Information Management and Access Laws (AU0008)

Objective and description: Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age. As part of this, we will consider and consult on options to develop a simpler and more coherent framework for managing and accessing government information that better reflects the digital era, including the Freedom of Information Act 1982 (FOI Act), the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI Act), which is supported by efficient and effective policies and practices. Status Quo: In 2010, the Australian Government passed reforms to the FOI Act as part of a broader plan to improve transparency and to encourage public engagement in decision making. The 2010 reforms also included the introduction of the Information Publication Scheme, which requires agencies to provide a broad range of information on their websites, and amendments to the Archives Act to reduce the open access period for Commonwealth records from 30 to 20 years over a 10 year period. There have since been a number of reviews recommending changes to the FOI Act, including Dr Allan Hawke’s Review of Freedom of Information Laws and the Belcher Red Tape Review. Among other things, the Belcher Red Tape Review recommended the Attorney-General’s Department “begin work with relevant entities to scope and develop a simpler and more coherent legislative framework for managing and accessing government information during its life-cycle in a digital environment through staged reforms, commencing with legislation regulating archives.” The core frameworks of Australia’s information access laws (in particular the FOI Act and the Archives Act) have not been substantially altered since enacted in the early 1980s, when government operated in a paper-based environment. It is therefore appropriate to consider how access to government information is best managed into the future within the context of digital government. The implementation of Australia’s information access laws is overseen by the National Archives of Australia and the independent Office of the Australian Information Commissioner (OAIC). The Government is committed to ensuring the adequate resourcing of the OAIC to discharge its statutory functions, and provided funding for this purpose over the next four years in the 2016-17 Budget. Ambition: To develop a simpler and more coherent legislative framework for managing and accessing government information within the context of digital government, supported by efficient and effective policies and practices. Relevance: This commitment will advance the OGP values of access to information and public accountability by: ensuring government information access laws are modern and capable of meeting the demands of the digital age; increasing awareness of public access rights to government information; and improving efficiency of processing access to information requests. COMMITMENT DETAILS: OGP Grand Challenge: Increasing Public Integrity Improving Public Services; Timeframes January 2017 – July 2019; Lead agency; Attorney-General’s Department; (informationframeworks@ag.gov.au); Other actors involved; Government; The National Archives of Australia, the Office of the Australian Information Commissioner and the Department of the Prime Minister and Cabinet; Non-government; Non-government organisations (including Australian Open Government Partnership Network, Accountability Round Table, and Australian Privacy Foundation), peak bodies (including Law Council of Australia, Australian Press Council, Media Entertainment and Arts Alliance), archivists, academics and researchers, journalists, and state/territory information commissioners

8. Information management and access laws for the twenty-first century

Commitment Text:

Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age.

As part of this, we will consider and consult on options to develop a simpler and more coherent framework for managing and accessing government information that better reflects the digital era, including the Freedom of Information Act 1982 (FOI Act), the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI Act), which is supported by efficient and effective policies and practices.

Milestones:

1. AGD undertake work with a range of stakeholders (government and non-government) to better understand how current information frameworks operate in practice and identify issues.
2. AGD develop, in consultation with stakeholders, a range of options for reform to information access laws, policies and practices, including consideration of oversight mechanisms.
3. AGD conduct broad public consultation on options for reform to information frameworks.
4. Recommendation to Government, informed by consultation outcomes, on preferred reforms to deliver a coherent and simpler framework for information management and access, supported by effective and efficient policies and practices, that is appropriate for the digital information age.
5. Implementation of Government decision on reforms to information access laws, policies and practices.

Responsible institution: Attorney-General’s Department

Supporting institution(s): The National Archives of Australia, the Office of the Australian Information Commissioner and the Department of the Prime Minister and Cabinet and various non-government actors.

Start date: January 2017 End date: July 2019

Editorial Note: This is a partial version of the commitment text. For the full commitment text, see the Australia National Action Plan available at https://www.opengovpartnership.org/wp-content/uploads/2001/01/Australia_NAP_201....

