Introduction 

Automated decision making (ADM) is being adopted by a range of Australian Government agencies, and the Office of the Australian Information Commissioner (OAIC) has released a Report, Automated decision-making and public reporting under the Freedom of Information Act that assesses how transparent some agencies are being about their use of ADM, in the context of the Information Publication Scheme (IPS) established by the Freedom of Information Act 1982 (Cth) (FOI Act). 

In this article, we discuss the key takeaways from the Report, to assist Australian Government agencies to understand how to comply with their IPS obligations in relation to ADM.

What is the IPS?

The IPS, established by Part II of the FOI Act, requires agencies subject to the FOI Act to publish their ‘operational information’. 

Operational information is defined in section 8A of the FOI Act as being ‘information held by the agency to assist the agency to perform or exercise the agency’s functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of person or entities)’.

Key takeaways from the Report 

The OAIC considers that information about agencies’ use of ADM constitutes ‘operational information’ for the purposes of section 8A of the FOI Act. Accordingly, the OAIC considers that agencies that use ADM and are subject to the FOI Act must publish information about their use of ADM as part of complying with their IPS obligations. 

In reviewing agencies’ compliance with their IPS obligations in the context of their use of ADM, the Report noted that: 

• only 17% of agencies clearly disclosed their use of ADM;
• 9% of agencies were identified (using external sources) as ‘likely to be using ADM’ but did not disclose this in their IPS information; and
• 74% of agencies were not able to be identified as using ADM, using external sources or IPS information. 

The Report expresses concerns about these findings, noting that the Report states that 

‘the benefits of utilising ADM technology in government will only be realised if risks are appropriately mitigated and trust is built with the Australian community…[and] operational information should be interpreted to include information about the use of ADM systems which support decision making and recommendations, including the rules and procedures that agencies apply in making decisions’. 

Accordingly, the Report makes four key recommendations, which can be summarised as follows: 

1. All agencies that are authorised under legislative statutes to use ADM should publish this information as part of their IPS.
2. As part of their IPS, agencies should clearly state the types of ADM that are used to make automated decisions, noting that this is not limited to just artificial intelligence ADM tools.
3. Agencies that use ADM should ensure that their IPS includes a list of decisions that they use ADM for, and relevant and easy to understand examples for the public.
4. Agencies that use ADM should ensure that their IPS includes any policies that clearly set out the principles for when and how they use ADM to make decisions and recommendations affecting members of the public.

Next steps for Australian Government agencies 

It is clear that to meet IPS obligations, Australian Government agencies that are subject to the FOI Act must publish a range of information about any use of ADM. 

This will require such agencies to:

• identify and understand whether and, if so how, they are using ADM to make or support decisions; and  
• ensure that the IPS contains the material required by the OAIC.