Information Access and Privacy Protection in Thailand

I. Historical Background

The legal basis for Information Access and Privacy Protection in Thailand or the socalled “Official Information Act of B.E. 2540” (OIA) is a product of the recent political reform movement in Thailand from 1992 to 1997 as well as a political herritage of the democratic movement of 1973. The act came into force in September 1997 just a month before the proclaimation of the present Constitution and is valid as the very first legal basis of the "Right to Know" and the "Right to Privacy".

The conception of the “Right to Know” as a part of democracy has been discussed since the abolition of the absolute monarchy in 1932. But it was no further understood than as a political parole to promote the popular education and to praise the freedom of expression and the freedom of the press(1). The right to know has never been concieved or demanded by the Thai public as a “subjective right” of citizen until during the May-uprising in 1992(2). This is also true for the right to privacy which had been prior to the 1997 constitution just conceived as a basis to limit the right of expression(3) .

In the 1992 May-event General Suchinda, a former army Commander in Chief as the Prime Minister, was trying to calm down the protesting mass against him, he ordered a news embargo and impose a curfew. However, due to the modern communication technics, especially mobile-phone, telefax and satelleit television receiver, the embargo was impossible and leaded to a great scepticism of information distortion by the government. Much more people came out of their houses and go on the street to find out the truth. The people lost confedence in the government and the government lost its control over Bangkok. It turned into a blood bath uprising and the event ended with the resignation of General Suchinda and his cabinet. This was followed since then by a political reform movement demanding more democratization, transparency, people’s participation and a new constitution. Additionally, it was also realized that State should not gather all information about its citizen, that State should pay respect and provide protection for privacy of its citizen. The Official Information Act was, therefore, under these main ideas proposed into consideration of the parliament.

The idea behind the Official Information Act is the spirit of administrative reform. As the draft Constitution was going on during 1996-1997 and nobody was sure then wheter it would be adopted by the power that be, three main statutes aimed at further political reform - even independent of the draft constitution - had been worked out and succesfully pushed into force before the 1997 Constitution.

a) The Adminstrative Procedure Act 1996 limits and regulate as well as rationalize the discretion powers of officials in issuing administrative act effecting right and freedom of any individuals;

b) The Official’s Liability Act 1996 provides legal protection for officials from personal liability unless they abuse their power or violate the right of citizen intentionally;

c) The Official Information Act 1997 ensures the transparency and accountability of public agencies and support people’s participation in the formation of government policy and its implementation by binding all public agencies, on one hand, to disclose all public sector information demanded by citizen and on the other hand, to protect personal data or privacy.

II. The Scope of the Official Information Act

1. Right to Know and Right to Privacy as Fundamental Rights

Under the actual Constitution of 1997, the “Right to Know” has been established as a subjective fundamental right in Article 58(4) which leads as follows:

“A person shall have the right to get access to public information in possession of a State agency, State enterprise or local government organisation, unless the disclosure of such information shall affect the security of the State, public safety or interests of other persons which shall be protected as provided by law.”

Right to Privacy is at the first time recognized in Article 34 of the Constitution, 1997. Before 1997 right to privacy as well as right to one’s own picture were considered - analogous to right to one’s own name (Section 18 of the Civil and Commercial Code, 1925) - as a part of personality’s right attached to every human being,. Article 34 of the Constitution, 1997 reads:

A person’s family rights, dignity, reputation or the right of privacy shall be protected.

The assertion or circulation of a statement or picture in any manner whatsoever to the public, which violates or affects a person's family rights, dignity, reputation or the right of privacy, shall not be made except for the case which is beneficial to the public.

The content of the Official Information Act (OIA) and its application are therefore to be considered under the light of the political reform and the Article 58 and Article 34 of the Constitution. The Act covers two important domains of law.

Firstly, the law garantees all citizen to have freedom of access to public sector information.

Secondly, it binds all State agencies to provide protection for personal information or privacy in all public sector information.

The principles of Access to Information and Privacy Protection adopted by the Act govern only the field of public sector information. Although right of consumers to information is governed by the Consumer Protection Act, the privacy protection in private sector is only partly recognized in the law of torts as a part of rights to one's own personality and protected analogous to the right to name. The personal data protection is still not well recognized by law, especially if those data are held by private sector. However, in the field of adminstrative law, the Official Information Act, 1997, provides citizen with right to access to information held by State agencies and protects individual from violation of privacy by State agencies collecting information with new information technology. Thai law concerning privacy protection in private sector information system is at the moment in a preparatory period. It could be expected that a draft would be proposed for the aproval of the cabinet by the middle of the year.

