In Part 1 of this series, I talked about how the Penang Freedom of Information Enactment (FOIE) is both a revolutionary and an evolutionary document. Revolutionary in the sense that it is an extraordinary sunshine law in a country already familiar with utter government secrecy. Evolutionary in the sense that the Penang FOIE is not a perfect document and should therefore be subjected to periodical review to adapt to the present situation and social values.
I have identified three major challenges which form the opportunity for improving the Penang FOIE. The first challenge was discussed in Part 1; obligation to publish. The key idea is that the FOIE should be a measure of last resort. Government information should by default be easily available and accessible through periodic publication for public consumption.
In this Part 2, I will discuss the other the second challenge, i.e. Scope of exemptions.
Scope of exemptions
For some unknown reasons, the list of exempted information in the Penang Freedom of Information Enactment got longer and wider compared to the original draft.
Again, I want to refer to the legislative assembly’s intent in 2012. The select committee and then the assembly itself accepted Penang DAP’s recommendations at that time.
Refusal to divulge clauses removed
Among others, Penang DAP’s recommendations included the removal of section 8(1)(a), section 10(2) and section 12(a) and (b). These are what I call the “refusal to divulge” clauses; provisions which enable the authority to refuse applications under FOIE.
The original section 8(1)(a) stipulated that applications for access may be refused if “the applicant is not entitled to access such information”; this was deleted. Clearly the assumption for the deletion is in accordance to Section 5(1), “any person must be given access to information available in every department.”, the substance of freedom of information.
The original section 10(2) on the Mode or Manner of Access reads
(2) If an access to information applied by the applicant—
(a) would interfere unreasonably with the operation of the department;
(b) would be detrimental to the preservation of the information or, after having regard to the physical nature of such information would not be appropriate; or
(c) would involve an infringement of copyright (other than copyright owned by the State Government) subsisting in the information, the access may be refused or access may be given in another form subject to subsection (1).
This whole “Restriction to access” section was deleted.
And finally, the original s12 (a) and (b) which prohibited access to “vexatious and unreasonable” requests were deleted because these are too vague and will be prone to abuse by the authority.
It must be noted that the Selangor FOIE still contains these clauses.
Exemptions must be extraordinary, limited and specific
Hence, for Penang, legislative intent is very clear. It had in mind, broad access to information with minimal obstacles for the public.
In the spirit of the freedom of information, as discussed in the Part 1 of my essay, government information should be open by default. Hence it is important to ensure that exemptions are extraordinary, limited and specific.
Selangor’s FOIE exemptions are contained in five clauses. The Penang one is five pages.
Thus, the exemption list in section 11 should be reviewed and rationalised to reflect legislative intent on the spirit of freedom of information.
I compare here the exemptions in Selangor and Penang’s FOIEs to see if we can further rationalise the latter. I have divided the exemptions into five (5) themes: i) National security and public safety, ii) conduct of public affairs, iii) third party personal information, health and safety, iv) trade secret and reasonable commercial interests, v) others.
| Themes | Penang – Section 11 | Selangor – Section 14 |
| National security/public safety | (h) Information affecting enforcement or administration of the law, i.e. (i) prevention or detection of crime; (ii) apprehension or prosecution of offenders; (iii) administration of justice; (iv) assessment or collection of any tax/duty, or; (v) operation of immigration controls. | (a) Information under OSA which would seriously prejudice national security or national defence by 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. |
| Conduct of public affairs | (b) State Executive Council information: (i)(A) document submitted for consideration of SEC; (B) official document of deliberation/decision of SEC; (C) documents containing (A) or (B); (D) other document which would involve disclosure of deliberation/decision of SEC.
(c) Legal profession privileged information. (d) Information which could be in contempt of the State Legislative Assembly, specifically (i) infringe on the privileges of the SLA. (e)(iii) Confidential information which may prejudice against relation with other State or international organisation. (f) Information affecting State economy especially, (i) economic interests of the State; (ii) financial interests of any administration of the State. |
(b)(iii) Information which would prejudice relations with other State or international organisation;
(c) Information which would cause serious prejudice to the effective formulation of policy or development of the State Government. |
| 3rd party personal information/health/safety | (a)(i)-(ii)Third party personal information except by consent of the 3rd party/agent or if 3rd party is deceased for more than 20 years.
