11 April 2010

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Welcoming the freedom of information law

“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman” (Justice Louis D Bran-deis, On Other People’s Money and How the Bankers Use it, 1933, Chapter V).
Not so many people know that next May, the Freedom of Information (FoI) law will come into effect.
This law will have tremendous implications in increasing transparency in government operations and to a certain extent, the business world.
The central idea of the FoI law is to bring government “into the sunlight”. The “sunlight” will allow the governed to observe clearly government operations that are otherwise performed in secrecy. Because they will be watched, it is expected that the public officials will behave accordingly.
The FoI law provides everyone, irrespective of their motives, a right of access to information held by public bodies.

The understanding of “public bodies” in our FoI law varies from all governmental branches in the executive, judiciaries and the legislative, to political parties, state-owned enterprises, non-governmental organizations and other legal entities receiving funding from the state or regional budget.
Not all information can be disclosed, however. The FoI law provides a restrictive list of information which could be exempted from disclosure.
Compared to FoIs in other countries, the list of exemptions in the Indonesian FoI law is very narrowly constructed.
This means that the exemption to disclosure only applies to very few types of information such as that related to defense, intelligence, law enforcement, intellectual property rights, personal information and diplomatic relations.
Other than the limited and narrowly construed exemption clauses, what makes our FoI more “generous” compared to other countries’ FoI laws is also the fact that there is an obligation to apply public interest testing to each and every exemption clause.
Other countries’ FoI laws, such as the English and Scottish laws recognize two types of exemptions: absolute and relative. If the exemption type is absolute, such as that related to security matters, the English FoI law requires no public interest testing.
The Indonesian FoI law, however, recognizes no absolute exemption. This means that a public interest test would be mandatory in any case.
What this means is that the exemptions to defense, intelligence and diplomatic relations as discussed previously are not absolute. If the Information Commission considers that there is a greater interest for transparency rather than keeping the information secret, the information should be disclosed, even though it is a security matter or even if such a disclosure is prohibited in other acts.
Is this a good thing? It depends on where you are standing. Imagine that because there is no absolute exemption clause in the legislation, one can actually submit an information request to the State Intelligence Agency, the financial intelligence unit (PPATK), the Central Bank and even private banks if they are state-funded.
If they fail to provide, one can always appeal to the Information Commission to ask for the application of a public interest test.
That being said, the Information Commissions (central and regional, depending on the case), actually have the discretionary power to decide on the fate of information in all branches of the government.
Their jurisdiction covers all departments, with respect to all types of information, without any exception.
Given that vast responsibility, the Information Commission may face complexities in settling disclosure cases. They will have to decide whether information such as defense contracts to purchase arms, the utilization of foreign funds to finance counter terrorism units, a company’s tax reports, governmental procurement contracts and diplomatic correspondences contain a certain public interest that warrants public disclosure.
Due to the fact that no single governmental department is free of corruption, one could expect that a public interest for disclosure could be found in a great number of cases. The pressures toward nondisclosure from the bureaucrats would be enormous. It is in this respect that civil society’s role is vital.
Although in the preceding paragraphs I have pointed out that our FoI law is “generous”, the vague constructions of the clauses still open gaps for the government to tamper with its enforcement, such as through the creation of nontransparent implementing regulation which may defeat the original object and purpose of the FoI.
It would be the ministry of communication and information that is tasked with the formulation of Peraturan Pemerintah (Government Regulations).
If this tendency toward openness is to be maintained, civil society needs to pay attention so that the enactment of the implementing regulations are transparent themselves and that the public is involved in the decision-making process.
It is possible that the exemption clauses within the FoI law are “further reinterpreted” in the implementing regulation which in practice will allow more constrain to disclose requests.
To anticipate such a maneuver, I consider that for the majority of FoI issues, the implementing rule should be constructed from the ground up based on guidelines and case law, rather than top-down through Peraturan Pemerintah.
Give the information commission its autonomy to formulate guidelines through research, public consultations and discussion groups.
Let the parties argue their case before the information commission and courts and let the law evolve from this.
There are two reasons for this. First, it is because as I have argued above, there is much incentive for the government to be secretive.
The bureaucracy has an inevitable interest toward opacity in the interest of sustaining corruption and
It is not likely that they can be expected to produce what Justice Brandeis termed above as a “disinfectant”. Thus, it is necessary to bring the law down to the people.
Second, learning from abroad, disclosure cases are settled on a case-by-case basis. The general principal only arises after factual cases are presented and argued before a tribunal.
Even up until today, there has been no one set of methodology for information commissions in other countries in balancing public interest in exemption clauses.

The idea of the FoI law is to allow the governed to observe clearly government operations that are otherwise performed in secrecy.

muhammad mova al afghani, The writer is the founder of the Center for Law Information (CeLI).
Opini The Jakarta 2010