Penang (Malaysia)
Name of law: Penang Freedom of Information Enactment 2010
First adopted: 2012
First adopted: 2012
Introduction
This is a fairly weak law. Among its deficiencies is its limited scope in terms of kind of authorities covered, its failure to harm-test all exceptions and its very limited regime for promotional measures. Another issue is its deferral to other laws in cases where access is governed by other laws.
Colaborators
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 2 | 6 |
| 2 | Scope | 16 | 30 |
| 3 | Requesting Procedures | 10 | 30 |
| 4 | Exceptions & Refusal | 16 | 30 |
| 5 | Appeals | 13 | 30 |
| 6 | Sanctions & Protections | 3 | 8 |
| 7 | Promotional Measures | 3 | 16 |
| ∑ = 63 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | NO | 0 | Not mentioned. | No reference to RTI. https://www.wipo.int/edocs/lexdocs /laws/en/my/my063en.pdf |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | 5(1) Any person must be given access to information available in every department. | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | NO | 0 | Not mentioned. | |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | YES | 2 | 5(1) Any person must be given access to information available in every department. Interpretation Act 1948 and 1967, Act 388, https://www.jkptg.gov.my/images/pdf/perundangan-tanah/Act_388-intepret.pdf, 2 (1) Subject to this section, Part I of this Act shall apply for the interpretation of and otherwise in relation to— (a) this Act and all Acts of Parliament enacted after 18 May 1967; (b) all laws, whether enacted before or after the commencement of this Act, revised under the Revision of Laws Act 1968 [Act 1]; (c) all subsidiary legislation made under this Act and under Acts of Parliament enacted after the commencement of this Act; (d) all subsidiary legislation, whether made before or after the commencement of this Act, revised under the Revision of Laws Act 1968; (e) all subsidiary legislation made after the 31 December 1968, under the laws revised under the Revision of Laws Act 1968. 3…“person” includes a body of persons, corporate or unincorporate. | Implied by "Any person" that this includes non-citizens. As per the Interpretation Act, legal persons are covered. |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | Partially | 3 | 5(1) Any person must be given access to information available in every department. 2(1)...“document” has the same meaning as defined under the Evidence Act 1950 [Act 56], and includes any files, facts, memoranda, figures, diagrams, statistics, maps, photographs, drawings, computer print-outs, correspondence, file notings, electronic and computer data, data on the collection and inspection of samples or any other recorded information, regardless of its form (whether in writing, oral, digital, magnetic, photographic, machine readable or other forms), source, date of creation, or official status, whether or not it has been collated, whether or not it was created by the body that holds it and whether or not it is classified;...“information” means any document made by any State Government Department but does not include information in documents that are exempted. 4. (1) Each department has control of all information made by that department. | The definition of information refers to documents "made" by the department. |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | 2(1)...“document” has the same meaning as defined under the Evidence Act 1950 [Act 56], and includes any files, facts, memoranda, figures, diagrams, statistics, maps, photographs, drawings, computer print-outs, correspondence, file notings, electronic and computer data, data on the collection and inspection of samples or any other recorded information, regardless of its form (whether in writing, oral, digital, magnetic, photographic, machine readable or other forms), source, date of creation, or official status, whether or not it has been collated, whether or not it was created by the body that holds it and whether or not it is classified;...“information” means any document made by any State Government Department but does not include information in documents that are exempted | Information defined as meaning documents. However, document is defined as including "facts" so in effect information is covered. |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | Partially | 7 | 2. “department” means any State Government Departments, State Statutory Bodies and Local Authorities; 5. (1) Any person must be given access to information available in every department. | Doesn't explicitly cover bodies owned or controlled by these bodies. |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | NO | 0 | Not mentioned. | |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | NO | 0 | Not mentioned. | |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | NO | 0 | Not mentioned. | |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | 2. “department” means any State Government Departments, State Statutory Bodies and Local Authorities; 5. (1) Any person must be given access to information available in every department. | |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | NO | 0 | Not mentioned. | |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | 6(1) Applications