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Chapter Five — Develop and implement information policy


The Office of the Australian Information Commissioner's (OAIC) information policy work is based on three key principles:

  • Government information, as declared in the objects clause of the Freedom of Information Act 1982 (FOI Act), is a national resource that should be managed for public purposes
  • Open public sector information (PSI) enhances Australian democracy and stimulates economic and social innovation and community engagement with government
  • The quality of government policy formulation, decision making and service delivery depends in part on effective information management.

In 2013–14, in undertaking its information policy functions, the OAIC continued to engage actively on open government initiatives, both through issuing guidance material for agencies and through collaborating with other agencies and open government advocates. The concept of 'open government' draws together a range of policy areas including those related to open data, accessibility, open licensing, proactive publication, de-identification, information sharing, reusability and big data analytics. During the reporting period, the OAIC also worked to strengthen links between information policy and its other functions — privacy and freedom of information (FOI).

Following the Government announcement in May 2014 that the OAIC will be disbanded from 31 December 2014, the OAIC's privacy and FOI functions will be undertaken by new and existing agencies. While the Government has not indicated an intention to transfer the OAIC's information policy functions to other agencies, the OAIC has been working collaboratively with key stakeholders (including the Department of Communications and the Department of Finance) to hand on information policy resources developed by the OAIC.

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Taking stock: key OAIC information policy positions promoted in 2013–14

The following policy positions are those the OAIC most commonly referred to and promoted in its information policy work in 2013–14. Some of these have been explored in detail in earlier reports and issues papers described below. Together, they form the foundation of the OAIC's vision for government information policy.

These reports and issues papers can be found on the OAIC's website.

Government information is a national resource

This principle is enshrined in the objects clause of the FOI Act. Government information has social and economic value and should be recognised as an asset to be used for public purposes. In 2009, the Government 2.0 Taskforce reported on open PSI and the benefits to government flowing from its release. It argued that 'when information is released it creates new and powerful dynamics which can drive innovative use and reuse, allowing the commercial, research and community sectors to add value to it' (Engage: Getting on with Government 2.0, p 40).

In 2011, the OAIC carried out a detailed study of the value of information held by government in Issues paper 2: Understanding the value of public sector information. Since then, the Information Commissioner has continued to promote the importance of harnessing PSI, including by advocating for Australia's membership to the Open Government Partnership (discussed below).

In April 2014, the OAIC also published a resource for agencies on de-identifying data to encourage greater use and sharing of government information, with appropriate safeguards for privacy — Information policy agency resource 1: De-identification of data and information.

Open access to government information should be the default position

If there is no legal need to protect government-held information (for example, protections in the Privacy Act 1988) it should be open to public access.

In May 2011, following a public consultation process, the OAIC released its Principles on open public sector information (Open PSI Principles). The Open PSI Principles set out the central values of open PSI: information should be accessible without charge, based on open standards, easily discoverable, understandable, machine-readable and freely reusable and transformable. The Open PSI Principles are intended to help agencies embed strong information management practices into the whole information lifecycle and become confident and proactive publishers of information.

In 2012, the OAIC surveyed agencies to find out how they were progressing with the implementation of the Open PSI Principles. The survey identified areas where agencies were succeeding and other areas where they required assistance. The results of the survey were reported in a summary report — Open public sector information: Government in transition — followed by a full report — Open public sector information: From principles to practice (Principles to Practice report).

In 2013–14, the OAIC sought to address recommendations made in these reports. A major finding in the Principles to Practice report was that agencies would benefit from greater awareness of existing government policies. These range from aspirational policies promoting more open government and greater community engagement, to technically-oriented policies relating to metadata standards and open data licensing options.

To that end, in 2014 the OAIC engaged with the Department of Communications on its development of an 'Open data toolkit' aimed at drawing together in one place the relevant policies and guidelines related to open data. The toolkit is planned for release in the second half of 2014.

Open government is not just about open access and open data

Open access demonstrates a commitment to open government and, allied to that, to traditions of representative democracy and citizen engagement. Open data gives added life to those traditions in a digital and technologically-enhanced world. Open access and open data are fundamentally important in both a practical and a principled way.

