The Father of Freer Information in Australia, Senator John Faulkner, has given his creation – the Office of the Information Commissioner – a tick for achievements in its first 12 months. But he has reminded the Information, Privacy and FOI Commissioners that the big battles are still ahead, and that government information is a national resource.
Address to the Information Policy Conference
Senator John Faulkner
Labor Senator for New South Wales
National Portrait Gallery, Canberra
14 November 2011
Let me first acknowledge the traditional custodians of this land, and pay my respects to their elders past and present.
Ladies and gentlemen, information is more than data, and less than knowledge.
Though Kofi Annan has said that ‘information is power’, it is not. And it is certainly not wisdom.
Yet information is implicated within all those things, distinct yet overlapping and interdependent like the tiles on a roof. Information makes possible, and is made possible by, the capture and interrogation of specifically targeted specks in the vast cloud of details generated by each and every individual life – not once or twice or a dozen times, but by tens of thousands of processes in the public and the private sector.
Information is not neutral, but constituted by the decisions made by those with the authority or the resources to determine which questions should be asked, which details are significant, which irrelevant, and which are chosen to define an individual or a community.
Information is not free
Information is not free, although the internet libertarians of the nineties would have had us believe it wanted to be. It is neither free of cost, nor free of ownership, nor free of value. It is not, and can never be, neutral. It may be comforting to think that information policy concerns, as Dragnet would have it, ‘just the facts, ma’am’ but the idea that information is neutral and immutable is as dated as Joe Friday’s hairstyle.
So the questions of how, and to who, and importantly why, information held by the Commonwealth Government is managed, used, and released, are not simple ones. They affect every area of government operation and in doing so touch every Australian’s life in one way or another. The answers have the potential to deliver tremendous benefits to the community but also to do tremendous harm, both to individuals and, when it comes to information with national security implications, to Australia’s interests as a whole.
At the core of these issues is the question of who such information belongs to. Who has the right to determine how, and even if, it is used or released? Even, who has the right to decide how questions will be framed to shape just what constitutes government information and what is dismissed as noise around the signal?
These are not new questions. When William the Conqueror sent his assessors to survey the nation’s wealth for taxation purposes, their determination of who owned, and who owed, what, was often very different to the opinions of those they surveyed. But the judgement of what was called the Doomsday Book was the final legal word – and its pages were scribed in Latin, making it not only unchallengeable but for many also incomprehensible. This exercise of sovereign power in creating and then withholding information about a nation’s people is riddled with errors and inconsistencies but it served its purpose – of enabling the King to raise money.
Today, we recognise that citizens have the right to be aware of, and to challenge, the information their government creates about them, to know how it is used, and through the democratic process to exercise some control over how it is used. But there is a new complexity and perhaps urgency to questions of ownership and control of information in this, what has been called ‘the information age.’
Never before has so much been known about so many by so wide an array of government and non-government agencies, institutions and organizations. The democratization of the means of surveillance and of publication means that anyone with an internet capable camera phone can now publish anything they see or hear world-wide in seconds. But, ladies and gentlemen, it also means that a multitude of bodies are finding new convenience in the capture, storage and use of data.
While prompted by the best of motives – increased public security, better decision-making, evidence-based policy are a few – the rapidly decreasing cost of data capture, retention and publication both in terms of money and of time has removed many of the de facto protections of privacy guaranteed by inconvenience, if not by legislation. Nor does it automatically lead to more openness and transparency in government, for with much more information is now available to the media and the general public, the chance of the static drowning the signal is correspondingly higher.
Like every complex problem, there is a solution that is simple, neat, and wrong. In this case, there are two such simple solutions, which have been advocated to differing degrees by both government and non-government actors around the world.
The first, with its roots in the early days of the internet, is that everything ought to be released, all the time – both by government and by private sector bodies. For the information libertarians of the early cyber age, the idea that ‘information wants to be free’ trumps all other considerations, including confidentiality, security and privacy.
Information, of course, doesn’t want anything – and it is, in fact, never ‘free’ at least in the sense that it always comes at some cost to someone somewhere.
And it always belongs to someone. It might not belong to those who hold it in custody at any particular time, and that has always been one of the reasons for F.O.I. – the right of citizens to know what information about them, that is rightfully theirs, the government holds and controls.
Professor Alan Westin suggested that privacy is the possibility of choosing freely the circumstances and the extent of exposure of oneself, one’s attitudes and one’s behaviour to others. If so, it depends in part on the ability to control the subsequent uses of personal data beyond the initial circumstances of its provision. This is particularly acute when it comes to personal data held by the government, given it is in many cases mandatory to provide it.
As attractive as the simplistic notion of absolute government transparency may be in the abstract, in practice much of the information amassed by any government belongs in fact to individuals, and the unfettered release of all government documents would be a breach of the privacy of those millions of Australians.
Batten down the hatches?
