The Malaysian state of Penang has approved a freedom of information bill, the second state in Malaysia to do so.
Selangor passed a bill in April. (See previous FreedomInfo.org report.)
The Penang Freedom of Information Enactment 2010 “seems to have incorporated some suggestions for improvement made by civil society groups consulted by the Select Committee,” according to a statement welcoming the new law made by the groups. The effort to pass the law began late last year. (See previous FreedomInfo.org report.)
The groups noted positive changes and continuing weaknesses.
The improvements cited were:
a. access to information is recognized as a “right” (and not an “opportunity” like in the first draft)
b. the law now applies to documents held by state statutory bodies and state local authorities
c. the law gives detailed definition of document, including the catch-all recorded document regardless of its form . The earlier draft is limited to definition as per Evidence Act 1950.
d. the law does not require for the applicant to justify the reasons and purpose for asking for any information or document
e. the appointment of the Appeals Board members is accountable to the Legislative Assembly
f. the Information Officer is given legal protection for performing his/her duties.
Some Weaknesses Remain
However, the law lags behind internationals standards in some areas, the groups reported.
The weaknesses include:
1. The principle called “routine publications” is missing in this Bill. Under this principle, the law should provide for proactive publication of documents containing information held by state and local authorities and promote the availability of these documents so people will know what information is available out there. This will help to cut down the government’s workload tremendously by publishing 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. There are no specific provisions to address the principle for “routine publication” under the Penang FOI Enactment 2010.
2. principle called “independent administrative oversight body”. The procedures to appoint members of the Appeals Board must be an open process so the public can nominate candidates and scrutinise the appointment process at all levels. An Appeals Board whose appointment is independent and is seen to be independent will enjoy the trust of the public.
3. The removal of Section 14 on offences and penalty if the Information Officer destroys, removes, alters or withholds, falsifies information or if he intentionally restricts or denies access to information requests has weakened the Penang FOI Enactment. The original law was meant to prevent abuse of power by the Information Officer. Such preventive clause is standard inclusion in most freedom of information bills worldwide, including the Selangor Freedom of Information Enactment.
4. The law exempts documents on deliberations and decisions of the State Executive Council, under Clause 11(b)(i)(b). While the State Exco would issue official publication of its decisions, the basis for these decisions — which will come up during deliberation — should be disclosed because it is a matter of public interest, and should not fall under the list of exemptions. The people should know the basis under which these decisions are made, to ensure it is in the public interest.
5. Section 11(2) which replaces Section 11(k) paves the way for State Authority to declassify documents of public interest which are confidential or fall under the exemption list, at the discretion of the State Authority. In other words, the onus of disclosing documents of public interest which are exempted is dependent on the goodwill of the State Authority. Section 11(k)(a), which was removed before the law was passed, provided for disclosure of information by the department if the public interest for its disclosure overweighs the risk of it.
The civil society groups said they hope the state government will review the comments and continue to enhance and improve the Bill. The statement was signed by: Centre for Independent Journalism (CIJ), Penang Forum, SUARAM, Pertubuhan Wartawan dan Jurugambar Akhbar Cina Pulau Pinang (PEWAJU), Sembang Forum, and Coalition for Good Governance, Penang (CGGP).
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