SEAPA’s Right to Know Series: Access to Information in Southeast Asia
1. Determined pursuit of information
Late in the evening of 18 December 1999, a group of six policemen stormed into the video games shop of Pichet Raikhaw, which was also his home, without a search warrant and without showing any proper identification. The policemen confiscated his video game machines, and as Pichet was not in the shop then, his wife had to deal with the six officers on her own.
When Pichet later went to the police station to seek the return of his equipment, he was arrested and charged with operating a video games shop without a permit.
A criminal court subsequently ruled that Pichet was not engaged in an illegal activity because there was no legal regulation for video games shops at the time of the police raid on his shop. The court of first instance dismissed the state prosecutors’ case against Pichet and ordered the return of his equipment. The state prosecutors’ appeal against the decision was struck down by the appeals court which reaffirmed Pichet’s innocence. A decision by the appeals court is regarded as final without the case having to be heard by the Supreme Court.
Seeking justice, Pichet requested the National Anti-Corruption Commission (NACC) on 15 March 2002 to investigate a possible abuse of authority by the police in the raid on his shop. On 31 July 2002, the NACC informed Pichet that his accusation was not substantiated by evidence and dismissed his request.
On 2 September, Pichet wrote to the NACC, requesting to see and make a copy of the agency’s investigation report of the police raid on his shop. On 7 October, the NACC informed him that its investigation report was protected by law and could not be disclosed.
On 24 October, Pichet appealed against the NACC decision before an information disclosure tribunal of the Official Information Commission. On 1 July 2003, the tribunal ruled that the NACC should disclose its report to Pichet. However, the NACC and its secretary general, who was in charge of the commission secretariat, refused to comply with the tribunal’s ruling, arguing that as an independent constitutional body, the NACC was not subject to the Official Information Act under which the Official Information Commission and the information disclosure tribunal had been set up.
Pichet did not give up and filed a case with the lower Administrative Court, which adjudicated that the NACC and the Office of the NACC were both state agencies under the Official Information Act and, hence, the ruling by the information disclosure tribunal was binding on the NACC and its secretariat. The court asked the NACC to disclose its report to Pichet.
The NACC appealed the decision before the Supreme Administrative Court which ruled on 24 September 2008, reaffirming the decision of its lower court and directing the NACC to disclose its report to Pichet within 10 days of its ruling.
Since there are only two layers of the Administrative Court, the ruling by the Supreme Administrative Court is final and there is no other judicial avenue for appeal against its ruling.
However, it was not till 20 November 2012 that Pichet finally received a certified copy of the NACC report.
“It is difficult for us to exercise our rights,” Pichet said in an interview for this article, adding: “It is difficult for us to access information.”
He is, however, lucky, compared to many others who may be fighting for their right to know under the Official Information Act. His lawyer was his elder brother and as his case ran for over 10 years, this could have cost him an enormous amount in legal fees.
“If you live in the provinces, how could you have the access to information?” Pichet’s brother and lawyer, Wichai said. “They usually don’t have even 20 baht to pay for transport,” he pointed out.
The two brothers say that people in Thailand are still largely unaware of the Official Information Act and their rights under it, even though the law has been in force for over 15 years. They, themselves learnt about the law from news media.
Wichai said that when he began to seek justice for his brother, he had not read the text of the Act. He said he only learnt about the law from news stories and newspaper articles.
Pichet said he would use the NACC report to file a case against the agency for being “non-transparent and unfair” in its ruling that the six police officers who raided his video games shop in December 1999 had not done anything wrong.
1.1 Effect of the ruling in Pichet’s case
The ruling by the Supreme Administrative Court in his case makes it clear that Thailand’s independent agencies like the NACC are subject to the 1997 Official Information Act and the jurisdiction of the Administrative Court. Officials working for these independent agencies are “state officials” under the Act and have to comply with its provisions.
