Error 404: Requested Information Is Not Found in Freedom of Information
Published on 30 Oct 2021
Malaysia had come close to enacting the Freedom of Information Act, or FOI, at a federal level when the former Pakatan Harapan government announced to kickstart the drafting process to replace the Official Secrets Act 1972 (OSA).[1] Existing enactments of Penang[2] and Selangor’s FOI Enactment passed in 2010 and 2011 respectively [3] are the means to increase government disclosure of information in the public’s interest at the state level. Both enactments, though revolutionary, are far from exemplary.
Freedom of Information and Participatory Democracy
Inherent in participatory democracy, FOI is the right to obtain information held by public agencies. FOI is recognised by Resolution 59 of the UN General Assembly adopted in 1946[4] and Article 19 of the Universal Declaration of Human Rights (1948)[5] as a central mechanism to freedom of speech and expression.
FOI encourages political dialogue within the public through informed discussions, debates and negotiations. When delivered right, FOI can reverse the power dynamic between government and the public. Active and meaningful engagement in the discourse promotes self-determination in which the public exercises autonomy over how they will be governed by constructively evaluating government performance.[6]
Challenges in Current Enactments
A major issue in hampering the progress of FOI in Malaysia is how both Penang and Selangor’s FOI enactments have played out. Broad, inconsistent definitions of keywords such as “information” and “public bodies”, as well as broad scope of exemption list stipulated in both enactments affect the breadth to which information is accessible.[7] Administrative barriers such as expensive application and processing costs[8], together with decentralisation of information[9] add bureaucratic burden in application. Most are not informed on specific departments to attend to, and not everyone has the financial means to afford the fees required for information to be made available, thus incapacitating them from exercising their right.
The structure of information flow has also hindered accessibility. Recommendations made by the Sinar Project criticised the state department’s passivity in making information and data readily available8. More often than not, information from the State department’s websites is obsolete with “Freedom of Information” or “Open Data” landing pages being nothing more than a mere formality[10],[11]. Furthermore, reports of FOI applications are not annually published nor publicised as the only accessible reports are the Selangor FOIE Reports between 2013 to 2015.[12]
Such passivity can be traced back to the enactment of the OSA 1972, which prohibits dissemination of government documents classified as national secrets.[13] However, the definition of “secret” stipulated in the Act is loose and arbitrary. In principle, a document needs to be declared an official secret; but in practice, every information is treated as a secret, building up to a culture of secrecy underpinning the country’s governance.[14]
Urgency and Relevancy
When supported by freedom of information, speech, and expression, public input and representation to governance as stakeholders can create a feedback loop in the existing democratic system in Malaysia.[15] When access to these rights are enabled, the public will be able to hold the government accountable and answerable.[16] Long-term social reforms striving for democratic ideals are no longer limited to the public’s acceptance of change but also dependent on their involvement as changemakers.
Governance, on the other hand, will be at risk of being hijacked by propaganda-driven parties and politicians when the public is tuned out from national decision-making.
Malaysians are no strangers to being excluded from national politics and policymaking. The Auditor-General’s report on the 1MDB state fund remains inaccessible[17]; the full May 24 LRT accident report is yet to be made public.[18]
Journalism is also at stake due to the Fake News Ordinance 2021 under the pretext of COVID-19, with implications that could jeopardise freedom of expression. The media and civil society could have functioned as democratic oversight when the Parliament was suspended. Instead, they continue to be threatened with criminal liability.[19]
Good faith in governance is unwarranted when the public is sceptical of the country’s political reality. Movements like the Code Black protest[20] and the Black Flag protest[21] reflect an increasing distrust of government policy attributable to lack of justifications to validate government actions.
Echo Chamber
Digital and social media is conducive to disseminating and circulating information, but their respective political inclinations rendered biased reporting. Additionally, the public tends to seek information that supports their pre-existing conceptions.[22] Digital media formularised by algorithms thus create an echo chamber, enclosing interactions between users with similar opinions while confined by limited access to information from both providers and recipients.
Nevertheless, biases are why political discourse at a grassroots level is instrumental in congregating and addressing the discrepancies, supplemented with access and exposure to comprehensive sources of information.
FOI is hence, a necessary and relevant fact-checking mechanism to be reinvigorated and exercised in aiding the public’s scrutiny of governance. Although social media campaigns advocating for different issues have helped gain meaningful public traction, follow-up measures or protests are reactionary. Initiating active information-seeking behaviour demands access to be accelerated and made effective. Informed stakeholders can thus help clarify the adoption of preventive and protective measures in light of problem-solving.
The Way Forward
Overall, institutional reforms and RTI legislations need to be backed by strong political and public will to uphold transparency and accountability in governance. Information should be open by default, with innovative, accessible, and/or digitised data system that is inclusive and intersectional. Consultations with stakeholders from different segments of society, paired with necessary education and capacity building should be consistently engaged to keep the agenda relevant and urgent.
