The Right to Information Law of 2008

SEAPA’s Right to Know Series: Access to Information in Southeast Asia

[See country reports on Cambodia, Malaysia and Thailand]

During Indonesia’s New Order regime under the leadership of Suharto, government information was treated as a precious commodity, owned by a handful of public officials and entrepreneurs with close links to the government. This belief came under challenge with growing public awareness of the people’s right to information. The demand for freedom of expression and the right to information was a manifestation of the growing urge for democratic participation in governance.

The 1994 ban on leading news magazines Tempo and Editor and the daily Detik, increased the public pressure for openness in governance and access to public information (Arief Budiman & Olle Tornquist, 2011). The ban was opposed not only by media, but also academics and the public. Another significant event was the 1998 Reformation which ended the New Order regime, accused of corruption and nepotism.

The new openness after 1998 came as a flood, ready to bring down anything or anyone that stood in its way. The demand from the public, non-governmental organizations (NGOs), civil society organizations (CSOs) and the international community, for transparency in governance, an end to corruption and nepotism, and respect for human rights, culminated in the enactment in 2008 of the Right to Information (RTI) Law Number 14/2008. The law was publicly welcomed like rain after the long drought in access to information during the New Order era. It gave rise to hope for freedom of expression and opinion and the public right to access information.1

The RTI Law debunked the old concept that state information belongs only to the government and could be issued only with its permission, making it also the property of the public.

The RTI Law obliges the government to provide information related to all aspects of its work with some exceptions related to state secrecy. It provides opportunities for public participation in governance as well as for monitoring each stage of the public policy making process.2 The opening up of state information to the public, in principle, opens the way for democratization, reduces government control and strengthens public participation in governance as well as human rights. A well-informed public is both a source of power and an actor in the process of deciding and supervising public policy (Prawiyanto, 2011).

This report evaluates the implementation of the RTI Law in Indonesia and examines gaps in implementation.

The Right To Information Law Number 14 /2008

This report will look into the following question: what type of information does the public need and what type of information should the state provide to the public?

Four years after the Law was ratified and two years after its implementation came into effect, the index of public information transparency is still low, with contradictions in the provision of information and access to information. Freddy H Tulung, Director General of Information and Public Communication, Ministry of Communication and Information, admits that information is accessible to the public, but wonders if the public makes use of it. According to Tulung:

“It seems that the current openness is only (related to) nudity, and does not yet lead to the enhancement of participation. Information does exist, but the problem rises once the public wants to access the information. Is the information correct and does it answer public need?”

Asked why the public feels it does not have enough access to information, Tulung cited three main issues. Firstly, the lack of synergy between those providing the information and those receiving it; secondly, limited access to information; and thirdly, the negative public perception about the ease of public access to information. As a result, information that is supposed to be public is not properly accessible; it is either not provided at all or delivered to the wrong party.3

An examination of these three issues shows that the public tends to wait for the government to be proactive in providing information, rather than to demand for information. It is true that there is now public access to information, but more often, the information given is not necessarily the information the public needs. In addition, the top leadership of public institutions is not taking the responsibility to decide on disclosure of public information.

A major challenge is changing the mindset of officials who still treat public information as belonging exclusively to the government.

Following the Law’s enactment, the Ministry of Information and Communication and the Central Committee of Information (Komisi Informasi Pusat-KIP), supported by civil society have been promoting public awareness about how to use the law. Government Regulation No. 61 issued on April 30, 2010 informed about the implementation of the RTI Law. The Central Committee of Information issued Regulations dealing with the provision of information and the settlement of public information disputes.

The RTI Law requires government institutions to set up public information management bodies known as ‘Officials to Manage Information and Documentation’ (Pejabat Pengelola Dokumentasi dan Informasi – PPDI) to classify government information as public and disseminate it to the public. The Law bars the old government practice of marking some information about its work as ‘classified’ and not accessible to the public. Attempts to obstruct public access to information are a punishable offence.

However, the law is not yet fully effective. Subagyo, Director General, Ministry of Information and Communication says that it is crucial that the PPDI are set up to ensure a proper and smooth flow of information disclosure. Public bodies are required to enforce the Implementation Regulations4, and they must report back to the general public.

Not all government offices have formed a PPDI. All government institutions should have appointed an official to manage information and documentation by August 23, 2011, the deadline for the implementation of the RTI Law. The PPDI is responsible for the regulation, documentation and classification as well as information service of information in all of the public institutions. It is headed by the chiefs of public institutions and at the ministries, it is the minister who is in charge. At the province, it is the governor and in the Regency, it is the regent, who heads the PPDI.

