Australia: Queensland Government announces a new round of information law reforms

Key Points:

The open data reforms represent another stage of the significant reform and change to information law in Queensland.

The Queensland Government will be moving to a new round of information law reforms in the form of an "open data" initiative modelled on the NYC OpenData framework.

As part of these open data reforms, the Premier has appointed an Assistant Minister to the Premier on e-government, and announced the establishment of a website to be the accessible portal for the release of State Government information releases, and , an Open Data Reform Group to lead cultural change across the sector.

In this article we will be briefly outline the key policy drivers and aspects of the open data reforms and, importantly, will examine the key practical and regulatory issues and challenges in moving forward.

Transparency, accountability, innovation and economic development

The key policy drivers behind the open data reforms as announced by the Premier include the increase in accountability and transparency across the Queensland Government by allowing public access to more government information, and to facilitate and stimulate innovation and economic development by allowing third parties, including commercial parties, access and use of government information.

As identified by the Premier, the broad types of information which are expected to be released includes location information or "trackable" government vehicles such as buses, trains and ferries, road use data, crime and accident statistics, speed camera locations and hospital statistics with such information to be delivered by way of data sets and statistics.

Under the NYC OpenData framework, a broad range of information and data sets are available for public access, includes electricity and gas consumption by zip (area) code, Wi-Fi hotspots, transport related information and timetables and social media consumption by zip (area) code.

Examining the model provided by the NYC OpenData platform and other landmark open data initiatives established by the United States Federal Government and the British Government provides further guidance and assistance in identifying and managing the practical and regulatory issues and challenges which are likely to arise in the open data reforms.

What sort of data can – and can't – be released?

The critical and most important aspect of the open data reforms will be the identification of the data that is appropriate for release in both a practical and legal sense and the reflection and formulation of this in a statutory context. For practical reasons, not all information held by the Queensland Government is of a statistical nature, able to be stored in data sets and thus does not lend itself to release by in an open data platform.

In addition, certain information such as personal and confidential information, deliberative process information and public and security based information, for legal and other reasons, is inherently unsuitable for release under open data platforms.

Accordingly the most critical, initial task in moving to an open data platform will involve an audit of all Queensland Government information holdings and an assessment as to which information is suitable for release.

These issues are dealt with under the NYC OpenData framework by the establishment of a stand-alone statutory framework which establishes and regulates the OpenData reforms and includes a detailed definition of the term "data" which incorporates express exclusions such as personal and confidential information as well as public safety style information.

A new regulatory framework will be needed for OpenData

As is the case with the NYC OpenData framework, the open data reforms will require a range of statutory instruments, including the initiating legislation, to oversee the establishment, operation and regulation of the release of government information.

These instruments will need to deal with issues as to how specific agencies will comply with the requirement to release "data" as defined (as Queensland Government agencies hold varied and different information), minimum technical requirements and platforms to enable and facilitate the release of Government information on the website portal and method of delivery of the information, and requirements for the updating and revisions of the data sets available on the website portal.

The website portal will also require consideration and assessment in relation to other regulatory frameworks including the Public Records Act 2002 (Qld) and associated information standards. The Public Records Act requires agencies to retain records which evidence their operations and business with consideration of the issue of whether a record of all information released under the open data reforms will need to be retained.

Clarifying agencies' liability for the release of information

A critical and important consideration will be the scope and nature of any protections afforded to agencies in relation to the release of government information. This is essentially a twofold issue:

• should the statutory framework warrant that the information released under the open data portal is for information purposes only with no warranty provided as to the completeness, accuracy, content or fitness for purpose of the information and with no liability in relation to these matters; and
• should agencies and decision-makers authorising the release of information under the open data portal have similar protections against civil liability for, say, defamation and breaches of confidence or offences as is the case under sections 170-173 of the Right to Information Act 2009 (Qld), or protections against civil liability?

Conclusion

The open data reforms represent another stage of the significant reform and change to information law in Queensland. It is anticipated that as these open data reforms progress, they are likely to be monitored and considered by other jurisdictions.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.