BY KEIRAN HARDY
Some of Malcolm Turnbull’s earliest changes in the Prime Ministership ensured that information and communications technology (ICT) would be placed at the centre of the government’s policy agenda. Mitch Fifield, the new Communications Minister, was bestowed with the additional title of ‘Minister Assisting the Prime Minister for Digital Government’. The Digital Transformation Office, which was established in mid-2015 to update government services for the digital era, was moved from the Communications portfolio into the Department of Prime Minister and Cabinet (PM&C). Three separate policy units relating to government data (from the Departments of Finance and Communications) were also merged into a Public Data Branch within PM&C.
These developments went largely unnoticed in the media, but they are important signals of the legacy that Malcolm Turnbull hopes to build as Prime Minister. As an early investor in Internet start-ups and the former Communications Minister, Turnbull clearly considers digital policy and innovation to be a key and long-term interest. These changes, while perhaps more symbolic than structural, will allow him to ‘drive digital transformation from the heart of government’.
A central pillar of Turnbull’s ICT agenda is to ensure that greater amounts of government data are released to the public as ‘open data’. This follows a global trend of publishing data collected by government agencies in order to drive innovation and improve transparency and accountability. Australia currently lags behind other countries in releasing government data to the public – a record that the Prime Minister is hoping to change.
This post explains the open data movement and considers the benefits and risks of releasing government data as open data. It then outlines the steps taken by the Labor and Liberal governments in accordance with this trend. It argues that the Prime Minister’s task, while admirably intentioned, is likely to prove difficult due to ongoing challenges surrounding the requirements of privacy law and a public service culture that remains reluctant to release government data into the public domain.
The ‘open data’ movement
In their day-to-day operations, government agencies produce huge volumes of data about individuals and the world we live in. This includes data collected for administrative purposes (such as names, addresses and telephone numbers), statistical and survey data, and data on the implementation of government policy.
There is a global trend towards releasing greater amounts of statistical and policy data produced by governments to the general public. Common examples of data released into the public domain include spatial, environmental and public health data. This data is being released by governments through online portals, and is commonly referred to as ‘open data’.
Open data is data which is accessible for free or at minimal cost, and which can be accessed by anybody and re-used for any purpose. Ideally, this means that the data should be made available on the Internet under a creative commons licence and in a machine-readable format (that is, one that is capable of being analysed by computers and software programs).
More than 60 countries have now joined the Open Government Partnership (OGP), an international initiative launched in 2011 by eight countries including the United States, the United Kingdom, and Norway. The OGP requires participating countries to endorse its Open Government Declaration, develop an action plan on open data, prepare yearly self-assessments on how that plan is being implemented, and submit to the OGP’s Independent Reporting Mechanism.
This trend reflects ideals of open government, as the release of government data is designed to promote transparency and accountability. To some extent, releasing government data as open data pre-empts Freedom of Information (FOI) requests for that information, as it is already in the public domain.
However, the open data movement differs from the open government and FOI movements in that a primary purpose of releasing government data is to drive innovation. The idea is that by releasing large amounts of government data, businesses, academia and the general public will be able to draw new insights from that data and contribute innovative solutions to policy problems.
In this sense, the open data movement aligns more closely with neoliberal ideals of free market innovation than with democratic ideals of transparency and accountability, although it combines elements of both. Different goals are also emphasised by different advocates of open data. The OGP’s Open Government Declaration emphasises transparency and accountability, whereas for the Turnbull government, digital innovation appears to be the driving force.
Benefits and risks of releasing government data
A key purpose of releasing government data is to improve the effectiveness and efficiency of services delivered by the government. For example, data on crops, weather and geography might be analysed to improve current approaches to farming and industry, or data on hospital admissions might be analysed alongside demographic and census data to improve the efficiency of health services in areas of need. It has been estimated that such innovation based on open data could benefit the Australian economy by up to $16 billion per year.
Another core benefit is that the open data movement is making gains in transparency and accountability, as a greater proportion of government decisions and operations are being shared with the public. These democratic values are made clear in the OGP’s Open Government Declaration, which aims to make governments ‘more open, accountable, and responsive to citizens’.
Open data can also improve democratic participation by allowing citizens to contribute to policy innovation. Events like GovHack, an annual Australian competition in which government, industry and the general public collaborate to find new uses for open government data, epitomise a growing trend towards service delivery informed by ‘user input’. The winner of the ‘Best Policy Insights Hack’ at GovHack 2015 developed a software program for analysing which suburbs are best placed for rooftop solar investment.
