Reports Critically Assess RTI Performance in Indonesia

12 March 2012

Two years after implementation of the Indonesian right to information law, several new reports look closely at how exemptions in the law are being handled and how three agencies are implementing the law.

Government officials are still taking the same approach to disclosure as they did before the law, according to one report (English)  (Indonesian), “Interpretation of Exceptions to the Right to Information: Experiences in Indonesia and Elsewhere, written by the Centre for Law and Democracy (CLD) and the Indonesian Center for Environmental Law (ICEL).

The other report (English) focuses deeply in three agencies. A preamble notes, “There remains a certain unwillingness on the part of public authorities to make information available.”

Exemptions Examined

The overview of all the exceptions in the Law on Public Information Disclosure and the system for interpreting them analyses how public authorities in Indonesia have applied these exceptions in practice.  More broadly, it surveys how such exceptions are applied in other countries and provides a detailed analysis of both national and international experience in applying five selected exceptions. It covers exceptions for 1) law enforcement, 2) protection of intellectual property rights and protection from unfair business competition; 3) natural wealth; 4) privacy (personal information); and 5) memoranda and letters of inter- and intra-public authority deliberations (internal information).

“In some sense, the regime of exceptions is at the heart of any system for the right to information because it represents the dividing line between openness and secrecy. It is also one of the most difficult parts of the right to information system to develop, in part because it is so important, and in part because of the inherent complexity of interpreting and applying exceptions.”

Four Main Conclusions Drawn

The report highlighted four “clear conclusions” about Indonesia. In abbreviated form they are:

“First, at this very early point, it is fair to say that understanding of the regime of exceptions remains weak in Indonesia. ….[o]ur research suggests that most officials have continued to take more-or-less the same approach to confidentiality as they did prior to the adoption of the Law on Public Information Disclosure.”

“Second, the way exceptions are understood varies considerably between different public authorities and probably even between different individuals within those authorities.”

“Third, in some cases, it may be difficult to reconcile earlier laws with the provisions of the Law on Public Information Disclosure. This may be the case, for example, where these laws establish very clear and yet blanket rules on secrecy. Imaginative interpretation can certainly be used to limit this problem but, at least over time, there is a need to review these pre-existing laws and amend them, as necessary, to bring them into line with the Law on Public Information Disclosure.”

“Fourth, there have been, so far, only quite limited opportunities for Indonesian oversight bodies – namely the information commissions and the courts – to develop a detailed jurisprudence interpreting the exceptions. This is an extremely complex matter and our research demonstrates that Indonesia has a long way to go before it reaches the sort of understanding about the scope of exceptions that one finds in the jurisprudence of other countries, particularly those with longer-standing right to information laws, but also some other countries, notably India, where an enormous amount of social attention has been devoted to this problem.”

Recommendations Made

In a recommendations section, the authors say that “there is an enormous need to raise awareness about the regime of exceptions” and suggests a variety of strategies.

Training about the exceptions is also needed, according to the report, which also suggests a comprehensive analysis of all laws and other legal documents which include provisions which impose or even just promote secrecy or openness. The report ends with a discussion how to develop the system through jurisprudence, such as through helping strengthen the information commissions. Agency Implementation Faulted

Three Agencies Studied

The three-agency report delves into compliance by the Republic of Indonesia National Police, the Ministry of National Education and the Ministry of Health.

The authors write: “As agents of reform, it is the role of civil society to monitor the implementation process and document its successes and failures, in part in order to pressure public authorities to fulfill their new responsibilities properly. Civil society should also work in a cooperative fashion with government, wherever possible, to promote positive implementation.”

The report, “Implementation of the Right to Information: An Assessment of Three Indonesian Public Authorities,” was written by the CLD and Yayasan 28.

“A key issue is the lack of understanding among public officials and public authorities over whether or not information should be categorised as exempt, and confidentiality is still frequently claimed by public authorities as a justification for refusing requested information despite the lack of any justification for this,” according to the report, which also makes agency-specific recommendations.

“Our conclusion is that significant work is needed on the part of public authorities in order to improve information management and disclosure services, particularly by the Ministry of Education. The authors hope that this Report, by examining and contrasting international better practices and Indonesian legal requirements with the reality of implementation, will serve both as a wake up call to public authorities to recognise their new responsibilities, and as a roadmap for how these responsibilities can best be fulfilled.”

Conferences Held

Both reports were featured at a March 5 conference sponsored by the ICEL, Yayasan 28, the Alliance of Independent Journalists (AJI), PATTIRO and Yayasan SET.

“We hope that this conference will help public authorities and oversight bodies interpret exceptions in line with the spirit of openness,” said Henri Subagiyo of ICEL. “We look forward to building on the success of this conference to create partnerships for implementation of the RTI law with the various commissions, public authorities and other stakeholders.”

Speakers at the conference included András Jóri, former Hungarian Information Commissioner, Ahmad Alamsyah Saragih, Indonesian Central Information Commission, General Saut Nasution from the Indonesian National Police Headquarters, Professor Takdir Rahmadi, Supreme Court Judge and Tara Hidayat, Indonesian Presidential Task Force.

On March 8, at the invitation of the Supreme Court, judges from Indonesia’s top courts, as well as leading government officials, met in Jakarta to attend a workshop on exceptions to the right to information. The seminar was organized by Supreme Court, CLD and ICEL.

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