Coalition for Good Governance (CGG)
c/o The Secretariat, c/o 40-A, Jalan 52/18,
46200 Petaling Jaya, Selangor,Malaysia.
The Coalition of Good Governance (CGG) welcomes the Selangor State Government's reform initiative through the tabling of the Freedom of Information Enactment 2010, the first such legislation in Malaysia. This is indeed a step in the right direction towards giving the people of Selangor the right to access public information.
The enactment seeks to enhance disclosure of public information for the public interest and to provide to every individual an opportunity to access to information made by every department of the State Government. This approach radically shifts the obligations to the state to make information available to the public and to not have unlimited powers to decide what information people can have access to as is practiced under the Official Secrets Act 1972.
We are aware of the challenges from within the State Government as faced by the State EXCO in tabling this enactment but at the same time we would like to congratulate them for pushing ahead with the bill, despite the fact that the proposed legislation lacks sufficient particularity and legislative intent to be reflective of a true freedom of information law.
The proposed legislation has been severely watered down and while it retains the name FoI in form, its substance needs to be reviewed. Civil society organisations have campaigned in the past for a good FoI, which should cover the following points:
1. Principle of Maximum Disclosure – access to information is a basic necessity and right, not a luxury
2. Routine publication – public bodies should routinely make available a wide range of information of public interest
3. Independent Administrative Oversight Body – to oversee the implementation of the law and to adjudicate appeals against refusals to disclose information. Members are chosen in a transparent manner with gender representation, it should be open and involve civil society
4. Promotion of open government – through adequate training, procedures for maintaining records and to make it a criminal offence to obstruct access to information
5. Exceptions – should be set out clearly and narrowly and should be limited to protection of legitimate interests. Information should be disclosed notwithstanding the requisite risk of harm where this in in the overall public interest
6. Processes and costs – law should set out minimum procedural rules and costs should be limited to the cost of duplication of the information
7. Open Meetings – law should establish a general presumption that official meetings are open to the public.
8. Secrecy laws and practices – the law should prevail in case of conflict between it and any secrecy law
9. Whistleblowers – individuals should be protected from any legal, administrative or employment related sanctions for releasing in good faith information on wrongdoing
10. Review of the law – the law should provide for its own comprehensive review
However the CGG notes with concern that the enactment has serious weaknesses that could jeopardize the spirit of the legislation, and we call for scrutiny of the act and propose that it be strengthened to reflect the true intent of any good FoI legislation. CGG has identified several areas that are problematic and will need to be reviewed.
1. Information must be a right of the individual - The enactment that was tabled proposes that every individual has the “opportunity” to access public information and Section 5(1) reiterates that “any person may be given access to information made by every department.” The provision does not entrench the right of the individual to seek and obtain information. Instead, the enactment is still premised on the idea that the Government owns information and allows people access to it, rather that the Government holds information on behalf of the people, who have a right to access it.
2. Exemptions are wide - The enactment sets out its limitations in reference to the Official Secrets Act and does not include bodies created by the state or that have a public interest function. This means a lot of private contracts that have a public interest will be excluded from the scope of the law. The law does not specify the test of public interest as a legitimate overriding principle.
3. Processes that could affect the exercise of rights - Several provisions make the law weak as they could potentially be abused to prevent the exercise of right to access information. For example Section 6(2)(d) requires the person requesting information to “state the reason and purpose for application”, which could disqualify people purely on the Information Officer's judgement. The Information Officer can also be let off for not responding to requests within the stipulated time under Section 7 and that such non-communication should be assumed as rejection of application. The enactment also does not stipulate the costs of obtaining information and this is one of the easiest ways of keeping secrets.
4. Penalties -The enactment views penalties within the parameters of the potential abuse of the information. Section 15 considers it an offence when someone uses information for reasons other than those stated in the application form when making a request, or if a person gives false information in the form. The law should instead protect the rights of people to make request and prevent obstructions to the public authorities from fulfilling their roles under the law and in preventing illegal destruction of documents.
5. Appeals body not clearly independent – While the law provides for the setting up of an Appeals Board, its members are appointed by the state ad the Chairman is given wide powers to make decisions. A good law will have selection criteria and the appointment process is open and transparent.
Based on our initial observations, we hope to engage with the Select Committee actively to express our views and recommendations. In this regard, CGG welcomes the setting up of the committee, to be chaired by Hulu Kelang state assemblyman Saari Sungib, and we believe the committee should have the powers and responsibilities to conduct widespread public consultation and to engage all stakeholders meaningfully.
Task Force on the FOI Legislation
Coalition for Good Governance