Access to Justice and Indonesia's Freedom of Information Act by Tifa Foundation

ACCESS TO JUSTICE AND INDONESIA’s FREEDOM OF INFORMATION ACT Evaluation of Use of UU KIP to Address Spatial Planning Conflicts by LBH Semarang Clients

Widodo Putro Ward Berenschot

Access to Justice and Indonesia's Freedom of Information Act

Access to Justice and Indonesia's Freedom of Information Act Evaluation of use of UU KIP to address spatial planning conflicts by LBH Semarang clients

Widodo Putro | Ward Berenschot

Access to Justice and Indonesia's Freedom of Information Act Evaluation of use of UU KIP to address spatial planning conflicts by LBH Semarang clients Widodo Putro | widodo.fhunram@gmail.com Ward Berenschot | ward.berenschot@gmail.com

Yayasan Tifa ÂŠ Desember 2013

Dipublikasikan oleh :

Yayasan Tifa Jl. Jaya Mandala II No. 14E Menteng Dalam - Jakarta Selatan 12870 Indonesia Tel : (62) 021 829 2776 Fax : (62) 021 837 83648 e-mail : public@tifafoundation.org tifafoundation.org

* Design & Layout : Ayoenk

Table of Contents

Introduction: Access to Justice and the Freedom of Public Information Act ..........................................................................

How are citizens making use of the Freedom of Information Act? .......................................................................................

The impact of the UU KIP on spatial planning conflicts

...............

State institutions and the implementation of the UU KIP .............

Evaluation of the impact of Tifa's program to support the use of UU KIP ............................................................................................

Summary and Recommendations

.........................................................

Above pictures, clockwise: 1. Citizens protest against the building of the electricity plant in Batang by putting flags on their boats; 2. Meeting fishermen in Jepara; 3. The coastline in Jepara targeted by mining companies; 4. Interview; 5. Protests in Pati against the cement factory in the Kendengmountains.

Introduction: Access to Justice and the Freedom of Public Information Act

After a lengthy process Indonesia's law no 14 of 2008 or otherwise called the Freedom of Information Act ( Undang-undang Kebebasan Informasi, UU-KIP ) was adopted by Indonesia's parliament on 30 April 2008. Because of the challenges involved in preparing the necessary infrastructure, the implementation of the UU KIP started two years later, on 1 May 2010. The adoption of the UU KIP is an important progressive step for a democratic country. Through the freedom of information act, public bodies and governmental institutions are obliged to provide, give and publish information related to their functioning. The substance of the UU KIP suggests a genuine desire of Indonesia's parliament to make public institutions more transparent and more accountable to society. The law has to potential to bridge the divide between people and their government by opening up new communication channels. The right to access public information was already included in the law 26 of 2007 on spatial planning, in which one guiding principle is the principle of openness. While legally this principle of openness gives citizens wide-ranging access to information related to spatial planning, in practice it has not proven easy for people to succeed in actually getting that information. Moreover, the implementation of spatial planning policies has often taken the form of a struggle between citizens and investors supported by state authorities. The adoption of the UU KIP has led to hope for the actual realization of the right to information. To see to what extent this hope has been fulfilled, we have to see how UU KIP has actually been implemented. That is the aim of this report, which focuses on the following questions: 1. In what ways have citizens been making use of the freedom of information act? 2. What has been the impact of the use of this act in five specific conflicts in which LBH Semarang has been involved (Batang, Semarang, Kudus, Pati and Jepara)? 3. How are local governments in these areas implementing the UU KIP? 4. How effective has the TIFA program been in supporting the use of UU KIP in conflicts related to spatial planning? This report is based on both quantitative and qualitative research methods. On the one hand, interviews have been conducted and archives have been consulted to acquire basic information about 20 spatial planning conflicts taken up by LBH semarang. This

Access to Justice and Indonesia's Freedom of Information Act

information has been used to draw up the graphs below that are intended to give a basic overview of the impact of the UU KIP. On the other hand, in-depth interviews and fieldwork has been conducted on five key spatial planning conflicts in Batang, Kudus, Semarang, Pati and Jepara. Interviews have been conducted with different groups involved in these conflicts: not only citizens attempting to acquire public information, but also LBH Semarang, members of the Public Information committee of central Java, local PPID officers ( Pejabat Pengelola Informasi dan Dokumentasi, the officers in charge of the management of information and documentation for the district government). In order to be able to interpret conflict processes in the light of local circumstances, the researcher stayed throughout the fieldwork in the houses of local inhabitants and attended several protest actions and local social gatherings. In the process the researcher was able to observe first hand some of the developments of the conflict discussed in this report: how in Batang flags were planted on land and in boats to protest against the building of an electricity plant, how citizens took to a study of the UU KIP to strengthen their claims, how citizens in Pati fought against a cement factory to protect their source of fresh water or how Harjono in Kudus drafted letters for both the attorney's office and the KPK to focus their attention to the way public servants have been benefited from a project to make a water reservoir. The researcher also observed how staff from LBH Semarang and Lakpesdam NU worked together with citizens to draft requests for information and how how PPID officers subsequently dealt with these requests for information. This structure of this report follows the questions outlined above: chapter two will discuss show in what ways the UU KIP have been put to use. Chapter three discusses to what extent and in what ways the requests for information have been successful. Chapter four evaluates the functioning of the government officials in charge of implementing the UU KIP, the PPID. Chapter 5 evaluates the impact and effectiveness of TIFA's program on strengthening LBH Semarang capacity to use the UU KIP. This report contains only summaries of the five in-depth case studies; for the full versions see the appendix.

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How are Citizens Making Use of the Freedom of Information Act?

