"Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret. Bureaucratic administration always tends to be an administration of ‘secret sessions’: in so far as it can, it hides its knowledge and action from criticism.” (Max Weber)
The Freedom of Information (State of Selangor) Enactment 2011 and the
Penang Freedom of Information Enactment 2010 precede the Federal Government’s
2023 commitment to introduce federal freedom of information legislation by over
a decade. In furtherance of this federal commitment, nationwide consultations
and dialogues with civil society, led by several NGOs such as the Centre
for Independent Journalism (CIJ), have been held to shape the proposed
legislation. Since the proposed federal law is expected to have wider
jurisdiction and stronger provisions to secure the public’s right to
information than in the two state-level enactments, a comparative analysis of
these earlier laws might provide insights into the structure and
functioning of FOI legislation in Malaysia.
The analysis draws no conclusions on the effectiveness of the Selangor
and Penang enactments, nor does it support their continuation in their current
form. Such findings would require an analysis of how the enactments have
served their purpose since they were implemented. The Centre for
Independent Journalism offers a detailed assessment of the implementation of
the two enactments in its document titled "A Preliminary Assessment of The
Early Years of State-Level FOI Enactment Implementation" (2021). The
document can be accessed here.
That said, any analysis of the two enactments must now consider
Christopher Chin J’s decision in Harris Mohd Salleh v. Chief Secretary,
Government of Malaysia & Ors. [2023] MLRHU 323; [2023] 4 CLJ 744. In that
case, the applicant, a former Sabah Chief Minister, applied to the Court to
direct the respondents to declassify the investigation report by Malaysian
authorities into the crash of Nomad Aircraft 9M-ATZ Crash on 6 June 1976 at
Kota Kinabalu, Sabah.
In allowing an order of Mandamus, Christopher Chin J held, inter-alia
that,
‘. . . the right to information exists
as a corollary to the right to free speech. The Federal Constitution seeks to
establish an egalitarian society where citizens exercise their right to free
speech on facts and reason, not on assumptions and conjecture.’
The judicial recognition of a constitutional right to information will
fundamentally affect the interpretation of the two enactments (and indeed in
the formulation of any new legislation on the subject). Absent a constitutional
right to information, the right to access information under the enactments
would have to be decided largely if not entirely by the access provisions of
enactments. A prior constitutional right as recognised by the court in Harris
Mohd Salleh means that the provisions in both enactments must now be
examined against that constitutional right.
The Aims of the State Enactments
While the common goal of both enactments is to grant access to
government-held information, Selangor takes a broader and aspirational approach
making explicit connections to transparency and accountability. Penang focuses
on the right to access state-made information, without expanding into the
broader governance goals that Selangor seeks to address.
Decentralised System of Access
In both the Penang and Selangor FOI Enactments, access to information is
managed through individual departments, rather than a centralised state agency.
This decentralised model means that each department functions as the gatekeeper
for the information it holds, with dedicated Information Officers responsible
for processing requests, determining eligibility for disclosure, and
facilitating access. This structure promotes direct accountability within
departments and ensures that requests are handled by those with the best
understanding of the records under their control.
Duty to Produce and Maintain Information
For FOI legislation to be effective, public authorities must first adopt
a responsibility to produce, collect and maintain accessible records. In many
jurisdictions, the right to access information under FOI laws is coupled with a
duty on government agencies to maintain and safeguard records. This duty is
often reinforced by public records laws or archival requirements, which ensure
that records are properly managed, stored, and preserved for future access.
These laws recognise that without proper record-keeping and safeguards, the
right to access information cannot be effectively realised.
Both Selangor and Penang’s FOI enactments recognise this need. Under both
enactments, Information Officers are appointed to every state department. Their duties include the maintenance and care of information in their
respective departments and acting as intermediaries between the department and
individuals applying for information. The expression and scope of the duties of
Information Officers vary in the two enactments but in both enactments, they
are the keepers of state information through whom requests for information are
made.
Under section 3 of the Selangor enactment, information officers are
appointed for each department and are responsible for recording, maintaining,
and archiving information. They must ensure systems are in place to track
applications and facilitate access. Emphasis is placed on record-keeping
practices, with a structured focus on training, tracking systems, and
implementing best practices for managing information.
Under section 3 of the Penang Enactment, Information Officers are
appointed to manage the care, storage, and disposal of information. While
Penang also focuses on ensuring proper record maintenance, it places less
emphasis on structured training and tracking systems compared to Selangor.
Information Officers are on the front line of the FOI process in both
enactments. Much will depend on them to ensure the objectives of the enactment
are met, especially in accessing departmental information. Both legislations
expect these officers to not only facilitate information access but also assist
those with special difficulties in obtaining the information they seek.
