The Indonesia Public Information Disclosure Act (UU-KIP): Its Challenges and Responses

Received Apr 2, 2017 Revised Nov 6, 2017 Accepted Nov 20, 2017 Information Public Disclosure is one of the regulation that has purpose to encourage good governance for public service and citizen participation in national development. The enactment of Act No.14/2008 (UU KIP) has been strengthen the mandate to enforce the necessity of information disclosure in actualizing transparency and accountability in resource management and budget uses. It also become the primary instrument to prevent corruption, monopolistic competition and information disputes. However, there are certain provinces has not yet established information committee nor when it will be as entrusted by the regulation. Meanwhile, the remedies in term of jail duration and fines, arguably, it could not create deterrent effect to the perpetrator. Furthermore, the concern from ministry and public institution also in question in regard their roles of responsibility, lack of cooperation and continuous support. Thus, human resource, technology infrastructure, public participation, supervision and socialization become crucial factor to increase the awareness and satisfaction towards this regulatory compliance. This study is a qualitative research to evaluate the implementation of this Act by observing its consideration, background, principles and relevant article verses as primary sources through content analysis based on number of legal experts. Keyword:


INTRODUCTION
Information has been shaped drastically this following decade as the primary needs of each individual in developing the quality and participating into social interaction. The attempt of government to provide legal assurance in information disclosure should be appreciated and be supported. Therefore, there are some requirements to endorse the enforcement and preserve the intention of respected Act such as the commitment leadership, bureaucracy culture and citizen awareness. A society that wishes to adopt openness as a value of overarching significance will not merely allow citizen a wide range of individual expressive freedom, but it will go on several step further and actually open up the deliberate processes of government itself to the sunlight of public scrutiny. Information is a basic requirement for the development of each individual and social environment as important part of ecosystem in the education system and national defense. Thus, right to public information is an important human right, in which public disclosure is an essential characteristics of democratic country that upholds the sovereignty of the people to achieve good governance. Public disclosure is a means to optimize public oversight of the state implementation and other public bodies towards their end result of performance according to public interest as mandated by UU KIP [1]. In a truly open culture, the normal rule is that government does not conduct the business of the

RESEARCH METHOD
This study highlights some fundamental aspects related to the understanding of the means of regulation in the interpretative approach, which refer to the legal culture based on precedents or based on the implication of previous cases compared to the principle and objective of the law itself. Another important point relates to determine the criteria for weighting the factor to be evaluated in the specific content regulation, as it is manifested in the context of Personal Data Protection. Thus, content analysis has to address prior questions on the origin of the available texts, what they mean and to whom, how they mediate between antecedent and consequent condition, and ultimately, whether they enable the analysts to select valid answer to questions concerning their contexts or not [8]. The researcher has decided to use the interpretative presentation because of the legal nature of the issue that depends on culture and precedent while numbers are not necessary reflect the exact reality and current situation. After that, the researcher select specific legal content that meet with core concept of privacy that directly manages and administers the public information in proper manner by consulting with legal expert, in which fall into three categories, evaluation for articles verse, agreement to the act and the legal expert's general view.
The most important lesson learned from assessing the scientific quality of the research through an inter-coder reliability check is that it makes clear in which preliminary conclusions can be drawn from the collected data and more importantly, in which preliminary conclusions can no longer be supported, it will lead to drawing more modest results [11]. In practice, this method assumes the samples are fewer, at mismanage research can have misleading interpretation as they do not provide reliable information and be considered as doubtful. Lehmann et al. [13] urged that such quality assessment based on substantially fewer papers below 50 samples should be treated with caution. However, the nature of regulation require the evaluation to be carefully and strictly, by involving the qualified coder who have number of experience in legal aspect. The assessment of results from the inter-coder reliability test consists of determining whether the score test is above or below the accepted reliability standards for the selected coefficient. Reliability is indicated by the substantial agreement of results among these duplications. In order to assess the reliability of the coding, at least two different researchers must code the same body of content. The test involved 21 coders to generate the interpretation result to answer the research objective. Arguably, the number of coders used could not degrade the quality of end result as the coder selection process are followed by strict criterias while the purpose of this qualitative method to explain in depth about the problem and to support the quantitative result.
In general, there are three steps of content analysis used in this study namely multiple version of coding drafts (three version), which represent different type of approach based on research objective, then look for improvements by asking the feedback from the coders, and lastly, collection process of the related data using the final design. The researcher use hermeneutics approach to determine the final design based on its interface, format and ease of use, spaciousness, simplicity, convenience, flexibility and rigidity. It uses subject-object structure in which allowing coder to interact with intended text of content analysis. Based on the recommendation with the legal expert in regard to the result of testing study. The researcher determines five type of codes (B, L, C, K, A) with five criterias namely orientation, motivation, significance, principle and relevance for the chapter evaluation. In short, this study selected article 1/v2 (General Provision), article 2/v4 (Principle and Objective), article 4/v2, 6/v3 (Right and Obligation of a Public Information Applicant, User and Public Agency), article 11/v1, 12, 14, 15, 16 (Information to be Supplied and Published), article 17, 18/v1-3 (Classified Information), article 22/v1-4 (Mechanism to Obtain Information) and article 52, 53, 54/v1-2, 55 (Crime Regulations).