The graph below gives an overview on what types of issues a request of information was filed. As some requests involved several different documents, the total number in the graph below is higher than the total of 18 cases (out of 20) in which a request for information was filed. The graph illustrates that the requests mostly concerned the environment, as well as land. Of these cases, information was mostly requested about the followed procedures to provide a license and to conduct an environmental impact assessment (Amdal)

A = Licensing: 12

D = Technical plan: 4

G = SVTO: 1

J = Projects map: 4

M = Tax:1

B = EIA: 5

E = Conservation Limits; 1

H = Subsidy Program: 1

K = Land compensation data:1

N = Statistic data: 1

C = Spatial planning, local regulation: 9

F = Health Information: 1

I = Annual final report: 1

L = Leasehold: 2

Of the 20 spatial planning cases taken up by LBH Semarang, 70 percent involves a conflict between citizens and private companies or companies supported by the local government. The high incidence of such conflicts are related to the fact that, around Semarang â&#x20AC;&#x201C; and, in fact, throughout Indonesia â&#x20AC;&#x201C; business activities such as mining, electricity generation, industry, telecommunication and agricultural plantations are having a direct impact on the livelihoods of people Military vs Society 5% Government vs Society 25% Private Company in backing up government vs Society 70%

Graph 1. Character of conflicts

Access to Justice and Indonesia's Freedom of Information Act

After the end of the New Order, there was hope that the dominance of the Indonesian state would be reduced. The UU KIP only obliges public institutions and not companies to disclose information. In that sense the law is state-centric, as it does not oblige companies to disclose information – article 1 point 3 specifies that the UU KIP focuses on public institutions only. As a result the UU KIP cannot be used by citizens to access information from companies – only to access information that companies have supplied to the government in order to obtain permits and licenses

Used for lawsuit to PTUN 13%

Report to Corruption Commission and District Attorney 7% To monitor the impact of Development Project 7%

Used for lobbying and advocacy outside the court 73%

Graph 2. In what way is the obtained information used?

When information is successfully obtained, how do people use this information? Of the 20 investigated cases, it turns out that this information is mostly used for lobbying and advocacy (11 cases) and not so much for going to court. Generally, those interviewed considered advocacy (through, for example, lobbying, demonstrations and media attention) more effective to influence the process of implementing public policy. As court cases are costly and take a lot o time, submitting a lawsuit at the administrative court (PTUN, only 2 cases) or conveying a report to the attorney or anti-corruption body (KPK, one case) have been rare. Furthermore, the independence of courts is in doubt as a 'legal mafia' is considered effective in influencing the outcome of cases – particularly when the conflict involves wealthy investors. Without thorough preparation, a court case could backfire, as a negative verdict could legitimize the business activities. For most informants, a court case is 1 the last resort after all else failed. Yet the victory of citizens of Pati at the administrative court did serve as inspiration for others that such court-case can actually be won.

________________________ 1

Interview with Andiyono, director of LBH Semarang, 28-10-13

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Case 1 : Farmers oppose a cement factory in Pati PT Semen Gresik had planned to expand its operations in the Kendeng mountain – an area of stunning natural beauty - with a new mine and an attached factory to make cement. The company was supported by the local government who expected a significant raise in tax income, as well as by citizens who expected employment in the new factory. The plans for the factory were opposed by farmers in the region. This mountain has many cold water springs of which the many farmers in the area depend as it irrigates their fields all the year round. The farmers formed an organization, Serikat Petani Pati (SPP) which was led by Gunretno. As their group attracted support, they have a change to meet the Governor. He tells then that experts have done the environmental impact assessment and felt that there was no risk to the water springs. When the group of citizens express their concern over the quality of the Amdal, the governor retors “they are experts, where did you go to school?”. Yet the farmers are worried that the mining will cause the waterflow to decrease during the dry season while causing floods during the rainy season. They contact environmental watchdog Walhi, who with support from LBH Semarang takes the case to PTUN claiming that the permit for the factory was issued before the Amdal was finalized. The case goes all the way to the Supreme Court, where in 2010 the farmers won the case. The UU KIP was not yet implemented at the time of this victory. But since then farmers have been using the law to keep an eye on attempts of other companies to take over from Semen Gresik. Right after the ruling of the Supreme Court new companies, Indocement and Mulia Sakti, move in and announce an even bigger investment in the mountain area. Gunretno decides to invoke the UU KIP to obtain information about their plans and to see whether the environmental impact assessment is done properly. Gunretno says “If the water goes, it might be replaced by the cement factory [as a source of income] but if we lose our history and culture, can that be replaced by the factory?”

Access to Justice and Indonesia's Freedom of Information Act

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The impact of the UU KIP on spatial planning conflicts

While information might be sought with the aim of ending a conflict, the struggle to get information can lead to new conflicts when a public institution refuses to provide the requested information. Of a total of 18 reviewed cases which involved a request for information, in four cases (25%) both the request for information was fulfilled and the conflict have been solved. In most of the cases (10) the request for information was fulfilled but the case has not yet been resolved. Getting the requested information does not necessarily lead to a resolution of a conflict.

Request for information is not fulfilled and conflict has not been solved 13%

Request for information is fulfilled and conflict has been solved 25%

The request for information is fulfilled by the case hasn’t been resolved 62%

Graph 3. Requested information

But while the invocation of the UU KIP might not necessarily lead to the resolution of conflicts, obtained information does help claimants to prove that procedures have not been followed, that permits have been issued without an environmental impact assessment, that the process of freeing up land has been manipulated or that spatial planning policies have been violated. A review of the cases included in this study – particularly the five that we studied indepth – suggests that if the requested information is obtained, this information does indeed serve to redress power imbalances between disputing parties. This power imbalance is addressed in three ways: a. obtained information can strengthen the argumentation of citizens; b. the process of acquiring information serves to heighten media attention and c. the mere experience of acquiring this information seems to be increasing confidence in

Access to Justice and Indonesia's Freedom of Information Act

citizens that they can successfully interact with government officials. For example, the way in which the quest for information served to heighten media attention, served to put pressure on both companies and local governments and thus improved the accountability of local governments. The obtained information could also serve as a campaign tool to influence public opinion. As the conflicts between citizens and the government or companies are often highly imbalanced, the role of mass media is significant to address this imbalance and improve government accountability (Given the significant role of journalists, and the relatively little use they seem to be making of UU KIP, it would be good to focus subsequent training activities on them).