Article 7 of the RTI law obliges every public institution to provide information to the public except for exempted information, by documenting and/or providing services to public institutions;5 classify public information based on categories of information that must be made public periodically and available at all times;6 provide information quickly, easily and reasonably;7 provide written assessments of the discharge of its legal obligation to provide information to the public;8 evaluate the consequences of making certain categories of information exempt from public disclosure;9 meet public request for information and, make annual announcements about the provision of information to the public.10

Article 7 obliges public institutions to develop information system and to document and manage public information so that it can be easily accessed by the public.

Public information includes: a) information related to public institutions; b) information about activities of public Institutions; c) information regarding financial reports; and/or d) other information which is legally regulated.11

Data on information disputes registered in the KIP shows that, in general, these relate to public requests for information about budgets of public institution. Despite the RTI Law, the request for budgetary transparency is never answered, even when based on the result of an information dispute in relation to that budget. For example, requests for information about school budgets and for data about national police budgets have not been responded to till now although the KIP has ruled that budgetary information is not exempt from disclosure.

Public departments are required to make routine disclosures of information at least twice year. The obligation to make information public should be discharged in a manner, which makes it easily to accessible by the public and also easy to understand.12 The PPDI has to coordinate and collect information from each section of the government institution. The categories of information include, among others, information that must be publicized periodically, information that must be always available, information that must be provided immediately and other open information requested by the public.

Article 17 of the RTI Law provides for cases where official secrecy is permissible,13 but these exceptions are restricted, limited, indefinite and not permanent. To be exempt from disclosure, the information must meet the criteria for exemption in Article 17. The reason for rejection of an information request must be given to the applicant in writing. Public institutions must be proactive in providing information to the public in cases where this should be made available without the need for a request. The Information must also be complete and accurate.

The Exception of Article 17 of the RTI Law

Certain categories of information are required to be published periodically by public agencies. These include information on the work of public agencies, financial information about public agencies and/or information required by law.14 Public agencies must not delay disclosure of information where this threatens livelihoods and public order, for example information of imminent natural or public health disasters.15

However, some information is treated as confidential under Article 17 of the RTI Law, but the restriction is not permanent.16

Research by the Jakarta-based NGO, Indonesia Center for Environmental Law (ICEL), on the interpretation of Article 17 noted that:

The RTI Law stipulates that some information is closed to the public. The implementation of the article exempting information from disclosure needs to be read entirely and comprehensively for its proper understanding. Most of the exception is for a specific period of time, after which the information must be disclosed. However, some exceptions are permanent, which include personal data.17

Information is exempt from disclosure on the principle of consequential harm, balancing the public interest test and the non-permanence (Articles 2, 17, 19, and 20). ICEL adds:

The RTI Law permits refusal of a request for information on procedural and substantive grounds. The former is stated in Article 6 (2): “The Public Agency has the right to refuse to disclose the public information when the request is not in accordance with the provisions of the legislations.” Article 6 allows the Public Agency to refuse information when the request does not comply with standard legal procedures. However, when a request complies with the standard procedure, it should be accepted, according to the law. If a request fails to meet the standard procedure, it can be re-submitted. Another ground for refusal of information is substantive as stated in Article 6 (1): “The Public Agency has the right to refuse disclosure of information in accordance with the provision of the legislation.”

For information to be restricted, it must be shown to have passed the ‘consequences’ and ‘public interest’ tests.

There are 3 tests:

  • The information must relate to a legitimate aim listed in the law;

  • Disclosure must threaten to cause substantial harm to that aim;

  • The harm to the aim must be greater than the public interest in having the information.

RTI Law Article 17 exempts information from disclosure on the grounds of protecting the following):

  1. Law enforcement,

  2. National economy security,

  3. Intellectual property rights and against unfair business competition,

  4. The natural wealth of Indonesia,

  5. Defense and security of the state,

  6. Personal information,

  7. Memorandum or letters between the public authorities or among the public authorities,

  8. Other information that may not be disclosed under the law.18

The ICEL research also examined the following five exceptions to information disclosure provided in Article 17 of the RTI Law to see how public agencies interpreted these exceptions and the implications for public access to information.

