Q&A: Australia's Information Commissioner, John McMillan

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Q&A: Australia's Information Commissioner, John McMillan
John McMillan, Information Commissioner

On FOI, privacy, reuse rights and not stepping on too many toes.

He is charged with convincing Federal Government agencies to make more information accessible, oversees a team of 85 information and privacy professionals, and knows not to tread on the Attorney General's toes. But who is Australia's new Information Commissioner, John McMillan? John Hilvert endeavours to find out.

iTnews: Who is the Office of the Information Commissioner and what have you set out to do?

John McMillan, Information Commissioner [JM]:  We are launching a revitalised Freedom of Information Act which promises to provide people with information speedily at low cost.

But the second big change is emerging technology and open Government principles.

Technology places real pressures on Government in terms of how they interact with people and the expectations people have of Government. It's something of an unstoppable revolution.

Once you do things via technology, there is no turning back. Once you publish a red book (guide to new Government Ministers on their portfolio), everybody has to do it. So that's where we'll get a lot of activity - focusing on how Government will use technology innovatively for better records management and disclosure and publication online.

iTnews: Who will this drive this?

JM: It's being driven by a number of agencies: Finance, AGIMO [The Australian Government Information Management Office], the Department of Innovation. We're expecting to have a role in driving it. Just what our role is, is a little undefined, which is why we put out our issues paper to step into the arena and indicate we have a role to play in this space as well. Seventy percent of Government transactions with the public are online now. They are aiming for ninety percent.

That completely redefines Government does its business.

Once somebody is online they want an answer. They want it quickly. They don't want any messing around. They want to go beyond a simple dialogue and explore the options themselves.

The third big area is integrating FOI and Privacy rights. We take a different approach to the way information in Government is managed. There has long been a tension between FOI and privacy. There's no doubt privacy has been used as an excuse by agencies to prevent disclosure of information.

This is an opportunity to resolve that tension.

iTnews: Were all the FOI reforms sought passed in the new legislation?

JM: The initial proposals on fees was that journalist and non-Government groups would get the first five hours of decision-making time free and the others would get one.

There was a debate about whether someone was a journalist or not for the purposes of the Act. They resolved that by giving everybody FOI free for the first 5 hours. That was decided when the regulations were published Thursday, last  week. It was as recent as that.

iTnews: What are the typical fees?

JM: There used to be an application fee of $30. That's gone. Decision-making time is $20 an hour as previously. But now the first five hours are free. Search and retrieval time is unchanged at  $15 an hour. They give an estimate as well, usually.

The other thing about the charges provisions was the public interest waiver of charges between people and agencies.That will operate differently, because one of the new requirements is a disclosure log where an agency or Minister - within tendays of disclosing information under the FOI Act - has to publish it online or with a link or description from May 1 next year. There are exceptions for privacy or business.

It will be a lot easier to mount a public interest waiver argument. For example, some agencies have published their red book online - advice for an incoming Government - for free. (The "blue book" is if the Opposition gets in).

There have been FOI requests for that. Some agencies - Treasury and Finance have published theirs online. Some agencies have imposed an FOI fee for access. That was before the current Act came into force, though.

It will be interesting to see what happens now.

iTnews: How many people are employed in your office?

JM: There is 85 in total. About 60 working on the privacy side (Sydney) and about 25 on the FOI side in Canberra.

There are three commissioners. Information Commissioner (John McMillan), Privacy Commissioner (Timothy Pilgrim) and an FOI Commissioner (Dr James Popple).

iTnews: How do you deal with FOI grievances?

JM: The old system was you went internal review for $40 and then external review to the AAT. Under the new system, you can come direct to us, without an internal review.

I'd like to be a last resort. We are designing a review framework  so that the agency will take a second look as soon as we receive the complaint.  We'll do it in stages. We have all the powers of the AAT. You can appeal from us to the AAT. The AAT then does an identical review.

We'll have extensive guidelines - currently in draft - and agencies must have regard to those. But the AAT may not necessarily have regard to them. So there may be some interesting tensions to see how it operates.

iTnews: Who does your office answer to?

