Monday, November 2, 2009

KEYNOTE ADDRESS ON FREEDOM OF INFORMATION (FOI)

Transparency International Malaysia and the Konrad-Adenauer-Stiftung are organizing a conference on the Public Right to Information. The conference aims to raise the profile of the issues regarding the enactment of a Freedom of Information Act.
On

Tue 3 - Wed 4 November, 2009
Location: Royale Chulan Hotel, Kuala Lumpur

Keynote by:
Datuk Mohd Hafarizam Bin Harun
DMSM, KMN, AMS, JP
Legal Advisor to UMNO

Ladies and Gentlemen,

I want to quote Article 19 of the Universal Declaration of Human Rights (UDHR) which states that;

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
Adopting the following principal, the freedom of speech and expression covers broad category as to include the public from receiving any information on which the decision is made and at liberty to speak and write freely without censorship or limitation from the government. In a different perspective, it is known as an open government in which the new-modern democratic world emphasize on it. Open government promotes government’s credibility in the eyes of the people. Participation from the people in government is regarded as a vital aspect in promoting democracy. The principle of open government has been very well stated by Mason CJ of the Australian High Court in the case of Commonwealth of Australia v. John Fairfax & Son (1980) 32 ALR 285, 493 as follow:
“It is unacceptable in our democratic society that there should be restrain on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize Government action.”
Nowadays Government has acquired vast power affecting the economic interests and liberties of the people. Thus, it is important to ensure that power is exercised in a good manner without prejudice to the interest of the public. One way to check the government‘s conduct is serving the public and not departing from the original function is the individual access to information regarding the Government activity. The idea of open Government practice by many countries can act as a check on incompetence and improper exercise of power by the administration. By doing that, people’s right to know the true facts about the administration is regarded as a pillar of participatory democracy. Colin Turpin in his book “British Government & the Constitution at page 468 state that;
“Without openness and a ‘right to know’, ministerial responsibility to parliament is enfeebled, opposition to government disarmed, and democracy undermined”
FOI laws are an important instrument in creating transparency and thus helping to make governments accountable. A key objective of FOI laws is to create an opportunity for individuals, businesses and media to monitor and review Government’s decision-making processes. The obligation on Government agencies to publish, and the rights for individuals to have access to information of general public interest is a crucial tool in the struggle to prevent corruption.
On the historical background of FOI, the Sweden's Freedom of the Press Act of 1766 is thought to be the oldest FOI. Many countries implement the Freedom of Information (FOI) in their country when they realize the advantages they gained in promoting transparency. Today, more than 80 countries have already implemented some form of such legislation. Freedom of Information legislation represents the foundational right-to-know legal process by which requesters may ask for Government-held information and receive it freely or at minimal cost, except if it is barred by standardized exceptions. In many countries there are constitutional guarantees for the right of access to information, but usually these are unused if specific legislation to support them does not exist. A basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not the person asking for it. The requester does not usually have to give an explanation for their request, but if the information is not disclosed a valid reason has to be given.

AUSTRALIA

Freedom of Information (‘FOI’) laws in Australia grant members of the public a general right to access information which is held by Government Ministers, Departments and Agencies in documentary form. The framework of FOI rights in Australia is established by Federal and State legislation. In 1982, the Federal Parliament passed the Freedom of Information Act 1982. The FOI Act came into force on 1 December 1982 and each of the States have also enacted similar legislation. There are three key facets to FOI laws in Australia. They are:

(a) rights of access to public information in documents held by government agencies. The scope of documents extends beyond materials in paper form, and includes photographs, maps, films, emails, and tape and video tape recordings;

(b) a right to request access and amendments to personal information. If you believe that your personal information, as it appears in administrative documents which are being used by a government agency, is incomplete, incorrect, out of date or misleading, then you may request that the document be corrected; and

(c) an obligation for government agencies to record and publish, or make publicly available, specified information. The purpose of publishing this information is to bring the affairs and procedures of government agencies into the public arena. It is the third of these three features which is particularly relevant to the promotion of transparency in government.
The basic purpose of FOI legislation in Australia and the benefits which it is intended to confer upon the relationship between citizens and government are as follows:

• to improve the quality of decision-making by government agencies in both policy and administrative matters by removing unnecessary secrecy surrounding the decision-making process;
• to enable groups and individuals to be kept informed of the functioning of the decision-making process as it affects them and to know the kinds of criteria that will be applied by government agencies in making those decisions;
• to develop further the quality of political democracy by giving the opportunity to all Australians to participate fully in the political process;
• to enable individuals, except in very limited and exceptional circumstances, to have access to information about them held on government files, so that they may know the basis on which decisions that can fundamentally affect their lives are made and may have the opportunity of correcting information that is untrue or misleading.

