A law that institutionalizes access to information isn’t always a guarantee that public documents will be readily made available to journalists.

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Access to information plays an important role in advancing societies.

“Governmental transparency and accountability are among the major policy concerns driving the movement. Laws often have been enacted following government scandals or power struggles between a legislature and a strong executive branch,” says Doreen Weisenhaus, author of Hong Kong Media Law.

In recent years, international bodies and organizations also have pushed nations to adopt FOI (Freedom of Information) legislation to make financial systems more transparent, to reduce corruption and to implement human rights goals.

David Banisar, an expert on the different global laws relating to FOI, agrees that it helps for a variety of reasons. In some places, “It’s important as a transitional tool to democracy, some anti-corruption, some for human rights.” Generally it can be said that having a law on freedom of access to information institutionalizes an individual’s right to ask for records held by public officials and agencies.

Hong Kong, Thailand, and the Philippines have different levels of access to information, supported by different legal frameworks. Gauging from the experience of these countries, however, it does not necessarily follow that having an FOI law results in better access to information.

In Hong Kong, there’s no freedom of information law, despite an attempt in 1994 by Christine Loh, an independent legislator, to introduce one. Instead, in 1995, an administrative code on access to information was instituted, and then amended in 1996 to cover all government departments.

Although Banisar says that the code was “well written,” it includes many exceptions. Among them are categories commonly seen exempted from FOI laws, such as defense and security, external affairs, and law enforcement. Also excluded from coverage are information on immigration and nationality, damage to the environment, management and operation of government services and public employment and appointments.

The code also does not allow premature requests, which according to Weisenhaus, refers to “information soon to be published, or whose disclosure would be premature in relation to a planned announcement or publication”.

Weisenhaus writes that after the code’s first 10 years of operation, the government reported that of the 17,494 requests for information it received, 15, 720 of those were met—or a 90 percent success rate.

But a Hong Kong Journalism Authority study of the access code in 1999 says that only a third of requests were granted.

This suggests inconsistencies with what the government is portraying and what the public is actually experiencing in terms of access to information in Hong Kong.

Enshrined in Charter

The Philippines does not have a specific law on FOI, but it does allow a constitutional provision granting access to information. Section 7, Article III of the 1987 bill states: “The right of the people to information on matters of public concern shall be recognized. Access to official records and documents, and papers pertaining to official acts, transactions, or decisions as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.” Section 28, Article II adds: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

Lawyer Rosalinda V. Kabatay of the School of Communication of the University of Asia & the Pacific explains both provisions: “One is the right of the people and one is the obligation of the government.”

In her book Mass Media Law and Regulations in the Philippines, Kabatay cites a January 2004 decision by now Supreme Court Chief Justice Reynato Puno about the indispensability of access to information in a democracy. Puno wrote: “The indispensability of access to information involving public interest and government transparency in Philippine democracy is clearly recognized in the deliberations of the 1987 Constitutional Commission.”

Kabatay notes that it is crucial that the Supreme Court has always been on the side of providing access to information. However, there are exceptions to this freedom of information. Under Republic Act 6713 citizens can be denied access if it is the interest of national security, or if disclosure may endanger the life of an individual, interfere with enforcement proceedings, or lead to significant financial speculation.

Some other exceptions such as “matters still pending decision” ceased to be a limitation of the right to information, writes Kabatay, “in 1998 in the case of Chavez v. PCGG.” This is one area that distinguishes the Philippine bill from Hong Kong’s code on access to information.

Test Case: Thailand

Thailand is one of very few countries in Asia that has passed an FOI law.

Section 48 of its 1997 Constitution states: “A person shall have the right to get access to public information in possession of a state agency, state enterprise or local government organization, 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.” Information that “may jeopardize the Royal Institution” also could not be disclosed.

As Weisenhaus explains, “A fundamental feature for FOI laws remains the availability of independent and judicial review after the denial of a request.”

From the Thai perspective, the Official Information Commission (OIC) reported that it handled 314 complaints and 164 appeals against complaint decisions in 2005. Most of the appeals were from individuals and government officials, whereas the ministry of education and local governments were the most complained against.

But in a contradiction of the independent spirit Weisenhaus describes for reviewing information denials, the OIC is now under the direct control of the Prime Minister. Over the last year there has also been a military coup to consider, with unsure consequences for the political state of the nation. Banisar says he “would not recommend the Thai situation as it’s not seriously taken. Even before the military coup, access to information with the last government was pretty bad. There’s very little access in reality.”

And if recent changes to power are anything to go by Banisar also notes how difficult it is for democracy to thrive without access to information. “There’s a long standing recognition that freedom of information is correlated with democracy. It’s an important part of democracy. It can’t work without access to information.”

Some of the similarities seen in Hong Kong, the Philippines, and Thailand include a lack of knowledge about the relevant codes, bills, and laws, respectively.

One of the recommendations that journalist Yvonne Chua makes in her chapter on “The power of an informed citizenry” about the Philippines in the book Access to Information in South East Asia is the need for more information in Filipino, “starting with the country’s laws, which are written in English.”

In fact, the former Hong Kong legislator, Christine Loh, who tried unsuccessfully to get an FOI law passed in Hong Kong, says of the existing system: “If you were to compare, for example, government information with public sector information, there is probably a lot more here than in other Asian jurisdictions.”

And it’s also very helpful that much of the info is bilingual, in English and Chinese, so that means a lot of people, including media and scholars and people who might not be literate in Chinese can access it.”

One of the main areas that Loh says needs improvement in Hong Kong is the need for a better system to preserve records, as it is one of very few places in the world that doesn’t have a legislatively backed archival system.

According to Banisar’s 2006 report on Thailand, government agencies there are required to keep indices of documents and that historical information is sent to the National Archives Division.

Thailand at least has a chance in the future to witness the release to the public of archived historical facts.

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