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Freedom of information law a breakthrough amid culture of secrecy

(CIJ/IFEX) - 1 April 2011 - The Centre for Independent Journalism (CIJ) Malaysia welcomes the Freedom of Information (FOI) Enactment (Selangor) 2010 that was passed by the State Legislative Assembly in Shah Alam today.

This Enactment is a historic step toward transparency in governance and government accountability, even though it only encompasses information held by departments, local councils and entities fully owned and under full control of the Selangor state government.

We would like to congratulate the proponents of this law – from the state government to civil society – for this breakthrough. The passing of the FOI Enactment (Selangor) is all the more remarkable given that it exists within an ingrained culture of secrecy strongly backed by the Official Secrets Act (1972) at the Federal level.

We note that the Enactment that was passed today is an improvement from the watered-down version tabled for first hearing in July 2010. The improvements include, but are not limited to:

1. Acknowledgment of the right to information, rather than an opportunity given by the state
2. An obligation to reveal information
3. The possibility of review by the courts
4. A more independent State Information Board (to replace the Appeals Board)
5. A narrower list of exemptions, with a public interest override
6. Protection from prosecution, sanctions, suit etc for Information Officers or government officers who disclose information in good faith
7. A 20-year time limit for keeping information confidential

However, a quick look at the Enactment reveals some glaring problems which will prevent the rakyat from enjoying the full benefits of a FOI law:

1. A FOI law should entrench the right to information, whereas the preamble to this Enactment qualifies it as reasonable access to information – unneccessarily so, since there are exemptions provided by the law.

2. The law does not mandate the periodic publication of information. Known as the principle of proactive disclosure, this provision would help to reduce the administrative burden on the Information Officers, and increase transparency across all public bodies.

3. Lack of details regarding the appointment to the State Information Board (Section 17(2)). This must be an open and transparent process where the public can nominate candidates and the shortlist is published. This will strengthen the independence of the board, which is an important feature for its success as adjudicator and monitor for the application of this law.

4. Section 18(1), which is about protecting the sanctity of information, should not penalise the applicants for using the information in a different way from the reasons stated in the application.

5. While it is reasonable to charge for application fees, Section 6(3) merely states that the fee will be decided upon by the state authorities. A good FOI law must stipulate that the fees be kept low. Otherwise, it can be an administrative obstacle which denies the public affordable access to their right to information.

CIJ, which leads the FOI Task Force of the Coalition for Good Governance, will be scrutinising the Enactment to identify other gaps and convey them to the Selangor Legislative Assembly soon. We look forward to the royal assent of the Enactment, which will put Malaysia on the roadmap to a freedom of information regime and break away from the culture of secrecy. It is high time the Federal Government follow suit to show its commitment to combat corruption and promote good governance.

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