“Information” has not been defined in the constitution. However, the Official Information Act as a specific legislation on this matter defines the concept of information in a generous way. According to Section 4 of the Act “information” means any material corperal or incorpereal which comunicates meaning, whether such communication is made by the nature of such a thing itself or through any means whatsoever and whether it is arranged in any form or any other method which can be displayed. The public sector information is, therefore, not limited to records or public information in a narrow sense and not only limited to information concerning administrative acts, but public sector information means any information held by public authorities, which covers all public and private information existing in, held or gathered by public authorities or “State agencies” in its function.

“Personal Information” or “Privacy” is not defined by the constitution too. But Section 4 of the Official Information Act gives the meaning of “Personal Information” as information relating to all the particular private matters of a person which contain indications identifying that person. Such “personal information” is for instance educational, financial, health record, criminal record or employment record, which contains the name of such person or contains a numeric reference, code or such other indications identifying that person as fingerprint, tape or diskette in which a person’s sound is recorded, or photograph. Additionally, the Thai legislation also includes information relating to personal particulars of the deceased as “Personal Information”. All State agencies are obliged by law to provide proper protection for these information. According to this definition, the concept of personal information is realized as equal to privacy. In this sense personal information is to be distinguished from information relating to any person, of which meaning is much wider.

2. The Scope of Application

2.1 Agency subject to the Law

All “State agency” are subject to the Official Information Act. The definition of “State agency” governed by the Act is very extensive. According to Section 4 of OIA(5) “State Agency” covers all executive, legislative and judicial organs. The law applies to all central, provincial and even to local administrations. Even the public agencies attached to the Parliament and the Court are subjected to this law. The only exception is the Court during its judicial process. The State enterprises and the professional oversight organisations under public mandate as well as independent agency exercising State power are included. Other agency, which is not directly exercising State power, such as the Red Cross, the religious bodies established by law does not belong to "State Agency" but if it is necessary the Act provides that they can be included under the law by further prescription in the Regulation of the Prime Minister Office.

Additionally, all persons, corporates or individuals, performing official duty for a State agency are considered to be “State Official” are subject to the Act too. In this sense some private enterprises as a contract partner or a licence holder of an agency carrying any State mandate, like certifying documents or doing registration works, can fall under the law.

The main idea of the Official Information Act are accountability and transparency of public sector. Therefore the Act gives the regulating power, oversight and the final appeal decision on information disclosure to external independent agency other than the holder of such information itself. These external independent bodies are devided into two organs, namely the Official Information Commission and the Disclosure Tribunal(6) .

However, in regard to the agency subject to law, it is not without any controversy. In a recent pending case of disclosure appeal, a State agency claimed that it shall not subject to the Official Information Act. This is the case of an independent State agency called the “National Anti-Corruption Commission” which is established as an independent agency by an organic law of the constitution and set up in 1999. As the Disclosure Tribunal ordered the Office of the Anti-Corruption to submit their information for a purpose of inspection by the Tribunal, the Anti-Corruption Commission did not let its Office to comply with the Tribunal's order(7) . The Anti-Corruption Commission asserted that the OIA should not apply to its constitutional exclusive jurisdiction against corruption and claimed that the disclosure of information concerning this matter is its exclusive power as an independent agency. This controversy will also extended to other areas of information concerning election held by the Poll Watch Commission which is also an independent agency established by an organic law of the constitution. The agency would also assert that, as an independent agency working for free and fair elections, all information matters concerning its jurisdiction prescribed by law is under its exclusive jurisdiction and the Official Information Act is not applicable. This could be a matter of discussion or even a litigation for a certain period as the Official Information Commission would have to make effort to establish a certain acceptable level of transparency and privacy protection in the activity areas of these independent agencies.

2.2 Subject of Right to Know and Right to Privacy

The person entitled to make a request for disclosure is any citizen. Everybody has the right to inspect, to request a copy of any official information, to get proper advice regarding their rights (Section 7, 9, 11, 12), everyone has the right to access to one’s own personal information kept by public agency and the right to request the State agency for making a correction or changing of one’s own personal information (Section 25). If the State agency fails to perform its duties the citizen may make complaints to the Official Information Commission (Section 13). In case of rejection of any request for disclosure of public sector information or refusal to correct personal data, the citizen may make an appeal to the independent disclosure tribunal (Section 18, 25). These rights are given to any citizen independent of their interest, involvement or relationship to the information requested.

Though the requests of foreigners are subjected to the further regulations, this is only to carry a reciprocal principle and has no practical meaning. Foreigners could ask their partners or let any Thai citizen to make a request for them in his/her own name.