Other independent agencies under the Constitution include the Election Commission and the Auditor General with the secretariat of the latter known as the Office of the Auditor General of Thailand.
This has strengthened the law in that no state agency can avoid its obligation to disclose information under the Act.
2. A brief history of Thailand’s access to information law
Thienchai Na Nakorn, an information commissioner who was involved in drafting the access to information Bill since the beginning, said efforts to draft such legislation in Thailand date to the late 1980s during the government of then prime minister Gen. Chatichai Choonhavan.
The move gained momentum after the February 1991 military coup against the Chatichai government and the May 1992 military crackdown on protesters rallying against the then pro-military government in which many citizens were shot dead by soldiers on the streets of Bangkok.
However, the draft was enacted into law only in September 1997 and the Official Information Act (OIA) came into force on 9 December 1997.
Thienchai said the Official Information Act of 1982 of New Zealand and the Freedom of Information Act of 1966 of the United States provided the basis for the Thai version. Two separate drafts, one based on the New Zealand law while the other on the U.S. law, were proposed by two political parties and combined by Parliament to form the Thai law.
3. Official Information Act of 1997
3.1 Who shall disclose information?
In essence, the OIA requires state agencies to disclose information in their possession to the public.
State agencies include the central government in Bangkok, provincial administrations, local administrations such as municipalities, state enterprises, agencies under parliament, courts (only in respect of affairs unassociated with trials and adjudication of cases), professional supervisory organizations such as the Lawyers’ Council of Thailand, the Council of Engineers and the Medical Council of Thailand (these are statutory bodies) and independent state agencies such as the Election Commission and the National Anti-Corruption Commission.
The OIA does not cover information in the possession of private entities.
3.2 Information required to be disclosed under the Act
There are four categories of information required to be disclosed under the Official Information Act of 1997.
3.2.1. Information required to be published in the royal gazette
The royal gazette, a public document, publishes Thailand’s official and legal documents, such as laws, ministerial announcements and judgments of the Constitutional Court. This is general information about state agencies, which includes:
(1) Structure and organization of state agencies;
(2) Summary of state agencies’ authority and duties, and operational procedures;
(3) Contact addresses of state agencies;
(4) By-laws, resolutions of the Council of Ministers (Cabinet), regulations, orders, circulars, rules and policies insofar as being issued these have the same effect as by-laws and are intended for general application to private individuals concerned.
Most state agencies now have this information on their websites.
3.2.2 Information state agencies shall make available for public inspection
This means citizens do not have to make a request to see such information as state agencies have to display it in their offices for public inspection. Such information includes:
(1) Results of considerations/decisions directly affecting the public, including any dissenting opinion and orders relating thereto;
(2) Policies/interpretations not required to be published in the royal gazette;
(3) Current year work plans, projects and annual expenditure budgets;
(4) Manuals/orders relating to state operational procedures which affect the rights/duties of individuals;
(5) Information that state agencies are required to publish in the royal gazette but, instead, publish in large volume for distribution to the public;
(6) Concession contracts, contracts of a monopolistic nature, or joint venture agreements with private individuals for the provision of public services;
(7) Cabinet resolutions, resolutions of commissions established by law or by Cabinet resolutions, including identification of technical reports, factual reports or information used in such consideration.
If a part of such information is not subject to disclosure under the OIA, state agencies can delete such portion.
3.2.3 Information that needs to be requested on a case-by-case basis
This is any information, apart from that in categories under Items 3.2.1 and 3.2.2, and is not exempt from disclosure.
A request has to be made to the state agency having this information.
See further details in Items 3.4 and 7.1.
3.2.4 Historical information
Historical information is information that state agencies send to the National Archives of the Fine Arts Department under the Ministry of Culture, which then becomes public information.
Information that is not subject to disclosure under the OIA shall become historical information after a certain period of time.
Information that may jeopardize the monarchy shall become historical information after 75 years.