  1. Exception on grounds of privacy:

Private information is information related to public administration, health, communication and banking systems. The public administration is regulated by) Law number 23/2006. The Internal Affairs Minister is responsible for the protection of personal information. In the health sector, personal information includes confidential personal medical records, medical consultations, diagnosis and treatment decisions. This confidentiality applies to doctors, heads of health services, nurses and employees of the other health care providers. Confidentiality of health information is also protected by the code of medical ethics, which requires every doctor to maintain the confidentiality of patient information even after the patient’s death. In the communications sector, operators are required to maintain the confidentiality of information sent or received by customers through the services provided by the operators. There are restrictions on disclosing this information to the media except under regulations stipulated in Law No. 11/2008 on Information and Electronic Transactions. In the banking sector, the Banking Law requires banks to protect information about customers. Information can be accessed with the permission of the Head of Bank Indonesia for tax purposes, settlement of bank accounts and criminal investigation. Confidentiality can also be ended with the written consent of the customer.19

It appears from monitoring the implementation of the RTI law at the provincial level that almost all public officials are aware of the ethics of confidentiality and agree with it in protecting personal information. Medical records are included in confidential information and can be accessed with the permission of the patients and the head of the health care provider. It also appears that public agencies are aware of laws to protect bank customers’ information.

  1. Exception on grounds of business opportunity:

The ‘commercial activity’ exception in Article 17 of the RTI Law has two parts. Firstly, protection of intellectual property rights and protection from unfair competition. Secondly, protection of the confidentiality of procurement documents to prevent irregularities. However, there is a need to maintain transparency to support the principles of fairness in business competition, efficiently, equality and responsibility.20

In practice, this exception is always misinterpreted with procurement of goods and services still marred by corruption.

  1. Exception on grounds of law enforcement:

In terms of law enforcement, the exemption is granted to protect the identity of witnesses and victims.

  1. Exception on grounds of the ‘internal nature’ of the information:

Such Information includes official communications among public agencies as well as documents that, if disclosed, would adversely affect government policy making. The provision aims to avoid:

    • Decreasing the freedom, courage, and honesty in the delivery of advise, communication, or exchange relating to decision-making process.

    • Hindrances in the success of a policy as an impact of premature information disclosure;

    • Hampering the success of the ongoing negotiation process that is being done.21

The biggest challenge is the wide interpretation that Article 17 allows in judging the loss that disclosure of information would cause. This seems contrary to the openness principle of public participation.

  1. Exception on grounds of protecting the country’s natural wealth:

Information concerning Indonesia’s natural resources is considered confidential. Such information mainly relates to survey, exploration and extraction of mineral and energy resources.22

While this exception is a safeguard against excessive exploitation of resources by foreign business, it also hinders investment in mineral exploration in the country’s provinces. Most agreements between the central government and mineral exploration companies allegedly lack transparency in profit sharing. In many cases, such as in Kalimantan, mining or mineral exploration has resulted in land-grabbing, labour conflicts and environmental pollution.

The implementation of the RTI Law has shown a lack of political will to disclose public information. The Article 17 exceptions to information disclosure under the Law are being interpreted liberally by authorities. Field observation in East Java, West Kalimantan and Aceh Provinces makes it clear that official information is being treated as confidential without applying the test of likely consequences of disclosure. Only Probolinggo district in East Java and Melawi district in West Kalimantan have a PPDI.

However, the establishment of a PPDI has not strengthened official capacity to implement the RTI Law, particularly related to the test sequences. This remains a big challenge for public agencies. There is inadequate flow of information between the central and provincial governments and the districts.

Response of public institutions to obligations under the Right to Information Law

There are four issues in the response of public institutions to their obligation under the RTI Law.

The first is the deep-rooted culture of state secrecy. For example, if information were requested about the government budget, the typical answer would be: “It is a state secret.” If the question is about a public health facility, the answer would be: “that cannot yet be disclosed, because it is a secret.” If the question were about government subsidy for a school, the standard answer would be: “we can’t answer that question now since there are parts that can’t be published.” The RTI Law states that the portion of public information that must be kept secret, for example personal data, can be blacked out.23

Henry Subagyo says that in his view, public institutions should alter their approach and understand that the government exists to serve the public.

Unfortunately, few public institutions have sufficient understanding of the importance of transparency of their work. Only 25 ministries and equivalent institutions have set up a PPDI.24 Of the 129 state institutions, only 29 have established a PPDI and only 14 of the country’s 33 provinces have done so.25 At the district level, 399 PPDIs have been set up in 53 districts and out of a total of 98 city councils, only 17 have established the institution (See table below).

NUMBER OF PPDIs IN MINISTRIES, STATE INSTITUTIONS AND LOCAL GOVERNMENTS

No

Institution

Number

2010

2011

2012

Percentage 2012*

1

Ministries

34

7

22

25

73,53%

2

State Institutions/Institutions equal with ministries/LNS/ Public Broadcast Institutions

129

10

29

29

22,48%

3

Provinces

33

5

12

14

42,42%

4

Regencies

399

5

40

53

13,28%

5

Cities

98

2

10

17

17,35%

TOTAL

693

29

113

138

19,91%

* Data from the General Directorate of Information and Communication per April 30, 2012.

