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Chapter 1: The OAIC — Challenges and Opportunities

The creation of the Office of the Australian Information Commissioner (OAIC) in 2010 marked a new approach to information management in Australian government. Two features stood out.

The first was that the office would play a leadership role in three areas - freedom of information, privacy protection, and information policy advice. Those areas had developed separately for many years and would now be united in a single scheme administered by a new independent statutory office headed by three commissioners.

The Freedom of Information Act 1982 (FOI Act), enacted nearly 30 years previously to confer a legal right on the public to access government documents, had never been administered by an independent statutory officer or agency with responsibility for promoting open government. Key FOI functions – review of decisions, complaint investigation, publication of guidelines, training and review of agency administration – had been discharged until 2010 by disparate bodies such as the Administrative Appeals Tribunal, Commonwealth Ombudsman and government agencies.

A different arrangement applied to the administration of the Privacy Act 1988 (Privacy Act), which protected individual privacy by regulating personal information management. From its commencement in 1989 the Privacy Act had been administered by the Privacy Commissioner, supported until 2000 by a Branch of the then Human Rights and Equal Opportunity Commission, and after that date, by an office that had grown to over 60 staff by 2010.

The function of providing advice to government on information policy and management was not a function stated in legislation prior to 2010. It was treated as a general executive function that was discharged as required by the government of the day.

The Australian Information Commissioner Act 2010 brought those three functions together, spelling out separately the scope of each function. The new OAIC would be headed by the Australian Information Commissioner, supported by the Freedom of Information Commissioner (a new position) and the Privacy Commissioner, which became part of the OAIC.

Each of the Commissioners can exercise both the FOI and privacy functions of the office. The Information Commissioner alone discharges the information commissioner functions and is supported by a new Information Advisory Committee that includes membership from within and outside government.

The second large reform in 2010 was a major overhaul of the FOI Act to strengthen open government. Changes to the FOI Act make it easier and cheaper for members of the public to request access to government documents and to challenge access refusal decisions. Government agencies are also required to publish more information under an Information Publication Scheme and in disclosure logs of information released under the FOI Act.

A new objects clause declares the purpose of the FOI Act in a straightforward and profound manner: to promote Australia's representative democracy by increasing public participation in government processes and increasing scrutiny, discussion, comment and review of government actions. The underlying premise of the FOI Act has been clarified and declared in a similarly forthright manner: 'information held by the Government is to be managed for public purposes, and is a national resource'.

Another open government principle that was strengthened in the 2010 reforms is that information should not be withheld from the community except on public interest grounds. The obligation on agencies and ministers to balance public interest considerations has been written into many of the exemption provisions in the FOI Act that have been restyled as conditional exemptions. The FOI Act now lists public interest factors that must be considered by agencies and ministers, as well as irrelevant factors that cannot be considered.

The Commissioners and the OAIC will play a central role in advancing these open government reforms. They can do so in a variety of ways that include merit review of access refusal decisions, investigation of complaints about FOI administration, publication of FOI guidelines that agencies are required to consider, training and advice to agencies and the public, monitoring agency administration and reviewing the operation of the FOI Act and advising government.

This new scheme - which integrates three areas of information management, strengthens the open government framework, and establishes an office headed by three independent commissioners - is a unique development both in Australia and internationally. At the same time, similar reform activity has been occurring elsewhere in Australia and in other countries. This reflects a global concern to enhance democracy and integrity in government through greater transparency and public engagement. An allied development around the globe is the greater attention being paid to protection of individual privacy, with a particular emphasis on the secure and responsible management of personal information by government and private entities.

The first challenge facing the OAIC upon establishment was to build a new organisation that captured these important shifts in information policy. At the heart of this challenge was the need to integrate freedom of information, privacy protection and advanced information management in the structure, work and public image of the OAIC.

Structurally the new office was built on the existing Office of the Privacy Commissioner (OPC), located principally in Sydney. OPC staff played a major role in establishing the new office both in Canberra and Sydney. They were joined between March and October 2010 by an implementation Taskforce established in Canberra by the Department of the Prime Minister and Cabinet.

The three branches of the OAIC – the compliance, policy and operations branches - each undertake work relating to FOI, privacy and information policy. Many staff, while specialising in particular tasks, also take on broader responsibilities that match those of the office. A good example of this transformation occurring in the work of the office is that the public contact staff, who were formerly privacy specialists, now handle all enquiries coming into the office.

The OAIC philosophy also embodies strongly the integration theme. The OAIC strategic plan defines the purpose of the office as being 'to promote information rights and the strategic management of government information'. The vision is 'an Australia where government information is managed as a national resource and personal information is respected and protected'.

