Penang to table FOI Bill next week


Penang is to follow Selangor and introduce a Freedom of Information Act.

The Bill will be tabled in the Penang State Assembly next week. This was announced by the Penang Chief Minister at a DAP fund-raising dinner tonight, according to a tweet by Lim Kit Siang.

Deputy CM Ramasamy headed the committee that drafted the Bill.

This move is to be welcomed, of course – but we should hold back on the standing ovation until we examine the contents of the Bill.

The announcement has caught civil society activists in Penang by surprise. A couple of years ago, a few activists were invited in a couple of discussions, in which State Exco member Abdul Malik was involved as well.

Let’s hope the FOI Bill will be made available to the public early for discussion and feedback prior to its tabling in the Penang State Assembly. (After all, it is a Freedom of Information Bill.) And in between readings of the Bill, the widest consultation with groups in Penang is necessary.

Early circulation of the Bill would enable the public to compare it with civil society’s proposed bill, which was drafted by a Freedom of Information Coalition.

It would also allow groups in Penang to find out whether the Penang state government has included in its version of the Bill the key ingredients that were disappointingly missing from the Selangor FOI Bill, namely:

(excerpt from a Nut Graph report, reproduced on the website of the Centre for Independent Journalism)

… too much is missing from the Selangor legislation, including six key points – based on international best practices – which the Malaysian civil society draft had, as follows:

1. Maximum disclosure

This is the key idea mentioned above. Everything the state knows, the people should know, unless there’s a really good reason against it. In contrast, the current draft from the Selangor government, published online, says that information officers “may” give out information. That’s a long way from their being obligated by law to release information. There is no right to know, just the chance that a citizen might be told what she or he wants to know. This leaves the field wide open to personal interpretation and hence, abuse.

2. Narrow exemptions

This is vital to reinforce point one. There is information that the state can’t release because it would endanger lives, for example. But these areas need to be clearly and narrowly defined. Unfortunately, in the Selangor enactment, instead of a clear section on “exemptions”, the enactment defines “information” that excludes certain types of information. Worse, it leaves it open for more information to be added to this exemption list without legislative change. What this means is that anything the state wants to hide can be added into the exemptions, with little transparency.

There should also be a public interest test for these exemptions. So even if information is protected, it can be released if there is overriding public interest. This element is missing in the Selangor enactment.
Whistle blower

3. Protect whistleblowers

It may be that this is difficult to do given the limitations of state powers, but there is no attempt in the Selangor law to provide whistleblowers with any protection.

4. Routine publication

Some information is predictable, largely boring and of interest only to those who list “trainspotting” as an occupation. It can cut down the government’s workload tremendously to publish such information online. The federal-level Statistics Department does a good job of this, as does the Department of Environment and the Communications and Multimedia Commission.

The Selangor law could have included an obligation on state departments to review its output and see what could be easily and cheaply published, for instance, online, on a routine basis. There’s no such obligation in the Selangor law.

5. Low costs, simple procedures

It says in the bill that there will be a fee. It doesn’t say how much. This is one of the easiest ways of keeping secrets from the general population: make sure they can’t afford to purchase information.

The other point is simple procedures. The main problem here is that the Selangor government wants people to give a reason for accessing information and threatens to fine them up to RM50,000 if they use it for anything else. Now, let’s say I want information on water contracts to help me sleep at night. And while reading them, I find something which indicates that there was a huge pay-off to a government officer by one of the contractors. Under the current enactment (with no protection for whistleblowers), I would be fined for revealing this information. More importantly, once again, this goes against the idea that the information belongs to the people and is held in trust by the government.

Forms to access information also need to be simple, and not require information that is irrelevant to processing information requests.

6. An independent administrative oversight body

This is the trickiest bit of all. It may be that the Board of Appeals that is set up under the enactment will be an independent body. But, the procedures for appointment are similar to Suhakam‘s. And we know how much criticism they get.

So, the body needs to be both independent and be seen to be independent, which is hard in a Malaysian context. What civil society proposed was an open appointments process based on published criteria. That way, if applicants, or the general public, were unhappy with the appointees, they would have to state why in reference to those criteria. They could make a case against the appointees based on more than hearsay or malice. And likewise, the selection board could justify their decision on more than just hearsay and goodwill. The current process falls far short of that.

The Pakatan Rakyat government in Selangor has been applauded for being the first government in Malaysia, albeit at the state level, to have introduced FOI laws. Indeed, Selangor’s initiative now puts the pressure on other states and the federal government to follow suit. However, unless Selangor demonstrates a real seriousness about having FOI laws that include best practices in FOI legislation to ensure maximum transparency and openness, Malaysians should hold back on the standing ovation.

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5 May 2011 8.27pm

most rakyat not aware what penang state govt doing. you get a makcik pakcik kakak abang at kampung…apa itu?

28 Oct 2010 2.46am

Watch this….Vital for FOI discussion

19 Oct 2010 12.24pm

what are the good practices country wise on an FOI? That is also useful to know on a comparative basis of what works generally. The theory i8s good lets also look at practices.

19 Oct 2010 10.17am

Kudos to Guan Eng and his team for bringing forth the FOI Act. Guan Eng is his own man, whilst those Gerakan blokes, especially Koh Tsu Koon, are beholden to UMNO. As a consequence, such important Act will never see the light of day, and to think Gerakan wants to rule Penang again. Dream on!

tan, tanjong bungah
tan, tanjong bungah
19 Oct 2010 9.36am

Hi everyone, This FOI bill to be tabled needs a corresponding move by the Federal Govt. as there are certainly some provisions in the Federal laws that would impinge on the one to be approved by the Pg State Assembly. Hence, there would then be no full ‘disclosure’ on matters that may be viewed as ‘impingement’ on the Federal Acts! Nevertheless, the State Govt with the proviso that the public and NGOs should be allowed to study the proposed bill for the much-awaited FOI bill. Anyway, congrats to the Pg State Govt for being so much more open than previous… Read more »

19 Oct 2010 8.58am

Yes. This is the way.

Information should be readily made available to rakyat with proper analysis and alternative commentary of BN’s policy and (mis)management of public fund.

Unfortunatley, the majority of our rakyat can only read and understand Bahasa Malaysia, thus limiting their news access beyond the one-sided report of Utusan, RTM, TV3, Kosmo, Harian Metro, Awani.

Therefore more effort need to be done to reach out to these segment of rakyat who have been deprived of the real news and blinded by rhetorical slogans.

19 Oct 2010 7.33am

We have to hold our applause till next week for the F.O.I.
On the other hand,
PR state govt did pledge to reveal their personal assets .What is taking so long?
As it is not an impossible thing to do and it is not time consuming.
PR must set trends and be the leader in the field of clean government.

Ahmad Syafiq
19 Oct 2010 1.16am

Another step forward for Penang. As long they continue on this hot streak towards good governance, I can’t see BN taking back Penang. ;P