It is most welcome news that a special committee on national governance has proposed introduction of a freedom of information law to give the public their right to know whether government servants are properly carrying out their duties according to laws that they administer.
The new law would also reveal whether they are behaving like little Napoleons and bending backwards or even disregarding laws that regulate their authority.
Let’s not forget that civil servants are not above the law and are answerable for their actions and inactions.
Ordinary people who feel concerned about the actions and inactions of civil servants – for example, giving approvals for various projects or not attending to issues raised – almost always face an uphill battle to seek information and explanations for what was done or not done.
If the freedom of information laws is to break the iron dome that civil servants have created over themselves, it must provide for swift and painful sanctions or penalties against recalcitrant civil servants or little Napoleons.
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For example, the Penang FOI Enactment does not provide any sanctions against such civil servants. They can overrun the 14 working days to respond to a request for information. They can give untenable ‘reasons’ for rejecting requests. They can provide inaccurate information and get away with it.
The Selangor FOI Enactment provides for breaches with a penalty of RM50,000 or imprisonment of up to five years, or both. For this section to take effect, someone must make a police report. Police must then investigate and the public prosecutor must then take the case to court. This may look like a good deterrent, but it is not.
Such police reports are not a guarantee that punitive action will be taken. Police investigations will take time. They may be “NOD” (no offence disclosed) or “NFA” (no further action). If any case does reach the courts, it could be discontinued or thrown out for lack of ‘conclusive proof’. Or a slap-on-the-wrist penalty may be imposed.
So if the intention of the freedom of information law is to “straighten up the civil service” by making them accountable for their actions and inactions, truly deterrent penalties must be provided.
The freedom of information laws should give instructions to civil servants to provide members of the public with any information that is not classified and available in their departments. This should apply even if the information was not prepared or compiled by the department concerned.
If information officers fail to comply with their duties under the freedom of information law, courts could consider this a dereliction of duty, misconduct or an act that brings disrepute to the department. They might also view the officer as incompetent, irresponsible or dishonest. The Public Officers (Conduct and Discipline) Regulations 1993 covers all these issues well.
So if civil servants run afoul of their duties and responsibilities under the freedom of information law, they should face disciplinary action under these regulations. The authorities should impose ‘pocket-hurting’ penalties under these regulations without fear or favour.
Penalties that ‘threaten’ are not deterrents. They only work in societies that have high moral and ethical standards. This is lacking in our society. So it is time to move away from ‘threatening’ to ‘hurting’ the pockets of recalcitrant government or public servants.
The freedom of information law may provide penalties such as a fine of up to RM50,000 or imprisonment of up to five years. This kind of penalty is not a deterrent at all. At best, it reassures the public that recalcitrant civil servants will face ‘severe’ punishment. This is an illusion.
A serious problem is that the government treats civil servants as its ‘fixed deposit vote bank’. Therefore, it does not want to ‘harshly’ punish them for any wrongdoings. Will the “Madani’ (civil and trustworthy) government be bold enough to reform this if it seriously wants to improve the delivery of government services to the public?
If the authorities do not address the all-important question of truly deterrent penalties, the freedom of information law will not bring about the desired changes to improve civil service accountability.
In the first place, why should the public even have file an application to request for information under a freedom of information law? Why do they need to go to an appeals board set up under this law if their requests are turned down?
Shouldn’t non-classified information be easily available if there is nothing irregular to hide?
And why should the public even have to pay to get non-classified information?
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