Management and use of Government information

The way Government information is used, communicated and stored is critical to the operations of the Australian Government and has implications for privacy, copyright, knowledge management, security, history and accountability.

The information management and record keeping framework places responsibilities on agency heads to ensure their agencies create full and accurate records, and that information is managed and communicated in a way that supports the role of the Government and the interests of the community.

This section covers:

• Disclosure of official information
• Freedom of Information Act 1982
• Privacy Act 1988
• Archives Act 1983
• Evidence Act 1995
• Senate Order on departmental and agency contracts (4 December 2003)
• Senate Order No 6 — Indexed lists of departmental and agency files
• Senate Order — Commercial-in-confidence material
• Senate Order — Government advertising
• Copyright Act 1968
• Management of Commonwealth IT-related intellectual property
• Electronic Transactions Act 1999
• Government minimum online standards and e-Government

Disclosure of Official Information

APS agencies hold large amounts of information concerning individuals, the development of Government policy, the commercial activities of organisations and matters affecting national security. While it is desirable, in a democratic system of Government, for there to be a free flow of information, there is also a need to place some restrictions on the disclosure of official information to protect the public, and the national interest.

Regulation 2.1 of the Public Service Regulations 1999 (as amended in July 2006) provides that an APS employee must not, except in the course of his or her duties, or with the agency head's express authority, disclose information about public business or anything of which the employee has official knowledge . However doubt was cast on the validity of regulation 2.1 by the decision in Bennett v The President, Human Rights and Equal Opportunity Commission [2003] 204 ALR 119 (the Bennett case). (From 22 December 2004 up to and including 16 June 2005 a different Regulation 2.1 applied, until it was disallowed by the Parliament – see Australian Public Service Commission Circular 2005/3.)

There are other legal restrictions on the disclosure of official information by APS employees. These include statutory provisions, such as several elements of the APS Code of Conduct in the Public Service Act 1999, the common law duty of loyalty and fidelity, and the equitable duty of confidence.

Unauthorised disclosure of official information may breach the Code of Conduct and result in sanctions under the Public Service Act. It may also breach section 70 of the Crimes Act, which makes it an offence for a Commonwealth officer to publish or communicate any fact, or document (except where authorised to do so) which comes into his or her knowledge or possession, and which it is his or her duty not to disclose.

In addition to information relevant to their functions, agencies hold considerable personal information about current and former staff and job applicants. It is sometimes necessary to disclose information on staff to other agencies, for example when an employee moves between agencies. Public Service Regulation 9.2 authorises the disclosure of personal information in certain circumstances, for example where the disclosure is necessary for the exercise of the employer powers of the agency head or another agency head, or for the performance of a function of the Public Service or Merit Protection Commissioner.

Freedom of Information Act

Tthe Freedom of Information Act 1982 (FOI Act) gives members of the public an enforceable right of access to documents held by most Australian Government agencies, limited only by exceptions and exemptions necessary to protect essential public interests and the private and business affairs of persons about whom agencies collect and hold information (section 11).

The FOI Act does not apply to a small number of agencies, including the intelligence agencies, and other agencies are exempt in relation to certain classes of documents (section 7 and Schedule 2). 

When a member of the public requests access to documents under the FOI Act, the agency must, within 30 days of receiving the request, identify and retrieve all relevant material and make a decision on whether to provide access as sought (section 15(5)). The 30 day time period can be extended by another 30 days where consultation with a third party is required under the FOI Act.

The exemptions to access are in Part IV of the FOI Act and the Schedules to the FOI Act.

An agency is required to take reasonable steps to assist a person wishing to make a request, or a person who has made a request which does not comply with the requirements of the FOI Act (section 15(3)).

Decisions under the FOI Act are subject to internal review and external merits review in the Administrative Appeals Tribunal (sections 54 and 55).

The FOI Act also provides an individual with a right to apply to an agency to have personal information about him or her amended or annotated if it is incomplete, incorrect, out of date or misleading (section 48). This corresponds to an equivalent right under principles 6 and 7 of the Information Privacy Principles in section 14 of the Privacy Act 1988. However, unlike the FOI Act, the Privacy Act contains no formal mechanism for processing such requests.

The FOI Act requires agencies to provide information about their functions and operations (section 8) and to ensure that rules, guidelines and practices affecting members of the public in their dealings with agencies are readily available to those affected by them (section 9).

Fees and charges are payable for FOI requests, although they are not required in some circumstances and may be remitted or not imposed on financial hardship, public interest or other grounds.

The Minister administering the FOI Act prepares an annual report on the operation of the FOI Act. The report contains a range of FOI statistics including request numbers and outcomes, response times and fees and charges notified and collected.

Agency heads are responsible for the proper application of the FOI Act in their respective agencies. Most agencies appoint a FOI Contact Officer to be the first point of contact, both internally and externally, for advice on FOI matters regarding their agency.

