By: Hendra J Kede *)
Monday (14/12/2020) The Central Information Commission (KI Pusat) had a special and special guest: Mrs. Christina Aryani, S.E., S.H., M.H., Member of the Indonesian Parliament from the Golkar Party faction. Looking at his academic degree, dear writers and readers would agree that he is a smart person, if he has a direct dialogue with him.
Besides a member of Commission I DPR RI who is a working partner of the Central KI, he is also a member of the DPR RI Legislation Body which is the seat of the birth of all laws, including but not limited to the Draft Law on Personal Data Protection (RUU PDP)
He was the first member of Commission I DPR RI to visit the Central KI on his own initiative and had a dialogue on issues of Public Information Disclosure and related issues during the 2017-2021 Central KI period.
Of course, almost all the Central KI Commissioners were present and excited to discuss. It conveyed many things to him, including that next year there will be a selection for members of the Central KI for the 2021-2025 period. The end of the selection process is the implementation of a fit and proper test by Commission I.
“Everything can still be chosen again, right?”, Bu Aryani cut off the conversation. The author includes the Commissioner who answered: “Yes, Ma’am.” Ha ha….
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One issue discussed was the relationship between Public Information Disclosure (KIP) and Personal Data Protection (PDP).
At first glance, the two issues contradict each other. One talks about disclosure of information, the other talks about data protection (can also be read: information). Data to protect one talks about.
Another issue still surrounding KIP and PDP being discussed is the PDP institution. The President (government) wishes no new institutions to be formed. The DPR objected that the PDP implementation was not carried out by an independent institution. A compromise direction could be that the PDP implementation was carried out by an existing independent institution.
If compromise is chosen, the main question is: which independent institution that already exists will implement the PDP Law?
Talking about an independent institution like this, it is usually classified into a Non-Structural Institution (LNS).
Then the PDP can be run by independent LNS such as the KPK, KPU, Bawaslu, Ombudman?.
Or LNS will run it, which is a Quasi-Ministry such as KIP, Press Council, KPI, and so on. The institution is independent in carrying out its primary duties and functions, but it attaches its secretarial and financial support to one of the Ministries.
Or another alternative, the PDP is run by the LNS, which is a Quasi Ministry but has been upgraded to become a purely independent LNS in all matters, including secretarial and financial matters?
According to Mrs. Christina Aryani, this is one of the issues that has not been decided in the discussion of the PDP Bill.
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The initial question that needs to be answered is whether the issue of Public Information Disclosure and Personal Data Protection are contradictory, mutually mutually exclusive, that have different working philosophies?
Finding the correct answer to this question must begin with a prolific understanding of the public information management regime.
Since Amendment II of the 1945 Constitution of the Republic of Indonesia which gave birth to Article 28F and enacting Law Number 14 Tajun 2008 concerning Openness of Public Information and its derivative regulations, the public information management regime in Indonesia applies as follows: all information stored in State Public Agency documents is open information unless stated as Information Exempted from open (readable: closed or confidential)
Law 14/2008 on Openness of Public Information in addition to affirming how to manage open public information, it also clearly and explicitly determines: 1. What information is exempt from being open (read: closed or confidential); 2. How is the mechanism designated as Information Excluded from open; 3. Criminal and civil sanctions for parties who open and use the information is excluded from disclosure which is not in accordance with the law.
The author, since registering as a Candidate for Commissioner of the Central Information Commission in 2017, has the view that the Public Information Openness regime, and therefore it is the obligation of the Information Commission, is to ensure that Public Bodies open information that is open and closes and protects information that is exempt from being closed. Balance between opening and closing obligations.
This is based on the fact that opening and closing public information can only be done based on the order of the law and the public interest. Opening information is because of the order of the law and in the public interest. Closing any information is karena of the order of the Act and in the public interest. These two things are the duties and responsibilities of the Central KI according to Law 14/2008 on KIP.
Only the regime has changed from before Amendment II of the 1945 Constitution of the Republic of Indonesia. Prior to the Amendment, information was given a closed preliminary legal status and those that would be given disclosure status were in process and required stipulation. Meanwhile, after Amendment II applies otherwise, information is given legal status before it is open and will be closed which is in process and requires stipulation. Meanwhile, the obligation to treat open information and closed information is the same.
Thus, the main task of the Information Commission is basically to ensure and supervise through its legal authority so that open information is treated as open information, and also to ensure and closely monitor closed information as closed information.
Opening information that is closed is as dangerous as closing information that is open in nature, equally endangers the public interest and endangers the interests of the nation and state.
The author, both in carrying out his obligations and mandates as Deputy Chair of the Central Information Commission, when speaking at the Punblik Agency, as well as on several occasions at the hearing always emphasizes this: the obligation of the Information Commission is to ensure that information is treated according to its status, opens open and closes what closed.
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CHAPTER V Law 14/2008 concerning Openness of Public Information clearly and firmly explains the types of information that are Exempted from open (read: closed or confidential) and how the mechanism is to determine them.
So and therefore it is the duty and obligation of the Information Commission through all means and powers to ensure it is closed information.
The author quotes Article 17 in CHAPTER V regarding the types of information that must be closed and kept confidential so that it cannot be accessed by the public and cannot be given to the public:
Article 17
Every Public Agency is obliged to open access for every Public Information Applicant to obtain Public Information, except:
A. Public Information that, if opened and provided to the Public Information Applicant, can obstruct the law enforcement process, namely information that can:
1. obstruct the process of investigation and investigation of a criminal act;
2. disclose the identities of informants, reporters, witnesses, and / or victims who are aware of a criminal act;
3. disclose criminal intelligence data and plans related to the prevention and handling of all forms of transnational crime;
4. endanger the safety and life of law enforcers and / or their families; and / or
5. jeopardize the safety of law enforcement equipment, facilities and / or infrastructure.
