Recommendations to Improve Penang Freedom of Information Enactment (FOIE)

At last month’s Freedom of Information Forum held by the Selangor Speakers Office and C4 Center (http://www.c4center.org/freedom-information-forum), one of the panelist MP Steven Sim referred to the FOIE Study done by Sinar Project.

The study is published below; along with the related references for further study and reuse  [[ Creative Commons, Attribution-Share Alike ]]  CC-BY-SA-88x31. Feedback is welcomed!!

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With regards to Penang State Government’s FOIE law, Sinar Project has done comparative studies against the existing legislation in Selangor; as well as compared with global  Freedom of Information Legislation.

Measured against the “Principles on Freedom of Information Legislation”  (https://right2know.my/foi/principles/), Sinar Project can point towards the following 3 being top most that needs addressing in Penang:

Principle 2. Obligation to Publish
“Public bodies should be under an obligation to publish key information.”
Principle 4. Limited Scope of Exceptions
“Exceptions to the right to access information should be clearly and narrowly drawn and subject to strict ‘harm’ and ‘public interest’ tests.”
 Principle 6. Costs
“Individuals should not be deterred from making requests for information by excessive costs.”
To address these weaknesses, Sinar Project recommends the state:
  1. Be proactive in publishing all information generated day-to-day by the State: discussions, decisions, budgets, documents etc.
  2. Harmonise Penang’s FOIE with Selangor’s Enactment, including incorporating the suggestions from the SELCAT Public Hearing on FOIE.
  3. Have a Modern FOIE Portal in addition to a user-friendly Data Portal to facilitate self-service of Information.

SECTION #1: PROACTIVE INFORMATION DISCLOSURE 

 

The Freedom of Information Enactment should be only a last resort when other means have fail; there should in-fact be Proactive Information Disclosure.

As part of Penang State Government’s CAT Principles, the State Government should proactively publish all information generated day-to-day by the State: discussions, decisions, budgets, documents etc; as part of the normal SOP.

A comprehensive list of available information that citizens can download and easily search for should be hosted in a Data Portal; and be kept up to date (updated daily); no older than 6 months.

Sinar Project has already a live demonstrable example how this can be done: Our CSO Data Portal; powered by the open source data portal project CKAN; by Open Knowledge Foundation (OKFN); can be found at:  https://data.sinarproject.org/

Legislative-wise, an excellent template can be found among the Recommendations provided by Commonwealth Human Rights Initiative (CHRI) in the review of Selangor’s Enactment

http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/malaysia/SelangorFOIBill2010-Critique-Del-MichelleG-Feb11.pdf (Section Proactive Disclosure, pg 39)

Insert clause 3 with a comprehensive proactive disclosure provisions simplified to facilitate easier implementation by public officials as follows:

3 (1) Every department shall –
     (a) publish within 5 months of the commencement of this Act:
          (i) the powers and duties of its officers and employees;
          (ii) the procedure followed in the decision making process, including channels of supervision and accountability;
          (iii) the norms set by it for the discharge of its functions;
          (iv) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;
          (v) a directory of its officers and employees;
          (vi) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations
          (vii) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;
          (viii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;
          (ix) particulars of concessions, permits or authorisations granted by it;
          (x) details in respect of the information, available to or held by it, reduced in an electronic form;
          (xi) the names, designations and other particulars of the Information Officers, and appeals bodies under the Act;
          (xii) such other information as may be prescribed; and thereafter update their publications within such intervals in each year as may be prescribed;
     (b) publish all relevant facts while formulating important policies or announcing the decisions which affect public;
     (c) provide reasons for its administrative or quasi judicial decisions to affected persons;
     (d) before initiating any project, or formulating any policy, scheme, programme or law, publish or communicate to the public in general or to the persons likely to be affected thereby in particular, the facts available to it or to which it has reasonable access which in its opinion should be known to them in the best interest of natural justice and promotion of democratic principles.
   (e) Upon signing, public authorities must publish all contracts entered into, detailing at a minimum for each contract:
      (i) The public works, goods acquired or rented, and the contracted service, including any sketches, scopes of service and/or terms of reference;
             (ii) The amount;
           (iii) The name of the provider, contractor or individual to whom the contract has been granted,
           (iv) The periods within which the contract must be completed.
(2) Information shall be updated at least every 6 months, while regulations may specify shorter time frames for different types of information, taking into account how often the information changes to ensure the information is as current as possible.
(3) It shall be a constant endeavour of every office to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information proactively to the public at regular intervals through various means of communications so that the public have minimum resort to the use of this Act to obtain information.
(4) All materials shall be disseminated taking into consideration the local language and the most effective method of communication in that local area and the information should be easily accessible ,including through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection at the offices of a public body.
(5) the head of the public body shall be responsible for the preparation and updating of information disclosed under this section.
Explanation.—For the purposes of sub-sections (3) and (4), “disseminated” means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public body.

 

SECTION #2a: COMPARATIVE STUDY BETWEEN SELANGOR AND PENANG FOIE 

Selangor’s Enactment is relatively stronger compared with Penang’s.  The weaknesses is mostly that of omission (except for the Exceptions section; which is overly broad).

Some choice annotations below of the comparable sections:

 

Preamble

Selangor’s preamble starts by emphasising the CAT goal explicitly as an objective:


and to promote transparency and accountability for each department in the State Government.

Section 3

Selangor has a clear emphasise on the need for the Information Officer to facilitate the information getting to the requestor with due haste and as facilitators:

– (d) to process and comply with the requests for information unless otherwise exempted without exception and to revert to the applicants within the prescribed time;
– (e) to develop a tracking system to monitor the processing of each application for information and to enable the applicant to enquire on the progress of his application; and
– (f) all things necessary to facilitate the flow of information between the agency or entity and the applicants of the information.