References
[1] Kannan, H.K. & Babulal, V. (2019, July 18). Govt to draft Freedom of Information Act to replace Official Secrets Act. News Straits Times. https://www.nst.com.my/news/nation/2019/07/505404/govt-draft-freedom-information-act-replace-official-secrets-act
[2] Penang Freedom of Information Enactment. (2010). https://right2knowmy.files.wordpress.com/2016/03/foi-enactment-png-bm-eng1.pdf
[3] Freedom of Information (State of Selangor) Enactment. (2011). https://right2knowmy.files.wordpress.com/2016/03/foi-enactment-sel-bm-eng.pdf
[4] United Nations General Assembly. (1946). Calling of an International Conference on Freedom of Information. https://www.refworld.org/docid/3b00f0975f.html
[5] United Nations. (1948). Universal Declaration of Human Rights. https://www.un.org/sites/un2.un.org/files/udhr.pdf
[6] Calland, R., & Bentley, K. (2013). The impact and effectiveness of transparency and accountability initiatives: Freedom of information. Development policy review, 31, s69-s87. https://doi.org/10.1111/dpr.12020
[7] Ikhsan, M. (2017). A multi-jurisdictional comparison of the concept of information and public bodies’ in freedom of information statutes. Lex Amicus, 54-60. https://www.researchgate.net/publication/321034458_A_Multi-Jurisdictional_Comparison_of_the_concept_of_Information_and_Public_Bodies_in_Freedom_of_Information_Statutes
[8] Right2Know. (2016, August 12). Recommendations to improve Penang Freedom of Information Enactment. https://right2know.my/2016/08/12/recommendations-to-improve-penang-freedom-of-information-enactment-foie/
[9] Centre for Independent Journalism. (2020). National stakeholders consultation on the Right to Information legislation. https://cijmalaysia.net/wp-content/uploads/2019/11/CIJ-Book_Create-Outline.pdf
[10] Petaling Jaya City Council. (n.d.). Freedom of Information (State Of Selangor) Enactment. (http://www.mbpj.gov.my/en/mbpj/resources/freedom-information-state-selangor-enactment
[11] Selangor Town and Country Planning Department. (n.d.). Open government data. https://jpbdselangor.gov.my/en/data-terbuka-jpbd-selangor.html
[12] Dewan Negeri Selangor. (n.d.). FOIE 2013-2015. Lampiran Betulis. http://dewan.selangor.gov.my/assets/pdf/sessions/2015/Sesi2/lampiran-bertulis/NO.%20270%20-%20LAMPIRAN.pdf
[13] Official Secrets Act. (1972). http://nujm.org/nuj/content/download/OSA.pdf
[14] The Center to Combat Corruption and Cronyism. (n.d.). Repeal, review or stay? Moving from secrecy to open governance https://c4center.org/sites/default/files/OSA%20Policy%20Paper-%20FINAL.pdf
[15] Seethaler, J., Beaufort, M., & Dopona, V. (2017). Media pluralism monitor 2016: monitoring risks for media pluralism in EU and beyond: country report: Austria. Centre for Media Pluralism. http://dx.doi.org/10.2870/182241
[16] Hashim, H. N. M., & Mahmood, A. (2019). A survey on statutory reform for the right to impart public sector information in Malaysia. International Journal of Asian Social Science, 9(12), 722-734. https://doi.org/10.18488/journal.1.2019.912.722.734
[17] Has, B. (2016, 16 November). In Malaysia, almost everything is an ‘official secret’. Deutsche Welle. https://www.dw.com/en/in-malaysia-almost-everything-is-an-official-secret/a-36410805
[18] Malaysiakini. (2021, 10 June). Make full LRT accident report public, urges ex-MOT officer. https://www.malaysiakini.com/news/578432
[19] Article 19. (2021, June). Malaysia: Emergency (Essential Powers) (No. 2) Ordinance 2021 (Fake News Ordinance). https://www.article19.org/wp-content/uploads/2021/06/ARTICLE-19-Analysis-Malaysia-Emergency-Fake-News-Ordinance.pdf
[20] Free Malaysia Today. (2021, 1 July). Malaysians, social media go black in support of contract doctors. https://www.freemalaysiatoday.com/category/nation/2021/07/01/malaysians-social-media-go-black-in-support-of-contract-doctors/
[21] Fuad, F. (2021, 4 July). Police investigating black flag campaign on social media. New Straits Times. https://www.nst.com.my/news/nation/2021/07/704993/police-investigating-black-flag-campaign-social-media
[22] Sætra, H. S. (2019). The tyranny of perceived opinion: Freedom and information in the era of big data. Technology in Society, 59, 101155. https://doi.org/10.1016/j.techsoc.2019.101155
