A Comparative Analysis of the Freedom of Information Enactments of Selangor and Penang

 

 "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. 

https://cijmalaysia.net/a-preliminary-assessment-of-the-early-years-of-state-level-foi-enactment-implementation-in-malaysia/  

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)), 

2. Would be detrimental to the preservation of information after having regard to the physical nature of the information (s. 10 (3)(b)). 

3. 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)).  

4. If the information applied for is not in the possession of the department, or (s. 11), 

5. If the application is vexatious, unreasonable or repetitive (s. 12) 

6. 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; 

2. Information affecting the State economy; 

3. Health and Safety 

4. Information affecting enforcement or administration of the law; 

5. 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. 

2. Official documents of deliberations and decisions of the SEC. 

3. 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.