Case 2 : The dismantling of an BTS tower in Semarang When a Base Transceiver Station (BTS) for telecommunication is placed in the middle of their residential neighbour, inhabitants of jlCempedak Selatan successfully invoke the freedom of information act. When the tower is first build, inhabitants get 1 million rupiah as compensation. But some people refused to take the money. One of them is Rini, a noodle seller without a high school degree but with a lot of experience and will power. She fears that the radiation from the tower will affect their sleep and health as well as the learning capacities of their children. Rini successfully mobilizes other residents, and together they organise a public sealing of the BTS tower, well covered in the local media. The camat comes to meet them, and he forces the lurah to attend their discussion. The tower is built on the grounds of his office. The lurah admits to having received 5 juta from a company, PT Lintas, for allowing the tower to be built behind his office. With this information the residents contact PT. Lintas. The company then promises to break down the tower, but argues that it will take two months to do so as heavy equipment needs to be brought in from elsewhere. Rini and other neighbours do not trust this promise, and they decide to use the UU KIP to find out if a proper licence has been issued for the BTS tower. In Rini's experience, the formal procedures of the freedom of information act take too long. She feels it is easier to use personal relations with civil servants, whom she develops by meeting them regularly and by attending joint seminars that local ngo's are organising. Rini has been a parking attendant, which has given her a lot of insight into the working of the local government. Through these contacts she quickly gets information from PPID that no licence has been issued for the tower. She then takes this news to the mayor of Semarang, who calls the lurah and instructs him to take the tower down. The lurah subsequently invites inhabitants to help him do so. Rini arranges the citizen police (Pol PP) to do so, securing a relatively easy victory. Compared to the other cases in this study, this relatively easy victory seems to be related to the fact that the economic interests involved were relatively small. The case has an impact on the selfconfidence and the civic spirit of the residents involved. As Rini remarks: â&#x20AC;&#x153;We did not just get information, but we started to feel the confidence to question various other activities that are harming people and the environment. After citizens managed to get access to information, government officials no longer dare to give such a 'dark licence' to investors and they are more careful about using development funds since they feel being checked by citizensâ&#x20AC;?.

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Case 3 : Mining for Iron in Jepara Mulyorejo is small village on the coast of Jepara with a long history of struggling with mining companies. In 1978 the first company started to exploit the rich reserve of iron to be found in the sand on Mulyorejo's coastline. While the company was welcomed at first, soon inhabitants start to experience the impact the mining has on their environment. The iron deposits on the coastline were preventing the salt water from filtering in, and as these are being removed, the water wells and fields of the villagers turn salty. The fishermen in the community experience decreased hauls and are obliged to go further out to sea. Furthermore, the mining activities are causing erosion. In 1985 a first landslide occurs that destroys 13 homes, a recurring event since then. These landslides particularly turned the villagers against the mining activities. They organise various demonstrations at government offices, but their demand for a review of the mining licence is refused by government officials who argue that the mining contribute significantly to local tax government income (PAD). Inhabitants feel that laws and regulations – particularly the requirement to do a proper environmental impact assessment (Amdal) - are implemented in a biased manner. When a new mining company, CV Guci Mas, moved in, the protest heats up. On 30 April 2012 inhabitants organise a big demonstration where they damage vehicles and equipment belonging to CV Guci Mas. 15 people were arrested. After this demonstration, CV Guci Mas stops its operations, but a new company, PT AML, announced it will commence working on 200 hectares of land close to the sea. The inhabitants then seek contact with members of the district parliament (DPRD) and present their case to them. The effect of their audience with these local politicians is that they realise the importance of knowing about environmental and mining regulation to strengthen their arguments. They request LBH Semarang to train them. Says Sugeng, one of the activists: “Before the government could scare us because we know nothing about the law. After participating in the training about environmental law, about paralegals and about the freedom of information act our self-confidence has increased and we understood that our struggle is not wrong….we can now debate with investors and government on the basis of arguments. “ Their strategies subsequently widen. Contacts are made with villagers from Pati who have similar difficulties with mining. After the training on the UU KIP, they decide to use the law to see if the mining licences are correctly obtained. They ask Lakpesdam NU to help them with drafting the letters and interacting with civil servants. This led to a slight lack of control and understanding of the villagers of developments in their case. The first request of information about the licencing process yields a quick response from Jepara's PPID, though a lot of requested information is lacking. On June 5 Kardono writes a second request for information, asking specifically for the Amdal documents en de monitoring plan and the letters related to the licencing and exploration of mining prospects. This request gets stuck as this information is not with PU (Pekerjaan Umum, general works department) and PPID claims that it cannot get letters from SKPD (Satuan Kerja Pemerintah Daerah, local work department). Lukman, another activist, is preparing to send a complaint to the information commission, when he has a chance meeting with an assistant of the head of the responsible government agency (name?). He promises to help and a week later the requested information arrives. This information is subsequently used to file a case at the administrative court (PTUN) against the local government for wrongfully issuing the mining licences. This case is currently pending.

