- 9 months ago
- #considerthis
The government has promised to table the long-awaited Freedom of Information Bill soon, following years of calls for greater transparency. What kind of access will it provide? And how might it change the way Government works? On this episode of #ConsiderThis Melisa Idris speaks with Dato’ Dr Punitha Sililvarajoo, Deputy Director-General (Policy and Development) at the Legal Affairs Division under the Prime Minister’s Department, and Wathshlah Naidu, Executive Director of the Centre for Independent Journalism.
Category
🗞
NewsTranscript
00:00Music
00:00Hello and good evening. I'm Melissa Idris. Welcome to Consider This.
00:15This is the show where we want you to consider and then reconsider what you know of the news of the day.
00:19The government has promised to table the long-awaited Freedom of Information Bill soon
00:27as part of efforts to strengthen transparency and public trust.
00:32Now, what kind of access will it provide under this new legislation and how might it change the way government works?
00:41Joining me on the show to discuss this further, I have Datuk Dr Punita Silveraju,
00:47Deputy Director General of Policy and Development at the Legal Affairs Division under the Prime Minister's Department
00:53and Wachila Naidoo, who is the Executive Director of the Centre for Independent Journalism.
00:59Welcome to the show, both of you. It's good to have you here.
01:02Lots to talk about with the Freedom of Information Law.
01:06And I think where I want to begin is kind of getting a sense of where government's head is at.
01:13The rationale, the goal and the thinking behind having such a piece of legislation at the federal level.
01:20Maybe Dr Punita, you can start with that.
01:22Thank you. Thank you, Mel, for having us on your show.
01:26Firstly, I think the FOI, I'll call it the Freedom of Information,
01:29it is, I would say, a major reform for the government, for the country.
01:34And as you know, there is a lot of trust deficit in terms of how do people access information,
01:40especially when you go to the government agencies.
01:42Sometimes you find it very difficult to get information.
01:45Even online is difficult for you to get information.
01:47So, of course, with the FOI, what we believe is going to be very transparent.
01:52So, it's going to be a lot of transparency.
01:54Of course, that will also uphold integrity.
01:57Above all, accountability.
01:59Because at the end of the day, you would be able to look at information,
02:02get information, of course, subject to some of the exemptions in the law itself.
02:07But otherwise, if you get information, then you would be able to scrutinise what's out there.
02:13And by doing that, it boosts public confidence as well.
02:18Before we get into that, can I just briefly understand where we're at now?
02:23So, the law has been long-awaited.
02:26It's been in the works for a really long time, many, many years.
02:30And we're now at the point of understanding why we need it.
02:34And having gone through all the consultations, we've got the draft of the law.
02:38Where are we at now, Dr. Punta?
02:39Okay.
02:40I think we started way back in 2019.
02:43Wachala actually came over to Bayu and Metas and all that.
02:47So, we started way back in 2019.
02:49So, there was a lot of engagement.
02:51Thanks to the CSOs, they actually assisted us a lot.
02:55A lot of engagement with the civil society, with agencies, of course.
03:00And also, we had a lot of engagement with other countries, commissioners from RTI, commissioners from other countries as well.
03:08So, we learned a lot.
03:09And of course, you have the existing laws in the two states, Selangor and Penang as well.
03:15So, all that kind of assisted us.
03:17We passed the policy stage.
03:20So, cabinet basically approved on the policy for freedom of information.
03:24Very supportive.
03:25The cabinet, the prime minister was very supportive of this initiative.
03:28And we then developed a pro-tem committee.
03:32So, we established a pro-tem committee because we believe that it has to be inclusive.
03:36Whatever information that is going to be in the bill has to be inclusive.
03:40So, we need the assistance, of course, of our CSO friends, academics, agencies.
03:46So, we brought in all the relevant agencies like CGSO, Ministry of Communication, Digital.
03:52All these agencies were involved.
03:53MOF.
03:54All these agencies are involved.
03:56So, we pretty much drafted the bill, I would say.
03:59We have the bill.
04:00Okay.
04:00So, yeah.
04:01That's where we are.
04:02Now, we're almost at the kind of final step of that.
04:07And, Wachila, since Dr. Punita said that you have been involved with it since part of the stakeholder engagement, right?
04:14The consultation of this, is this what CSOs want?
04:19Is it in line with what you and other CSOs have been calling for?
04:24Oh, yeah.
04:25Definitely.
04:25I would have to say, you know, my predecessors have been working on this for more than two decades.
04:32Oh, really?
04:32Even within CIJ.
04:34Oh, I didn't realize.
04:34Because we were involved in the lobbying for the Slango and Penang.