for access to information shall— (a) be made to the Information Officer of a department in the prescribed form containing— (i) the name and address of the applicant; and (ii) the details of the information applied for; (b) accompanied by a nominal fee prescribed by the State Authority. | Reasons are not listed among the information to be included in requests, but it would be better if they were explicitly not required. |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | Partially | 1 | 6(1) Applications for access to information shall— (a) be made to the Information Officer of a department in the prescribed form containing— (i) the name and address of the applicant; and (ii) the details of the information applied for; (b) accompanied by a nominal fee prescribed by the State Authority. | Must provide name. |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | Partially | 1 | 6(1) Applications for access to information shall— (a) be made to the Information Officer of a department in the prescribed form containing— (i) the name and address of the applicant; and (ii) the details of the information applied for; (b) accompanied by a nominal fee prescribed by the State Authority. 7(3) Access to information shall be provided when— (a) an application to access information has been approved; and (b) the fee under paragraph 6(1)(b) has been paid. | Requires a "prescribed form". |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | NO | 0 | 3(2) Information Officers shall have the following responsibilities:...(c) to serve as an intermediary to the department to accept applications and assist individuals to obtain information. Penang Freedom of Information (Access to Information) Regulations 2014, https://botanicalgardens.penang.gov.my/images/images/FOI/Peraturan%20(Pindaan)%20disemak%20ppunpp%207.2.17%20diubahsuai%20psukpp%208.2.17-6.pdf, Form C. | The reference to assistance in 3(2)(c) of the Law is too vague to merit a point. The Application Reply Form included as the Form C Schedule to the Regs. allows as one of the options that the application is "postponed" and then asks to "state the details that need to be completed". This helps a bit but is not a clear enough obligation to assist with reformulating requests to get a point. |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | YES | 2 | 6(2) Notwithstanding paragraph (1)(a), any person who is unable, because of illiteracy or disability, may make the application orally, and the Information Officer who receives such an application shall reduce the said oral application into writing and give it to the applicant. | |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | Partially | 1 | 6(3) An Information Officer who has received an application shall acknowledge receipt of the said application and provide a copy of the said acknowledgement of receipt and a receipt of the payment of fee to the applicant. | No timeline given for receipts. |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | Partially | 1 | 8(2) Where an application is made to an Information Officer to access information and the application was not made to the right Information Officer, the said Information Officer must transfer the said application to the appropriate Information Officer and inform the same applicant.(3) Where an application is transferred to an Information Officer pursuant to subsection (2) it is treated as an application made to the said Information Officer and received by the said Information Officer on the date so received. (4) Where an application is rejected or transferred pursuant to this section, the decision and reasons for the rejection or transfer shall be communicated in writing to the applicant within fourteen working days from the date of an application; Penang Freedom of Information (Access to Information) Regulations 2014, https://botanicalgardens.penang.gov.my/images/images/FOI/Peraturan%20(Pindaan)%20disemak%20ppunpp%207.2.17%20diubahsuai%20psukpp%208.2.17-6.pdf: [Machine Translated] 4(1) The Information Officer may, if he—(a) knowing or believing on the basis of reason It is reasonable that other departments have information said; or (b) has the information but knows or believe on reasonable grounds that the information comes from, and more related to the operations of other departments, make a decision to transfer the application to the relevant department within fourteen working days from the date the application is received by the department. | Overbroad grounds for transfers. |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | Partially | 1 | 10(1) Access to information may be provided generally in the most practical form or manner by the department, subject to the form of the information itself, and— (a) if the information is an article or thing from which sounds or visual images may be reproduced, the applicant is allowed to see the visual images or hear the sounds; or (b) if the information is a word in the form of a recording that can be reproduced in the form of sounds or words in writing, shorthand or code, the department may provide the information in the form of a written copy. (2) Any person who is unable, because of illiteracy or inability, to access information in the form in which it is stored or copied, is to be