Enabling Tomorrow’s Open Government
Prof John McMillan, Australian Information Commissioner
Panel session presentation to the ‘Creating Open Government Conference’
hosted by the NSW Information Commissioner, Sydney, 21 August 2012
Open government is a different concept today than it was only a few years back. It will continue to evolve and differ in the years ahead. That is well illustrated by the program for this ‘Creating Open Government’ conference, which draws on an expansive range of concepts including ‘accountability’, ‘transparency’, ‘access’ and ‘engagement’. Before looking at the challenges that lie ahead, it is useful to stake stock of what has been achieved in the last couple of years in implementing open government in Australia. My comments focus on national government developments but there are parallel State developments. • There are new headline messages in the Declaration of Open Government in 2010 and a new objects clause in the reformed Freedom of Information Act 1982, about treating government information as a national resource, enhancing government accountability, using transparency to improve decision making, engaging the public, fostering public participation in government and promoting prompt and inexpensive public access to government information. • There are new platforms to facilitate open data and community engagement, such as • There is a raft of new government policies on publication of public sector information, online engagement, web accessibility, open licensing, digital record keeping, information sharing and innovation planning. • There is a new focus on diluting or reframing some of the legal obstacles to greater information sharing and reuse , such as statutory secrecy provisions, crown copyright and the security classification system. • Finally, there are many exciting initiatives underway across government to change the way that information is managed, such as Gov 2.0, AusGoal, the Innovation Action Plan, the National Plan for Environmental Information, and initiatives led by agencies such as the Australian Bureau of Statistics, National Archives of Australia, Office of Spatial Policy, Bureau of Meteorology and Australian National Data Service. Looking ahead, what issues should be in focus? I will note three big picture issues. 1. Reinforcing the new government culture of proactive information release
In open government terms, proactive publication is where you get maximum bang for the
buck. Agency led initiatives to provide information more effectively to the community are
also a powerful way of changing government culture to be more outwardly focussed.
Examples that have been given at this conference include the work of the Bureau of
Meteorology, which hosts the most visited government website in Australia; the MySchool
website that has received over 5 million hits; a crowd sourcing initiative in NSW to build at
marginal cost a new model for reporting traffic flows on the M4 Motorway; and the release
of a large number of government apps that enable people more easily to locate government
services and advice. In short, any sound definition of open government must now place
technology at the centre of the definition.
Technology is firmly embraced by government and new publication strategies appear by the week. Is there anything holding back this trend? One obvious constraint is resources. It can be costly and time consuming to prepare documents for web publication, especially documents that were not initially created for online publication. Converting a document into a fully accessible format can be a demanding task, particularly if the document contains tables, graphs, charts, pictures and multiple headings. An added concern for government agencies is that publication in a single or image-only format may breach disability and web accessibility standards. The unfortunate consequence can be that agencies become risk averse and publish fewer rather than more documents. My office recently undertook a survey of publication practices in nearly 200 Australian Government agencies. This was undertaken as part of our role in monitoring the operation of the Information Publication Scheme and promoting the Principles on open public sector information. The results published this week were pleasing – 94 per cent of agencies had published an Agency Plan for publishing information; 93 per cent had assigned responsibility for this initiative to an SES officer. However, agencies also identified the impediments to more open PSI. The top six in the list were moving to open licensing, complying with web accessibility guidelines, applying metadata to documents, adopting charging policies that balance openness and commercialisation, creating an internal governance structure that is aligned to a proactive release culture, and getting leadership support for this cultural change. These are weighty practical considerations that need to be addressed, or they will noticeably impede the development of a culture of proactive government disclosure. The cultural and attitudinal drawbacks come in other ways too. Reasons often given by agencies for their reluctance to publish more data are their reluctance to release unrefined data, the fear of legal liability if the public misconstrues or places unreliable reliance on published data, misrepresentation of the data by data recipients, and a reluctance to share commercially valuable data with firms that have not contributed to creating the data. Those are genuine and understandable hesitations, but they point to the work that lies ahead to bring about greater information sharing by government. 2. Sustaining political commitment
Open government plans rise or fall according to the degree of political enthusiasm they
attract. It is often remarked that enthusiasm is higher at the beginning of a political cycle
and drops away quickly. There can, again, be understandable reasons for this reluctance,
such as a desire by government ministers to rein in activities that are costly, a fear of
political embarrassment from uncontrolled disclosure, irritation that government
information will be misrepresented by the media or political opponents, and the
awkwardness of trying to develop sensitive policy in a goldfish bowl.
