Freedom of government information in Taiwan

Taiwan’s Freedom of Government Information Act (FGIA) took effect in 2005. It was enacted to

…establish institutions for the publication of government information, facilitate people to share and fairly utilize government information, protect people’s right to know, further people’s understanding, trust and overseeing of public affairs, and encourage public participation in democracy. FGIA § 1 (translation slightly revised).

Despite these broad policy objectives, disclosure of government information under the Act is preempted by other laws governing disclosure. FGIA § 2. For example, Taiwan’s Classified National Security Information Protection Act provides that top secret documents are automatically declassified after 30 years, but the black out period can be extended once for another 30 years. This rule partially frustrated China Times reporter Jiang Hui-chen’s efforts to investigate the Ministry of Foreign Affairs’s archives by applying under the FGIA for information about Taiwan’s withdrawal from the United Nations in 1972.

The FGIA permits foreigners to apply for information if “the laws of their countries do not restrict nationals of the Republic of China from requesting government information in the foreigner’s country.” FGIA § 9.

The Chinese-language application for government information is available on the Ministry of Justice’s website. A number of government agencies also provide sample applications with instructions. The application can be filed with any central government agency or local government although first-time or overseas applicants may need assistance in determining the correct agency. After an application is filed, the agency has 15 days to act on the request for information. The review can be extended once for 15 more days. FGIA § 12.

If the information relates the rights or interests of another person, legal person, or group, the government agency is required to notify the third party of the request in writing. The third party has 10 days to comment. FGIA § 12.

The agency should approve the application if the public interests served by the requested disclosure outweigh the harm to third party rights caused by the disclosure.

Unfortunately, there is no single source for statistics on requests approved and denied. Subordinate agencies and local governments report approvals and denials on their websites regularly but only in Chinese. Nonetheless, a few examples will show that requests are made and approved with some frequency. For example, the National Immigration Agency had 300 requests for files in the first three quarters of 2012. Of these 111 requests were approved in full while 118 were partially approved. Seventy-one applications were completely denied.

In the first quarter of 2012, The Ministry of Foreign Affairs received 2,070 applications for files and approved all of them in full.

Perhaps surprisingly, the Environmental Protection Agency received just 6 applications in 2011. Four applications were for files and two ere for “other government information.” Of these applications, just one was approved in full, three were partially approved, and two were denied. The Environmental Jurists Association has a thorough discussion (again in Chinese) of a hypothetical application by a citizen who wants to obtain information about a polluting factory where the polluting factory objects to the disclosure.

An applicant for government information can appeal agency decisions that deny access to information. The appeal must be first made to the denying agency before the unsuccessful applicant has standing to challenge the decision in the administrative courts.

Applicants regularly bring actions in the administrative courts when their applications are denied.

In 2010, the Ministry of Justice compiled freedom of information cases that reached Taiwan’s Supreme Administrative Court between late 2005 and 2010. The cases involved 14 of the FGIA’s 24 Articles. Article 18, which sets forth restrictions on government disclosures of information, was the most frequently cited provision.

In these 41 cases, just three plaintiffs prevailed. The prevailing plaintiffs included a construction company who had been the subject of an adverse decision by Taiwan’s Fair Trade Commission. The company sought complete records of the Commission’s proceedings in the case that resulted in the adverse decision. Pan Zi No. 130 (2008).

The second successful plaintiff was an individual seeking information from the Ministry of Defense about a military housing compound for use in other litigation. Cai Zi No. 4335 (2008).
The third successful plaintiff was the Humanistic Education Foundation, a well-known education reform group. The Foundation sought information and documents related to Changhua County’s 2006 Textbook Selection Pilot Program from primary and secondary schools in Changhua. Pan Zi No. 579 (2010).

Written May 10, 2013 By Michael Fahey.