The exercise of rights of the citizen to information access is expected to turn the traditional confidential practice of state officials to be more transparent and accountable to the public. The general attitude and behavior of officials towards government information in keeping it strictly and confidentially for official uses only are no more justified and loose their legal basis. Public sector information is to be considered as an open area for inspection. It belongs principially no more to exclusive official domain, but more and more public domain. For the matter of responding to public demand to access, disclosure has to be the rule. Keeping information in secrecy can be justified only as exceptional cases. And secrecy will burden the official in charge but transparency will unload him. If an official decides to disclose the requested information in good faith and in a reasonable manner, that official is protected by the Act excluding him from any liability according to other law. However, the agency is not excluded from liability and in case of demages on private person the agency shall be liable to pay damages (Section 20). In case of a non-disclosure order an official has to make a hearing and motivate the reason of non-disclosure prior to such a decision (Section 15). He also has to explain the rights of the requester to make an appeal to the OIC in time.

2.3 Duties of State Agency

a) Information Disclosure

According to the Official Information Act (OIA), a state agency has to prepare the disclosure in general by analysing and restructuring all the information systems, publish all information affecting general public in the Government Gasette (Section 7) and reaveal all public information and their indexes for the purpose of public inspection (Section 9) as well as be well prepared to provide all information held in its capacity for any individual request (Section 11).

The State officials have to advice the citizen in regards of their request properly (Section 12). In case of a decision for non-disclosure, the State agency has to make sure that hearing and motivation of the decision as well as the explaination of rights of requester to make an appeal in time have been done properly (Section 15).

b) Privacy Protection

As far as personal information concerns, State agency has to refrain from establishing any personal information system (Section 23).

The provision of a personal information system is permissible only insofar as it is necessary for the operation of State agency. It is clear that the primary goal of the Act is to limit the informational power of State and to reduce State surveillance. State need not know everything about an individual, and its agencies must limit their power of information on individual only to specific purpose which is necessary to fullfil their tasks.

If, for example, a married couple reveal their financial information to the Court for purpose of a divorce provess, this information can be used only for this purpose - and not, for example, disseminated to the tax authorities, which always maintain an interest in the financial information of individual. The same applies to the information of farmers given to the Bank for Cooperation and Agriculture. Personal information collected under loan agreement purpose should not be transfered or disclosed to the tax authorities.

The most important goal of the act is privacy protection. All State agencies are obliged to provide an appropriate security system for the personal information system (Section 23 (5)). The dissemination or disclosure of personal information held by State agency - without consent of its subject - is restricted by the Act. In general, dissemination without consent of the information subject is only permissible where it is necessary to serve a higher public or private interest or justified by law (Section 24).

The further goals of the Act is to make data processing in State agencies open, correct, accessible, reviewable and subject to supervision and auditing. State agencies is not normally allowed to find out anything personal behind the back of the person involved. State agencies are obliged to inform the data subject about the collection of such personal information. Personal information should not disappear down dark channels. It must be possible for the person affected to access and monitor the path they take and review its content (Section 25).

2.4. Machanism of the Law

a) Official Information Commission

In order to implement the Act there is a supervisory body establised by law. This is an independent regulating agency called the Official Information Commission (Section 27). The Commission composed of three elements.

First of all the chairperson has to be a politician in a rank of Minister authorized by the Prime Minister. The Chairperson represents the Prime Minister as the leader of executive policy maker.

Secondly the representative of the highest level of administrative organs. Therefore thirteen officials of the highest rank (permanent secretary or officials of comparable position) are represented. They are standing members of the Commission which shall ensure the implementation of the Act in different key State agencies.

The third element is represented by nine experts from private and public sectors nominated by the cabinet. These expert-members are independent and once nominated by the cabinet they are no more removeable for a certain service period of three years.

The Official Information Commission has mainly supervisory and advisory functions (Section 28). The Commission has the power to summon any person to give statements or to furnish any document or object for its consideration (Section 32). In the case where a State agency denies the existence of the requested information and the requester made a complaint with the Commission, the Commission has the power to inspect the relevant official information and notify the complaint of the result of the inspection (Section 33). According to Section 28 the Commission has to submit a report on the implementation of this Act to the Cabinet from time to time as appropriate but at least once a year. However, it is also authorized to initiate and give recommendations on the enactment of different regulations under this Act. The Commission also has legal mandate to decide or give opinions on the complaints that any State agency fails to comply with the Act.