The second simple solution to the increasing complexity of government information policy is the reverse of the first: batten down the hatches, use every legislative and law-enforcement tool available to restrict information availability, curtail access, and punish those who breach the wall of secrecy.
While such an approach is most often seen where information may have a national security implication, with some governments classifying billions upon billions of documents as ‘Top Secret’, we have seen it here in Australia with the use by governments of the ‘Cabinet-in-Confidence’ classification to thwart media and public access to government documents for no reason other than political sensitivity.
Ladies and gentlemen, there are reasons for governments to control access to the information they hold. Privacy, as I have said, is one. In addition, as the Report of the Independent Audit into the State of Free Speech in Australia, commissioned by ‘Australia’s Right to Know’, stated: “Decisions to refuse access to documents about some aspects of government operations may be soundly based on exemptions in the Act designed to protect national security, investigations, and sensitive information about high-level economic, financial and other national interests.”
But such control ought to be very carefully exercised, and only where absolutely necessary – both for reasons of democracy, and for reasons of pure practicality.
The right of the community to know what information the government holds about them both as individuals and collectively, to know whether a government’s deeds match its words, and to know the information that underlies debate and informs decision-making, is fundamental to democracy. These rights can and often do intersect with areas of national security and other high-level sensitive information.
A reflex restriction may eliminate any potential risk to the national interest through disclosure, but it incurs an actual cost to the democratic function of our nation, something which I believe is also a national interest consideration.
Furthermore, it is well worth considering the practicalities of extensive information control regimes.
The security of truly sensitive information depends ultimately on the motivations and reliability of those with access to and oversight of it. The more a government restricts knowledge of its internal workings to only those with clearance, the greater the number of individuals who will need clearance simply to do their job, and who will then potentially have access to a far greater range of far more sensitive information. This is not George Smiley’s world: the truly sensitive documents are no longer kept as one copy in a locked filing cabinet behind a reliable, cardigan wearing matron who knows every cleared officer by sight.
In addition, improper and political use of information restriction regimes has, as we have seen in the past, the potential to create in and of itself the motivation for well-intentioned individuals to breach security. Such ‘whistleblowing’ can be a crucial corrective to government abuses but, as we have also seen in the past, it can have wider implications and unintended consequences.
These are complex and often vexed questions, which have only been addressed relatively recently in the history of western democracies. Although both privacy and government transparency are concepts with long histories, the recognition of government responsibilities to safeguard privacy as a right and guarantee appropriate freedom of information are largely twentieth century constructions. Legislative response and legal reform has too often been piecemeal, failing to recognise or address the intrinsic connections between the different aspects of government information management and control.
The creation of the Office of the Australian Information Commissioner, with its triple function of government information policy, freedom of information, and privacy, was a significant step forward in instituting a co-ordinated and coherent approach to what are interlinked government responsibilities.
Ladies and gentlemen, when T.S. Eliot asked “Where is the wisdom we have lost in knowledge? Where is the knowledge we have lost in information?” he was in part carrying on the age-old tradition of complaining about newfangled technology allowing the proliferation of shallow data as a substitute for real learning – a complaint made, for example, about the printing press, well before it was made about radio, television and the internet. But his questions also draw a distinction that is deeply important to the logic and purpose of the Office of the Australian Information Commissioner.
Government information is a national resource
The distinction between information and knowledge, between data and understanding, is the reason why the management of government information as a national resource – and it is a national resource – is so important.
Separate, individual, isolate, each piece of information adds little to the sum of knowledge about policy successes and failures, about public needs and the best way to meet them, about best practices in social, medical, education. And while that information belongs in one sense to the individuals it is about, it was gathered and collected with government resources – that is, community resources – and so in another sense it also in part belongs to the community, and should be used for the benefit of the community, that community to which of course those individuals belong.
In the same way, policies on F.O.I., publication, information management, and open government are, when separate, only piecemeal fractions of answers to the questions that face us. The intertwined nature of information, knowledge, power, authority and “truth” are mirrored in the interwoven strands of our collective community decisions about public information management, use, and protection.
This is a substantial challenge and a substantial responsibility for the Information Commissioner, Professor John McMillan, the Privacy Commissioner, Timothy Pilgrim, and the FOI Commissioner, Dr James Popple, and their staff. Being as I was the Special Minister of State as the reforms creating the O.A.I.C. were developed, I have watched with keen interest as the Commissioners have, I think it’s fair to say, hit the ground running.
Over the past twelve months, the O.A.I.C. has made key interventions in the areas of privacy – both as affected by public and private sector actors – in F.O.I. and government information policy, including the development of a ground-breaking publication scheme for government departments and agencies.
They have not been afraid of the difficult questions or the tough fights. And I know there will be more ahead, as the every-accelerating pace of technological change brings new problems and also new solutions.
The Government has not given the Commissioners and their staff an easy job. But if the first year of the O.A.I.C.’s life in any indication, it is a challenge they are more than capable of meeting.
ENDS