Ideally, every public institution should have established a PPDI no later than August 23, 2011. As of April 2012, only 19.19% of public bodies had done so.Subagyo sees the need for “good will” in a leader as the starting point for the establishment of a PPDI and the provision of proper information to the public by public institutions.

The second obstacle is the lack of preparedness of public institutions. A large number of information disputes are listed in the Information Commission, the most common being the lack of will on the part public institutions to respond to requests for information about their work. The Central Information Committee thinks the situation will improve because public institutions, from the national to the regency level, need time to be prepared. However, Dono Prasetya, KIP commissioner said it was hard to accept that public institutions were still ignorant of their obligation under the RTI Law.

“The RTI Law as the legislation that regulates the openness of information was put into place in 2010. The 2 years delay) was intended to put in place administrative support and facilities to provide public information. The absence of institutions to manage and distribute public information is therefore unacceptable, because every public institution has a special department that manages the documentation of information. So, actually the role of managing information distribution is not new or foreign,” he says.

Limited public understanding of how information is classified under the RTI Law has become a critical factor in the its ineffective implementation. Public institutions have not classified and publicized information which must be public, including information exempt from disclosure, because many public institutions have not yet formed the PPDI.

Tests to assess the likely consequences of disclosure and the public interest implications of the disclosure are needed to determine if the requested information is exempt from public scrutiny. The procedure for these tests is specified in the Regulations of Information Committee No.1 Article 16 about the Standard of Service of Public Information. The consequences test must be in accordance with Article 17 of the RTI Law. The rejection of a request for information must be stated in written form and given to the applicant.

The Regulations of the Information Committee No.1 specify how official information can be classified as exempted from public disclosure.

  1. The PPDI is obliged to conduct a consequence test based on Article 17 of the RTI Law.

  2. The PPDI must mention the provision of the RTI Law clearly and firmly.

  3. The reason as mentioned in article (1) and (2) of the RTI Law must be stated in writing and included in a notification on the demand to make the information public.

  4. In conducting the consequences test, the PPDI cannot consider any other reason for exemption, other than what is stated in Article 17. (Dono Prasetyo, KIP Commissioner, in the four-year reflection of the RTI Law).

The Information and Communication Ministry is reinforcing the regulation by supporting PPDIs with technical guidance. However, the lack of a budget for the PPDI has also affected implementation of the RTI Law. Currently, at provincial and district levels, there is no regulation to support public officials with information management. Field monitoring by ISAI in East Java, West Kalimantan and Aceh found high employee turn-over in public institutions, affecting their capacity to run the PPDI efficiently.

As a result, the PPDI has remained a weak institution. Besides, in many instances officials selected to run the PPDI do not attend training on the RTI Law and nominate another official in their place.

The third obstacle is weak transparency standards for public information. Taking from the report which compares the guarantee of law conducted by institutions such as ICEL, it can be seen that the amount of standard operating procedure (SOP) which guarantees transparency is lower compared to the total of SOP which silenced the openness towards information access. (meaning not clear)

As an example, the criminal code (KUHP) questioned the leakage of information, yet the process to review the leakage of information still has not been done, the result being that the article that threatens the public or the information giver still exists. It is this absence of protection toward the leakage of information which has placed the PPID in a weak state when there is a demand for information leakage. Within the sectorial Law, the Law of witness and victim protection is not strong enough, so what often happens is the emergence of conflict between or among regulations for each settlement of information dispute. (meaning not clear)

The limitation of understanding about the regulations and the process of law in its interpretation, in fact also creates a conflict of interest between each of the regulations. The interpretation of law which is often used in applying the law has become a pragmatic and textual pattern of law interpretation, but ignores the historical and contextual pattern of interpretation.26 This has caused the RTI Law to become general in the face of the sectorial Law. (meaning not clear)

An illustrative dispute involved a request by Indonesia Corruption Watch (ICW) to the Police Department of The Republic of Indonesia (Polri) for information about the owner of a large bank account in Polri.

Article 52 of the RTI Law states that a public official refusing to disclose information can be charged and sentenced to one year of jail or a fine of five million rupiah. Notwithstanding this, Polri had not issued the requested information for more than 14 days.

It seems that the legal consequences of non-disclosure of information are not applicable to public institutions. This is especially ironical given that it is the law enforcing police department that is not complying with the RTI Law.

The fourth obstacle is the contradiction in government attitude towards the RTI Law. Even before it was implemented, a draft State Secrecy Law was prepared, reflecting the government’s concern over public misuse of information to be provided by the RTI Law.