The Commission normally exercises its supervisory and advisory function by monitoring acitivities and consultations. However, during the first three years of service, the Commission faced some complaints that some State agencies fail to comply with their duties according to the Act. Due to the fact that the Act did not provide any clear process of enforcement in such a case, the Commission prefers to discuss with the agency and inform the public about the situation. In case the agency refuses to follow the recommendation of the Commission or delays to perform their duties, the Commission would consider the matter seriously and decide whether such an agency shall be judged as having intentionally violated the law. In such a case the Commission might recommend the agency in concern to handle the case according to their function and jurisdiction, which could lead to removal of the Head of the agency or to other legal consequenses.

b) Information Disclosure Tribunal

Disclosure Tribunals are independent bodies consisted of experts who are appointed by the Cabinet upon the recommendation of the Official Information Commission for a period of three years (Section 35-39). They are independent and are not removeable. In case of appeals the Tribunals has the power to review the order of any State agency refusing the disclosure of information or refusing the correction, alteration of personal information. They are also empowered to summon any person to give statements or to furnish an object, document or evidence for their consideration (Section 39). The decision of an Information Disclosure Tribunal is deemed final (Section 37 para 2).

c) Office of the Official Information Commission

The Office of the Official Information Commission is established in the Office of the Prime Minister and has the function to perform technical and administrative works for the Commission and the Information Discloure Tribunals (Section 6). The Office shall co-ordinate with State agencies and give advice to private individuals with regard to the execution of the Act. The Head of the Office is the Director which is appointed from a Government official. The Act does not provide an independent status for the Director. As the Office is established in the Office of the Prime Minister, the Office falls under organisational supervision of the Permanet Secretary of the Office of the Prime Minister.

d) The Court

If any citizen feels that his right to know or right to privacy is violated by any State agency, that person is entitled to bring his case before the Administrative Court (Section 9, Adminsitrative Court Act, 1999). Instead of bringing the case before the Court, he or she may try another time saving process and lodge a complaint or an appeal to the the Official Information Commission or Information Disclosure Tribunal. The Commission as well as the Tribunal will have to decide the case within 30 days and no longer than 60 days. If this appeal is not successful, the case can be brought into the Administrative Court. In this case the Administrative Court will have the final decision on the case.

III. Categories of Information

The “Official Information” means any information held by State agency in its capacity and not restricted only to administrative document. The concept of information covers any object - material or immaterial - that could refer to any meaning, independent of its media.

Official Information are devided into two categories, namely Information subject to disclosure and Information not subject to disclosure:

1. Information subject to disclosure

They are three types of Information to be disclosed according to Section 7, Section 9 and Section 11 of the Act.

1.1 Information to be published

Section 7 regulates public information affecting public weidely to be published in the Government Gasette as follows:

(1) the structure and organisation of its operation;

(2) the summary of important powers and duties and operational methods;

(3) a contacting address for the purpose of contacting the State agency in order to request and obtain information or advice;

(4) by-laws, resolutions of the Council of Ministers, regulations, orders, circulars, Rules, work pattern, policies or interpretations only insofar as they are made or issued to have the same force as by-laws and intended to be of general application to private individuals concerned;

(5) such other information as determined by the Official Information Commission.

1.2 Information to be revealed for public inspection

Section 9 governs all public information - unless it is information not subject to disclosure stated in Section 14 and Section 15 - to be revealed for public inspection as follows:

(1) a result of consideration or a decision which has a direct effect on a private individual including a dissenting opinion and an order relating thereto;

(2) a policy or an interpretation which does not fall within the scope of the requirement of publication in the Government Gazette under section 7(4);

(3) a work-plan, project and annual expenditure estimate of the year of its preparation;

(4) a manual or order relating to work procedure of State officials which affects the rights and duties of private individuals;

(5) the published material to which a reference is made under section 7 paragraph two;

(6) a concession contract, agreement of a monopolistic nature or joint venture agreement with a private individual for the provision of public services;

(7) a resolution of the Council of Ministers or of such Commission, Tribunal, Commission or Committee as established by law or by a resolution of the Council of Ministers; provided that the titles of the technical reports, fact reports or information relied on in such consideration shall also be specified;

(8) such other information as determined by the Official Information Commission.

1.3 Information to be provided for individual inspection

Section 11 provides that all other information - not subject to Information not bound to be disclosed as provided in Section 14 or as listed in Section 15 - are subject to disclosure upon a specific request within a reasonable period of time. This is the most information held by State agency. If any person makes a request for any specific official information the State agency shall provide it to such person within a reasonable period of time, unless the request is made for an excessive amount or frequently without reasonable cause.

1.4 Historical Information

Although the Act provided that information negatively affecting the Royal Institution shall not be disclosed (Section 14) and information concerning State security or affecting public safety or justified interest of third person might be categorized as not subject to disclosure (Section 15), the right to know in these matters is not excluded but still observed by law. The Act provides that after a certain period of time such information should be delivered to the National Archives in order to be selected for the purpose of public studies (Section 26). The period for information under Section 14 is seventy-five years and the period for information under Section 15 is twenty years. If necessary these period of time could be extended but each extension should be considered carefully and not longer than five years.

