Access To Public Information:
A Key To Commercial Growth And Electronic Democracy

Conference - Stockholm
27/28 June 1996


Flags of 15 EU Member States

Access to public sector information: the Australian experience

Maeve McDonagh

Lecturer in Law, University College Cork, Ireland *


Access to public sector information: the Australian experience 
Information policy in the digital age 
Australian Information policy 
Legal Regulation of access to public sector information - the role of the Freedom of Information Act 
Implementation of Freedom of Information law in Australia

Application of the Freedom of Information Act to electronic documents Evaluation of the Freedom of Information Act 
Conclusion

Proceedings ]


Access to public sector information: the Australian experience

Policy on access to public sector information in the digital age is driven by two main principles. The first of these is the belief that access to public sector information is a human right and as such is an essential element of the democratic process. The second principle underlying policy on access to public sector information is that such information can constitute a valuable resource and its exploitation is necessary to the development of a private sector led market in information. The structure and content of a legal regime for the provision of access to public sector information will be determined by the relative influence of these perspectives. The aim of this paper is to examine the development of Australian policy and law on access to public sector information. The Australian Freedom of Information Act as the main element in the regulatory scheme for provision of access to public sector information and in particular its application to the provision of access to public sector information in the digital environment will be explored. The human rights perspective will be identified as the main influence on the formulation of law and policy on access to public sector information in Australia.

Information policy in the digital age

Numerous studies have identified the dual policy imperatives constituted by the human rights aspect of access to public sector information and the role of access in stimulating the information market. 1 
While recognition of both these principles can improve the provision of access to public sector information, their primary focus is on two different aspects of such access. For this reason, policies based on recognition of one of these principles to the exclusion of the other can have detrimental consequences. For example, a policy which favours the human rights perspective to the exclusion of all other considerations might include restrictions on the exploitation of public sector information by the private sector. Such restrictions could be detrimental to access to information in that competition and resulting innovation in the private sector can deliver new ways of providing access to information and to adding value to such information. Preventing the private sector from becoming involved in the dissemination of public sector information could mean that the fruits of such innovations would be lost.

On the other hand, when government policy favours the development of the commercial information market above the human rights issue, there could be a resultant lack of investment in the minimum infrastructure necessary to provide access to government information. In this case, the provision of access to public sector information would be channelled through the private sector with the result that the cost of access would be beyond the means of the average citizen.

A third scenario exists which could result in neither of the two policy imperatives being satisfied. This would arise in the context of the commercialisation of public sector agencies which then become involved in the dissemination of public sector information for profit. In such a scenario, the agency, mandated to operate on a profit seeking basis, would fail the human rights principle by not making public sector information freely available while at the same time frustrating the development of a private sector information market by distorting competition in that market. 2

The tension between the two policy perspectives centres on the fact that the more successfully the public sector delivers access to information the greater will be the threat to private sector exploitation of such information. In particular, issues such as the extent to which the public sector should itself become involved in the adding of value to information and the conditions under which public sector information is supplied to the private sector must be addressed. The question of unfair competition between public and private sectors in the dissemination of information is a significant one in this regard.

The development of the information society has thrown these problems into sharp relief. The potential for the provision of access to information has grown exponentially with the emergence of the digital age. While government policy on access to information has long been an important issue, it has taken on added urgency with the development of new ways of collecting, storing and presenting information. The public sector has significantly increased the volume of information it collects and much of that information is no longer held in traditional documentary form. Thus there is a need to develop policies which will encourage the development and harnessing of the new technologies to provide access to public sector information.

Australian Information policy

Since 1994, a number of government reports have been prepared on the policy issues surrounding the development of the ‘Information Superhighway’.3 While none of these has concerned itself exclusively with public sector information, the provision of access to such information through electronic means has been a feature of them all. The emphasis in these policy documents is very clearly on access to information as a human right. The most influential report, Networking Australia’s Future, the Final Report of the Broadband Services Expert Group which was issued in December 1994, sought to examine ‘the technical, economic and commercial preconditions for widespread delivery of broadband services to homes, businesses and schools in Australia’. It built upon earlier work such as a study of multimedia prospects for Australia, Commerce in Content and a cultural policy statement entitled Creative Nation which set out policy concerning access to cultural information through the new communications networks. The Report argued that communications networks should operate as a platform supporting social interaction, education, health and government services, business relations and Australia’s communications with the world. It emphasised the provision of access to information on an equitable basis stating, for example, that the ability to communicate and the right to have access to information are fundamental to a democratic society. Access to digital information and the ability to ommunicate electronically may become just as fundamental in the future.