Section 6

Again, more protection to ensure information is not denied on a technicality or from procedures (e.g signing Statutory Declarations):

..
where any such application does not fully adhere to the prescribed form, the application may not be refused by the Information Officer for that reason.

Section 7

Selangor’s guideline explicitly compels the Departments to aid the requestor get the correct/accurate information needed:

(3) If a request for information in an application is unclear, the department shall use all reasonable efforts to obtain clarification from the applicant and this shall not extend the prescribed time stated in subsection (1) and (2) to provide the written confirmation to the applicant.

Section 11

Selangor’s exception list (shown below) meets the criteria of “Principle 4. Limited Scope of Exceptions”: being narrow in nature, and specific.  Additionally there are clauses to exempt in cases of public interest:

Exempted information
14. The following is considered to be exempted information:
(a) information which has been classified as strictly confidential under the Official Secrets Act 1972 [Act 88] which if disclosed, would seriously prejudice national security or national defence by materially undermining the country’s ability to protect or defend its existence or territorial boundaries or its capacity to respond to the use or threat of force;
(b) information obtained—
– (i) from a third party and to communicate it would constitute an actionable breach of confidence;
– (ii) in confidence from a third party and it contains a trade secret or to communicate it would, or would be likely to, seriously prejudice the commercial or financial interests of a third party; or
– (iii) in confidence from another state or international organization, and to communicate it would, or would be likely to, seriously prejudice relations with that state or international organization;
(c) information where if disclosed would, or would be likely to cause serious prejudice to the effective formulation of policy or development of the State Government.
Exceptions to exemptions
15. (1) Notwithstanding section 14—
(a) a department shall grant access to exempted information to an applicant if public interest in disclosure outweighs the harm of disclosure;

Missing  Section 18. Offences

This section which is totally missing from Penang Enactment, which is needed for accountability. It is aimed towards ensuring the State Government and public servants do NOT block, frustrate obtaining the requested information:

  1. (1) It is an offence if a person:
          (a) uses any information obtained under this Enactment contrary to the reason and purpose of such application is made if the effect is detrimental;
          (b) gives false information in the form under subsection 6(1);
          (c) destroys, erases, alters, damages, conceals, blocks or falsify any information within the control of any department with the intention of preventing disclosure of any information or any part thereof or obstructing access to any information;
          (d) knowingly gives incorrect or misleading information to an applicant; or
          (e) willfully obstructs or denies access to information that is not otherwise exempted.

SECTION #2b: SELCAT PUBLIC HEARING

Last year, a Public Hearing SELCAT on the FOIE Implementation was conducted (as per attached: KERTAS BIL. 3 TAHUN 2015 – (SELCAT)_ENAKMEN KEBEBASAN MAKLUMAT ), and many good Suggestions were provided (as per attached: MKLM BLS_KERTAS BIL. 3 TAHUN 2015 – (SELCAT)_ENAKMEN KEBEBASAN MAKLUMAT).

Sinar Project recommends that all suggestions from the SELCAT should be adopted by Penang as well; such as: expanded Information Officer Training, Public Awareness Campaign for Public as well as streamlining the SOP.

 

However, the most important of the recommendation from the hearing is to automatically incorporate FOIE clauses in any deals done by any entities of the State (including GLCs, child companies) so that requests for information cannot be blocked (as per in KIDEX issue).

 

9.8. Setiap perjanjian yang di tandatangani Kerajaan Negeri Selangor perlu memasukkan klausa Enakmen Kebebasan Maklumat di mana sekiranya terdapat kepentingan awam di mana orang awam perlu perkara ini, maka status mengetahui mengenai dokumen berperingkat perjanjian boleh diubah oleh MMKN untuk dimaklumkan kepada orang awam tanpa mendapatkan persetujuan pihak ketiga terlebih dahulu.

Another check and balance (which is missing again in Penang’s Enactment) in implementation, is the presentation of the FOIE Yearly Report to the State Assembly.  Attached is an example of Selangor’s FOIE Report:  FOIE_2013-2015_NO. 270 – LAMPIRAN

SECTION #3: IMPLEMENTING A MODERN FOIE PLATFORM

  • A streamlined, modern and cost effective Freedom of Information process via online Platform is easily implementable today; via a proven open source platform — called Alaveteli (http://alaveteli.org) — run in over 26 other countries around the world.
  • Alaveteli is a platform for making public; freedom of information requests to public bodies.  It empowers citizen to ask and engage the government to obtain information that matters to them and their community. All responses are published online for everyone to see and for the data to be reused.
  • Implementation of this platform just requires a slight tweak to the current FOIE process; copies of FOIE requests details and responses from every department that is now sent to SUK just need to be published in the Alaveteli platform.
  • Additionally, Information Officers should be mandated to receive FOIE requests via email and not charge for receiving requests.  The Information Officer should guide the requestor to be as specific as possible in order to facilitate fast retrieval of the needed information.
  • Sinar Project has already deployed an Alaveteli instance which shows how it can be done, available at http://foi.sinarproject.org; which the Penang government can implement itself after the slight process adjustment detailed above.
>>>>>>>>>>>>>>>>>>>>>>>

References:

1) “Principles on Freedom of Information Legislation”(https://right2know.my/foi/principles/)

2) Selangor FOIE – selEnak017(2)y2011_Enakmen_Kebebasan_Maklumat_(Negeri_Selangor)_2011

3) Penang FOIE –  Penang_FOIE_Warta Enakmen
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