Context and Objectives

This commitment will review the operation of current information access laws, policies and practices to inform reforms. There are more than 72 different sources of legislation, policies, standards and guidance that impact on government agencies’ recordkeeping and information management responsibilities, including the Freedom of Information Act 1982 (FOI Act), Archives Act 1983, and Privacy Act 1988. [1] As several reviews of this information management framework have noted, the number and complexity of these different and overlapping sources make it difficult for government agencies to identify their obligations.

There have been several relatively recent government-commissioned reviews, informed by submissions and contributions from government, business, civil society groups and the broader community, on the state of access to information in Australia.[2] Some of their main findings include the fact that legislative and administrative changes were needed to make FOI procedures more streamlined and increase agencies’ capacity to manage the FOI workload.[3] They also found the current records management system inadequate and in need of a move towards a system inclusive of the whole-of-Government.

Some of the recommendations made as a result of these reviews included: (a) undertaking a comprehensive review of the FOI Act, (b) reducing the administrative burden of FOI processes by adopting least burdensome mechanisms, considering more active publication and consolidating FOI publication requirements with other government initiatives such as the digital transformation agenda;[4] (c) that the National Archives of Australia work with entities to be more closely involved in policy development processes and decision-making forums on government information management, including digital transformation-related matters;[5] (d) that the Attorney-General’s Department (AGD) develops a simpler legislative framework for accessing government-held information, [6] and (e) developing a policy across the Australian Public Service requiring the creation and retention of records of deliberative discussions in all forms, including digital.[7]

The reviews and their findings represent both recognition of the need for a wide-ranging review of information management practices within the Australian Public Service and the difficulties of doing so.

It is in this context that this commitment seeks to simplify the access to information framework by putting in place updated policies and information sharing practices. The AGD has undertaken to work with a range of stakeholders to better understand how current information frameworks operate in practice and the issues those frameworks present, to use that understanding to develop options for reform, and then to consult broadly on those options to inform a recommendation to government.

One concern raised in interviews for this report was uncertainty over the scope of this commitment and what issues are likely to be considered. For example, participants in the Melbourne open meeting questioned whether significant concerns over the level of funding of the OAIC, given its crucial role in the administration of the FOI Act and Privacy Acts, would be addressed in implementing the commitment.[8] To the extent that access to information also potentially extends to public engagement and consultation, access to government data, grant and procurement information, digitisation of government services, and the role of Archives in providing guidance on access to government records, the relationship between this commitment and others in the national action plan was also raised.

Uncertainty also extended to the process of consultation that would be undertaken, whether submissions to previous reviews would be considered, and what level of resources would be available to undertake the review.[9] Officials from the AGD indicated that the commitment had been broadly interpreted so as not to close off any issues that might be relevant and to encourage as many new ideas and approaches as possible.[10]

Given the potential breadth of the inquiries to be conducted, uncertainty over the consultation process at each stage, the wide range of issues presented in previous reviews and new issues likely to arise, and the range of reform options that might be considered, this commitment is of low specificity.

This commitment is of minor potential impact. The extent to which implementation of the commitment will increase access to information is unclear. As discussed above, while the reviews that have lead up to this commitment have been premised on the value of access to information, they have also been concerned about the burdens placed on agencies in meeting access to information obligations. Previous reviews had also raised concerns over having to release material to support the deliberative processes of government policy formulation. This commitment, as written, would not address these concerns.

The commitment includes working with stakeholders outside of government to identify issues and develop and explore options for reform. The commitment will therefore create opportunities for the public to participate in reviewing access to information laws, though the extent of this contribution is unclear. Similarly, as the context of the commitment includes the use of digital information by government agencies, there may be scope for technical innovation to play a role in increasing transparency or participation in the future.