THE CRITICISM FOR PUBLIC INFORMATION DISCLOSURE ACT 3.1. Legality Aspect
Indonesian State Intelligence Agency also drafted state secrecy bill in order to provide regulation to protect confidential and sensitive government information to the public access [7]. Meanwhile, the citizens remain skeptical about its importance considering it against with democracy and constitution. UU KIP has purpose as legal measure and instrument to eradicate the corruption in the public sectors. However, the fears to exploit and misuse of public information maybe well-thought-out because certain information have commercial value based on its context. More corrupt the state, the more numerous the laws, when the state is most corrupt then the laws are most multiplied [10]. The state should have the principle to have maximum exposure and limited exemption. Thus, the relevant body should have consequential and categorical harmtest to find common ground. Some skeptical citizen also can submit judicial review about the regulation substance such as the discrimination issue in the criminal verse or the limitation issue in exemption information. Furthermore, the Information Committee (IC) has been mandated as an independence institution to implement the law, to provide the standard directive of public information and to settle public information disputes. But, there is no explicit definition that differentiates between "Data" and "Information". Some also argue the lack of clarity in public and freedom definition. The main principle of this Act is that public institution has to provide the original data to the public whereas in fact, it emphasizes that public institution shall provide just information as a final product. So, this vagueness might be lead to misleading and insufficient meaning. Moreover, it does not elaborate about information standard format to be provided to the public eyes [12]. Meanwhile, the definition of public is not only related to institution but also to the product and service. The freedom also have problematic to be defined in which it presents the possibility to have full access unimpeded. Thus, this regulation seems contrary to the openness principles whereby it should be easily reachable, to be processed and to be used. By applying different terminologies and interpretation between the information user and applicant also can be problematic. The public information user is defined as a person who used the information in accordance with UU KIP, while the public information applicant shall only for Indonesian citizen. Furthermore, the word 'claim' in Article 47 also become source of conflict. Certain people interpret as an appeal or request to some sort of objection, while others see befits as a civil case in the public courts. Meanwhile, memorie van toelichting of this act does not contain a complete explanation in which IC (information committee) can be sentenced to pay compensation for its decision.

