BRIEFING ON FREEDOM OF INFORMATION FOI COALITION FOR GOOD GOVERNANCE (CGG) 7 OCTOBER 2009

FOI Law in Selangor 1. Draft prepared by NGOs since 2005 in a campaign where CIJ was the secretariat 2. Through CGG, NGOs in Selangor proposed the law to the state government in Draft law with legal input submitted in June this year 4. Bill is expected to be tabled at the November sitting 5. Public feedback expected during the committee stage of the bill

Purpose of the briefing 1. Update NGOs in the coalition on the status of the FOI draft law in Selangor 2. Introduction to the draft law 3. Preparation for public feedback and input during the committee stage

Who will be affected? 1. State government and agencies (including PKNS etc) 2. Local governments 3. Government linked companies 4. Private bodies in Selangor whose work have public interest implications (because of state government investments, impact on the environment etc)

Who will benefit? 1. Government 2. Private sector/businesses 3. Citizens 4. Civil society organisations 5. Politicians

BASIC PRINCIPLES OF FOI 1. Maximum Disclosure 2. Public bodies obliged to publish key information 3. Public bodies must actively promote open government 4. Exception should be clearly & narrowly drawn

BASIC PRINCIPLES OF FOI 1. Oversight by an independent body, like an Information Commission 2. Should not be COST-PROHIBITIVE 3. Meetings of public bodies should be open to public

BASIC PRINCIPLES OF FOI 1. Laws which are inconsistent w/ principle of max disclosure should be amended or repealed 2. Whistleblower protection

MAXIMUM DISCLOSURE Presumption that piece of info should be disclosed Presumption that piece of info should be disclosed There are certain exceptions, but it is the obligation of the authority that possesses the information to demonstrate that it should not be disclosed There are certain exceptions, but it is the obligation of the authority that possesses the information to demonstrate that it should not be disclosed Everyone has right to information – not limited to citizens Everyone has right to information – not limited to citizens Public interest is paramount Public interest is paramount

EXCEPTIONS National Security National Security Law Enforcement Law Enforcement Personal Privacy Personal Privacy Commercial Secrecy Commercial Secrecy Public or individual safety Public or individual safety Protecting the integrity of government decision- making processes Protecting the integrity of government decision- making processes Legally-privileged information Legally-privileged information Public economic interests Public economic interests

EXCEPTIONS However, it is up to the government/public body to prove that releasing this info will jeopardise national security. However, it is up to the government/public body to prove that releasing this info will jeopardise national security. Exceptions should be CLEARLY & NARROWLY drawn Exceptions should be CLEARLY & NARROWLY drawn All information deemed sensitive must past 3-part test before it is classified All information deemed sensitive must past 3-part test before it is classified

3-part Test Does the information relate to a legitimate aim specified in the Right to Information Law? Does the information relate to a legitimate aim specified in the Right to Information Law? Would its disclosure do substantial harm to that aim? Would its disclosure do substantial harm to that aim? If so, would it nevertheless be in the public interest to disclose that information? If so, would it nevertheless be in the public interest to disclose that information?

EXCEPTIONS If certain information within a specific document is deemed SECRET, ONLY the EXACT INFO covered by the exception should be redacted and witheld. If certain information within a specific document is deemed SECRET, ONLY the EXACT INFO covered by the exception should be redacted and witheld. The rest of the document should be made available The rest of the document should be made available

Who is Subject to RTI All Public Bodies:- All Public Bodies:- What are “Public Bodies”? What are “Public Bodies”? –Council of Europe Def:-  Government and administration at a national, regional, or local level  Natural or legal persons insofar as they perform public functions or exercise administrative authority as provided for by national law

Who is Subject to RTI Private bodies if they hold information whose disclosure is likely to diminish the risk of harm to key public interests – PUBLIC INTEREST OBLIGATION Private bodies if they hold information whose disclosure is likely to diminish the risk of harm to key public interests – PUBLIC INTEREST OBLIGATION E.g. Utility, Transport Companies (TNB, TM, RapidKL) E.g. Utility, Transport Companies (TNB, TM, RapidKL) Government-Linked Companies (GLCs, state subsidiaries) Government-Linked Companies (GLCs, state subsidiaries) Designation based on WHAT companies/bodies DO, not what they ARE Designation based on WHAT companies/bodies DO, not what they ARE

Public bodies must also:- Publish certain kinds of information, even if not explicitly requested Publish certain kinds of information, even if not explicitly requested Allocate responsibility for publishing and providing information to specific staff Allocate responsibility for publishing and providing information to specific staff Train INFORMATION OFFICERS to oversee & maintain information framework Train INFORMATION OFFICERS to oversee & maintain information framework Improve existing information & records- management systems Improve existing information & records- management systems Promote and publicize RTI law Promote and publicize RTI law Report on RT activities Report on RT activities

Procedures to follow:- Meeting requesters with politeness Meeting requesters with politeness Advise & assist persons who make requests Advise & assist persons who make requests Direct persons to the place where info they seek is likely to be found Direct persons to the place where info they seek is likely to be found Process requests RAPIDLY & FAIRLY Process requests RAPIDLY & FAIRLY Inform requesters of their rights Inform requesters of their rights Refusing, if necessary, repeated or vexatious requests Refusing, if necessary, repeated or vexatious requests Keeping in touch to ensure that a request is successfully carried out Keeping in touch to ensure that a request is successfully carried out

