An entrenched culture of secrecy, in which government officers devise new ways to delay releasing information, is one hurdle to an effective Freedom of Information Act.
Experts from Sri Lanka cited this as an example from their nation’s experience with a similar law - the Right to Information Act - which is designed to disclose information held by public entities.
As the Madani administration prepares to table its FOI Act later this month, Sri Lankan experts shared with Malaysiakini the challenges they still face even after nearly a decade of implementing the RTI law.
They also shared observations on what Malaysians must insist from the government and what the FOI Bill must contain, if the Act is to be effective and impactful.
“If one mechanism stands above all others, it is the existence of a strong, efficient, knowledgeable, independent, and accessible RTI commission,” said Sherine Xavier, director of The Social Architects, a Sri Lankan NGO that uses the RTI extensively in its community work.
She was referring to the independent commission that oversees and enforces Sri Lanka’s RTI law. The body also hears appeals from citizens who are unsatisfied with the government’s responses to their information requests.
For rural and marginalised communities especially, such a commission is an important safeguard against arbitrary refusals and administrative inertia, she said.
“The commission has been the cornerstone of Sri Lanka's RTI success. Its independence, willingness to hear appeals, and readiness to issue binding decisions have given confidence to both citizens and public officials.
“The commission has played a critical role not only in resolving disputes but also in interpreting the law, setting standards for implementation, raising awareness, and gradually shifting public institutions towards greater transparency.”
Enduring culture of secrecy
As explained in the first part of this series, Sri Lanka enacted its RTI law in 2016 and started implementing it the year after.
Xavier and RTI commissioner Kishali Pinto-Jayawardena described the first decade of the law as “positive even though significant challenges remain”.
Even though it’s been nearly a decade, compliance with requests is uneven across all public institutions and often depends on the commitment of individual officers, said Xavier.
“Some institutions respond promptly and transparently, while others continue to delay, provide incomplete information, or rely on broad exemptions.
“As a result, the quality and timeliness of responses can vary significantly depending on who receives the request,” she said.
Xavier added that information officers are often assigned RTI duties in addition to their primary responsibilities and are frequently transferred between institutions, leading to a loss of institutional knowledge and continuity.
In certain areas, marginalised groups may hesitate to use the law due to fears that requesting information could affect their relationship with local authorities or result in the withholding of welfare benefits and services they depend on, she said.
Pinto-Jayawardena described another form of behaviour that comes from the culture of secrecy.
“In some instances, the information officers do not deny or release the information but keep on asking for time to 'locate' the documents when they can easily do so.
“They wait till the appellant appeals to the commission and then, once they get the summons, release it before it is taken up for hearing at the commission,” she said.
Another problem is that appeals to the commission have increased in the past few years on routine requests where information should be automatically released given the fact that the body has passed down close to 5,000 decisions since 2017, she said.
“This shows that changing the state institutional culture of being reluctant to give information is a difficult and uphill task,” said Pinto-Jayawardena.
But it’s not just the civil service that can be challenging, she added, as elected politicians both in government and the opposition have grown hostile to the system.
“An increasing concern is political commitment towards maintaining the primary standards of transparency and accountability that the RTI Act insists on.
“This concern is not limited to a sitting government but goes across the entire political spectrum.”
Ensure ‘law has teeth’
Beyond having an independent, strong and professional information commission, Xavier and Pinto-Jayawardena said Malaysia needs a few other mechanisms to make sure its FOI Act is effective.
The law itself should have narrow exceptions on what types of information can be exempted from FOI requests, Pinto-Jayawardena said. At the same time, a public interest justification should also be available to override all exemptions.
“Make sure that the law covers not only government but also public-private bodies subject to the internationally accepted parameters,” she said.
She added that giving powers to the commission to prosecute errant government servants is also important, as in the case of officers who purposely delay information requests.
“This is important for any information commission. Otherwise, it will not have any teeth”.
Xavier stressed that an effective FOI system should also contain meaningful consequences for non-compliance such as deliberate delays, obstruction, destruction of records, or unjustified refusals.
Other recommendations include:
Continuous and regular training for public officials, particularly given the frequent transfer of information officers and civil servants.
Public institutions should also routinely practise proactive disclosure by publishing key information relating to projects, budgets, decisions, recruitment, procurement and services.
Public awareness campaigns so that people know about the FOI Act and how to use it.
Protection for applicants so that people do not fear losing services or benefits from the government when making information requests.
Strong and proper records management system in the public service so that information is easily retrievable.
Ultimately, Xavier said, the challenge is not just about having a strong law, but pivoting from a culture of secrecy to one that upholds transparency, accountability, and public participation.
“The right to information should not be viewed as a legal obligation alone; it should be understood as a fundamental component of democratic governance and public service.” - Mkini
This series was produced with the help of a grant from the Centre for Independent Journalism.
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