Access to Justice and Indonesia's Freedom of Information Act

Furthermore, the information that citizens got could also be used to strengthen their arguments to advocate their case, and it was used in two instances in on-going court cases at the administrative court. As for example Rini argued about her fight against the BTS tower in Semarang: â&#x20AC;&#x153;After we got the information [about the missing license] we had a basis [to explain] why we refused the tower. When there are government servants that intimidate us, we can now say 'can you read? Then read this!'.â&#x20AC;? As will be discussed more fully in chapter 5, such processes also heighten the self-confidence of citizens and their capacity to check the functioning of civil servants. What is wider impact of this slight redressal of power imbalances between citizens and the state? Below we discuss three dimension of the impact of the UU KIP the addressing spatial planning conflicts: its capacity to tackle state-business collusion, its impact on government accountability and a socio-economic impact. Firstly the impact on Indonesia's pervasive state-business collusion. The UU KIP is, to a certain extent, contributing to a scrutiny of the existing cosy relation between business and politics as it puts more pressurize on civil servants to follow procedures. Already during the New Order politics in Indonesia was characterized by very close relations between business tycoons and bureaucrats. This collusion meant that, in exchange of hefty bribes and generous campaign contributions, companies with the right contacts could relatively easy get the necessary licenses and permits for plantations, mining operations, factories, logging etc. Poorer citizens and particularly farmers were the victim of this cooperation. Since they had little means to defend their land tenure, they were regularly thrown of their land and made to suffer from the resulting pollution. In the first two years after the fall of the new order big demonstrations as well as spontaneous occupations enabled some of these citizens to regain their land. Some more or less progressive laws were adopted and hope arose for a more equitable way of solving disputes about land use. Yet the process of decentralization and the adoption of direct local elections have recreated to New Order collusion, but now at the local level: as politicians need big investors to bank-roll their election campaigns, businesses have acquired new local channels to smoothen bureaucratic procedures. In theory the UU KIP could serve to criticize and undermine these new, more localized, forms of collusion. As the case of iron mining in Jepara illustrates particularly well, citizens are using the UU KIP to check whether mining licenses have been issued in the correct way and whether the environmental impact assessment have been conducted thoroughly. The case illustrates once more that government servants are no neutral arbiters in disputes of natural resources extraction â&#x20AC;&#x201C; which, at least in theory, they should be. Not only do civil servants feel the need to protect the related tax income from which benefit, they seem to have been at least negligent in the way they have handed out the necessary licenses.

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In this case the request for information seemed to have succeeded in bringing this negligence to light – even though the case is still pending at the administrative court. Such cases can set an important precedent, in the sense that they can signal to other civil servants that their room for maneuvering is limited. Such cases could, gradually, force civil servants to stick closer to official procedures and thus curtail the exchange of money for bureaucratic favors that businesses, bureaucrats and politicians are engaging in. Yet the obstacles involved in getting this kind of information – see the textbox on the Kudus case – suggests that in most cases such kind of scrutiny is difficult to achieve. As we will discuss more fully in the next chapter, if civil servants and ruling politicians have an strong (financial) interest in the outcome of a conflict, they dispose of various ways of preventing information from coming out. Secondly, the studied cases suggest that the invocation of the UU KIP can actually help citizens to hold government institutions accountable for their actions. That was the main aim at the time when the UU KIP was adopted: that the access to public information would force civil servants to become more fearful of public scrutiny. During the New Order local political activity had been actively discouraged and public criticism of the functioning of state officials often met with harsh reprisals – while support for Golkar and the government was often rewarded with access to various development funds. Yet after the fall of the New Order a deferential attitude towards power holders seems to be giving way to a more critical attitude and an awareness of rights. The case of the telecommunication tower (BTS) (see textbox) illustrates how vocal citizens could use a request for information to prove that this tower had been placed without proper license. The BTS case also suggests – as discussed more fully below – that the mere process of requesting and obtaining information from the government is boosting self-confidence and creating awareness that the government can and should be held accountable for their actions. In this case citizens won an outright victory against local government officials. But in most of the cases a victory is not yet in sight. In Jepara citizens could access information that suggests that the local government wrongfully issued a mining license. In Batang citizens managed to get a letter from the Ministry of Maritime affairs that might, in a similar way, be used to challenge the location of the planned electricity plant in court. In Pati, a court case about the permit issued for the cement factory was actually won after a lengthy process in the supreme court. But this seems to be a rare case: the impact of such processes does not so much lie in winning such court-cases – since, as discussed above, this process is long and highly uncertain – but rather in impressing on civil servants that their work could be checked at any time. This seemed to work particularly when local media were willing to take up the case. In both Kudus and the BTS case in Semarang the media helped to put pressure on the local government institutions, forcing them to provide information and or reversing a

Access to Justice and Indonesia's Freedom of Information Act

course of action. It is ironic that in these cases the media focused on these requests of information, and paid relatively little attention to the way in which preman in Kudus and Batang were pressurizing citizens to give up their land. This suggests that one of the positive side-effects of the UU KIP is that the process of gaining access to information is helping activists to gain media attention. At present, given the functioning of Indonesia's legal system, this media attention seems more effective than court cases in improving the accountability of local governments.

Case 4 : An Electricity Plant in Batang “We only want to live peacefully and free of threats and intimidation. Since the process of building PLTU Batubara Batang began, we lost our peace and comfort as our lives have been full of fear. We just with the plan to build the PLTU (electricity plant through steam turbine) in our village will be cancelled.” Says Sutiamah, an active and determined citizen of Wonokerso. This is village lies next to the protected marine reserve Ujungnegoro-Roban. This nature reserve has been selected by the Indonesian government for building an electricity plant, with Japanese support. The PT BPI has been selected for building the plant. It seems like some of the considerable waste of burned coal will be dumped into the sea, and the plant will also suck in sizable amounts of water for its operations. Sutiamah and other inhabitants of the area therefore fear that the plant will damage their health as well as local environment, particularly the local fishing grounds on which many families depend. The negotiations with PT BPI about the price they were willing to pay for the land, did not go smoothly, as many did not want to sell their land. As the inhabitants felt that they were not being heard, they staged several demonstrations. They tried to block the drilling for the construction, which led to a violent police charge. Those who agitate against the power plant and those who refuse to sell their land feel threatened and intimidated by local government officials who want the project to succeed. The protests got so intense that in July a delegation from Japan came to Indonesia to discuss whether the project could still continue. While the activism mostly took the form of demonstrations, particularly Sutiamah adopted a strategy of requesting more information about the precise plans. She tried to obtain the master plan for the plants, a request which the PPID said could not be fulfilled as – according to them – this masterplan has not been shared with the government. Furthermore, Sutiamah decided to find out whether the status of the land – as a nature reserve – has indeed been changed to allow for the building of the plant. If this has not been done properly, this could be a basis to challenge the plans in the administrative court (PTUN). The process of getting this information has not been smooth. She did not get the right form to request the information, she was send to different departments, and – partly due to the formulation of her request – she got the wrong information. In the end Sutiamah did get the letter of the ministry about the changed status of the nature reserve, which Sutiamah plans to use to challenge the plans in court.