FOI laws only cover access to info that has already been created – does NOT mandate creation of NEW information FOI laws only cover access to info that has already been created – does NOT mandate creation of NEW information If info is already published, official should direct requested to where it is available or alternately, provide that info directly If info is already published, official should direct requested to where it is available or alternately, provide that info directly

Sections in the draft law Part I – Preliminary Part I – Preliminary Part II – The right to access to information Part II – The right to access to information Part III – Measures to Promote Openness/Duty to Publish Information Part III – Measures to Promote Openness/Duty to Publish Information Part IV – Exceptions Part IV – Exceptions Part V – The Information Commission Part V – The Information Commission Part VI – Enforcement by the Commission Part VI – Enforcement by the Commission Part VII – Whistleblowers Part VII – Whistleblowers Part VIII – Criminal and Civil Responsibility Part VIII – Criminal and Civil Responsibility Part IX – Miscellaneous Provisions Part IX – Miscellaneous Provisions

Part I – Preliminary Introduction and interpretations Introduction and interpretations Purpose: Purpose: “The purpose of this Enactment is to provide a right of access to any information held by public authorities within the jurisdiction of the State in accordance with the principles listed below so that: (a)that such information should be available to the public; and (b)that necessary exceptions to the right of access should be limited and specific; and (c)that decisions on the disclosure of such information should be reviewed independently of government” Definition of public authorities, publicly owned bodies, powers to designate, Information Commission Definition of public authorities, publicly owned bodies, powers to designate, Information Commission

Part I – Preliminary Definition of public authorities, publicly owned bodies, powers to designate, Information Commission Definition of public authorities, publicly owned bodies, powers to designate, Information Commission (1) For the purposes of this Enactment, a public authority includes any body within the State– (a) established by or under the State Constitution; or (b) established by State statute; or (c) which forms part of any level or branch of the State Government; or (d) owned, controlled or substantially financed by funds provided by State Government; or (e) that the State has a vested interest in any form or manner whatsoever; or (f) that any official of the State has a vested interest in any form or manner whatsoever. (2) The Commission or the State Executive Councillor may by order designate as a public authority any body within the jurisdiction of the State that carries out a public function

Part II – Right to Access to Information Explanation of the Right to access public held information Explanation of the Right to access public held information The procedures for requests The procedures for requests

Part III – Duty to Publish Information Publications Schemes Publications Schemes Maintenance of Records Maintenance of Records Information Officer designated Information Officer designated Reporting to Information Commission Reporting to Information Commission

Part IV – Exceptions Non-disclosure to protect public interest Non-disclosure to protect public interest Information already publicly available Information already publicly available Severability Severability Personal Information Personal Information State Executive Council Information State Executive Council Information Information in Court Proceedings Information in Court Proceedings If in contempt of state assembly If in contempt of state assembly Confidential information Confidential information

Part IV – Exceptions Information affecting state economy Information affecting state economy Health and safety Health and safety Affecting Enforcement or Admin of the Law Affecting Enforcement or Admin of the Law Policy making and operations of public authorities Policy making and operations of public authorities

Part V – State information commission Set up by the legislative assembly Set up by the legislative assembly Independent of the state and its agencies Independent of the state and its agencies Salary, expenses and staffing Salary, expenses and staffing Meetings Meetings Activities to promote FOI, monitoring, assist in trainings Activities to promote FOI, monitoring, assist in trainings Publicise requirements of the law Publicise requirements of the law

Part VI – Enforcement by the commission Complaints and decision making Complaints and decision making Powers to investigate Powers to investigate Appeals Appeals Binding nature of the commission's decision Binding nature of the commission's decision

Part VII – Whistleblowers Protection of whistleblowers Protection of whistleblowers

Part VIII – Criminal and Civil Responsibility Good faith disclosures Good faith disclosures Offences under the law – obstruction of access to records, interfering in the work of the commission, destroying records without lawful authority Offences under the law – obstruction of access to records, interfering in the work of the commission, destroying records without lawful authority

Part IX – Miscellaneous Provisions Correction of information and records Correction of information and records Preservation of Information Preservation of Information Protection against civil and criminal actions Protection against civil and criminal actions Regulations Regulations Interpretation by the courts Interpretation by the courts

PUBLIC FEEDBACK The bill will be presented for public feedback during the committee stage The bill will be presented for public feedback during the committee stage NGOs should participate in this, support the bill NGOs should participate in this, support the bill Ensure the bill presented complies with the fundamental principles Ensure the bill presented complies with the fundamental principles Prepare to counter resistance to the law Prepare to counter resistance to the law

ORGANISING FEEDBACK CIJ will assist CGG in facilitating NGO feedback CIJ will assist CGG in facilitating NGO feedback Through study circles and meetings Through study circles and meetings We can also conduct more detailed analysis of the law We can also conduct more detailed analysis of the law Contact points: Gayathry/Sevan (CIJ), CGG Secretariat Contact points: Gayathry/Sevan (CIJ), CGG Secretariat s: s: s: s: