WHEN Wathshlah Naidu talks about the fight for a federal-level Freedom of Information (FOI) Act in Malaysia, she describes it as a marathon.
“It feels like we’ve run several loops of marathon since 2008 to get here,” says the executive director for the Centre for Independent Journalism (CIJ).
Fortunately, she adds, “We can almost see the end of the marathon.”
This is because recently, the Madani government assured that the FOI Bill will be tabled in the Dewan Rakyat sometime next year after more fine-tuning and engagement with stakeholders.
But now that we’re so close to the end, Wathshlah says the question now isn’t only when the law will be passed, but how well it will work.
“Will it truly open up government-held information to the public? Will it recognise information as public good?
“Will it overcome the legacy of secrecy that has long defined our information ecosystem?”
Wathshlah: Will the proposed FOI law truly open up government-held information to the public? — Bernama
Experts say simply passing an FOI law will not, on its own, dismantle the culture of secrecy embedded into our governance for generations.
After all, every time the right to information is brought up in a discussion, the mention of the right to privacy and the Official Secrets Act (OSA) is never far behind.
Thus, the experts say we need to clearly define where privacy rights end and the public’s right to information begins in order to have a FOI law that will truly benefit our democracy.
Rights are for the living
Arguments have been made that even the government deserve a right to privacy, but Bar Council human rights committee Sonya Liew says this mindset is wrong.
“The people pay taxes, the taxes pay the government departments, so whatever information that all these government departments generate should rightfully belong to the public because it is paid with our tax money,” she says.
It is also a misinterpretation of our fundamental rights as enshrined in the Federal Constitution, she adds.
The right to privacy is considered a citizen’s personal liberty, protected under Article 5(1) of the Constitution.
Meanwhile, the right to information has been held by the courts to fall under Article 10(1)(a), which lays out the right to freedom of expression.
Liew points to the 2010 case Sivarasa Rasiah v Badan Peguam Malaysia & Anor, in which it was argued that the right to information can be derived from the constitutional right to freedom of expression.
However, this right does not exist in a vacuum as it is subject to “permissible restrictions” under Article 10(2)(a), including the Official Secrets Act (OSA).
The issue is people often mistake the right to privacy as one of the permissible restrictions of the right to information, Liew says.
In actuality, she explains, information belonging to the government is affected by Article 10(1)(a) and 10(2)(a), while information belonging to individuals is affected by Article 5(1).
“It’s a totally different fundamental right, so don’t get it mixed up.
“OSA is not under Article 5, privacy. It’s actually a permissible restriction of your freedom of expression.
“A lot of the arguments that ‘oh even the government must have privacy’, are you sure? Fundamental liberties are only for living persons.”
OSA no obstacle to FOI
As a “permissible restriction”, OSA has long been seen as a stumbling block to the passing of a federal level FOI law due to its secrecy-by-default approach, which is the exact opposite of the open-by-default principle of FOI.
But this does not have to be case, argues Mohd Saiful Hisham Mohd Salleh, director of the ICT Security and Official Secrets Division from the Office of the Chief Government Security Officer.
“I think FOI is not a threat to the OSA and the OSA is not an obstacle to the enactment of the FOI.”
He says the problem is that there isn’t a straightforward and clear process for civil servants to declassify documents, even if the document is listed as declassifiable under the OSA.
Many civil servants may not understand whether or when a particular document can be declassified, or there may be extenuating bureaucratic circumstances binding their hands.
“For example, examination questions. After the examinations have passed, then automatically the officer should be able to declassify the document by filling out a form.
“But every document has its condition to get permission from the originator to release the document.
“Otherwise, (the officer) cannot release it because they are not the originator for the document,” he explains.
He also adds that though they train around 2,000 civil servants a year on this subject, it is difficult for them to ensure every civil servant receives this training.
Thus, they are in the midst of amending the OSA as well, to better harmonise it with the FOI Bill, he says.
He also stresses that certain documents under OSA, especially those that pertain to national security, would remain classified regardless of an FOI law.
Three-part test
This culture of secrecy sown under the OSA is often defended by citing the need to protect national security or privacy, but experts argue these concepts are frequently misapplied to withhold information that should be rightfully public.
Even in Selangor and Penang, where they have state level FOI laws, Seputeh MP Teresa Kok says the public still sometimes get blocked from accessing documents which should be declassified.
“We were very gung-ho (when the two states just passed the laws), we wanted to know about certain highway contracts.
“The answer was no, cannot give you. Why cannot give you? Because the government signed the contract with another company, and unless that company allows you to open up the agreement, we in government cannot give it to the public,” she recalls.
Incidents like this further highlight how crucial it is to strengthen the FOI legal framework beyond just putting it into legislation.
Melissa: Malaysia’s FOI law should incorporate a three-part test to determine whether certain information should be released to the public, in line with international standards.
Suhakam commissioner Melissa Mohd Akhir says the commission’s position, in line with international standards, is that there should be a three-part test which would draw the lines clearly between what can be declassified and what cannot.
“When we say that there’s supposed to be a legitimate aim, so you can’t be sweeping, it has to be specific.
“When we say there’s harm, what do we mean by the harm and to who, and is it outdated, as in there’s no real harm to be caused.
“Number three, what does public interest mean and where the public interest overrules the harm, the information can be shared.”
She provides an example of this test in action; that is, the government’s refusal to release detailed data on femicide in Malaysia to NGOs.
While the police provided the number of women killed, she says the NGOs failed in their attempts to get data on how many were killed by partners after having lodged a prior police report.
“Applying the three-part test, one, legitimate aim, yes, because we want to address femicide.
“Two, the harm. What harm is caused by giving this information?
“Three, public interest. Are women part of the public?”
So, she says, you cannot sweepingly classify things as pertaining to national security and safety.
“You have to be specific, and then you look at the aims of it,” says Melissa.
Malaysia can start using this test with the drafting of the FOI law itself, she says.
“I understand that you cannot have the full draft of the bill shared with everyone, but why can’t there be publicly accessible consultation points, the objectives of this law?”
Ultimately, the experts say, the success of this long-awaited law will be measured by whether it can replace a legacy of secrecy with a new default of openness, ensuring that every citizen can finally cross the finish line in this marathon for transparency.