Selangor (Malaysia)
Name of law: Freedom of Information (State of Selangor) Enactment
First adopted: 2011
First adopted: 2011
Introduction
Overall, this is not a very strong law. While its exceptions regime is fairly strong, among its weak points are its insufficiently broad scope in terms of kinds of authorities covered, its requirement that requesters provide a reason for their requests, a broad and vague limitation on reuse for improper purposes and a deficient regime for promoting RTI.
Colaborators
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 2 | 6 |
| 2 | Scope | 18 | 30 |
| 3 | Requesting Procedures | 10 | 30 |
| 4 | Exceptions & Refusal | 21 | 30 |
| 5 | Appeals | 16 | 30 |
| 6 | Sanctions & Protections | 6 | 8 |
| 7 | Promotional Measures | 7 | 16 |
| ∑ = 80 | ∑ = 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) Every department shall provide access to every person, information which is within the control of the department, unless otherwise exempted without exception in this Enactment. | |
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) Every department shall provide access to every person, information which is within the control of the department, unless otherwise exempted without exception in this Enactment. 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. | Non-citizens implied by "every person". 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 | YES | 4 | 4(1) Every department shall have control over all information made, amended, modified, transformed, obtained, received or kept in the custody or control of the department or any department to which the department has reasonable access. 5(1) Every department shall provide access to every person, information which is within the control of the department, unless otherwise exempted without exception in this Enactment. | |
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. In this Enactment, unless the context otherwise requires—“document” means any matter expressed, described, or howsoever represented by any means whatsoever, upon any substance, material, thing or article and any matter embodied, produced, reproduced or transmitted in, through or to a disc, tape, film, sound track, recording (whether audio, visual or any other type of recording) or any other form or medium whatsoever;...“information” means 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. 5(1) Every department shall provide access to every person, information which is within the control of the department, unless otherwise exempted without exception in this Enactment. | The right to request information includes documents by virtue of the definition of "information". |
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 | YES | 8 | 2. In this Enactment, unless the context otherwise requires—...“department” means any department of the State Government, local government and any entity which is owned or wholly controlled by the State Government; | |
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. | Note that while the judiciary generally comes under federal law (so it is not unusual for most courts to not mentioned in this law), the religious courts (Syariah) appear to be regulated at the state-level. |
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 | YES | 2 | 2. In this Enactment, unless the context otherwise requires—...“department” means any department of the State Government, local government and any entity which is owned or wholly controlled by the State Government; | |
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 | NO | 0 | Not mentioned. | |
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 | NO | 0 | 6(2) An application under subsection (1) shall— ... (d) state the reason and purpose for application. | Reasons are 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) Any person who applies to access information shall make an application to the department in a form as prescribed by the State Authority provided that where any such application does not fully adhere to the prescribed form, the application may not be refused by the Information Officer for that reason.(2) An application under subsection (1) shall— (a) be addressed to the Information Officer; (b) state the name of the applicant and an address for correspondence; (c) describe the information applied; and (d) state the reason and purpose for application. | Requires a 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) Any person who applies to access information shall make an application to the department in a form as prescribed by the State Authority provided that where any such application does not fully adhere to the prescribed form, the application may not be refused by the Information Officer for that reason.(2) An application under subsection (1) shall— (a) be addressed to the Information Officer; (b) state the name of the applicant and an address for correspondence; (c) describe the information applied; and (d) state the reason and purpose for application. (3) Every application shall be submitted together with payment of fee as prescribed by the State Authority. Freedom of Information (State of Selangor) (Access to Information) Regulations 2012, https://www.jakess.gov.my/images/pdf/ENAKMEN/Enakmen%20Kebebasan%20Maklumat/Kaedah%20Badan%20Maklumat%20Negeri%20%28Negeri%20Selangor%29%202012.pdf, 3 (1) An application for access to information shall be made in a Form A of the First Schedule. | The Regulations state that the applications "shall" use the official form, but the law says applications that don't "fully adhere" to the prescribed form may not be refused, so this is a bit unclear. |
