In Ofcom v Information Commissioner, the Information Tribunal held that radio frequency waves from a BTS antenna qualifies as emission under EIR, which as a consequence, does not qualify for protection from disclosure, even if the information is deemed confidential. The discussion below is hilarious:

 

Mr Facenna, Counsel for T-Mobile, accepted that radio frequency waves may correctly be characterised as both "energy" and "radiation". He also accepted that it was a correct use of the English language to say that they were “emitted” from a base station. However, he argued that they nevertheless did not constitute "emissions" for the purposes of the EIR because the circumstances in which the EIR came into existence require the word to be given a particularly narrow meaning. Those circumstances were that EIR implemented the Directive which included, in its fifth recital, a statement that it was itself intended to be consistent with the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ("the Aarhus Convention ").

Mr Facenna accepted that, even if we accepted that base station radiation should not be treated as "emissions", he was still faced with the presence of the words "energy" and "radiation" in subparagraph (b) of the definition. However, he argued that these two "factors" do not affect, and are not likely to affect, any of the elements of the environment referred to in subparagraph (a). At one stage this proposition seemed to be leading Mr Facenna and Mr Choudhury, Counsel for the Information Commissioner, into a debate on the scientific properties of radio waves. It was agreed that they are capable of having an effect on solid matter they come into contact with (for example, the agitation of the molecules of a piece of meat by microwaves for the purpose of cooking). However, it was debated whether or not they have any effect on the air through which they pass en route to such matter. We do not feel qualified to express any view on whether the less dense molecular structure of air results in all radio wave frequencies passing through it with no effect at all on individual molecules. We do not believe that it is necessary for us to do so. The definition is not intended to set out a scientific test and its words should be given their plain and natural meaning. On that basis we believe that radio wave emissions that pass through the atmosphere from a base station to any solid component of the natural world are likely to affect one or more of the elements listed in subparagraph (a) or the…

For all of these reasons we conclude that "emissions" in both subparagraph (b) of the definition of environmental information and regulation 12(9) should be given its plain and natural meaning and not the artificially narrow one set out in the IPPC Directive. As we have indicated it is accepted, on that basis, that radio wave radiation emanating from a base station is an emission.

 

It’s really nice to spice up the court with some Planck/Maxwell wave/particle duality

PEW has just released its latest survey on transparency of governance in local communities. The result: if the government shares information well, they also feel good about their civic institutions. Following is the summary of PEW's findings (see p.2):

• Those who think local government does well in sharing information are also more likely to be satisfied with other parts of civic life such as the overall quality of their community and the performance of government and other institutions, as well as the ability of the entire information environment in their community to give them the information that matters.
• Broadband users are sometimes less satisfied than others with community life. That raises the possibility that upgrades in a local information system might produce more critical, activist citizens.
• Social media like Facebook and Twitter are emerging as key parts of the civic landscape and mobile connectivity is beginning to affect people’s interactions with civic life. Some 32% of the internet users across the three communities get local news from social networking site; 19% from blogs; 7% from Twitter. And 32% post updates and local news on their social networking sites.

 

What do whistleblowers, transparency fighters, file sharing activists and defectors have in common? They may all possess the same personality trait: a rejection of authority. According to Esther Dyson in project syndicate:

 

 

But you probably need to be a bit weird and callous to devote your life to transparency for others. Mikhail Khodorkovsky, the imprisoned ex-CEO of what was Russia's largest oil company, is another example of a flawed, uncompromising person who challenged the flawed people in power and their unaccountability. Such people do not die for our sins; Rather, they sin on our behalf, so that we may live comfortably while they afflict the authorities at great personal risk and in disregard of (authorities' interpretation of) the law and sometimes even ethics.

Information is always used to impose and safeguard an established authority. Because knowledge is power, only the priest are allowed to read the scriptures. This is evident in the ancient Mayan civilization who restricts the ability of reading and writing into a small circle of elite class. The spread of the printing press in the European history allows the Bible to be studied by commoners and along with Luther’s writings, paves the way to protestanism, ending the Catholic church monopoly to human salvation in the Christian world. 
Within the psyche of these leakers – whistleblowers, journalists, spies-- whatever you wish to call them, is the hidden desire to achieve some sort of equilibrium and a resentment to authority. These people are anarchists.

