Australian Securities and Investments Commission submission

2 March 2011

Australian Securities & Investments Commission

Office of the Australian Information Commissioner Issues Paper
GPO Box 2999
Canberra ACT 2601

Dear Commissioner

Issues Paper 1: Towards an Australian Government Information Policy ("Issues Paper")

As a large Commonwealth government agency the Australian Securities and Investments Commission (ASIC) takes seriously its obligations in promoting open government and welcomes this opportunity to comment on the first issues paper released by the Office of the Australian Information Commissioner (OAIC).

ASIC supports the adoption of a broad principles-based approach for the development of a framework for government information management. The draft principles in their current form reflect good information management practices, many of which ASIC already has in place.

In evaluating any changes that the adoption of these principles will necessitate in the manner in which ASIC manages the information it holds, we have identified some specific areas in which more substantial guidance would be of assistance. These are discussed below, in addition to the provision of some general comments.

1.Information Publication Schemes

The Issues Paper refers to the 2009 Report of the Government 2.0 Taskforce which anticipated the role of the OAIC in monitoring schemes and encouraging agencies towards achieving government pro-disclosure objectives through reference to exemplars and reporting unsatisfactory progress (p. 11). Assuming that the OAIC will be taking on this role, we would welcome further, more specific guidance on the monitoring and reporting process.

There is also reference to a discretionary element in the Information Publication Scheme which requires agencies to have a greater responsibility for considering whether documents they hold should be published. We note that agencies should have regard to both the Freedom of Expression Act 1982(Cth) (FOI Act) and any guidelines published by the Information Commissioner and await this further guidance.

2. Definition of 'Public Sector Information'

It appears that the Issues Paper is advocating for a more inclusive definition of public sector information than that contained in the FOI Act. Specifically we note the reference in the Issues Paper to the OECD definition (p.49) which includes information funded by or for the government or public institution, which is not included in the definition in the FOI Act.

ASIC agrees with the premise that the definition of "public sector information" is not as simple as it prima facie appears. In the light of this and the stated aim of ensuring a co-ordinated approach to government information management it would be helpful to have more detailed guidance as to the interpretation that the OAIC intends to adopt.

3. Application of the 'in the public interest test'

The Issues Paper highlights the renewed importance of the application of the 'public interest test' in the FOI Reform Act (p.23). While there is some guidance contained within the FOI Reform Act itself (e.g. the new section HB(3) and (4)) as to how the test should be applied it would be helpful to have more detailed information from the OAIC as to its interpretation of these provisions.

4. Draft principle 2 - Effective information governance

The second of the Draft Principles on Open Public Sector Information, "Effective information governance", states that information held by Australian Government agencies is a core strategic asset that should be managed effectively by a senior executive information champion (p.55). There is discussion in the Issues Paper about the need for strong internal leadership on information management, with the suggestion that many agencies have a chief information officer who has responsibility for information technology systems, and that this person might also be equipped to "foster public sector cultural change on information openness" (p.47).

We suggest that there is a conceptual difference between the role of a person entrusted with the leadership of information technology systems and the role of an 'information champion' who leads the organisation on policy decisions as to the role of open government and the application of the public interest test and has the overall responsibility for information management envisaged by the draft principles. It may therefore not be sufficient for this role to be 'tacked on to a pre-existing information systems based role.

5. Draft principle 8 - Appropriate charging for access

ASIC applies a number of charges for access to information held in its registries. As many of these charges are prescribed under the Corporations (Fees) Regulations 2001, law reform would be required for their alteration or removal.

Yours sincerely

Louise Macaulay
Commission Council