If the intention was to give effect to a law in the public interest, then the primacy given to state secrecy appears somewhat contradictory. According to Agus Sudibyo, Chairman of the Public Complaints Commission and Code Enforcement Board of the Press Council of Indonesia, on the one hand the government is trying to promote democratic participation and on the other, it is undermining this by reliance on secrecy.

“The secrecy regime and the culture of closeness so far are still the main obstacle in the effort to eradicate corruption and the manifestation of good governance in Indonesia. Supposedly what happened is how to end the domination of the secrecy regime and the culture of closeness in the reality of state administration in all lines at all levels,” he said.

The government postponed ratification of the draft State Secrecy Law after a lawsuit by freedom of information activists.

Public response to the Right To Information Law

A democratic society requires an informed public and this, in turn depends on the quality and quantity of the information available to the public (Ivester, 1977).

Public officials justify delays in providing information with the explanation that the RTI Law has only been in effect for four years. The public is still not fully aware of the Law and utilizes it infrequently. The public also does not have a strong curiosity about government work and how it impacts people’s lives. Until the RTI Law was passed, the democratic process in Indonesia was limited to a one-sided dialogue between the government and the public, controlled by the government.

According to the Central Information Commission, in principle, public demand for government information has increased although most applications for such information are from special groups such as researchers, while journalists and business groups relying more on personal contacts with public agencies for access to information. The public tends to be more passive in accessing information or depends on civil society organizations to do this as these organizations are seen as having better access to authorities and a better understanding of what information is needed from public institutions.

The following shows the number of disputed cases of access to information, according to KIP records:

2010

2011

2012

Total

Ministries and Executive Bodies

53

248

61

362

Hospitals

0

5

1

6

Schools/Universities

4

22

44

70

Police and Army

1

13

5

19

Civil Society Organization

1

33

1

35

Political Party

3

14

0

17

State-owned enterprises (BUMN)

5

67

7

79

The supreme court/the constitutional court/prosecutor ‘ s office

7

12

2

21

Legislative

2

4

0

6

Total

76

418

121

615

Source: Central Information Commission report as of March 2012

The data shows that most requests were submitted to ministries and institutions at the highest level, followed by requests to the Badan Usaha Milik Negara (BUMN), NGOs and other public institutions. Based on data in the 2011 Annual Report of the Central Information Commission, requests from groups and organizations made up 29% of all requests, and individual requests accounted for 71%. It appears that access to information still takes place mainly at the level of the national executive. People in the provinces or districts still have no access to information. Monitoring and evaluation by ISAI in East Java, Aceh and West Kalimantan appears to show that more public officials failed to comply with the RTI Law, while the public does not know how to get the information. When information could be obtained, it was more because of personal relationships and networks.

Records of public information applications reveal a very limited public awareness of the benefits of the RTI Law. According to Subagyo, most applications are still limited to a few groups, which are not necessarily representative of all society. The majority of requests were out of curiosity, not because of the relevance of the information for public participation in policy making. Ideally, public requests for information should result in the information being utilized to increase economic prosperity, knowledge and understanding for better public involvement in government decision making.

According to Freddy H Tulung, another challenge is the lack of socialization of the RTI. “From what I see, the public has not fully utilized the information to support its efforts, however, so far, judging from the data related to information disputes, when the public attempts to access the information, it is more like an attempt to test the public agency and or an attempt to humiliate the institution.”

A number of procedures have to be complied with to access information.27 One of these is completing a form and there have been many cases where information requests were incomplete, lacking the requester’s identity and the reason for the request. The table shows the status of information access disputes before KIP:

Status

Number

2010

2011

2012

Preliminary Assembly examination process

106

153

Mediation on progress

12

108

128

Adjudication on progress

13

19

31

Refused/revoked

13

139

216

Mediation finished

20

36

82

Adjudication completed

18

11

42

Dispute sent to the Superior Court of State Affairs

0

0

4

Dispute sent to Higher Court

0

0

1

Total number of information access disputes

76

419

657

Information Commission Centre, 30 April 2012

The majority of information disputes before KIP related to transparency in the work of public institutions and their budgets. The Asia Foundation (TAF), in cooperation with the Indonesia Forum for Budget Transparency (Fitra), found that public access to information related to the budget was still at a low level. Research by TAF and Fitra in 20 cities and districts in Indonesia found only 20 percent of 410 budget documents reviewed were accessible. Budget information is mostly classified. For example, despondent parents are still waiting for information about the government’s education support fund, despite a request, a year after the enactment of the RTI Law, by the National Education Coalition of parents, students and civil society organizations. Authorities ignored the request, stating that the information was classified as exempt from public disclosure. The Education Coalition disputed this claim, arguing that the information was being excluded because authorities had something to hide. However, authorities continued to insist that the budget information was confidential under Article 17.