The Jakarta Post reported several months ago, that the State Audit agency (BPK) cease the publication of companies financial audit report due to blackmailing concerns. According to the article:

 

 

The Supreme Audit Agency (BPK) has stopped publishing online reports, to the dismay of freedom of information proponents. The agency said the state institutions it audited had complained that it was “too open”. BPK provided reports through the Internet even before the 2008 Law on Freedom of Information was implemented this year.

….

But reports of blackmail prompted the agency to close the online access, requiring information seekers to submit official letters to obtain a hard copy of reports. A public relations staffer of BPK, who requested anonymity, said, “The state institutions have been complaining that we were too open.” “[The institutions] said the reports had been used to blackmail them,” the source said recently.

Why fear blackmail if you are right? One of the possible reason is the corruption witch-hunt. The eradication of corruption in Indonesia is somewhat turning into a witch-hunt (a colleague in the UK is researching this for his Ph.D in Anthropology). Dealing with KPK and the Prossecutor office is cumbersome. This provides a disincentive for being transparent.

How do we handle this? Well, we need to provide more incentive for being more transparent. Transparency should not be used only for displaying the rotten apples of an organization, but also in highlighting the hidden jewels. This is what expert called a ‘targetted transparency’, which are conducted through, among other, publication of performance target benchmarked against certain a set of indicators.

 
Img source:mediaindonesia.com

 

In the wake of wikileaks, the Australian government recently issued a booklet titled “The Insider’s Threat to Business: A Personnel Security Handbook”. The booklet elaborate precautionary approaches that a business organization may employ in order to prevent the leak of confidential business information.

 

One of the legal method to prevent leaks (this is not explained in the booklet) is through the signing of employee confidentiality agreement. My research however indicates that the power of confidentiality agreements differs across jurisdiction. In the common law jurisdiction, confidentiality carries more weight due to the operation of obligation of confidence under the English equity law. The obligation of confidence protect the imparting of information in a ‘trust’ environment, such as between a doctor and its patient, or between a employer and employee. As such, the obligation may be enforced irrespective of agreement.

 

This is not the situation in continental legal system. I have yet to find any obligation to keep secret, independently of an agreement. Hence, an employee signing confidentiality agreement in a continental jurisdiction will be bound only to the extent of the agreement. When he decide to disclose the information one day, it would amount simply to a breach of (an employment) contract.

Determination of access level and the use of Digital Rights Management are therefore the most appropriate precaution. You will find some details about this in the booklet.

 

I contributed a paper about the transparency agenda in water utilities regulation and the role of Freedom of Information Law for the next edition of the Journal of Water Law. The case studies are England and Indonesia. The paper is quite relevant for the situation in Indonesia as the Freedom of Information Law has just been recently enacted and not so many literature is available. This is the content of the forthcoming Journal of Water Law which you might find interesting:

 

CONTENTS

 

Preface

Promoting water (law) for all Addressing the world’s water problems – a focus

on international and national water law and the challenges of an integrated approach

PATRICIA WOUTERS, SARAH HENDRY

 

International Water Law

Reframing the water security dialogue

DAN TARLOCK, PATRICIA WOUTERS

 

Introducing an analytical framework for water security: a platform for the refinement of

international water law BJØRN-OLIVER MAGSIG

 

The principle of good faith in the Argentina-Uruguay pulp mills dispute

TERESA LIGUORI

 

Examining the thresholds of harm for international watercourses in the Canada-US

context: would a mining development in the Flathead River watershed violate the Boundary

Waters Treaty?

MICHAEL AZULAY

 

The concepts of equitable utilization, no significant harm and benefit sharing under

the Nile River Basin Cooperative Framework Agreement: some highlights on theory and

practice

MUSA MOHAMMED ABSENO

International water law in Central Asia: commitments, compliance and beyond

DINARA ZIGANSHINA

 

National Water Law

Protection of foreign investment and the implications for regulation of water services and

resources: challenges for investment arbitration
ANA MARIA DAZA VARGAS

Responding to the ‘water crisis’: the complementary roles of water governance and

the human right to water
HILARY J GRIMES

The transparency agenda in water utilities regulation and the role of freedom of

information: England and Jakarta case studies

MOHAMAD MOVA AL ‘AFGHANI

 

Valuing water in law: how can Indigenous cultural values be reconciled with Australia’s

water law in order to strengthen Indigenous water rights?

TRAN TRAN

An analytical framework for legal regimes applicable to freshwater ecosystems

HUGO TREMBLAY

Bridging the water law, policy, science interface: flood risk management in Scotland

CHRIS SPRAY, TOM BALL, JOSSELIN ROUILLARD


Related Posts:
Transparency in Water Services
Indonesian Water Services Suffering from a Lack of Governance
Supreme Court Decision on Water Monopoly in Batam
Missing water and shadow users
14 Disturbing Facts about Jakarta's Water
Tomorrow, the Freedom of Information Law is in force!
Three ways for your business to be implicated by the new Indonesian freedom of information law
Where to complain for bad water services – a comparison
Jakarta’s water crisis, whose fault?

Human Right  Aspects of Private Sector Participation in the Water Sector
Is water a commodity or human rights?
The human right to water is not a property right
Why busy with the right to water instead of governance
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector

Separately, Gayus Lumbuun from the Indonesian Democratic Party of Struggle (PDI-P) said that the House leaders had to explain what really happened on the documents which should have been completely sent to the KPK.

Deputy House speaker Priyo Budi Santoso from the Golkar Party said he too was surprised by the fact that the KPK had yet to receive all the necessary documents and that the House leaders would investigate into the issue.

Happy Freedom of Information Law Day!!!

Today, Indonesia embraces the new era of transparency by the entry into force of the FoI Law. This post will discuss exiting web tools used to enforce FoI regime around the world. The internet can be used to make transparency system more transparent! Here is how:

1. United Kingdom -- Whatdotheyknow.com 

Whatdotheyknow is quite an ingenious web portal, designed to make transparency request transparent. This way, we will all know which government branches are lagging behind in processing their FoI. I've tried this system before and it works just perfectly. Have a look at my FoI request here.

2. United States -- Thisweknow.org

Thisweknow.org acts as a database provider of the data in the US Government. For example, I want to know which factory in Nevada releases mercury. And here's the search result.

3. United States -- Openmeetings.org

The US has several kinds of transparency laws. They have the Freedom of Information Act (as old as 1966) and they also have "Sunshine Laws". What are the differences? Well, the sunshine laws obligate public meetings for public officials. The law basically states that meetings for public services should not be held in secrecy, it should be held 'in the sunlight'. Sunlight is the best disinfectant, Justice Brandeis said, remember?

So, openmeetings.org provides the software to keep record of those meetings. Have a look.

In the next posts, I will give you and update of another tools. Stay tune!

Let's not forget that tomorrow, Law No. 14 Year 2008 on the Openness of Public Information (FoI Law) will be in full force. What it means is that you can now request any information to government agencies, NGOs and State Owned Enterprises.

To get a glimpse on how the law looks like, read my article here. Bear in mind that although you are in the private sector, there is still a risk that you might be covered by the FoI, if:

1. Your business is defined as a 'public body' under the Freedom of Information Law
2. You are engaged in a contract with the government
3. You submit compliance report or any other data to government agencies (and some one else has an interest on that)

To understand more on how FoI Law will affect your business, read this article. Search through the transparency label of this blog posts to know more detail.

The official announcement from the Ministry of Information can be found here (in Bahasa). It says nothing much though, only repeatedly citing the articles of the FoI Law. However, it does say that the understanding of 'public body' may expand to non governmental institutions, thereby supporting my argument above  that purely private sectors would be implicated.

If you have any question, upon which these links is unable to answer, email me at movanet(at)gmail.com, or, leave a comment below.

1. Your business is defined as a 'public body' under the Freedom of Information Law
2. You are engaged in a contract with the government
3. You submit compliance report or any other data to government agencies (and some one else has an interest on that)

I discussed this in detail, in my recent op-ed.

Business implications of the freedom of information law

Mohamad Mova Al Afghani, Dundee, UK | Mon, 04/26/2010 9:02 AM | Opinion

A | A | A |

The entry into force of the Freedom of Information (FoI) Law in Indonesia will have significant impact not only on government operation but also business. Business could either benefit, or in another circumstances, be harmed, by information disclosure through the FoI regime.

FoI’s initial intention is in creating transparency of government. The reasoning was mainly political, that is, that transparency is one of the central prerequisits of democracy. Recent findings in the economics of information added the justifications for transparency.

The transparency framework may help reduce the risk of market failure by lowering information asymmetry between market actors. Development in the economics of corruption also strengthened the arguments for transparency.

Transparency, the research suggests, not only increases the likelihood of corruption detection but also the cost for the perpetrators to conceal their corruption, thereby deterring them from corrupt behavior.

Business can benefit from FoI. Information behind allegedly unfair tenders, project opportunities or government policies that otherwise cannot be obtained unless a person has a close connection to government officials can now be retrieved through formal procedures.

