FoI commission needs strengthening

Saturday, July 27, 2013

Mohamad Mova Al’Afghani, Bogor, West Java | Opinion (The Jakarta Post) | Tue, July 16 2013 

The House of Representatives has elected seven members to the National Freedom of Information (FoI) Commission who will serve for the next four years. 

The role of the commission is crucial in the reform process as it is mandated by the Freedom of Information Law No. 14/2008 to preside over disputes between the public and public bodies concerning access to information. 

After four years, what have we learned so far from the commission? 

First of all, the commission still lacks structural independence. Although Law No. 14/2008 stipulates that the commission is an “independent” body, it financially relies on the Communications and Information Ministry. In practice, the commission is a “task force” under the ministry, because it can only propose a budget through the 
Ministry’s secretariat-general. 

Worse, the commission has no liberty to appoint and recruit its own administrative officers. The commission staff members are employees of the ministry. These disadvantages will adversely impact on the performance of the commission’s employees.

In regulation theories, budgetary and employment issues are the two key determinants of independence. A regulatory body is said to be truly independent from the executive if its budget and human resources administration are not dependent on executive entities. 

The rationale for promoting the commission’s independence is because it hears disputes between the public and the government. 

Thus, the commission is expected to be neutral, fair and able to resist any pressure from the government side. But due to the lack of independence on budgetary and employment matters, the commission is prone to influence and pressure from the executive. 

The pressure may not be in the form of repression, but snail-paced approval of budgets or limited manpower support. The issue of independence is becoming more important with the 2014 elections drawing near. It is very likely that public requests for information related to political parties’ budget and election disputes will rise. 

Second, there is a need to uphold the personal integrity of the FoI commissioners. The commission has enacted a “code of ethics” but it short stops of regulating conflicts of interest. In advanced jurisdictions, conflicts of interest are not only regulated but also made transparent. 

Independent bodies in advanced jurisdictions publish a register of their members’ past, present and potential conflicts of interest and include a list of past employment, political-party affiliation, share ownership, directorship and 
consulting projects. 

This register of interest is then published on the institution’s website. This sort of transparency mechanism will prevent conflicts of interest from occurring as disputants will know beforehand and can raise objections to the composition of a dispute panel.

Third, there has to be value for money in bureaucracy. We need to be constantly reminded that transparency comes at a price despite the benefits it provides. FoI in the UK costs around £35.5 million (US$53.4) per year (2005) while in the US it costs US$382 million per year (2009). Such expenditure includes both the cost of compliance by public bodies and the operational cost of the FoI commission.

Just as the efficiency of courts is evaluated, a FoI commission can be evaluated in terms of its case-handling. The part of the case-flow where adjudication and deliberation takes places is not a subject for evaluation since judges and arbitrators can take a long time to deliberate a single case and the length of deliberation is oftentimes not an indication of a measure of justice. 

Nevertheless, this can still be used as an indicator or an estimate of efficiency in case handling. 

However, the genuinely administrative part of a dispute-settlement body can always be subjected to efficiency scrutiny. 

This includes, among other things, the process of filing or case registration, notifications to disputants, determination of panel members and inter-institutional cooperation for execution. A justice system can be said to be efficient if these administrative processes are not time consuming. 

It is possible to benchmark and rate quasi-judicial bodies such as the FoI commission (including the election commission, or the competition commission in this respect) in terms of their administrative efficiency. We can then see — on average — how much time is required by each of these commissions for each case, notwithstanding the complexity and differences in the nature of the disputes settled by them.

Fourth and finally, there is a need to enhance the quality of decisions or recommendations rendered by the commission. 

While dispute resolution is the primary duty of the commission, promotion and other forms of public relations activities are only secondary to this. One essential skill imperative for the fulfillment of this core duty is the skill of case analysis and writing judgments. 

FoI commissioners must have strong analytical abilities and be conversant in the art of legal hermeneutics. They must be able to interpret abstract legal notions such as “the public interest” in concrete cases. Such skills are not easy because case-law has not really developed in our legal system. 

Thus, the commissioner may not find a lot on “public interest” through case-law and as a consequence they may be required to develop their own interpretations.

What is important for a commissioner is not to render politically correct judgments, such as those that are in favor of transparency merely because it is more popular in civil society. What needs to be done is to arrive at the right and just decision. 

When internal capacity is lacking, a FoI commissioner should then hire experts in order to carry out the research in difficult cases in which precedence is lacking. There is a developing discipline of “comparative FoI” which looks at the norms, policies and practices of FoI in other jurisdictions that could be used as an approach to settle difficult cases.

The writer is a member of the Indonesian FoI Network. He has a PhD in law from the University of Dundee, UK.