Privacy Act

The Privacy Act 1988 (Privacy Act) is the principal piece of legislation for handling personal information in the federal public sector and the private sector. The Privacy Act establishes the Office of the Privacy Commissioner, which has primary responsibility for assisting agencies to comply with the Privacy Act and to investigate complaints from individuals who consider their information has been mishandled.

The Privacy Act contains 11 Information Privacy Principles (IPPs) which apply to the federal public sector and 10 National Privacy Principles (NPPs) which apply to many private sector organisations. The IPPs and NPPs deal with all stages of the processing of personal information and establish standards for the collection, storage, use and disclosure of personal information.

IPP 1 states that an agency can only collect personal information by lawful and fair means and for lawful purposes that are necessary for, or that relate directly to, a function or activity of the agency. IPP 2 states that when an agency collects personal information it must take reasonable steps to ensure that the individual is made aware of why the information is collected, how it will be used and to whom it is usually disclosed.

Since the Privacy Act was extended to the private sector in 2001, agencies have assumed obligations in relation to the personal information handling activities of their contractors. These privacy obligations are explained in greater detail in the Office of the Privacy Commissioner’s Information Sheet 14-2001 - Privacy Obligations for Commonwealth Contracts.

Each agency is expected to appoint a Privacy Contact Officer (PCO) to be the first point of contact, both internally and externally, for advice on privacy matters regarding their agency. PCO meetings are organised by the Office of the Privacy Commissioner and are held on a regular basis. More information on the PCO Network and guidance for PCOs on consulting with the Office is available on the website of the Office of the Privacy Commissioner.

Each year the Privacy Commissioner publishes the Personal Information Digest), which sets out the various types of records of personal information kept in agencies. Each agency that is subject to the IPPs must compile and submit to the Privacy Commissioner each year a statement of its relevant records for inclusion in the PID.

The Privacy Commissioner has a range of other responsibilities including issuing guidelines regarding the use of Tax File Numbers and data matching in agencies, investigating breaches of the spent convictions scheme in Part VIIC of the Crimes Act 1914 (Cth) and providing advice to the Attorney‑General in relation to exemptions under the scheme, and regulating the information collection and handling practices of credit reporting agencies and providers.  

Archives Act

The Archives Act 1983 sets out the regulatory framework for the management of Commonwealth records.  It governs decisions about whether records are kept, destroyed or transferred to the National Archives of Australia and it establishes a general right of public access to records that are more than 30 years old. 

Under the Act, it is a criminal offence for any person (including an agency head) to alter, damage, or destroy or otherwise dispose of, or transfer ownership or custody of, a Commonwealth record unless:

• the Archives gives permission
• the action taken is required by law
• the disposal is a normal administrative practice that the Archives has not disapproved
  or
• it is to return the records to the rightful custody of the Commonwealth.

Evidence Act

As a court may need to examine the records of APS agencies as evidence of Government actions or decisions, APS agencies need to take account of the laws guiding the legal acceptance of records set out in the Evidence Act 1995 including processes for electronic records.

The National Archives publication entitled Records in Evidence provides advice to agencies on the impact of the Evidence Act on the management of records, particularly electronic records.

Senate Order on departmental and agency contracts (4 December 2003)

The Senate Order on departmental and agency contracts requires Ministers to table letters of advice that all agencies which they administer, by not later than two calendar months after the last day of the financial and calendar years, letters of advice that all agencies which they administer have placed on the Internet lists of contracts which provide for consideration to the value of $100 000 or more. The list is to include all contracts that had not been fully performed and any other contracts entered into during the previous 12 months, and to indicate, amongst other things, whether the contracts contained any confidentiality provisions.

Senate Order — Indexed lists of departmental and agency files

Continuing order of the Senate - Indexed lists of departmental and agency files (which is often referred to as the Harradine Motion) requires Ministers to table twice a year a letter of advice that an indexed list of the titles of all relevant files created in the preceding six months in the departments or agencies for which they are responsible has been placed on the Internet.

Senate Order - Senate & Senate Committees - Claims of commercial confidentiality

Continuing order of the Senate—Senate and Senate Committees—Claims of commercial confidentiality requires that any claim to withhold commercial-in-confidence material from the Senate or a committee must be made by a Minister, and be accompanied by a statement setting out the basis for the claim.

Senate Order—Agency advertising and public information projects
(Currently under review)

The Continuing order of the Senate—agency advertising and public information projects sought information relating to agency advertising and public communications projects. The Government has decided to continue to support existing mechanisms for providing information on Government advertising instead of adopting this Order, and continues to observe theGuidelines for Australian Government Information Activities that were adopted in February 1995.