At the same time, the release of government data poses significant risks to the privacy of Australian citizens. Much of the open data currently available is spatial (geographic or satellite) data, which is relatively unproblematic to post online as it poses minimal privacy risks. However, for the full benefits of open data to be gained, these kinds of data need to be supplemented with information on welfare payments, hospital admission rates and other potentially sensitive areas which could drive policy innovation.
Policy data in these areas would be ‘de-identified’ – that is, all names, addresses and other obvious identifying information would be removed so that only aggregate or statistical data remains. However, debates continue as to the reliability of de-identification techniques, as there have been prominent examples of individuals being ‘re-identified’ by cross-referencing datasets.
Australia’s policies on open data
The Labor and Liberal governments have taken some important steps in line with the goals of the open data movement. Following the recommendations of the Government 2.0 Taskforce, the Gillard government in 2010 issued a Declaration of Open Government similar to that endorsed by the OGP. In May 2013, the Gillard government announced that Australia would join the OGP and began developing a national action plan on open data. The Gillard government also launched Australia’s online data portal: <www.data.gov.au>.
The Abbott government built on these initial efforts by significantly increasing the number of government datasets available online (from just over 500 under the Labor governments to nearly 7000 today). Malcolm Turnbull, when he was Communications Minister, announced that the Abbott government had ‘very ambitious targets’ with regard to open data and was ‘committed to turning around our slow start’. The Abbott government also launched the Open Data 500, a register of private sector companies that rely on open government data. However, work on Australia’s national action plan on open data stalled under the Abbott government, and it was not clear that Australia would meet the requirements of the OGP.
The Turnbull government renewed Australia’s commitment to the OGP and opened a consultation process with the goal of submitting a national action plan to the OGP by mid-2016. The consultation will be led by Pia Waugh, head of the Data Infrastructure team within the PM&C’s new Public Data Branch. In December 2015, Turnbull announced that all non-sensitive government data would be ‘open by default to contribute to greater innovation and productivity improvements across all sectors of the Australian economy’.
It seems that Australia’s commitment to the open data movement will therefore be at its strongest under the Turnbull government, although the extent to which greater amounts of government data will be released to the public is not yet clear. Turnbull’s most recent announcement is a significant public commitment to open data, although it accords with the recommendations of the Government 2.0 Taskforce (which Labor had previously committed to implementing) and the Principles on Open Public Sector Information. Those principles were published by the Office of the Australian Information Commissioner (OAIC) in 2011 and have since been applied by the OAIC in its monitoring of government agencies under the Freedom of Information Act 1982 (Cth). The first of the principles is, as Turnbull announced, that government data should be open by default because it is a ‘valuable national resource’.
Currently, Australia still lags behind other countries in posting government data online. As of December 2015, there were 6800 datasets available on www.data.gov.au. By contrast, the UK government by this time had posted over 20 000 datasets on its national portal (http://www.data.gov.uk), and the United States an astonishing 188,000 (http://www.data.gov).
This can partly be explained by the size of different administrations. It is very doubtful, despite Turnbull’s aspirations, that Australia will ever ‘catch up’ with the United States in releasing such enormous quantities of data. Nonetheless, several government and independent reports have observed that Australian government agencies remain reluctant to release their data to the general public. The major reasons for this reluctance are identified below.
Privacy Law and Public Service Culture
The first major hurdle to releasing Australian government data is the Privacy Act 1988 (Cth), which regulates the collection, use, disclosure and storage of ‘personal information’. The requirements of the Privacy Act apply to federal government agencies and large businesses.
Personal information is defined in s 6 of the Privacy Act as ‘information or an opinion about an identified individual, or an individual who is reasonably identifiable’. Obvious examples of personal information include names, addresses, and dates of birth. However, the words ‘reasonably identifiable’ mean that the Privacy Act requirements could also apply to de-identified statistical data. If it were reasonably possible to re-identify an individual from statistical data, either by reversing the de-identification techniques or by combining that data with other sources of data, it would not be lawful under the Privacy Act for the government to disclose that information.
This creates significant uncertainty as to whether government information can be validly released under the Privacy Act. Even an agency’s best efforts to de-identify its data may not be fully reliable. Government agencies are understandably reluctant to release their data in these circumstances, for fear of exposing Australian citizens to large-scale invasions of privacy.