Implementation Constraints
A study has been done in the UK concerning Open Government Data implementation that declared there are around 40 barriers to be considered [12] such as Privacy and Intellectual Property (IP) Right, data incomplete in government, lack of enforcer capability in technology, data misuse, lack of data quality from government, small percentage of community who know how to use the information, the dependency of open data upon technology, etc. Similarly, the research done in Sleman [13] concluded that most of the official and citizen lacked of understanding about UU KIP. Essentially, IC should do massive promotion and socialization to provide at least better awareness level. The high level of information disputes between public agencies and applicant information become other barrier in the implementation. For example, the public body refuse to provide information by using an excuse of article 17 of the exempt information or the negligence in preparing the information. Indeed, the article of 35-50 has provided the mechanism to handle the information disputes. However, it becomes less useful and effective if the required information is very urgent and limited in time especially for the purpose of journalism. Another constraint is related to the current budget, infrastructure, human resources, operational standard procedure, performance indicator and environment. It takes commitment from the executive and legislative branches to be consistent in providing budget annually in the State and Regional Budget. Hopefully, the budget plan is not used as a means to intervene when the institution is not willing to compromise towards public body mistakes. Moreover, although there many kinds of information that has to be available at any time, UU KIP does not enforce the public institution to provide the information to the public in a proactive way. Indeed, the implementation of this regulation is not always dependent on the material perfection but political will of all stakeholders is crucial.

Verdict Issues
The different interpretation of the articles that do not elaborate about scope and limitation can be disruptive to public and press, in which should be clarified through precise explanation and considetarion to avoid elastic interpretation [7]. Organization and institution should set their standard operational procedure (SOP), in which involved the set of process for classified information, its reasons of classification, the request of permission and the reveal mechanism [16] to achieve efficiency, quality output and uniformity of performance, while reducing miscommunication and failure to comply with industry and government regulations. The IC has an authority to establish SOP for public information besides adjudication and mediation processes through arranging "blueprint for continuous development" first [12]. It is purposely to centralize the data in a comprehensive institution in order to enhance data integrity, data integration, and data release. Moreover, UU KIP clearly classified that there are two types of Information which are private and public information. Some information might not allow to access by the public unless it permitted by relatedinstitution. Otherwise, the questions might be arises in how to enforce an institution upon public's data usage and personal data. The privacy and data protection are two critical issues, therefore, should not neglect by the government because the use of public data without consent is unlawful. Decision in mediation based on article 39 is final binding in which applicant and public institution conclude their agreements and strengthen it in the verdict of the IC. However, there is slight possibility for public institution to deny the agreement while IC do not have authority to force its verdict, eventhough at certain extent it could be through court lawsuit. On the other hand, Act mandated the IC to solve information disputes within 100 (one hundred) days but the objecting party may bring the case to the Supreme Court lead longer days to be settled. In reality, several public institutions still have tendency to refuse the access to certain information such as National Police on fat bank accounts and political party on 2012 financial report while several cases still unresolved such as the indication of mark-up on submarine procurement in the Ministry of Defense and the case of bacterial-contaminated milk formula for infant, which might involve Ministry of health [17]. They might be involving several reason such as credibility issues, closed policy, lack of commitment, political agendal, subjective interpretation, covering frauds or violations and so on.

Bureaucracies and Administrative Issues
Most organizations have realized that their business are now more dependent on ICT than ever before and that greater focus should be placed on business continuity planning (BCP) that have openness and transparency attribute to the public access to ensure that organization do not experience prolong downtime during a disaster [9]. It can be seen, high levels of disputes among the applicant and public institution submitted to the IC as one proof that there are huge gaps of mindset and perspective on both sides in practical implementation, though they agree upon improving the quality of democratic process within government activities. For example, the interpretation of article 11/1(e), create multiple interpretation in which public institution is obliged to supply public information if only there is an agreement between them and a third party, whereas in the contract of procurement and services usually only allow two parties, as well as the article 9/2(c) that concerns on information to be supplied and published periodically but it should be through regular or continuous request [18]. A study in Semarang district [15] about the implementation of UU KIP at three different local public institutions, those are Bappeda (development and planning body), DPKAD (finance and assets council) and Disdik (education authorities) showed that there are some bureaucracies and administrative issues such as the lack of structural composition of PPID (documentation officer), incomplete information in SKPD (local unit), lack of socialization from public relation unit, lack of discipline and understanding of related officers and reliable human resource limitation. Moreover, a derivative regulation upon UU KIP also important to be set such as the mechanism how to get the public information, IC personel recruitment, SOP, budgeting plan and so on, to avoid overlapping authority and responsibility with other public institution such as Pemda (local government) and Kominfo (Ministry of ICT). Interestingly, article 25 mentioned that IC has 7 (seven) members who reflect elements of the government and the society but article 30/2 stated that the recruitment of IC is conducted by government transparently, conscientiously and objectively, in which creates another multiple interpretation and it seems that government have certain reluctancy upon the existence of IC at the first of drafting [7].