Completion

Milestone 8.1: This milestone was substantially completed. The AGD consulted with 32 government agencies, 17 civil society members and nine end users up to July 2017 in meeting its commitment to better understand current information frameworks and develop options for reform.[11] A list of the bodies consulted is now available on the AGD’s website.[12] Although there was no formal request for submissions, two submissions were also received – from the Accountability Round Table criticising the decrease in funding of the OAIC, and from the Australian Society of Archivists suggesting a range of issues to be considered in the reform process.[13] The AGD did not make feedback on the results of the consultation public. Some individuals who were consulted as part of this initial phase indicated that they had been asked to describe their engagement with government information access practices and given the opportunity to raise any issues that arose out of that engagement.[14]

Milestone 8.2: This milestone was not commenced within the implementation period for this report. The expected timetable of developing options for reform by the end of June 2017 was not met. On 30-31 August, the Attorney-General’s Department held a workshop in conjunction with the Department of Human Services Design Hub.[15] Participants at that workshop have indicated that some findings of the initial consultation were presented but participants were asked not to make them public.[16] Some common themes raised by workshop participants have been made available on the PM&C OGP website,[17] including:

• the need for cultural reform within government agencies to encourage improved information management practices;
• recognition of the role of government in holding information in trust on behalf of the public and the individuals who have provided the information;
• costs efficiencies from currently available systems are available;
• the need to improve education of government and the community on issues relating to information access and management.

The Attorney-General’s Department has indicated that they will consider feedback from the workshop and other consultation ‘to date’ in preparing advice to Government.[18] There has been no further consultation on options for reform.

Milestones 8.3-8.5 were not started at the end of the first year of implementation.

There were no early results available for the period of implementation considered in this report.

Next Steps

The need for a comprehensive review into information management and access to government information laws and practice has been widely recognised. However, given the potentially broad scope and complexity of the issues that have or might arise in any such review, a more detailed and specific program for consultation should be developed and made public, and include the identification of available resources and relationship with other OGP commitments.

Commitment 8. Information management and access laws for the twenty-first century

Commitment Text:

Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age.

As part of this, we will consider and consult on options to develop a simpler and more coherent framework for managing and accessing government information that better reflects the digital era, including the Freedom of Information Act 1982 (FOI Act), the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI Act), which is supported by efficient and effective policies and practices.

Milestones:

1. AGD undertake work with a range of stakeholders (government and non-government) to better understand how current information frameworks operate in practice and identify issues.
2. AGD develop, in consultation with stakeholders, a range of options for reform to information access laws, policies and practices, including consideration of oversight mechanisms.
3. AGD conduct broad public consultation on options for reform to information frameworks.
4. Recommendation to Government, informed by consultation outcomes, on preferred reforms to deliver a coherent and simpler framework for information management and access, supported by effective and efficient policies and practices, that is appropriate for the digital information age.
5. Implementation of Government decision on reforms to information access laws, policies and practices.

Responsible institution: Attorney-General’s Department

Supporting institution(s): The National Archives of Australia, the Office of the Australian Information Commissioner and the Department of the Prime Minister and Cabinet and various non-government actors.

Start date: January 2017                                           End date: July 2019

Editorial Note: This is a partial version of the commitment text. For the full commitment text, see the Australia National Action Plan available at https://www.opengovpartnership.org/sites/default/files/Australia_NAP_2016-2018_0.pdf.

Commitment Aim:

This commitment will ensure Australia’s information access laws, policies, and practices are modern and appropriate for the digital information age. The commitment responds to recommendations of three recent government commissioned reviews which highlighted the need for a wide-ranging review of information management practices within the Australian Public Service. Under the commitment, the Attorney-General’s Department (AGD) will work with a range of stakeholders to better understand how current information frameworks operate in practice and the issues those frameworks present, use that understanding to develop options for reform, and then consult broadly on those options to inform a recommendation to government.

Status

Midterm: Limited

In January to June 2017 the AGD undertook a discovery phase of user research. As part of this phase, according to the AGD, 113 individuals were consulted to determine what users need, expect, and experience when using information frameworks. Consultations were held with individuals from 33 government agencies, 28 civil society members and 10 end-users in meeting its commitment in milestone 1 to better understand current information frameworks and develop options for reform. [97] However, options for reform had not been developed, and the other milestones had not started.

For more information see the midterm Progress Report.

End of term: Limited

Consultation on understanding current information-handling practices and developing options for reform (milestone 1) continued with an additional government agency, 11 civil society members and one end user being consulted. The AGD made public on its website a full list of participants in consultations, an aide memoire for the August 30-31 Policy Jam sessions, and three submissions. [98] On 25 July 2017, it held a showcase to present its discovery phase findings to key government stakeholders, but has not made this public.

