It has been only two years since the Thai Information Law, the Official Information Act, B.E. 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 political reform agenda of the country, the Information Act also creates a significant challenge to the traditional bureaucratic system. It plays a significant role in changing the attitude of the Thai government servants towards the administration of official information.

Background

The Official Infor

mation Act was first drafted by the so-called Transparent Government, under Prime Minister Anand Panyarachun, and had to wait until July 1997 for approval by the Parliament. It has been effective since 9 December 1997. (1) The principle of the Official Information Act is the guarantee of the people's rights to have full access to government information. According to the Act, almost all official data and information should be revealed for public perusal, with only some categories of information that the State can still keep confidential constituting small exceptions. Should the state agency deny disclosure of some excepted data, the people still have the rights to appeal to the Official Information Commission (OIC) to reconsider the cases.

The Official Information Act ensures people's rights to know government information, ranging from the rights 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. Such rights are bestowed on an

y individual whether they have any involvement or relationship with the cause and effect of the information they request.

This new principle turned down the traditional practice of state officials whose attitude towards government information was to keep it strictly and confidentially for official uses only. For the matter of responding to public demand to access, disclosure is an exception, as most data was kept internally secret.

State agency duties on information disclosure

According to the Official Information Act (OIA), a state agency i.e. 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 organization, independent agency of the state, and such other agency as prescribed in the Ministerial Regulation (2) - is to execute information disclosure through three mechanisms:

1. Publish the following official information in the Government Gazette: [OIA, section 7]

1. The structure and organization of its operation; [OIA, section 7(1)]

2. The summary of important powers and duties and operational methods; [OIA, section 7(2)]

3. A contacting addresses for the purpose of contacting the State agency in order to request and obtain information or advice; [OIA, section 7(3)]

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; [OIA, section 7(4)]

A state agency shall, for dissemination purposes, compile and make available the said information for sale, disposal or distribution at its office. [OIA, section 7]

2. Make available at least the following official information for public inspection: [OIA, section 9]

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; [OIA, section 9(1)]

2. A policy or an interpretation which does not fall within the scope of the requirement of publication in the Government Gazette; [OIA, section 9(2)]

3. A work-plan, project and annual expenditure estimate of the year of its preparation; [OIA, section 9(3)]

4. A manual or order relating to work procedure of State officials which affects the rights and duties of private individuals; [OIA, section 9(4)]

5. A concession contract, agreement of a monopolistic nature or joint venture agreement with a private individual for the provision of public services; [OIA, section 9(6)]

6. A resolution of the Council of Ministers or of such Board, 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. [OIA, section 9(7)]

3. Provide information to individual request:

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 apprehensible mention of the intended information, the responsible state agency shall provide it to such a person within a reasonable period of time. [OIA, section 11]

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, or considers that he does not receive convenience without reasonable cause, is entitled to lodge a complaint with the Commission. [OIA, section 13]

Therefore, we can see that most of the official information is subject to disclosure while only few is declared as an exemption. According to the Official Information Act, some information, which is not subject to disclosure, is described as follows:

1.Official information that may jeopardize the Royal Institution shall not be disclosed; [OIA, section 14]

2. A State agency or State official may issue an order prohibiting the disclosure of official information falling under any of the following descriptions, having regard to the performance of duties of the State agency under the law, public interests and the interests of the private individuals concerned; [OIA, section 15]

(1) The disclosure thereof will jeopardize the national security, international relations, or national economic or financial security; [OIA, section 15(1)]

(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; [OIA, section 15(2)]

(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; [OIA, section 15(3)]

(4) The disclosure thereof will endanger the life or safety of any person; [OIA, section 15(4)]

(5) A medical report or personal information the disclosure of which will unreasonably encroach upon the right of privacy; [OIA, section 15(5)]

(6) An official information protected by law against disclosure or an information given by a person and intended to be kept undisclosed [OIA, section 15(6)]

An order prohibiting the disclosure of official information may be issued subject to any condition whatsoever, but there shall also be stated therein the type of information and the reasons for non-disclosure. It shall be deemed that the issuance of an order disclosing official information is the exclusive discretion of state officials in consecutive levels of command; provided that a person who makes a request for the information may appeal to the Information Disclosure Tribunal as provided in this Act. [OIA, section 15]

