Constitutional Framework
Taiwan’s Constitution of the Republic of China was adopted on 25 December 1946 and has been amended seven times since the adoption.It does not contain any specific provisions on the right to information. Nevertheless, it guarantees freedom of speech and freedom to impart information in Article 12, which states that the people “shall have freedom of speech, teaching, writing and publication.”
Right to information Act
The Freedom of Government Information Law (RTI Act) was promulgated and entered into force on 28 December 2005. Little information is available about the legislative efforts and background. A professor from the National Taiwan University, College of Law, participated in drafting the RTI Act.
Provisions of the RTI legislation
Principles
The purpose of the RTI Act according to Article 1 is to facilitate sharing and “fairly” using government information, protect the public’s right to know, enhance the public trust and civil oversight and encourage public participation in a democratic society. There is a presumption in favour of access to information, although the provisions of other laws prevail in case of a conflict of laws.
The requester needs to state the purpose of requesting government information, which is a serious limiting factor for exercising the right to information.
Scope
Only nationals registered as residents in Taiwan, legal persons established by these nationals and nationals of Taiwan who reside overseas are entitled to seek information. This is a rather narrow definition, although the law contains a reciprocity clause for foreigners. They are entitled to request information if the law of their countries of origin does not restrict Taiwan citizens from obtaining information from the respective country.
The RTI Act applies to the government agencies at central and local level as well as institutes for experiment, research, education, culture, medicine, and management of special funds that are established by those agencies. Private entities vested with state authority are also subject to the provisions of the Act. The law applies to the president, the judiciary and to the legislature since the central government consists of the Office of the President and five branches (called “Yuan”).
The law does not apply to state-owned or controlled enterprises.
The law defines ‘government information’ as “information which a government agency produces or acquires within its respective authority” and is saved in any possible form. It is only possible to request specific documents and not information in general.
Proactive disclosure
Public authorities are required to publish a wide range of information summarised in ten categories, including details of the services they provide, their organisational structure, their decision-making norms and rules, budget and audit
information, information on public procurements and meeting records of collegiate agencies. Taiwan established an open data portal in April 2013.
The RTI Act enables the authority to only inform the requestors where and how they can access information sought if is already available through means of proactive disclosure.
Disclosure upon request
The request should be made in writing; electronic requests may only be made with an electronic signature. The law does not provide for a possibility to submit an oral request. The request must include identifying information of the requester. In addition, the requester is required to indicate the purpose for requesting the information and provide a short description and number of the requested document.
There is no obligation for the authority to comply with the preferred form of access. If the requested information is under copyright protection or it is hard to make a copy, the requestor may only be granted the right to consult the information without making copies. There is no specific requirement upon the authority to assist the requestors. It may, however, demand that the requester corrects the request. In case the authority does not possess the information it shall transfer the request to the competent authority and notify the requester.
Within 15 days the competent authority examines whether to approve the request (Article 12) and this term may be extended by not more than another 15 days. Even if the authority needs to consult third parties for their comments, the decision on the provision or the refusal of access to the information shall be taken not later than 30 days following the submission of the request.
Provision of the information is subject to payment of a fee determined pursuant to the Duplicating or Copying the
Government Information Fee Standard Table. The authority may charge a fee “according to the purpose of requesting” the information and the fees may be reduced or waived if the applicant requests information for academic research or public interest use.
Exemptions
The law enumerates the exemptions from free access in Article 18, some of which are subject to a public interest and harm tests.
Secrecy provisions override the RTI Act according to Article 2. Moreover, the Act provides that information classified as state secret or any other classified information by secrecy laws, regulations and orders is exempted. The protection of on-going investigations, the enforcement of the law and the guarantee of a fair trial are other legitimate interests which are protected under the law. These exemptions are not subject to the overriding public interest test.
Preparatory and internal documents are only protected before the adoption of a final act and they can be disclosed even before the adoption of a final decision if there is overriding public interest in their disclosure. Another common ground for refusal is the protection of personal data and privacy and the protection of trade secrets. Both of these exemptions are subject to overriding public interest test, and protection of trade secrets is also subject to a harm test.
There are other exemptions subject to the harm test. Information on enforcement of tasks of supervision,
management, investigation or ban is protected if disclosure would “make difficult or disrupt the purpose of such works.”
Less typical exemptions relate to information about cultural heritage and to information about state-owned companies, both subject to the harm test.