04:40And something that many people do not know is that between 2008 to 2010, even Clantan was considering the possibility of enacting their own enactment on freedom of information.
04:50So, it goes as far back as that.
04:54But I think 2018 was a game changer for us because it became part of the government's manifesto then, right?
05:01And at that time, I recall the late YB, Dr. Liu, Vicky Liu, who had said that the government will proceed with the enactment and also repeal OSA.
05:16I think different considerations have come into play.
05:19But that commitment was absolutely critical.
05:22And I really also want to acknowledge Dr. Punita and her team at Bayou to continue that conversation.
05:29We've seen so many changes in administration, but the commitment to push forward this legislation has always remained.
05:37So, you know, this new government, it was a matter of just going ahead with the work.
05:42It wasn't about starting from scratch.
05:44Okay.
05:45So, I think it's on track.
05:46So, I'm sure that this must have been quite complicated, if that's the right word to use, in terms of harmonizing this new law with the OSA.
05:58Because having that huge kind of elephant in the room, if I may use that term, how do you work around it?
06:06How will a Freedom of Information Act work in Malaysia when we have this overarching Official Secrets Act in place?
06:16Okay.
06:16So, I think that's one of the challenges that we have right now.
06:20We have the OSA, for example.
06:22We have provisions in the Penal Code, for example, Section 203A, which penalizes civil servants if they disclose information.
06:31So, these are things that we are looking at.
06:33So, those are, of course, challenges.
06:34But what we did is that we are looking at how it could coexist.
06:39So, we worked very closely with the other government agencies, for example, CGSO.
06:48CGSO, they are the custodian of the OSA.
06:51So, we met them.
06:53We discussed with them and a lot of buy-in.
06:56A lot of buy-in and discussions with them.
06:57And finally, they are on board with us.
06:59So, what we had finally decided in Cabinet is that, what Cabinet finally decided is that they will coexist.
07:05So, you will have FOI.
07:07You will also have OSA.
07:08So, you will not repeal OSA.
07:10Because the functions could be different.
07:12For example, FOI, you are talking about access to information.
07:15Okay.
07:16Whereas, when you talk about OSA, we are talking about protecting government information, for example.
07:21Certain information.
07:22And you have the exemptions.
07:23It can coexist?
07:24It can coexist.
07:25And you have exemptions.
07:26In fact, in the UK, you have FOI and OSA.
07:29They coexist.
07:31So, it's something that we have to balance out.
07:34So, it's really balancing.
07:36So, you said not repealing OSA.
07:39No.
07:39But would it need to be amended?
07:40Correct.
07:41It would need to be amended.
07:42Definitely.
07:42You have to amend.
07:43That's where the issue is.
07:44Because if they need to coexist, then you have to make amendments accordingly.
07:48I see.
07:48So, that's where we had the buy-in.
07:50We had the discussions with CGSO.
07:52And they are completely on board with us.
07:54Okay.
07:54So, CSOs happy with that?
07:57CSOs will work with that.
07:58Okay.
07:59I think what is really critical, I think, with the FOI bill, there would be certain safeguards in terms of that.
08:08Because, obviously, the grounds for exemptions will overlap sometimes.
08:13National security, defense, and things like that will overlap, right?
08:19And what the safeguards that could be billed in the bill will require one, any kind of exemption will have to meet a certain threshold.
08:28It has to be legitimate, necessary, and proportionate.
08:31And it will also have to meet two tests.
08:33One is a harm test.
08:35They have to show that the harm of disclosure overweighs the harm of secrecy.
08:42Oh.
08:43Right?
08:43And then, any exemption will also have to meet public interests, as opposed to the interest of who actually came up with the information, or who is holding the information.
08:54So, if these safeguards are clearly articulated in the bill, it will help align and harmonize both sets of laws.
09:04Okay.
09:04Can you give me an example?
09:05I mean, when you talk about how broad the right to information, or access to information is, give me an example of what kinds of areas we can look forward to under a new legislation for the right to information.
09:21I am very hopeful.
09:23And an eternally optimistic person here, who looks at freedom of information as an intrinsic right.
09:31It's a fundamental freedom, right?
09:33Although it's not very clearly articulated in our federal constitution article, we'll read it through article 10, because as part of freedom of expression, we need to have access to information to be able to express ourselves.
09:48And, in fact, many international law, including the Universal Declaration of Human Rights, have included a right to access, use, and disseminate information as part of their principles of freedom of expression.
10:02So, that's where we start, right?
10:04And the second point, I think what is really critical is that when we talk about accessing information, we are talking about accessing all the information.
10:12Okay.
10:12It's not a free-for-all.
10:14It's not a absolute.