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A third, more diffuse type of impact that needs to be discussed is socio-economic impact. To what extent is the UU KIP helping citizens to protect their livelihoods? The conflicts discussed in this book generally arouse because people felt the need to protect their livelihoods. Fisherman in Batang and Jepara were afraid their fishing grounds would get depleted because of the industrial waste. Citizens in Jepara also saw the yields are their rice fields reduce as the iron sands are no longer blocking the salty water from the sea. Similarly residents in Pati worry about erosion and a lack of water for irrigation during the dry season. In that sense the UU KIP is helping citizens to protect the environment against the negative impact of industrial production. They are the ones feeling this impact. By invoking the UU KIP local residents are trying to ensure that, for example, an environmental impact assessment is properly conducted and that – in the case of Batang – the location for an electricity plant is chosen that makes more sense from an environmental point of view. The case of Pati (see textbox) suggests that these efforts can be successful and that the legal aid to help invoke the UU KIP can actually help to protect the livelihoods of people – even if it is difficult (if not impossible) to pinpoint how extensive this socio-economic impact is.

Access to Justice and Indonesia's Freedom of Information Act

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State institutions and the implementation of the UU KIP

In what way are state institutions, in particular the responsible PPID, responding the requests for information and implementing the provisions in the UU KIP? A first answer to this question can be gleaned from the following table on the governmental responses on the 18 requests of information that we studied. Of the 18 requests for information, only five were not fulfilled. Yet this figure needs to be broken down by looking at the extent of information that was actually provided. Only in 6 cases was all the information provided by PPID. In five cases the requested information was given, but only after a complaint was lodged at either the PPID or the Information Commission. This suggests that PPID is not yet fully forthcoming in providing information as they regularly need to be forced to provide the requested information. Given but not completed (2) 11%

Not Given (4) 22%

Given after appeal to Information Commision (2) 11%

Given as requested (6) 33%

Given after complaint to PPID supervisor (3) 17%

Information is not given due to inavailability (1) 6%

Graph 4. To what extent does the PPID provide the requested information?

An example is the experience of citizens who live in the vicinity of the planned electricity plant in Jepara. They had to go through a lengthy process to obtain information about the health effects of this plant. To get this, they requested information about the occurrence of illnesses in their area, about the conditions of cattle from the Dinas Pertaniandan Peternakan, information about the amount and the impact of chemical waste that was being released from the PLTU plant, and information about the efforts the management of PLTU to prevent fishing nets from being broken by the ships proving material to the plant.

Access to Justice and Indonesia's Freedom of Information Act

Case 5 : Land acquisition for the Logung Water Reservoir, Kudus “The people who live here are innocent farmers, illiterate and lack knowledge about the law” says Ngasiran, an inhabitant of Kandangmas, Kudus. His land is about to become part of a new water reservoir called Logung. The landowning farmers in this area are, on average, elderly and illiterate. This enabled a government committee in charge of freeing the land for the water reservoir, to pay compensation for the land that was well below market price. They were offered prices that made it difficult to pay for the yearly celebrations such as weddings and sunatan (circumcision). Meanwhile those inhabitants who refused to accept the lowly compensation fee were depicted as melawannegara('enemy of the state). Both state officials and local preman did not hesitate to visit their houses to threat them, saying “this village will set an example for those who did not agree to sell their land. We will put bamboo sticks in the land to show to what levels the water will rise.” Seeing these bamboo sticks did make people anxious, and some more sold their land for a low price. Harjono is a son of one of the villagers who returned after long travels. He got worried seeing the way they were treated, and decided to organise the affected villagers in an organisation called Forkomakembung. In February 2011 they write a letter to the district council requesting information about how much land will be flooded and what land-price is being budgeted for this project. His request is ignored, despite repeated attempts. Villagers start to suspect corruption, as it seems that government officials have been paying to a low price for the land while reporting a much higher land value: this would enable them to pocket the difference. Harjono then approaches members of the district parliament. They organize a public hearing on the issue, which concludes that indeed an amount of 226 million of government money might have been stolen. But the District Attorney (kejaksaan) decides not to follow up on this complaint for lack of evidence. When a few months later Haryono visit Kudus' bupati (head of district) with the presence of local journalists during election time. This puts pressure on the Bupati and he finally orders the local government send a letter with the names of the committee in charge of buying the land and an estimation of the value of the land of the villagers. As it turns out, the mentioned persons on the committee are unknown to the villagers, and the mentioned price is three times as high as the price that was being paid, thus confirming the suspicion of corruption. Harjono then gets in touch with LBH Semarang to write an official request for more information on the government plans, their land measurements and the amount of money that was, according to the accounts, paid to villagers. The Bupati refuses to give this information, stating that 'this is not public information, the price of land is a private secret (I).' The districts information department (PPID) feels that without approval from the bupati they cannot provide the requested information, describing the situation as 'dilematis'. Harjono and his farmers Forum then take their case to the information commission and in may 2012 they all travel in busses to Semarang. The panitia rules in their favor, and request kabupaten Kudus to meet with the farmers and present the requested informations. Despite some attempts at mediation, this request is ignored and until the present day the district government has refused to detail the amount and price of land that they paid for the water reservoir. Later even the KPK was approached who said that the amount of money involved was too small, while the local attorney has also not taken up the issue. As a number of farmers continue to refuse their land, the conflict is ongoing.

