Article by the Information Commissioner: AI, e-Governance and access to information: Why digital government must remain accountable to citizens

AI, e-Governance and access to information: Why digital government must remain accountable to citizens

The opportunity created by digital government must not be reduced to a transactional level. Government is more than a kiosk and concierge function. It is the custodian of our social and economic resources; it implements the policies and programs that transcend all aspects of our lives, and establishes the settings for our current and future society through thought leadership and an unwavering commitment to serving the public interest.[1] Those settings include our educational and health systems, transportation, housing, cyber security and digital infrastructure, and our justice system. These vast areas of responsibility demand transparency and accountability by government to the citizens they serve. Importantly, they require new modes of engagement to promote a participative democracy.

Concurrent with the implementation of e-Government, government has a responsibility to simultaneously systematise e-Governance.

e-Governance is described by UNESCO as the public sector’s use of the most innovative information and communication technologies to deliver citizens with improved services, reliable information and greater knowledge in order to facilitate access to the governing process and encourage deeper participation.

Citizens must not be alienated from government because of a focus on the transactional elements of digital government and a failure to focus on the pillars of Open Government:

• Transparency
• Accountability
• Integrity
• Citizen participation.

Democracy is more than policies, institutions, and election cycles. It is about active citizenship, honest dialogue, and two-way trust between governments and people. A system in which citizens have a real say in how their society is run and what choices are made, not once every four to five years, but daily.[2]

The Right to Know is enshrined under Article 19 of the Universal Declaration of Human Rights and at its heart is the foundation of a participatory democracy.

In NSW, this fundamental human right is enlivened in the Government Information (Public Access) Act 2009 NSW (GIPA Act). The bedrock of the GIPA Act is enshrined in the object of the Act: to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective. NSW Government information is opened by the GIPA Act and its statutory presumption in favour of disclosure of government information.

In 2022, we have witnessed a galvanisation of the call for greater integrity in government. The call for transparency and accountability couldn’t be stronger and it appears to have been heard. The question for citizens now is how will government respond?

Any genuine and committed response by government must address the growing asymmetry between the information government acquires and holds, and the information it provides to citizens.

Government information is the primary source of government accountability. Not only must government information be created but it must be vigilantly guarded and protected. Access to government information safeguards our democracy against the arbitrary use of power and it provides the lens though which we can gauge fairness.

Transactionally focused digital government can lead to perverse outcomes for citizens that infringe their fundamental human right – the right to access information. This infringement can arise for a number of reasons ranging from the information asset itself – raw data – to the relationships that government creates with the non-government sectors to deliver digital services.

Seven scenarios best demonstrate this asymmetry between the information held by government and the information it makes available to citizens:

1. The use of instant messaging software and encrypted and/or irrecoverable communication for government purposes that give rise to a requirement for creation and retention of government records.
2. Government portals and multiple data sets that are accessible to participating agencies under federated models but preclude any agency from ‘holding’ all of the information for reproduction to citizens or potentially oversight bodies.[3]
3. Cross agency records management systems that introduce barriers to information access through ‘cluster’ arrangements and archiving approaches.[4]
4. Digital records that require treatment to bring them into existence for the purposes of providing access in circumstances where agencies are entitled to refuse to produce a ‘new’ government record in response to an access application.[5]
5. Machine-enhanced decision-making software and artificial intelligence systems that operate absent recognised safeguards, including notice and explainability.[6]
6. Contractual arrangements are increasingly a feature of government service delivery and decision making. However, under those contracts there is a limited amount of information that is accessible to government. If for example the contract involves decision making government may have no legal right to access that information held by a third-party provider for reasons including the limits of the GIPA Act and claims of intellectual property by the third-party. [7]
7. Government grants are an application of public funds by the government of the day. However, unlike the requirement imposed on government agencies under the GIPA Act to report on contracts entered into by government with the third party providers there is no legislative requirement to publish information about the application of public funds through grants programs.[8]

The Independent Commission Against Corruption (ICAC) recently examined ‘pork barrelling’ and made recommendations to inject integrity measures into government grant processes. ICAC’s first recommendation is that any whole of government guidelines concerning grants funding be issued pursuant to a statutory regulation.[9]

The GIPA Act mandates proactive reporting of government contracts. Grants and contracts should be treated equally under the GIPA Act.

The GIPA Act provides the primary mechanism for citizen engagement and government accountability. It should be strengthened in response to rapid changes in government processes and in line with public expectations regarding open government and the factors in favour of disclosure of government information. Significantly, matters of paramount public importance, such as the care and protection of the environment, are not legislated as public interest factors in favour of disclosure under the GIPA Act. In the absence of inclusion as a factor in favour of disclosure, under the GIPA Act environmental care and protection is an inferior consideration particularly in circumstances where the GIPA Act recognises it as a factor against disclosure of information.

Absent modernisation in respond to e-Government the statute that enshrines the public’s right to know, the GIPA Act will fail to achieve its policy objective of advancing a system of responsible and representative democratic Government that is open, fair and effective.[10]

In the context of the GIPA Act, digital government has presented challenges that were not contemplated by the drafters and as such may not be overcome by the extant statute. A more expansive approach to legislation to accommodate e-Government would better preserve the right to access information, address issues of public importance, promote integrity and ensure that NSW remains at the forefront of recognised leaders in information access.

NSW has embraced a digital transformation into e-Government and that transformation must be accompanied by e-Governance to ensure government remains accountable and transparent. Government has a duty to use new technologies to enable citizens to access information and participate in government decision making. E-Governance is the digital realisation of an open, accountable participative democracy.