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Challenges of Thailand's freedom of information law [2000] PLBIRp 29; (2000) 54 Privacy Laws and Business International Report 15

Challenges of Thailand's freedom of information law

THAILAND'S FOI ACT provides, among other rights, the opportunity to have false personal data corrected. Nakorn Serirak from Thailand's Office of the Official Information Commission explains the main aspects of the law, and the challenges faced with its implementation.

It has been only two years since the Thai Information Law, the Official Information Act, BE 2540 (1997) was passed. The Act, however, has become increasingly popular and has been widely accepted as a new but useful tool for the public. As it brings about many contributions to the agenda of political reform of the country, the Information Act also creates a significant challenge to the traditional bureaucratic system. It plays an important role in changing the attitude of the Thai civil servants towards the administration of official information.

BACKGROUND

The Official Information Act was first drafted by the so-called Transparency Government under Prime Minister Anand Panyarachun, and had to wait until July 1997 for approval by Parliament. It has been in force since 9th December 1997. (The Act was published in the Government Gazette on 10th September 1997).

The aim of the Official Information Act is to guarantee individuals right to have full access to government information. According to the Act, almost all official data and information should be made public.

There are only few categories of information that the State can still keep confidential. Should a state agency deny the disclosure of some data, people still have the right to appeal to the Official Information Commission (OIC), which will reconsider the cases.

The Official Information Act gives individuals a right to government information, ranging from the right to inspect, to request a copy, to get advice, to make complaints and appeal, and to ask the state to correct or change personal information.

This new principle reversed the traditional practice of state officials whose attitude towards government information was to keep it confidential and strictly for official uses. Disclosure was an exception, as most data was kept secret.

STATE AGENCY DUTIES ON INFORMATION DISCLOSURE

According to the Official Information Act, a state agency - i.e. central administration, provincial administration, local administration, a state enterprise, a government agency attached to the National Assembly, court in respect of affairs unassociated with the trial and adjudication of cases, professional supervisory organization, independent agency of the state, and any other agency as prescribed in the Ministerial Regulation [Official Information Act, BE 2540 (1997), section 4, also see other definitions under the OIA in this section] - may distribute information in three different ways:

1. Publish official information in the Government Gazette

2. Make official information available for public inspection

3. Provide information to individuals requesting it.

If any person makes a request for any official information, other than the official information already published in the Government Gazette, or already made available for public inspection, or already made available for public studies, and such a request makes a reasonably clear description of the information required, the responsible state agency shall provide it to such a person within a reasonable period of time.

Any person who considers that a state agency fails to publish the information in the Government Gazette, fails to make the information available for public inspection, fails to provide him with the information, violates or fails to comply with this Act, or delays in performing its duties, is entitled to lodge a complaint with the Commission.

We can see that most official information is subject to disclosure while only few records are exempt. According to the Official Information Act the following information may be withheld:

1. Official information that may jeopardize the Royal Institution.

2. Data relating to the performance of duties of the State agency under the law, public interests and the interests of the private individuals concerned:

a) The disclosure will jeopardize national security, international relations, or national economic or financial security;

b) The disclosure will result in decline of the efficiency of law enforcement;

c) An opinion or advice given within a State agency with regard to the performance of any act;

d) The disclosure will endanger the life or safety of any person;

e) A medical report or personal information the disclosure of which will unreasonably encroach upon the right of privacy;

f) Official data protected by law against disclosure, or data given by a person to be kept confidential. An order prohibiting the disclosure of official information may be issued subject to any condition whatsoever. However, the reasons for non-disclosure must be made clear.

IMPLEMENTATION OF THE OFFICIAL INFORMATION ACT

There were 124 complaints in 1999, 80 of which were resolved while the remaining 44 are being processed. Most of the cases are complaints about officials who did not provide good service and did not deliver the requested information. There were four times more complaints than in 1998, when there were only 32 cases.

There were 81 appeal cases: the Information Disclosure Tribunal has resolved 42 cases; 15 cases are now under consideration; and 24 cases are being processed by the Office of the OIC. Of the 57 Information Disclosure Tribunal cases, 49 related to social and national administration affairs and 8 to economic affairs. The total number of 81 appeal cases is thirteen times more than in 1998, with only 6 cases.

Those who requested documents under OIA last year were mainly private citizens, while government officers and journalists ranked second and third. Only two politicians made requests under the Act.

Documents that were requested most often include contracts, projects and budgets, followed by investigative documents.

PROBLEMS IN IMPLEMENTATION

After two years of implementation of the Official Information Act, major difficulties exist in disclosing Government information:

o Most people neither understand the key elements of the Act nor are aware of their rights. Most people do not know how to make a request under the Act in order to have access to state information. People cannot exercise their rights as they do not know the procedures.

o In government agencies, highranking officials do not understand the law and do not know how to implement it. In addition, they do not carry out their duties in accordance with the Act. Another significant aspect is that they have little skill in exercising discretion.

o The civil servants in government agencies are not familiar with the Act. They are not used to the new principles of information disclosure, which should be a crucial part of the civil service. They have negative attitudes towards the Act. Some feel that the Act puts a burden on them, and just like the executive level, they have little experience in implementing the law.