Other kinds of information that are not subject to disclosure under the OIA shall become historical information after 20 years. (See details of such information in Item 3.3.2)
State agencies can extend the non-disclosure period on a case-by-case basis, each extension being no longer than five years.
3.3 Information not subject to disclosure
The OIA specifies certain types of information that state agencies shall not or may decide not to disclose.
3.3.1 Information that may jeopardize the monarchy
The law specifically says that such information shall not be disclosed.
However, as stated earlier, it shall become historical information after 75 years, meaning that it then becomes public information.
3.3.2 Information state agencies may decide not to disclose
Such information includes:
(1) Information that may jeopardize national security, international relations and national economic or financial security;
(2) Information that may affect law enforcement;
(3) Internal opinion or recommendations of state agencies;
(4) Information that will endanger the life or safety of an individual;
(5) Medical reports or personal information of an individual;
(6) Information that is protected by law against disclosure.
State agencies deciding not to disclose requested information must specify the reason and the category the information falls into.
Those disagreeing with the decision not to disclose the requested information may appeal to an information disclosure tribunal.
3.4 Who is entitled to request information under 3.2.3?
Information can be requested on a case-by-case basis by:
- A Thai national (Foreigners do not have this right)
- He or she does not have to have a stake in the requested information
- No reason is needed for the request
- He or she shall provide details of the requested information as clearly and as much as possible
The request shall be made to:
- State agencies in possession of such information
- If the state agency receiving a request does not possess the information, it shall recommend to the person making the request, the state agency holding such information
3.5 Complaints and appeals under the Act
3.5.1 Complaints against non-compliance with the Act
An individual who sees that a state agency is not complying with the Official Information Act by not publishing information in the royal gazette as required under Section 7, or not providing information for public inspection as required under Section 9, or not providing information as requested on a case-by-case basis under Section 11, is entitled to lodge a complaint with the Official Information Commission (OIC) through its secretariat located within Government House in Bangkok. Such a complaint can also be against state agencies delaying performance of their duties under the Act or an individual who has created inconvenience without reasonable cause.
On receiving such a complaint, the OIC is required to finish its consideration into the complaint within 30 days, a period extendable for another 30 days at the maximum.
3.5.2 Appeals with information disclosure tribunals
An individual whose request for information that is included under Section 15 (information that state agencies may decide not to disclose – see Item 3.3.2) has been rejected, can appeal to an information disclosure tribunal. Such appeal can be lodged with the OIC through its secretariat.
On receiving such an appeal, the OIC office shall submit it to an appropriate tribunal within seven days. The tribunal is required to finish its consideration of the appeal within 30 days, extendable for another 30 days at the maximum.
The Official Information Act says the ruling by an information disclosure tribunal is final. However, an individual or a state agency not satisfied with a ruling can still file a case with the Administrative Court.
Currently, there are five information disclosure tribunals specialized in the following different categories: (1) foreign affairs and national security; (2) national economy and finance; (3) social affairs, state administration and law enforcement; (4) medical science and public health; and (5) science, technology, industry and agriculture.
3.6 Right to information guaranteed by the Thai Constitution
The 2007 constitution guaranteed Thai people’s right to information held by public bodies, which is stipulated in Section 56 of the constitution.
Section 56 A person shall have the right to be informed and to access public information in the possession of a government agency, State agency, State enterprise or local government organization, except where the disclosure of such information shall affect the security of the State, public safety, the protected interests of other persons, or personal information as provided by law.
The constitution also guarantees in Section 57 the right of individual Thais to receive information from state agencies about any project that may affect their livelihood and to have their voices heard by such state agencies. And in case any project, plan or rule of state agencies may affect the interest of the public, state agencies shall organize a “comprehensive public consultation process” to hear the views of the people.
Section 57 A person shall have the right to receive information, explanation and reasons from a government agency, State agency, State enterprise or local government organization before granting a license or undertaking a project or activity which may affect the quality of the environment, sanitary health conditions, the quality of life or any other material interest concerning him or a local community and shall have the right to express his opinions on such matters to the concerned agencies, for their consideration.