given the option for the information to be conveyed to him in other forms that can be accessed by him. | Some accommodation of requesters' preferences but the default is to provide information in the most practical form or manner. |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | NO | 0 | Not mentioned. | |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | 7(1) Each Information Officer shall respond in writing to applications made under section 6 within fourteen working days from the date of acknowledgment of the application. (2) Notwithstanding subsection (1), in relation to any application for information relating to the life liberty of an individual, a written response thereto must be made within fourty eight hours and which may be extended to seven days from the date of acknowledgment of the said application. Penang Freedom of Information (Access to Information) Regulations 2014, https://botanicalgardens.penang.gov.my/images/images/FOI/Peraturan%20(Pindaan)%20disemak%20ppunpp%207.2.17%20diubahsuai%20psukpp%208.2.17-6.pdf: [Machine Translated] 5(1) The Information Officer shall provide feedback in written response to an application made within—(a) fourteen working days from the date of acknowledgement of receipt or (b) forty-eight hours and may be extended up to seven days from the date of acknowledgement of receipt of the application for the application relating to the life or liberty of a person individual. (2) The Information Officer shall provide feedback to the Applicant according to Form C of the First Schedule. | Timeline of 14 days is given for providing a response but not actual access. However, Form C included in the Regs which officers are supposed to use for responses, lists different options: application approved, application rejected, application postponed (in case of incomplete applications) and application in progress (for consideration by the Authority). The latter suggests that processing of the application does not actually need to be complete by this deadline, so one point has been subtracted. |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | NO | 0 | Not mentioned. | |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | NO | 0 | 6(1) Applications for access to information shall— ... (b) accompanied by a nominal fee prescribed by the State | |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | NO | 0 | Penang Freedom of Information (Access to Information) Regulations 2014, https://botanicalgardens.penang.gov.my/images/images/FOI/Peraturan%20(Pindaan)%20disemak%20ppunpp%207.2.17%20diubahsuai%20psukpp%208.2.17-6.pdf: [Machine Translated] 6(3) The requested information will be submitted after payment of the fee. Second Schedule [subregulation 5(1)]...b) Processing Fee: RM 100...1. Photocopy 1.00 per page. 2. Renting facility equipment to enable the see or applicant listens to compact discs, films or casette Actual cost. 3. Other services to enable applicants access information directly physical Actual cost. 4. Copies of compact discs, films or casette Actual cost. 5. Written transcript Actual cost. 6. Ingredients packaging for shipping or post items Actual cost | A processing fee is set in the Regs. However, there are also separate fees for various reproduction and delivery costs, so presumably the processing fee goes beyond these. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | Penang Freedom of Information (Access to Information) Regulations 2014, https://botanicalgardens.penang.gov.my/images/images/FOI/Peraturan%20(Pindaan)%20disemak%20ppunpp%207.2.17%20diubahsuai%20psukpp%208.2.17-6.pdf: 6(2) Notwithstanding subregulation (1), payment of the application fee exempted upon application from any State Department, Agency State Statutory, Local Authorities, Federal Departments and Agencies Federally regulated. | The grounds for an exemption to the application fee are unclear and this doesn't seem to apply to the access fee. |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | NO | 0 | Not mentioned. | |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | NO | 0 | 5(2) If the information to be accessed by any person contained in a document the disclosure of which is subject to any written law; access to such information is subject to that written law. | Subject to other laws. |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 7 | 8(1) Applications for access to information may be rejected by the Information Officer if the information sought is exempt information as stipulated in section 11. 