This panel discussion was on the system of reviewing disclosure decisions, among issues concerning the information disclosure law. Three panelists, who are actual members from Review Boards of Korea, Thailand, and Japan, discussed their respective nation’s system, and situation along with specific cases.

1 Thailand’s System of Reviewing Disclosure Decisions within The Official Information Act and a specific case

To begin with, Prof. Prokati explained Thailand’s system of reviewing disclosure decisions, and later presented a specific case.

Under the Thai Official Information Act, there is first of all the Official Information Commission (OIC). Apart from the OIC exists an impartial adjudication organ called the Information Disclosure Tribunal (IDT). The cabinet based on the recommendation of the OIC nominates IDT members. These members, once nominated by the Cabinet serve a three-year term. The Office of Official Information Commission has been established within the Cabinet, which serves as the bureau for IDT as well, however, there are only forty staff members. There is a lack in staff members, as Thailand has a population of 60 million.

Under the information disclosure act, when a citizen request is withheld, it is possible to appeal to OIC, and the complaint will then be sent to IDT. The decision reached by IDT must be executed within thirty days. So far, OIC has taken up around 300 cases of complaints and appeals, but in fact there are actually more than ten thousand cases. However, such complaints and appeals are solved through intervention and discussions before reaching the stage of being sent to the IDT.

In the case of a complaint or an appeal, as the decision is the made by the nation’s organization, the OIC calls forth the appointed staff for a detailed explanation before the case is sent to the IDT. Based on the explanation, members of the committee work on the problem. The IDT also has a similar review system, and has solved over 300 cases.

A well-known case from the past concerns a certain school’s entrance exam.

The mother of a child who failed a big-name public school requested the disclosure of her child’s exam result along with that of all the students who have been accepted, and other documents related to exam results. This elementary school is very well known and the competition for entrance is extremely high; among 4000 students who apply, only 120 pass the entrance exam. When this parent asked the school why her child failed the exam, the school replied that it is due to the child’s low mark. However, judging from the children who passed, she felt that the result has not been based on their scores; after an investigation, she found out that all 120 of the children who were accepted are from famous families. She then decided appeal for disclosure, but the disclosure of the exams of all but her children’s was withheld; the mother who is in fact a lawyer appealed to adverse disclosure decisions.

The IDT recognized that normally, exam results should not be disclosed as it is a matter of privacy, but in the case of an entrance exam the situation is different. Thus the IDT asked the opinion of the parents of the 120 students who were accepted. However, the parents filed an appeal to the IDT to prevent the exam results from being disclosed. As a result, this case could not be solved by the IDT and was taken to the Supreme Court.

The media played a major role in this case. Newspapers wrote about the case almost everyday for three to four months. As it became clear that the children who passed are all from big-name families, such as the child of the Foreign Minister, and the nephew or niece of the Prime Minister, the school’s headmaster had no choice but to admit, ‘Our policy is to accept students only from well-known families’ at a press interview. As the case spread more and more through the media, many politicians pressured the IDT not to disclose information.

As a result, this case provided a new interpretation to information disclosure. A child’s test result at school is a matter of privacy, but an exam given in a public establishment is due to a public act and result, and thus it is liable to disclosure.

2 Korea’s System of Reviewing Disclosure Decisions within The Official Information Act

Prof. Sun’s explanation of Korea’s system of appeal to decisions followed.

In Korea, like all such administrative appeals, the Administrative Review Committee adjudicates those to adverse information disclosure decisions. The Official Information Commission (OIC), which examined the information disclosure law, compared the policies of eleven nations in operation, and has reached the conclusion that an Information Disclosure Committee is best as an organ to conduct adjudication concerning appeals to adverse disclosure decisions. The French ‘Law Concerning Access to Administrative Documents’ and ‘Committee Concerning Access to Administrative Documents’ served as a model for the OIC. However, the billing process of establishing an Information Disclosure Committee is in delay. Thus any appeals to adverse information disclosure decisions have been given the same treatment as all other appeals to adverse administrative decisions, and an umpire system is used for cases, which need further debate. Adjudication of requests is given relatively quick response.

There is an article in the law stating that the Administrative Review Committee must reach a decision within 90 days of receiving a request for adjudication. In the case of a problematic request, a staff member is expected to hand in a written report to the committee. In general, most adjudication requests are made towards the Governmental Coordination Committee. The committee holds meetings every Monday, and deals with several hundred cases each time. Normally, about ten cases are given a spoken investigation and an umpire report. The reason behind the fact that there are very few cases that reach a verdict as opposed to a large number of requests, is because most cases concern revocation of a driver’s license and drinking and driving.

In the year ’99, among the sixty-one cases of adjudication requests concerning information disclosure, ten have been postponed, thirty-seven rejected and ten have been admitted to adjudication. Among the sixty-one cases, twenty-eight have been dealt by the Governmental Coordination Committee of which I am a member of, twenty nine have been dealt by local entities, and four by the local education agency.

3 Japan’s System of Reviewing Disclosure Decisions within The Official Information Act

Mr. Akiyama explained the system of reviewing disclosure decisions in Japan.

The Information Disclosure Act states that all persons have the right to request disclosure of administrative documents held by the administrative organ, and the administrative organ states the obligation to disclose. All documents held by the administrative organ are subject to the right to request disclosure of information. The administrative organ can refuse information disclosure, which comes under only a certain article, and in a democratic society, the information disclosure of the government towards its people follows the principle to promote the public interest.

However, in cases where disclosure goes against public interest, or violates the right of a certain individual, non-disclosure is permitted. The act of non-disclosure is an administrative decision and thus one is entitled to enter a lawsuit or appeal for disclosure decision. The appeal is then taken up by an impartial body, the Information Disclosure Review Board to reach a decision. The board uses the in camera ruling system which gives committee members access to all the administrative documents to reach a decision.

Administrative organs that decide document disclosure have the same interests, and an objective decision is not available. Thus in the case of non-disclosure review, it is important to have a system where the administrative organ and appellant debates, and an impartial body, such as the review board makes the final decision. I believe that this is the common opinion among committee members who created the information disclosure act and the citizens.

The proper function of the information disclosure system depends on whether the board, or lawsuit functions properly. For this matter, the board must function properly, but first of all, the law regulating non-disclosure must be one that is examinable. The administrative information disclosure section of the administrative reform committee is examining this matter further, and the non-disclosure regulation of the information disclosure act allows the third person to disclose information based upon a rational decision making process whilst avoiding irrational non-disclosure results.

For example, there is a regulation stating the non-disclosure of corporate information that leads to the enterprise’s loss in profit. The regulation uses the words: ‘Does the matter concern loss of proper profit?’ so that a third party can objectively decide whether the loss of profit is proper or not. Also, there is a regulation allowing non-disclosure when the decision-making process lacks neutrality, but in this case whether ‘there is a possibility in the lack of neutrality of decision making’ is questioned. Thus it is not possible to state non-disclosure simply because a decision cannot be made, but whether the matter is unjust or not is decided by the committee or court. There is a regulation stating the non-disclosure of documents which in effect hinders the functions of an administrative organ, but here again, the question is whether ‘there is a possibility of hindrance towards the proper function of the institution’, and the emphasis is given to the ‘properness’ of the administrative organ’s functions. It can be pointed out that it is important to see how the above keywords will take effect in information disclosure decisions by committees and at court.

One of the most important functions of the board is selecting its members. In the Information Disclosure Regulation Plan there were ideas to place boards across the nation, but finally the decision was made to place a single central board formed by nine members. The nine members are divided into groups of three to form a judging committee, and at present, each group holds a meeting once a week. The board members consist of three full-time head members (a former Supreme Court Chief, a former Chief of the Prosecutor’s Office, and a former Chief of the Ministry of Prosecution). Part-time members consist of two lawyers, a scholar of the Constitution, two scholars of prosecution law, and one former journalist.

As with the self-governing body’s information disclosure regulation, the information disclosure act employs the partial disclosure system. Thus, even if a document contains information for non-disclosure, the rest of the document must be disclosed. This system has actually proved to be extremely effective. The Japanese law states that information concerning one’s life and health must be disclosed. Even if a document leads to an enterprises loss in profit, as long as it concerns one’s life and health, it must be disclosed. This provision has been introduced to the information disclosure act by the self-governing body’s regulation, and originally posed by movements. It is not yet clear how this regulation will be applied, but placing importance on one’s life and health is a respectable aspect of the Japanese law.

4 Other Reports

Apart from the above, Prof. Prokati presented other specific cases from the past.

The most well known example in Thailand is a journalist’s request to the Finance Sector Restructuring Authority (FRA) to disclose a banking organ’s purchase contract relating to the debt auction tender signed in the time of economical crisis. The FRA refused information disclosure, as the contract was signed between FRA and a private enterprise, and disclosure will lead to the disadvantage of the enterprise. The journalist filed and appeal to the IDT, and the IDT, after an investigation period of ten months, decided that the document should be disclosed. However, the FRA ignored this decision and thus the journalist appealed to the OIC. After a hearing from both parties, the OIC advised the Ministry of Finance that FRA’s refusal to follow IDT’s decision is an illegal act. The Ministry of Finance followed the advice and FRA was lead to information disclosure.

There has also been an appeal to information disclosure towards the Ministry of University Affairs. An associate professor who applied to become a professor, after having failed the examination requested the disclosure of documents concerning his/her evaluation along with the evaluator’s name and position. Ever since the occurrence of this case, university scholars began to show interest in information disclosure.

Another example is when an instruction company requested information disclosure of a circulating notice concerning a self-governing body’s tender. It is too late to call for bids if the notice arrives a day or two before the bidding due date. The self-governing body insisted that the circulating notice was sent off much in advance, but nonetheless it was requested for disclosure. In a road construction project, eight hundred traders were required to carry soil, and other necessary construction materials. However, when investigation took place after a request to disclose documents, there were in fact only one hundred traders.

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