12 April 2008

Freedom of Information

The long and somewhat tortuous history of the Bill on the Freedom of Public Information (FOI Bill) has come to an end with the passage of the bill through the House of Representatives (DPR) and for some this might be a case of “better late than never” considering that it has been some nine years since the issue was first touted. The Bill has both supporters and critics with respect to the content of the provisions.

The basic premise for the FOI Bill is that the 1945 Constitution of the Republic of Indonesia in Article 28F states that every person has the right to communicate and obtain information for the purposes of personal growth and the growth or the community. This right would be characterized as including the right to find, obtain, own, and store information in whatever mediums are at the relevant individual’s disposal. The bill also describes this right as a human right and particularly so in democratic countries.

Interestingly, the General Introduction to the Elucidations to the bill state unequivocally that a more open and transparent form of governance in which the broader community can play a supervisory role is the option that is being strived for. This is intended to force the government into adopting best practice standards and implementing principles of good governance.

The bill has four main features that it addresses, namely: the rights of people to obtain information; the obligation on public bodies to provide that information and satisfies requests for information in a manner which is fast, timely, and cost effective; what exceptions there are to this freedom of information; and the obligation on information providers to have and maintain information systems that are suitable for the purposes intended.

Those that support the bill point out that the passage of the bill evidences a commitment by the DPR and the government to be open and transparent in terms of how it governs Indonesia. Once again, the Elucidation is explicit that the bill is a strategic part of the drive to eradicate corruption, collusion, and nepotism (Korupsi, Kolusi, dan Nepotisme / KKN) and the simultaneous promotion of good governance principles.

In contrast critics see the bill as an open cheque that with the enactment of implementing regulations has the potential to do more harm than good through the criminalization of certain activities such as journalism. However, it must be noted that even though the bill will be enacted on either Presidential signature or after 30 days, the provisions of the bill do not come into force until two years after the enactment date. The rationale for this provision is to provide enough time for the government to draft and enact implementing regulations, technical guidelines, socialization of the new law and its provisions, and to put in place all the necessary infrastructure and equipment.

Therefore, it is reasonable to conclude that in the very ‘real’ sense there will not be any immediate change to how information is obtained or provided so it remains a case of ‘business as usual’.

Foundations and Objectives
The primary foundations and objectives of the bill are to ensure that there is public access to information. In this sense the bill utilizes sweeping and grand statements to suggest that all public information is to be characterized as open and accessible to the users of public information. However, later provisions restrict this access for certain types of information and places restrictions on how information can be used once it has been obtained.

The restrictions to certain information is generally where the information that is being sort is considered to be secret, improper, or likely to impact on public order in a negative way. The test for how significant the restrictions are to be is premised on an assessment of the pros and cons of granting access to the information, specifically whether there is a greater good being protected by not releasing information under a FOI request.

The bill also stipulates that once a FOI request has been received then the information providers are to respond in a manner that is fast, timely, and cost effective. However, even in countries with a long history of freedom of information legislation the delivery of requested information is not always timely. Recent example from the United States highlighted that some FOI requests were still pending some eight or nine years after originally being lodged.

So, where extensive vetting procedures are put in place to determine FOI requests then the idea of timely is going to be subjective to the information requested.

The Rights & Obligations of Applicants
Every person has a right to obtain information in accordance with the prevailing laws and regulations including this bill. The right allows the information obtained to and disseminated. However, it must be noted that the application process is not as simple as asking for the information. The applicant is required to state their reason(s) for wanting the requested information.

Where the FOI request is obstructed or hindered in being determined then the applicant has the right to resort to legal recourses in order to have the request finalized.

The obligations of the applicant are to ensure that the information is used in a manner consistent with the original request and the prevailing laws and regulations.

What Information & Whose Information is to be Available
Generally, the information that is to be available is information relating to the activities of public bodies, their activities and performance, their financial records, and any other information that is stipulated in legislation to be made available.

The information providers are also to record the number of FOI requests that they receive, the time taken to fulfill the request, the number of requests granted and rejected, and the reasons for the rejection of any FOI request.

On whose information is to be publicly available through a FOI request the bill makes specific reference to the information of State and Regional Owned Enterprises (BUMN and BUMD), political parties, and non-government organizations.

The bill includes an extensive list of information that is not subject to FOI. These exceptions, among others, include: information what if it were provided would obstruct a law enforcement operation. This covers issues of investigation and examination of criminal matters, identities of informants and witnesses, and criminal intelligence.

Other information subject to restrictions include information that if released would negatively impact on intellectual property rights, security and defense of the nation, the national economy, foreign affairs, personal confidential information (health, wealth, and education), and any other information that is classified as being exempt in legislation.

Information Commission
The bill establishes an Information Commission whose basic duties and functions are to receive, examine, and decide information disputes through mediation or adjudication, determine public policy relating to information services, and to confirm implementing and technical guidelines.

The Information Commission will have both a Central and a number of Regional offices.

The authorities, the responsibilities, and the mechanisms for appointing and dismissing members of the Information Commission are all regulated.

The Central Information Commission if to be established within one year of the enactment of the bill and Regional Information Commissions are to be established within two years.

Court-Based Settlement
Where parties seek review of an Information Commission decision the application for appeal of the Commission’s decision must be submitted to either the State Administrative Court or the District Court within 14 days of the Commission handing-down its decision. The Court will then either overturn the Commission’s decision or affirm it.

The parties may seek cassation of the lower courts decision. A cassation application must be submitted within 14 days of the lower court’s decision to the Supreme Court.

Criminal Sanctions
The deliberate misuse or abuse of information in breach of the law is liable to a maximum of one year imprisonment and a fine of IDR 5 million. This ranges to a term of three years imprisonment and a fine of IDR 20 million for anyone that deliberately accesses information without permission information that is part of the exception category.

Bottom Line

The bill provides potentially greater access to public information. However, it must be noted that this access comes with specific responsibilities upon those that access this information. The bill also is one of the most restrictive pieces of freedom of information legislation in the world when one considers the severity of the applicable sanctions that apply for any breach of the provisions.

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