What can be done to reduce this risk of political or executive backsliding? How do we build an irreversible momentum for open government? One important strategy is to build a framework of open government policies, guidelines and platforms that will transcend the uncertainty or vagary of political commitment. Examples that I referred to earlier — strong access to information legislation, open data portals and open licensing guidelines — are important achievements. A second strategy is to link those and other developments in a state or national action plan for open government. An excellent example is the NSW Government ICT Strategy 2012, which provides a coherent and comprehensive plan for reform of government service delivery, online engagement, data release, ICT platforms, information sharing and ICT skills and innovation. The Premier has explained that ‘A key priority of the Strategy is a commitment to Open Government’. The development of a national framework for open government policy was an issue my office took up in an Issues Paper in 2010, Towards an Australian Government Information Policy. We plan to return to that theme in another paper in November this year to mark the second anniversary of the office. A related development mentioned earlier in this conference by other speakers is the international Open Government Partnership (OGP), which 57 countries have now joined. One of the requirements of membership is that a country publish a national action plan that contains concrete open government commitments and projects. Expert external evaluation of a country’s performance against the commitments in the country plan is another requirement of OGP membership. Impressive plans have already been published by, among others, the United States, United Kingdom and Canadian governments. The Australian Government has not yet announced whether it will join the OGP, though the matter is under discussion. 3. Reflecting on the role of access to information legislation in the open government
The quest for open government commenced decades earlier with the enactment of access to information legislation. This objective now embraces far more, including open data, open dialogue, public engagement, business and social innovation, and accountability and integrity in government. However, in both classical and popular terms, the core principle of open government is that a member of the public can say to a government agency ‘I want to look at that particular document’. More to the point, open government will always be about providing public access to documents that an agency was probably not going to publish or share voluntarily. In short, it is about unlocking official secrets. One of the perennial open government challenges will always be to make access to information legislation work effectively and smoothly. This has become a more complex challenge, for many reasons. Government now holds far more information, and much of it is recorded digitally and is held in multiple repositories (including desktop computers, back-up tapes and personal computing devices). The need to consult with third parties (businesses and individuals) arises more frequently in processing access requests. The costs of locating information falling within the scope of requests is often higher. The rigour required of any exemption decision can also be greater because of the need to balance competing public interest concepts. An added complication is that more access to information requests are now received by agencies, both informally and under access to information legislation. It is a good thing that access rights are used more frequently, but instances abound in which the rights are over-used. A particular problem facing agencies is that a large number of ill-framed requests can be made by an individual requester who does not necessarily act with a desire to learn more, but to pursue a pre-formed and settled view that the government agency to which the requests are made is corrupt or inefficient. In my earlier role as Commonwealth Ombudsman the same pattern was detected. The Australian ombudsman jointly agreed that it was necessary to balance our endorsement of the public’s right to complain, with guidelines on Managing Unreasonable Complainant Conduct. It is likely that there will be a growing need to strike a similar balance in relation to access to information rights: to promote the right to know, but also to recognise that document requests can place an untoward demand on government agencies and distract them from other program activities that also have a high public interest value. I partially addressed those issues earlier this year in a report to government on Review of Charges under the Freedom of Information Act 1982. The report proposed that a balance be struck between competing demands, in the following way: • FOI requesters should be encouraged through the charging system to make an administrative access request prior to formally invoking the FOI right of access • There should be no charge for making an FOI request (following an administrative access request), nor for the first five hours of processing • The next five hours of processing should incur a flat processing charge of $50 • After the first ten hours, the processing charge should be $30 per hour • An agency should have a discretion to decline to process a request that would take • There should be no processing charge for a personal information request, although the 40 hour discretionary ceiling would apply • The grounds for a public interest waiver of processing charges should be clarified, in particular, to focus on whether disclosure would be of special benefit to the public. Those recommendations attracted both support and criticism. The more important issue, however, is the need for balanced and informed debate about the role of access to information rights in the context of a broader open government program. Let me end on a different note. The development of open government over the past thirty years in Australia — and over the past couple of years in particular — is an enormous success story. There is still untapped potential in open government programs to further strengthen the practice of democratic government.


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