While hopes are still pinned on increased public access to information leading to open and democratic governance, this requires a strong civil society, greater political awareness, law enforcement, an empowered bureaucracy and economic development (Damanhuri, 2006).

Maximum Access, Limited Exemption

The RTI Law is based on the principle of ‘maximum access, limited exemption’, derived from the international principle of freedom of information. The principle also states that any exception to public access should be subject to rigorous standards and scrutiny, and there should be no absolute exceptions. Classification methods should adhere to standard methodologies that are valid, objective and based on public interest. ‘Not absolute’ means that any information categorized as secret information must be reviewed periodically and made open and accessible to the public when it is no longer found necessary to keep it secret. By implication, any public agency such as the PPDI should not be able to declare public information as classified without justification.

According to Article 17-letter c of the RTI Law, information, particularly defense, can be classified secret if its disclosure might jeopardize national defense and security. Article 17-letter j, allows categorization of information as classified, if the sectoral law also classifies it as exempt from disclosure. As an example, information on investigation of military vehicles involved in accidents should comply with Law number 34/2004 concerning the Indonesian military which has provisions for classification and exemption regarding such an investigation.

Under the citizens’ Right to Know, a constitutional right guaranteed by Article 28F Act 1945, a request can be made to the Information Commission to conduct a balancing public interest test to determine if refusal to disclose information serves the national interest.

The challenge lies also with the authority responsible for conducting the consequences test. The Jakarta Authority has conducted consequences tests for all types of public information with the Authority. This has led to nearly half of this information being categorized as classified. This shows that the consequences test conducted by the PPDI in the Jakarta provincial government did not adhere to the basic principle of ‘maximum access, limited exemption’ on which the RTI Law is based. Indonesia Corruption Watch (ICW) has lodged a protest against the test results.

On the other hand, the local government unit in an East Java district, in an obviously goodwill gesture, declared it had no classified information. Only the health department in the local government proposed treating medical records as classified information and the education department proposed that national examination documents be treated as classified information.

Implication

The relationship between the public and the government should be marked by transparency, participation and accountability. An initiative towards open governance was taken by former Indonesian President Susilo Bambang Yudhoyono when he launched the Open Government Partnership in June 2011. The demand for openness in governance was an important part of an effort to reform the Indonesian bureaucracy after 1998.

Transparency in public information was challenged when the DPR (People’s Representative Council) enacted Law (UU) no.17/2011 regulating state intelligence. This Law not only had the potential to hinder the application of UU KIP no 14/2008, but also threatened the freedom of the press in obtaining and distributing information as written in UU no. 40/1999 about the press.

The Right to Information Law is linked to the Press Freedom Act and the Broadcasting Act by the following laws: Law (UU) No. 25/2009 regarding Public Service (Public Service law); and Law (UU) no. 49/2009 regarding the archiving system. This often causes concerns about problems in the process of accessing information including the service time, costs and copying of the information.

While the Internet is a key tool for information distribution, due to geographical remoteness all regions cannot access the Internet and there is a need for other means of information dissemination such as bulletin boards, radio or SMS.

Conclusion

A Democracy Index (DI) published by the Economist Intelligence Unit in 2011 ranked Indonesia 60 out of 167 countries, rating its democracy as somewhat fragile.

The Failed State Index (FSI) published by the Fund for Peace Organization in 2012, ranked Indonesia 63 out of 178 countries. Then Indonesia President Susilo Bambang Yudhoyono objected to this ranking, asserting that the truth was that Indonesia was actually one of the few democratic states in South East Asia. The FSI used various indicators, particularly public perception of state legitimacy, development status, anti-government protests and enforcement of human rights. Responding to the publication of the FSI index, Daoed Joesoef, education and culture minister during the 1978 New Order era was quoted as saying: “Admitted. There is something wrong in the development vision of all our leaders in the post-revolution regime.” (Kompas, 12/7/2012). The index also found an improvement in public services in Indonesia in 2012.

In contrast, the US-based Freedom House’s Freedom in the World 2012 survey rated Indonesian democracy as ‘free’. The ranking measures political rights and civil liberties to assess the state of freedom of a nation’s democracy. The Freedom House survey, ranked Indonesia the highest in terms of democracy in South East Asia, placing it 5 on a scale of 1 to 7 that measures political rights and civil liberties.

The RTI law is a commitment by the Indonesian government to transparency. It has the potential to eradicate corruption in public life and to encourage public participation in governance.28 Some indicators of the open government initiative include minimum criteria for fiscal transparency, access to information including about the wealth of public officials, and citizen engagement in public life.