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When they requested this information, there was a demonstrable need pollution from the plant in the form of dark 'volcanic' ash was visible in the surroundings and was affecting harvests and people's health (ask widodo, how related to 5 cases?). Yet, after 17 working the days PPID had not yet send a response, after which citizens took their request to the Bupati. He did not respond either, so after 30 days citizens went, with the help of LBH Semarang, to the Information Commission. They initiated mediation between citizens and the Jepara local government which finally led to the fulfilment of the request for information – which proved that the occurrence of illnesses in the area was ten times higher than the national average. The mechanism and requirements of providing information is set out in article 22 of the UU KIP. Every request for information should get a confirmation of receipt, after which a written response should be send within 10 working days. This response should either contain the requested information or state the reasons why this information could not be given. The regulation does give the opportunity to extend this period with 7 days, so that a response should come at the latest after 17 days. If no response is received, the applicant can file a complaint to the PPID's supervisor – in most cases the Bupati. This complaint needs to be handled within 30 working days. If this complaint is also ignored, the applicant can take his or her request to the KomisiInformasi, the information commission specially set up under the UU KIP to handle conflicts regarding requests for information. On paper these provisions sound well. Particularly the promise, as mentioned in article 21, that the provision of information should be based on the principles of speed, timeliness and low cost. But in practice these provisions are not always effective. Particularly the Kudus case can serve to illustrate the limitations of the UU KIP. As discussed in the textbox, Harjono had requested information about the amounts of money that the government had officially paid to citizens as compensation for freeing their land for the water reservoir. The local government refused to give this information, which led to a case at the Information Commission. After an failed attempt at mediation, the commission ruled that the Kudus government should provide the requested information. They refused to abbey this ruling took the case to the administrative court (PTUN). PTUN also ruled in favor of the local residents. Only then did the Kudus government provide the requested information. It took 2 mediation sessions, four court sessions and in total 79 working days from the moment the request for information was filled. As Harjono said of the process, “It was not easy. The Information Commission convenes in the provincial capital [Semarang] which is far from our village. The cost to rent two buses is more than one million rupiahs ($100). People helped out to collect 50 thousand rupiah per person to be able to go to all these court sessions. Instead of going to the rice fields, they went to the sessions of the Information Commission with packed lunches of rice

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with sambal. Given this enthusiasm of people to see the court proceedings, the Commission should convene in the village so that people do not have to spend so much money to come to the cityâ&#x20AC;?. The cost involved in this process indeed raises the question whether the Information Commission could not functioning more like a sidangkeliling, a moving court, an example set by some state courts in West Java. The case of Kudus is somewhat example because of the strong interests of the local government to prevent the requested information from becoming public â&#x20AC;&#x201C; presumably to protect the colleagues who had benefited from the land scam. The chart below gives the general picture of how fast the PPID usually responds:

>17 Working days 28% <10 Working days 50% 10-17 Working days 22%

Graph 2. How fast the PPID usually responds

From 18 requests for information, in 9 cases a response was received within 10 working days. In 4 cases this response was received within 17 days. It seemed that the PPID of Semarang responded generally faster than the PPID of other district governments. When PPID receives a request for information, their task is to pass this request on to the relevant department. This can often be done quickly and 17 days are hardly required to find the requested information. But sometimes they run into structural obstacles. A number of factors seem to influence the quickness of PPID's response. As the case of Kudus illustrates, when economic or bureaucratic interests are high, the chances of a response are lower. Furthermore the support from local media and the presence of an active and informed 2 citizenry also seems to influence the quality of PPID's work. It seems that PPID faces three main challenges in fulfilling their responsibilities and responding quickly and adequately to requests for information.

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Interview with Direktur LBH Semarang, Andiyono, 3 Agustus 2013

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Firstly, the lack of (or slow) response is partly due to a lack of capacity. The district governments are not yet fully convinced of the importance of having PPID, and as a result both staff and budget are generally too small. In Jepara only one person was in charge of the managing the requests for information, after two others had been transferred out. As Sulismanto related, “I am the sole responsible of conveying the requests for information to the SKPD ('Local Governments Working Unit') or for informing the applicant about the status of their request”. The operational budget of the PPID is also small. When the researcher searched for the PPID office in Batang, a number of civil servants did not know where it was, nor the meaning of the abbreviation of PPID. In Kudus there was no sign to help people find the office, which was small and located next to the storage room. This is made worse as the local public works unit (SKPD) to whom most requests are directed, are often not enough aware of their role and responsibility in providing information. Heads of SKPD are often not aware that the UU KIP obliges them to provide information. In fact the UU KIP stipulates that SKPD's should have a staff member charged with providing information to PPID. A second challenge regards the independence of PPID. The PPID is not designed to be part of the local bureaucracy.Some PPID's fall directly under the regional secretary (Sekda), others are under the head of social relations (HubunganMasyarakat) or information (Dishubkominfo). The UU KIP allows for such a diverse organizational structure, the implementing regulation just stipulates that the PPID reports to the Bupati or Walikota (Major) and that should be manned by structural (i.e. non temporary staff) civil servants. As they are often of a lower rank in the bureaucracy than the department heads (kadinas) from whom they request information, this can create some uneasiness friction: “How can PPID 3 dare to force the head of SKPD to provide requested information?”. As Nono Hartono, an information officer, said: “One the one hand PPID should give as much information as possible to fulfil a request for information. But on the other hand PPID does not want to traumatize the SKPD. If the SKPD is not willing to provide information, PPID can only ask for the reason and can tell them that their reason is not provided for in the exceptions mentioned in the UU KIP. If they still do not provide the 4 information, citizens can complain to the Bupati.” When the SKPD refuses to give information, it is not easy for PPID staff to force them as they could risk their job. Furthermore, when the case is taken to the Information committee, “the