Commercial Purposes
Article 1/3 did not explicitly put the state-owned enterprises (SOEs) and political parties, although the transparency of SOE and political parties set in the torso. As for private companies that run the contract for government or appointed to carry out the mandate under article 33 of constitution 1945 to manage natural resources for prosperity of people, are not under the provision [7]. Moreover, by Act No. 7/2006 (Multinational Company), Indonesia has ratified the United Nations Anti-Corruption Convention, which the subject of combating corruption has been extended to the private sector. From this perspective, it means that private organization also play crucial role in the process of information transparency especially to provide important information on funding source and its flow that will have implication to the public interest. It will be huge impact to the country's sustainability if private especially in the commercial sectors has been neglected by the regulation as the object for transparency process although act no 40/2007 (Perseroan Terbatas) legislated limited corporation in particular, but there is no explicit provision that regulated about public information disclosure in the commercial company [11]. The type information is required to open include the information about performance of public institution and financial statements such as budget plan realization reports, balance sheets, cash flow statements, list assest/investment and notes on financial statements in accordance to accounting standards, although some people argue that BUMN/BUMD should be

Individual Privacy
Based on principle of open up government, it elucidates that the data given by the government has no intellectual property right, which mean it is free to use and promulgated except related to privacy and security reason. Based on UU KIP article 17/h individual privacy is categorized as confidential information that cannot be open to the public unless with the subject consent and the revelation can be made if it is related to the official position of someone in the public institution [12]. However, Indonesia does not have a policy or regulation regarding the protection of personal data in single focused act but scattered around based om specific context and consideration such as Act No . Several issues have arisen where the service provider company share sensitive information about their consumer data to their marketing agencies against their initial agreement that can lead to cybercrime or abuse authority [23,24]. The authorized party or commercial sector has to follow the proper principles due to privacy protection that are data subject consent for disclosure and process, data subject notice the description and purpose, data management and control, information transparency and completeness to prevent misleading and misuse [14]. Basically, information disclosure and privacy protection have the same goal to encourage the accountability of government to the people although in some cases, they are overlapping and creating conflict, but both these rights are mutually exclusive and complementary [25].

Remedies and Sanction
Information freedom can bring huge benefit to the society but also disaster and insecurity. It is necessary for UU KIP to have solid focus to regulate the access of information only, not the usage of information [7] such as in article 51 that stated "Every individual who deliberately uses the public information against the law is sentenced to prison for a maximum of 1 (one) year and/or is fine for a maximum of Rp.5.000.000 (Five million rupiah)", may disrupt public right, even some form of public criminalization. Therefore, punishment commonly applying for a person who intentionally deter the access to public information or to disseminate classified information. Thus, public institution have responsibility in term of manage information public and accountability to the public citizen, but by making them equal in term of role is unfair and contradicted as initiated in article 51-57. Supposedly, UU KIP is the legal framework to reform the bureaucracy through clear and respected norm not to reduce the public right by emphasizing the consequences [7]. On the other hand, unfortunately, the performance of IC is very an alarming due to the fact that less than 50 (fifty) whom has PPID [19]. It might show lack of concern, miscoordination and seriousness from relevant structure to help the readiness of IC in term of logistics and resources. In order to provide effective communication channel and good behavior to public, both remedies based on performance indicator and sanction based on norms and ethics violation can be conducted. The list indicators could be used to assess namely (1) the IC is formed in all provinces along with the budget is supported (2) the PPID official is designated in pursuant to prevail laws (3) and functioned optimally (4) as well encouraging the citizen to be proactive to control the roles of public institution [19]. By avoiding rubber articles with technical guidance (juknis) could help aligning the literal implication of verse and subjective interpretation from government, which often become major problem implementing certain regulation effectively.

