Wednesday, February 6, 2013

How far to go over the right to know?

Feb 06, 2013

By Choo Zheng Xi For The Straits Times

PRIME Minister Lee Hsien Loong was less than enthusiastic when responding to an audience member's question about whether the Government was considering a Freedom of Information Act (FOIA) at this year's Institute of Policy Studies Perspectives Seminar last week.

The exchange was the latest instalment of a perennial but peripheral discussion about an FOIA. In fact, there is much misunderstanding and inflated expectations about such an Act and what it might achieve.

As a result, the respective positions for and against such legislation have been reduced to the following: proponents argue that the Act will make the Government more accountable and transparent, while opponents argue that it will sap government resources, lead to leaks in sensitive information and conversely encourage opaqueness.

Both positions are reasonable hypotheses of possible outcomes. But it might be more productive to look at the experience of countries with FOIA legislation to get a better sense of the actual challenges and promises of such an Act.

First, what is an FOIA and how does such legislation generally look?

FOIA legislation is best understood as "right-to-know" legislation that guarantees any member of the public's right to access data held by government bodies. As of the last quarter of 2012, at least 93 countries have some form of FOIA legislation.

Such legislation is generally coupled with legal obligations for government bodies to archive information.

FOIA requests can be made by members of the public, civil society groups or news organisations. Decisions by public bodies not to disclose information are usually reviewable by the courts.

Three misconceptions about FOIA legislation have caused much disappointment to information activists in countries that have adopted it. Such misconceptions have also held back governments' adoption of it in countries that have yet to do so.

The first relates to scope. Campaigners hope, and governments fear, that the all-encompassing breadth of an FOIA will shine a strobe light of openness on every nook and cranny of government.

In reality, FOIA legislation even in Western democracies with more liberal attitudes to public access to information has exemptions that entitle governments to withhold or redact information about sensitive national security and defence documents, Cabinet deliberations or government documents containing personal data of third parties.

For example, US law recognises the right of the federal government to withhold information on national security grounds in cases where the information is so sensitive that the agency is entitled to respond that it can "neither confirm or deny" it actually exists.

Such a response is known as a "Glomar response" after the name of a top secret CIA programme used to salvage a Soviet submarine at the height of the Cold War.

More recently, the response was used by a US federal circuit court to prevent the release of documents relating to the use

of torture in the US "war on terror".

So, those hoping to see the introduction of an FOIA need to keep in mind the reality that the Government will still, at the end of the day, be entitled to withhold certain classes of sensitive information.

As for the Government, the concern that it will completely lose its ability to protect sensitive information should not be overstated.

The second misconception about the FOIA from those who favour it is that it will painlessly usher in a new era of enlightened public discourse.

The experience of countries that have adopted it suggests a more prosaic reality: requests for information will include the mad and the bad, thrown in with questions that are the paragons of investigative journalism and public spiritedness.

It is entirely possible the former will outnumber the latter.

In the early years of the FOIA in Britain (which adopted it in 2000), requests were made seeking the e-mail addresses of unmarried policemen in Hampshire and the number of sex acts perpetrated on Welsh sheep.

Public education about the benefits and mechanics of an FOIA can take much more time than the conceptualisation and implementation of actual legislation.

Even with the Act, it will take time to entrench a culture of access to information as of right, and build an engaged civil society that is able to meaningfully analyse the data obtained and formulate questions for further public debate.

It will also take time to convince all levels of government bureaucracy that a culture of archiving and releasing information to the public as a matter of course is beneficial to public policy formulation.

The third misconception about the FOIA is that it discourages candour in decision-making.

The argument goes that it will have a "chilling effect" on policymakers fearful of having potentially to reveal the minutes of internal meetings to public scrutiny, leading to a sanitisation of meeting minutes.

Thankfully, this does not appear to be Britain's experience.

A House of Lords Justice Committee report set up to review the FOIA, published in July last year, "was not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act". It added that the value of openness introduced by the Act balanced out any marginal chilling effect.

In any case, it is questionable if the Singapore civil service with its high standards of integrity will succumb to the perverse incentive to conceal information to prevent it surfacing.

The pros and cons of an FOIA deserve serious, informed debate that comes from a clear-eyed understanding of its potential limitations and a realistic view of what it can achieve.

A proper understanding of its potential, together with sustained public education, can go some way to enhancing the culture of transparency and good decision making that the Singapore Government is known for.

The writer is a lawyer at Peter Low LLC and has worked on FOIA litigation in the United States.

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