They do not, however, provide a full picture of the actions required to advance open government objectives. National action plans developed under the Open Government Partnership point to other actions that provide complementary outcomes: open archives and better record-keeping, transparent public spending and government accountability, citizen participation in government and navigation of public services, anti-corruption measures, and legislative reform.

Agencies should embrace proactive release and administrative access

The FOI Act establishes a formal avenue for document release through a written request procedure. This is a necessary legislative right and is appropriate for certain types of document requests, and to resolve disputes about information access.

Changes to the FOI Act in 2010 placed greater emphasis on proactive disclosure, through the Information Publication Scheme, FOI disclosure logs and discretionary release by agencies. Proactive release can be effective in making information publicly accessible through the web to a wider audience. Information released at the right time can facilitate public participation in policy development and implementation at a formative stage.

The OAIC has strongly advocated proactive release through its open government messages, guidance material on web publication and accessibility, seminars that bring government and the community together, and liaison with other government agencies that promote the same philosophy.

Another prominent theme in OAIC work is that agencies should set up administrative access arrangements to supplement and operate alongside the more formal FOI Act request process. In this way a person, after discussion with an agency, may be able to obtain information free of charge, promptly and in a form that is relevant to their requirements.

Administrative access to, and proactive release of, government information provide an effective channel for fast and flexible information release and advance two of the Open PSI Principles: Principle 1 — that open access to information should be the default position; and Principle 2 — that agencies should engage with the community and respond promptly to requests for information.

In 2012, the OAIC published FOI agency resource 14: Administrative access, to encourage agencies to take a flexible approach to information release. During 2013–14, the OAIC continued to promote administrative access in Information Commissioner review (IC review) decisions, FOI guidelines, discussions about FOI law reform, and updating FOI agency resource 14 for publication in July 2014.

OAIC guidance on the new Australian Privacy Principles (APPs) published in 2014 emphasises that administrative access is consistent with an agency's legal obligation to provide access to personal information upon request under both APP 12 and the FOI Act. Indeed, an administrative access arrangement can assist an agency to respond flexibly and helpfully to a person's personal information request without the explicit need to guide the requester down an FOI Act path or to rely expressly on APP 12.

Nothing in the FOI Act restricts release of information

Bringing together both FOI and information policy functions, the OAIC has been able to advocate for a balanced approach to information release which encourages agency engagement with the spirit of the FOI Act, not just compliance with the letter of the law.

Despite the range of exemptions available in the FOI Act, it is not intended to restrict the circumstances in which government information can be released. Section 3A(2) states that it is not the intention of the Parliament in enacting the FOI Act to limit the power of agencies to publish information or give access to documents, or to prevent or discourage agencies from doing so. That means that an agency may disclose a document to which an exemption applies where there are no other restrictions outside the FOI Act on release.

Perhaps more importantly, this option of discretionary release means that an agency is not required to turn its mind to exemption issues upon receiving an access request. Agencies are encouraged to be guided by the public interest in open government and the principle of open access as the default position. It is only at the point of considering a refusal of access that FOI Act exemption issues need to be considered.

There may be occasions when an agency feels comfortable releasing a document to an applicant (despite the existence of an applicable exemption) but decides not to due to the FOI Act obligation to publish the document on the agency FOI disclosure log. To address this situation and encourage greater flexibility in information release, in 2013–14 the Information Commissioner re-issued Disclosure Log Determination No 2013 –1 (Exempt documents) which allows an agency to choose not to publish a document on its FOI disclosure log in these circumstances, where it would be unreasonable to do so. For more information about the FOI disclosure log determination, see Chapter Eight.

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Strengthening ties between information policy, FOI and privacy

Information policy and FOI

In practice, the OAIC's FOI policy work has tended to be of a different nature to its information policy work. FOI policy is focused on helping agencies comply with the FOI Act and telling applicants what their rights are (through advices, guidance material and guidelines). Information policy is less driven by legislative compliance and can extend broadly to promoting a public sector culture in which information is valued, properly managed and shared widely.