Implementation of the Official Information Act

Complaint and appeal cases

As of October 2000, 144 complaints and 64 appeals have been submitted to the OIC. Among the total of 144 complaints, 30 cases (20.83%) were filed against local government agencies, 19 cases (13.19%) belonged to the Ministry of Education, 16 cases (11.11%) Ministry of Finance and 11 cases (7.64%) the Prime Minister’s Office equal to the Ministry of University Affairs and Ministry of Agriculture. For the total of 64 appeals, 14 cases (21.88%) were filed against Ministry of Agriculture, 10 cases (15.63%) belonged to the Prime Minister’s Office, and 8 cases (12.50%) Ministry of Education.

There were 124 complaints in 1999, four times more than in 1998, when there were 32 cases. Most of the cases are complaints about the officials who did not give good service and did not deliver requested information.

The total number of 81 appeal cases in 1999 is thirteen times more than in 1998, with only 6 cases. 56% of the appeal cases were concerned with disciplinary investigation documents. 23% were concerned with information about current affairs such as the investigation of corruption in the Ministry of Public Health and the bid for asset sales by the Financial Sector Restructuring Authority (FRA), and 21% were information related to concession, contracts and meeting reports.

Among 205 cases of complaints and appeals in 1999, 28 cases were filed against local government agencies. Considered individually, 9 cases belonged to Office of National Police Bureau, 8 cases Office of the Counter-corruption Commission and 6 cases the Expressway and Rapid Transit Authority of Thailand equal to Khon Kaen University and 5 cases for the FRA.

In terms of location, 143 cases happened in Bangkok and 62 in the provincial area. As for cases of local administration agencies, 10 cases were related to the Bangkok Metropolitan Administration and 18 were concerned with municipality and other forms of local government body nationwide.

The majority of population who exercised the OIA last year was private citizen while government officers and journalists ranked second and third and only two politicians utilized the Act.

Official information related to concessions, contracts, projects and budget are the most favorite documents requested, followed by investigative documents.

Problems in Implementation

After two years of the implementation of the Official Information Act, major difficulties exist in government information disclosure practices:

1. Most people neither understand key elements of the Act nor realize their own right. Most people do not know how to utilize the law in compliance with their demand to have access to state information. People cannot exercise their right, as they do not know the procedures.

2. In government agencies, high-ranking officials do not understand the law and do not know how to implement the Act. Further, they lack adequate knowledge of the law and the main principles of information disclosure service to achieve people's right to know. They thus cannot administer the office in accordance with the Act. Another significant aspect is they have little skill in exercising discretion.

3. The servicing level of government agencies still has insufficient knowledge about the Information Act. They are not used to the very new principles of information disclosure as a crucial part of servicing. They have negative attitudes towards the Act. Some feel that the Act puts more burden on them, and like the executive level, they have little experience in implementing the law, in terms of servicing procedures, information disclosure and judgment practices on the kind of information.

Strategic Guideline for 2000

To solve the problem and overcome such difficulties, the OIC has prepared strategic guidelines for the year 2000 and onwards as follows: (3)

1. To promote and develop the acknowledgement of the Act content, its utilization, the mechanism and the procedures to utilize the Act to meet people's right to access information.

(1) State agencies should provide more training on the knowledge of the law as well as to change the attitude and enhance their skill of law enforcement. This should be done on the different target groups, ranging from executive officials, legal officials, officials in charge of OIA and top management staff of local administrative bodies. The training should be aimed at encouraging State officials to know the Act well and realize its significance. This will help improve the capacity and efficiency of the agencies and of the nation as a whole.

(2) Public relations campaign will be more utilized as a means to educate people about the law and the mechanism of using the law as a tool to access the State information. Activities should be concentrated on building the awareness of the public and educate people to realize the importance of the Information Act to ensure their right to know about their freedom of information. They thus should be more involved in employing the Act to get access to the information as a crucial activity in making the government more accountable and transparent.

(3) Mass media has been targeted to be more active in participating in the information community as the media will be of great help in promoting people's freedom of information. Media could perform as a carrier of law knowledge and a teacher to the public of how to use the law as well as a representative of the public who utilize the law and get access to State information by the name of the people. The training for media is thus recommended in the coming year.