The other major hurdle relates to public service culture around releasing government data to the public. This has parallels in ongoing debates about FOI legislation, and the different approaches to FOI taken by the Labor and Liberal governments. The Labor governments implemented reforms to improve public service culture around FOI, such as by creating a scheme for the proactive release of government information and establishing the OAIC. By contrast, the Abbott government introduced a Bill to disband the OAIC, and was more generally recognised for its secretive approaches to implementing government policy (particularly with regard to asylum seekers and national security).
The Abbott government’s preference for maintaining secrecy of government information seemed to pervade the culture of its public service. One FOI and privacy law specialist described the term of the Abbott government as ‘dark days’ with regard to FOI, remarking that ‘no prizes or honours’ were being awarded for public servants who efficiently complied with the FOI Act. This was in part driven by fears of what might be exposed by releasing government information, with public servants reluctant to put decision-making processes down on paper for fear of these being released into the public domain.
With regard to open data, a culture resistant to releasing government information appears to be driven by several similar factors, including:
- a generational preference amongst public service management for maintaining secrecy of information, whereas younger generations expect that data should be made freely available;
- concerns about the quality or accuracy of information being released;
- fear that mistakes or misconduct on behalf of government employees might be exposed;
- limited understanding of the benefits that can be gained from open data; and
- a lack of leadership to help drive the open data movement
If open data policies have a similar effect on public service culture as FOI legislation, it may be that open data policies in fact hinder transparency by having a chilling effect on government decision-making for fear of what might be exposed.
Future challenges for open data in Australia
These legal and cultural hurdles will pose ongoing challenges for the Turnbull government in seeking to release greater amounts of government data as open data.
In terms of the legal challenges, uncertainty over the Privacy Act requirements could be resolved quickly by removing the words ‘reasonably identifiable’ from the definition of personal information. However, this would improve access to open data by significantly reducing existing privacy protections. It would allow the release of any de-identified government data, regardless of whether that data could be combined with other sources to identify private details about individuals. This would significantly increase the risks that Australian citizens might be ‘re-identified’ from data released by the government.
A preferable approach is to focus on developing more reliable de-identification techniques for government data. This would accommodate the goals behind the privacy legislation as well as those of the open data movement. However, this will take time – particularly for the cost of these techniques to reduce sufficiently so that all government agencies can apply them on a larger scale.
It is therefore likely that Turnbull’s recent commitment to making all non-sensitive government data open by default will prove difficult to implement in practice. Turnbull reiterated that the ‘privacy of all Australians is paramount’ and would not be released. However, until such time as de-identification is considered fully reliable, determining whether or not data is sensitive for the purposes of privacy law will be a difficult and ongoing challenge.
In terms of the cultural challenges, new initiatives like the Digital Transformation Office will help to drive a change in public service culture towards a more transparent, innovative government. A younger, tech-savvy generation of public service employees is being tasked specifically with devising digital solutions to difficult policy problems. Events like GovHack suggest that such policy innovation will also depend on contributions from members of the general public, who can apply their knowledge of coding, smart-phone applications and other technology to open government data. However, it will likely take some years for this kind of approach to be adopted across the public service as a whole, and it may still in any case be resisted by sectors of the public service which are more resistant to change.
Despite the Turnbull government’s commitment to open data, then, it will likely take a significant time – certainly several years and perhaps up to a decade or more – to achieve something resembling the open data ideal. Developing a public service culture which freely and reliably publishes a large proportion of its data, so that the general public can contribute innovative solutions to complex policy problems, is a long-term project in democracy and accountability. Australia’s slow start in releasing open data is not something which the Prime Minister can turn around quickly, even if the Coalition is returned to government at the next federal election.
Keiran Hardy is a Research Fellow in the Faculty of Law at UNSW and Co-Director with Nicola McGarrity of the Terrorism Law Reform Project in the Gilbert + Tobin Centre of Public Law. He is currently conducting a project into the sharing of big data across government, and from 2016 will take up a position as Lecturer in the School of Criminology and Criminal Justice at Griffith University.
The author would like to thank Gabrielle Appleby for her valuable comments.
Suggested citation: Keiran Hardy, ‘Opening up government data for public benefit’ on AUSPUBLAW (14 December 2015) <https://auspublaw.org/2015/12/opening-up-government-data/>