11(1) The following information is exempt information:… (b) (i) a document is exempt if it is: (A) a document that has been submitted to the State Executive Council for its consideration, is proposed by an Assemblyman to be so submitted, or is a document that was brought into existence for the purpose of submission for consideration by the State Executive Council; (B) an official document of any deliberation or decision of the State Executive Council; (C) a document that is a draft of copy of, or of a part of, or contains an extract from, a record referred to in subsubparagraph (A) or (B); or (D) a document the disclosure of which would involve the disclosure of any deliberation or decision of the State Executive Council, other than a document by which a decision of the State Executive Council was officially published; (ii) subparagraph (b)(i) does 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; (iii) for the purpose of this Enactment, a certificate signed by the Secretary of the State Executive Council or a person performing the duties of the Secretary, certifying that this document is one of a kind referred in subparagraph (i), establishes conclusively that it is a document which is exempt; (iv) where the document is a document referred to in subsubparagraph (i)(C) or (D), by reason only of it being a matter contained in a particular part or particular parts of the document, a certificate under subparagraph (iii) in respect of the document shall identify that part or those parts of the document as containing the matters by reason of which the certificate is given; (v) in this section, any reference to the State Executive Council shall be read as including a reference to a committee of the State Executive Council; | Points deducted for overbroad exceptions for: documents submited to the State Executive Council (11(1)(b)(i)(A)), decisions of the Executive Council (11(1)(b)(i)(B)), and draft versions of documents submited to the State Executive Council and decisions of the Executive Council (11(1)(b)(i)(C)) |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | Partially | 2 | 8. (1) Applications for access to information may be rejected by the Information Officer if the information sought is exempt information as stipulated in section 11. 11(1) The following information is exempt information:(a) Personal Information (i) an Information Officer may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would involve the unreasonable disclosure of personal information about a natural third party;... (b) (i) a document is exempt if it is: (A) a document that has been submitted to the State Executive Council for its consideration, is proposed by an Assemblyman to be so submitted, or is a document that was brought into existence for the purpose of submission for consideration by the State Executive Council; (B) an official document of any deliberation or decision of the State Executive Council; (C) a document that is a draft of copy of, or of a part of, or contains an extract from, a record referred to in subsubparagraph (A) or (B); or (D) a document the disclosure of which would involve the disclosure of any deliberation or decision of the State Executive Council, other than a document by which a decision of the State Executive Council was officially published; (ii) subparagraph (b)(i) does 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; (iii) for the purpose of this Enactment, a certificate signed by the Secretary of the State Executive Council or a person performing the duties of the Secretary, certifying that this document is one of a kind referred in subparagraph (i), establishes conclusively that it is a document which is exempt; (iv) where the document is a document referred to in subsubparagraph (i)(C) or (D), by reason only of it being a matter contained in a particular part or particular parts of the document, a certificate under subparagraph (iii) in respect of the document shall identify that part or those parts of the document as containing the matters by reason of which the certificate is given; (v) in this section, any reference to the State Executive Council shall be read as including a reference to a committee of the State Executive Council; …11(1)(e) an Information Officer may refuse to disclose information if— (i) the information was obtained from a third party and to communicate it would constitute an actionable breach of confidence; | Personal information 11(1)(a), information obtained from 3rd party (11(1)(e)(i)) are not harmed tested. State Executive Council information (11(1)(b) is also not harm-tested but already accounted for under Indicator 29. |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | YES | 4 | 11(2) Notwithstanding subsection (1), the State Authority shall have the power to disclose or allow disclosure of exempt information or declassify confidential information and allow access to it at its discretion: (a) a department shall give the applicant access to the exempt information if the public interest for its disclosure outweighs the risk of it; (b) the State Government shall have the power to disclose or allow disclosure of exempt information or declassify confidential information and allow access to it at its discretion; (c) an Information Officer may allow access to information which is exempt if the information is necessary for the investigation of an offence or misconduct. | |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | NO | 0 | Not mentioned. | |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | NO | 0 | Not mentioned. | |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | 12. Notwithstanding section 11, where the information or document contains exempt information, access will however be granted to an applicant if the exempt information can be removed or deleted from the information and document, and as far as possible, the applicant shall be notified of the amount of information that has been deleted. | |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | Partially | 1 | 