However, as a recent account on the Aliran website (https://aliran.com/thinking-allowed-online/swept-under-the-carpet-penangs-freedom-of-information-facade) has shown, information
seekers are also likely to be given the run around when they approach a state
department for information. The Selangor, but not the Penang enactment, makes
it an offence for an Information Officer to destroy, erase, knowingly give
wrong or misleading information or wilfully deny or obstruct access to
information (S. 18 Selangor Enactment). The punishment could be a fine not
exceeding RM 50,000, imprisonment of up to five years, or both.
Right to Access Information
Central to any legislation on access to information is how it articulates
the right to access information. Both enactments are uncompromising on this
point and provide a framework for every person to access information, but they
differ in how they express the right to access. Section 5 (1) of Selangor’s
enactment states,
5 (1) Every department shall provide
access to every person, information which is within the control of the
department unless otherwise exempted with exception in this Enactment.
When read together with the broad definition of information in the
Selangor enactment, an application can be made for almost any information,
however trivial, that is obtained, held, or kept in the custody or control of
any department or to which any department has reasonable access. In the
Selangor enactment, this would include any documents made, amended, modified,
transformed, obtained, or received by the department.
The Penang enactment is equally broad on who may access information
(section 5), but the right to access is limited to information that is
‘available’ in the department as opposed to information which is within the
‘control’ or reasonable access of the department as in the Selangor enactment.
Another difference arises from Penang’s definition of information which is,
‘any documents made by the department’, making it more restrictive than
Selangor’s broader scope. The Selangor definition covers any information in
whatever form, including any documents made, amended, modified, transformed,
obtained, received, held or kept in the custody or control of any department or
to which any department has reasonable access.’
‘Persons’ Who May Apply
The Penang and Selangor Freedom of Information Enactments do not
explicitly define the term "person" when referring to who may apply
for information. However, when read together with related regulations (Penang)
or guidelines (Selangor), the term "person" is interpreted in a broad
manner in legal contexts, encompassing both natural persons (individuals),
legal persons (corporate entities) and unincorporated bodies such as
NGOs.
The Interpretation Acts 1948 and 1967 (Act 388) define “person” as
including a body of persons, corporate or unincorporated unless the context
otherwise requires. This means, unless specified otherwise in a specific law,
the term "person" automatically includes both individuals and
entities incorporated and unincorporated.
Application for Information
Making an application for information under both enactments is
straightforward but must be made through prescribed forms. If an applicant is
unable to complete the form because of illiteracy or disability, he may make
the application orally. In such circumstances, the Information Officer is
required to reduce the oral application into writing and provide the applicant
with a copy.
Selangor (s. 6) applications for information require a declaration of the
purpose for the application, whereas Penang (s.6) only requires the details of
the information applied for. Section (18(1)(a) of the Selangor enactment makes
it an offence for information obtained for a declared purpose to be used for
another purpose, ‘if the effect is detrimental.’ The section does not specify
to whom or how the effect of such use of information must be detrimental.
The basic cost of making an FOI request in Selangor is RM12; in Penang,
it is RM50 for data from a current year, and/or RM100 for other years.
Responding to an Application
Both enactments require information requests to be responded in writing
to within stipulated time limits which are different in the two
enactments.
Under s. 7 of the Selangor enactment, the department concerned must
respond to the request within 30 days of the date of the application. For
requests for information related to life or liberty, the department must
respond within 7 days. Under s. 7 of the Penang enactment the corresponding
periods are 14 days and 48 hours (which can be extended to 7 days).
There are other differences relating to the duty to respond in the two
enactments. Selangor (s. 7 (3) provides that if an application is unclear the
department shall use all reasonable efforts to obtain clarification from the
applicant within the prescribed time. There is no similar provision in the
Penang enactment. However, under the Penang enactment (s. 8 (2)) if an
application is made to the wrong Information Officer, he is required to
transfer the application to the appropriate Information Officer and inform the
applicant.
Exemptions – Information Exempted from Disclosure
Both enactments set specific categories of exempted information,
which cannot be accessed under the enactments. The Selangor
enactment (s. 14) lists three broad categories of exempted
information which are;
(a) Classified information under the
Official Secrets Act 1972, which if disclosed would seriously prejudice
national security or national defence.
(b) Confidential information
obtained from a third party, another state or an international
organisation, which if communicated would constitute an
actionable breach of confidence or seriously prejudice the commercial or
financial interest of a third party or relations with a state or
international organisation from whom the information was obtained.
(c) Information which if disclosed
would prejudice the formulation of policy or development of the
state.
In addition to the above three categories of
exempted information, an applicant may also be denied
access under the Selangor enactment if the information
applied for,
a.