Another important statement is the tagline used on OAIC publications, 'protecting information rights – advancing information policy'. This conveys the essence of the integrated scheme administered by the OAIC. One objective of the scheme is to safeguard the rights conferred upon members of the public by the FOI and Privacy Acts. Those rights are to be granted access to government documents upon request and to be reassured that personal information is securely and properly managed by government and private entities. Another OAIC objective is to articulate information policy principles that can be embraced by government and industry. An early example of that approach is the Principles on open public sector information released by the Information Commissioner in May 2011. These join an established bank of privacy principles earlier administered by the OPC.

The early experience of the OAIC bears out the wisdom of establishing an integrated scheme for information management and policy. The larger proportion of FOI requests received by government agencies are for personal records; and the most common issue in FOI review applications received by the OAIC is the personal privacy exemption in the FOI Act. Much of the policy work undertaken by the OAIC stresses the need for proper management of personal information, balanced against the benefits to government and the community of a more liberal approach to information publication and sharing.

This has brought home to agencies that success in achieving their program objectives requires astute information management. That relies, in turn, on the agency's ability to both harness and harmonise a variety of staff skills. These include administrative skills in records management, technical skills in developing data capability, policy research skills in information analysis, legal skills in meeting information obligations imposed by legislation, and leadership skills in knowledge management.

The other large challenge facing the OAIC in the first year of operation has been to engage government agencies in implementing open government reform. The central government message in this reform program was the need for cultural change. Working from the premise that government information is a national resource that should be available for community access and use, agencies were urged to move from a default attitude of information control to information sharing. Transparency, bolstered by greater information exchange between government and the community, can bolster democratic government, improve decision making and policy formulation, and stimulate innovation to the economic and social advantage of the nation.

This cultural change message that lies behind the FOI reforms and the creation of the OAIC is also taken up in other government initiatives. A guiding principle in the report of the Government 2.0 Taskforce, Engage: Getting on with Government 2.0, is that government adoption of new technology, especially web 2.0, can be used to achieve 'more open, accountable, responsive and efficient government'.

The Taskforce's Central Recommendation, which was implemented by the Minister for Finance and Deregulation in July 2010, was a Declaration of Open Government. That Declaration rested on three concepts – informing, through a pro-disclosure culture in government; engaging, through collaboration by government with citizens; and participating, by making government more consultative and participative.

Those themes are also picked up in the 2010 report, Ahead of the Game: Blueprint for the Reform of the Australian Government Administration, prepared by an Advisory Group headed by the Secretary of the Department of the Prime Minister and Cabinet. One of the nine pillars of reform identified in the report is the need to 'create more open government'. The target area for this reform was greater communication between government and the public through channels such as web 2.0 technology. Freer community access to public sector information should be an element of this strategy.

The OAIC has pursued the cultural change message in a number of ways. Foremost has been direct engagement between the OAIC Commissioners and the senior leadership of government agencies. Personal sponsorship of open government reform by agency leaders was and will remain a precondition for substantial, effective and lasting change. There has been a positive and reassuring response by agency leaders. Most of the large Australian Government agencies took up the invitation to meet with the OAIC Commissioners to discuss the reform program.

There has also been a vigorous commitment by program staff in agencies to implementing the FOI and open government reforms. Staff from a large number of agencies have attended and contributed to seminars and consultation sessions arranged by the OAIC. They made a strong and constructive contribution in sharing their ideas and experience, particularly in developing OAIC publications. An example of a pleasing response by agencies is that a large number adopted the OAIC recommendation that agency Information Publication Scheme entries should use a common template and be identified by an IPS icon on the front page of agency websites.

The OAIC has encountered a similarly strong interest outside government in this first year of operation. Frequent discussions and contact has occurred between the office and journalists, researchers and community and public interest organisations. The OAIC Commissioners received a large number of invitations to present at public conferences and seminars on aspects of open government, privacy protection and information policy.

The year ahead will be equally challenging. The OAIC commences the year with a large number of privacy and FOI complaints and applications for Information Commissioner review of agency FOI decisions. Evaluation of agency compliance with the Information Publication Scheme will commence this year. OAIC staff are contributing to a large number of projects in agencies and across government on privacy and information reform. It is expected that the Government will initiate an OAIC review of FOI charges. The OAIC will continue to be actively involved in Government's implementation of the privacy reform proposals made by the Australian Law Reform Commission in 2008. Liaison with privacy regulatory authorities and information commissioners in Australia and abroad will also be continued this year.

The OAIC looks forward to an energetic year promoting information rights, information policy and the strategic management of personal and public sector information.

Prof John McMillan
Australian Information Commissioner