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 | Partially | 1 | 7(3) If a request for information in an application is unclear, the department shall use all reasonable efforts to obtain clarification from the applicant and this shall not extend the prescribed time stated in subsection (1) and (2) to provide the written confirmation to the applicant. | Provides for clarification procedures but not general provision to help with formulation other than for persons living with disabilities or illiteracy (addressed under Indicator 17). |
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(4) Notwithstanding the provisions under subsections (1) and (2), any person who is unable, because of illiteracy or disability, may make an application orally, and the Information Officer who receives an oral application shall, reduce it into writing and give a copy of the application form 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(5) An Information Officer who receives the application shall acknowledge the application and provide the applicant with an acknowledgement receipt. | Timeline for providing receipt not indicated. |
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 | 3(2) The Information Officer shall, in addition to any obligation specifically provided for in other sections of this Enactment, have the following responsibilities:...(c) to serve as an intermediary to the department for receiving applications and assisting individuals seeking information to make such applications and when necessary, to direct the individuals to other departments that may have the information requested; 11. Any Information Officer who receives an application and finds that the information applied for is not in the possession of the department, shall inform the applicant of the matter in writing. Freedom of Information (State of Selangor) (Access to Information) Regulations 2012, https://www.jakess.gov.my/images/pdf/ENAKMEN/Enakmen%20Kebebasan%20Maklumat/Kaedah%20Badan%20Maklumat%20Negeri%20%28Negeri%20Selangor%29%202012.pdf, 4. (1) The Information Officer may if he— (a) knows or believes on reasonable grounds that another department holds the information; or (b) is holding the information but knows or believes on reasonable grounds that the information originated from, and is more closely related to the operations of another department, made the decision to transfer the application to the related department within seven days from the date the application received. | The law provides for referrals but no transfers. Transfers are provided for in the regs, but the grounds for transfers are too broad. |
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(2) Access to information may be given in the form or manner that is most practical to the department, subject to the form of the information itself...(4) Any person who is unable, because of illiteracy or disability, to access information in the form in which it is stored or copied, shall be given an option to have the information communicated to him in an alternative form in which he can access to it. | Some accommodation of some requesters' needs, but the default is whatever is most practical for the department. |
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 | YES | 2 | 7(1) Every department shall confirm in writing to the applicant in relation to the application made under section 6 within thirty days from the date of acknowledgement of the application. (2) Notwithstanding provision of subsection (1), any application for information which relates to the life or liberty of an individual, a response shall be made within seven days from the date of acknowledgement receipt of such application...(4) An access to the information shall be given within the prescribed time when— (a) the application to access information has been approved; and (b) fee under subsection 6(3) has been paid. | 30 days to respond. |
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 | Freedom of Information (State of Selangor) (Access to Information) Regulations 2012, https://www.jakess.gov.my/images/pdf/ENAKMEN/Enakmen%20Kebebasan%20Maklumat/Kaedah%20Badan%20Maklumat%20Negeri%20%28Negeri%20Selangor%29%202012.pdf, 5. (1) The applicant shall made the payment of processing fee as stipulated in the Second Schedule upon submission of the application and it is nonrefundable whether the application is allowed or disallowed. | A fee must be paid upon application. |
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 | Freedom of Information (State of Selangor) (Access to Information) Regulations 2012, https://www.jakess.gov.my/images/pdf/ENAKMEN/Enakmen%20Kebebasan%20Maklumat/Kaedah%20Badan%20Maklumat%20Negeri%20%28Negeri%20Selangor%29%202012.pdf, Schedule 2 | Schedule 2 of the Regs sets out the fees. They go beyond reproduction and delivery and include hourly fees for searching for information and decision-making. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | Freedom of Information (State of Selangor) (Access to Information) Regulations 2012, https://www.jakess.gov.my/images/pdf/ENAKMEN/Enakmen%20Kebebasan%20Maklumat/Kaedah%20Badan%20Maklumat%20Negeri%20%28Negeri%20Selangor%29%202012.pdf, (2) Notwithstanding subregulation (1), payment of fees is exempted on application from department and any Federal Government entities. | There is a provision for waiving at least some fees, but it is unclear what the grounds are. |