However, with the OAIC's information policy focus squarely on promoting open government, the conceptual distinction between its FOI and information policy work has been minimal. The FOI Act can be thought of as the legislative anchor of open government in Australia. It offers direction and legislative weight to information policy endeavours centred on advancing open government.

Many of the 2010 reforms to the FOI Act resonate with broader information policy developments. In particular, the FOI Act objects clause (introduced in 2010) states that:

  • government information is a national resource and, as such, is to be managed for public purposes (s 3(3))
  • functions and powers given by the FOI Act are to be performed in a way that facilitate and promote public access to information, promptly and at the lowest reasonable cost (s 3(4)).

The OAIC's key information policy positions (outlined above) build from and seek to advance these objectives. In 2013–14, the OAIC continued to emphasise the importance of the objects clause in s 3 in both interpreting the FOI Act and as it applies to broader information policy considerations. The OAIC did this in advices to agencies, guidance material (including agency resources on de-identification and open data), IC review decisions and in information policy forums (such as the Big Data Strategy Working Group, discussed below). The OAIC also engaged with key information policy stakeholders, such as the Department of Communications and the Department of Finance (see below).

Information policy and privacy

As the regulator for both privacy and FOI, the OAIC is uniquely placed to offer advice on privacy in the information policy context. When engaging with stakeholders on open government initiatives the OAIC encourages consideration of privacy issues. For example, in 2013–14 during the development of the Australian Public Service Big Data Strategy (Strategy), the OAIC was able to help ensure that 'Protection of privacy' was an explicit element of the Strategy 'vision' and that 'Privacy by design' was one of the six Strategy 'principles'. This was in addition to the OAIC's information policy advice aimed at encouraging alignment of the Strategy with key open government principles, including that government information be treated as a national resource. More information about the Big Data Strategy is below.

The OAIC also helped agencies and organisations navigate the line between open data and privacy protection through its publication in April 2014 of resources on de-identification. More information about the de-identification resources is below.

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Information policy activities in 2013–14

Big Data Strategy and Working Group

The OAIC was a member of the Big Data Strategy Working Group, convened by the Australian Government Information Management Office (AGIMO), a part of the Department of Finance. The Big Data Strategy Working Group was tasked with developing the Australian Public Service Big Data Strategy, which was finalised and released in August 2013.

The key message of the Strategy is that the Australian Public Service should view data as an asset and exploit it for the benefit of the Australian community, while also ensuring adequate privacy and security safeguards. The emphasis within the Strategy on 'data as an asset', privacy and open government is consistent with suggestions made by the OAIC during the development process.

Notably, three of the six 'Big data principles' set out in the Strategy were:

  • Data is a national asset
  • Privacy by design (specifying that privacy be considered throughout the lifecycle of a big data project)
  • Enhancing open data (which encouraged agencies to follow the OAIC's Open PSI Principles).

These principles bring together the central elements of the OAIC's policy positions on information policy, FOI and privacy. The Strategy can be found at Big Data.

During 2013–14, the OAIC also attended meetings of the Whole-of-government Data Analytics Centre of Excellence Leadership Group, established to carry forward the actions proposed in the Strategy and, more generally, to build analytics capability across government and share technical knowledge, skills and tools. The Big Data Strategy Working Group advanced a number of projects including the development of an Australian Public Service Better Practice Guide for Big Data. This Guide can be found at Big Data.

Guidance for agencies and organisations on de-identification

After a public consultation process, the OAIC published two resources (aimed at business and government respectively) on de-identification in April 2014.

The resources provide general advice about de-identification to assist agencies and organisations in balancing privacy and transparency objectives in information management. They provide guidance on when de-identification may be appropriate, how to choose suitable de-identification techniques and how to assess the risk of re-identification.

For agencies, de-identification may also offer a technique to maximise the utility and value of government information assets while safeguarding privacy and confidentiality. This advances the OAIC's Open PSI Principles and the objectives of the FOI Act, that government information be treated as a national resource and, as such, be managed for public purposes.

The OAIC's de-identification resources are available at the OAIC's website.