2. To develop the administration of State agencies

(1) To develop the reform of the documentary management of all government offices to be more efficient, more systematic, eventually leading to nationwide linkage in compliance with the Official Information Act implementation. Each agency might manage its own information by categorizing what information could be released at the level of certain official in charge and what should be taken into consideration of higher level officers.

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

(3) The Monitoring and Evaluation should be carried out in all State agencies, by both internal auditors and external inspectors, even from academic institutions, university and NGOs. The objective of the Monitoring and Evaluation is to follow up the understanding and motivation of officials and also the satisfaction of the people to the State information disclosure services. The Monitoring and Evaluation will help the Official Information Commission to improve the administration of the law, to develop strategy and guideline and to supervise the law implementation to eventually achieve the goal of promoting freedom of information.

3. To improve the Monitoring and Evaluation of the Official Information Act implementation of State agencies

The Official Information Commission proposed guidelines to the cabinet in November 1999, (4) and 4 measures were approved to follow up the implementation of the Official Information Act by all government agencies: (5)

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

(2) The Office of the Permanent Secretary of the Prime Minister's Office will be the main agency in charge of monitoring and evaluation, through the annual operation inspection plan of the Prime Minister Inspector General

(3) All ministries and departments must take this evaluation as a significant policy by appointing the inspector general of each minister to be responsible for this mandate.

(4) 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 serve as the secretary and assistant to the Official Information Commission. The office is small compared to the scope of work in dealing with 8775 state agencies around the country. To serve the commission and the state agencies, in order to achieve the goal of promoting the freedom of information, the office should be developed to perform as a small but highly efficient office. This year, the Official Information Commission has set up the development strategy for the office to be organized with potential to serve at its best capacity in evaluation and monitoring. Concurrently, close coordination with state agencies will be more emphasized in order to assist and facilitate proper and efficient implementation of the Act.

Government position

The government of Thailand takes the issue of freedom of information as a key policy, since it is considered the most essential part of the political reform portfolio of the country. To promote people's right to know is a crucial part of being democratic, and adds more support to building up civil society.

Such a recommendation was proposed by the OIC to the government early this year and the Cabinet, on 1 February 2000, approved the proposal and issued the following confirmed guidelines: (6)

(1) All State agencies have to speed up the strict enforcement of the Official Information Act.

(2) Concerned agencies should support the budget, staff, and staff development, to the Official Information Commission, in order to efficiently achieve the goal of the information law.

(3) The representative of ministries who chair the commissioner in the Official Information Commission must work for the commission at least 2 years in order to have the Official Information Commission perform continuously.

(4) The Prime Minister’s Office together with all State agencies should consider the development of the information management and documentary administration to be a systematic one with nationwide network.

(5) The promotion of high ranking officials and the recruitment of new staff as legal officers should take the capacity and the performance in the management according to the Official Information Act as a standardized consideration.

Significant Implications

During the first two years of Information Law implementation, there were some significant cases that led to a lot of public attention. The cases created new practices concerning official information and 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 idea that official information belongs to the people, and the disclosure is a main basic priority while the few closure can only be just a small exception.

1. The entrance examination result disclosure

The parents of a student, who failed the entrance examination for the Demonstration School of Kasetsart University, petitioned the school to disclose the examination result of her daughter and other students. After the school denied releasing, the parents then submitted the appeal to the OIC to force the school to disclose the requested information. The Information Disclosure Tribunals for Social Information (IDT) ruled that the parents had the rights to see the examination result, but the school, however, declined to comply with the IDT’s decision. The school claimed they had 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 OIC confirmed the IDT’s order and enforced the disclosure, followed by the cabinet’s resolution asserting that state agency had to comply with the OIC’s recommendations and the IDT’s order; otherwise they should be punished by disciplinary regulation.

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

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. Moreover, 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 IDT was resisted in the first place. However, finally, the implementation was successful.