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 | 18(1) It is an offence if a person— (a) uses any information obtained under this Enactment contrary to the reason and purpose of such application is made if the effect is detrimental | This is a broad and vague limitation on reuse for improper purposes. |
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 sought to be accessed by any person is contained in a document disclosure of which is subject to any written law, access to such information shall be subject to such written law. | |
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 | YES | 10 | 13(1) Every department may refuse to indicate whether or not it holds an information, or refuse to communicate information, where to do so would involve the disclosure of personal information of an individual third party. (2) Subsection (1) does not apply if— (a) the third party has effectively consented to the disclosure of the information; or (b) 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. 14. The following is considered to be exempted information: (a) information which has been classified as strictly confidential under the Official Secrets Act 1972 [Act 88] which if disclosed, would seriously prejudice national security or national defence by materially undermining the country’s ability to protect or defend its existence or territorial boundaries or its capacity to respond to the use or threat of force; (b) information obtained—(i) from a third party and to communicate it would constitute an actionable breach of confidence; (ii) in confidence from a third party and it contains a trade secret or to communicate it would, or would be likely to, seriously prejudice the commercial or financial interests of a third party; or (iii) in confidence from another state or international organization, and to communicate it would, or would be likely to, seriously prejudice relations with that state or international organization; (c) information where if disclosed would, or would be likely to cause serious prejudice to the effective formulation of policy or development of the State Government. | |
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 | 13(1) Every department may refuse to indicate whether or not it holds an information, or refuse to communicate information, where to do so would involve the disclosure of personal information of an individual third party. 14. The following is considered to be exempted information: (b) information obtained—...(i) from a third party and to communicate it would constitute an actionable breach of confidence; | Personal information and information obtained from a third party in confidence are not harm-tested. |
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 | 15(1) Notwithstanding section 14— (a) a department shall grant access to exempted information to an applicant if public interest in disclosure outweighs the harm of disclosure; (b) the State Government shall have the power to disclose or allow the disclosure of the exempted information or to remove the classification of confidentiality assigned to any information or document and to disclose or allow access to the same at its discretion; (c) the Information Officer may grant access to the exempted information if the information is required for an 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 | Partially | 1 | 15(2) Section 14 shall not apply to information relating to any matter or event which occurred more than twenty years prior to the application made by an applicant pursuant to section 6. | There is a sunset clause but no mention of a need to release as soon as an exception no longer applies. |
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 | 16. Notwithstanding section 14, where any information or document contains exempted information, access shall nevertheless be given to the applicant if the exempted information can be removed or deleted from the information or document and as far as possible, the applicant shall be informed of the amount of information which 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 | YES | 2 | 8(2) When the application to access information is refused under subsection (1), the Information Officer shall notify the applicant of such refusal in writing within the period prescribed in subsection 7(1) or 7(2) and such written notice shall—(a) state the reasons of the refusal to the application;...(c) where the refusal is based on an exemption under Part IV, for which none of the exceptions apply, state the reasons for and extent of the applicability of the exemption to the application; and(d) inform the applicant of the procedures to appeal against the refusal and the prescribed time within which to submit the appeal. | |
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(1) Any applicant who: (a) is dissatisfied with the decision of the Information Officer; (b) is dissatisfied with the manner of disclosure of the information requested or is of the view that the information provided is incomplete, incorrect or misleading or does not correspond with the request in his application; (c) does not receive the information within the prescribed period; (d) or is otherwise aggrieved in any other way relating to the request or access to information under this Enactment, shall, within twenty one days after the date of receipt of the notice informing such decision under subsection 8(2), appeal against such decision to the State Information Board... | |
