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Download (749.87 KB)Mr David Thodey
Chair
Independent Review of the APS
By email: apsreview@pmc.gov.au
Dear Mr Thodey,
Information Commissioner’s comments on Priorities for Change in the APS
The purpose of this correspondence is to respond to the opportunity presented to
provide feedback in respect of the report entitled Independent Review of the APS:
Priorities for Change (19 March 2019) (the Report). The following comments are
provided for your consideration.
Priority: develop stronger internal and external partnerships – An open APS,
accountable for sharing information and engaging widely
Second National Action Plan – Citizen survey on right to access government information
As NSW Information Commissioner I consider a strong public service is one that
encourages transparency through the release of information, including data in the public
interest. Transparency and accountability coupled with strong, institutionalised
mechanisms for public participation within the public sector are essential features of
open government. For open government to flourish proactive mechanisms should be
mandated for both the release of information and public engagement.
On behalf of the Association of Information Access Commissioners (AIAC), I engaged
with the Department of Prime Minister and Cabinet in the development of new
commitments for inclusion in the second Australian National Action Plan 2018-20,
released on 21 September 2018. The Information and Privacy Commission NSW (IPC) is
leading a further commitment in the second NAP to engage States and Territories to
better understand information access through data. This commitment will provide for
subnational participation in the Open Government Partnership process to build
understanding of information access frameworks. This will be achieved by:
- Facilitating administrative arrangements between State and Territory
governments and Australian Government officials responsible for Australia’s
Open Government commitments to support collaboration and learning on open
government matters (including highlighting the opportunity for formal subnational
cooperation and membership in the Open Government partnership); and
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www.ipc.nsw.gov.au
2. Engaging with Information Commissioners and Ombudsmen to seek agreement
to conduct surveys to measure citizens’ awareness of the right to access
government information, and their experiences and outcomes in exercising that
right. These surveys will inform activities to promote and support the right to
access government information.
The citizen survey measures the value that citizens place on the right to access
government information, their awareness of that right, and their experiences and
outcomes in exercising that right. The IPC has engaged with other information access
jurisdictions in Australia to develop the survey questions. The survey will be conducted in
April 2019 and the findings shared broadly during Right to Know Week in September
2019.
Open Government – GIPA Act
The GIPA sets a mandate for open government. The object of the Act is to maintain and
advance a system of responsible and representative democratic Government that is
open, accountable, fair and effective. The object of the Act is to open government
information to the public by:
- Authorising and encouraging the proactive public release of government
information by agencies - Giving members of the public an enforceable right to access government
information - Providing that access to government information is restricted only when there is
an overriding public interest against disclosure.
The GIPA Act designates four information release pathways. They include release of
government information informally to a person, release in response to a formal access
application and mandatory and authorised proactive release of government information.
Under the GIPA Act there is a general public interest in favour of the disclosure of
government information. The GIPA Act provides for a balancing of considerations in
favour of and against disclosure, having regard to the public interest. This is known as
the ‘public interest test’. The test requires consideration of:
- The presumption in favour of release of government information;
- Identification of factors in favour of disclosure;
- Identification of factors against disclosure; and
- Balancing of factors to determine where the public interest lies.
There is an overriding public interest against disclosure of government information if (and
only if) there are public interest considerations against disclosure and, on balance; those
considerations outweigh the public interest considerations in favour of disclosure.
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www.ipc.nsw.gov.au
Open Data Guideline
My office is also developing a guideline for issue under section 12(3) of the Government
Information (Public Access) Act 2009 (GIPA Act) for the assistance of NSW Government
agencies in considering public interest considerations in favour of the disclosure of
information. The guideline provides information and assistance to public sector agencies
and citizens regarding open data, including the definitions of ‘open data’ and ‘opening
data’ and release of government data using the access to information pathways under
the GIPA Act.
The Guideline also recognises the requirement for responsible stewardship of
information including a presumption in favour of disclosure; consideration of factors in
favour of and against disclosure of information. This approach to determining the public
interest in release of information is a mature and well developed statutory model that has
adapted to rapid technological change largely because the definitions contained within
the GIPA Act are technologically neutral. In my view, and as NSW Open Data Advocate,
I consider a firm principle of modern government is that it should use information, which
is a valuable asset, for democratic, economic and social advancement. Using information
strategically involves appropriate sharing – within government, with other governments,
and with business and the community. My role as Open Data Advocate aligns with my
role under the GIPA Act of promoting open government, including through proactive
disclosure practices.
