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The Public Information Disclosure Act was ratified on April 2008 and, following a government review, the Transparency of Public Information Law came into effect in May 2010. The introduction of transparency legislation in Indonesia has been viewed as a move to alter the default position on information, which historically has been defined by secrecy[1]. It has also been seen as another step in improving the accountability of Indonesian politicians and public institutions that began with the democratic reforms of 1998 [2].
The objectives of the Act are centred on securing the rights of Indonesian citizens to public information, improving the transparency of the process of decision making and reasoning behind policies. The Act also aims to increase participation of the public in the political process, foster a new era of good governance - defined by its openness, efficiency and accountability - as well as improving the sciences and information management [3].
Background and History
Indonesian's political landscape is shaped by the pervasive corruption of the Suharto premiership. Under President Suharto, who held office from 1967 until 1998, Indonesian politics was defined by the absence of transparency, accountability, democratic institutions and free press. Throughout his time in office, Suharto engineered an increasingly oppressive system of governance whereby controls over the various social and political forces of Indonesia were continually increased in order to both minimise dissenters, and encourage political inactivity [4]. This centralisation of power and autocratic approach fed into every part of Indonesia's state infrastructure; movements or initiatives based on voicing a need for change were quashed and public information was considered confidential unless its disclosure was specifically authorised [1].
Suharto ensured the benefits of corruption were dispersed throughout the system, so that officials at all levels were incentivised to maintain the status quo [4]. However this approach could not last, and with the Asian economic crisis that hit Indonesia in 1997, one cause of which was Suharto's massive misappropriation of wealth [5], the funds for co-option were similarly affected. Once Suharto was no longer able to purchase the loyalty of officials, support faded, opposition mounted [4], and Suharto was forced to resign.
Suharto's successor, Habibie, announced a new ambition for a clear system of governance and political existence "free from corruption, collusion and nepotism" [4] and Indonesia embarked on a programme of extensive political and institutional reforms including the introduction of democratic elections and reduction of constraints on the press and wider civil society. Although it took a further ten years for the right to public information legislation to come into effect, its development can be seen as another move to empower Indonesian citizens, reduce corruption and improve the transparency and accountability of Indonesia's public institutions.
The Legislation
The legislation defines public information and the details the relationship between the requester and the public institutions that hold it. Article 1 of the Act defines Public information as that which is "produced, stored, managed, sent and/or received by a Public Agency" [3]. The institutions covered include the executive, legislative, judiciary and other agencies whose function and main duties are related to the organising of the state, as well as non-governmental institutions that are part or wholly funded by the state.
Public information applicants can submit a "request to obtain Public Information to the relevant Public Agency in writing or otherwise" [3], and the institution has ten working days in which to respond. The Act also sets out provisions for the proactive disclosure of certain information, including that which is required to be immediately, periodically and regularly released by public institutions.
In addition, the Act established the Information Commission, an independent body whose members are nominated by Parliament and appointed by the President. The Commission functions to implement the regulations, provide technical directives and settle disputes through either mediation or non-litigation adjudication. If a dispute remains unresolved following mediation and subsequent non-litigation adjudication, a requester can appeal to Indonesian courts.
Exemptions and limitations
The legislation seeks to emphasise the obligation of public institutions to maintain and develop their attitude on public information to be one of openness and disclosure, and accordingly exemptions are designed to be limited and specific. Similar to other FOI regimes, some potential exemptions to disclosure include public information relating to law enforcement, defence and security, resilience of the economy and personal Information.
Information can only be withheld following the application of a consequential harm, or public interest test, which, although mentioned in the legislation, the specifics of its operation are not explicitly clarified. It is generally accepted that officials dealing with the request for potentially sensitive information have a duty to judge the potential impact of releasing the information; assessing the harm that may be caused to protected or private interests against the wider public interest that resides in the disclosure of the information.
Past practices and prejudices relating to confidentiality and secrecy must be disregarded, and the official responsible must establish a causal relationship between the release of information and the risk of harm [1]. Requests can also be refused if the institution does not hold the information requested, or if the request is not made in accordance with procedural guidelines.
Recent developments
Following the passing of the legislation there was optimism surrounding its aims. However, concerns also existed that the cumbersome state apparatus of Indonesia could hinder effective implementation, not to mention the lack of clarity regarding information classification and absence of sanctions for non-compliance [7]. Recent independent reports appear to confirm the fruition of the sceptics' predictions.