Senate Order—Government appointments

The Continuing order of the Senate—Government Appointments requires Ministers to table three times a year (by not later than 7 days before the commencement of the budget estimates, supplementary budget estimates and additional estimates hearings) a list of all appointments made by the Government (through Executive Council, Cabinet and ministers) to statutory authorities, executive agencies, advisory boards, government business enterprises and all other Commonwealth bodies including the term of the appointment and remuneration for the position; and a list of existing vacancies to be filled by government appointment to statutory authorities, executive agencies, advisory boards, government business enterprises and all other Commonwealth bodies.

Senate Order—Departmental and Agency grants

The Continuing order of the Senate—Departmental and Agency Grants requires Ministers to table three times a year (by not later than 7 days before the commencement of the budget estimates, supplementary budget estimates and additional estimates hearings) a list of all grants approved in each portfolio or agency, including the value of the grant, recipient of the grant and the program from which the grant was made.

Copyright Act

Statement of Intellectual Property Principles

Given that APS agencies may copy or use a variety of written and audiovisual material in the course of their business, it is important for agency heads and staff to be aware of copyright law. Agency heads should ensure that procedures are in place in their agency to protect copyright material, including material created by external providers under a contract.

Unless otherwise permitted by the Copyright Act 1968, unauthorised copying, communication or public performance of copyright material may infringe copyright.

The use of copyright material ‘for the services of the Commonwealth’ is permitted under the Copyright Act (Division 2 of Part VII and, in particular, section 183).

The Commonwealth has entered into an agreement with Copyright Agency Limited to enable individual APS agencies to fulfil their statutory obligations to compensate copyright owners for official copying and electronic transmission of published print materials. Further information about the agreement can be obtained here.

An agreement with Screenrights is also in place for APS agencies for the recording of television and radio broadcasts for official purposes.  Further information is available here on the Attorney-General's website.

Individual APS agencies may also be responsible for the public performance of music that occurs in their premises. The Attorney-General's Department has developed a model agreement with the Australasian Performing Right Association that may be adopted by other APS agencies regarding their own obligations. Further information about the model agreement can be found here.

The Statement of IP Principles for Australian Government Agencies sets out obligations for APS agencies in relation to the creation and management of intellectual property in their agencies, including copyright. All APS agencies covered by the FMA Act need to comply with the IP Principles.  Further practical guidance for agencies on making decisions relating to the management of IP, including copyright, is available in the draft Australian Government IP Manual.  Information in this IP Manual now replaces the earlier Commonwealth IT IP Guidelines – Management and Commercialisation of Commonwealth Intellectual Property in the field of Information Technology (2000). Further information is available here. Note, the Attorney-General’s Department will be responding to recommendation 5.6.3 of Sir Peter Gershon’s Review of the Australian Government’s Use of Information and Communication Technology which calls for the Government to determine whether its current policy on intellectual property, or its implementation by agencies, is a significant barrier for the ICT industry to enter the Government marketplace and a cost driver for Government.

The Commonwealth Copyright Administration (CCA) in the Attorney-General’s Department deals with requests for the use of Commonwealth published textual material. Author agencies manage copyright of their own unpublished textual material as well as other material such as artistic works. Further information on the role of the CCA is available here.  

The Commonwealth owns the copyright of a diverse range of material produced under its direction or by its employees in the course of their employment whether published or unpublished.

Management of Commonwealth IT-related intellectual property

The Commonwealth IT IP Guidelines — Management and Commercialisation of Commonwealth Intellectual Property in the field of Information Technology (2000) are intended to assist agencies to strategically manage the Commonwealth’s intellectual property assets, and where appropriate to commercially exploit those assets.

The Guidelines were published in January 2001 and are currently being reviewed to ensure they accurately reflect recent developments and government policy.

Electronic Transactions Act

The Electronic Transactions Act 1999 is part of the Government's strategic framework for developing the information economy in Australia and ensuring that all appropriate Government services are available online. It creates a regulatory regime for using electronic communications in transactions.

The Act is based on the United Nations Commission on International Trade Law Model Law on Electronic Commerce. It facilitates electronic commerce by removing existing legal impediments that may prevent a person using electronic communications to satisfy legal obligations under Commonwealth law. The Act does not override any existing or future laws that deal specifically with the use of electronic communications to satisfy writing, signature, production or retention requirements.

Under the Act, four types of requirements under a law of the Commonwealth can be met in electronic form:

• a requirement to give information in writing (section 9)
• a requirement to provide a signature (section 10)
• a requirement to produce a document (section 11)
• a requirement to record or retain information (section 12).

In general terms, the Act applies to all transactions under all laws of the Commonwealth, unless the relevant law or transaction is specifically exempted in the Electronic Transactions Regulations 2000.

Government online standards and e-Government

These standards address common policy issues and practical challenges that agencies face in providing services online. They help to ensure that Government services are provided to a consistently high standard. This will help to ensure user confidence in these services and encourage further uptake of services.