Government information is regulated under the Freedom of Government Information Law when it is created or obtained within the authority of the government(Taiwan)

Angela Wu

The Supreme Administrative Court rendered the 105-Pan-532 Decision of October 13, 2016 (hereinafter, the “Decision”), holding that government information is regulated under the Freedom of Government Information Law only when it is created or obtained within the authority of the government.

According to the facts underlying the Decision, Appellant A had applied to Appellee National Taiwan University Hospital for the information at issue about the harvest of organs from patients whose hearts have stopped beating by medical doctors who were not a party to this litigation. The Appellee refused in the original disposition to provide such information on the ground that such information had not been obtained within its authority. The Appellant brought this administrative action pursuant to applicable procedures.

According to the Decision, although government information is not limited to information created or obtained via the exercise of government authority administration or private economic administration, still the information should refer to that which has been created or obtained within the authority of a government agency. Under Article 3 of the Freedom of Government Information Law (hereinafter, the “Law”), only information in any record which exists in media such as writing, drawings, pictures, magnetic disks, optical discs, microfilms, integrated circuit chips, and which may otherwise be comprehended by way of reading, viewing, listening, technology or auxiliary means is regulated by the Law. Therefore, although a piece of information falls within the authority of a government agency, still if the agency does not have information that exists in the formats required under Article 3 of the Law, the Law does not grant the people with any right to request such information to be created by the government agency, and the government agency has no obligation to create such government information at such request.

It was further pointed out in the Decision that “there were a total of 26 cases of organ donation by individuals whose hearts stopped beating with a total of 52 kidneys and one liver harvested for transplant during February 28, 1998 through April 2, 2005 with satisfactory results…” as indicated in a reported titled “The Investigation, Research and Evaluation of Organ Donation by Individuals Having No Heartbeat in 2007,” which was prepared by the Appellee at the request of the agency which was the Health Administration prior to its reorganization. The Appellant’s challenge that the Appellee had held the government information for which application was sought was not absolutely groundless, not to mention that the investigation of such fact was not without feasibility. Therefore, it was held in the Decision that since the original trial court was unlawful for failure to investigate if such information existed voluntarily before rejecting the complaint of Individual A directly on the ground of his failure to substantiate that the information at issue as requested actually existed, the original decision was reversed and remanded.