People have the right to access information. Public institutions oblige to provide. What about if there is a dispute? Let’s sneak on the settlement.

Draft on Public Information Openess (Act on KIP) last Thursday (3/4) recently passed on to be an Act in the House’s Assembly meeting. The Act can be put to work in the next two years after it is legalized. Even though so, the government can not hold still. “We will prepare the procedural protocol,” said the Minister of Communication and Information, Muhammad Nuh, at that time.

The Act guaranteed people’s right to access public information. On the other side, it is the obligation for public institutions to prepare the information needed by the people. Public institutions mentioned covers State Bodies, whether executive, legislative, judicative and others, also non-governmental institutions that entirely or partially of their funds were from the State or Provincial Budget. In this case, it covers NGOs or political parties. In many things, there is some information excluded to be accessed by public; for example, information concerning the State’s security and defense. The officer in office for that, the term in the Act, is Information and Documentation Management Officer.

Unfortunately, in some cases, there is a time that certain officer did not -whether they are not willing to, or they cannot-share the information needed.  Indonesian Center for Environmental Law (ICEL) considered article 6 of the Act on KIP could result in conflicts of interests. The article mentioned stated that public institution have the right to refuse giving information if the information demanded has not been mastered or documented. “That is actually weakened the access for information seekers,” written Deputy Director of ICEL, Prayekti Muharjanti.
 
Actually in the opposite side, information is a definite right for the people. Because of that, there could be a dispute between two parties- the information seeker and the public institution. In order not to be stuttered in implementing the Act, it would be better for us to read the settlement mechanism if a dispute should arrise.

Act on KIP
Article 6
(1) Public institutions have a right to refuse giving the exceptional information according to the law.
(2) Public institutions have a right to refuse giving public information if it is against the stipulation in the legislation.
(3) Public information excepted to be shared publicly are:
a. Information that can put the country in danger;
b. Information related to the commercial protection importantance from unfair commercial competition;
c. Information related to personal rights;
d. Information related to official secrecy; and/or
e. Public information demanded has not been mastered or documented.
 
Article 35
(1) Every applicant for public information can file a written objection to the Superior of the Information and Documentation Officer based on the following reasons:
a. the refusal on the information request based on exceptional reasons as mentioned in

Article 17;
b. regular information is not provided as mentioned in Article 9;
c. the information request is not responded;
d. the information requested is responded not as demanded;
e. the information request is not fulfilled;
f. Impossing unusual fee; and/or
g. the information is given more than the length of time regulated by this Act.
(2) Reasons in paragraph (1) letter b until g can be settled deliberatively by the two parties.
 
Begun with objection
So long as it is not the exceptional information, public institution should serve the information request well. It means that according to the request with low price. If public is unsatisfied, they can file an objection to the high-rank officers of the institution.
 
The objection has to be filed by the information seeker within 30 working days after finding the reasons in Article 35 paragraph (1). The Supervisor of the officer should respond to the complaint. To the latest of 30 working days after the written complaint is received. If the supervisor backs the reason of the officer who do not wish to provide the information requested, the reason should be attached in written form.
If the responses from the officer or the supervisor are not satisfying, the information seeker can file the dispute to the Information Commission (see the box). Any efforts to settle the dispute should be filed to the latest of 14 working days after the written response from the public information is received.

Box:
Information Commission, what is that?
The new institution will be established based on the order from Act on KIP is the Information Commission. The commission comprises from central level (7 members), provincial level (5 members), and if needed, Regency/City Level (5 members). Central Information Commission is established to the latest of one year after the Act on KIP is passed on. While the regional commissions are two years after the legislation. Central commission is responsible to President meanwhile the provincial commission is responsible to the Governor.

This commission is an independent institution whose function is to do the Act on KIP and its implementation regulation. Its main duty is to set general policy in public information service also to set the procedural guidelines and technical guidelines to implement the Act.

Not less important, in handling the case, this commission receives, examines, and also decides the request and the settlement of public information disputes. The settlement of the disputes is through a mediation way and/or a non-litigation adjudication filed by each request of the public information based on the reasons mentioned in this Act. So, if you as a part of the people who needs public information, feels not served well by a public institution, You can bring the dispute to this commission; for example, because the public information is too difficult to share the information, or if the fee to get the information is too high.

The term of service for the members of this commission is due four years and can be elected for one more term. The requirements are, minimum of 35 years old and has never been convicted to five years imprisonment or more. The Government would recruit the candidates through an open announcement. Next, they will be selected in the parliament of each level. The central commission has 21 candidates while the regional commission has 10 candidates. Unfortunately, there is no detail composition on the membership of the commission. “Of the seven members of the central commission, how many are from the government and the public representations?” complained the Deputy Director of Technology and Esthetic Science Foundation, Agus Sudibyo.

There, even when the shape is not clear has created a polemic. The elected commissioners, keep your word, please.

There are two ways can be used in the commission mechanism: mediation and/or non-litigation adjudication. This commission has begun trying to settlement of the public information disputes to the latest of 14 working days after receiving the file for dispute settlement. The process itself should be to the latest of 100 working days.

Mediation
In mediation, members of the commission act as mediators. This settlement of the case is a choice and the willingness of every party. The verdict of the Information Commission is final and binding. Mediation can only be taken for disputes on infomation serving reluctancy in Article 35 paragraph (1) letter b to g.

Adjudication
When mediation fails, the settlement of the dispute continues to the next step, non-litigation adjudication. This step can also be taken because one party withdraws from the negotiation.

The commission will appointed at least three commissioners or more-so long as it has an odd number to settle the case in this adjudication level. The commission trial will examine and settle the case. The trial of the commission is open to public, except for document examination that is considered as exceptional information. 

After undergoing through the examination stage-including the calling of the two parties-and evidence examination, commission court should reach the verdict. If there is a (dissenting opinion), the commissioner opinion is attached and becomes an unseparated part of the verdict.

The verdict can be in form of anullation of the verdict of the public institution or it can also be to support the verdict not to provide the information requested. The Verdict contains an order of the three choices. First, the order for the information management officer of the public institution to conduct the obligation. Second, the order for the public institution to fulfill the obligation within an information providing period. Or the third, to back the consideration of the public institution supervisor or to decide concerning the research fee and/or information multiplication.

Claim to the court
If the verdict of the Commission Trial did not satisfy the information seeker party, the party can continue by filing a claim to the court. To the State Management Court (PTUN), if the claimed party is a state public institution. To the District Court id the claimed party is not the State-for example NGOs or political parties. The filing of the claim should be to the latest of 14 days after the verdict of the Information Commission Trial is received. The court’s verdict can cancel or support the verdict of the commission.

Directly to casation
The party who disagree to the verdict of the court can continue to the next step. Uniquely, this step is a shortcut to the appeal or directly to casation to the Supreme Court. The filing of the casation should be to the latest of 14 days after the verdict of the trial is received.

Please compare it with the Working Competition Observer Commission (KPPU). The unsatisfied party at the Commission Trial verdict can file the claim to the District Court, to the latest of 14 days after receiving the adjudication verdict. “Within 30 days, the District Court should process it until the verdict,” explained the Head of KPPU Mohammad Iqbal. If the verdict of the District Court is still unsatisfactory, after 14 days the unsatisfied party can file for a casation to the Supreme Court.
“Basically, it is the same having three stages: Commission Trial, District Court, The Casation of the Supreme Court,” said Iqbal comparing.

Source www.hukumonline.com
Photo courtesy of www.google.co.id
Translated by Yogi Djatnika (MKRI)