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Interview with Kusnaedi, PPID in Kudus, 26 july 2013 Interview with Nono Hartono 29 july 2013

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PPID has to take the side of SKPD. As one information officer said during an interview “the position of PPID is problematic. From one perspective as part of the government it is our duty to help secure the implementation of the policies of our superiors, but on the other 5 hand we also have to serve people to give information.” The case of Kudus illustrates how this lack of independence can help civil servants to pressurize PPID to help them hide their wrongdoing. When a case involved no influential civil servants or politicians, such as the tower in BTS or the sand mining in Pati, it has proven to be much easier to acquire the requested information A third and related challenge is that personal relations influence PPID's daily work. The studied cases suggest that in the process of acquiring access to information, personal relations are just as important as legal provisions. Due to legal uncertainty and pressure from senior department heads, they PPID do not always implement the UU KIP to the letter. And social connections do influence their work. When Lukman, an activist from Lakpesdam, was trying to help citizens from Jepara with their request for information, he happened to run into the third assistant of the Bupati. They knew each other from previous discussions about the budget of the district government. When Lukman explained the difficulties of people to get the necessary information, the assistant replied “No need to get all worked up, I will communicate with PPID.” Two days later Lukman received a message that he could come pick up the requested information. In the end the success or failure of UU KIP depends on the awareness and independence of civil society. But the presence and functioning of the PPID is also an important factor. From observing their work in these five cases, it seems that local governments are yet to be convinced of the importance of the presence of PPID, given the lack of personnel and budgets and the lack of awareness of their work among other civil servants. As mentioned above, a critical issue is the lack of independence of PPID as they lack the authority and capacity to pressurize the heads of SKPD to provide requested information. A future evaluation of the functioning of PPID should yield recommendations that make them more independent and more proactive in providing public information.

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Interview with PPID Kudus, 26 july 2013

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Evaluation of the impact of Tifa's program to support the use of UU KIP

The right to access public information is still new. People are starting to make use of the freedom of information act to address the conflicts related to land use and spatial planning they are facing. It seems that the use of the law is so far limited to instances of conflict, while this need not be so. In the case of Pati, one of the activists involved in the struggle against the cement factory, Joko Santosa, realized the wider applicability of the law and started to use it to find out how the local government have been using the school budgets (BOS). We feel that the challenge of future training programs on UU KIP should be in expanding the focus on conflicts and raise the awareness of how this law can help citizens to know more and to gain more control about daily problems and the role of the government in them. Before the program of Tifa, LBH Semarang never tried to get information through a formal mechanism. LBH activists had the impression that every public institution was in cahoots with big business to implement projects that would benefit them at the expense of marginalized communities. Through Tifa's program, LBH gained experience of a new tool to address spatial planning issues. 6 LBH Semarang has given training to people about the use of the Freedom of Information act. It is not easy to assess the impact of these trainings, but one way to do so is to look at the level of awareness and commitment of the 'alumni' of these trainings, such as Harjono, Rini, Sugeng, Sutiamah, Prasetyo, Anisah, JokoSantosa and Seniman. They all made use of the provisions in the UU KIP to address conflicts related to spatial planning. From observations and interviews with them, at least three main benefits of the training arise: Firstly, the training helped participants to improve their capacity to defend their case by providing legal arguments. At first, even during hearing with local politicians citizens sometimes lacked the capacity to argue their case. As several interviewed citizens stated, this capacity improved after the training. Secondly, the complexity and relative lengthiness of the procedure of requesting public information suggests that training legal aid activists as well as citizens in the workings of UU ________________________ 6

Interview with the director of LBH Semarang, Andiyono, 30-Jul-2013

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useful tool to gain media attention. At the same time it seemed sometimes information was requested without having an idea of its use. Furthermore, not always did citizens understand what information was requested and why, as activists from LBH and Lakpesdam sometimes took over from the citizens involved in the conflict. By integrating discussion about advocacy and requests for information, this can be avoided.

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KIP is highly needed. Since both practically and emotionally PPID and citizens are often far removed from each other, often these activists were needed to give advice, to fill out forms or to help to take quick action to secure information. Citizens struggled in understanding where and how to submit their requests for information, and civil servants through them off course by refusing their requests or by asking them to resubmit to another institutions. It was important that LBH activists helped in such moments to overcome difficulties and to follow up on progress. For citizens living particularly in remote areas, the interaction with state institutions is still a scary, intimidating experience, and both training and the support from LBH helped to overcome these feelings. For example in Jepara, LBH staff played a significant role in writing the request for information as well as following up on the case with PPID. Sometimes this dependency on LBH was a bit excessive, as some people described LBH as a 'god' for its understanding of the workings of the law. In this sense some citizens involved in these cases remained rather dependent on LBH to help address their conflicts. Yet this does not hold for all citizens who worked with LBH. Some of them used the experience to become more independent and launched new requests for information without their help – see the examples of the activists in Pati and Kudus. After being training about the workings of UU KIP, JokoSantosa from Pati organized a group of friends to file a new request of information about school budgets. In Kudus Harjono organized his appeal to the Information Commission independently of LBH's lawyers. Thirdly, during the course of the research several informants stated that their selfconfidence had increased, as they now felt they possessed the tools and information to deal with government authorities. The confidence and skills that some of these citizens displayed in their struggles – take Rini in Semarang or Harjono in Kudus – is indeed remarkable. In that sense the combination of the UU KIP and the training about its use, indeed can contribute to generating a more active and participative citizenry that can hold powerholders accountable. The unfolding of the five studied case do suggest that such future trainings could be changed somewhat. Firstly, there is no need to focus solely on conflicts related to spatial planning, as other conflicts related to the functioning of governments – such as public service delivery or land rights – could similarly benefit from the instrument that the UU KIP offers. In that light, and given the impact that this law can have – see chapter three – it makes sense for LBH Semarang and other legal aid organizations to ensure that knowledge of UU KIP becomes a central element of trainings of new staff and paralegals. Secondly, the sessions should integrate the training on using the UU KIP with a focus on advocacy strategies. As discussed above, the public information that citizens obtained was mostly used for advocacy, and the process of getting this information proved to be a

