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THAILAND: A CASE STUDY IN THE INTERRELATIONSHIP BETWEEN FREEDOM OF INFORMATION (FOI) AND PRIVACY Chungtong Opassiriwit Contents 1. Constitution of the Kingdom of Thailand, B.E. 2540 (1997) Thailand Constitution (1997) has define principle to protect people right to know and Privacy as mention in the constitution 1.1 A persons family rights, dignity, reputation or the
right of privacy shall be protected. 1.2 A person shall have the right to get access to public information in possession of a State agency, State enterprise or local government organization, unless the disclosure of such information shall affect the security of the State, public safety or interests of other persons which shall be protected as provided by law. (Section 58) 1.3 A person shall have the right to receive information,
explanation and reason from a State agency, State enterprise or local
government organization before permission is given for the operation of
any project or activity which may affect the quality of the environment,
health and sanitary conditions, the quality of life or any other material
interest concerning him or her (section 59) 2. Official information Act (OIA), B.E. 2540 (1997) The official information Act (1997) of Thailand has four important objectives. 2.1 To ensure people's right to know state agency information
in order to : 2.2 To define clearly what kind of official information may not Subject to Disclosure 2.3 To protect the Personal information which possess
or control by 2.4 To secure Historical information 3.2 State agency 4.1 A State agency shall at least publish the following
official information in the Government Gazette: (OIA, section 7 Paragraph
one) A State agency shall, for dissemination purpose, compile and make available the information under paragraph one for sale, disposal or distribution at its office as it thinks fit. 4.2 Make available at least the following official information
for public inspection: (OIA, section9 Paragraph one) 4.3 Provide information to individual request: We can see that most of the official information is subject to disclose while only few is declared as an exemption. According to the Official Information Act, some information, which is not subject to disclosure, is described as follows 5.1 Official information which may jeopardize the Royal
Institution shall not be disclosed. (OIA, section 14) An order prohibiting the disclosure of official information
may be issued subject to any condition whatsoever, but there shall also
be stated therein the type of information and the reasons for non-disclosure.
It shall be deemed that the issuance of an order disclosing official information
is the exclusive discretion of State officials in consecutive levels of
command; provided that, a person who makes a request for the information
may appeal to the Information Disclosure Tribunal as provided in the Act.
(OIA, section 15 Paragraph two) 6.1 A State agency shall take the following actions with
regard to the provision of a personal information system: In the case where the personal information is dispatched to any place which, in consequence thereof, may become known to general members of the public, a State agency must notify the person who is the subject thereof, unless it is carried out in conformity with the ordinary nature of the use of the information (OIA, section 23 paragraph three) 6.2 A State agency shall not disclose personal information
in its control to other State agencies or other persons without prior
or immediate consent given in writing by the person who is the subject
thereof except for the disclosure in the following circumstances; (OIA,
section 24 paragraph one) 6.3 A person shall have the right to get access to personal information relating to him. When such person makes a request in writing, the State agency in control of such information shall allow him or his authorized representative to inspect or obtain a copy of the same. In the case where there exists a reasonable ground to disclose a medical report relating to any person, state officials may disclose it only to doctors entrusted by such person. A person who considers that any part of personal information relating to him is incorrect shall have the right to make a request in writing to the State agency in control of such information to correct, alter or delete that part of information. The State agency shall consider the request and notify its result to such person without delay. In the case where the State agency fails to correct,
alter or delete the information pursuant to the request, such person shall
have the right to appeal to the Information Disclosure Tribunal within
thirty days as from the date of the receipt of the notification of the
order refusing to correct, alter or delete the same. The appeal shall
be submitted through the Board and, in any case, the person who is the
subject of the information shall have the right to require the State official
to attach his request to the relevant part of the information. 7.1 Complaint case Any person, who considers that a State agency fails to publish the information under section 7, fails to make the information available for public inspection under section 9, fails to provide him with the information under section 11, violates or fails to comply with this Act, ordeals in performing its duties, or considers that he does not receive convenience without reasonable cause, is entitled to lodge a complaint with the Board, (OIA, section 13) In the case where a State agency denies that there is such information as requested, if the person so requesting does not believe that it is true and lodges a complaint with the Board (Commission) the Board shall have the power to inspect the relevant official information and notify the complainant of the result of the inspection. The State agency or State official shall allow the Board or the person entrusted by the Board to inspect the information which is in its or his possession, whether or not it is the information permitted to be disclosed. (OIA, section 33) 7.2 Appeal case There shall be information Disclosure Tribunals in appropriate fields, which are appointed by the Council of Ministers upon the recommendation of the Board, having the power and duty to consider and decide an appeal against an order prohibiting the disclosure of information. (OIA, section 35) The appointment of Information Disclosure Tribunals under paragraph one shall be made on the basis of the specialized fields of the official information, such as the fields of national security, national economy and finance or law enforcement. (OIA, section 35) The decision of an Information Disclosure Tribunal shall