However, the rights granted by FOI legislation are not absolute. Rather, the scope of FOI is limited by certain exceptions and exemptions. At this stage, the government may be justified in withholding some information in the interest of defense or security of the country. It is a question of drawing a balance between the right of the individual to know and the interest of the state to keep secrets. Members of the public may not be entitled to documents which:

(a) are subject to legal professional privilege;
(b) are subject to public interest immunity;
(c) contain private information about other people; or
(d) contain information provided to a Government agency in confidence.

However, the Australian’s FOI framework went into several criticisms. In June 2006, the Victorian Ombudsman published a report following a comprehensive review of the Freedom of Information Act 1982 (VIC) ("Ombudsman Report"). The Ombudsman Report was critical of various aspects of the FOI system in Victoria and presented recommendations of a legislative, procedural and administrative nature. The key criticisms relate to unnecessary delays in processing FOI applications and poor quality of assistance offered to applicants. Many of the criticisms identified by the Victorian Ombudsman apply equally to the Federal FOI scheme and that of the other States and Territories

(A) Legislative immunities are too broad:
Australian FOI laws operate on a restrictive policy of granting wide exemptions to certain government departments, rather than encouraging availability of information unless there is a specific case for withholding it. It may be that vague drafting of certain sections in FOI legislation provides an opportunity for government agencies to take advantage of the lack of precision. In effect, it can be argued that the exemptions confer discretion on agencies and ministers to claim immunity status for virtually any document – an outcome which is contrary to the pro-disclosure objective of FOI legislation.

(B) Risk of misuse of conclusive certificates:

A certificate is a conclusive mechanism which is issued by a Minister to deny access to certain documents. Government agencies are required to deny access to a document under the protection of a certificate unless it is possible to release the document with the protected material removed. Critics argue that the scope for review of a certificate is too narrow. The Administrative Appeals Tribunal ("AAT") does not have the power to grant access to a document the subject of a certificate. Rather, the AAT's power of review is restricted to determining whether reasonable grounds exist for the issuance of the certificate. The High Court of Australia is deciding an appeal relating to an AAT decision which found that there were reasonable grounds for the issuance of conclusive certificates.

(C) Risk of misuse of "irrelevance"
The Freedom of Information Act 1982 (Commonwealth) allows for portions of a document to be deleted if the information in question can reasonably be regarded as irrelevant to an application for access. The test as to whether an edited copy can be practicably created rests with the decision maker, as well as the exercise of judgment as to what is relevant and irrelevant. Although an applicant provided with an edited copy has to be made aware of this situation and the reasons for it, there is no requirement to provide a statement of reasons unless an applicant specifically asks for one. This has been criticized as being contrary to the aim of the Act – to make public information easily accessible unless there is a valid exemption.

Case Study:
McKinnon v Secretary, Department of Treasury: The McKinnon case has been pivotal in attracting the attention of the media and public to the nature of conclusive certificates. In December 2002, Mr McKinnon, the Freedom of Information Editor of the Australian newspaper, made FOI applications to the:

(a) Australian Taxation Office – for documents relating to taxation brackets; and
(b) Federal Treasury – for documents relating to the national first home buyers scheme.

Prior to the hearing of the applications, the Treasurer issued conclusive certificates, under the Freedom of Information Act 1982 (Cth), denying access to the documents on the grounds that their disclosure would be contrary to the public interest. Mr McKinnon applied to the AAT for the decision to be reviewed. As discussed above, the AAT's power of review is restricted to determining whether there exist reasonable grounds for the relevant Minister, in this case the Treasurer, to issue the certificates. The AAT held that such grounds did exist but failed to consider the public interest arguments in favor of disclosure in arriving at its decision. Mr McKinnon appealed to the Full Federal Court on the ground that, among other things, the AAT misconstrued its power of review and failed to take account of relevant considerations. The appeal was rejected. In early 2006, in a final bid, Mr McKinnon appealed to the High Court of Australia. The question before the High Court was whether the Full Federal Court made an error of law in dismissing Mr McKinnon's appeal against the decision of the Tribunal. It is important to note that the High Court (like the Full Court and the Tribunal) did not have the power to decide whether the Minister's decision to issue the certificates was correct. The power of review accorded by the Act is clearly limited to determining whether there exist reasonable grounds for the claim that disclosure of the document would be contrary to the public interest.