Information sharing is most effectively done in the modern age through technological
channels, such as websites and data bases. Open data enables governments to be
transparent, collaborative and innovative. The NSW Government has endorsed this
approach through its Information Management Framework1 and Open Data Policy2.
Open Government – National FOI Metrics
Published on the IPC’s website is a dashboard of metrics on public use of freedom of
information (FOI) access rights.3 They enable the community to examine the
performance of their local FOI laws and to advocate accordingly. The metrics were
developed as a result of a commitment of Australia’s first Open Government National
Action Plan to develop uniform metrics on public use of FOI access rights to promote the
importance of better measuring and improving our understanding of the public’s use of
rights under freedom of information laws.
Open Government – Key Features of FOI Laws
As part of the examination by Australian jurisdictions of FOI access rights and proactive
release of government information, my office has led a project for the AIAC exploring the
key features of right to information (RTI) legislation. The key features present an
aspirational expression of an effective and efficient RTI/FOI legal framework.
1
2
3
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t 1800 ipc nsw (1800 472 679) | f 02 8114 3756 | e ipcinfo@ipc.nsw.gov.au
www.ipc.nsw.gov.au
The key features framework has been developed in recognition that RTI/FOI legislation
is an essential mechanism to enable members of the public the opportunity to scrutinise
the actions of government. Giving people access to the information used by policy
makers and governments provides a meaningful level of accountability and induces a
much higher level of public participation, awareness and interest in policy-making and
government itself.
The key features have been developed by drawing on:
-
Commitments that promote transparency and information access outlined in
Australia’s Open Government Partnership National Action Plan 2016-18, and
Open Government Partnership National Action Plan 2018-20 -
Agreed standards promulgated by international bodies such as United Nations,
the Organisation of American States, the Council of Europe, the Organisation for
Security and Cooperation in Europe and the African Union -
Academic commentary from recognised experts in FOI/RTI legislation, and key
indicators for a right to access information legal framework developed by Access
Info Europe and the Centre for Law and Democracy.4
Open Government – Engagement and Charter for Public Participation
Finally, I note the GIPA Act requires NSW government agencies to make open access
information publicly available. Such information includes an ‘agency information guide’
that must contain information about any arrangements that exist to enable members of
the public to participate in the formulation of the agency’s policy and the exercise of the
agency’s functions, among other things.5
In June 2018, I released the Charter for Public Participation – a guide to assist agencies
and promote citizen engagement6 (the Charter), which could be considered as a model
strategy for proactive engagement.
The Charter assists NSW agencies in seeking effective public input into the development
and delivery of policies and services. It provides a practical and principle-based
approach for embedding public participation in agency decision-making frameworks and
policy development. It brings together leading authorities and resources to build capacity
and guide the NSW public sector in engaging with the community. The Charter is
underpinned by the GIPA Act, which has as its object to advance government that is
open, accountable, fair and effective.
I hope these comments are of assistance. They are provided with a view to assisting the
consideration of ‘priority: develop stronger internal and external partnerships’ through an
open APS, accountable for sharing information and engaging widely.
4
Please contact my office, should you wish to view a copy of the key features document.
5
Section 20(1) of the GIPA Act.
6
https://www.ipc.nsw.gov.au/information-access/open-government-open-data-public-
participation/charter-public-participation-guide-assist-agencies-and-promote-citizen-engagement
Level 17, 201 Elizabeth Street, Sydney NSW 2000 | GPO Box 7011, Sydney NSW 2001 4
t 1800 ipc nsw (1800 472 679) | f 02 8114 3756 | e ipcinfo@ipc.nsw.gov.au
www.ipc.nsw.gov.au
Please do not hesitate to contact me if you have any queries. Alternatively, your officers
may contact Sarah Wyatt, Assistant Director, Legal Counsel and Regulatory Advice on
1800 472 679 or by email at sarah.wyatt@ipc.nsw.gov.au.
Yours sincerely
Elizabeth Tydd
Information Commissioner
IPC, CEO
Level 17, 201 Elizabeth Street, Sydney NSW 2000 | GPO Box 7011, Sydney NSW 2001 5
t 1800 ipc nsw (1800 472 679) | f 02 8114 3756 | e ipcinfo@ipc.nsw.gov.au