The RTI Law and the Ombudsman Law also have provisions for monitoring government accountability and are well-implemented with a monitoring system, guidelines and a handbook. Yet, supervision of the exercise of state authority and sanctions against its frequent abuse are still inadequate.

Four years since the ratification of the RTI Law ratified and two years after the implementation law was enacted, it is important to change the government culture of secrecy. This will require increasing public awareness of the Right to Know and the creation of information access systems that allow easy and efficient public access to information.

However, this will not be easy given bureaucratic inertia and insularity. Media and civil society have to play a crucial role in promoting public awareness and use of the Law and can also help ensure transparency in the response of authorities to requests for public information.

It is also important to promote awareness of the Law among public agencies. An initiative to promote awareness of the Law among public institutions in Aceh, East Java and West Kalimantan, found that it was not being implemented because public institutions were either unaware of the Law or/and ignored it.

There is also need to enhance information technology infrastructure by increasing IT capacities. Although Internet coverage has improved, with the government building Internet villages and plans for digital literacy programs, there is need to improve the technology hardware to make access to information faster and more cost-effective.

References:

  • RTI Law Number 14/2008.

  • Interview with Dono Prasetyo, Information Commission Centre.

  • Interview with Henry Subagyo, Diretor ICEL, Indonesia.

  • Interview with Muhamad Teguh Surya, Former Head of International Affair and Climate Justice Department, Walhi Indonesia.

  • Interview with Agus Sudibyo, Head of Chairman of the Public Complaints Commission and Code Enforcement Board of the Press Council.

  • Interview with Freddy H Tulung, Directorate General of Information and Communication Ministry of Indonesia.

  • Field Observation and Field Monitoring to 3 provinces; East Java, West Kalimantan, and Aceh.

  • Note from public discussion f the Right to know law held on 15 May 2012. The discussion presented Subagyo, Directorate General of Information and Communication Ministry of Indonesia, and Dono Prasetyo, Commissioner at the Information Commission Centre.

  • Arief Budiman & Olle Tornquist, Aktor demokrasi (Actor Democracy), Institute of the Media Study and Free Flow Information (ISAI), 2001.

  • Freddy H Tulung, Paper tittle “Implementation of The Public Right to Know to support the Open Government Partnership.” Presented during the public discussion di Jakarta, 15 Mei 2012.

  • Didin S. Damanhuri, Korupsi, Reformasi Birokrasi, dan Masa Depan EKonomi Indonesia (Corruption, Birocracy Reform, and The Future of Indonesia Economy), Lembaga Penerbit Fakultas Ekonomi Universitas Indonesia, 2006.

  • Tim Mercu Buana, ed. Dra. Diah Wardhani, M.Si & Afdal Makkuraga Putra, M.M, M.Si, The Repotition of Communciation in the Dynamic of Convergence, Kencana Prenada Media Group, 2012.

  • Paper, David Mitchell Ivester, The Constitutional Right To Know, 1977.

List of Abbreviations:

RTI: The Right To Information

NGO: Non-Governmental Organizations

CSO: Civil Society Organization

(ISAI): Institute for Media Study and Free Flow Information

KIP: Komisi Informasi Pusat – Central Committee of Information

PP: Government Regulation

PPDI: Pejabat Pengelola Dokumentasi dan Informasi – The Officials to Manage Information and Documentation

(ICEL): International for Environmental Law

TAF: The Asia Foundation

Fitra: The Indonesia Forum for Budget Transparency

BOS: Bantuan Operational Sekolah – Education Support Fund.

SKPD: Satuan Kerja Pemerintah Daerah – Department in the Local Government

FSI: Failed State Index

USO: Universal Service Obligation

1Summary of public discussion organized on May 15, 2012 in Jakarta by the Institute for Media Study and Free Flow Information (ISAI) on two-year reflections of the RTI law.

2 RTI Law, Article 3

3 Interview of Freddy H Tulung with Biskom.web.id http://www.biskom.web.id/2011/03/23/dirjen-informasi-dan-komunikasi-publik-kemkominfo-freddy-h-tulung-keterbukaan-informasi-ciptakan-open-goverment.bwi.

4 The regulations of the Information Committee No.1/2012, Article 3; which includes public institutions, executive institutions, legislative institutions, and other institutions whose main function and duties is related with the administration of the state, which part or whole of its budget come from the State Budget and/or District Budget, donation from the public, and/or from foreign sources; political parties; and state owned enterprises or/and region owned enterprises.