10:15It's really one information held by public bodies, right?
10:19Because information is public good.
10:22And the information actually belongs to us.
10:24It's our information.
10:26So, that's being held by the public bodies, public authorities as custodians.
10:33Okay.
10:33So, that's the second.
10:34The third thing, I think these are certain things that need to be ironed out, of course.
10:39What does it mean by principle of maximum disclosure?
10:42All right.
10:43So, we expect then all agencies, in this context, I think the government's plan is to move ahead with a federal RTI or FOI legislation which covers federal agencies.
10:57Right.
10:57Right.
10:58So, then all information held by these agencies, in principle, should be proactively disclosed.
11:07Proactively disclosed?
11:08Proactively.
11:09That's the fundamental principle of FOI.
11:11So, there has to be measures then being put in place by the different government agencies on how to disclose this.
11:18Okay.
11:19Correct me if I'm wrong.
11:19I always thought a Freedom of Information Act meant that the public, journalists like myself, you know, interested parties, research people, think tankers, they could apply to request this information.
11:34But you're saying proactively.
11:37There are phases.
11:37There are phases.
11:38I think if we go by principle of maximum disclosure and proactive disclosure, and what we fail to realize, the government's already disclosing information in stages.
11:49If you go to the different ministries' website, there's information.
11:53The application process comes in place, and I think this is where we need to reduce the gap, right?
12:01When the information is not proactively disclosed, right?
12:04And this information, sometimes there's a little bit of confusion.
12:08Hey, is it a classified information or should it be under OSA?
12:11So, that's when the application process will come in place.
12:17So, we are not saying that as soon as this legislation is passed, everybody's going to go and apply.
12:23It might happen.
12:24If you look at many countries, that's what's happened, right?
12:27The numbers will go up until the government then puts in place all the mechanisms to proactively disclose.
12:34Okay, then it will come down because then you'll start trusting the information and trusting the process.
12:41Dr. Punita, what do you think about this, the principle of maximum disclosure?
12:45Is that the ideal that we're working towards?
12:48Well, that's an interesting question to ask a civil servant.
12:50Well, I think maybe if I just go into how we approach the agencies because when you talk about maximum disclosure, from the civil service point of view, it's a bit difficult for us to accept because, you know, it means you have to then disclose.
13:09So, the question is, the first question is, what do we disclose?
13:13How do we know whether this is something that we can disclose?
13:16Because you have OSA and then you have the Section 203A.
13:21So, these are all things that the civil servants are very, very worried about.
13:24Yes.
13:25So, there's a lot of...
13:26So, they'll need to guide them, right?
13:26Correct.
13:27So, very sceptical about this whole idea of FOI.
13:32In fact, when we, I myself, when I was first introduced to FOI, I was a bit sceptical.
13:37You mean the government will have to tell you guys everything, whatever you want?
13:40So, there was that kind of a, you know, resistance definitely from the civil service.
13:45So, a lot of government agencies, they're not sure.
13:48There is a line between what you can and what you cannot.
13:52So, we need to tell them that.
13:53With OSA, we don't know.
13:55Civil servants don't know.
13:57So, most of the time, they will just say, okay, we have OSA.
13:59So, why do we have to disclose information?
14:01It could be OSA.
14:02But the thing is, this may not be an OSA material.
14:06It may be something that you can just publish.
14:08So, that's where the proactive disclosure comes up.
14:11So, if you know this is proactive disclosure material and you can disclose, then just disclose it.
14:16You see?
14:16So, this is where the issue is with the agencies.
14:20So, talk to me about the capacity of agencies to be able to do that.
14:24Because, first of all, they would have to know what is able to be disclosed and what cannot be disclosed.
14:31Then, they will have to be able to disclose that.
14:35That would mean additional work or additional capacity in what I assumed is quite a stretched, you know, any government agency or department.
14:45Definitely.
14:45Yes.
14:46Walk me through how we're thinking about that.
14:49Definitely.
14:49When we say reform, reform doesn't come for free.
14:53Right?
14:53Right.
14:54So, it's always costs involved, whether it's financial costs or structural costs.
14:58So, we're looking at, with the FOI, you definitely have a freedom of information officer in every agency.
15:05Oh, wow.
15:05So, the question is now, are we going to bring in new people?
15:09Are we going to ask for, you know, additional manpower?
15:13Or is it going to be the existing officers?
15:15They're just going to have more work to do then.
15:17So, those are questions that we have to iron out at the government level.
15:21But, well, if you want to reform, you have to do this.
15:24Okay.
15:24There's no two ways about it.
15:26Can I ask, what would it take to ready the ground for this reform?