(g) Information which will endanger life, health and safety of any individual. |
(b)(i) Information which would breach 3rd party confidence. |
| Trade secret/reasonable commercial interests | (e) Confidential information especially involving (i) third party breach of confidence; (ii)(A) trade secret or (B) prejudices against commercial or financial interests of a third party.
(i) Information which violates copyright other than department copyright. |
(b)(ii) Information which contains 3rd party trade secret, or would likely to seriously prejudice commercial/financial interests of 3rd party. |
| Others | (j) Information already publicly available | n/a |
Table 1: Comparison between the exemptions in Selangor FOIE and Penang FOIE
Having said on the exemptions, one must bear in mind that, as discussed above, the Penang FOIE has very little refusal to divulge clauses compared to the Selangor FOIE.
Unlike the Selangor FOIE, the Penang FOIE rightly does not contain provision to exempt information on Official Secret Act (OSA) 1972-related items. This is to avoid redundancy. However, in view of our campaign to abolish the OSA, the state should bear in mind future amendment to include provision on information pertaining to national security.
It must be noted that s14(a) of the Selangor FOIE is not a blanket appeal to OSA but rather only on matters relating to national and border security.
S11(h) is important to protect law enforcement operations. Selangor does not have such clause.
Exemptions covered under 11(c) and 11(i) are already sufficiently protected by other written laws, notably Copyright Act 2012 and Evidence Act 1950, as well as by common law. Hence, they can be excluded from s11.
Exemption in s11(d) should be removed as state assembly privilege is clearly stipulated in the Article 72 of the Federal Constitution. Parliamentary privileges is immunity granted to parliamentarians and state legislators against legal proceeding but not protection of secrecy over information. It is unimaginable how protecting certain information may protect or infringe on parliamentary privilege because privilege is privilege in spite of such information. In other words, state assembly privilege still stands even if certain prejudicial information is published; the said assemblyman is still protected. This is clearly stipulated in Article 72(3) of the Federal Constitution.
S11(b) and (f) are meant to protect the deliberative process of public officials. These clauses can be compared to s14(c) of the Selangor legislation. Nevertheless, I am of the opinion that the Penang law is much more limited and specific, unlike the Selangor clause which is general and vague. As such, in the spirit that exemptions should be extraordinary, limited and specific, the Penang law is to be preferred.
Third party personal information, health and safety as well as trade secrets and commercial interest covered in s11(a), (e) and (g) are reasonable exemptions. In the Selangor FOIE protection of personal information is covered in s13 and not in the exemption list of s14. One important recommendation by Penang DAP to the select committee on Penang FOIE in 2011 was to group exemptions into a single section for easy reference. As such, exemptions scattered all over in the original draft for example, s2(1)(a)-(d), s8(1)(b) and s13(1) were all deleted and some of these were incorporated into s11.
Finally, information already published and available publicly should not be requested again.
In summary, I recommend that s11(c), (d) and (i) be removed from s11 exemption list of the Penang FOIE. All these are covered by written laws and as such they are already subjected to protection under s5(2) of the FOIE.
Public interest test and sunset clause
Both the Penang and Selangor contain provision for granting access to exempt information subject to public interest test. These are provided in s11(2) and s15(1) of Penang and Selangor FOIE respectively.
However, Selangor FOIE contains a sunset clause in s15(2) which removes from exemption list, information relating to “any matter or event which occurred more than twenty years prior…”. Penang FOIE should incorporate such sunset clause as well.
Free information: A culture
In Part 1, I said that we need to shift from a culture of secrecy to a culture of openness and transparency when it comes to government information. However, this shift of cultural-mindset must be accompanied by maturity to handle information responsibly. The government can be easily scrutinised and even punished once information is freely available. However, things will not be so obvious against those outside of government who abuse free information for their narrow agenda.
In Part 1, I quoted Tony Blair’s aversion towards the Freedom of Information Act which his own government introduced in 2000 following Labour’s 1997 election manifesto.
His love-hate relationship with FOI law is understandable. In his memoir, he wrote:
“The truth is that, the FOI isn’t used, for the most part, by ‘the people’. It’s used by journalists (or a malicious opposition or whatever). For political leaders, it’s like saying to someone who is hitting you over the head with a stick, “hey try this instead” and handing them a mallet. The information is neither sought because the journalist is curious to know nor given to bestow knowledge on the people. It’s used as a weapon.” (parentheses mine)
The cultural shift must be holistic; both on the part of the government and the public. Freedom of information should not be a weapon to attack or manipulate, but rather a tool of empowerment to enable greater accountability.