Researcher Identifies Concerns With New Indonesian Law

31 December 2010

A variety of concerns about the new Indonesian freedom of information law have been identified by Andrew Thornley, a specialist on democracy and governance with the Research Triangle Institute who has been researching the Indonesian experience.

“… [W]orries center on the fact that while this may well be one of many sound laws and policies?, the state has simply become too big and cumbersome to implement most of them effectively,” Thornley wrote in a Dec. 26 article in the Jakarta Globe.

“Specific concerns relate to the lack of clarity about information classifications, an absence of sufficient sanctions to enforce compliance and a lengthy appeals process that could dog formal requests for sensitive material,” according to the article, which provides considerable detail and commentary on the implementation of the 2008 law just coming into force this year.

Reprinted with the permission of the Globe:

We Have a Right to Know. Is Our New Law Helping Us Find Out?

Information, as the axiom goes, is the oxygen of democracy. So the country’s Freedom of Information Law, passed in April 2008 and in full force since April 30 this year, should — in theory — strengthen efforts at reform and allow us all to breathe a little easier.

But questions remain about the extent to which the law will have any significant impact in promoting the transparency and accountability to expose or deter corruption and improve public services.

A look at the law after six months provides some answers. To be sure, there are obstacles in the form of weak sanctions for obstructing information access, the ability of public bodies to define exemptions broadly and the prospect of a lengthy and expensive appeals process.

The country has also yet to promote a genuine commitment from public bodies to provide information. Nonetheless, there are believers in a law that was sought after by free press advocates and various nongovernmental organizations for more than a decade.

According to Agus Sudibyo?, a member of the Press Council and long-time freedom-of-information advocate, the law is “both theoretically and practically relevant,” especially in the battle against corruption.

Placing it within a broader reform context, Chandra Kirana?, a regional coordinator for the Revenue Watch Institute, a prominent monitor of mining and other resource extracting industries, considers the law “a useful tool” to promote good governance.

Certainly the law, as with other such efforts around the world?, affirms the importance of public information and has strong procedural guarantees: Information should be provided in a timely manner and at a low cost to the person making the request (although the exact definition of these terms is not spelled out).

The law also requires proactive publication, whereby public bodies — defined as those agencies receiving state funds (including ministries and other government entities), public donations or foreign funds at the national or local level — are required to provide information on a regular or emergency basis, independent of specific requests.

Sanctions — although modest — are also laid out for government officials who obstruct the process of providing information. And there is an appeals system, both internally, through a newly established Information Commission mandated at the national and provincial levels, as well as the existing courts.

Is It Enough? It all sounds good. However, worries center on the fact that while this may well be one of many sound laws and policies?, the state has simply become too big and cumbersome to implement most of them effectively.

Specific concerns relate to the lack of clarity about information classifications, an absence of sufficient sanctions to enforce compliance and a lengthy appeals process that could dog formal requests for sensitive material.

Ridaya Laodengkowe?, from the Publish What You Pay coalition, which monitors the resources extraction sector, said the law could bring significant change, “if we can apply it.” The premise underlying an effective Freedom of Information Law is that all information should be publicly available unless there is a very good reason, systematically applied, for exempting it (and, even then, exemptions should have a time limit). Broadly accepted rationales for exemption include national defense, law enforcement and foreign relations.

In determining exemptions, freedom of information laws often require public bodies to conduct a so-called harm test for withholding information — what significant harm to the public good would result from disclosure? Such tests are typically based on the presumption that information should be made public unless there is a compelling and understandable reason not to do so.

Simply preserving bureaucratic privilege or convenience is not a sufficient justification. Some information laws, further include a “public interest override,” meaning that even after the harm test, if release of information can be justified in the greater public interest, then it must be released.

The Achilles’ heel of Indonesia’s law is that exemptions are very broadly defined, with no explicit mention of overriding public interest. While there is mention of harm tests, subsequent implementing regulations have not provided detailed guidance on how to apply these.

Furthermore, two bills soon up for legislative debate — relating to state secrets and intelligence — may aim to expand the grounds for exemptions. Public Record In response to public requests so far, exemptions often have been broadly interpreted, a sign that a culture of secrecy even at the lower levels of government remains well entrenched.

A request to the Cilegon District Tourism Department in Banten by Pattiro, a civil society organization, in July asking for information on the department’s work plan, the location of tourist sites and numbers of traditional artworks in the district was turned down with the simple explanation that such information was not for the public record.

While sanctions are rarely touted as the best catalyst for adherence to a freedom of information law, they can in some cases be a good motivator. However, Indonesia’s law carries only a modest stick. Indeed, punishments are more severe for acquiring classified information than for obstructing access to public information, and individuals receive harsher punishments than institutions.

Both of these “send the wrong signals,” according to long-time international freedom of expression campaigner Toby Mendel?, from the Center for Law and Democracy, an international human rights group working with Indonesian organizations on the implementation of the law.

Those found guilty of acquiring certain kinds of confidential information? can be fined up to Rp 20 million ($2,200) and imprisoned as long as three years. Additional sanctions for public bodies are extremely moderate and unlikely to present any meaningful deterrent against abuse of the law.

The maximum sanction for a public body obstructing information access is only Rp 5 million. Interestingly, unlike in the United States and elsewhere where freedom of information requests are routinely used by journalists to open confidential files for stories, in the course of preparing this report, no cases were found of the media using the law.

Indeed, some press organizations bitterly opposed the law precisely because of the potential sanctions imposed against individuals who even inadvertently receive confidential information. Other peculiarities include the fact that foreigners may not request information, raising the question of whether nationality has any relevance for public information.

