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foi Imagine being told you can now have access to official data that had been heavily classified for decades… pretty revolutionary, right?

But the response from citizens after the Penang Freedom of Information Enactment (FOI) 2010 was implemented was anything but. In fact, it has been positively lukewarm.

Penang Deputy Chief Minister II Prof P. Ramasamy, who is the state executive councillor in charge of FOI, said there were 71 applications last year, an average of six a month, since the FOI Enactment came into force in January 2015 and 47 up to June this year.

“There was a lot of expectation the minute we implemented this Enactment that there would be a rush for information, but that didn’t happen. [We thought] people would come, people are hungry for information… but that didn’t happen. [Applications are] quite low, considering the hoo-ha behind FOI,” he added.

“People were under the assumption that information is suppressed, whether it’s a DAP or Pakatan government, all governments are like that ― that you don’t give the right information to the public,” Ramasamy told Malay Mail Online in a recent interview at his office here.

At the same time, civil servants are still afraid of releasing information.

“Civil servants don’t want to reveal anything ― fear of the OSA,” he said, citing the federal Official Secrets Act (OSA) 1972. “It’s not their culture”.

Ramasamy said the state government is considering holding more briefings for civil servants to train them on the importance of FOI, as the last one was held before the Enactment was enforced in January last year.

He said the Penang Shariah Judiciary Department received the highest number of FOI applications in 2015 (24 applications) and this year (22 applications), most of which were related to orders for inheritance.

Other FOI applications were made to the Penang Island City Council, the Seberang Perai Municipal Council, the Penang Islamic Council, the State Secretary’s Office and the Penang Town and Country Planning Department.

A total of seven and two applications were rejected in 2015 and this year respectively. However, no appeals have been made.

Some of the FOI applications were for information about planning approvals which Ramasamy said could be obtained from the Land Office instead of through the FOI Enactment. One was even for a CCTV recording in front of a convenience store.

Some of the applications were rejected because forms were not filled up properly or because requests were made for the meeting minutes of local councils that can’t be given as they’re confidential, Ramasamy said. The state executive council’s meeting minutes are also confidential.

Applicants comprised individuals, companies, journalists, politicians and activists, according to the Penang DCM II. There are 23 information officers throughout Penang, one for each government department.

Ramasamy said there is no backlog of cases, noting that the FOI application process is 14 days’ long, where the information officer must respond within that time after receiving an application.

FOI fees too expensive

Penang Gerakan criticised the fees for FOI applications, where RM50 is charged for applications relating to information in the current year, RM100 for information from previous years, and RM1 per page for photocopies.

Under the Selangor FOI Enactment 2011 in comparison, the application fee is just RM12 while photocopies are just 20 sen per page.

“It’s a barrier to freedom of information,” Hng Khoon Leng, co-ordinator for Kadun Padang Kota, told Malay Mail Online at Gerakan’s office here.

He pointed out that it only costs RM5 and RM10 to lodge a case at the consumer or housing tribunal respectively.

Acting Penang Gerakan chairman Oh Tong Keong told Malay Mail Online that the ideal FOI application fee should be RM5 to RM10, while photocopies should only be 20 sen per page, saying that the current charges were “outrageous”.

Hng also criticised the requirement for FOI applicants to sign a statutory declaration (SD), pointing out that this was not mentioned in the Enactment.

“The SD is another barrier to freedom of information,” he said.

According to Ramasamy, FOI applicants are required to sign statutory declarations to state that they will not use the information for commercial purposes.

Gerakan’s Hng said his party has made five FOI applications, two of which were approved, but the applications for information on the controversial Penang undersea tunnel project by acting Penang Gerakan Youth chief Jason Loo was rejected as Loo “didn’t want to create a precedent by signing the SD.”

When asked if there should be a federal FOI Act and if the OSA should be abolished, Oh said briefly: “Should be.”

Three areas for improvement

DAP lawmaker Steven Sim listed three areas where FOI in Penang can be improved: obliging government departments to routinely publish information, limiting the number of exemptions to disclosure of information, and reducing the cost of access to information.

“The whole culture that we’re in is that information is secret by default,” Sim told Malay Mail Online.

“We want the Bill to be further strengthened to make it a duty by government departments to routinely publish government information, including annual reports, financial information,” the Bukit Mertajam MP added.

Sim said local councils’ annual budgetary accounts, for example, should be published and that the FOI Enactment should be a “measure of last resort.”

The lawmaker also called for the number of exemptions to disclosure of information in the Penang FOI Enactment to be reduced, noting that the original legislators back in 2011 felt that exemptions should be specific, extraordinary and limited. 

“When the final product came out, we were surprised that the Selangor exemptions were three or four clauses; ours is three or four pages,” said Sim. “A lot of it is unnecessary and very vague, redundant.”

He cited as an example the exemption where access to information can be denied if the information is confidential, which he said is already covered in other laws.

“The opportunity is there for them to rationalise the exemption list to reflect the spirit of the original legislators’ ― where the exemption is limited, unique, extraordinary and specific,” said the Penang lawmaker.

Other exemptions to disclosure of information under Section 11 of the Penang FOI Enactment include information that would likely affect the state’s economy; information that would likely endanger one’s life, health or safety; or trade secrets.

Sim said exemptions to disclosure of information should generally only be on national security, trade secrets and privacy.

The third area of improvement, said Sim, is reducing the financial costs and other obstacles to making FOI applications.

According to Section 6(b) of the Penang FOI Enactment, applications shall be charged a “nominal fee prescribed by the state authority.”

“The fact that Selangor can charge RM12, when we’re charging RM50, RM50 is definitely not nominal,” he said.

He added that the requirement for statutory declarations was redundant, pointing out that whatever protections the document gave was already in the Enactment.

“The SD should not be necessary,” said Sim. “This is part of the cost. The cost of access can be lowered still”.

He also said FOI should not be seen as a “weapon”, but as a tool of “empowerment” so that citizens can resolve issues on their own instead of relying on politicians.

“People don’t know how to deal with free information,” said Sim.

The lawmaker also said the reason why Pakatan Harapan’s “ugliness” can be seen is because the Penang and Selangor state governments allow freedom of information, while the Barisan Nasional (BN) federal government and other states have yet to enact FOI laws and have even declined to answer some parliamentary questions on the basis of national security.

“We hope that by doing this, we’ll set an example that’s irreversible, in the sense that even if one day the government has lost, the Act is irreversible and hopefully, we can disarm the other parties as well by this sacrifice,” said Sim.

Separate FOI budget necessary

Centre to Combat Corruption and Cronyism (C4) executive director Cynthia Gabriel said the infrastructure for information officers in Penang was “very weak” and called for a separate FOI budget, as well as additional training.

“Despite FOI, many people continue to feel cut off from the information chain,” Cynthia told Malay Mail Online.

“We urge federal to have the courage to emulate Pakatan states in the right to know,” the activist added.

She also said “strict” limits should be imposed on the OSA so that information is classified only if it relates to national security.

Penang DCM II Ramasamy told Malay Mail Online that the state government has no plans for a separate FOI budget as “money [is] not an issue at least at this stage.”

He, however, said the Penang government would review the statutory declaration requirement “from time to time”, as well as the FOI application fees and exemption list.

“We’ll improve it as time passes,” he said.