The need for vigilant transparency and government accountability in automated decision-making

By Elizabeth Tydd

April 23, 2020

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To mark Information Awareness Month, NSW Information Commissioner Elizabeth Tydd explains that government licensing and contractual arrangements should ensure accessibility and ‘explainability’ in the provision of government services and decision-making.

Globally, there have been epic changes in the way that government makes decisions and delivers services. The new government paradigm is characterised by digital government and data application, increasing partnerships and outsourcing arrangements, and new models of government.

The increasing adoption of technology demands the preservation, assurance and assertion of information access rights. To achieve these outcomes, government licensing and contractual arrangements should ensure accessibility and ‘explainability’ in the provision of government services and decision-making.

The NSW Information Commissioner urges government agencies to ask three key questions when entering into these new arrangements:

  1. Who holds the information?
  2. In what form is it held?
  3. How will access be provided?

This case explores these questions and highlights the need for vigilance to promote transparency and accountability by government. The case demonstrates the importance of robust independent oversight to re-evaluate information access rights and safeguard those rights under this new paradigm.

Case summary

Increasingly, governments are outsourcing services and using technology including machine learning to assist decision-making. This case raises the issues of the right to access government information and the role of the Government Information (Public Access) Act 2009 (GIPA Act) in facilitating accountability for government services and decisions when they are outsourced.

The Applicant receives a rental subsidy and she applied for access to information from the Department of Family and Community Services (the Agency) to help her understand how her rental subsidy was calculated and how it could be verified. The subsidy is calculated by software created and operated by a private sector provider (the Contractor) engaged to automate the subsidy calculations.

In response to the application, the Agency provided some information but also decided that other information is not held by the Agency as it is held by the Contractor and remains its intellectual property. That information not provided included the algorithm used to calculate the subsidy; the software specification used; and the source code used in the software.

Therefore, the Applicant did not gain access to all the information and she applied to the Information Commissioner for review of two relevant Agency decisions. The Information Commissioner made recommendations that the agency make new decisions.

The Agency’s decision is now before the New South Wales Civil and Administrative Tribunal and the Information Commissioner has exercised her right to appear in the proceedings.1

The case also raises the issue of contractual requirements that would create a legally enforceable right of access to the information requested. This is because when an agency engages a contractor to provide government services, the agency is required to retain the right to access specific information. This ensures the agency can provide information as required by the GIPA Act. These requirements apply to government services and defining a service is a significant issue when the contract is for machine enhanced decision making.

Operation of section 121 of the GIPA Act: provision of information by private sector contractors

The GIPA Act provides a right to access information held in a record of a NSW government agency and that right may also apply to information held by contractors providing services to the public. This is because, the GIPA Act requires the agency to have access to specific information held by the contractor so it can ensure that information is accessible by citizens receiving services.

A reference in the GIPA Act to government information held by an agency is a reference to information contained in a record held by a private sector entity to which the agency has an immediate right of access (clause 12(1)(b) of Schedule 4 to the GIPA Act). Section 121 of the GIPA Act contains mandatory requirements for certain government contracts to provide immediate rights of access to information held by private sector contractors.

Where those contractual rights exist, an access application under section 9 of the GIPA Act can be made to the agency for that information, and a person has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act unless there is an overriding public interest against disclosure of the information.

Section 121 of the GIPA Act applies in circumstances where an agency enters into a contract with a private sector entity to:

  • provide services (see below)
  • to the public
  • on behalf of the agency.

Under section 121(1), these contracts must provide for the agency to have an immediate right of access to the following information contained in records held by the contractor:

(a) information that relates directly to the performance of the services by the contractor,

(b) information collected by the contractor from members of the public to whom it provides, or offers to provide, the services,

(c) information received by the contractor from the agency to enable it to provide the services.

Section 121(2) sets out exceptions to the requirement to contractually provide for the immediate right of access. A government contract is not required to provide for the agency to have an immediate right of access to any of the following information:

(a) information that discloses or would tend to disclose the contractor’s financing arrangements, financial modelling, cost structure or profit margins,

(b) information that the contractor is prohibited from disclosing to the agency by provision made by or under any Act (of this or another State or of the Commonwealth),

(c) information that, if disclosed to the agency, could reasonably be expected to place the contractor at a substantial commercial disadvantage in relation to the agency, whether at present or in the future.

The meaning of the word ‘services’ in the context of Western Australian anti-discrimination laws was considered in IW v City of Perth (1997) 191 CLR 1 at [11]:

The term “services” has a wide meaning. The Macquarie Dictionary relevantly defines it to include “an act of helpful activity”; “the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance”; “the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public”; “the supplying or the supplier of water, gas, or the like to the public”; and “the duty or work of public servants”. But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and cl 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop.

As outlined, where contractual provisions are in place that give an agency an immediate right of access to information held by a contractor, the information is deemed to be held by the agency and an access application can be made to the agency for that information.

Section 121 mandates the inclusion of a clause to permit access to information held by the contractor.

Despite the mandatory requirements of section 121, where there are no contractual arrangements in place and no immediate right of access to information, information in the possession of a contractor will not be deemed to be government information held by an agency for the purposes of the GIPA Act.

The combined effect of section 121 and clause 12(1)(b) of Schedule 4 is contingent upon the existence of a contractual clause in terms described in section 121(1).

The Information and Privacy Commission has published the following guidance to promote awareness and understanding of agency obligations under section 121 of the GIPA Act:

  • Contractor’s guide to section 121 of the GIPA Act2
  • Agency’s guide to section 121 of the GIPA Act.3
  • Template clause for agencies to include in contracts with third parties regarding right of access to contractor records.4

References

  1. GIPA Act, section 100. The Information Commissioner has exercised her right to appear and be heard under section 104(1) of the GIPA Act. The Information Commissioner generally exercises her right of appearance in proceedings that involve novel, complex or significant matters where the Tribunal would benefit from submissions by the Commissioner. The right of appearance does not usually extend to mediation between the parties and this matter is ongoing.
  2. Fact Sheet — Contractor’s guide to section 121 of the GIPA Act
  3. Fact Sheet — Agency’s guide to section 121 of the GIPA Act
  4. Fact Sheets, Guidelines and other Resources
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