Privacy Law and Policy Reporter
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Chungtong Opassiriwit
This paper was given at an International Symposium on Freedom of Information and Privacy, Auckland, 28 March 2002, organised by the New Zealand Privacy Commissioner, Bruce Slane, and is reproduced here by kind permission of the Commissioner and ,the author. Other papers from the Symposium appeared in (2002) 9(1) PLPR — Associate Editor.
The Constitution of the Kingdom of Thailand (1997) has defined principles to protect the people’s right to know and right to privacy.
A person’s family rights, dignity, reputation or the right of privacy ,shall be protected. The assertion or circulation of a statement or picture in any manner whatsoever to the public, which violates or affects a person’s family rights, dignity, reputation or ,the right of privacy, shall not be made except for the case which in beneficial to the public (s 34).
A person shall have the right to ,get access to public information in possession of a state agency, state enterprise or local government organisation, 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 (s 58).
A person shall have the right to receive information, explanation and reason from a state agency, state enterprise or local government organisation 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 (s 59).
The Official Information Act B.E. 2540 (1997) of Thailand (OIA) has ,four important objectives:
(1) to ensure people’s right to know state agency information in order —
(a) that people can view their opinion and use their political right correctly;
(b) to promote transparent and efficient government;
(c) to promote democratic ,stability;
(2) to define clearly what kind of official information may not be subject to disclosure;
(3) to protect the personal information which is possessed or controlled by a state agency; and
(4) to secure historical information.
Official information means information in possession or control ,of a state agency, whether it is the information relating to the operation ,of the state or the information relating to a private individual.
State agency means a central administration; provincial administration; local administration; State enterprise; government agency attached to the National Assembly; court (but only in respect of the affairs unassociated with the trial and adjudication of cases); professional supervisory organisation; independent agency of the State; and such other agency as prescribed in the Ministerial regulation.
The Act has set three principles for information disclosure.
1. A state agency shall publish at least the following official information in the Government Gazette (s 7 para 1 OIA):
— the structure and organisation of its operation (s 7 OIA);
— the summary of important powers and duties and operational methods (s 7(2) OIA);
— a contact address for the purpose of contacting the State agency in order to request and obtain information or advice (s 7(3) OIA);
— by-laws, resolutions of the Council of Ministers, regulations, orders, circulars, Rules, work pattern, policies or interpretations only insofar as they are made or issued to have the same force as by-laws and intended to be to general application to private individuals concerned ,(s 7(4) OIA); and
— such other information as determined by the Board (s 7(5) OIA).
2. A state agency shall, for dissemination purpose, compile and make available the information under para 1 for sale, disposal or distribution at its office as it thinks fit. It shall make available at least the following official information for public inspection ,(s 9 para 1 OIA):
— a result of consideration or a decision which has a direct effect ,on a private individual including a dissenting opinion and an order relating thereto (s 9(1) OIA);
— a policy or an interpretation which does not fall within the scope of the requirement of publication in the Government Gazette under s 7(4) ,(s 9(2) OIA);
— a work plan, project and annual expenditure estimate of the year ,of its preparation (s 9(3) OIA);
— a manual or order relating to work procedure of state officials which affects the rights and duties of private individuals (s 9(4) OIA);
— a concession contract, agreement of a monopolistic nature of joint venture agreement with a private individual for the provision of public services (s 9(6) OIA);
— a resolution of the Council of Ministers or of such Board, Tribunal Commission or Committee as established by law or by a resolution of the Council of Ministers; provided that the titles of the technical reports, fact reports or information relied on in such consideration shall also be specified (s 9(7) OIA); and
— such other information as determined by the Board (s 9(8) OIA).
3. A person, whether with a direct interest in the matter concerned or not, has the right to inspect or obtain a copy or a certified copy of the information under s 11 para 1. If any person makes a request for any official information other than the official information already published in the Government Gazette or already made available for public inspection or already made available for public studies, and ,such request makes a reasonably apprehensible mention of the intended information, the responsible state agency shall provide it to that person within a reasonable period of time, unless the request is for an excessive amount of information or requests are made frequently without reasonable cause (s 11 OIA).
Most official information is subject ,to disclosure but there are exemptions. According to the OIA, information which is not subject to disclosure is described as follows.
Official information which may jeopardise the ‘Royal Institution’ ,shall not be disclosed (s 14 OIA).