2. Information not subject to disclosure

They are information subject to Section 14 and Section 15 of the Act. The Act makes a distinction between the information which may jeopardise the Royal Institution (Section 14) on one side and information by which disclosure may affect the security of the State, public safety or interests of other persons which shall be protected (Section 15) on the other side.

2.1 Information jeopardising the Royal Institution

The disclosure of information negatively affect the Royal Institution are -according to Section 14 - forbidden. The officials are bound by law not to release or disclose such an information considered possible to jeopardise the Royal Institution. This is due to the constitutional principle that the King can do no Wrong and only the Minister in charge is responsible for the Royal deed.

2.2 Information affecting public security or public safety or interests of other persons

Information affecting public security or safety or interests of other persons are - up to discretion power of the official in charge thereof - not bound to be disclosed. These information are listed as follows:

(1) the disclosure thereof will jeopardise the national security, international relations, or national economic or financial security;

(2) the disclosure thereof will result in the decline in the efficiency of law enforcement or failure to achieve its objectives, whether or not it is related to litigation, protection, suppression, verification, inspection, or knowledge of the source of the information;

(3) an opinion or advice given within the State agency with regard to the performance of any act, not including a technical report, fact report or information relied on for giving opinion or recommendation internally;

(4) the disclosure thereof will endanger the life or safety of any person;

(5) a medical report or personal information the disclosure of which will unreasonably encroach upon the right of privacy;

(6) an official information protected by law against disclosure or an information given by a person and intended to be kept undisclosed;

(7) other cases as prescribed in the Royal Decree.

Any order refusing the disclosure of official information is considered to be an administrative act. The State agency is obliged to state in such an order the type of information and the reasons for non-disclosure.

IV. The Implementation of Law

According to the record of the Office of Official Information Commission, the majority of population who exercised the OIA in year 1999 was private citizen while government officers and journalists ranked second and third and only two politicians utilized the Act. The most favorite information requested are Official information related to concessions, contracts, projects and budget, followed by investigative documents.

1. Interesting Cases on Privacy and Right to Access

During the first three years of Official Information Act, 1997, there were some significant cases that led to a lot of public attention. These cases created new practices concerning official information and privacy protection. They played important roles in changing traditional value and behavior of the Thai bureaucrats. The changes have shifted the belief that official information belonged to the state agencies and should be kept secret and for internal official uses only, to the new realization that official information belongs to public inspection and the disclosure is the main basic priority while the few closure can only be just a small exception.

1.1 Disclosure of the result of a school entrance examination

In the very early stage of implementation of the Official Information Act the parents of a girl-pupil, who failed the entrance examination for a Demonstration School of a famous State University, petitioned the school to disclose the examination result and concerning papers of her daughter and other pupils passed the examination. After the school denied releasing, the parents then submitted the appeal to the Official Information Commission to force the school to disclose the requested information. The Disclosure Tribunal ruled that the parents had the rights to access the examinaiton result(8) , but the school, however, declined to comply with the Tribunal’s decision. The school claimed that the requested information, the examination results and papers in concern are personal information and shall be protected from any public inspection. The school wanted, therefore, to consult the Council of State, the Attorney General’s Office, and the Ministry of University Affairs first, in order to have guided procedures for disclosing examination result, which should be set up as a new standard to cope with similar request in the future.

Finally, the Official Information Commission enforced the disclosure. The Commission considered examination-paper in a public competition as information open to public inspection. The Commission made a distinction between examination in a public competition and a normal examination. The result of a normal examination doesn’t have any impact on the interest of the public and therefore, could be considered - as a particular private matter of a person with identifying indication, therefore, as personal information. But the examination-result in a public competion to obtain any public privilage is - not a particular private matter - but official information to be disclosed to the public. It will be absurd, if a person, who wrote an essay and won a prize in a public competition, wouldn’t allow others to read his essay and would keep it undisclosed saying that his essay is his personal information. The Commission insisted that the school has to follow the decision of the Tribunal. This was followed by the cabinet’s resolutions in Decmber 1999 asserting that State agency had to comply with the Tribunal’s recommendations and the Tribunal’s order, otherwise they should be punnished by disciplinary regulation.

As the parents of students, whose examination-results should be disclosed, were of the opinion that the disclosure would violate privacy right of their children, they filed a law suit against the Disclosure Tribunal’s ruling to the Civil Court. The Court confirmed the ruling of the Disclosure Tribunal that the score and answer sheets of all students in a public competition were not personal information and shall be disclosed. The Appeal Court and the Supreme Court also upheld this decision.

The case contributed greatly to the educational system of the country. The examinations held by many institutions have been adapted in compliance with the Act, which brought about fair examination and transparent academic system(9) .

