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

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 6^th 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.