Country

Indonesia

Indonesia

Name of law : Public Information Disclosure Act
First adopted : 2008

Section Max ScoreScore
Right of Access 6 6
Scope 30 28
Requesting procedures 30 13
Exceptions 30 16
Appeals 30 25
Sanctions 8 3
Promotional measures 16 10
TOTAL 150 101

Introduction:
As a law that is still in the process of being implemented, Indonesia’s access framework should rightly be viewed as a work in progress. In particular, our expert turned our attention to the fact that several issues which our analysis found in Indonesia’s procedural framework (Indicators 16, 17, 20, 25) are in the process of being address through regulation by the Information Commissioner. We welcome this development, and the continued consolidation of Indonesia’s access regime which has the potential to rank among the strongest in Asia. The biggest weakness in this law are the fact that the Information Commissioner's decisions are not legally enforceable, and the fact that information can be classified through laws other than the Law Regarding Transparency of Public Information.
Right of Access

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1 The legal framework (including jurisprudence) recognises a fundamental right of access to information.Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information.2 NO 2nd Amendment Art 28(f)
2 The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions.No=0, Partially=1, Yes=22 YES 2(1) and 2(2)
3 3.1 The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law
3.2 The legal framework emphasises the benefits of the right to information?
3.1(Y/N - max 1 point)
3.2 (Y/N - max 1 point)
2 YES 2(2) - seems to cover that ---- Preamble and Art 3




Scope

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4 Everyone (including non-citizens and legal entities) has the right to file requests for information.Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. 2 Partially Art 1(12) and 2(1) - includes legal persons, but limited to Indonesians
5 The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it.Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions.4 YES Art 1(1) - very broad definition
6 Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents).Score 1 point for only documents, 1 point for information2 YES Art 1(1) and 1(2)
7 The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and adminsitration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above.Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc).8 YES 1(3) includes the executive as a whole and the law includes reference to provincial and local bodies and any other agencies whose function relates to organizing the state - comprehensive enough for full points.
8 The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government4 YES 1(3) includes the legislative branch as a whole.
9 The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government4 YES 1(3) includes the judicial branch as a whole.
10 The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). Score 1 point if some, 2 points if all2 YES 1(3)
11 The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). Score 1 point if some bodies, 2 points if all2 YES 1(3)
12 The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. 1 point for public functions, 1 point for public funding 2 Partially 1(3) includes entities receiving public funding or whose main duties relate to organizing the state. I don't think this exactly covers institutions serving a public function - so I'll deduct a point.

Requesting Procedures

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13 Requesters are not required to provide reasons for their requests.Y/N answer 0 or 2 points2 NO No - 4(3)
14 Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery).Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc.2 YES 22(2) - requires only name, address and description of info.
15 There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law.Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. 2 YES Art 22 - Requests can be submitted in writing or otherwise.
16 Public officials are required provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. Score 1 point for help in formulation and 1 point for clarification procedures2 NO
17     Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled.Score Yes=2 point, No=02 NO
18 Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working daysScore 1 point for receipt, 1 point for max 5 working days2 YES Art 22(4)
19 Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held.Score: 1 point for information not held, 1 for referrals or 2 for transfers2 Partially 22(7) - requirement for notification.
20 Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record).Score: 2 points for Yes, only 1 point if some limitations2 NO
21 Public authorities are required to respond to requests as soon as possible.Score: No=0, Yes=2 points 2 NO Not mentioned.
22 There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication).Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less.2 YES 22(7) "(7) No later than 10 (ten) working days from the receipt of the request, the Public Agency concerned is obliged to submit a written notice that contains: a. the required information for which he/she is authorized or otherwise; <...>" 10 working days
23 There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension.---2 YES 22(8) - the language also seems to suggest that an explanation be provided, but this is unclear due to issues with the translation.
24 It is free to file requests.Score: No=0, Yes=2 points2 YES
25 There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and a certain initial number of pages (at least 20) are provided for free. Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional2 NO
26   There are fee waivers for impecunious requesters ---2 NO
27 There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. Score: No=0, Yes=2 points2 NO Art 5 mentions some restrictions, though their scope and extent are unclear. Art 51 fine for misuse of information reinforces this.


