by Gan Pei Ling / 15 April 2011 © Selangor Times
Selangor made history when it became the first state in Malaysia to pass the Freedom of Information (FOI) Enactment at its state assembly on April 1.
The state now joins more than 90 countries, including our neighbours Thailand and Indonesia, with an FOI law that recognises citizens’ right to information.
The Centre for Independent Journalism (CIJ) has hailed the passing of this law as a “breakthrough” amid an entrenched culture of secrecy among our government bodies backed by the Official Secrets Act (OSA).
Compared to its original draft tabled last July that was heavily criticised by civil societies, the FOI Enactment passed last Friday has seen several improvements.
Greater transparency and accountability
Firstly, civil servants can now be fined up to RM50,000 or sentenced to five years’ jail, or both, if they are convicted of intentionally giving false or misleading information.
It is also considered an offence if civil servants intentionally restrict or deny public access to information, unless that information is specifically exempted under the law. Civil servants were not liable to such a penalty in the original draft of the FOI Bill.
Secondly, the FOI Enactment now covers not only state departments, but local councils and all state-owned or state-controlled bodies as well.
Thirdly, the Appeals Board has been replaced by a more independent State Information Board to review appeals from applicants whose requests for information have been rejected.
Under the law, the State Information Board must be led by former legal practitioners and independent members not holding any political office or position in any political party.
CIJ also pointed out other improvements in the law, such as a narrower list of exemptions and a 20-year time limit for keeping exempted information confidential.
In addition, information officers and civil servants who disclose information in good faith are protected from prosecution, sanctions and suits.
Impact on general public
When asked by Selangor Times how the FOI Enactment would benefit the people, CIJ executive officer Masjaliza Hamzah said the law had far-reaching impacts in very practical ways.
“If there’s a landslide and the state sets up a committee to inquire into it, under the FOI Enactment, one could argue that the public should have access to reports about the proceedings, including statements recorded from those who testify.
“In other words, we don’t have to wait for the Menteri Besar to declassify it,” said Masjaliza.
“If the playground near your house is in a bad state, you can ask the local council for the amount spent on maintenance and find out who built it.
“Of course, all these are just scenarios; the law will need to be tested,” she said.
FOI select committee chairperson Saari Sungib (Hulu Kelang) had told Selangor Times previously that the state expects tremendous requests for information at local councils and land offices once the law is enforced.
One can anticipate concerned residents requesting information on the state and local councils’ expenditure, tenders awarded and land transactions, to name just a few.
Despite that, it should be noted that filing an application and pursuing it would still take time and energy.
Limitations of the FOI Enactment
Nevertheless, Selangor’s FOI Enactment has certain limitations.
Information classified as official secrets under the OSA is beyond the state law’s jurisdiction.
Individuals’ private information or trade secrets obtained by the state in confidence, as well as information that would “severely jeopardise” the state’s policy implementation or development, can also be kept confidential.
However, such information can be disclosed if there is an overriding public interest or if it is for the investigation of an offence or misconduct.
Besides that, a good FOI law should keep the application fees low, but this was not stated in the enactment.
“Costs should be kept low. Otherwise, it can become an administrative obstacle that denies the public affordable access to information,” CIJ pointed out in its April 1 statement.
CIJ also highlighted that the enactment did not specify the appointment process of the State Information Board.
“This must be an open and transparent process where the public can nominate candidates and the shortlist is published. This will strengthen the independence of the board,” CIJ added.
The law also does not mandate the periodic publication of information to make information more accessible to the public.
“Routine publication will help to reduce the administrative burden on information officers and increase transparency across all public bodies,” said CIJ in response to the shortcomings in the law.
The state’s FOI taskforce chief, Elizabeth Wong, said the FOI Enactment is a “dynamic, living legislation” and the legislature can improve the enactment from time to time.
“This is only the beginning of our journey to introduce a culture of openness and transparency in public administration,” said Wong.
Related post: Freedom of Information FAQ