be deemed final. In making the decision, an observation may be made to
the Board with regard to appropriate action to be taken by the State agency
concerned in any particular case. (OIA, section 37) Background The Parents of a student, who failed the entrance examination for the Demonstration School of Kasetsart University, petitioned the school to disclose the examination result of her daughter and other students. After the school denied releasing, the parents then submitted the appeal to the Office of the Official Information Commission (OIC) to force the school to disclose the requested information. The case is also concerned with the issue of personal information intervention. As the school claimed that the score and answer sheets were categorized as personal information and couldn't be revealed to anyone else apart from the owner. The parents of other students filed a lawsuit The Decision The Information Disclosure Tribunals for Social Information (IDT) ruled that the parents has the rights to see the examination result, but the school, however, declined to comply with the IDT's decision. The school claimed they had to consult the council of State , the Attorney General's Office, and the Ministry of University Affairs first, in order to have guided procedures for disclosing examination result, which should be set up as a new standard to cope with similar request in the future. Finally, the OIC confirmed the IDT's order and enforced
the disclosure, followed by the cabinet's resolution asserting that state
agency had to comply with the OIC's recommendations and the IDT's order;
otherwise they should be punished by disciplinary regulation. Background Journalists and non-government organization (NGOs) petitioned the office of the Counter Corruption Commission (CCC) to disclose the investigative result report of the corruption in the Ministry of Public Health. The CCC denied disclosing the requested documents; petitioners then submitted the appeal to the office of the official Information Commission (OIC.) The disclosure of investigative report of the CCC, concerning the corruption scandal in purchasing drug and health materials in the Ministry of Public Health, was criticized as the might hamper the efficiency of law enforcement. It was argued that the report was protected by the CCC's regulations against disclosure and that concerned witness who gave investigative documents intended their names and those information to be kept undisclosed. The Decision The Information Disclosure Tribunals for Social Information (IDT) ruled that the investigation was finalized. Those involved officials were disciplinarily punished and politicians were forwarded to criminal investigation. The IDT considered that the investigative report is official information, and the case has great impact on pubic interest and the disclosure could bring about positive attitude to the national administration, in particular to the CCC itself. The IDT thus decided that the CCC disclosed the requested information. As a matter of fact, the witnesses in this case were high position executives; their activities as witnesses in this case were official duty of which will be protected by law. Though there is a regulation of the CCC against the disclosure of such information of the argument of witness safety, the discretion of the IDT in this case was weighted over by public interest. As the scandal involved a large amount of national budget, committed by the height-ranking officials, involving high executive members, both government officials and politicians, The case was very sensitive, as it is the corruption of purchasing drugs, which affect basic services to the people, in particular, the poor. 8.3 Case : The Business Contract (Decision No.E2/1998) Journalists requested to the Financial Sector Restructuring Authority (FRA) to release the Purchasing Contract related to the Bid for sales of the Financial Sector Debits. The FRA refused to release such requested information claiming that the documents were business contracts between the FRA and private company and such a commercial deal cannot be disclosed. The Decision After considering this appeal case, the Information Disclosure Tribunal (IDT) for Economic Information ruled the FRA to release the contract with exceptional conditions for Initial Purchase Price and Sharing Agreement to be released after the bid date. Those documents contain personal information, such as amount and information, which are personal debts, should be privacy protected. 8.4 Case : Application documents for constructing a river
pier (Decision No. S 17/2000) The Decision The Information Disclosure Tribunal (IDT) for Social
Information ruled that the documents are not the Personal Data but it
concern the government permission procedure. And the disclosure will benefit
to public and promote confident to the Authority concern. The Official Information Act is a new law, knowledge and understanding in the Freedom of Information, and Privacy Protection issue, in particular, is new for Thailand. During the first two years of the Information act implementation, there was some implication of misunderstanding of the law substance, and many cases reflected the tension between the matter of freedom of access to information and privacy protection, since these two issues are closely related. On the academic perception, many scholars propose the two issuers to be separately considered while some claim that close interrelationship as two sides of the coin. To the Thailand experience from 1992 -2001, according to the Act, in the matter of information disclosure, discretion of state officials must be made with regards to the factors of State duties, public interests, and private interest. This is also confirmed by the constitution, which stipulated information causing damage to a person, dignity, reputation or privacy must be prohibited. Therefore, freedom of information and privacy protection could be persistently found on each other's boundary and become the matter of how to balance these two components.
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