As governments become proverbial data hothouses (not just capturing but also generating their own high-value data assets), public interest in this information treasure trove inevitably increases.
The role and remit of independent information regulators is therefore critical to maintaining citizens’ trust in government as a rightful servant, not master, of its constituents. As WA’s Information Commissioner, Catherine Fletcher is proud to serve as one of Australia’s chief advocates and arbiters for citizens’ information access rights, connecting the public to what are, essentially, publicly held data assets.
We recently spoke with the Information Commissioner to explore how – despite some glaring missteps – government can still engender citizen trust in public agencies to handle personal data, on creating an ethical and citizen-centric inter-agency data sharing regime, and WA’s streamlined solution to FOI, setting the state apart from what many consider Australia’s byzantine Freedom of Information process.
FST Government: You were appointed Information Commissioner in 2019. Firstly, what drew you to the OIC and what have been some of your proudest initiatives during this time?
Fletcher: I was appointed as Acting Information Commissioner in July 2018 and then appointed one year later as the Information Commissioner. Most of my legal career before my appointment was as a criminal prosecutor in State and Federal agencies, although I had also worked in criminal defence roles, at the State Solicitor’s Office and teaching law at universities.
I was drawn to the role, firstly, because I have always been fascinated by the significance of documents in legal work and their importance for recording the work of the public sector and, secondly, because I understood the role often involved the often-complex task of weighing up various public interest factors in deciding whether government documents are protected or exempt from disclosure under the FOI Act. I feel enormously privileged to be entrusted with that role.
Access to government information is an integral part of public-sector transparency.
I am most proud of the fact that I am often told that I have improved the visibility of our office because that enables me to better assist the public sector to be both accountable and transparent, and to make the public aware of their right to access government documents.
FST Government: How do you see the role and remit of IC evolving over the next few years, particularly as data assets of public agencies swell and digitalisation initiatives are baked into the operations of government?
Fletcher: I do see the role and remit with the OIC broadening as the data assets of government grow (probably exponentially). It should be expected that some people will seek to access some of these data assets in order to both understand and interrogate some of the policy decisions of government.
For example, during Covid the release of the underlying data behind some of the health modelling used to guide public health and safety policy. Within my own office, I expect there will be a need for enhanced digital skills in my office as we navigate our way around some of the digital information assets of government.
FST Government: How do you rate the progress and public embrace of Open by Design principles? What can the WA OIC and Government do to improve citizens’ understanding of their data access rights, as well as improve their access to data held by government?
Fletcher: Our office introduced open by design principles – agreed upon by all Information Commissioners across Australia – to the WA public sector in 2021. This year we’ll be actively promoting the take up of those principles among public sector agencies.
We will be looking for good examples of agencies that have embraced openness with government information and data so that we can point to what open by design looks like and the effect it has on both productivity, trust and transparency in those agencies.
FST Government: The Freedom of Information (FOI) document request process is perceived, at least from the citizen end, as being mired in unnecessary complexity (with government ultimately seen to be reluctant to share such data).
How is WA moving to improve the FOI request process, and how can digital serve to better facilitate this process?
Fletcher: For agencies that have moved onto the WA.gov.au platform, there is now a single online FOI request form that can be used in an FOI application to these agencies for documents. By using an online standard form, it is expected that those agencies will be able to respond in a more timely way to access requests and have all the information they need from the applicant in order to effectively address those requests.
FST Government: Seamless cross-agency (and even cross-tier) data sharing has become a first-order priority for many governments – as the Covid experience no doubt proved.
While the benefits are numerous, what are some concerns agencies need to address before connecting their datasets, ensuring data-sharing practices are ethically sound and operate in the public interest?
Fletcher: Issues around the protection of privacy must be at the forefront of any data sharing involving personal information.
Issues of de-identification and the risks of re-identification need to be thoroughly addressed, with complete transparency, in order to deal with the risks associated with dealing in personal information.
In turn, this gives people confidence and trust that their personal information will be handled appropriately by government.
FST Government: Public trust is hard won and easily lost by government. The WA Police, for instance, drew some notoriety after a recent audit found they had tapped WA Health Covid check-in data, contravening – if not the letter – at least the spirit of the law at the time (a loophole since closed by the McGowan Government). Such incidents no doubt increase public misgivings about sharing their personal data.
What can government do to maintain public trust in their collection and use of citizen data?
Fletcher: The WA Government has said it will enact comprehensive privacy legislation in Western Australia so that privacy principles and rights apply to the protection of personal information. That will make a significant difference because there are currently only limited privacy protections available in WA.
In order to give people the confidence that they are properly protected, any new privacy jurisdiction needs to be fully resourced and properly equipped with appropriate powers to deal with privacy breaches in a timely and comprehensive manner.
A properly resourced public and public sector awareness and education campaign to accompany the introduction of those laws is an important part of building that trust in government handling of personal information.
FST Government: The increasing use of AI and automation technologies within government has raised some concerns around the ethical implications resulting from these systems (for instance, data biases, as well as privacy and security concerns).
How can governments not only improve their approach to implementing AI but also build public trust in their increased use?
Fletcher: Trust in the use of artificial intelligence is possible if there is comprehensive transparency around its use and application to decisions that affect the rights of members of the public.
Robust application of privacy risk frameworks and oversight by a Privacy Commissioner will be a necessary part of giving the public the trust that these devices do not involve a risk or compromise to privacy.
FST Government: Finally, from your perspective as the IC, what is one quick win governments can do to improve how they service citizens?
Fletcher: One quick win would be to better support and make known the availability of an agency information statement that must be published annually by every agency (except a Minister or exempt agency) as required by ss. 94 – 96 of the Freedom of Information Act 1992.
The agency information statement must outline certain key information about the agency that would enable a member of the public to understand things about the agency, such as the structure and functions of the agency, how any functions of the agency affect members of the public, as well as a description of the kinds of documents available from the agency.
If the information statement was well understood and highly visible and searchable on the website of every agency, it would better empower people with relevant information about government that they can access it without the need for an FOI request.
Catherine Fletcher will be a featured panellist at the FST Government Western Australia 2022, exploring new ways to optimise information management, with the goal of improving policymaking and enhancing citizen experiences.