizen-centric service focus.
As with draft principle 7, this principle is essential to facilitating access for all individuals, particularly vulnerable and disadvantaged persons. As part of this principle, it could be beneficial to include a requirement for agencies to offer access to government information in the least costly format, unless the applicant insists on obtaining information in a particular format. This could help ensure costs to citizens are kept to a minimum.
The issue of costs as a barrier to access to government information is one that my office is paying particular attention to, and we will be consulting with agencies and the public on this issue. It is a concern that the community and agencies commonly raise with us, and that we believe warrants specific attention to ensure that a focus on charging mechanisms does not inadvertently become a barrier to access. We are examining cost structures, and the potential barriers that exist, to help recommend the most effective means of maximising access to government information for all persons and groups.
Reuse rights should not only apply to public use of government information but also commercial use. There is also a need to develop standards for presenting government data sets in industry standard formats that facilitate reusability while also containing consistent metadata to enable online search capabilities (e.g. datasets published as web services or xml-formatted outputs, searchable online databases, etc).
Both National Archives and NSW State Records have published standards for preserving, classifying and digitising records that ensure government information meets international accessibility guidelines, retains the integrity of the original digital record and is correctly classified using international metadata standards (Dirks/DublinCore). Promotion of these standards and their consistent use across government information and publications would be a good starting point in implementing this principle.
Enabling and maximising public participation in government decision-making is one of the objects in enabling transparency of government information and promoting government accountability.
Currently there are two key issues that the NSW QIC is addressing in order to better engage with the community. These issues will also be important nationally. One is to enhance participation through harnessing use of ICT, such as the use of Web 2.0.
Current internet technologies used by the public enhance their ability to participate in government processes, Tools such as social online forums, podcasts and webinars can be used to encourage interaction between government and citizens. A large proportion of Australians with readily available web access engage with organisations and individuals and access information via these tools rather than more traditional media, such as email, websites, print media and so forth. Yet policies relating to the use of Web 2.0 tools by government employees have not yet adapted to this reality. Policy needs to support and encourage effective use of Web 2.0 and social media tools in order to engaged with the public. Concerns around inappropriate use by staff can be addressed in codes of conduct or in dedicated social media policies.
The second key issue is to move to a proactive model whereby agencies actively engage with citizens.
Beyond online avenues, we believe that new technologies and the proactive culture that is being reinforced by right to information regimes can be built on to encourage agencies to more actively consult with the community. This requires going beyond simply posting government information online to include adopting other avenues to pushing out government information. The web as a channel to ensuring access and engaging the community has its limits, given the quality and distribution of internet access is not consistent across the country, and the readiness to adopt and respond to online mediums currently differs across different communities. A key challenge for policy makers will be to engage both urban and regional communities. The underlying technology to support such engagement becomes a key factor in achieving this policy outcome.
Engaging the community is a principle that is reinforced under the GIPA Act. The Act requires agencies to develop and adopt a publication guide. As part of the guide, they must account for how they engage members of the public, and how they provide for members of the public to participate in policy formulation.
Guided by the importance the GIPA Act places on assistance, transparency and engaging with the public, the CMC has made community engagement a priority. We have a dedicated community liaison officer to lead that work, and have made a commitment to consult, receive feedback from, and provide information to the great variety of communities right across NSW.
The draft OAIC principles, in our view, will provide vital guidance for the development of effective government information policy.We look forward to hearing about the next stage of this process, and my office is keen to participate in any future dialogue around this topic in order to maximise a harmonised approach across jurisdictions.
Thank you for the opportunity to comment on your Issues Paper.