Govt: Exempted Public Information Can Be Disclosed under Some Conditions

Director-General for Public Information and Communication of the Ministry of Communication and Informatics Usman Kansong testifying on behalf of the Government at a judicial review hearing of Law No. 14 of 2008 on Public Information Openness, Monday (1/29/2024). Photo by MKRI/Ifa.

JAKARTA (MKRI) — Exempted public information that can be provided to anyone who requests for it as long as it meets the criteria set out in Article 18 paragraph (2) of Law No. 14 of 2008 on Public Information Openness (KIP Law), said Director-General for Public Information and Communication of the Ministry of Communication and Informatics Usman Kansong on behalf of the Government for case No. 132/PUU-XXI/2023. The petition was filed by Rega Felix, an advocate. The third hearing for this case took place on Monday, January 29, 2024 in the Constitutional Court’s (MK) plenary courtroom.

Usman revealed that among the criteria is that the party whose secret is being disclosed grants written consent (letter a) and/or the disclosure is in relation to a person’s position in public offices (letter b).

“However, as stipulated in Article 2 paragraph (4) of the KIP Law, the disclosure must also be for greater public interest. The review of the greater public interest can be done by registering a dispute complaint with the Information Commission as stipulated in Article 37 of the KIP Law,” he explained before the hearing chaired by Chief Justice Suhartoyo.

He argued that the phrase “in relation to a person’s position in public offices” in Article 18 paragraph (2) letter b of the KIP Law is a clear distinction from Article 18 paragraph (2) letter a. When information whose disclosure is requested is not in relation to a person’s position in public offices, it becomes confidential private information, whose disclosure requires written consent from the party the information is about. “As such, public offices as referred to in Article 18 paragraph (2) letter b of the KIP Law is interpreted as public offices that one has definitively occupied,” Usman added.

The Government also responded to the Petitioner’s request that the Court interpret the a quo provision “including in the form of list of participants and minimum health qualifications requirement in the open selection process to fill in the vacancies of public offices.” Usman explained that the Petitioner’s posita on the disclosure of such confidential private information would violate the rights of personal data subject of other participants who do not pass the selection.

Usman explained that personal data subject rights are regulated in Articles 5 through 13 of the Personal Data Protection (PDP) Law, which stipulates that only the subjects of personal data have access to their own personal data.

“The Petitioner’s wish so that the institution he applies for work would reveal a list of names and health qualifications as he states in the posita would lead to violation of the provisions in the PDP Law,” he explained.

KIP’s Position Questioned

In response to the Government’s testimony, Chief Justice Suhartoyo and Constitutional Justices Arief Hidayat and Arsul Sani asked about the Central Information Commission (KIP) mentioned in the testimony, which is actually an independent commission outside of the Government. Justice Arief asked for clarification that the Minister of Communication and Informatics had made a substitution power attorney letter, which he observed had irregularities in it, including the testimony of a KIP official.

“The central or regional KIP is an autonomous or independent institution, separate from the Government. What is the Communication and Informatics Ministry’s view? Is the institution under the Government, an independent body, or a separate commission not under the Communication and Informatics Ministry?” Justice Arief asked.

Chief Justice Suhartoyo added that the Court intended to summon KIP and Bank of Indonesia to testify as relevant parties.

“It is true that we constitutional justices did not expect that KIP be under the Government. If today’s testimony reflected KIP’s stance, it would be irrelevant for us to summon KIP. But we might still request [KIP] to testify,” he said.

Also read:

Advocate Questions Personal Data Openness for Public Offices

Advocate Asks for Clear Interpretation of Excluded Information in KIP Law

The Petitioner asserts that Article 18 paragraph (2) of the KIP Law excludes personal data in the form of the family history and records, the results of evaluations related to a person’s capabilities, intellectuality, and competency recommendations, and/or records on a person’s personality related to formal and non-formal education as contained in Article 17 letter h of KIP Law for persons in public offices.

He revealed his experience applying for a public office at Bank Indonesia and being declared unqualified. He then asked for the list of applicants, his evaluation results, and the results of his health assessment, which the organizing committee refused. He was only given the results of his health assessment, so he could not obtain a right to refute the public information. “There are multiple interpretations of the causality between Article 18 paragraph (2) of the KIP Law and the Petitioner’s constitutional loss, because the exam results which the Petitioner requested were excepted from public information,” he said.

Therefore, in his petitum, the Petitioner requests that the Court declare the phrase ‘a person’s position in public offices’ in Article 18 paragraph (2) of Law No. 14 of 2008 on Public Information Openness unconstitutional and not legally binding as long as it is not interpreted as ‘including a list of names of participants in an open selection process in the context of filling in public offices,’” the Petitioner said.

Author       : Fauzan Febriyan/L.A.P.
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
Translator  : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

Monday, January 29, 2024 | 15:19 WIB 60