Amongst the recommendations of the Group, was the establishment of community access points to enable the general public to access information. The Group’s report suggested that the development of these centres would offer considerable scope for improvement in the quality and effectiveness of the delivery of government services at a greatly reduced cost. The report further recommended that broadband links be provided to all schools, libraries, medical and community centres by the year 2001 and that in the meantime schools and libraries be connected to narrowband digital links for access to information services such as the Internet. It pointed to the need for consideration in the future of the building of an open-access ‘public space’, connecting government agencies, the business sector, cultural institutions, community groups and individuals.

In April 1995, the then Prime Minister, Mr Paul Keating, issued a policy statement entitled A National Strategy for Information and Communications Services and Technologies4 which asserted that the government would pursue, inter alia, the use of information and communications technologies to deliver government services to business and the use of networks to improve the delivery of social and employment services to Australians. He announced in that statement the governments decision to follow a recommendation of the Broadband Services Expert Group to establish a new body, the National Information Services Council. That body is charged with examining and discussing socio-economic issues associated with the growth and widespread adoption of information and communications services and technologies. The importance of the body is reflected in the fact that it is chaired by the Prime Minister.

The first meeting of the National Information Services Council was held in August 1995. The issue of access to information figured prominently in the agenda papers prepared for that meeting. they contained arguments to the effect that the right to communicate, and the right to access information, are fundamental to a democratic and equitable society and identified a range of groups with particular access needs, including: rural and remote, indigenous and ethnic communities, older people, people on low incomes and the unemployed, women, and people with disabilities. It was recommended that government access provisions be governed by the principles of non-discriminatory access to information services, co-operation between government industry and community, affordable and equitable access to carriers, community involvement in the development of the information infrastructure, adherence to open standards and interoperability towards the development of an open, affordable, multimedia environment, the promotion of research on the social and cultural aspects of new media development and the stimulation of the development of content. The proposals in respect of content included the establishment of community networks to be funded through joint government/industry funding. It specifically recommended that every effort be made to keep public information stocks, archives and databases in public ownership and that the public sector be encouraged to initiate provision of publicly owned copyright material held by agencies in digital form.

In terms of practical implementation of these policies Australia has begun to embrace the Internet as a means of disseminating public sector information. The following are examples of the provision of public sector information on the Internet. A comprehensive Australian Government Home Page exists which includes details of all government departments and agencies and contains full text versions of policy documents and government reports. Interestingly, one of the most successful initiatives in the provision of access to public sector information is the Australian Legal Information Institute (AustLII) which was not driven by the public sector itself but rather by a small group of legal academics.5 The Institute, which is mainly funded through Government grants operates on a non-profit basis. It provides free access to the biggest and most diverse range of Australian electronic materials which is available on any electronic service (over 2GB of raw text encompassing 400,000 documents - all of which are globally searchable). AustLII has over 1,800 users per business day. The promoters of the service have obtained the co-operation of the government in allowing the inclusion of materials subject to crown copyright. The Community Information Network (CIN), an initiative of the Department of Social Security, provides a network of publicly accessible CIN PCs located in libraries, community centres etc. It also maintains a web site which provides access to comprehensive information about social security schemes, the text of social security legislation, up to date rates of payment, on-line jobs listings and a directory of community organisations. The Parliament of Australia has initiated an Internet Trial which provides access to official lists of business before both Houses of Parliament, the daily programs of both Houses, Hansard, biographical data relating to Members of the Houses and other information. The National Library of Australia has established a service which provides access to the collections of libraries all over the country. It also co-ordinates an index of government information on the WWW. The Australian Bureau of |Statistics operates a web site featuring its most popular statistics and the ABS Catalogue of Publications and Products. The provision of on-line access to the public database and the ability to manipulate the information is planned for the near future. The Government Electronic Marketplace Service (GEMS) is an electronic information service that offers both government buyers and suppliers to government, purchasing advice, policy information and information on tender opportunities via the Internet.

Legal Regulation of access to public sector information - the role of the Freedom of Information Act

The Australian Freedom of Information Act as the main element in the regulatory scheme for provision of access to public sector information must be evaluated in terms of how it serves the twin principles of access to information as a human right and access to information as a means of stimulating the information market. The suitability of the Act in its current form to the provision of access to public sector information in the digital environment is also addressed.

