2016.10.05
Jenny Chen
Article 18, Paragraph 1, Subparagraph 3 of the Freedom of Government Information Law provides: “Government information in any of the following circumstances shall be restricted from public disclosure or be withheld: (3) The draft for internal use or other preparatory operations before the government agency decides on its intent, provided that government information may be disclosed or provided if it is necessary for the sake of public interest.”
The Ministry of Justice rendered the Fa-Lu-10503515120 Circular of October 5, 2016 (hereinafter, the “Circular”) to communicate that “the draft for internal use or other preparatory operations before the government agency decides on its intent” means documents for internal operations of an administrative agency such as draft memos, internal applications or documents soliciting opinions from different units. Whether a specific piece of information is an internal draft or part of other preparatory operations of an internal unit should be determined through comprehensive observation of an individual event. It can hardly be asserted that factual descriptions always have nothing to do with thinking and argumentative processes. Materials that pertain to basic facts about the decision on intent and do not disclose the internal communication or thoughts in the decision-making process should still be disclosed, since the disclosure not only does not impair the formation of the agency’s intent but also helps the citizens review and supervise the reasonableness of the government’s decision-making process.
This Circular also points out that the “necessity for the sake of public interest” in the proviso of this subparagraph shall be determined by the competent authority by comparing the “public interest to be promoted through the disclosure of the draft for internal use or other internal preparatory operations” and “the guarantee of the freedom to participants of the decision-making process to ensure their unreserved participation and prevent interference to the decision-making process.” If it is determined that “the public interest to be promoted through the disclosure of the draft for internal use or other internal preparatory operations” outweighs “the guarantee of the freedom to participants of the decision-making process to ensure their unreserved participation and prevent interference to the decision-making process,” the information should certainly be disclosed.
The Circular further points out that the relevant drafts prepared in the thinking process of a case under investigation such as investigation reports (drafts), internal applications and memos, letters to other agencies to seek information, worksheets of investigators, interview transcripts, memos countersigned by the Members of the Control Yuan and replies from other agencies as prepared and obtained in the course of case investigation perhaps may be deemed government information under this subparagraph. As for interview transcripts and replies from other agencies which pertain to factual descriptions in the course of case investigation by the Control Yuan, whether their public disclosure will affect the communication of opinions and the formation of intent in the decision-making process should be determined based on the facts of individual cases.