The State shall arrange for a comprehensive public consultation process prior to the implementation of a social, economic, politic and cultural development plan, the expropriation of immovable property, the determination of town and country plan, the determination of land use, and the enactment of a rule which may affect the material interest of the public.
4. Who is using the Official Information Act?
Pichet Raikhaw, the video games shop owner who used the Official Information Act, determined to seek information from the country’s top graft buster about the unlawful police raid on his shop, is a rare case of an ordinary Thai citizen using the law to get what he is entitled to.
It is even more unlikely for a person to spend 10 years to seek information from state authorities. An ordinary citizen like Pichet is probably not the kind of user of the law, the lawmakers had in mind.
Journalists and social activists were originally visualized as those most likely to use the law to acquire information from state agencies. But that has not turned out to be the case.
“In the past 14-15 years of the enforcement of the Official Information Act, NGOs and journalists have used the law less than what we had expected,” Thienchai said during an OIA training session in Thailand’s northern Chiang Mai province.
Thienchai said the largest group of users was government bureaucrats disgruntled by superiors’ assessment of their performance and seeking to access their evaluation reports, or wanting to see reports of disciplinary investigations against them. Another major group is that of private contractors seeking government procurement records after failing in a bid for a government contract.
Statistics collected by the Official Information Commission shows that from 1999 to June 2013, bureaucrats have always been the largest group of professionals using the law to access information. The figures include people with no specific profession as “members of the general public” whose collective number is larger than official bureaucrats. Journalists were active in the first few years after the law’s enforcement, but seemed to have lost interest since.
The commission’s records look at the number of complaints and appeals filed with its secretariat. It is assumed that people who file the largest number of complaints and appeals are those using the law the most. The commission does not collect data on the actual number of people visiting state agencies to seek information as this takes place at various venues across the country and some agencies may not have such data.
Complaints are filed with Office of the OIC or the commission secretariat when a state agency does not comply with requirements under the Act, particularly Sections 7 and 9, or does not provide information upon request. On the other hand, appeals are lodged when a request for information has been rejected. Appeals are considered by an information disclosure tribunal, but can also be lodged with the OIC office.
Commissioner Thienchai said the drafters of the law had expected the OIA to make the government more accountable and enable “active citizens” to participate in the decision-making process by becoming better informed.
Thai journalists say they do not use the law as they work under tight deadlines and, therefore, cannot wait for information. Instead, they use personal contacts with politicians or government officials to obtain information quickly.
Most Thai news organizations, however, are not engaged in investigative reporting for which the OIA can be a good tool. Media in the country mainly report developing news which only demands quick access to information.
5. Promotion of the use of the law by the Office of the Official Information Commission
After the Official Information Act came into force in December 1997, state officials were trained in its enforcement, according to Thienrat Vichiensan, director of the OIC office. The Cabinet then told state agencies to include sessions on the Act in their annual staff training.
Thienrat said that with the annual 300,000-baht (about USD 9,300) budget of his office for OIA training, only four or five seminars could be held in a year. Community leaders have been trained to help local people use the law, he said. Asked whether he was satisfied with the current use of the law by the public, he replied: “We are satisfied under the current conditions.”
In the 2012 fiscal year (1 October 2011 to 31 September 2012), the OIC office was allotted a budget of 26 million baht (about USD 813,000). Of this, 13.8 million baht (USD 430,000), or 53 percent, was spent on salaries and another 7.27 million baht (USD 227,000), or 28 percent, on meeting operational costs, leaving only five million baht (USD 156,000), or 19 percent, for non-regular expenditure.
With such a limited budget and with only 38 staff members, the OIC office must find innovative ways to encourage use of the law. Thienrat said campaigns had been launched to educate school students on their rights under the Official Information Act. His office, with the help of Sukhothai Thammathirat University, has also developed a curriculum to train people on their rights under the Act. Universities are being encouraged to include right to information as a subject, particularly for law and journalism students.