Australia was the first country with a Westminster style of responsible government to introduce freedom of information legislation. The Act was introduced at federal level in 1982 as part of a programme of reform of Australian administrative law which included the establishment of the Administrative Appeals Tribunal to deal with challenges to decisions of government departments in a non court setting and the establishment of the office of Ombudsman to inquire into cases of maladministration. Since then all the state legislatures and the Australian Capital Territory (ACT) have followed suit. The main motivation for the introduction of such legislation was to deliver open and accountable government. This is illustrated by the statement of the purpose of the federal Freedom of Information Act contained in a 1996 Report which reviewed the operation of the Act. That purpose is declared to be the provision of a right of access which will enable people to

Implementation of Freedom of Information law in Australia

The Freedom of Information Act’s aim of opening up government has three main thrusts. Firstly it provides a right of access to government documents, secondly it provides for the publication of information concerning the operation of government agencies and finally it provides a right of amendment of personal records where these are incomplete or incorrect.

1. Right of access to government documents

The Act granted for the first time in Australia, a right of access to government documents. The scope of the Act is confined to government departments and bodies established for public purposes. Australia has followed the world-wide trend of moving some functions previously carried out within the public sector to independent corporate structures, referred to as government business enterprises. The application of the Act to such bodies is not uniform - some are subject to the Act while others are not, a third category consists of those enterprises which are excluded from the scope of the Act in respect of particular aspects of their activities. Applicants must pay for access to government documents but the fee can be waived or reduced. Fees are waived in respect of applicants own income support documents and there is a general discretion not to levy charges for example on hardship grounds or because release of the document would be in the public interest. Decisions on access must be given within 30 days of an application and refusal must be accompanied with reasons. The right of access is subject to a number of exemptions. Exemptions include those relating to disclosures which could damage security or defence interests, international relations or Federal-State relations. Cabinet and Executive Council documents are also exempt but there is an exception in the case of documents containing purely factual material. Internal working documents are exempt where disclosure would reveal advice or deliberations relating to the deliberative functions of an agency or Minister or of the Commonwealth government and would be against the public interest. This exemption does not apply to purely factual information or to reports of scientific or technical experts expressing an opinion on technical matters. Other exemptions relate to law enforcement, Commonwealth financial interests, documents the disclosure of which would involve an unreasonable disclosure of personal information, legal privilege, trade secrets, disclosure which would adversely affect the national economy or which would constitute a breach of confidence. There is also an exemption in respect of applications for all documents that relate to a specified subject matter where compliance with such a request would 'substantially and unnecessarily interfere with the other functions of the agency or Minister.'

There is provision for internal review of refusals to allow access to documents. An appeal may also be brought to the Administrative Appeals Tribunal (The AAT). The AAT has power to make any decision that could be made by an agency or Minister. From the AAT there is an appeal on a point of law to the Federal Court. Another route of review is via the Commonwealth Ombudsman. the Ombudsman unlike the Administrative Appeals Tribunal cannot in disposing of appeals, make binding determinations

2. Publication of Agency Particulars

In fulfilment of the second function of the Act, namely the publication of information concerning the operation of government agencies, the Act places a duty on Ministers to publish particulars of agencies including such information as the functions and powers of the organisation, arrangements allowing for public participation in the formulation of policy, the organisations administration, the categories of its documents and details on access procedures for documents. Ministers have to publish in the Federal Gazette all documents which may be used to make decisions or recommendations affecting rights, privileges, benefits, obligations, penalties or other 'detriments'.

3. Amendment of Personal Records

The right to have inaccuracies in personal records in the hands of government amended has been referred to as a ‘necessary adjunct to the right of access’.6 A person may seek to have a document that contains their personal information amended on the grounds that it is incomplete, incorrect, out of date or misleading. The agency must amend the document if it is satisfied that it is deficient in any of the aforementioned ways. Alternatively a person may apply for annotation of a document. The applicant provides a statement about the information contained in the document which unless it is irrelevant, defamatory, or unnecessarily voluminous the agency must add to the document. A person can apply for review of a decision concerning an application for either amendment or annotation.

Application of the Freedom of Information Act to electronic documents

The extent to which public sector information in electronic form can be accessed by means of the Freedom of Information Act is an important issue in determining the contribution of the Act to access to information in the networked digital environment. The issue arises in two main contexts. Firstly in respect of the right of access to government documents and secondly in relation to the publication of agency particulars. These are questions which have not yet been litigated.

a. Right of access to government documents

Here the most important issues are whether requests for access to information held in electronic form are covered by the Act and whether an applicant can require the provision of information in electronic form.