Majority Judgement – Justices Callinan and Heydon recognised that there is tension between the objects of the Act – to make available, and create a general right of access to, information in the possession of the Australian government – and the limited power of review conferred upon the Tribunal. A restricted power to review Ministers’ decisions result in an increased capacity for Ministers to deny freedom of information claims. Nevertheless, his Honors noted that this tension is dealt with by the express and unmistakably clear language of the Act. They found that if one reasonable ground for a claim of contrariety to the public interest exists, even though there may be opposing reasonable grounds, a conclusive certificate will be beyond review. Callinan and Heydon JJ dismissed the appeal, as did Hayne J for similar reasons.

Dissenting Judgement – Chief Justice Gleeson and Justice Kirby delivered a joint judgment in dissent. His Honors were not satisfied that an application for review of a certificate should fail simply because there is one reasonable ground in support of the certificate. The question of whether there are reasonable grounds in support of a certificate can only be decided after considering all relevant propositions. His Honors considered that the Full Court had made an error of law in finding that the existence of one reasonable ground was sufficient to satisfy a review of the certificate.

Impact of the McKinnon Case – The decision of the High Court in the McKinnon case has had the effect of further constricting the limited right for the AAT to review a Ministerial decision to issue a conclusive certificate. The Majority judgment interprets the FOI Act to require the existence of only one reasonable ground in support of a conclusive certificate for the certificate to be upheld, even though there may be a plethora of contradicting reasonable grounds. For this reason, FOI advocates and media commentators, have condemned the decision and called for the FOI Act to be amended.


UNITED KINGDOM


The underlying purpose of public interest immunity (known and called as crown privileges in Britain until about 1973) is to prevent the disclosure of any evidence in the court on the ground that there is public interest in ensuring that no prejudice or injury is caused to the nation by the disclosure of certain document. On the other hand, there is the competing public interest in ensuring that the administration of justice is not frustrated by the government withholding documents which need to be produced if justice is to be done.

The law in Britain on the question of government privilege not to produce document in court has been progressively tightened in the course of time against the government. In Britain, the position as to the Minister Certificate that the disclosure of a class of document, or the content of particular document, would be injurious to public service and public interest was regarded as conclusive, and a court could not go behind that.

The classic example could be seen in the case of Duncan v Cammell, Laird & Co [1942] AC 624. In this case, the submarine Thesis built by the contractor for the Admiralty sank while undergoing trials. The widow of one of the drowned persons brought an action for damages on account of negligence. She sought discovery of certain document containing information about a torpedo system and plans of the submarine. The Admiralty claimed crown privilege for the document on the ground that their disclosure would be contrary to public interest because at that time, the country was at war with Germany. The House of Lords upheld the refusal of judge to order their discovery on the ground that the Minister’s affidavit claiming privilege was final and conclusive and could not be called into question.

However the decision of the House of Lords in Duncan’s case was totally removed and the position was changed in the case of Conway v Rimmer [1968] 2 AC 910. The plaintiff was a probationary constable. He was prosecuted for larceny from a colleague but was acquitted. Thereafter he sued a police superintendent for malicious prosecution. Discovery was sought for certain document but production was refused on the ground that it would be injurious to public interest. The House of Lord ruled that the wide interpretation of Crown privilege in Duncan was wrong. The principle that the court could in no circumstances goes behind a Minister’s Certificate claiming privilege could no longer stand. The question to be answered is: Whether public interest is so strong as to override the ordinary right and interest of litigant. Thus, according to Conway approach, it is for the court to balance two competing interest involved – the public interest in not disclosing the document with a view to prevent harm to the nation or the public service, and the public interest in disclosing the document in the interest of proper administration of justice.

MALAYSIA

In Malaysia, the question of government privilege to refuse production of document in the court has been discussed at some length in BA Rao v Sapuran Kaur [1978] 2 MLJ 146. The Federal Court in dismissing the appeal by the government which claimed that the disclosure of the report would be in ‘breach of the pledge by the ministry that all facts, remark, opinions and recommendation of witness and members of the committee were to be given in strict confidence”. The Federal Court ordered production of the committee report and finding held that a mere assertion of confidentially and of involvement of the affairs of state without evidence in support cannot shut out the evidence sought by the respondent.