Information commissioner Thienchai agreed that the commission must be more proactive in using its authority under the law to promote access to information. The public is usually not interested in information published in the royal gazette because people think it is too general, he said. But the commission could use its authority to demand more information for public inspection under Section 9 (8).
However, since the Official Information Act came into force in 1997, the commission has issued only three announcements to expand the types of information required for public inspection – two were enacted in 1999 and 2000 to deal with procurement by state agencies and the third in 2010 covering environmental and health information. The announcement requiring state agencies to allow public inspection of their environmental and health information was a result of pressure from environmentalists, rather than a commission initiative.
No other addition has been made since. This was because the commission did not take any initiative and there was no demand by civil society to open up a new type of information for public inspection, commissioner Thienchai said.
6. Information disclosure as transparency index of state agencies
It seems state agencies are using the Official Information Act more than the public. Apart from the fact that state officials are the largest users of the law, exercising their right under it to obtain information from their seniors, the Act is also being used as a set of indicators to measure official accountability and transparency.
The Office of the Official Information Commission, with the help of researchers from Sukhothai Thammathirat University in Bangkok, has developed a set of 40 indicators divided into seven categories, to rate the transparency of state agencies. The seven transparency categories look at intra-organizational performance of state agencies on procurement, administration, public service provision, human resource management, budgeting, evaluation and auditing, and information disclosure. “These seven categories shall cover all aspects of the performance of a state agency,” said Thienrat Vichiensan, director of the OIC office.
The information disclosure category consists of eight indicators meant to show whether a state agency has done the following:
(1) Published information in the royal gazette as required under Section 7 of the Official Information Act
(2) Provided information for public inspection as required under Section 9 of the Act
(3) Put in place regulations regarding and providing information requested on a case-by-case basis under Section 11 of the Act
(4) Instituted plans and an intra-organizational committee to handle information that is not subject to disclosure and that the state agency may decide not to disclose
(5) Designated officials to oversee and arrange the listing of private information under the possession of the state agency
(6) Organized a system and channel for public access to its information
(7) Evaluated public awareness and accessibility of information
(8) Promoted knowledge of information with the state agency
It is clear that these indicators are derived from requirements under the OIA. The other six categories also include indicators related to disclosure of information regarding that category.
In 2011, the 40 indicators were used to rank the transparency of 40 department-level agencies under various ministries and state enterprises, and of a group of local administrative bodies in 13 provinces in the country. Among the 40 agencies, the top five ranked were the Expressway Authority of Thailand, the Department of Employment, the Customs Department, the Office of the Permanent Secretary to the Prime Minister’s Office, the Department of Business Development and the Excise Department in that order. The three agencies at the bottom of the ranking are the Office of the Thai Health Promotion Foundation, the Department of Provincial Administration and the Department of Consular Affairs, in that order.
Thienrat said his office was planning to apply the 40 indicators to all state agencies in the country to measure their transparency. The results would affect their annual performance evaluation. However, such enforcement is still to take place.
7. Other laws related to enforcement of OIA
7.1 Royal Decree on Good Administration of 2003
For information that needs to be requested on a case by case basis, the Official Information Act of 1997 does not specify the period of time within which a state agency shall provide information requested by an individual. The Act simply says the state agency shall provide it “within a reasonable period of time”.
However, Section 38 of the Royal Decree on Good Administration of 2003 states that when a state agency is contacted in writing by a person or other state agencies seeking information regarding work under the authority of such state agency, it is the duty of such state agency to respond or give an undertaking to respond within 15 days or as specified by Office of the Public Sector Development Commission (OPDC).
The 15-day period has become the timeframe for state agencies to respond to a request for information in their possession. However, since the timeframe is not mentioned in the Official Information Act, state agencies can ignore it.