In dealing with the case, it was found that the State agency lacked knowledge of the law and did not know how to implement the Act correctly. Moreever, the case of disclosing the examination result, the score and the answer sheets is quite new and has never been practiced before, and is very contradictory to the traditional practice of the educational system, the ruling decision by the Disclosure Tribunal was in the first place resisted. However, finally, the implementation was successful.

This case has given rise to the new principle of examination disclosure, in particular the examination of public interest. The Ministry of University Affairs then ordered the school to revise the screening procedures of the examination and the process must be transparent and accountable. The case plays a significant role on the Thai educational system.

After the parents had seen the examination result, finding some irregular admittance under uncommon procedure, they then submitted complaint to the Office of the Council of State. The Council of Stated considered the recruit procedure of the school through privileged considerations i.e. donation, sponsorship or kinship rather than examination score, as discrimination practices, which is prohibited by the Constitution. The Council of State thus recommended to the government to revise all procedures of the school entrance examination and stated that the process should be done properly and in line with the principle of equality according to the Constitution.

1.2 Corruption Investigative Report

Journalists and non-government organizations (NGOs) petitioned the Office of the Counter Couruption Commission (CCC) to disclose the investigative report of the corruption in the Ministry of Public Health. The Counter Corruption Commission denied disclosing the requested documents; petitioners then submitted the appeal to the Disclosure Tribunal.

The Disclosure Tribunal ruled that the investigation was finalized. Those involved officials were disciplinarily punished and politicians were forwarded to criminal investigation. The Disclosure Tribunal considered that the investigative report is official information. And as the case has great impact on public interest and the disclosure could bring about positive attitude to the national administration, in particular to the Counter Corruption Commission itself, the Disclosure Tribunal decided that the the Counter Corruption Commission had to disclose the requested information(10) .

The disclosure of investigative report of the Counter Corruption Commission, concerning the corruption scandal in purchasing drug and health materials in the Ministry of Public Health, was criticized as this might hamper the efficiency of law enforcement. It was argued that in this case the principle of confidentiality should be maintained, the report was protected by the Counter Corruption Commision’s regulations against disclosure and that concerned witnesses who gave investigative documents intended their names and those informations to be kept undisclosed.

But as a matter of fact, the witnesses in this case were high position executives; their activities as witnesses in this case were official duty of which are provided by law. Though there is a regulation of the Counter Corruption Commission against the disclosure of such information or the argument of witness safety, it is clear that safety of high ranking officials who are witnesses in this case did not seem to be at risk. The Disclosure Tribunal explained that it is unreasonable to argue that any witness of high ranking officials like the Chief Police or the Prime Minister or other high position executives of government would be at risk, if they would have reported their activities done in their public functions to any investigating commission. Therefore, the discretion of the Disclosure Tribunal in this case was weighted over by public interest for disclosure. As the scandal involved a large amount of national budget, committed by the high-ranking officials, involving high executive members, both government officials and politicians. The case was very sensitive, as it is the corruption of purchasing drugs, which affect basic services to the people, in particular, the poor. The public confidence in transparency and accountability of public administration is therefore to be maintained.

1.4 Business Contract

After the fall of Financial Sector in Thailand in 1997 a journalist requested to the Financial Sector Restructuring Authority (FRA) to release the Purchasing Contract related to the bid for sales of the Financial Sector Debts. The FRA refused to release such requested information claiming that the documents were business contracts between the FRA and private company. Its conceptualization and formulations are valuable and of great business interest. Disclosure of such a commercial deal would effect trade secret, market position and other justified interests of private company. Therefore, the contract should not be disclosed. After considering this appeal case, the Disclosure Tribunal ruled the FRA to release the contract with exceptional conditions for Initial Purchase Price and Profit Sharing Agreement to be released after the bid date. Those documents contain personal information, such as amount of personal debts should be protected as privacy information and should not be released (11).

However, the Financial Sector Restructuring Authority (FRA) did not comply with the decision of the Disclosure Tribunal immediately but tried to delay the disclosure by making additional conditions to the disclosure that the requester who is a journalist should not make information known to the public. As this was not acceptable to the journalist, he appealed the Disclosure Tribunal again and got his right. But FRA delayed disclosure again with an argument that another legal opinion from the Council of State had been sought. The journalist applealed to the Commission. After two hearing the Official Information Commission found that the FRA was trying to delay the ruling which is deemed final by law and this conduct could be considered as circumvention of law. The Commission then gave a notice to the Minister of Finance indicating that the FRA was violating the law by not following the decision of the Disclosure Tribunal. The Minister followed the recommendation and reminded FRA to disclose the information.

1.5 Access to Personal Evaluation Letters

After an evaluation process for promotion of an academic member at a State university to a professorship ended with a negative result, the evaluated person requested the Ministry of University Affairs to release the evaluation papers, the name and position of the evaluater for his information. The Ministry of University Affairs refused to disclose the name and position of the evaluater. This was motivated by reasons that the disclosure would violate privacy of the evaluater and would affect his personal safety and integrity of deliberative process of evaluation. The evaluated person disagree with these reasons and lodged an appeal to the Disclosure Tribunal.