In case the need for a restriction ceases to exist or the situation changes in another way, the authority shall “accept the request.” If the requested information relates to third parties, the authority shall notify the affected person and seek his/her comments. The third party needs to submit the comments in 10 days.
The RTI Act also includes a provision on partial access: if only parts of the information sought are restricted, the body shall make other parts of such information available to the public.
Appeals
The requester who wishes to challenge the decision of the authority may file an internal administrative appeal. The
requestor can also complain to the administrative courts pursuant to the applicable procedural law. The law does not envisage an independent administrative oversight body.
Sanctions
Article 23 stipulates that sanctions can be imposed on civil servants that violate the provisions of the Act but refers to special laws.
Publication / Reporting mechanisms / Promotional measures
The Act does not provide for special duties to oversee the implementation of the law nor to promote it.
Implementation of the RTI legislation
While Taiwan ranks top in Asia for general press freedom, the RTI Act itself is limited. Civil society reports that the
implementation of the RTI Act has been unsatisfactory.
Transparency International Chinese Taipei urged the President’s Office in 2009 to push for the establishment of a central agency, capable of enforcing the law and to impose strict sanctions for breaching the right to information. While the government requested from the Ministry of Justice and other competent bodies to present policy proposals that would implement such recommendations, the RTI Act remains unchanged until this day.
While there is no centralised agency that would report on the statistics of the use of the RTI Act, individual bodies regularly publish information on approvals and rejections on their websites. For example, the National Immigration Agency received 300 requests in the first three quarters of 2012; it approved 37% of the requests fully, 39.33% partially and rejected 23.67% of requests. Surprisingly, the Ministry of Foreign Affairs reported it has approved all 2,070 requests in full.
The Taiwan Supreme Administrative Court seems reluctant to decide against the refusal decision of the authorities; out of 41 cases that reached the court from 2005 to 2010, only three have been successful.
There appears to be low awareness of the Act among journalists, limiting the use of the Act. There is no agency specifically in charge of promoting the law and conducting awareness-raising activities. On the other hand, there is a lively open data community and both central and municipal open data portals.
There appears to be low awareness of the Act among journalists, limiting the use of the Act.
Related legislation
State Secrets Act
The Classified National Security Information Protection Act (2003) provides for three levels of classification as
confidential, secret and top secret with periods for protection respectively for 10, 20 and 30 years. The Act specifically provides that classification shall be kept to the “absolute minimum”. Information cannot be classified if the aim of classification is to conceal wrongdoing, restrain competition, prevent embarrassment, or is not necessary to protect the interest of the national security.
Declassification is automatic at the expiration of the period of protection. The Act does not provide for regular review but provides that declassification before the expiration of the protection may be solicited by interested parties.
Protection of whistleblowers
Taiwan does not have a comprehensive whistleblower protection law. Nevertheless, the Anti-Corruption Informant Rewards and Protection Regulation (2011) provides for whistleblowers with confidentiality in reporting acts of corruption, and compensation for the whistleblower. The Regulation only applies to the public sector. The Agency against Corruption under the Ministry of Justice was established in 2011 to tackle corruption and investigate complaints from whistleblowers.
Environmental protection legislation
The Environment Protection Act (2002)413 provides for access to environmental information. It states that all relevant government entities shall collect and analyse environmental information, build an environmental information system and make it available to the public on a regular basis. The Environmental Impact Assessment Act (1994) also provides for publication of the EIAs and requires public discussions to be held.
International Framework
Relevant UN treaties
Taiwan is not a part of the UN system. Taiwan ratified the ICCPR in 2009, but the UN rejected its deposit based on General Assembly Resolution 2,758.416 However, Taiwan continued to implement the ICCPR into its legal order by way of passing the Implementation Act in 2009.
Taiwan cannot be a signatory of the UNCAC, as this Convention is only open for signature and ratification by UN Member States. However, Taiwan continued to pass a bill with “measures for implementing UNCAC-related laws” in 2015.”
Taiwan is not a participating country in the Open Government Partnership (OGP), although the government announced plans to attempt to join the OGP in 2013. It is also not part of other notable inter-governmental transparency initiatives. There is a general lack of aid transparency in Taiwan, which has transformed from an aid receiving country to a donor country, both due to the failure of the government to publish such information and the fact that Taiwan is not included in the majority of international databases.