Parliament must select a commission to process FOIA requests, say experts

The Star

5 days ago

PETALING JAYA: An independent information commission is key for the upcoming Freedom of Information Act (FOIA) to become an effective tool to fight graft and keep governments accountable, say experts.
Another critical aspect that needs to be in tandem with the tabling of the proposed Bill for the FOIA is amending several laws that deal with information, says the Centre for Independent Journalism (CIJ).
This includes repealing the Official Secrets Act (OSA) and amending the Personal Data Protection Act (PDPA), the Whistleblower Protection Act, and Section 203(A) of the Penal Code, said CIJ programme officer Noel Dass.
CIJ, which has advised the unity government on the Bill, also urged the administration to make the draft of the Bill public for further feedback once it is ready.
'We also hope that it would cover both federal and state level information or provide a template, so that the states can then adopt as a state enactment,' Dass said when contacted.
Anti-graft watchdog C4 CEO Pushpan Murugiah said that the Act must also spur a mindset change among policymakers and the civil service not to treat all information they possess as a secret.
'The general principle is that all information held by public bodies belongs to the public and should therefore be open and accessible by default.
'Disclosure of information should not depend on the government's goodwill in individual cases. This is a right that should be accorded to everyone,' said Pushpan.
The proposals of the NGOs came following Datuk Seri Anwar Ibrahim's announcement recently that the Bill for FOIA is expected to be tabled in the year-end meeting of Parliament this year.
The Prime Minister added that amendments to the Whistleblower Protection Act are also expected to be brought to Parliament.
A key reform promised by Anwar's Pakatan Harapan coalition, the FOIA will allow anyone to request information from the government, subject to several limitations such as military and national security secrets.
Supporters said the Act will allow the public to keep the government accountable and help fight graft as it can be used to access decisions on procurement and spending.
However, Dass said for the Act to have actual bite, it must have an independent commission, whose members are chosen by Parliament to oversee the implementation of the law.
'The commission will also promote access to information and resolve disputes of access to information,' says Dass.
This last role is significant, as the commission would be responsible for hearing appeals from individuals whose information requests have been denied, he added.
'The commission must have power to review decisions made by public authority and make binding decisions, submit an annual report to Parliament, and publish guidelines on minimum standards and best practices,' Dass said.
C4's Pushpan said that access to information must only be restricted if its release could lead to legitimate harm.
'The law must clearly state narrowly-defined exemptions to disclosure, based on international standards of legitimacy, necessity and proportionality and subject to an overarching public interest test.'
CIJ's Dass said that the Act should include a three-part test to determine whether any information should be restricted.
This test includes firstly determining whether any restriction to information must be related to a legitimate aim as provided for in international law, such as for the health, safety and welfare of individuals, said Dass.
Secondly, that the disclosure of the information must threaten to cause substantial harm to that aim. Lastly, that the harm to that aim must be greater than the public interest in having the information.