STRATEGIC GUIDELINES FOR 2000

To overcome such difficulties, the OIC has prepared strategic guidelines for the year 2000 and onwards. The guidelines are as follows:

1. To promote and raise awareness of the Act, the rights it provides and how it works.

a) State agencies should provide more training on the law as well as try to change the attitudes of civil servants and improve their skills of law enforcement. This should be done on different target groups, ranging from executive officials and legal officials to officials in charge of OIA. The training should be aimed at encouraging State officials to understand the Act and its significance. This would help to improve the efficiency of the agencies and of the nation as a whole.

b) Public relations campaigns will be used as a means to educate people about the law. Activities should be concentrated on building awareness of the public and educate people to realize the importance of the Information Act in ensuring their right to know.

c) Mass media has been targeted: it could be more active in promoting freedom of information. Media could raise awareness of the law. Training for media is thus recommended to be started in the coming year.

2. To develop the administration of State agencies:

a) To develop document management in all government offices, to be more efficient and systematic, eventually leading to nationwide compliance with the Official Information Act. Each agency should categorize its information according to what information can be disclosed and what should be taken into consideration by higher level officers.

b) The Official Information Commission will develop a manual or handbook for State officials in order to standardize procedures and mechanisms of information law enforcement.

c) Monitoring and evaluation should be carried out in all State agencies by both internal auditors and external inspectors. The objective of monitoring and evaluation is to assess how well officials understand the law, and also whether individuals are satisfied with the service.

3. To improve monitoring and evaluation of the Official Information Act. The OIC proposed guidelines to the cabinet in November 1999. Four measures were approved to evaluate the implementation of the Official Information Act by government agencies :

a) All State agencies have to report their activities on implementing the Official Information Act to the Official Information Commission twice a year.

b) The Office of the Permanent Secretary of the Prime Minister's Office will be the main agency in charge of monitoring and evaluation through an annual inspection plan.

c) All ministries and departments must appoint an inspector general for this mandate.

d) The Inspector general of the department of local administration will be responsible for the monitoring and evaluation of local entities.

4. To develop the efficiency and capacity of the Official Information Commission: The Office of the Official Information Commission was established to assist the Official Information Commission. The office is small compared to the scope of work. It deals with 8,775 state agencies around the country. This year, the Official Information Commission has adopted a development strategy for the office, which aims at ensuring the best possible capacity for monitoring.

GOVERNMENT POSITION

Freedom of Information is a key policy area for the government of Thailand. It is considered the most essential part of the political reform of the country. To promote peoples' right to know is a crucial part of being a democratic nation, and freedom of information also supports the aim of forming a civil society.

A recommendation, proposed by the OIC to the government and approved early this year lays down the following guidelines:

a) All State agencies have to speed up their enforcement of the Official Information Act.

b) The agencies concerned should support the budget, staff, and staff development of the Official Information Commission in order to achieve the goals of the law.

c) A representative of the ministries who chairs the Official Information Commission must work for the commission for at least two years in order to ensure consistency.

d) The Prime Minister's Office, together with all State agencies, should consider developing information management and document administration so that it can form a nationwide network.

e) The promotion of high ranking officials, and the recruitment of new staff as legal officers should take place to help fulfil the requirements of the Official Information Act.

CONCLUDING REMARKS

The Official Information Act has been a crucial component of democratic development as it encourages people towards political participation by directly expressing their needs or suggestions to the state. This should help make the government more accountable and more transparent. In order to participate efficiently, people should have full access to state information and should know what is going through state administration.

People should know all that the government does or will do. The Official Information Act ascertains the government's vision of 'what the government does or knows, people have the Right to Know'.

However, the Official Information Act is a new law, and the concept of freedom of information is totally new to both Thai state officials and to the people. Thai society thus needs some time to learn more about the Information Law. State officials have to understand the procedures of law enforcement better so that they know how to provide information services and disclose information to meet public requests.

Meanwhile, people should recognize their right to know and know how to utilize the Information Act as a means of access to state information. Thai society should recognize information law as an essential part of establishing accountable and transparent government and as a crucial part of eventually building up civil society.

This report by Nakorn Serirak, Head of Policy and Planning Department, Office of the Official Information Commission, Thailand, was originally prepared for the Forum on Access to Information (held on 10th February 2000 in Jakarta, Indonesia). Nakorn Serirak can be contacted at Office of the Official Information Commission Office of the Permanent Secretary Prime Minister's Office Government's House Bangkok 10200, Thailand. E-mail: nakorns@hotmail.com