Would interfere unreasonably with the operations of the department (s. 10
(3)(a)),
- Would be detrimental to the preservation of information after
having regard to the physical nature of the information (s. 10
(3)(b)).
- Would involve an infringement of copyright (other than copyright
owned by the State Government) subsisting in the information. In
such a case, the information may be provided in a form in which the
copyright would not be breached (s. 10 (3)(c)).
- If the information applied for is not in the possession of the
department, or (s. 11),
- If the application is vexatious, unreasonable or repetitive (s.
12)
- Would involve the disclosure of personal information of an
individual third party unless the third party has consented to
the disclosure of the information or the person making the
application is the legal guardian of the third party, the legal next of
kin or the legal administrator of a deceased third party (s.
13).
The Penang enactment has a longer list of exempted information which
includes most of the types of information exempted under
the Selangor enactment. The Penang enactment does not provide for
vexatious applications but includes the following exemptions that are not
included in the Selangor list of exemptions;
a. Information in court
proceedings;
- Information affecting the State economy;
- Health and Safety
- Information affecting enforcement or administration of the
law;
- Prevention or detection of crime
The Penang enactment also takes a more protective approach
to documents of the State Executive Council and its
committees (SEC). The enactment (s. 11 (1)
(b)) exempts,
a. Documents submitted for consideration
by the SEC or created for such purpose.
- Official documents of deliberations and decisions of the SEC.
- Disclosure of information which would be in contempt of the State
Legislative Assembly (SLA) if the exemption is required to
avoid an infringement of the privileges of the State Legislative
Assembly.
However, the exemptions in (a) and (b) do not apply to
documents containing statistical, technical or scientific material unless the
disclosure would involve the disclosure of any deliberation or decision made by
the State Executive Council (s. 11 (1) (b) (ii)).
Power to Disclose Exempted Information
Both enactments empower state departments and the state authority to
override the disclosure restrictions on exempted information.
Under the provisions of the Selangor enactment (15 (1)
(b)), the State Government has the discretion to declassify
confidential information, so that it may be accessible and give access
to exempted information. The Penang enactment (S. 11
(2)(b)) confers a similar discretion on the State Authority.
Both enactments also impose a duty, as opposed to a discretion
(Selangor (s. 15 (1) (a); Penang s. 11 (2)(a)) on a
department to grant access to exempted information if the public
interest in disclosure outweighs the harm of disclosure.
Information Officers in both states may allow access to exempted
information if the information is required for the investigation of an offence
or misconduct (Selangor (s. 15 (1)(c); Penang s. 11 (2)(c)).
Partial Disclosure
Both enactments also allow for the disclosure
of documents containing exempt information if the exemption
information can be redacted from the document (Selangor s. 16; Penang
s.12).
Right to Appeal
Both enactments establish mechanisms for individuals to appeal decisions
on denied access, with independent appeals boards providing oversight. In
Selangor, the appeal body is the State Information Board. In Penang, it is the
State Appeals Board. Both bodies are established as quasi-judicial tribunals
with the power to summon witnesses and take evidence under oath. However, the
appeal provisions in the two enactments differ in scope and procedure.
Selangor (s.9) offers a broader range of reasons to appeal. In addition
to outright rejection, an appeal can be made for dissatisfaction with the form
of disclosure (e.g., incomplete or incorrect information) or delays in
receiving the information. Penang (s.9), on the other hand, limits the grounds
for appeal to cases where the application for information is rejected.
Moving Forward
The initiative shown by Selangor and Penang in enacting state-level
Freedom of Information laws long before the federal government's commitment in
2023 is commendable. The state enactments provide a valuable starting point and
can serve as basic models for the new federal legislation. They offer practical
insights into how decentralization of information access through
departmental-level management and the appointment of Information Officers can
function in a legislative framework. The experiences of these states highlight
important considerations such as the role of public outreach, the need for
structured training, and the importance of having clear exemptions and
procedural guidelines.
However, the judicial recognition of a right to information, as seen in
the Harris Mohd Salleh v. Chief Secretary Government of Malaysia case in
2023, fundamentally changes the landscape. With this judicial affirmation of
the right to information as a constitutional principle, any future FOI laws,
including those of Selangor and Penang, must now be interpreted in light of
this broader constitutional right. This recognition strengthens the public's
access to information and places greater legal weight on the obligations of
government bodies to disclose information. It ensures that the provisions of
the enactments and the new federal law will be subject to constitutional
scrutiny, making the right to information more robust and difficult to curtail
arbitrarily. This legal development elevates the state's enactments, allowing
them to evolve in line with constitutional principles and setting a high
standard for future legislation.