However Section 123 of the Evidence Act states a boundary as to the production of the government document. It clearly state;

No one shall be permitted to produce any unpublished official record relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or withhold permission as he thinks fit, subject, however to the control of a Minister in the case of department of the Federal Government and of Chief Minister in the case of a department of a State Government.

Furthermore Section 124 of the Evidence Act states;

No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure:
Provided that the country may require the head of the department of the officer to certify in writing whether or not such disclosure would be detrimental to the public interest and, if the head of the department certifies that such disclosure would not be prejudicial to the public interest, then the officer shall disclose the communications


Section 51A of the Criminal Procedure Code – Court can allow supply of documents if circumstances require doing so!

The right to information is not a right which is specially stated in the Malaysian Constitution but, nevertheless, it can be inferred from Article 10(1) Federal Constitution of Malaysia that;
10. Freedom of speech, assembly and association.
(1) Subject to Clauses (2), (3) and (4)-
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without arms;
(c) all citizens have the right to form associations.
(2) Parliament may by law impose-
(a) on the right conferred by paragraph (a) of clause (1), such restriction as it deems necessary or expedient in the interest of the security of the Federation… [See loose leaf]

Notwithstanding to the freedom of speech granted under Article 10 Federal Constitution, the Official Secret Act 1972 which is based on the British Act of 1911 stands in between the inference of that freedom of speech, association and assembly. This Act was passed “to combat any attempt by civil servant from indulging in the highly specialized field of spying and selling official secret to a foreign country”. This Act not only covers public service mentioned in article 132 of the Federal Constitution but also local authorities as well as Statutory authorities exercising power vested by Federal or State law, and any person, tribunal, body, institution or authority which may be declared by the Minister or by order published in the Gazette, to be a public service.

Therefore the Minister has discretion to declare even a private body as a public body for the purpose of this Act. The expression “Official Secret’ has been defined broadly. It means any document specified in the schedule and any information and material relating thereto and includes any other official document, information and material as may be classified by a minister or Chief Minister of a state or any authorized public officer as “Top Secret”, “Secret”, “Confidential” or “Restricted”. The schedule include the following; document, decision and deliberation of the cabinet and its committees; documents, decisions etc of the State Executive Council and its committees; document concerning national security, defense and international relations.

The Minister or the Chief Minister may add to, delete or amend the schedule by an order published in the gazette. He can delegate the power to classify document to any public officer. The minister or the officer authorized can declassify any document. Under s 16A of the Act, a certificate by a Minister or authorized public officer or the state Chief Minister is ‘conclusive’ evidence that a document is an official secret and “shall not be questioned in any court on any ground whatsoever’. Thus it all depends on the discretion of the Minister, Chief Minister or the authorized officer to decide what document is an official secret.

Under Section 8 of the Act, the coverage of the persons having possession official information who are liable is extremely wide. It includes the following;

(a) Any person in possession or control of official secret.
(b) Any person obtaining information in contravention of this Act.
(c) Any person to whom an official secret has been entrusted in confidence by public officer.
(d) Any person obtaining or having access to information owing to his holding any office (present or past), or holding any government contract, or any person holding office under any of these persons.


CONCLUSION


1. FOI is an integral part of the participatory democracy but it is not to be applied carte blanche without regards to the multi-racial composition of citizens in Malaysia;

2. FOI per se is not a guarantee that transparency or accountability can be improved in the Government sector. Other areas like integrity, delivery system also form part of the whole re-engineering of a modern-new Government concept.

3. Malaysians must be responsible when applying FOI and not merely to their individual, political, social and racial advantages. It is the interest of Malaysia (and Malaysian in general) that is the paramount consideration when legislating FOI.

4. OSA is still relevant especially when the national interest is at stake! However, modifications on the procedure and usages of it need to be relooked at.

5. Whether we like it or not, the spirit of FOI is already in practice in Malaysia. The recent Auditor General’s report is a manifestation of FOI albeit it does not specifically mentions so.

THANK YOU LADIES AND GENTLEMEN

2 comments:

  1. A quite interesting story.. anyway don't forget to leave your comment at myutusanmalaysia.blogspot.com

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