Logo from CIJ’s FOI campaign
(all pics courtesy of CIJ)WHILE freedom of information (FOI) is a formidable rallying cry today, its intricacies are frequently lost amid all the catch-phrase-slinging. We like the sound of the idea, but we are usually unaware of the details and implications, the ways in which this fundamental right can and should be enforced.
The Centre for Independent Journalism (CIJ) and Transparency International-Malaysia (TI-M) are two organisations attempting to fill this deficiency. Most recently, they co-organised a three-day FOI training session, from 6 to 8 Jan 2009, for 10 individuals: a task force who, armed with their new-found knowledge, would go on to instruct this issue to other Malaysians.
“The training is part of an outreach activity,” explained CIJ executive director Gayathry Venkiteswaran. “It is intended for a small group of people who can conduct introductory and briefing sessions for identified target groups. These groups will be important stake-holders,” — lawyers, members of parliament, the media, and bureaucrats — “to support the FOI law.”
To conduct this masterclass of sorts, CIJ and TI-M enlisted the expertise of Toby Mendel, senior director for law at UK-based, internationally active Article 19. The Nut Graph managed to quiz Mendel, via e-mail, on the issue of access to information and its intricacies.
Participants in the FOI training session
TNG: You are senior director of law at the UK-based Article 19, a human rights organisation with a focus on the “defence and promotion of freedom of expression and freedom of information worldwide.” What exactly does Article 19 do?
Article 19 promotes freedom of expression in countries around the world. It takes its name from Article 19 of the Universal Declaration of Human Rights, which guarantees freedom of expression. We do a range of different activities, providing support for local groups campaigning for reform and setting global standards on these issues. One of the issues we work a lot on is freedom of information — or the right to information (RTI), as we call it.
What is freedom of information? Why is it important?
Freedom of information is the right to access information held by public bodies. It is important for a number of reasons.
It is, perhaps first and foremost, central to democratic participation. My organisation has called it the “oxygen of democracy”. If we do not know what [the] government is doing, we cannot participate in decision-making that affects us, or even really exercise our right to vote in an informed manner.
But the right to information is also important for accountability, and to root out corruption. There are numerous stories from all over the world about the use of RTI to expose corruption.
Finally, there are a number of other benefits from RTI. In many countries, for example, businesses make significant use of RTI legislation to get information that will help them run their businesses more effectively. So RTI is also good for business!
Toby Mendel
Limits to freedom of expression or information are usually justified by citing reasons of security or social order. Are these arguments flawed?
Not necessarily. Freedom of expression and information can be limited for certain interests: to protect the rights of others (e.g. for purposes of equality), to ensure public order, or to prevent external attacks on national security.
The problem is that governments often abuse these reasons and place unduly restrictive limits on freedom of expression. Under international law, any such limits must be “necessary” to protect the interests mentioned above.
This means that the limit does not go beyond what is needed to protect the interest. It is carefully designed to be used only to protect the interest — and not other things, such as the government or leading politicians. Also, that the limit is proportionate, in the sense that the harm done to freedom of expression/information is not greater than the benefit to the protected interest.
In Malaysia, many of your laws — such as the Internal Security Act (ISA), the Official Secrets Act (OSA), the law on sedition, and criminal defamation rules — do not meet the standard of necessity imposed by international law.
What makes for effective freedom of information legislation?
Good legislation has six main attributes:
1. A strong and broad presumption of disclosure that applies to all public bodies and all information they hold, subject only to the exceptions set out in the law.
2. Rules requiring public bodies to proactively disclose key categories of information: how they operate, what contracts they have concluded and with whom, what sorts of information they hold, etc.
3. Good procedural rules for dealing with requests for information, including clear timelines for responding; limits on the fees that may be charged for information; rules for assisting requesters; and what notice must be provided in case access to the information is refused.
4. A clear and narrow set of exceptions, which is complete in the sense that it does not allow exceptions in other laws (i.e. it overrides the OSA in case of a conflict between the two laws). Exceptions should also be harm-based, so that it is only where disclosure of the information would cause harm to a protected interest that it may be refused. Finally, there should be a public interest override, so that even if release of the information would cause some harm, it should still be released if it is in the overall public interest.
5. A right of appeal against refusals to provide access. To the courts, as is normally the case with all laws, but also to a dedicated and independent administrative oversight body — like an Information Commissioner.
6. A set of promotional activities, to promote compliance.
Legislation does not necessarily mean automatic compliance. Even in instances where good laws exist, access to information may be stalled by political manoeuvring, bureaucratic resistance, or other circumstances. What strategies may be adopted to overcome this?
Ensuring proper implementation of the law is a longer-term project.
A number of promotional activities can be undertaken: the training of officials; public awareness-raising campaigns; formal reporting by public bodies on their implementation activities; reporting to parliament so that oversight can be exercised at that level; putting in place better record management systems so information may be found easily.
Civil society groups should make active use of the law, pushing the boundaries and challenging refusals. The media should do the same, and highlight problems as well as successes. Senior champions of the right should be identified — for example, certain members of parliament — and they should be encouraged to play an active promotional role.
These are just some ideas; the options are endless.
What sort of challenges does Malaysia face, with regards to RTI? How would greater freedom of expression and access to information benefit Malaysians?
Malaysia has both opportunities and challenges at this point in time. A number of state-level governments have expressed an interest in adopting legislation on this issue, which is a fantastic opportunity. It is something that all Malaysians who want to strengthen democracy and human rights should support.
At the same time, Malaysia has a long history of secrecy and problems with freedom of expression, including many of the repressive pieces of legislation that I mentioned earlier. It will take some time to counter this history and to replace the culture of secrecy with one of openness.
Perhaps Malaysia can look at countries like India, Mexico and even Indonesia for examples of countries that have had some success in implementing RTI laws. 