Thus, FoI, to a certain extent, can contribute to the creation of a level playing field between businesses, which is crucial for efficient market competition to exist.

However, FoI could also mean that businesses are more exposed than before.

Government was the central theme for every FoI regime around the world. But today, this is not entirely true. The spread of the “new public management ideology” gave way to public-private partnership, private finance initiative, outsourcing and other arrangements involving the participation of the private sector in public services. Thus, if in the past it is the state and its government who holds real power — and therefore must be held accountable — today, in many respects, it is the private sector that does.

Hence, the focus of FoI around the world is shifting, not only scrutinizing the state and its government as it were in the past, but also the private sector.

There are three ways in which business information can be revealed through the Indonesian FoI. First, is through the definition of the “public body”, second is through submission to government agencies and third, through a contractual relation with the government.

In other countries, the FoI holds the private sector accountable through several legislative techniques. One of the techniques refrain from defining “public bodies” (entities in which the FoI regime would be applicable) in the FoI Act, but provide it through a list in a secondary or tertiary legislation instead. Corporations which deal with the government in public services could be included in the list.

With this technique, it is much easier to modify the list according to the needs. For example, if tomorrow a water company is privatized, the government can include the company into the list for a period of time as long as they engage in public services.

Our FoI does not follow such scheme but chooses to define “public bodies” instead. Under the FoI law “public bodies” are defined, as either a government entity or other entities in which its primary task is related to the management of the state and is funded through the state or regional budgets or, an NGO receiving full or partial amounts of the state budget, public contribution or foreign funds. It is clear that state owned enterprises is a public body for the purpose of the FoI.

What is not really clear is the definition of NGOs under the last category. Since there is no requirement that restricts the understanding of an NGO to a non-profit entity, business entities can also be defined as “non-governmental”.

Other than being defined as a “public body” as discussed above, there are two other ways for a business to fall under an FoI regime. The second is through government contracts.

The FoI law mandates that any contracts between the government and a third party should be published. “Contracts with third parties” is a broad formulation.

So far, there is no clarity if all details of a contract including its annexes should also be published, although one could argue that the exemption clauses could apply.

Third is through the submission of reports to government agencies. Businesses regularly submit compliance reports. As soon as the data is transferred to the government, the information will fall under the FoI regime.

The government agents will be obliged to disclose any information after a request is made, unless the exemption clause under the FoI law applies.

Data with such environmental information can generally be disclosed, while data related to company financials submitted to capital market supervisory agencies or the tax office can be exempted by other legislation.

It is important to note however, that this exemption is not absolute. This data can still be disclosed if there is public interest.

The protection given to businesses under the FoI law is not clear, so far. In other countries, there is generally, an exemption clause for “commercial information”.

This type of clause protects all sorts of commercial interests which may be harmed through FoI disclosure.

Some FoI legislations around the world also impose an obligation on public bodies to consult third parties that are affected before a disclosure is made, and create a legal standing for them in disclosure cases before information commissions or the courts.

In common law jurisdictions, normally there is a clause in its FoIs, exempting information provided “in confidence” from disclosure. This is the sort of information submitted to public bodies on a trust-basis, such as those protecting the relation between a lawyer and its clients or a doctor with its patient, or a company with a regulator. Our FoI does not have these kinds of exemptions.

Our FoI law does contain a clause which protects information related to intellectual property rights and information in which disclosure would undermine “fair business competition”.

For the business society however, this clause can be vague. Most intellectual property rights (IPR) such as patents and copyrights follow transparency principles. Only a minority of the IPRs such as trade secrets are designed to thrive under an opaque environment.

The prevention of disclosure for the purpose of protecting “fair business competition” can be founded in theory, but may be difficult in practice. It is difficult to be practiced because it requires public bodies and information commissions to evaluate if a certain disclosure will distort competition.

Such case may require the determination of market segments where such information is the commodity. I am not confident that public bodies, information commissions and the courts are up to the task.

Due to these vague clauses under the FoI law, the guidelines and implementing regulation by which these clauses are to be interpreted and applied, must be drafted openly with a participatory approach, taking into account the views of the civil society and the business community altogether.


The writer is the founder of the Center for Law Information.

We've been talking about FoI Law for quite some time in this blog, but I have yet to provide you with a link to the Indonesian FoI. Click here to see Law 14 Year 2008 on the Openness of Public Information (yep, that's the long name).

Right2info.org provide a compilation of links to world's FoIs. Have a look at it here.