8(4) Where an application is rejected or transferred pursuant to this section, the decision and reasons for the rejection or transfer shall be communicated in writing to the applicant within fourteen working days from the date of an application. Penang Freedom of Information (Access to Information) Regulations 2014, https://botanicalgardens.penang.gov.my/images/images/FOI/Peraturan%20(Pindaan)%20disemak%20ppunpp%207.2.17%20diubahsuai%20psukpp%208.2.17-6.pdf: 5(2) The Information Officer shall provide feedback to the Applicant according to Form C of the First Schedule. First Schedule: FORM C, APPLICATION REPLY NOTICE...Application REJECTED Your application is rejected for the following reasons:...state the reasons for rejection. | No mention of appeals, but the reasons for rejection must be provided. |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | NO | 0 | Not mentioned | |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | 9. Any applicant aggrieved by the decision of an Information Officer in rejecting his application may appeal against that decision to the Board of Appeal by submitting a written representation within twenty-one days after receipt of notice of its decision under subsection 8(4). | 9 provides for a right to appeal to the Board of Appeal, which is established under 13. |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | Partially | 1 | 13(2) The appointment and removal of members of the Board of Appeal shall made by the State Authority subject to the approval of the State Legislative Assembly. (3) The Board of Appeal shall consist of: (a) a Chairman and a Deputy Chairman, who shall be a former judge or an advocate and solicitor of the High Court or a former member of the Judicial and Legal Services or a person experienced in law or with such appropriate qualification or experience; and (b) not less three and not more than nine qualified people as members. (4) A person appointed under subsection (2) shall be independent and not hold political office or any post in any political party. (5) A person appointed under subsection (2) shall, unless he sooner resigns or vacates his office or his appointment is sooner revoked, shall hold office for a term not exceeding three years as determined by the State Authority in the notification of the appointment, but is eligible for reappointment. | One point deducted due to the lack of clarity on criteria for removal of Board members. |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | NO | 0 | 13(17) The members of the Board of Appeal may be paid an allowance as determined by the State Authority. | Allowances determined by the State Authority. No mention of reporting to the legislature. |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | Partially | 1 | 13(2) The appointment and removal of members of the Board of Appeal shall made by the State Authority subject to the approval of the State Legislative Assembly. (3) The Board of Appeal shall consist of: (a) a Chairman and a Deputy Chairman, who shall be a former judge or an advocate and solicitor of the High Court or a former member of the Judicial and Legal Services or a person experienced in law or with such appropriate qualification or experience; and (b) not less three and not more than nine qualified people as members. (4) A person appointed under subsection (2) shall be independent and not hold political office or any post in any political party. (5) A person appointed under subsection (2) shall, unless he sooner resigns or vacates his office or his appointment is sooner revoked, shall hold office for a term not exceeding three years as determined by the State Authority in the notification of the appointment, but is eligible for reappointment. | Point deduced because the reference to "qualified people" in 13(3)(b) is vague as to experiential requirements, and specific requriements are listed for only 3 of the members (under 13(3)(a)). |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | Partially | 1 | 13(11) In respect of an appeal before it, the Board of Appeal— (a) shall hear the appellant and Information Officer; (b) may summon and examine witnesses; (c) may require any person to bind himself by oath to state the truth; (d) may compel the production and delivery of any documents it deems relevant or material to the appeal provided the information is kept confidential; (e) may confirm, vary or reverse the order or decision appealed against; and (f) may make such orders whether or not provided by, and in accordance with this Enactment. | Inspection powers not mentioned. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | YES | 2 | 13(11) In respect of an appeal before it, the Board of Appeal—(e) may confirm, vary or reverse the order or decision appealed against...13(14) An order made by the Board of Appeal on any appeal before it is final, cannot be questioned in any Court, and shall be binding on all parties to the appeal or those involved in the matter. | |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | YES | 2 | 13(11) In respect of an appeal before it, the Board of Appeal— (a) shall hear the appellant and Information Officer; (b) may summon and examine witnesses; (c) may require any person to bind himself by oath to state the truth; (d) may compel the production and delivery of any documents it deems relevant or material to the appeal provided the information is kept confidential; (e) may confirm, vary or reverse the order or decision appealed against; and (f) may make such orders whether or not provided by, and in accordance with this Enactment. | Declassification not listed, but 13(11)(f) order-making powers are broad, so benefit of the doubt given that this would be covered. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | Partially | 1 | 13(14) An order made by the Board of Appeal on any appeal before it is final, cannot be questioned in any Court, and shall be binding on all parties to the appeal or those involved in the matter. | Not mentioned, but some benefit of the doubt given. By explicitly ruling out judicial appeals of interlocutory orders, this suggests that other appeals are probably allowed. |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | NO | 0 | Rules of the Penang Freedom of Information Appeal Board 2010, https://botanicalgardens.penang.gov.my/images/images/FOI/Kaedah%20(Pindaan)%20disemak%20ppunpp%207.2.17%20diubahsuai%20psukpp%208.2.17.pdf: [Machine Translated] 5(3) An appeal to the Appeal Board shall be accompanied by a fee | Appeals are not free. While legal counsel is not explicitly required, the procedures are complex enough that legal representation would likely be needed for many. |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | Partially | 1 | 9. Any applicant aggrieved by the decision of an Information Officer in rejecting his application may appeal against that decision to the Board of Appeal by submitting a written representation within twenty-one days after receipt of notice of its decision under subsection 8(4). | Limited to refusals. |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | Partially | 1 | 13(16) The State Authority may make rules or regulations for the procedure for appeals and the fees to be paid under this Enactment. Rules of the Penang Freedom of Information Appeal Board 2010, https://botanicalgardens.penang.gov.my/images/images/FOI/Kaedah%20(Pindaan)%20disemak%20ppunpp%207.2.17%20diubahsuai%20psukpp%208.2.17.pdf | Procedures are listed in the Board's rules, which contained certain timelines but do not establish an overall timeline for completion of appeals. |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | NO | 0 | Not mentioned. | |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | Partially | 1 | 13(11) In respect of an appeal before it, the Board of Appeal— ...(f) may make such orders whether or not provided by, and in accordance with this Enactment. | This is not explicitly provided for, but one point given due to the broad order-making power under 13(11)(f). |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | NO | 0 | Not mentioned. | |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | NO | 0 | Not mentioned. | |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | Partially | 1 | 13(15) For the purpose of the Penal Code [Act 574], every member of the Board of Appeal shall be deemed a public servant. 15. No prosecution, fines, sanctions, suit or other proceeding shall be instituted or brought, or continued in any Court against the Information Officer or other officer of the department for any disclosure made by the officers in good faith and honestly in discharging any powers, duties or responsibilities under this Enactment or any regulations made in respect of this Enactment. | Immunity for the Board's members is not mentioned. |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | Whistleblower Protection Act 2010 [Act 711] | |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | NO | 0 | 3(1) The State Authority may, by notification in the Gazette, appoint Information Officers for each department, including from amongst existing officials in every department. | The word "may" suggests this is optional. |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | NO | 0 | Not mentioned. | |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | NO | 0 | Not mentioned. | |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | YES | 2 | 3(2) Information Officers shall have the following responsibilities:(a) to enhance the best practice in relation to the care, storage and disposal of information in the department. 4(2) An Information Officer is obliged to maintain information in the possession of his department in accordance with any written law, directives or guidelines. See also INFORMATION AND DOCUMENTATION - RECORDS MANAGEMENT - PART 1: GENERAL, https://www.ums.edu.my/jppv2/files/4-2_MS_2223-1_2009.pdf | |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | NO | 0 | Not mentioned. | |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | Partially | 1 | 3(2) Information Officers shall have the following responsibilities:...(b) to provide training to departments in relation to the card, storage and the management of applications for information | Training departments is listed among the responsibilities of information officers, although it is not clear who is training the officers. |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | NO | 0 | Not mentioned. | |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | NO | 0 | Not mentioned. |