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Summary and Recommendations

On the basis of 5 in-depth case studies and a quantitative overview of 18 spatial planning conflicts in which LBH Semarang has been involved, we have in this report attempted to highlight the way in which Indonesia's new Freedom of Public Information act is being used. We have also evaluated Tifa's training program that aimed to help legal aid practitioners and citizens to make use of this law. In this section we summarize some of our main conclusions, and give some recommendations.

On the functioning of PPID 1. While the PPID themselves are often of good will and committed to their task, districts governments are not yet fully convinced of the need and importance of PPID. In a number of districts the PPID was understaffed, their budget is low and other civil servants are often hardly aware of their work. 2. PPID are a part of the district government which hampers their autonomy. When elected officials or other civil servants have an interests in preventing information from becoming public, PPID are generally not in a position to convince them. This is lack of independence is making the access to information more difficult for applicants, and - as in the Kudus case â&#x20AC;&#x201C; forces them to complain to the information commission. 3. PPID officers do take liberty in interpreting the UU KIP as in several of the studied cases personal relations between the applicant and civil servants did help to get the requested information 4. Recommendation: As the PPID's are now in function for almost 4 years, this is an opportune moment to evaluate their functioning. An evaluation could serve to improve their functioning by, for example, addressing the issues mentioned above. This evaluation might be something for TIFA foundation or OSI (or others) to lobby for.

On Tifa's Program : 1. Even if it impossible to measure the precise impact of Tifa's training program on the use of UU KIP, a positive impact was observed in the following ways:

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a. LBH staff indicated that they have been using the UU KIP much more often since the trainings, as they felt they had acquired a new tool â&#x20AC;&#x201C; which they might not have used as much without these trainings. b. The local activists following the training felt that it it raised their confidence in dealing with government institutions c. They also felt that the process of getting information helped them to raise the profile of their problem and to improve their bargaining position d. Given the complexities involved in successfully submitting a request for information, the training clearly met a felt need. 2. Recommendation: Given the usefulness of the UU KIP in improving government accountability and empowering citizens, there is no need to focus such programs only on spatial planning conflicts. Particularly public service delivery seems an area of work where UU KIP could be of much use. 3. Recommendation: Along that line it would be good to integrate the training on UU KIP in general trainings of paralegals and LBH staff, so that the invocation of this law becomes a standard element of their 'toolkit'. Given the fact that requested information was mostly used for advocacy, attention needs to be paid to identify what kinds of requests particularly serve advocacy strategies. 4. Recommendation: it seems that, compared to other countries (see for example Roberts 2012 for India), journalists make relatively little use of the UU KIP to expose governmental wrong doing. Given the importance of the media in improving accountability of local governments, a trainingfor journalists on the use of UU KIP seems a worthwhile initiative.

On the impact of UU KIP on conflict resolution Particularly the in-depth study of 5 spatial planning conflicts illustrates that the UU KIP is helping to address power imbalances between both citizens and the state, and between citizens and private companies. Yet this effect is curtailed in a number of important respects. 1. The five cases illustrate how the experience of invoking the UU KIP and getting requested information is boosting self-confidence and is helping to raise the public profile of their case. Particularly useful has been the way in which the process of acquiring information has served to get media attention. This has served in Pati, Semarang, Kudus and Jepara to put pressure on powerholders. In this sense the UU KIP is creating more active, participatory citizens which can help to make the government more accountable.

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2. UU KIP can prove to be an important tool in addressing the persistent collusion between bureaucrats, politicians and business. As poorer citizens are often the victim of this collusion – the five studied cases prove further illustration of this – the UU KIP could be a useful tool to expose instances where this collusion has led to a breach of procedures – eg when an license not properly been issued. As the studied cases did help to make government officials more accountable for their actions, submitting requests for information might curtail the freedom of officials to help companies in exchange for bribes. 3. Yet, it is regrettable that the UU KIP seems little useful to combat corruption. There are two weakness of this act that make this law, compared to for example India, relatively weak in helping citizens expose corruption. Firstly, when the UU KIP does not oblige government institutions to obey rulings of the Information Commission, which means that in the end a request for information could be ignored. Furthermore, as PPID are part of the local bureaucracy (see below), bureaucrats can pressurize them to prevent corrupt behavior from being exposed. The Kudus case illustrates that in instances of flagrant corruption the UU KIP is relatively toothless. 4. In this sense a key conclusion of the studied cases is that requests for information are more likely to be successful when the related economic interests are relatively small. Particularly when the local government has an interests in protecting certain policies or businesses, citizens face an up-hill battle to secure the requested information. 5. Recommendation: Lobbying efforts should strengthen the position of the information commission by making their rulings binding. This would make the UU KIP a more effective tool in combating corruption.

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Yayasan Tifa Jl. Jaya Mandala II No. 14E Menteng Dalam - Jakarta Selatan 12870 Indonesia Tel : (62) 021 829 2776 Fax : (62) 021 837 83648 e-mail : public@tifafoundation.org tifafoundation.org