In terms of the former, the definition of ‘document’ is crucial since the Act provides for access to documents as opposed to information. This definition focuses very much on the existence of information in tangible form. However modern techniques of information storage and retrieval have rendered the traditional concept of a document almost obsolete. Efforts have been made to define document in terms which include material in electronic form. The definition includes:

s.4(1) 
(a) any of, or any part of any of, the following things: 
... 
(v) any article on which information has been stored or recorded, either mechanically or electronically. 
(vi) any other record of information

Clearly this definition would extend to information held on computer disks or CD-ROMs. Its application to internet web pages, on-line services and e-mail messages is less clear. It is concerned with providing access to an identifiable and recorded unit or part of a unit of information, the boundaries of which are clear. Information is no longer always contained in such neat packages. The Internet consists of a mass of textual, graphical, video and sound information existing in an amorphous and largely ephemeral state with the information flow determined by users rather than information providers.

The second issue concerning access to government documents is whether an applicant can require the provision of information in electronic form. The Act provides for access to documents to be provided in the following forms:

(a) a reasonable opportunity to inspect the document;

(b) provision by the agency or Minister of a copy of the document;

(c) in the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images;

(d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document.

There is a proviso to the effect that access to a document in the form requested may be refused where this would interfere unreasonably with the operations of the agency, would be detrimental to the preservation of the document or, having regard to the physical nature of the document, would not be appropriate; or where it would involve an infringement of copyright (other than copyright owned by the Commonwealth, an agency or a State).

By virtue of paragraph (b) so long as the information sought can be defined as a document for the purposes of the Act, the issue of the form of access appears relatively straightforward since it allows for provision of a copy of the document. However in the case of information held on tape or disk, access to the information stored on such media may require the use of computer software. Where the public body owns the copyright in the software, it is not clear whether it would be required to give the applicant a copy of that software. If the software required to access the information is proprietary software, it would appear that the public body would be entitled to refuse access to the software if that would involve an infringement of the software developers copyright. However it may be that such a use might be considered to be a fair use under copyright law. Indeed this problem is diminishing as vendors of document creation software increasingly provide free public domain viewers for the information compiled by their software.

b. Publication of agency particulars

This is the area where new technology and the Internet in particular has probably the greatest potential for transforming the manner in which public sector information is made available to the community. The development of the Internet greatly facilitates the provision of access to public sector information. Provided the issue of user access to Internet is successfully addressed, it is the ideal means of disseminating public sector information. Agencies can make large amounts of up to date information available at low cost compared with paper versions of the same information. From the users point of view, the information is easily accessible and they can readily confine their access to those items of information they require. Despite the obvious advantages of this means of disseminating public sector information, there is as yet no requirement in the Act that such information be published in electronic form. Any developments which have taken place in this regard have therefore been undertaken on a voluntary basis. This issue was addressed in a peripheral way in the 1995 joint report of the Australian Law Reform Commission and the Administrative Review Council7 on the operation of the Freedom of Information Act which recommended that the proposed FoI Commissioner should encourage agencies to make full use of advances in information technology to provide better access, for example on-line access, to government information.8

Evaluation of the Freedom of Information Act

The success of the Freedom of Information Act in achieving its stated objectives of delivering open and accountable government is difficult to gauge. However the ALRC/ARC Report asserts that the Act has a marked impact on the way agencies make decisions and the way they record information.9 The right of access to government documents is widely used. In terms of the number of requests which are made, these amounted to 35,690 in 1994-95, of which 77% were granted in full, 18% were granted in part and 5% refused. Requests made under the Act are predominantly in respect of the applicants own personal information.10 There is speculation to the effect that the cost of using the Freedom of Information Act may be deterring its wider use.11 There is evidence to suggest that the provisions of the Act concerning publication of agency particulars have been less successful, in particular that the information on the types of documents held by agencies, publication of which is required under the Act, is not easily accessible and is rarely used.12 The ALRC/ARC Report makes a number of recommendations aimed at strengthening the Act in the light of these problems.13 Overall however the Act is clearly successful from the human rights perspective.

Evaluating the Act in terms of supporting the development of a market for public sector information is a more difficult task. This is partly because supporting the information market was not one of the Act’s original objectives. Interestingly the broader opportunity for exploiting government information is recognised in the 1996 Report reviewing the federal Freedom of Information Act. It includes a statement to the effect that ‘government information is a national resource. Its availability and dissemination are important for the economic and social well being of society generally’.

