Country

Taiwan

Taiwan

Name of law : The Freedom of Government Information Law
First adopted : 2005

Section Max ScoreScore
Right of Access 6 2
Scope 30 21
Requesting procedures 30 9
Exceptions 30 17
Appeals 30 6
Sanctions 8 1
Promotional measures 16 2
TOTAL 150 58

Introduction:
This law is extremely problematic. It is completely devoid of promotional measures, is extremely vague on procedure, and offers only weak and vague sanctions for undermining the right to information. The law also contains a puzzling provision which states that foreigners are only allowed to make requests if ROC nationals are allowed to make requests in their country, a clause which seems to belie the authorities' misunderstanding of the nature of access to information, which should be treated as a fundamental right rather than used as a tool to promote national recognition.
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
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 NO
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 Article 1 Article 1




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 9 - limited to citizens and residents, but includes legal persons. Foreigners are allowed to request info only if ROC nationals can request info in their countries… this is restrictive enough to cost a point.
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 3 - "produces or acquires"
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 Partially No - according to Art 10 (confirmed by expert) you can only ask for specific documents
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 Art 4 - any central or local government agency - this covers all of the executive according to our expert.
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 Partially Art 4 applies to the legislature, but excludes records of inter-party negotiation procedures as well as the minutes of Ad hoc Committees.
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 Partially Art 4 covers the judiciary, but most of the information is excluded according to the “Enforcement Rules of Constitutional Interpretation Procedure Act.” - http://leahahaha.posterous.com/32333849
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 NO No - http://learning.udnjob.com/mag2/hr/storypage.jsp?f_ART_ID=18849
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 Yes - http://www.twmedia.org/filedonwload/ncc/ncc_04.pdf
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 Yes - Art 4

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 Art 10(4)
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 NO Art 10: 1. date of birth, ID number and telephone number of the applicant are all required
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 Partially Procedure is relatively straightforward, and allows requests by mail or electronically, but no oral requests.
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 Partially Art 11 - but only in some instances.
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 YES Yes - People with Disabilities Rights Protection Act
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 NO
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 YES Art 17 provides for referrals, with an explanation to the applicant.
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 No - it is at their discretion how access is to be provided (Art 13)
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 Art 12 "Within fifteen days of receiving the request for go vernment information, the government agency shall determine whether to approve such a request; the time may be extended for no longer than fifteen days if necessary. <...>" 15 days = about 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 Partially Art 12 - maximum extension of 15 additional days, but no requirement for notification.
24 It is free to file requests.Score: No=0, Yes=2 points2 NO No -Art 22
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 Art 22 deals with fees - no limits mentioned.
26   There are fee waivers for impecunious requesters ---2 NO Art 22 - only waivers for scholarly and public interest research.
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 Not mentioned.


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 No - article 2
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 18(1) - 1. Classified by law as national secrets, required to maintain confidentiality or prohibited from provision to the public according to other laws, regulations, or orders. 18(4) - 4. Making available to the public or provision of the information will make difficult or disrupt the purpose of such works, where the government agency acquired or produced such information to enforce the works of supervision, management, investigation or ban (overly broad). 18(8) - cultural heritage.
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 YES
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 Partially A public interest override applies to a few of the exceptions - 18(3), 18(6), 18(7),
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 19 states this, but without clear timelines.
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 YES Art 12
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 YES Art 18
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 Art 16 - no such requirements.


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 Art 20
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 NO
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 NO
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 NO
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 NO
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 NO
42 The decisions of the independent oversight body are binding. Score N=0, Y=2 points2 NO
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 NO
44 Requesters have the right to lodge a judicial appeal.1 for partially, 2 for fully.2 YES Art 20
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 NO
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 Partially Appeals are only for refusals.
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 Procedures are contained in Article 57 to 94 of Administrative Litigation Act
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 NO No - the opposite is true.
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 NO No - there is no such power.


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 Partially Art 23 - but the specifics are vague.
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 NO
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 No such law exists.


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 NO
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 NO No requirement
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 Some departments have done this, but there is no specific requirement,
57 A system is in place whereby minimum standards regarding the management of records are set and applied. Score Y/N, Y=2 points2 YES Art 7
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 NO Not a requirement.
59 Training programs for officials are required Score Y/N, Y=2 points2 NO No such requirement.
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 NO No such requirement.
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 NO No such requirement.