Open data quick wins

In May 2014, the OAIC published a new information policy agency resource entitled Information Policy agency resource 2: Open data quick wins — getting the most out of agency publications. The main purpose in developing this resource was to encourage agencies to make small but effective changes to their information publication practices to make their data more usable.

Many government reports include agency data about financial, economic, social or regulatory activity or trends, or present data in formats unsuited to reuse (such as publishing tabular data in a PDF file rather than a reusable spread sheet format). Often the underlying raw data could be released alongside the report in a reusable open data format (and, where appropriate, in de-identified form).

The resource is a concise, easy-to-follow checklist encouraging agencies to:

  • assess upcoming agency publications, websites, mobile apps and other agency information resources to identify datasets suitable for release in 'open' formats
  • ensure the agency has access to the raw data and the right to publish it
  • prepare, publish and refine the data.

The resource reflects the OAIC's Open PSI Principles and the findings of the OAIC's Principles to Practice report in 2013. It also draws on existing guidance from other agencies, such as the open data advice in AGIMO's Web Guide.

Information Policy agency resource 2 is available at the OAIC's website.

Open Government Partnership

The Open Government Partnership (OGP) is a multilateral initiative that aims to secure concrete commitments from governments to promote transparency and open government in their jurisdictions.

On 10 January 2013, the Information Commissioner wrote to the Attorney-General's Department (AGD) supporting Australia's participation in the OGP. The Information Commissioner's letter outlined the timetable for Australia's possible membership, the tasks to be undertaken (including the preparation of a country action plan), and the work that the OAIC could carry out subject to appropriate resourcing.

In May 2013, the then Attorney-General announced Australia's commitment to join the OGP. In September 2013, the incoming Government put the matter of whether to proceed with Australia's membership of the OGP under consideration. At the November 2013 joint meeting of the Information Advisory Committee and Privacy Advisory Committee (both chaired by the Information Commissioner) the matter of Australia's membership to the OGP was discussed and culminated in the Information Commissioner writing to the Attorney-General in January 2014 to communicate the Committees' support for Australia's membership.

At 30 June 2014, Australia's membership to the OGP was under consideration by the Australian Government.

Other engagements with stakeholders on information policy

During 2013–14, OAIC Commissioners and staff participated in a range of groups and forums aimed at progressing various aspects of information policy and management.

In 2014, the Data Sharing Efficiency Working Group held its first meeting. This Working Group was established by the Secretaries Board to enhance the Australian Government's capacity to use and share data. In particular, the Working Group was charged with:

  • examining the current legislative, regulatory and ethical environment with a view to enhancing data availability for agencies and increase the ability to further identify opportunities for efficiencies
  • raising awareness across agencies about the contribution data analytics can make in the development, monitoring and evaluation of policy and programs, supported by more detailed training and education for agency teams.

The Data Sharing Efficiency Working Group is led by the Department of Communications and participants in the group include senior officials from the Australian Tax Office, the Treasury and the Departments of Finance, Health, Employment, Human Services, Social Services, Agriculture, Immigration and Industry. The Information Commissioner attended meetings of the Data Sharing Efficiency Working Group, providing input and expertise related to the Commissioner's role in advancing Australian Government information policy.

The Information Commissioner was also a member of the Crisp Revisited Reference Group, convened by the Australian Bureau of Statistics. The role of this Group was to provide input to a review of Australia's national statistical system.

During the reporting period, the Freedom of Information Commissioner continued to contribute to the implementation of the Australian Governments Open Access and Licensing (AusGOAL) Framework. AusGOAL is an initiative of the Cross-Jurisdictional Chief Information Officers' Committee (CJCIOC) to encourage greater and consistent use of open licensing by the Commonwealth and state and territory governments. The Commissioner served as the Commonwealth representative on the CJCIOC subcommittee responsible for coordinating implementation of AusGOAL and assisting the Commonwealth Government and state and territory governments to adopt open licensing.

Additionally, OAIC staff attended a range of other open government forums and meetings during 2013–14 aimed at encouraging sharing of information between agencies and enabling staff to keep up to date on open government developments, including the Open Data Government Community Forum and Mobile Community of Practice, organised by the Department of Finance and the AusGOAL Commonwealth Practitioners Group.

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