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Tuesday, June 15, 2010

Digital age calls for removal of digital impediments

An article by Jane Fae Ozimek in The (UK) Register Commons slapped for FOI fastidiousness raises issues about access to digital information that we may see play out in Australia. The question: would a request for digital information to be sent to an email address that will automatically publish the response be a valid application, and produce an eventual positive ruling, albeit after a two year battle, from the equivalent of the Information Commissioner here?

The Information Commissioner in a Freedom of Information decision has ordered a reluctant House of Commons ( yes, yes, I know you know that only the Tasmanian Parliament in this country will be subject to a similar law from 1 July, but will leave it at that) to release electronic copies of any documents discussing or evaluating the possible deployment of electronic petitioning systems in Parliament , and to send them to the website

The website enables the user to set up an account and to make an FOI request from that address, then forwards the request by email to the public authority. It automatically generates an email address e.g, which is unique to that request. When a public authority sends a response to that email address, the website automatically processes that response and publishes it to the website.

The House of Commons was willing to provide the information by way of an alternative email address, but claimed that it would not be reasonably practicable to provide the information to the email address generated by the website, as automatic republication would raise copyright implications.

The Commissioner ruled that the email address generated from the website and used for sending the request constituted ‘an address for correspondence’, the term used in the Freedom of Information Act for making a valid application, and that the House should provide its response to it.
"The Commissioner does not believe that issues relating to how an email address is connected to a publishing mechanism are relevant in terms of considering whether a valid address has been stated for correspondence."
The Commissioner also ruled  "that responding to a valid address, in compliance with the Freedom of Information Act is not a breach of Copyright. The subsequent publication of the information by the website automatically can still be addressed separately by the House as a copyright issue, outside of the FOI jurisdiction." View PDF of Decision Notice FS50276715

Without going into all the detail-and 8 different acts- the issues here would be whether an applicant could ask and insist on being given access to information in digital form, whether an email address complies with the requirements for a valid application, and whether provision of access and the automatic republication that would go with it raises potential copyright issues that could result in an agency decision to provide access in another form, such as an opportunity to view the information. That's not to mention the associated problem that an application has to be accompanied by a fee ( but not required in Tasmania from 1 July or Canberra from 1 November) and many-most?-agencies where payment is required don't offer online payment options.

Someone in a major media organisation that makes plenty of applications told me recently she hated FOI- getting a cheque out of the system was complicated enough but try queuing up at the local post office for a money order every time!

Asking for access in digital form seems not to be a problem here but getting it in that form may be. Some examples follow of how snail-mail still hovers in access to information laws, compared to the UK and elsewhere. Part of the problem might be that stipulation of an address in Australia was the way our law framers sought to limit access rights to those who had a connection with this country. All except Victoria where the FOI act (section 17) doesn't stipulate the need for an address of any kind, in Australia or elsewhere, and Queensland where the RTI act (section 24) , as in the UK, simply requires an address. Presumably an email address counts. But as to whether an email address is an address in Australia, as required in some cases?

The Commonwealth FOI Act (section 15) stipulates an application must state an address in Australia, and that it be sent by post or delivered at the address of any office specified in a current telephone directory and accompanied by the fee. The Government's FOI Guidelines Fundamental principles and procedures are silent on making an application electronically (presumably such a message is delivered in accordance with section 15) but [3.36-3.41] state an agency may provide an applicant with electronic documents and database information by tape or floppy in response to an FOI request.  As to copyright issues Nicholas Gruen notes almost no government has until recently licensed ‘creative commons’ (CC). "Now the (Federal) government has accepted our recommendation that CC be the default, and indeed that the default be one of the most permissive licences CC-BY which allows complete freedom to reproduce, and remix subject only to the acknowledgement of the original source."

The South Australian FOI act (section 13) and Western Australian FOI act (section 12) also require an address in Australia; and the Tasmanian RTI Act yet to commence (section 13) requires "the minimum information as prescribed in the regulations"-none have been published to date.

The NSW GIPA act from 1 July (section 41) states the application must include a postal address in Australia. Just why this formulation with postal added has replaced the 21 year old FOI act requirement (section 17) to "specify an address in Australia" I have no idea.There is a glimmer of hope for something more in line with modern expectations in this provision. Hopefully we will see some NSW agencies grab the opportunity. :
An agency may, with the approval of the Information Commissioner, approve additional facilities for the making of an access application or the payment of an application fee. An application made to any agency by use of such a facility is considered to have been lodged at an office of the agency and a fee paid by use of such a facility is considered to have accompanied the application
In all these instances there may be more complicated questions arising about provision of information in digital format and copyright issues.

Any tales of experience, from both sides of the desk, welcome.

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