1 From Political Reform to the Enactment of a Freedom of Information Law

I would like to say first that Thailand's freedom of information law arose as an integral part of political reform. Through political reform, a new constitution was completed in 1997. The freedom of information law, though, was completed a month before the Constitution came into effect and is known as the Official Information Act of 1997.

The reason for this [chain of events] was that the people who were attempting to move reform forward at that time were concerned that the draft constitution would be approved as it was, and so they thought they would augment the reforms by creating a number of statutes. The first of these statutes was the Administrative Procedure Act of 1996, the second was the Officials' Liability Act of 1996, and the third was the Official Information Act of 1997. The Official Information Act was to guarantee government transparency, make public agencies clearly accountable, enable the people's participation in the formulation and implementation of government policy, and provide access to the information to do so. The Official Information Act thus obliges the government to act in accordance with the desires of the citizens.

2 The Scope of Thailand's Official Information Act

The scope of the Official Information Act is broad. First, the law's scope is linked to the 1997 Constitution. Article 58 of the Constitution establishes a "right to know." A right to privacy is also established, in Article 34. The Official Information Act covers these two important rights by guaranteeing every citizen access to public information while protecting his or her privacy.

The Official Information Act defines the term "information" as all information that conveys meaning, regardless of whether the information is tangible or intangible. Information thus may be buildings, documents, or computer data.

The Act further defines as "private" that information which concerns particular private matters, including information that identifies an individual. This personal information is protected under the Official Information Act.

The Act applies to all public agencies, which are defined as encompassing the administrative, legislative, and judicial branches and both the central government and local governments. Agencies attached to the legislature, as well as the courts, are also subject to the Act. Judicial information during the stage at which judicial proceedings are continuing is excepted, however. In addition, public agencies of the state, including those such as the Red Cross that are not directly government agencies, can be covered under the scope of the law by order of the Prime Minister's Office. All individuals or corporations that are performing official duties under a public agency of the state may also be considered as personnel of the public agency. Those individuals or corporations that are vested with public authority, such as qualified agents who have received a state mandate or private firms in a contractual relationship with a government agency, also have public status and as such are subject to the Act. Even private actors thus bear responsibility for transparency and accountability.

The issue that called forth debate in Thailand was which agencies would not be covered by the Act. For example, some asserted that the National Anti-Corruption Commission, an independent agency established under the Constitution, was exempt from the Official Information Act. It was also asserted that the Poll Watch Commission was exempt from the Act. The debate over the applicability of the Act to these bodies continues even now, but I am of the opinion that these two sorts of agencies will fall under the Official Information Act.

The law gives all citizens of Thailand the right to request disclosure of information. This right is also recognized for foreign nationals who reside in Thailand. The Act does not guarantee such a right for foreign nationals who reside abroad, but if a non-resident foreigner were to make an information disclosure request, that request would be given consideration.

3 Appeals

It is possible to file an appeal to a decision concerning disclosure under the Official Information Act. Investigation by an impartial body is an important mechanism for that process. Under the Thai Official Information Act, there is first the Official Information Commission, of which I am a member. Second, there is the Information Disclosure Tribunal.

The Official Information Commission consists of three elements. The first of these is a politician. The Prime Minister designates the person charged with enforcing the Act, who chairs the Commission and must have Ministerial rank. The second element is bureaucrats. Top-ranking officials (permanent secretary or equivalent status) from the 13 ministries, such as the Defense, Home, and Foreign Ministries, are also members of the Commission. The third element is nine experts from the private sector and public agencies. These experts, of whom I am one, are named by the Cabinet. These nine members, once nominated by the Cabinet, serve a three-year term. Unfortunately, the nine experts are as yet a minority on the Official Information Commission. Nevertheless, the arguments and cases coming from the extremely lively investigations of the experts on the Commission have meant that the official side has been reacting to what the experts have produced rather than taking the initiative. Either way, it seems as though the officials have felt that they must somehow engage the opinions of the experts on the Commission.

The Information Disclosure Tribunal has an important function. The Cabinet names the members of the Tribunal, but the Official Information Commission first makes recommendations on who ought to be nominated. The Cabinet may then make its appointments based only on those recommendations. Only when the Cabinet has accepted the recommendation of the Official Information Commission may that member of the Tribunal be appointed. Members of the Tribunal also serve a three-year term. The key point is that this is an independent panel.

The Information Disclosure Tribunal conducts adjudication concerning all appeals to adverse disclosure decisions. It is possible to lodge a complaint with the Tribunal in cases where information has been withheld. In actuality, the decisions of the Information Disclosure Tribunal are final; no government agency of any sort can file an objection to them. There is, however, one exception: if a citizen claims that the decision of the Tribunal was unjust, then the citizen can file suit in administrative court.

Finally, the Official Information Commission has an administrative office that is charged with running the operations of both the Official Information Commission and the Information Disclosure Tribunal.

back