7.2. State Administrative Procedures Act of 1996
The State Administrative Procedures Act deals with “administrative orders” issued by state officials, procedures for issuing an administrative order and how such orders can be challenged. Administrative orders include the issue of an individual identification card by a local state office, registration of a marriage, issue of a permit to a power plant, or a state agency’s response to a request for information.
Therefore, when a person receives a non-disclosure reply from a state agency for his or her request for information, he or she can challenge such administrative order as unlawful and seek its repeal by filing a case with the Administrative Court.
However, a person exercising the right under the Official Information Act does so mainly to obtain information from a state agency, not to challenge the order of the state agency. If the state agency refuses to disclose information and the person requesting it, files a case with the Administrative Court against the non-disclosure, the Court will usually ask the complainant to first appeal to an information disclosure tribunal under OIA procedures. If not satisfied with the tribunal’s decision, the complainant can appeal to the Administrative Court, which has two layers of hierarchy compared to the three layers of regular courts of justice.
7.3. Regulation on Official Secrets (2001)
This regulation, which is neither an Act nor a royal decree and, therefore, not binding as a law, was issued in compliance with the Official Information Act. It allows state agencies to classify information and put in place procedures to maintain official secrets. It labels classified information as ‘top secret’, ‘secret’ and ‘confidential’. Top secret information is most vital to national interest and its disclosure, in whole or in part, will, therefore, be most detrimental to national interest.
The regulation, however, says state agencies can disclose classified information under certain terms and conditions set by state agencies, which means state agencies can exercise their discretion on disclosure.
8. OIA weakness and poor score on Global Right to Information Index
8.1 Information Commission not an independent body
A key weakness of Thailand’s Official Information Act, according to many, is that the Official Information Commission is not an independent body. Under the Act, the Commission is part of the government bureaucracy and under the supervision of the executive branch. It is headed by a cabinet minister, who is usually a minister attached to the Prime Minister’s Office. Another 13 Commission members are either permanent secretaries or secretary-generals or directors of ministries or state agencies. The cabinet appoints nine other experts from public and private sectors. The Commission members are, thus, mostly government officials.
The secretariat of the Commission, the Office of the OIC, is also under the Prime Minister’s Office and headed by a director. Therefore, the immediate superior of the director is the permanent secretary of the Prime Minister’s Office and all members of the director’s staff are officials under the Prime Minister’s Office.
In an interview for this article, Thienrat Vichiensan, current director of the OIC Office, said it was originally thought that an information commission under the Prime Minister’s Office would find it easier to make state agencies comply with the law, particularly if the Prime Minister’s party has a clear parliamentary majority.
But government officials in Thailand are known to act as a privileged elite rather than as civil servants working to serve the people.
8.2 No fixed timeframe for response to information request
As mentioned in Item 7.1, the Official Information Act does not specify the period of time within which a state agency must provide the requested information that needs to be sought for on a case-by-case basis. This has discouraged use of the law.
8.3 No penalty for non-compliance by state agencies
The Official Information Act sets no penalty for officials or state agencies that do not make available information required to be made public under the law, or those who refuse to provide information that needs to be requested on a case-by-case basis. The Act does not provide for a penalty for any state agency or state official who does not comply with the law.
8.4 Thailand’s OIA ranking on global RTI rating
Thailand’s Official Information Act does not score well on the Right to Information (RTI) global rating launched in September 2010 by Access Info Europe and Centre for Law and Democracy. In 2011, the rating indicators were applied to assess RTI laws in 90 countries. With a possibly-highest score of 150 points and Serbia ranked the top at 135, Thailand’s OIA was rated 83rd. The rating was updated in September 2013 with Thailand’s score dropping to 76 while Serbia remained at the top with 135. The rating looks at the legal framework of RTI laws but does not assess their implementation or effectiveness.
The non-independence of Thailand’s Official Information Commission is cited as a key weakness of the Thai law. Other weaknesses are that the Official Information Act excludes too many kinds of official information from the public disclosure requirement.