As part of identifying issues in access to information frameworks with stakeholders (milestone 1) and developing reform options (milestone 2), on 30-31 August 2017, the AGD held a two-day ‘Policy Jam’ workshop in conjunction with the Department of Human Services Design Hub. Participants included government representatives and civil society stakeholders, including members of Accountability Round Table, Law Council of Australia, archivists, and academics. THE AGD made feedback from the ‘Policy Jam’ available on its website in February 2018. [99] The workshop was intended to bring together key stakeholders and develop design options for reform of the Freedom of Information (FOI) Act and Archives Act, in what was presented as ‘a different way to develop policy’. [100] The workshop identified key problems and then discussed them in small groups. They included:

1. Ensuring government and the public have a shared understanding of information ownership;
2. Removing silos in government information;
3. Making government information easier to discover and access;
4. Achieving a proactive information release culture in government; and
5. Improving efficiency and effectiveness of information recording and storage across government.

Proposals put forward during the workshop included: establishing an advocate and advisory board to hold government to account in relation to information release; making information accessible by default through a ‘push’ rather than ‘pull’ method; establishing a roadmap for reuse of skills, knowledge, and information across government, including digital capability; real-time notification of personal records creation; establishment of a single business information system used across government enabling sharing of information between agencies; and greater user control over use of their personal information within government. [101]

Participants at the workshop were informed that the AGD would consider a range of proposals, including ideas generated from the workshop, that will inform recommendations to government on reform options. [102]

Although the range of stakeholders consulted purportedly included members of government, civil society, and academia, the basis of how those consulted were selected has not been made public. There has been no public consultation or information made available other than the feedback on the workshop which was made public some seven months later. Any options not discussed during the workshop which were considered by the department and part of its proposals put forward to government have not been made public. Therefore, there has been only been limited completion of milestone 3: broad public consultation on options for reform to information frameworks.

The AGD, in its reports to the OGP Forum, has stated that it provided recommendations to government in December 2017, setting out possible next steps to improve the operation of current information management and access frameworks. [103] Following the appointment of the new Attorney‑General, the recommendations were re-submitted to the government in March 2018. Those recommendations are not publicly available (milestone 4). The government has yet to make a decision on the recommendations (milestone 5).

Did It Open Government?

Access to Information: Did Not Change

Civic Participation: Marginal

The lack of any public feedback on the results of the consultation process, particularly in relation to the consultation with government agencies, has meant that there has been no additional information made available on how current information frameworks operate in practice and issues that might need to be addressed. There has therefore been no change to government information available to the public nor any change to the operation of current access to information laws or information management processes.

The consultation process has also been limited to individuals and groups identified and contacted by the AGD or invited to take part in the ‘Policy Jam.’ While the consultation process was limited to key stakeholders that were invited by AGD to take part in the ‘Policy Jam’ workshop, several participants commented on the innovative nature of the workshop and its encouragement of new ideas.9 There is no publicly available information on whether or how recommendations made to government (milestone 4) took into account the options developed at the Policy Jam or other feedback from the consultation to date.

Carried Forward?

There is no commitment directly relating to information management reform in the second national action plan. [104] The second national action plan includes, however, a commitment to continue to implement incomplete commitments and publicly report on progress to the OGP Forum. [105] It is also noted that the commitment to implement the government decision on reforms to information access laws, policies, and practices is expressed in the first national action plan as continuing into 2019.

The second national action plan also includes a commitment to engage Australians in an independent review of the Australian Public Service (APS). The terms of reference for the review includes the future suitability of the APS’s architecture and legislation and ensuring the transparent and effective use of taxpayers’ money in delivering outcomes. [106] The commitment includes encouragement of wide participation and input into the review, use of artificial intelligence and natural language-processing capabilities in analysing submissions, and testing ideas in an open and iterative manner. This review therefore may potentially extend public participation and use of new technology in reviewing information management legislation, policy, and practices in a way relevant to this commitment.