A state agency or state official may issue an order prohibiting the disclosure of official information falling under ,any of the following categories, having regard to the performance of duties of the state agency under the law, public interests and the interests of the private individuals concerned (s 15 OIA):
— the disclosure will jeopardise national security, international relations, or national economic or financial security (s 15(1) OIA);
— the disclosure will result in the decline in the efficiency of law enforcement or failure to achieve ,its objectives, whether or not it is related to litigation, protection, suppression, verification, inspection, or knowledge of the information ,(s 15(2) OIA);
— the information is an opinion or advice given within the State agency with regard to the performance of any act, not including a technical report, fact report or information relied on in order to give an opinion or recommendation internally ,(s 15(3) OIA);
— the disclosure will endanger the life or safety of any person (s 15(4) OIA);
— the information is a medical report or personal information, the disclosure of which will unreasonably encroach upon another person’s right of privacy ,(s 15(5) OIA);
— it is official information protected by law against disclosure or an information given by a person and intended to be kept undisclosed ,(s 15(6) OIA); or
— in other circumstances as prescribed in the Royal Decree (s 15(7) OIA).
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 (s 15 para 2 OIA).
The Act states that:
A State agency shall take the following actions with regard to the provision of ,a personal information system:(1) providing for a personal information system only insofar as it is relevant to and necessary for the achievement of the objectives of the operation of the State agency, and terminating the provision thereof whenever it becomes unnecessary;
(2) making efforts to collect information directly from the person who is the subject thereof, especially in the case where such person’s interests will be directly affected;
(3) causing the following information ,to be published in the Government Gazette and examining and correcting the same regularly:(a) the type of persons in respect ,of which information has been held;
(b) the type to the personal information system;
(c) the ordinary nature of the use ,of the information;
(d) the procedure for the inspection of the information of the person who is the subject thereof;
(e) the procedure for the making of a request for the correction and alteration of the information;
(f) the source of the information;
— examining and correcting personal information under its responsibility; or
— providing an appropriate security system for the personal information system in order to prevent improper use of any use to the prejudice of the person who is the subject of the information.
In the case where the information has directly been collected from the person who is the subject of the information, a state agency shall, at or before the time of collection, notify such person of the purpose for the use of the information, the ordinary nature of its use and whether information is given ,voluntarily or compulsorily under ,the law (s 23 para 2 OIA).
In the case where the personal information is to be made publicly available, a state agency must notify ,the person who is the subject of the information, unless publication was always the intended purpose and clearly understood as such (s 23 para 3 OIA).
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 (s 24 para 1 OIA):
(a) the disclosure is to State officials in its own agency for the purpose of using it in accordance with the powers and duties of such agency;
(b) the disclosure is in its ordinary use within the objectives of the provision for such personal information system;
(c) the disclosure is to State agencies which operate in the field of planning statistics or censuses and have the duty to keep the personal information undisclosed;
(d) the disclosure is for studies and research without mentioning the name or part revealing the identity ,of the person to whom the personal information is related.
(e) the disclosure is to the National Archives Division, Fine Arts Department or other state agencies under s 26 paragraph one for the purpose of evaluating the value ,of keeping such information;
(f) the disclosure is to state officials ,for the purpose of preventing the violation of law or non-compliance with the law, conducting investigations and inquiries or instituting legal actions of any ,type whatsoever;
(g) the disclosure is necessary for the prevention or elimination of hazards to the life or health of persons;
(h) the disclosure is to the Court, state officials, state agencies or persons having the power under the law to make a request for such information; or
(i) other cases as prescribed in the Royal Decree.
In disclosing the personal information under para 1(c), (d), (e), (f), (g), (h) or (i), a list recording the disclosure shall be prepared and attached to such information in accordance with the rules and procedure prescribed in the Ministerial Regulation.
A person shall have the right to get access to personal information relating to them. When a person makes such a request in writing, the state agency in control of such information shall allow that person’s authorised 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 specified by the person concerned.
A person who considers that any part of personal information relating to them 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 30 days from the date of the receipt of the notification of the order refusing to correct, alter or delete the information. The appeal shall be submitted through the Board and, regardless of the outcome of the appeal, the person who is the subject of the information shall have the right to require the state official to attach their request to the relevant part of the information.