Witnesses and Victims Protection
In order to protect the witness and victim, UU KIP mentioned them in article 17/ letter a (2), although it regulated specifically in UU No. 13/2006 (Witness and Victim Protection Act by stating "Public information that if opened up and supplied to the Public Information Applicant could obstruct the process of law enforcement such as information that could: disclose the identity of an informant, reporter, witness, and/or the victim who knows of the criminal act". However, the Indonesian Corruption Watch (ICW) assessed the implementation of WVPA is not fully effective since 2006; there are some blemishes in the content where took many casualties upon the reporter. It was recorded during 2015; the data from Witness and Victim Protection Agency had figured out about 1,590 cases (Kompas.com) that could threaten upon the reporter of corruption cases and so on, even some of them have to lose their jobs. So, how about the witnesses and victims protection in the context of UU KIP? The WVPA which was expected can protect the witness and victim, even helpless. How could that UU KIP guarantee the protection of the witnesses and victims if there are still many casualties occurs? Therefore, the institutions which are in the circle of criminal justice including criminal detective agency of National Police of Indonesia, judiciary, court, penitentiary, and Witness and Victim Protection Agency could be bound and work together tightly to implementing UU KIP.

RESULT AND DISCUSSION
A statement that ascertains facts will normally be followed by certain immediate or remote consequences in the form of action or non-action by the judicial and executive agents of society. When a rule of law has been reduced to words, it is a statement of the legal effect of operative facts. Corbin [20] explained the legal relation with verified and falsified that a law is a rule concerning human conduct established by those agents of an organized society who have legislative power. Therefore, Hsieh [21] mentioned that cases play a vital role in interpreting statutes, building arguments, organizing analyses and conveying points of view in the common law system. In synthesizing the rule, it can be through comparison with previous similar cases by prevailing rule in that doctrine or answer to the issue and reason. Meanwhile, civil law proceeds from abstractions, formulates general principles and distinguishes substantive rules from procedural rules whose core principles are codified into a referable system that serves as the primary source of law. Intercoder or interrater reliability can be defined as the extent to which independent coders evaluate a characteristic of a message or artefact and reach the same conclusion [22].
There is always the doubtfulness over the consistency of the coders' agreement in the data collection process due to their variability. Perfect agreement is seldom achieved and confidence in study results is partly a function of the amount of disagreement or error introduced into the study from inconsistency among the coders. Thus, the well-designed research must include the clear procedures to set the standard in the agreement measurement for rendering ratings. The instrument design is also necessary to involve coders in training process to provide clarity over terminology, objective and criteria. The consideration of the regulation, the location and the verse statement is presented along with the coding sheet to provide reliable viewpoints in the coherent meanings of regulation. The benefit of the result in the matrix is to allow the researcher to discover if errors are random and thus fairly evenly distributed across all coders and variables or if particular coders frequently records values different from the other coders. The highest score for the percent agreement are 92.59% (coder1 & coder14) followed by 78.7% (coder16 & coder14) and then both score 74.07% (coder1 & coder16, coder2 & coder14). One of the information disclosure principles that the public institution has to be initiated to disclose information related public interest in proactive means without asking first. In short, there are at least three criteria that reflected the open data, firstly, the availability and access. Secondly, data could be spread and reusable and thirdly, universal participation [12]. There is zero value for percent agreement, which occurs nine times because several possibilities such as different interpretation, context awareness and circumstances consideration, performance of regulatory body, indication of corruption. The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations and legal principles and it also requires the government to exercise its authority under the law. A distinction is sometimes drawn between powers, will and force, on the one hand while the law on the others. There is 50 out of 210 percent agreement, which has score above 40% with exception for three closed-limit score of 39.82% by range of 1% as boundary (coder6 & coder21, coder11 & coder16, coder12 & coder16), which can be claimed as good agreement level. Although the number of agreement for fair and good only a few number but if the limit was reduced to 30%, it will add more number into reaching a half of total combination of two-coder. It can be concluded that there is the range of 7.41%, 21.3% and 25.93% of the amount of data misrepresents the research data or incorrect data while the lowest score above zero is 3.7% (coder6 & coder9, coder9 & coder13).