The Tribunal considered the matter and spoke for disclosure(12) . The reason was that the evaluation for promotion was an administrative act and therefore, is subject ot the principle of transparency and accountablity in administrative procedure. The Administrative Procedure Act, 1996, provides that after an administrative act has been done, any person affected by such an administrative act shall be entitled to inspect all document concerned in the procedure. As the decision of promotion or nonpromotion of an academics essentially effects academic carreer and the evaluated person should be entitled to defend his right concerning a due evaluational process, the Tribunal decided for disclosure. The disclosure of name and position of evaluater is not violating the right to privacy, because the evaluation is not a private affair but a public duty authorized by law. The worry for safety of evaluater was also deemed to be irrelevant.

This disclosure decision was confronted with protest from the conference of the Rectors. A group of professsors who have been nominated as evaluaters in the past declared that the decision violated the principle of confidentiality of evaluation process and would affect collegial relationship among academics. Qualified scholars would not feel free to join the evaluating processs in the future, if their name would not be kept confidentially. The Commission pointed out that the principle of confidentiality should be further observed. However, this principle should not absolutely prevent the evaluated person from his right to know, especially when he believe to face unfairness or injustice in his carreer. The commission accepted that in such a case cordial relationship might be affected, but this relationship should be based on the principle of truth and as the evaluation of a scholar is done on basis of his academic work not in his person, therefore, the evaluation itself could be openly spoken and the evaluater should not be kept absolutely confidential. The commission has also pointed out that an evaluater should be protected in his dignity and if he would be insulted due to his fair and free evaluation, the administration should take all measures to protect him. After a delay for a few months due to public discussion on this matter, the Commission insisted on the disclosure, the Ministry of University Affairs the followed the recommendation of the Commission.

2. Reflections of the Cases

The Official Information Act is a new law, knowledge and understanding in the Freedom of Information, and Privacy Protection issue, in particular, is totally new. During the first three years of the Information Act implementation, there was some implication of misunderstanding of the law substance, and many cases reflected the tension between the matter of freedom of access to information and privacy protection, since these two issues are closely related. On the academic perception, many scholars propose the two issues to be separately considered while some claim that this close interrelationship is insepareble as two sides of a coin. To the Thai experience, according to the Act, in the matter of information disclosure, discretion of state officials must be made with regards to the factors of State duties, public interests, and private interest. This is also confirmed by the constitution, which stipulated information causing damage to a person, dignity, reputation or privacy must be prohibited. Therefore, freedom of information and privacy protection could be persistently found on each other’s boundary and become the matter of how to balance these two components. The controvery in the case of examination scores and answer sheets and the case of revealing of witnesses in investigative report are evidence in this criticism.

3. Problems in Law Implementation

(1) Lack of Knowledge and Understandings

The Official Information Act is a newly established law, both government officers who have the duty of information services according to the Act and the people who have the rights guaranteed by the Act, are not familiar with the new principles. Although the government made a public campaign through different public relation measures and the public acceptance of the Act is quite high, knowledge and understanding in the Freedom of Information is still limited. State agencies do not well understand or do not want to understand the spirit of the law and the principle of people’s rights to know. The reason is quite clear. The principle of the act is to reduce the monopoly of State on information. The agencies are limited in its information power. The oversight and final decision have been transferred to other authority. The better services of information disclosure means the less power of the agencies.

(2) Lack of Consciousness

State officials, ranked from the executive and high position level to the servicing level, from the policy level down to the implementation level, still lack consciousness in carrying out the task of information service to the public. It is very important to raise and elevate the level of conciousness and morality of State officials on this matter. They might accept the concept of the Freedom of Information as a good idea, but in practical aspect they still feel the Act put heavy burden to them. Many feel difficulties in doing their job in spite of the fact that this principle of the information law will put effort to make the government documentary work more systmatic and more convenient, and this could help make official paper work easier indeed.

In February 2000 the cabinet concluded a resolution - recommende by the Official Information Commission - lay down an additional principle on evaluation and promotion of high rank officials that aproval of proper and sufficient knowledge on the principle of the new Administrative Procedure Act and the Official Information Act is to be considered as an essential part of the process. However, this resolution - which has to be implemented by the Civil Servant Commission and carried out in a form of regulation - has not been transformed into a practical rule.