5 RTI Law, article 1 no. 9

6 Ibid, article 9,10,11,14, and 16.

7 Ibid, article 13 no. 1

8 Ibid, article 8 no. 4 and 5

9 Ibid, article 19

10 Ibid, article 12

11 Ibid, article 9

12 Ibid, Part VI, Article 9.

13 Article 17 of the RTI Law specifies information exempt from public disclosure. These include, among others, information related to: law enforcement; national economic stability; intellectual property rights and business monopolistic practices; natural resources; national security; private information; internal or external correspondence between public institutions; other information which is not to be disclosed based on the law.

14 UU KIP, article 9.

15 Ibid, article 10.

16 Ibid, article 11&12.

17 ICEL & CLD, Interpretation of Exception to the right to information, Experiences in Indonesia and elsewhere 2012, page 10.

18 Ibid, pages 15 & 35.

19 Ibid, pages 59-63.

20 Ibid, pages 72-75.

21 Ibid, pages 94-97.

22 Ibid, pages 103-104.

23 RTI Law, Chapter VI, regarding information-gathering mechanism, article 22, no. 5.

  1. 24 Government institutions that have established a PPDI: Ministry of Communication and Information: Decree Number 117/KEP/M.Kominfo/03/2010, dated, 23 March 2010.

  2. Ministry of Coodinator of politics, Law, and Defence. Decree Number SKEP.299/SES/POLKUKAM/05/2010, dated 27 May 2010.

  3. Ministry of Health, Decree number 708/Menkes/SK/VI/2010, dated 8 June 2010.

  4. Law and Human Rights Ministry, Decree number M.HH-o1.IN.01.03/2010, dated 17 June 2010.

  5. Ministry of Culture and Tourism, Decree number KM.70/OT/001/MKP/2010, dated 25 August 2010.

  6. Ministry of Education, Decree number 094/P/2010, dated 6 September 2010.

  7. Ministry of Transportation, Decree number 72/2010, dated 18 November 2010.

  8. Ministry of Women and Child Protection, Decree Number 31/2011.

  9. Minister of Forestry, Decree number SK.50/Menhut-II/2011, dated 22 February 2011.

  10. Ministry of Public Welfare, Decree number 17/2011, dated 10 March 2011.

  11. Ministry of Foreign Affair, Decree number 20/B/KP/III/2011/01, dated 28 March 2011.

  12. Ministry of Commerce, Decree number 346/M-DAG/KEP/4/2011, dated 5 April 2011.

  13. Ministry of Social, Decree number 54/HUK/2011, dated 26 April 2011.

  14. Ministry of Agriculture, Decree number 2634/Kpts/OT.160/5/2011, dated 27 May 2011.

  15. Ministry of Public Workers, Decree number 156/KPTS/M/2011, dated 17 June 2011.

  16. Ministry of Industry, Decree number 351/M-IND/Kep/7/2011, dated 25 July 2011.

  17. Ministry of Defense, Decree number KEP/614/M/VIII/2011, dated 15 August 2011.

  18. Ministry of Manpower and Transmigration, Decree number 218/MEN/VIII/2011, 19 August 2011.

  19. Ministry of Finance, Letter of Assignment Number ST-2736/MK.1/2011, dated 9 August 2011.

  20. Ministry of Cooperatives and Small and Medium Enterprises, Decree Number 28/KEP/M.KUKM/VIII/2011, dated 11 August 2011.

  21. Ministry of Rural Development, Decree number 319/KEP/MPDT/VIII/2011, dated 16 August 2011.

  22. Ministry Secretary of State, Decree number 130/2011, dated 31 May 2011.

  23. Ministry of Research and Technology, Decree number 235/M/Kp/VII/2011, dated 29 July 2011.

  24. Ministry of National Development Planning / National Development Planning Agency, Decree number KEP.80/M.PPN/HK/08/2011, dated 16 August 2011.

  25. Ministry of Energy and Mineral Resources, Decree number 0106 K/73/MEM/2012, dated 13 January 2012.

25 Provinces that have established a PPDI: West Java, East Java, Riau Islands, Banten, Gorontalo, South Sumatera, Lampung, Central Java, DI Yogyakarta, South Sulawesi, Central Kalimantan, North Sulawesi, West Nusa Tenggara, DKI Jakarta. West Kalimantan and East Kalimantan are waiting to be inducted. While Aceh and Bali are focused on the fit and proper test. West Sumatra and South Sulawesi are preparing the establishment of the selection team.

26 Interview with Henry Subagyo, ICEL, 2012.

27 KIP Regulation Number 1/2010; Part 3 Article 23 about standard service of Right to Information via request. Public Agency shall provide request form to the public.

28 Freddy H Tulung in a paper presented at public discussion on public access to information in support of the open government initiative (15/5/2012).