A policy for government secrets
One core aspect of the Thai state that annoys people of all political stripes is its secrecy. Despite the promulgation of the Official Information Act in 1997 aimed at promoting the “right to know”, state organisations in Thailand remain riddled with secrecy. A prime example is the rice-pledging scheme.
Most developed countries have a law governing access to public information. In most cases, the law stipulates public information must be disclosed with the exception of matters deemed confidential. In Thailand, this logic is reversed. The norm is that public information is to be kept a secret unless ordered to be disclosed. It should be noted the Thai name of the law actually translates into “State Information Act”, implying the information belongs to the state rather than the public.
Research on public information by Deunden Nikomborirak and Tippatrai Saelawong found the public information law encourages public officials to conceal rather than
disclose information. For starters, the law does not specify the penalty for ignoring disclosure orders by the Official Information Commission (OIC) but only for disclosing information exempted from a disclosure requirement. As a result, state officials choose to protect themselves by concealing all information, and
only disclose when ordered to do so by the OIC.
Because the law does not prescribe disclosure procedures for departments, ministries and other state agencies, the onus of defending state transparency is entirely on the OIC, the state agency that takes in citizen complaints and sends out disclosure orders.
This problem can be combated by designing a new system of incentives. Generally, there are two ways to encourage people, the carrot and the stick. For the carrot, performance and reward indicators can be tied to the amount of effort a state agency puts into promoting transparency. For example, when the Ministry of Finance conducts a state-enterprise performance evaluation, it can give a much greater weight to the indicator that measures the level of compliance to the official information law. As for the stick, state employees who refuse to comply with disclosure orders from the OIC should be subject to a penalty.
The other problem is excessive discretion on the part of the state agency. Although the Official Information Act specifies which type of information must be disclosed, it provides broad exemptions for information that concerns “national security”, “private commercial interests”, and “personal information”.
Since the law does not provide a guideline on how such exemptions may be applied to withhold information, state officials can simply claim that the requested information concerns “national security” or “commercial secrets” without further justification. Often times, “national security” really means the security of the agency that uses the term, rather than the nation. For instance, when journalists tried to investigate the military’s questionable purchases of fraudulent bomb detectors, the request for access to the accounting details was refused on the ground that it was a matter of “national security”.
In this respect, the discretion of state agencies in interpreting the scope of the exemption should be minimised are even disallowed. For example, in the United States, information that can be withheld from public on the basis of national security must have been classified as “confidential” beforehand. State agencies cannot claim that a document is “confidential” upon receiving a request for access in order to avoid disclosure.
Sometimes there is a conflict between the protection of personal or commercial information and public interest. In such a case, one method that could be adopted is the cost and benefit analysis. The UK Information Commissioner’s Office determines whether an item should be confidential by weighing the disclosure’s public benefit against the cost borne by the businesses or individuals whose information was disclosed. This is known as the “harm test”.
It should also be noted that most public information acts stipulate clearly that public interest trumps private interest. For example, the public-funded channel BBC (British Broadcasting Corporation) was ordered to disclose information about its contract with two
private companies regarding its TV licensing operation, which includes the fee structure, the profit margin and the contract termination date.
Although the British OIC reckoned that the information requested is “private information” that warranted protection from public disclosure, it ordered a disclosure nevertheless as transparency of the public entity overwhelmed the benefits of protecting the private entities according to the harm test conducted.
The impact of secrecy is far-reaching, fuelling not just bad policies or corruption, but also deep social divide. Just as anti-government protesters are frustrated by the government’s lack of transparency in spending public money, the pro-government protesters are angry over how it could not get state agencies to spill the facts related to the 2010 military crackdown that resulted in over 90 deaths.
Ultimately, many Thai state agencies do not believe citizens should have the power to scrutinise them. This needs to be changed. Redesigning the incentive system and limiting state discretion would help promote the idea of the “right to know” that originally gave birth to the Official Information Act. It would also heighten a culture of public scrutiny by making scrutiny an activity that the media and the public can easily do. Only then the long fight against corruption in this country can stand a chance.
Deunden Nikomborirak, PhD, is Research Director for Economic Governance, Thailand Development Research Institute. Peeradej Tanruangporn is a research communication officer at TDRI. Policy analyses from TDRI appear in the Bangkok Post on alternate Wednesdays.