Exceptions

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28 The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict.Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. 4 NO 17(j) allows other laws to classify/exempt information. Art 63 reinforces this.
29 The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. It is also permissible to refer requesters to information which is already publicly available, for example online or in published form.Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed10 Partially 6(3)(d) - "information relating to official function" - that smells overly broad to me. 6(3)(e) - "the required Public Information is not within its authority" - it is unclear what this means. 17(I) - the memorandum or letters between the public agencies or among the public agencies that, based on their nature are confidential, except the decision of the Information Commission or the court = overly broad.
30 A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. Score 4 points and then deduct 1 point for each exception which is not subject to the harm test 4 Partially 17(d) - Public Information that if disclosed and supplied to the Public Information Applicant could reveal the natural wealth of Indonesia.
31 There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity.Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory.4 YES 2(4) - and this seems to apply definitively to all exceptions
32 Information must be released as soon as an exception ceases to apply (for example, for after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old.Score 1 point for each2 Partially Art 20 touches upon this, but is far too vague to warrant 2 points.
33 Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information.Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals.2 NO No - the law allows for consent, but does not provide a mechanism for obtaining it.
34 There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted2 Partially 22(7)(b) - but this is not mandatory.
35 When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures.Score Y/N: 1 point for a and 1 point for b2 NO Not mentioned


Appeals

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36 The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less).Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals.2 YES 26(a) seems to allow for internal appeals - 35 and 36 provide a clear enough procedure.
37 Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). 1 for partial, 2 for yes2 YES Art 37
38 The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so they are protected against arbitrary dismissal (procedurally/substantively) once appointed.Score: 1 point for appointment procedure, 1 point for security of tenure2 Partially Art 31 - nominated by president but appointed by parliament. The fact that the agency head is elected by the agency members. 34(1) says the head can only be dismissed on recommendation of the information commission, but the other members can be dismissed by the president. These provide some protection, but fall short of best practices.
39 The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence.Score 1 point for reports to parliament, 1 point for budget approved by parliament2 Partially Art 28(1) - reports to parliament but is responsible to the president. 29(6) does not really have guarantees for financial independence, though he has the ability to request money from parliament.
40 There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise.Score 1 point for not politically connected, 1 point for professional expertise2 Partially 30(1) requires expertise, but no prohibition on political people.
41 The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies.Score 1 point for reviewing classified documents, 1 point for inspection powers2 Partially 27(1) - can review documents, but cannot inspect premises.
42 The decisions of the independent oversight body are binding. Score N=0, Y=2 points2 YES Art 39 - the mediation process is binding, the language of 46 suggests that appeal decisions are also final binding. Art 48 further subjects the decisions are binding - though subject to judicial appeal.
43 In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. 1 for partial, 2 for fully2 YES 46(2) seems to deal with this.
44 Requesters have the right to lodge a judicial appeal.1 for partially, 2 for fully.2 YES 4(4)
45 Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance.1 for free, 1 for no lawyer required. 2 YES No need for a lawyer and no cost according to the Information Commissioner.
46 The grounds for appeal to the oversight body (where applicable, or to the judiciary if no such body exists) are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.).Score 1 point for appealing refusals, additional points for appealing other violations.4 YES 35(1) provides for broad appeal grounds.
47 Clear procedures, including timelines, are in place for dealing with external appeals (oversight/judicial).Score 1 point for clear procedures, 1 point for timelines. 2 Partially There is a timeframe - but 100 working days is too long.
48 In the appeal process (oversight/judicial/) the government bears the burden of demonstrating that it did not operate in breach of the rules.Score Y/N and award 2 points for yes. 2 YES Art 45 seems to establish this.
49 The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better record management)1 for partial, 2 for fully. 2 YES Art 46 seems to grant broad powers.


Sanctions & Proteccions

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50 Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information.Score 1 point for sanctions for underming right, 1 point for destruction of documents 2 YES Art 52 and 53 seem to cover this
51 There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them).Score 1 point for either remedial action or sanctions, 2 points for both 2 Partially Art 52 allows for sanctions.
52 The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law.Score 1 for oversight body, 1 for immunity for others2 NO
53 There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers).Score 2 for strong protections, 1 for moderate protections2 NO Art 54 and 55, by using the word "deliberate" seem to imply a bad faith requirement, but the fact that this is worded as a sanction rather than a protection means I am hesitant to award points for it.


Promotional measures

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54 Public authorities are required to appoint dedicated officials (information officers) or units with a responsibility for ensuring that they comply with their information disclosure obligations.Score Y/N, Y=2 points2 YES 13(1)
55 A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. Score Y/N, Y=2 points2 YES Information commissioner said this was within his purview.
56 Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. Score Y/N, Y=2 points2 NO Not found in the law.
57 A system is in place whereby minimum standards regarding the management of records are set and applied. Score Y/N, Y=2 points2 NO Not found in the law.
58 Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. Score Y/N, Y=2 points2 YES 7(3) hints at this, reinforced by 11(1)(a).
59 Training programs for officials are required Score Y/N, Y=2 points2 NO Not found in the law.
60 Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. Score Y/N, Y=2 points2 YES Art 12
61 A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. Score Y/N, Y=2 points2 YES Art 26(2)(c)