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The limitation of the applicant of the public information led to unparallel with the Constitution 1945 that guaranteed everybody, not only Indonesian citizen but foreigner as well, to have the same right of information access. Normatively, the right and obligation of an applicant detailed in the article 4 till 8, but some aspects have to consider such as the applicant need to stated the reasons before requested the information and what the measurements upon privacy limitation and public official secret [16]. In this study, average pairwise percent agreement for content analysis on Act No.14/2008 is equal to 57.805% and pairwise Cohen's Kappa is 0.439 with the number of decisions being 1449, the number of cases 69 with number of coders 21. Meanwhile, Fleiss Kappa is 0.437 (Observed 0.578 & Expected 0.25) and Krippendorff Alpha is 0.438 (Σ c o cc 837.588 & Σ c n c (n c -1) 523506). Landis and Koch [14] gave the following table for six class of interpreting values in Fleiss' Kappa as the methods to assess the reliability of fixed number of coders, which are less than zero (0) means 'poor agreement', 0.01-0.2 means 'slight agreement', 0.21-0.4 means 'fair agreement', 0.41-0.6 means 'moderate agreement', 0.61-0.8 means 'substantial agreement' and 0.81-1 means 'almost perfect agreement'. However, this standard table by no means universally accepted, which could be likely as personal opinion without basis evidence to support. The intention of having security policy was not to persuade users but to convince them, by letting the users reflect, on their own terms, on why information security is important and on how to react in certain circumstances [6]. A high degree of privacy can be described as the guidance for an object to choose which objects it will communicate with, by supporting data in the form of reputation and trust metrics of the candidate objects [26]. Due to public opinion, which view privacy as the secondary priority or the environment that shape the privacy concern as the communal interest, the government and organization approach to protect personal data should consider the thing that can provide the perception of benefit and increase the concern on privacy [28]. Therefore, the media provides effective and competitive technology tool for knowledge sharing, which can be used to increase the awareness level of citizen especially young generation [27] in understanding the importance of UU KIP.

CONCLUSION
The effectiveness of UU KIP in term of enforcement will be influenced by at least three requirements, first, definition of substantive regulation that align with purpose of enactment on fulfilling citizen's right for the information, second, the infrastructure support in the form of appropriate institutional and adequate means to implement the legal norms, last, the encouragement from legal culture in the level of citizen and relevant element that is bound to regulation. Creating good governance is a necessity if all of the principles of state administration can be carried out professionally and proportionately. Public information disclosure as a form of good governance must be properly implemented, so that the democratic journey as a mandate to deliver democratic reforms became apparent intrinsic of democratic country. The enactment of Act No. 14/2008 is the answer to legal protection, government transparency, public participation and accountability. Therefore it is important but should be careful to formulate and harmonize legislation both in terms of freedom of information and personal data protection to avoid mismanagement and misunderstanding in every process involving individual and public interest. As this research has been done to assess the challenges and response of information public disclosure act, it is intended to reveal a hitherto implicit and explicit enforcement status and uncover in depth analysis of its effectiveness in any given condition.