JM: We are loosely in the Prime Minister and Cabinet portfolio. Brendan O'Connor is the Minister for Privacy and FOI so our direct link with Government  is with him. Up until today, it was Special Minister of State.

This is better in my view - to be part of the former Attorney General's portfolio. You can get crowded out by AFP [Australian Federal Police], Customs, ASIO [Australian Security Intelligence Organisation]. We have a Minister whose functions match the title of the office.

iTnews: We took a liking to your idea of pressing SEO as a way to strengthen the possibility of finding Government information...

JM:: That's good to hear. We were sensitive to the importance of those strategies to ensure all published information can be indexed by search engines. 

iTnews: However your discussion of clear reuse rights of Government information - as stated in new draft principle #9 for agencies - seemed cast in ambiguous terms. While pressing for an open license approach you seemed to leave it for agencies to consider. 

JM: The reason is that AG's [the Attorney General's Department] is in charge of that area. We have to tread warily. The other agencies are big and have been in there for a while. They have all be welcoming. But if we were too robust, they may regard it as provocative. The first drafting of the principles was quite assertive using phrases such as "agencies must or should..." It was my decision to tone down the wording. I did  not want to get into a turf warfare battle with any other agency.

That toe in the water phraseology was mine. It's AG's turf.

iTnews: For example, you refer to the benefits of the public toilet map. But have you considered the rights issues over the public toilet map? (see http://www.toiletmap.gov.au/staticpage.aspx?page=copyright)

JM: No. It was just an example in our issues paper.

iTnews: Have you seen the copyright requirements of the Public Toilet Map? You should.

JM: [Looks] Oh I see. That's hopeless. That undermines what we have been saying. You'll be pleased to know that statement appeared on the front of of our website. We argued that it had to be taken off. Whether that was deliberate or not, I don't know.

That's the default position in Government and they just say that. You'll notice all our things have the creative commons licence.

iTnews: While it's true you can access Public Toilet Map on your mobile, you can't mash or repurpose it, as I read this copyright, without asking additional permission. So if you are incontinent and you have a handy GPS device or Google maps and you really need to go, you will find no help unless you separately have the app on your mobile.

JM: I don't have an opinion on this at the moment because the Government made a decision to leave IP and copyright with AGs. The Gov 2.0 taskforce recommended that we have responsibility for the area. But the Government decided that it remain with AGs. Then AG's put out their new statement of principles the other day, stating that it's up to each agency to decide ultimately.

They added that open licensing, creative commons, is what you should aim at. But it's ultimately up to each agency to make the decision. This is the start of the debate. There is nothing new about open access. The idea is really only catching on in Government now.

Their default position is that you put in Commonwealth copyright notice on everything you do. This is an area where our challenge is to examine what's happening and change agency practice for the better over the next two or three years.

If somebody appeals to us on an FOI application, you have to have a definitive answer - "yes its exempt or no, it's not". There is no room for an agency to say "...we are trying hard. Thank you for your ideas..". 

However agency information practice will be an area of challenge.

Australian Government agencies are well intentioned, but they are not world's best practice in innovative use of technology at the moment.  My aim is to improve that.

iTnews: What do you hope to achieve in your first 12 months?

JM: The first 12 months will be heavily embedding the FOI Act reforms. Then the 6th to the 12th month challenge is to ensure that we mastered the FOI privacy integration. The 12-month onwards is to focus more on information policy.

While we've started today by launching that issues paper, our opportunity to focus on those issues will be reduced in the next six to 12 months because FOI and privacy integration will be the bigger challenges.

The main area where will do information policy will be the Information Publication scheme that commences on May 1 next year.

iTnews: What is the Information Publication Scheme?

JM: At the moment FOI requires agencies to publish in the annual report section 8 statements, references to manuals of guidance and practice etc..

The new requirement is that it has to published on the Web.

Secondly the information you are required to publish is expanded. For example there has to be an information publication plan, and you have to publish operational information.

The third change is that agencies are encouraged to act additional information so they use the Information Publication Scheme as publishing.

The fourth requirement is the disclosure log, also commencing on the May 1. Agencies are already moving in that direction.

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