Under s 13 OIA, any person is entitled to lodge a complaint with the Board if they feel that a state agency has failed to:
In the case where a state agency denies that the information requested exists, if the person requesting lodges ,a complaint with the Board 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 in their possession, whether or not it ,is the information permitted to be disclosed (s 33 OIA).
There shall be Information Disclosure Tribunals (IDTs) 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 (s 35 OIA).
The appointment of IDTs under s 35 para 1 shall be made on the basis of ,the specialised fields of the official information, such as national security, national economy and finance or law enforcement.
The decision of an IDT 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 ,(s 37 OIA).
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 their daughter and other students. After the school denied the request, 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. The school claimed that the score and answer sheets were categorised as personal information and could not be revealed to anyone apart from the individual student. The parents of other students filed a lawsuit.
The IDT for Social Information ruled the parents had the right to see the examination result; however, the school declined to comply with the IDT’s decision. The school claimed it had ,to consult the council of State, the Attorney General’s Office and the Ministry of University Affairs first, in order to have procedures for disclosing examination results, which should be set up as a new standard to cope with similar requests in the future.
Finally, the OIC confirmed the ,IDT’s order and enforced the ,disclosure, followed by a cabinet 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.
Journalists and non-government organisations (NGOs) petitioned the office of the Counter-Corruption Commission (CCC) to disclose the report of an investigation into corruption in the Ministry of Public Health. The CCC refused to disclose ,the requested documents; petitioners then submitted an appeal to the office of the OIC.
The disclosure of the investigative report of the CCC, concerning the corruption scandal in purchasing drug and health materials in the Ministry ,of Public Health, was resisted on the grounds that it might hamper the efficiency of law enforcement. It was argued that the report was protected ,by the CCC’s regulations against disclosure and because it concerned witnesses who gave investigative documents on the understanding their names and the information would ,be kept confidential.
The IDT for Social Information ruled that the investigation was finalised. Those officials involved were disciplined and politicians were referred for criminal investigation. The IDT considered that the investigative report was official information, the case had great public interest and disclosure could bring about a positive attitude ,to the national administration, in particular to the CCC itself. The IDT therefore decided the CCC should disclose the requested information.
As a matter of fact, the witnesses in this case were high ranking executives; their role as witnesses in this case was official duty and protected by law. Although there is a CCC regulation against the disclosure of such information to protect the safety of witnesses, the discretion of the IDT in this case was weighted towards public interest. The case was sensitive as the scandal involved a large amount of national budget, was committed by the high ranking officials and involved top executive members (both government officials and politicians). Corruption in the provision of health services affects basic services to the people, in particular, the poor.
Journalists requested the Financial Sector Restructuring Authority (FRA) release the purchasing contract relating to the bid for sales of the financial sector debits. The FRA refused to release the requested information, claiming the documents were business contracts between the FRA and a private company and such a commercial deal could not be disclosed.
After considering this appeal case, the IDT for Economic Information ruled the FRA must release the contract, with the exceptions of the initial purchase price and sharing agreement, which were ,to be released after the bid date. Documents containing personal information, such as level of personal debts, should also be withheld.
A man suspected the construction ,of a river pier would not follow river regulations and might cause obstruction and damage to river navigation. He requested from the Port Authority ,the application documents for the construction contract. The Port Authority refused to disclose the documents because they concerned personal data and the disclosure ,would have badly affected the ,business of the contractor.
The IDT for Social Information ruled the documents were not personal data, but concerned government permission procedure. Also, disclosure would be ,of benefit to the public and would promote confidence in the authority.
The OIA is a new law, and knowledge and understanding of freedom of information and privacy protection issues, in particular, are new for Thailand. During the first two years of the OIA implementation there was some misunderstanding of the law. Many cases reflected the tension between ,the matter of freedom of access to information and privacy protection. From the academic perspective, many scholars argue the two issues should be considered separately, while some claim they are two sides of the same coin. The Thailand experience from 1992 to 2001 of information disclosure under this Act is that state officials must exercise discretion when balancing state duties, public interests and private interests. This is also confirmed by the Constitution, which stipulates that information causing damage to a person, dignity, reputation or privacy must be protected. Therefore, freedom of information and privacy protection can always be found on each other’s boundary and it becomes a matter of how to balance these two components.
Chungtong Opassiriwit is Director of the Office of the Official Information Commission (Board) and Secretary to the Information Disclosure Tribunal, Thailand.
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