(3) Structure of Information Flow

The information mapping system is very important in every admistration. It is well known that administration is a process of decision making and its implementation. This has to be based on a good system of information. The documentary administration of the Thai governmental agencies was conceptualized and overseen by the Office of the Prime Minister and the information management is governed by the Prime Minister’s Regulation for Documentary Administration. However, as a matter of fact, neither the huge amount of official documents in various agencies has been well managed nor the information flow within the agency has been systematically managed. Moreover, as for the cross-ministerial information, the flow becomes more confused and complicated, since the document is not well stored. This makes the information service a difficult task. And as it usually takes too much time in searching and finding information to serve those who request, state officials feel unhappy to do the information disclosure service as they feel the job as burdensome and, moreover, boring.

(4) Lack of Faith

Information law is a very significant mechanism for the reformation of the public sector, inparticular in the development to achieve Information Society as well as Open Society. However, Thai officials still do not recognize such importance and do not have a clear vision of what position the government organization should achieve in the future. State officials in the next generation must be developed as a new genration bureaucrat who must possess skill and knowledge not only in national administration and management techniques, but also in Information Technology. And most importantly, they should realize the importance of the Rights to Know and Privacy Protection. They must understand the Information Act and perform information disclosure efficiently. The should have “faith” in their own future, as a modern type of civil servants, who will be proud of services, during the information era, to eventually achieve the development of the nation towards Information Society.

Concluding remarks

As to the Thai experience the idea of feedom of information has been well accepted by the wide public. One of the main purposes of the costitution of Thailand 1977 is the transformation of representative democracy to participatory democracy. In this aspect the Official Information Act has been a crucial component of democratic development as it encourages people to enjoy more political participation by directly expressing their opinions and proposing their needs or suggestions to the state. This should help make the government more accountable and more transparent. In order to participate well and efficiently, people should have full access to state information and should know what is going on through state policy. 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’. This is the emergence of the principle of separation of information power.

However, the Official Information Act is a new law, and the new concept of freedom of information and privacy protection are totally new to both the Thai state officials and to the people. Thai society thus needs some time to learn and practice more about the Information Law and Privacy. State officials have to understand more clearly the procedures of law enforcement so that they know how to provide information services and disclose information to meet public requests and at the same time to protect individual concerned. Meanwhile, people should recognize their own right to know and know how to utilize the Information Act as a means of access to state information and privacy protection. Thai society should recognize information law as an essential part of establishing accountable and transparent and accountable government and a crucial part of eventually building up civil society.

Note

(1) James Madison’s statement “Knowledge will forever govern ignorance. And a people who mean to be their own governors, must arm themselves with th power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both” in Letter to W.T. Barry, 4 August 1822, The Complete Madison, Saul Padover (ed.), Harper & Brothers, New York, 1953, p.337 was well known to the Thai, as seen by the establishment of the department for public relation in the Office of the Prime Minister and the foundation of University of Political and Moral Sciences directly after the revolution.

(2) There was an important article presented in 1981 by Chaiwat Wongwatanasan, The Freedom of Information, Thammasat Law Journal, 1981, but this found no resonance until 1992 and Chaiwat then became a key person in proposing the bill.

(3) Although protection of “Right to Privacy” as a fundamental right was known prior to the 1997 Constitution as mentioned in Art. 39 para 2 of the revised Constitution of 1995 (5th amendment of the 1991 Constitution), this "Right to Privacy" was not valid as "subjective right" but was just recognized only as a ligitimate basis for limitation of freedom of expression.

(4) Right to know was for the first time established in Art. 48/2 of the revised version of the Constitution in 1995 (5th amendment of the 1991 Constitution).

(5) “State agency” means a central administration, provincial administration, local administration, State enterprise, Government agency attached to the National Assembly, Court only in respect of the affairs unassociated with the trial and adjudication of cases, professional supervisory organisation, independent agency of the State and such other agency as prescribed further in the Ministerial Regulation. See Section 4 of Official Information Act B.E.2540.

(6) See Art. 28 and 37 of Official Information Act B.E.2540.

(7) According to Section 120 of Counter-Corruption Act B.E. 2542 (1999), one who disclose information acquired in his or her function without permission of the Anti-Corruption Commission shall be punnished with an up to six month imprisonment.

(8) Disclosure Tribunal on Social and Administrative Issues, Decision 1/2541 (1998).

(9) Disclosure Tribunal on Social and Administrative Issues, Decision 2/2541 (1998) concerning disclosure of university entrance examination for a specific student. This disclosure decision was followed by another decision concerning disclosure of details in a recruiting process for a scholarship grants (Decision 3/2541).

(10) Disclosure Tribunal on Social and Adminstrative Issures, Decision 17/2542 (1999).

(11) Disclosure Tribunal on Economic and Financial Issues, Decision 1/2542 (1998).

(12) Disclosure Tribunal on Social and Administrative Issues, Decision 33/2543 (2000).

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