The reports published criticise the level of awareness and implementation of the Right to Information law; awareness regarding its scope and procedures are poor, and officials' attitudes towards disclosure and confidentiality remain largely the same as they did prior to the 2010 legislation [8].
One report, by the Centre for Law and Democracy and the Indonesian Centre for Environmental Law [1], assessed the exemptions to the right to information and found that a large number of officials were either referring to other laws when judging whether information was exempt or simply maintaining the pre-legislation stance of non-disclosure and secrecy, a trait that has also been noted by the press in numerous articles [9]. These failures were largely attributed to the lack of manual or guidance in applying the consequential harm or public interest test to enable them to assess whether information was exempt or not.
Further assessments, examining three Indonesian public authorities, the Ministry of Education, Ministry of Health and the Republic of Indonesia National Police reaffirmed the lack of clarity regarding exemptions as being central to the difficulties encountered in implementation. It also identifies a general lack of awareness surrounding the legislation, with public authorities still citing confidentiality "as a justification for refusing requested information despite the lack of any justification for this" [2]. Previous studies, evaluating the freedom of information at a provincial level, discovered similar problems with local government agencies, and suggested more specific regulations for local authorities would enable more effective implementation [10].
The reports offer some recommendations for future development of right to information procedures including the raising of awareness, standardising approaches, training for officials on exemptions and the strengthening of the Information Commission; the Indonesian Commissioner himself has cited a lack of authority as affecting the Commission's ability to regulate institutions and officials [11]. The evidence available so far, certainly suggests that if public information legislation is to assist in developing a default position of disclosure and openness, greater vigilance and proper application of the rules are required.
Bibliography
[1] Prayitno, D.E. [Et Al.], (2012), Interpretation of Exceptions to the Right to Information: Experiences in Indonesia and elsewhere, Centre for Law and Democracy and Indonesian Centre for Environmental Law, http://www.law-democracy.org/wp-content/uploads/2012/03/Interpretation-of-Exceptions-To-the-Right-To-Information-Experiences-in-Indonesia-and-Elsewhere.pdf
[2] Karanicolas, M. [Et Al.], (2012), Implementation of the Right to Information: An assessment of three Indonesian Public Authorities, Centre for Law and Democracy and Yayasan 28, http://www.law-democracy.org/wp-content/uploads/2012/03/Chelsia-Report.full_.12.02.28.TM-edit.pdf
[3] English translation of Indonesian law, Public Information Disclosure Act 2008 http://www.right2info.org/resources/publications/Indonesia-Public-Information-Disclosure-Act-2008.doc/view
[4] Robertson-Snape, F. (1999), Corruption, Collusion and Nepotism in Indonesia, Third World Quarterly, Vol. 20:3, pp.589-602
[5] MacMillan, J. (2011), Reformasi and Public Corruption: Why Indonesia's anti-corruption agency strategy should be reformed to effectively combat public corruption, Emory International Law Review, Vol. 25, pp.587-630
[6] Hamilton-Hart, N. (2001), Anti-corruption strategies in Indonesia, Bulletin of Economic Indonesian Studies, Vol. 37:1, pp. 65-82
[7] Thornley, A (2010), We have a right to know. Is our new law helping us find out?, The Jakarta Globe press release, http://www.thejakartaglobe.com/news/we-have-a-right-to-know-is-our-new-law-helping-us-find-out/413598
[8] Press release (2012): Reports critically assess RTI performance in Indonesia, http://www.freedominfo.org/2012/03/reports-critically-assess-rti-performance-in-indonesia/
[9] Arditya, A.D. (2012), City govt slammed for lack of transparency, The Jakarta Post press release, http://www.thejakartapost.com/news/2012/04/19/city-govt-slammed-lack-transparency.html
[10] Faisol, A. [Et Al.] (2010), Fulfilling to Right to Information: Baseline Assessment on Access to Information in East Nusa Tenggara, Indonesia, Article 19, http://www.article19.org/data/files/pdfs/publications/fulfilling-the-right-to-information.pdf
[11] Press Release (2011), Government institutions still neglecting document requests, http://www.thejakartapost.com/news/2011/04/29/government-institutions-still-neglecting-document-requests.html
[12] Simpson, B. (2010), Indonesia's Freedom of Information Law, http://www.freedominfo.org/regions/east-asia/indonesia/