The case is also concerned with the issue of personal information intervention. As the school claimed that the score and answer sheets were categorized as personal information and couldn’t be revealed to anyone else apart from the owner. The parents of other students filed a lawsuit against the IDT's decision to the Civil Court. The IDT’s decision in ruling that the score and answer sheets of all students were official information was legally confirmed by the Civil Court, the Appeal Court and the Supreme Court eventually.

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 education system.

After the parents had seen the examination result, finding some irregular admittance under uncommon procedure, she then submitted complaint to the Office of the Council of State (OCS). The OCS considered the acceptance 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 OCS 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 Constitution.

2. Corruption Investigative Report

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

The Information Disclosure Tribunals for Social Information ruled that the investigation was finalized. Those involved officials were disciplinarily punished and politicians were forwarded to criminal investigation. The IDT considered that the investigative report is official information, and the case has great impact on pubic interest and the disclosure could bring about positive attitude to the national administration, in particular to the CCC itself. The IDT thus decided that the CCC disclosed the requested information.

The disclosure of investigative report of the CCC, 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 the report was protected by the CCC's regulations against disclosure and that concerned witness 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 will be protected by law. Though there is a regulation of the CCC against the disclosure of such information or the argument of witness safety, the discretion of the IDT in this case was weighted over by public interest. 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.

3. Business Contract

Journalists 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 and such a commercial deal cannot be disclosed. After considering this appeal case, the IDT for Economic Information ruled the FRA to release the contract with exceptional conditions for Initial Purchase Price and Sharing Agreement to be released after the bid date. Those documents contain personal information, such as amount and information, which are personal debts, should be privacy protected.

Reflections of the Cases

1. Freedom to Information Access VS. Privacy Protection

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 two 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 close interrelationship as two sides of the 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 controversy in the case of disclosure of examination scores and answer sheets and the case of revealing of witnesses in investigative report are evidence in this criticism.

2. 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. Knowledge and understanding in the Freedom of Information is still limited. State agencies do not well understand the law and the principle of people’s rights to know. They were not ready to provide good services of information disclosure.

The IDT’s order in this case created immense impact and standardized measure of examination result disclosures, which happen for the first time. The IDT’s decision and the OIC’s recommendation should be made clear with sufficient details that state agency could implement in an appropriate manner.

(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. They have negative attitude to the concept of the Freedom of Information as they feel the Act put heavy burden to them. Many feel uncomfortable to have their work done under public watch. They feel more 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 systematic and more convenient, and this could help make official paper work easier indeed.

(3) Structure of Information Flow

The documentary administration of the Thai governmental agencies was managed under 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 is 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, in particular 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 generation 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. They must understand the Information Act and perform information disclosure efficiently. They should have “faith” in their own future, as a modern type of civil servants, who will be proud of privilege information management to do a good job of information services, during the information era, to eventually achieve the development of the nation towards Information Society.

Concluding remarks

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 Rights to Know’.

However, the Official Information Act is a new law, and the new concept of freedom of information is 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. 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. Meanwhile, people should recognize their own rights 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 a crucial part of eventually building up a civil society.

Notes

*This paper was completed with many helpful advice of Dr.Kittisak Prokati, the writer would like to express high gratitude to his very kind support here.

**Nakorn Serirak, a Doctorate candidate of the Graduate School of Thammasat University, is an Assistant Researcher to Dr.Kittisak Prokati, an Expert Commissioner of the OIC and is now conducting a research on Privacy Protection. This paper is a part of the research entitled "Privacy Protection and Personal Data Protection: Policy Implications for the Development of Good Governance in Thailand". Nakorn Serirak can be contacted at nakorns@hotmail.com; nakorn@oic.thaigov.go.th

(1) The Act has been effective within 90 days after it was published in Government Gazette on September 10, 1997

(2) Official Information Act, BE 2540 (1997), section 4, also see other definitions under the OIA in this section

(3) See detail in the 1999 annual report submitted to the Cabinet attached to the letter of the OIC No.1311/99 dated January 7, 2000

(4) Letter of the OIC No. 1311/10634 dated November 19, 1999

(5) Letter of the Office of the Cabinet Secretary No. 0205/184 dated December 2, 1999

(6) Letter of the Office of the Cabinet Secretary No. 0205/1685 dated February 7, 2000 and letter of the OIC No. 1311/99 dated January 7, 2000

BACK