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Background and History
Thai constitutions have recognised the right to information since 1991, a right that has been reformulated in both constitutions passed since. Under the current (2007) formulation, section 56 provides that:
"A person shall have the right to receive and get access to public information in possession of a governmental agency, State agency, State enterprise or local government organisation unless the disclosure of such information shall affect the security of State, public safety, interests of other persons which shall be protected, or personal data of other persons as provided by law." [1]
In 1997, the Official Information Act was passed to regulate for the constitutional right[2].
Legislation
The OFI was approved in July of 1997 and was in force by December of the same year. The Act applies to "State agencies", which covers any agency involved in central or provincial administration, independent bodies of the state, those agencies prescribed by ministerial regulations, and the courts in their non-trial functions. For the purposes of the Act, "official information" is defined broadly, including information in possession or control of the state, which may include facts, data, maps, drawings, diagrams, photographs, film, visual or sound recordings.
In terms of the rights and duties created by the Act, there is an obligation for State agencies to pro-actively publish information relating to their functions and powers (s.7), as well as a duty to make available additional listed categories of information for public inspection (s.9). Any information that is not subject a requirement to publish or to be made available for examination may be subject to a request (s.11). If the requested information exists, providing the information does not require any new preparation or analysis and that the information does not fall within one of the exemptions, then the State agency may release the information.
Exemptions
The OFI has several provisions relating to information that must be excluded. First, the right to information is not purpose blind. The request provision itself does not allow State agencies to release information unless the agency is convinced that "the request is not for benefit of trade and is necessary for the protection of the rights and liberties of such person or is beneficial to the public".
Official information which may jeopardise the Royal Institution can never be disclosed (s.14), but this is the only absolute exemption to the Act. When exercising the remaining qualified exemptions (s. 15), the State agency must take account of the public interest when making their decision on whether to disclose. Among these qualified exemptions are national security, international relations, national economic or financial security, where disclosure will endanger life or safety of a person, where it would harm law enforcement, or where disclosure will unreasonably encroach on the right of privacy.
Operation
Upon receiving a request for information, a State agency must reply "within a reasonable period of time". This phrase is not defined in the Act, but Article 19's report on the state of Thailand's FOI law indicates that the term has been "interpreted rather liberally by State officials". Their research has found that delays of months followed by a refusal to release without an explanation are not uncommon[3].
If disclosure is refused, a requester may appeal to the Information Disclosure Tribunal, which is subdivided by subject matter into five separate Tribunals. Appeals to the Tribunal are final, although it is possible to petition the administrative court of the decision is alleged to be unjust.
There is little or no data available on the extent to which Thai people have made use of the Act, but information is available from the Official Information Commission about appeals and complaints on the decisions of State authorities, which gives an indication of who is making use of the Act. Of those who have complained, journalists are relatively poorly represented in the figures, with government officials making between 30% and 40% of all complaints and over half of all appeals according to the statistics of the Official Information Commission[4].
There have, however, been a number of high profile incidents that have arisen out of the Thai FOI regime. In the early life of the scheme, Mrs Sumali Limpa-ovart uncovered the practices of an elite school in accepting the students of wealthy benefactors over those who had scored higher on entrance exams, and scrutiny of the applications procedures for universities and schools has been a persistent use of the OFI since. More politically, and rather less successfully, a number of applications were made to gain access to an official report on the Thai uprising of 1992. The report was finally released to those who had requested it, but subject to a high level of redaction and alongside a threat of prosecution should the information be disseminated more widely.
Critical reaction
The Thai scheme of FOI has had a mixed response among commentators, with general praise for the progressive Constitutional protection of a right to information, but criticism among many for what is seen as weak legal and practical implementation of the right[5]. David Banisar has also highlighted the difficulty in enforcing the decisions of tribunals as a result of the complex overlapping laws[6]. Leading Thai journalist, Kavi Chongkittavorn, meanwhile has criticised the Official Information Commissioner on the grounds that it is under the care of the Prime Minister's Offfice rather than taking the form of an independent body [7].
References
[1] Constitution of the Kingdom of Thailand (2007) http://www.isaanlawyers.com/constitution%20thailand%202007%20-%202550.pdf
[2] Official Information Act 1997 http://www.asianlii.org/th/legis/consol_act/oia1997197/
[3] Article 19, Freedom of Expression and the Media: Thailand, December 2005, pp.106-115
[4] Website of the Official Information Commission http://www.oic.go.th/content_eng/stat.htm
[5] Article 19
[6] David Banisar, Freedom of Information Around the World 2006: A Global Survey of Access to Government Records Laws, July 2006, pp.121-2
[7] http://www.freedominfo.org/2010/11/journalist-urges-reform-of-thailand-foi-law/
