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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:

  1. 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

Level 17, 201 Elizabeth Street, Sydney NSW 2000 | GPO Box 7011, Sydney NSW 2001
t 1800 ipc nsw (1800 472 679) | f 02 8114 3756 | e ipcinfo@ipc.nsw.gov.au

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:

  1. Authorising and encouraging the proactive public release of government
    information by agencies
  2. Giving members of the public an enforceable right to access government
    information
  3. 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:

  1. The presumption in favour of release of government information;
  2. Identification of factors in favour of disclosure;
  3. Identification of factors against disclosure; and
  4. 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.

Level 17, 201 Elizabeth Street, Sydney NSW 2000 | GPO Box 7011, Sydney NSW 2001 2
t 1800 ipc nsw (1800 472 679) | f 02 8114 3756 | e ipcinfo@ipc.nsw.gov.au

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

Level 17, 201 Elizabeth Street, Sydney NSW 2000 | GPO Box 7011, Sydney NSW 2001 3
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:

  1. 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
  2. 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
  3. 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

www.ipc.nsw.gov.au