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Penang’s FOI Bill “disgusting”

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Selangor’s Freedom of Information Bill, being the country’s first, was understandably impaired. But what excuse has Penang to come up with the same paltry replica of Selangor’s FOI Bill, asks Sarajun Hoda Abdul Hassan.

The Selangor State Assembly debating the FOI Bill

The Penang government is inviting feedback on its proposal for a Freedom of Information (FOI) Bill. A closer scrutiny reveals that this enactment proposal is basically a carbon copy of the Selangor FOI Bill that was launched much earlier. The inconsequential changes in two or three sections are limited only to a different choice of words. Otherwise in essence, spirit and meaning, it is exactly the same. Not surprising because it must have come from the same ‘Gani Patail’ camp of thinking.

Like the Selangor FOI Bill, Penang’s FOI Bill is all too pretentious. It is poorly and purposely prepared to fail the state government’s desire for reform from the onset. Despite having access to some of the best legal minds in the country, the Penang Pakatan government did not think it fit to better prepare the Bill before putting it up to the people for their consideration. Appreciate that more than half Penang’s state assembly members from Pakatan are lawyers. Yet, coming with such a vague FOI Bill is not only disappointing but utterly disgusting.

As it is, my story published in Aliran Monthly, Vol.30, No. 9/2010, provided detailed feedback for the Selangor FOI Bill. Those comments stand for the corresponding sections of this Penang FOI Bill. It’s like peas in the same pod. That’s how identical it is, with all the same shortcomings.

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Again, there is no seriousness by the Penang government to come out with a significantly different or better FOI enactment despite knowing that the Selangor government received loads of comments and input from civil society on its FOI Bill. The Penang government has also had enough time to consider some if not all the recommendations from civil society; yet it just didn’t bother to and superciliously went ahead to come up with almost a carbon copy of the same seriously deficient and flawed Selangor FOI.

Selangor’s FOI Bill, being the country’s first, was understandably impaired. But, what excuse has Penang to come up with the same paltry replica of Selangor’s FOI Bill? It is so very unlike Penang that has always prided itself on being a leader in bringing about reforms in Malaysia. After all, ‘Penang Leads’, right? Yet, this senseless and futile exercise by the state government either takes civil society organisations for fools or it just aims to hoodwink them into thinking that this FOI will put all necessary reforms pertinent to good governance in place while effectively using it as a delaying tactic until the next general election.

With such copious shortcomings, having or not having the FOI enactment makes little difference. With this FOI Bill, freedom of information will just not be forthcoming. For example, there is not a single section anywhere in the proposed enactment that suggests general information shall be freely made available to the public by the various state departments for the sake of good governance. This proactive and unambiguous assertion, which is essential in any FOI enactment, is conveniently and conspicuously missing.

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Why does one need to ask for information? Why not simply post information in publications, public notices or even on official websites? Why does one have to give reasons for accessing any information? And if information can be given once, why not a second time? The information belongs to the people. The state government is merely a temporary caretaker. Why does the public have to pay for what it owns in the first place? Why cannot the public have access to information that belongs to them?

Why does the state government need 30 days to divulge information? In emergency cases, they need seven days. If one is in a fix, police custody for example, and needs information to prove one’s innocence, isn’t seven days too long? Beng Hock was killed even sooner. The most devastating Section 7(3) says, “…if there is no response within the stipulated time, it is deemed rejected.” So easy? And Section 8 says, “…information sought may be refused if the applicant is not entitled to it.” Who decides that?

The FOI Bill is surrounded by a million reasons stipulating why information ‘may’ not be given. Instead of asserting the opening up of access to information, it only speaks about conditions for not divulging information and even more excuses for impeding access. It finally sounds just as haughty, opaque and obfuscating as the Selangor Bill.

The Bill says that it ‘may’ give information, and not SHALL. It hides behind excuses such as “likely to prejudice relations” if disclosed; “likely to cause serious prejudice to state government policy formulations, developments, administration, economic developments, undermine a department, undermine an audit or test, or any documents it gazettes”. Information is also vaguely refused if the access to information interferes with the operation of the department, is deemed inappropriate, vexatious or unreasonable or for repeated application.

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As well, the fact that appeal board members can be removed anytime without assigning any reason also means that the FOI Bill loses its credence, defeats its consequence, undermines its independence mandate and fails the confidence of the people. There is no separation of powers between the appeal board and the state government, which obviously wants to have it under its full and final control. Then again, the appeal does not work on the basis of the majority. The Chairman can make his unilateral decision and it cannot be challenged in any court. Sound familiar?

Then the guillotine falls down hard. If the information accessed is used for a different reason and purpose, it will invite a fine up to RM50,000 and/or a jail term not exceeding two years. Is this chilling effect not deliberately designed to discourage potential applicants from trying to get information? On the opposite scenario, if the State Official refuses to divulge information in his custody, what then is the punishment?

All in all, it is a kangaroo FOI Bill with a slippery skin of an eel.

Sarajun Hoda Abdul Hassan is an Aliran executive committee member

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