OPEN GOVERNMENT: IMPLICATIONS FOR INVESTIGATORS Elizabeth Tydd Information and Privacy Commission CEO NSW Information Commissioner November 2014

Source: Video by Telefonica, Telefonica Research and Development Music: CC Anthony Raijekov – EXIT 65 Extract from ‘How will the world be in 2020?’ Available at: Technology in 2020

For Investigators 1.What is Open Government? 2.What does Open Government mean for investigators? Examine Legislative Framework Operating Environment Investigation Processes Ethical Application

What is Open Government?

International Definitions “The transparency of government actions, the accessibility of government services and information, and the responsiveness of government to new ideas, demands and needs” (OECD) Transparency: that the public understands the workings of their government; Public engagement: that the public can influence the workings of their government by engaging in governmental policy processes and service delivery programs; and Accountability: that the public can hold the government to account for its policy and service delivery performance. (Global Integrity)

Global Open Government Data Initiatives Source: CC-BY:

The objects of the GIPA Act and the Public Value Proposition Broadly, statutory intent of the GIPA Act is to advance a system of responsible and representative democratic Government that is: 1.Open 2.Accountable 3.Fair 4.Effective

How important is information access to the public of NSW? 52% responded that it is very important 32% responded that it is quite important 84% (combined) said it was very/quite important.

NSW – Information Release Pathways under the GIPA Act Mandatory proactive release Section 6 of the Act specifies a consistent core of information that agencies must release unless there is an overriding public interest against disclosure Authorised proactive release Section 7 of the Act authorises agencies to make information available unless there is an overriding public interest against disclosure Informal release Section 8 of the Act authorises agencies to informally release information unless there is an overriding public interest against disclosure Access application Section 9 of the Act provides an enforceable right to access information by application unless there is an overriding public interest against disclosure

What does this mean for Investigators?

Information Access Sources

Open Government: What it means for Investigators? 1.Technological challenges and expectations 2.Legislative architecture 3.Operating environment 4.Rigorous investigation process 5.Ethical application of the investigative process

What is the Legislative Environment? Multitude of legislative and subordinate instruments, commencing with the agencies authorising legislation and including: Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 State Records Act NSW Copyright Act Protected Disclosures Act 1994 Children and Young Persons (Care and Protection) Act 1988  Guidelines  Fact sheets  Knowledge updates

What are the barriers to release of information real or perceived? s5 s12(1) Presumption in favour of disclosing government information unless there is an overriding public interest against disclosure General public interest in favour of disclosure of government information Part 2 Division 2 (Public Interest Considerations) Part 2 Division 2 (Public Interest Considerations) s12(2) Non-exhaustive examples of public interest considerations: (a)Promote open discussion of public affairs (b)Inform the public about the operations of agencies (c)Ensure effective oversight of the expenditure of public funds (d)Information is personal information of the person to whom it is disclosed (e)Reveal or substantiate an agency has engaged in misconduct Non-exhaustive examples of public interest considerations: (a)Promote open discussion of public affairs (b)Inform the public about the operations of agencies (c)Ensure effective oversight of the expenditure of public funds (d)Information is personal information of the person to whom it is disclosed (e)Reveal or substantiate an agency has engaged in misconduct Step 1: Public interest in favour of disclosure

s14(1) cl 1 Conclusively presumed that there is an overriding public interest against any government information contained in Schedule 1 Overriding secrecy laws Schedule 1 (Exemptions to GIPA disclosure) Schedule 1 (Exemptions to GIPA disclosure) cl 2 Cabinet information cl 3 Executive Council information cl 4 Contempt cl 5 Legal Professional Privilege cl 6 Excluded information cl 7 Law enforcement/ public safety cl 8 Transport safety (incident inquiry) cl 9 Adoption cl 10 Care and protection of children cl 11 Ministerial Code of Conduct cl 12 Aboriginal and environmental heritage cl 13 Complaints to Judicial Commission What are the barriers to release of information real or perceived? (cont’d) Step 2: Public interest against disclosure

s14(2) Considerations that may be taken into account as public interest considerations against disclosure Section 14 Table (Considerations against GIPA disclosure) Section 14 Table (Considerations against GIPA disclosure) T1 Responsible and effective government T2 Law enforcement and security T3 Individual rights, judicial processes and natural justice T4 Business interests of agencies and other persons T5 Environment, culture, economy and general matters T6 Secrecy provisions T7 Exempt documents under interstate FOI laws What are the barriers to release of information real or perceived? (cont’d) Step 2: Public interest against disclosure

Step 3: Putting it all together Should I disclose the requested information? Is the information sought the type which is contained in Schedule 1? Start with the general presumption in favour of disclosure Would disclosure of the information have the effect of any of the items in s14 Table 1? No ? ? A conclusive presumption outweighs public interest considerations in favour N N Apply the public interest test and determine the balance Y Y Y Y Ye s Presumption in favour of disclosure unless there is an overriding public interest against disclosure N N General presumption in favour of disclosure remains 4 4 Ye s s5 s1 3 s1 4 (1)

Operating Environment Structure of the Entity Access Storage Information management Categories Adequacy of searches

Rigorous Investigative Process Assessment Threshold Context Communicate Document Assign Statutory requirements Authorise Resources Scope Plan Initiate plan Purpose Methodology Refine scope Outcome pathways Investigation Authorise Identify Communicate Gather evidence Document Analyse/test Review Reporting Document Evaluate Communicate Recommend Determine Close Monitor

Ethical Application of Investigative Process Legislative framework and the operating environment: Impartiality Procedural fairness Confidentiality Communication Standard of proof Rules of evidence

Ethical application of Investigative Process (cont’d)

Ethical Guidance Know and action your professional responsibilities:  Government Sector Employment Act NSW 2013 – s7 Apply the law Fulfil your obligations to:  Search  Record  Assess Seek guidance – Behaving Ethically A Guide to NSW Government Sector Employees

More information Website: Free call:1800 IPC NSW ( ) Office:Level 11, 1 Castlereagh Street, Sydney NSW 2000 If you are deaf or have a speech or hearing impairment, call us through the National Relay Service (NRS) on If you would like the assistance of an interpreter, call us through the Translating and Interpreting Service (TIS) on