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Wednesday, November 03, 2010

The Minister and the Commissioner respond to questions

Transcripts of Q and A at Monday's launch of the Office of Australian Information Commissioner involving Minister O'Connor and Commissioner Professor McMillan at a doorstop at Parliament House, and an interview between the Commissioner and iT News both contain useful insights. 

The Minister resorted to  "Media 101" tactics in responding to questions at the doorstop about concern over a government proposal that companies providing internet access log and retain customer's private web browsing history for law enforcement to access when needed: he instead answered the questions he wished were asked about the new disclosure regime. (The Privacy Commissioner is reported to have said last week he is against such a scheme.) The Minister sounded much more at home answering questions about terroprism threats.

Some of the interesting responses are grouped below.

At the doorstop Professor McMillan spoke about the impact of publication of some red books on "frank and fearless" advice:
"Agencies are well used to freedom of information now for over thirty years and it was probably expected by the government departments that have published the red books that they would receive FOI requests for those red books and that publication was a possibility. Nobody to my knowledge has criticised the candour and professionalism of the analysis. There is no doubt that publication of information changes practices within government in terms of how policy proposals are prepared, but over time government learns to live with those requirements and tolerate far higher levels of disclosure than have been the practice in earlier years.

Professor McMillan in the iT interview said:

Red books
"Once you publish a red book (guide to new Government Ministers on their portfolio), everybody has to do it."

Open Government principles
"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."
"There is 85 in total. About 60 working on the privacy side (Sydney) and about 25 on the FOI side in Canberra."

FOI review processes
"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."

"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 (sic, but presumably meant to be "better not to be part of AGs"). 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."

Republication rights and copyright
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
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.

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.

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