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

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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.

The summary of the UN expert consultation on the human right aspect of PSP is available in the FES website. The questions discussed can be seen here. Meanwhile, the number of feedback to the Independent Expert on the consultation continues to grow. This is the list of feedback.

Among the new feedback, Germany's view is particularly interesting.

Saya kira solusinya kita perbaiki moral melalui agama seluruh pimpinan negara ini. Sekarang ini kan orang tidak takut lagi sama Tuhan. Mereka tetap Sholat lima waktu tetapi korupsinya jalan terus. Kalau mereka ketemu daging babi muntah muntah, tetapi aspal dan pasir masuk perut.

Have a look at this interesting clip:



Same old question.

Let me put it another way.
1. Is education a commodity? You'd probably say no. But hey, why do we need to pay for piano and language courses? They should be freely provided by the state, no?

2. Is health service a commodity? If no, then why do you have to pay your health insurance?

3. Is water a commodity? If no, then why do we need to pay for coca cola, starbucks and all those beverages in Tesco's shelves?

If no water can be commodified, every bartender in this earth will lose their jobs. No one can open a Cafe' because all the drinks should be for free.

Now you probably said: no, because they are "processed". Those who process them added the value of water, and is entitled for their labor. But drinking water should be free.

Now wait a minute here. Aren't drinking water "processed" too? If you ask me to get you a bucket of water from uphill, aren't you supposed to pay me for my work? Those plumbing and water treatment plants need funds too, no? The tap's going have to come from somewhere.

But I agree that in some instances water should be provided for free by the state. In times of emergencies, natural disaster or for people in prison, the state should provide them with adequate and safe water. Also for those who can't afford to pay it. Subsidy measures should be available, or payment in arrears facility, or solidarity tariffs.

But we cannot say that water entirely cannot be commodified. Humans are not commodities, that I fully agree, both morally and legally. Sex should not be a commodity too, at least, morally. But some people think it differently. As such there are differences of opinion on whether the commodification of sex should be prohibited by the state.

That human is not a commodity is universal. But whether water is a commodity or not is highly contextual. It depends on what sort of water and in which situation.

The Indonesian Attorney General Office has started to investigate the allegation of corruption in the water sector. The amount money involved is 1 billion IDR. The project, which is fully funded by Makassar's regional budget is supposed to improve Makassar city's water supply. Read more (in Bahasa)

There is an interesting op-ed in today's Jakarta Post about Water Resources. The author argues:

There are three main reasons for the emergence of shadow users and the disappearance of water from the water table.

1. First, on face value, unlike countries that face water scarcity, Indonesia has abundant and easily accessible water resources.
2. Second, a small handful of non-state actors and activist organizations are not pluralistic by definition. These actors are politically driven, weak and sparse. Promoting a consensus based pluralistic dialogue and discourse is not their main agenda.
3. Third, both at the national and local levels, there are gaps in linking public policy-making with regulatory frameworks.