Why so secretive, civil society asks Selangor, Penang

by Gan Pei Ling, 31 October 2017 © The Malaysian Insight

THE Selangor and Penang administrations have come under fire for their lacklustre implementation of the freedom of information (FOI) law, with civil society groups saying that citizens’ access to state information remains largely unchanged since its introduction.

The sunshine law was enacted in 2011 to promote greater transparency and accountability, by allowing the public access to state information.

However, six years on, both state governments have done “very little or nothing at all to promote the use of the FOI”, said corruption watchdog Centre to Combat Corruption and Cronyism (C4) executive director Cynthia Gabriel.

“There is zero publicity from the state governments. This is very unfortunate, even disappointing,” Cynthia told The Malaysian Insight.

Cynthia, formerly a councillor with the Petaling Jaya City Council, said Penang Deputy Chief Minister II Dr P. Ramasamy and Selangor Speaker Hannah Yeoh were among the handful of Pakatan Harapan politicians who have raised public awareness about the FOI.

“The citizens of these states could have used the law more proactively to show the Barisan Nasional-ruled states how an FOI law can be used to improve their quality of life,” said Cynthia.

Due to the low public awareness, Penang only received 71 FOI requests in 2015 and 41 as of June 2016, Dr Ramasamy told a forum hosted by the Penang Institute last year.

Selangor received 163 FOI applications between 2013 and 2015, out of which only five requests were unsuccessful.

Critics have pointed out that these five include requests for the declassification of high-profile cases, such as the Selangor water agreement and documents related to the Kidex highway.

The Malaysian Insight’s efforts to get the latest numbers of successful and rejected FOI requests from both state administrations were unsuccessful. “At the time of publication, the state governments are compiling the data.”

Last year, C4 partnered with another local transparency watchdog, Sinar Project, to launch the Right 2 Know Malaysia campaign, aimed at helping Malaysians learn about the FOI via a website and public talks.

Sinar Project coordinator Khairil Yusof said that the project set out to test how well the FOI law worked in practice at the local council and state level requests.

They found that the Selangor FOI law and process was much better in practice than Penang.

However, the group was surprised that the Selangor executive council denied their request for information on the expenditure of excos under former menteri besar Khalid Ibrahim as well as current Menteri Besar Azmin Ali.

Khairil said the rejection of their request appeared to show that the Selangor administration is not willing to be fully transparent when it comes to executive councillors’ expenditure.

Selangor also denied requests to make public information regarding controversial projects and agreements, such as the Damansara-Shah Alam Elevated Expressway (DASH) and the state’s water agreement.

In response to criticism on the implementation of the FOI law, Selangor’s Select Committee on Competency, Accountability and Transparency (Selcat) carried out a public hearing in January 2015 to review the implementation of the law.

Selangor executive councillor Elizabeth Wong was put in charge of overseeing the FOI implementation but did not respond to interview requests at press time.

Cynthia from C4 also said that the FOI would always fall short of its ideals of greater transparency as long as restrictive laws, such as the Official Secrets Act (OSA), supersedes it.

“The OSA still supersedes the state FOI enactments. Information on highway projects, infrastructure and road works has been denied on such grounds.”

She said Malaysia, which aims to become a developed country by 2020, must reform the OSA if it is sincere in eradicating corruption.

Greater transparency with Selangor’s sunshine law

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

Freedom of Information FAQ

Compiled by Gan Pei Ling / 15 April 2011 © Selangor Times

What is Freedom of Information (FOI) and why do we need laws to ensure it?

As tax- and ratepayers, the public has a right to know how governments use and manage public funds. FOI laws empower the public with access to information, and allow inspection of files and scrutiny of government administration.

In other words, a good FOI law helps promote transparency, accountability and reduce graft.

Does Malaysia has a FOI law?

We do not have a FOI law at the national level, but Selangor passed the FOI Enactment in its state assembly on April 1. It is the first state to do so.

Following Selangor’s footsteps, Penang also tabled its FOI bill in November 2010, but the draft has came under fire from civil societies as lacking in substance.

The Selangor FOI bill also came under severe criticism when it was first tabled in July 2010. However, the legislature appointed a select committee to consult civil societies and civil servants to improve the bill.

An amended version was tabled on March 28 and passed without objection on April 1.

When will Selangor’s FOI Enactment come into force?

Elizabeth Wong, who is leading the Selangor’s FOI taskforce, said it would take around six months for the state to enforce the law.

She said they would need to appoint and train information officers in all relevant bodies to handle information applications, draft the application forms, and set up a fee structure.

Selangor also needs to set up the State Information Board, which would review appeals from applicants whose request for information has been rejected.

Wong, who is also the executive councillor on tourism, consumer affairs and environment, estimated that Selangor would need to allocate RM1 million to enforce the FOI law.

Who will give me information? Is there a fee?

An information officer will be trained and appointed in each department to handle public requests for information. The information officer is required to respond in writing to your application within 30 days from the date of acknowledgement of the application.

Illiterate or people with disabilities may make a verbal request to the information officer, who will then make a written application on behalf of the applicant and provide a copy of it to the applicant.

The fee structure has yet to be ironed out by the state.

What is covered under Selangor’s FOI Enactment?

Once the FOI law comes into force, you can request for information from any state department, local council, or any entity owned or fully controlled by the Selangor government. For example, you can request for information on the state and local councils’ expenditure, tenders awarded, and land transactions.

However, information classified under the federal Official Secrets Act, individuals’ private information, and trade secrets obtained by the state in confidence are exempted under the FOI enactment.

Secrets from states or international organisations may also be kept confidential if its disclosure would affect Selangor’s relations with other states or international organisations.

The information officer may also refuse to disclose information that is likely to severely affect Selangor’s development.

Despite that, information must be provided if there is an overriding public interest that outweighs the risks stated above.

The information officer may also allow access to exempted information if it is required for the investigation of an offence or misconduct.

However, all exemptions lapse after 20 years.

What if my application is rejected, or if I’m not satisfied with the information provided?

You can appeal to the State Information Board, made up of former legal practitioners and independent members, within 21 days after you receive the notice from the information officer.

FOI Enactment (Selangor)

Related post: Greater transparency with Selangor sunshine law