15:32So, when you think about all the parts that are required to prepare the civil service for this,
15:41what's on the checklist that you have to kind of mentally go through?
15:45Well, I think the first thing is the buy-in among the civil servants.
15:48Okay.
15:48So, educating, giving awareness.
15:50Awareness, exactly.
15:51We need to actually tell them, look, this information is not exactly yours.
15:57It could be the people's.
15:58It's public.
15:59You know, I came to a point that at first I thought this is government.
16:02I cannot let you know.
16:03I cannot give it out.
16:05But then I, I mean, we are holding it on, the custodians to whatever information there is out there.
16:10Right.
16:10Is this that you have to balance it with national security, public interest, you know, being the government, there is a balancing act there.
16:18Right.
16:18You see, so you can't, of course, you can't disclose everything that the public want.
16:22At the same time, we have to also try our best to give them certain information, whatever, that doesn't create any issues, no harm.
16:29Why not?
16:29But at the same time, we also have to look at public interest and the government interest also needs to be looked after.
16:35Right.
16:35So, that's where the balancing happens for the civil servants.
16:38I see.
16:38I see.
16:38I mean, it's not an easy task.
16:39Not at all.
16:40To kind of unlearn maybe decades of doing things a certain way.
16:45What would you say in terms of how to ready the ground, ready the civil service for this?
16:54Because it will, this law, when it does pass, I hope it does, it will change the nature, the nature of the relationship between government and citizens and interested parties and media and the like.
17:08I think we are not expecting like a one switch.
17:11No, it's not going to like, you know, this law that, you know, where by default everything is secret will now suddenly by default become open, right?
17:20As what Dr. Punita mentioned, there are processes to it.
17:24One, by enacting this law, we are already sending out a message, right, that there needs to be a shift in how we are approaching public information.
17:35So, that's a very critical thing because if that message comes true, then systems and processes can be put in place.
17:40And I also have to say that Bayu, you know, has conducted numerous consultations, you know, Chua Peninsula, Sabah, Sarawah, you know, for a number of years now already.
17:53So, I think there is this constant engagement is going to be critical.
17:57The third thing that's going to be really critical is the law needs to set up the thresholds, right?
18:02So, that we understand, like, you know, the simple point, but what proactive disclosure means and what kind of information can be or should be published, right?
18:12That would help then the public authorities and, you know, public bodies determine what should and shouldn't be, right?
18:19And then the investment, the budgetary allocation is so critical because now it's not just about the human resources, right?
18:27The systems need to be in place because you need to make sure your website is able to hold all this information and it's accessible.
18:36And when we say accessible, you know, this is Malaysia, English, Bahasa, you know, persons with disabilities should be able to access it, right?
18:43So, there's all these technical, structural questions.
18:47And the most critical, which is going to be really, will require long term, is all the additional guidelines that needs to be put in place.
18:57How are you going to determine the fees, for example?
19:00How are you going to determine the application process?
19:03How are you going to determine the appeals process, right?
19:06So, all those little things will have to be built in and capacity building.
19:11You know, we talk to, you know, different countries in terms of how much time they invest in capacity building.
19:17It's ongoing.
19:19Oh, really?
19:19Because the offices change.
19:21Officers change.
19:22Structures remain, but offices change.
19:24So, they need to then constantly be retrained to be able to make these kinds of determinations.
19:31So, look at Australia.
19:34Like, they came up with their law in 1980s and they're still, you know, managing it.
19:39They are obviously very progressive, but they're still managing it.
19:43They're still amending the laws.
19:44So, it is going to be a long term investment.
19:47And I think this is really an investment that's worth making.
19:50So, it really isn't over just the day the law passes.
19:54It's not just about creating a good law.
19:58It's about putting it into practice.
20:01You mentioned, you know, having all these different areas, ensuring that there is independent oversight and mechanisms to appeal for refusals.
20:11Talk to me about that.
20:13Who would be, so how would refusals be policed?
20:19Who decides what is refused and what is not in terms of disclosure?
20:23Dr. Punita, what's your name?
20:25Dr. Punita.
20:25Okay, I think what we have discussed, of course, in our pro tem committee for the law, the development of the law itself,
20:32is that and also learning from other countries and international standards, I think we need an oversight body.
20:37Well, who would be the oversight body is something that is still in the works.
20:42But with the oversight body, of course, the oversight body does the monitoring.
20:47The oversight body looks at training, awareness, would also look at coming up with guidelines, for example.
20:54All the guidelines that Wachala mentioned earlier and also regulations for that matter.
20:58All that would be done by the oversight body.
21:00But at a lower level, at a more grassroots level, then you will have information officers in every agency.