No doubt, interested foreigners will simply ask an Indonesian colleague to help. Also, anyone filing a public information request must state the reason for the request. Toby McIntosh?, executive editor of the Washington-based freedominfo.org, considers this requirement of a reason as “objectionable for philosophical and practical reasons.”

“Simply put, public information ought to be public regardless of what the intended use is,” he said. The concern over this article is that it offers yet another opportunity to decline a request.

And perhaps most peculiar of all, the law is officially entitled the “Openness of Public Information Law,” the word freedom having been dropped from earlier drafts of the bill by government representatives. (Reference to “Freedom of Information Law” here is for convenience, as it is an internationally recognized standard.)

Anatomy of a Request

One of the most important aspects of the law is the creation of the Information Commission, one of a growing army of semi-potent, quasi-governmental commissions flourishing — and sometimes floundering — in Indonesia’s reform era.

The commission is, most important, supposed to mediate and adjudicate disputes arising from information requests.

But 18 months into its tenure, the seven commissioners have yet to receive funds to hire expert staff. That said, the commission has already made two landmark decisions, opening information related to the oil and gas sector and public education funds.

But while the commission’s decisions are binding, they are not final. They can be appealed to the courts.

So the anatomy of an information request could read something like this:
(a) File the request;
(b) Not satisfied with the response or lack thereof? File a complaint to a superior at the same institution;
(c) Not satisfied with the response or lack thereof? Then file a dispute with the Information Commission;
(d) Attend several sessions of mediation and possible formal adjudication of the dispute at the commission;
(e) See the decision go in your favor, but have the public body appeal to the court;
(f) See that court ruling go in your favor, but have the public body appeal to the Supreme Court;
(g) See that ruling go in your favor. Now, in a process that could take months or even years, should the public body in question still refuse to provide the information, this would constitute a criminal act.

As such, the request process can be cumbersome, and the appeals process is, well, less than appealing. It is no secret that Indonesia’s courts are widely regarded as time-consuming, costly and rarely trusted to be impartial.

Erry Riyana Hardjapamekas?, former deputy head of the Corruption Eradication Commission (KPK), suggested the following on the sidelines of one information dispute hearing: “The way to resolve information disputes is not through a war of legal interpretation, but through genuine intention and a spirit to promote transparency.”

Scorecard So Far?

With all this in mind, how has the law fared in practice so far? A quick glance at hundreds of information requests filed since April suggests there is some positive public awareness of and willingness to use the Freedom of Information Law.

But a closer look reveals that many of these requests have been filed by a handful of NGOs, linked, for the most part, in a loose coalition focused on issues of transparency and accountability.

Two organizations, Pattiro and the Sloka Institute, have submitted almost 100 requests between them, in Banten and Bali, respectively.

About a quarter of these have been answered. Garut Governance Watch in West Java made six requests in May and June.

Two were answered quickly, three not at all and one — for the work plan, strategic plan and 2010 financial report of the Regional Public Service Body at Dr. Slamet Public Hospital — was refused.

The fact that there have been even some positive responses to requests, according to the Center for Law and Democracy’s Mendel, “is not insignificant.” “This is a massive sea change for officials,” he said.

On more contentious issues, one individual has filed a request to the Ministry of Religious Affairs regarding use of funds for the hajj pilgrimage.

And a prominent NGO has filed a dispute with the Information Commission concerning its request to the State Intelligence Agency (BIN) for, among other things, the assignment letter of Garuda pilot Pollycarpus Priyanto?, who was convicted for his role in the murder of human rights activist Munir Said Thalib? in 2004.

And as for information requests gone sour, early indications are the costs of disputing a decision are high.

The Discourse and Applied Research Institute (LPAW), an NGO in Central Java, was turned down in its bid for information about financial and corporate interests in the Cepu block oil and gas field.

LPAW filed the country’s first official dispute over the matter but Kunarto Marzuki?, the group’s researcher, has complained about the excessive financial burdens? due to multiple hearings for which he needs to travel to the provincial capital. The case is ongoing.

While some requests have been swiftly handled, most cases seem to reveal both a lack of significant attention by public bodies to implement the law, as well as a variety of means of bureaucratic obfuscation.

Refusals have been made because a request does not bear an official stamp, come with an official letterhead or have a formal letter of introduction accompanying it — none of which is required under the law.

Observers report that public bodies have been slow to appoint information officers required by law to respond to requests, as well as to confirm the procedures for implementing the law.

No public entity seems to have yet implemented an effective system for determining exemptions. For its part, the Information Commission appears to be finding its feet. Its members seem open and accessible.

They are making confident arguments in information disputes and designing public information initiatives, including opening their adjudication hearings to the people through live video feeds in every province by using the Constitutional Court’s facilities.

While the instinct to block requests is strong, there are incentives for skeptical civil servants to go along with the open government program. For example, clean officials can protect themselves from suspicion by releasing documents that show their actions are above board.

?Arif Nur Alam?, director of the Indonesia Budget Center, which has filed a handful of requests relating to regional election budgets and procurement, puts it simply: “The provision of public information is the easiest way to build trust with the people. This shows that government cares.”

Chandra, from the RWI, agrees, but cautions that the public will need to “scratch and claw and incessantly be in the fight” to promote adherence to the law.

Mendel? says: “Things are not perfect, but they never are. The point is that there is now a tool to try to promote greater openness, and this could grow over time.” “Or it could fail,” he adds.

Andrew Thornley is a specialist on democracy and governance who has worked in Indonesia for more than 10 years, most recently with the Research Triangle Institute.



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