B. Public Information which, if opened and provided to the Public Information Applicant, may interfere with the protection of intellectual property rights and protection from unfair business competition;
C. Public Information which, if opened and provided to the Public Information Applicant, could endanger the country’s defense and security, namely:
1. information on strategy, intelligence, operations, tactics and techniques relating to the operation of the state defense and security system, including the planning, implementation and termination or evaluation stages in relation to threats from within and outside the country;
2. documents containing strategies, intelligence, operations, techniques and tactics relating to the operation of the state defense and security system which includes the planning, implementation and termination or evaluation stages;
3. the number, composition, disposition, or dislocation of strength and capacity in the operation of the state defense and security system and plans for its development;
4. pictures and data about the situation and condition of military bases and / or installations;
5. the estimated data on the military and defense capacity of other countries is limited to all actions and / or indications of the said state that could endanger the sovereignty of the Unitary State of the Republic of Indonesia and / or data related to military cooperation with other countries agreed in the agreement as secret or highly classified;
6. state coding system; and / or
7. State intelligence system.
D. Public Information which, if opened and provided to the Public Information Applicant, can reveal Indonesia’s natural wealth;
E. Public Information which, if opened and provided to the Public Information Applicant, could harm the national economic resilience:
1. an initial plan to buy and sell national or foreign currencies, shares and vital assets owned by the state;
2. initial plans for changes in exchange rates, interest rates, and financial institution operating models;
3. initial plans for changes in bank interest rates, government loans, changes in taxes, tariffs, or other state / regional income;
4. Renthe initial plan for the sale or purchase of land or property;
5. initial foreign investment plans;
6. the process and results of supervision by banks, insurance, or other financial institutions; and / or
7. matters relating to the money printing process.
F. Public Information that, if opened and provided to the Public Information Applicant, may harm the interests of foreign relations:
1. the position, bargaining power and strategy that the state will and has taken in relation to international negotiations;
2. diplomatic correspondence between countries;
3. the communication and coding system used in carrying out international relations; and / or
4. protection and security of Indonesia’s strategic infrastructure abroad.
G. Public information which, if opened, may reveal the contents of an authentic deed that is personal and one’s final will or will;
H. Public Information which, if opened and provided to the Public Information Applicant, may reveal personal secrets, namely:
1. history and condition of family members;
2. a person’s history, condition and treatment, physical and psychological health medication;
3. a person’s financial condition, assets, income, and bank account;
4. evaluation results in relation to a person’s capability, intellect, and recommendations; and / or
5. records relating to a person’s personality related to the activities of formal education units and non-formal education units.
I. memoranda or letters between Public Bodies or intra Public Bodies, which by their nature are kept confidential except on the decision of the Information Commission or court;
J. information that cannot be disclosed under the law.
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In Article 17 letter h it is clearly and expressly stated that personal information (read: data) is information that is exempt from being open.
Thus and therefore cannot be accessed by anyone and cannot be given to anyone unless stated otherwise by law.
So and therefore it must be protected and it is the legal obligation of the Information Commission to protect it through all instruments of legal authority owned by the Information Commission.
Until the Personal Data Protection Bill (RUU PDP) is approved by the President and DPR and promulgated later, the only legal norm, to the best of the writer’s knowledge, is to be corrected if it is wrong, protecting personal data in any sector is only Article 17 letter h of Law 14 / 200 concerning the Transparency of Public Information. The PDP regulation in many other laws is partial only for the sectors it regulates, for example the health sector regulates patient data only.
And in fact, the Information Commission has carried out its obligations for 3 (three) management periods, since 2009, to ensure that the protection of personal data across sectors is upheld as a direct order and mandate from the Law, namely Law 14/2008 on Freedom of Information.
Protecting personal data is already the core spirit of the Information Commission and is an integral part of the main duties and functions of the Information Commission and therefore becomes the daily duty and duty of Information Commission Commissioners at all levels.
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So how will the position of the PDP Law be linked to KIP? Will it overlap?
According to the author’s opinion, with the explanation above, the existence of the PDP Law is a more comprehensive arrangement, a more comprehensive arrangement, from Article 17 letter h of the KIP Law. So that it makes it easier to define and guard the provisions of Article 17 letter h of the KIP Law.
It makes it easier to carry out personal data protection because the PDP Law will be viewed by KIP as an organic law that regulates the protection of personal data. And according to Article 17 letter j of the KIP Law, information declared as confidential information by the organic law must be viewed and treated as Information Excluded by the information disclosure regime.
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Returning to the original question above, is Public Information Disclosure in conflict with Personal Data Protection?
In the author’s view, the two issues and regulations are not contradictory, in fact they reinforce and complement each other. The PDP Law, once promulgated, will further strengthen and facilitate the Information Commission in carrying out some of its legal obligations, namely protecting the personal data of Indonesian citizens (Article 17 letter h of the KIP Law).
The follow-up question is whether the Information Commission can implement the PDP Law later if the PDP Law assigns this obligation to the Information Commission?
In the author’s opinion, the Information Commission can and will be happy to carry out this mandate if this is the case for the lawmaker.
The Information Commission will of course accept this responsibility with great dedication and a sense of responsibility.
This is inseparable from the fact that protecting the personal data of citizens is memeng has been the spirit and an intergal part of the Main Duties and Functions of the Information Commission since its inception, as mandated by Article 17 letter h of the KIP Law.
Hopefully the state can protect this invaluable state wealth, which even according to President Jokowi is a future wealth that is more valuable than oil, namely data, especially personal data, Allahumma aamiin.
*) Deputy chairperson of the Indonesian Central Information Commission