At the practical level, there are no express barriers to the use of information obtained by means of the Freedom of Information Act by the private sector. In addition, the Act is open to use by legal as well as natural persons.14 However unlike the U.S. experience the introduction of Freedom of Information legislation in Australia has not given rise to the development of a private sector led market for public sector information. The development of such a market might appear to be at odds with Australian information policy as currently formulated, however it may be that greater participation by the private sector in using the Freedom of Information Act to access public information may have spin off benefits for the community as a whole, not only in terms of development of the economy but also in delivering innovative methods for the dissemination of public sector information in the digital age. A hint that the broader role of the Freedom of Information Act is being taken seriously is found in the recommendation in the ALRC/ARC report that an office of Freedom of Information Commissioner be established with the holder having responsibility for promoting the objectives of the Act but also adopting a role in relation to broader information policy. In particular, it is recommended that the Commissioner encourage agencies to make full use of advances in information technology top provide better access, for example on-line access to government information.15Another recommendation concerns the institution of a standing arrangement for consultation between the Commissioner, the Director of the Archives agency, the Privacy Commissioner, the Chief Government Information Officer who is responsible for co-ordinating the use of technology in the public sector, the Ombudsman and the head of the government publishing agency. 16

Conclusion

Australian information policy and law have favoured recognition of the human rights perspective in providing for access to public sector information. Given its clear commitment to access to public sector information for all, the strong emphasis on access to public sector information as a human right can be expected to continue. The big question is whether the public sector can, on its own, deliver access to its information in a form which will benefit the public at large. At a practical level, the public sector has made considerable progress in the provision of government information via the Internet. The Freedom of Information Act has been successful in providing a legal framework for the provision of access to government information which while it clearly favours the human rights perspective, does not place any insuperable obstacles in the way of the development of the information market. One of the challenges faced in the improving the contribution of the Freedom of Information Act to the provision of access to public sector information is its application to information in electronic form. As is evident from the foregoing discussion, there is a need for amendment of the Act to facilitate such application. In particular, consideration must be given to the extension of the scope of the Act to cover information held on government networks and on-line services. More importantly, the Act should place a duty on government agencies to provide access to information on their services via the Internet and an on-line catalogue of government documents should be developed.

Proceedings ]


Footnotes

1 See for example, Prins, J.E.J., Vunderink, P.A.M., Franke, A.M., van der Klaau-Koops, J.D., Gerrit-Jan, J.D. Discussion Paper: Access to Public Sector Information, internal European Commission Legal Advisory Board Task Force Discussion document, 72 and Saxby, Stephen John Public Policy and Legal Regulation of the Information Market in the Digital Network Environment, PhD. thesis, University of Southhampton, January 1996, 128.

2 The problems caused by such policies of commercialisation in the U.K. are comprehensively analysed by Stephen Saxby, ibid..

3 The Networked Nation, 30/9/1994; Report of the Copyright Convergence Group, August 1994; Commerce in Content September 1994; Creative Nation, October 1994; Networking Australia's Future December 1994; Clients First: Report of Minister for Finance's Technology Review Group 1/3/1995; A National Strategy for Information and Communications Services and Technologies Statement by the P.M. 6/4/1995; Electronic Commerce; Commonwealth Government Statement of Direction, April 1995; Excellence in Content June 1995; Communication Future Project 1995; National Information Services Council First meeting 10/8/1995

4 6th April 1995 (28/95).

5 AustLII's Co-Directors are Andrew Mowbray of the University of Technology, Sydney and Graham Greenleaf, University of New South Wales.

6 ALRC Report No.22, Privacy para.1278.

7 Australian Law Reform Commission, Report No.77/Administrative Review Council, Report No.40 Open Government: A Review of the federal Freedom of Information Act 1982 (Subsequently referred to as the ALRC/ARC Report).

8 ibid. Recommendation 24, para.6.25.

9 ibid. para 2.8.

10 While there are no official statistics to support this, 90% of requests are made to four agencies that predominately receive requests for the applicant's personal information. These are the Australian Taxation Office, and the Departments of Veterans Affairs; Social Security; and Immigration and Ethnic Affairs. Source: ALRC/ARC Report Open Government: A Review of the federal Freedom of Information Act 1982

11 Supra, note 7, para 2.11.

12 ibid. para 7.7.

13 For example, Recommendation 29 which states that lists of decision making documents of agencies should be made available for inspection at all government bookshops, public libraries and branches of the relevant agencies

14 Since by virtue of the Acts Interpretation Act of 1901(Cth), s .2a the word 'person' in Commonwealth Acts ordinarily includes 'a body politic or corporate as well as an individual'.

15 Supra note 7, Recommendation 24.

16 ibid. Recommendation 26.

* B.A., LL.B., Dip.Sys.AN., LL.M., Solicitor, Lecturer in Law, University College Cork, Ireland, formerly Lecturer in Legal Studies, La Trobe University, Melbourne, Australia

Proceedings ]


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