21:08So that will make it more accessible for the public.
21:11So they don't have to go to an oversight body or a larger establishment, but rather you go to the respective agencies in which you want the information from.
21:19So that particular FOI officer will then receive your request and we have times, that means we have given them this number of days that you have to follow.
21:34That means you have to, for example, you have to inform them, okay, we've received your request, number one, within this number of days.
21:44And then you have to give them the information, if you have the information within this number of days.
21:49And if there is emergency request, for example, so it's even shorter period, so this number of days.
21:55And in the event you're not happy with the final answer or determination, if there's no, there is a refusal, like you mentioned, denial or refusal of information, you have to then tell the person why.
22:08So it's not just a no.
22:10No.
22:10There's a no and an explanation.
22:12Yes, that is the interesting part.
22:15But it's also the other way around.
22:16When the person requests for the information, the government says, yes, you have to also tell us why you want this information.
22:21Otherwise, there is a fear of misusing.
22:24Okay.
22:25Right?
22:25So, I mean, of course, maybe the CSOs are not too happy with that.
22:29But we said from the government, we said, you want information from the government, you tell us why.
22:33Can I ask you, did the federal government look at all at the Selangor and Penang example?
22:38Were there kind of the do's and don'ts that you learnt from the state level example you did?
22:45Definitely.
22:45A lot of engagement with them.
22:47Oh, brilliant.
22:47Yeah.
22:48Yeah.
22:48So definitely whatever that they have done, we have actually taken that into consideration.
22:52Okay.
22:52So both ways, they tell us why they want the information for and we will also tell them if there is a denial, why.
22:59So they can then bring it up to the internal review.
23:01There will be some form of internal review.
23:03And then and finally, when you're not happy at all and no information given to you, you can go up to the tribunal.
23:08There's a tribunal.
23:09Wow.
23:09Okay.
23:10So there is a process.
23:10There are kind of recourse mechanisms to be put in place.
23:16So at the time that we have left, talk to me about what it will take to get this law past the final hurdle, to make sure that it becomes law.
23:27What's next for this bill and how do we get it past the finish line after so many years?
23:33Dr. Punita.
23:34Maybe I'll just start a little bit.
23:35I think we started 2019, a lot of people have put in a lot of effort in it.
23:42So that's why there has been momentum.
23:43No matter whichever government comes in, we still continue with our effort because it is very important to have this.
23:49It's a major reform.
23:51That's number one.
23:52Number two, I think our engagement, very holistic engagement because we went to many, all the states, I would say.
23:59So I think all in all, we had about 1,000 over participants in our engagement and we went to all the states.
24:05in Malaysia to actually understand what is their take on FOI.
24:10And then, of course, after the approval from cabinet for the policy, then we roped in the CSOs and the academicians and all for the pro tem committee.
24:18So finally, the bill is here.
24:20We have the bill.
24:21We just need to pass it through the cabinet.
24:23Once we have that, that's it.
24:26Then the real work starts.
24:30You're right.
24:32It doesn't end.
24:34This is where certain stakeholders come into play.
24:40I think parliamentarians are going to be absolutely critical to make sure that a very robust standard is upheld during the debate to inform the debate.
24:52You know, when it's table, so that's going to be a very critical way forward.
24:58The next thing I think what is really going to be critical is the structures which are going to be implemented.
25:04And one of the most important structure there would be the oversight body.
25:08How do we make sure that the right person is on the oversight body, person with knowledge, understanding of, you know, freedom of information, right, you know, within a rights framework, understand the fundamental principles from a human rights perspective.
25:23That is going to be very critical.
25:24How that oversight body is resourced is going to be very critical and how it's going to function.
25:30So I think from CSOs, we will continue in ensuring that this then gets translated into action in a more robust way.
25:39Right.
25:40Work together.
25:41Work together.
25:42Yeah, I love to hear it.
25:43Absolutely.
25:45This is government and CSOs working together for a law that we've long wanted and hopefully we will get sued.
25:53Yeah.
25:53We actually also have an event on Friday that we are working together.
25:57This is in conjunction with the International Day on Universal Access to Information.
26:02So on Friday, we've roped in the Parliamentary Special Select Committee on Human Rights Election and Institutional Reform to be part of this conversation as well.
26:13Well done.
26:14Well, thank you both for coming on the show and talking a little, well, teaching us a little bit about what to expect if Malaysia has a federal level freedom of information law.
26:24So thank you both for your time.
26:26I appreciate it.
26:27That's all the time we have for you on this episode of Consider This.
26:30I'm Melissa Idris signing off for the evening.
26:32Thank you so much for watching and good night.
Comments