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Australia

Information Management and Access Laws (AU0008)

Overview

At-a-Glance

Action Plan: Australia National Action Plan 2016-2018

Action Plan Cycle: 2016

Status: Inactive

Institutions

Lead Institution: Attorney-General’s Department (informationframeworks@ag.gov.au)

Support Institution(s): The National Archives of Australia, the Office of the Australian Information Commissioner and the Department of the Prime Minister and Cabinet; 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

Policy Areas

Capacity Building, Legislation & Regulation, Public Participation, Records Management, Right to Information

IRM Review

IRM Report: Australia Mid-Term Report 2016-2018

Starred: No

Early Results: Pending IRM Review

Design i

Verifiable: No

Relevant to OGP Values: Access to Information Civic Participation , Technology

Potential Impact:

Implementation i

Completion:

Description

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

IRM Midterm Status Summary

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_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.


[1] National Archives of Australia, Legislation, policies, standards and advice, August 2015, http://www.naa.gov.au/information-management/information-governance/legislation-standards/index.aspx; The requirements vary from mandatory or required practice to recommended good practice and information resources.

[2] Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010, 2013, https://www.ag.gov.au/Consultations/Pages/ReviewofFOIlaws.aspx (‘Hawke Review’); The Independent Review of Whole-of-Government Internal Regulation, 2015, http://www.finance.gov.au/publications/reducingredtape/ (Belcher Review); and Professor Peter Shergold, Learning from Failure: why large government policy initiatives have gone so badly wrong in the past and how the chances of success in the future can be improved, 2015, http://www.apsc.gov.au/publications-and-media/current-publications/learning-from-failure (Shergold Review).

[3] Hawke Review, at p 3.

[4] Belcher Review, Volume 2 at p 117.

[5] Belcher Review, Volume 2 at p 122.

[6] Belcher Review, Volume 2, at p 122-3.

[7] Shergold Review, Recommendation A.4 at p 24.

[8] Melbourne open meeting, 24 August 2017: See also Accountability Round Table, ‘Freedom of Information? Not so free now – Part 2. ART and the Audit of the implementation of the Freedom of Information Act 1982’, 14 November 2016, https://www.accountabilityrt.org/freedom-of-information-not-so-free-now-part-2-art-and-the-audit-of-the-implementation-of-the-freedom-of-information-act-1982/.

[9] Interviews with Kat Szuminska, Director, Open Australia Foundation and member, Open Government Forum, Phone meeting, 11 September 2017; Peter Timmins, Access to information advocate and Convener Australian Open Government Partnership Network, Sydney NSW, 23 August 2017, Associate Professor Johan Lidberg, Monash University, Melbourne VIC, 25 August 2017.

[10] Interview with Attorney General’s Department, Canberra ACT, 8 September 2017.

[11] Interview with Attorney General’s Department, Canberra ACT, 8 September 2017. See also Australian Government Mid Term Assessment at p 20.

[12] Attorney-General’s Department, ‘Commitment 3.1 - Information management and access laws for the 21st century’, https://www.ag.gov.au/RightsAndProtections/Australias-open-government-partnership/Pages/Commitment-3-1-Information-management-and-access-laws-for-the-21st-century.aspx.

[14] Interviews with Kat Szuminska, Director, Open Australia Foundation and member, Open Government Forum, Phone meeting, 11 September 2017; Peter Timmins, Access to information advocate and Convener Australian Open Government Partnership Network, Sydney NSW, 23 August 2017, Associate Professor Johan Lidberg, Monash University, Melbourne VIC, 25 August 2017.

[15] PM&C, Open Government Partnership Australia, ‘3.1 - Information management and access laws for the 21st century’, https://ogpau.pmc.gov.au/commitment/31-information-management-and-access-laws-21st-century.

[16] Interviews with Kat Szuminska, Director, Open Australia Foundation and member, Open Government Forum, Phone meeting, 11 September 2017; Associate Professor Johan Lidberg, Monash University, Melbourne VIC, 25 August 2017

[17] PM&C, Open Government Partnership Australia, ‘3.1 - Information management and access laws for the 21st century’, https://ogpau.pmc.gov.au/commitment/31-information-management-and-access-laws-21st-century.

[18] PM&C, Open Government Partnership Australia, ‘3.1 - Information management and access laws for the 21st century’, https://ogpau.pmc.gov.au/commitment/31-information-management-and-access-laws-21st-century.


Australia's Commitments

  1. Strengthen Anti-Corruption Framework

    AU0016, 2018, Anti-Corruption Institutions

  2. Political Donation Transparency

    AU0017, 2018, Legislation & Regulation

  3. Data Sharing

    AU0018, 2018, E-Government

  4. Improve Public Service Practice

    AU0019, 2018, Capacity Building

  5. Access to Information

    AU0020, 2018, OGP

  6. Enhance Public Engagement Skills in the Public Service

    AU0021, 2018, Capacity Building

  7. Independent Review of the Australian Public Service

    AU0022, 2018, Capacity Building

  8. Expand Open Contracting

    AU0023, 2018, E-Government

  9. Whiste-Blower Protections

    AU0001, 2016, Legislation & Regulation

  10. Beneficial Ownership Transparency

    AU0002, 2016, Beneficial Ownership

  11. Extractive Industries Transparency

    AU0003, 2016, Beneficial Ownership

  12. Combating Corporate Crime

    AU0004, 2016, Anti-Corruption Institutions

  13. Data Innovation

    AU0005, 2016, E-Government

  14. Public Trust in Data Sharing

    AU0006, 2016, Capacity Building

  15. Digitization of Government Services

    AU0007, 2016, Capacity Building

  16. Information Management and Access Laws

    AU0008, 2016, Capacity Building

  17. Freedom of Information

    AU0009, 2016, Capacity Building

  18. Access to Government Data

    AU0010, 2016, Capacity Building

  19. Electoral System and Political Parties

    AU0011, 2016, Public Participation

  20. National Integrity Framework

    AU0012, 2016, Anti-Corruption Institutions

  21. Open Contracting

    AU0013, 2016, Capacity Building

  22. OGP NAP

    AU0014, 2016, OGP

  23. Public Participation

    AU0015, 2016, Capacity Building