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 | NO | 0 | 17(1) For the purposes of this Enactment, there shall be constituted an Appeal Board which shall be known as the State Information Board. (2) The State Authority shall, by notification in the Gazette, appoint— (a) a Chairman and a Deputy Chairman of the State Information Board, being ex- judges or advocates and solicitors of the High Court or former members of the Judicial and Legal Service of Malaysia or who have had judicial experience or other suitable qualifications and experience; and (b) such number of fit persons, not exceeding six persons, as the State Authority considers adequate, to be additional members of the State Information Board. (3) A person appointed under subsection (2) shall be independent and shall not hold any political office or hold any position in any political party. (5) The State Authority may only revoke the appointment of a member of the State Information Board during the tenure of office without assigning any reason in the following circumstances: (a) the member ceases to be independent as required under subsection (3); (b) the member is convicted of an offence punishable with imprisonment; (c) the member has acted dishonestly or has engaged in any indecent or immoral behavior; (d) the member is of unsound mind or is an undischarged bankrupt having been adjudged bankrupt; or (e) the member acts or omits to act in such manner with the intention to defeat or impede the purpose of this Enactment. | Appointed directly by the State Authority. In addition, although some grounds are listed for revoking appointment, this is only a list of situations where reasons are not needed for the revocation, leaving open the possibility of revoking the mandate on any other grounds. |
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 | Partially | 1 | 22(1) The State Information Board shall prepare and submit a report annually to the Legislative Assembly containing such information prescribed by the Legislative Assembly, which shall include at the minimum in respect of the year to which the report relates:...17(18) Members of the State Information Board shall be paid, from the State Consolidated Funds, such allowances as may be determined by the State Authority. | The State Authority determines allowances. |
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 | 17(1) For the purposes of this Enactment, there shall be constituted an Appeal Board which shall be known as the State Information Board. (2) The State Authority shall, by notification in the Gazette, appoint— (a) a Chairman and a Deputy Chairman of the State Information Board, being ex- judges or advocates and solicitors of the High Court or former members of the Judicial and Legal Service of Malaysia or who have had judicial experience or other suitable qualifications and experience; and (b) such number of fit persons, not exceeding six persons, as the State Authority considers adequate, to be additional members of the State Information Board. 17(3) A person appointed under subsection (2) shall be independent and shall not hold any political office or hold any position in any political party. | Professional experience requirements are a bit vague. |
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 | 17(11) In respect of an appeal before it, the State Information Board— (a) shall hear the appellant and the Information Officer and shall require the Information Officer to justify the reasons for any decision to withhold access to information; (b) may summon and examine witnesses; (c) may require any person to bind himself by an oath to state the truth; (d) may compel the production and delivery of any document that it considers relevant or material to the appeal including the document to which access was rejected by the Information Officer provided that the information therein shall be kept confidential; (e) may confirm, vary or reverse the order or decision appealed against; and (f) may make any order whether or not provided for by, and not inconsistent with, this Enactment. (12) Every person summoned by the State Information Board to attend its proceedings is legally bound to attend at the place and time specified in the summons, and every person required by the State Information Board to produce or deliver any document to the State Information Board or to any public servant is legally bound to so produce or deliver the document. | 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 | 17 (11) In respect of an appeal before it, the State Information Board—(e) may confirm, vary or reverse the order or decision appealed against; | |
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 | 17(11) In respect of an appeal before it, the State Information Board— ... (e) may confirm, vary or reverse the order or decision appealed against; and (f) may make any order whether or not provided for by, and not inconsistent with, this Enactment. | 17(11)(f) provides for broad order-making powers so benefit of the doubt given. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | Partially | 1 | 17(14) An order made by the State Information Board on an appeal before it shall be final, shall not be called into question in any court, and shall be binding on all parties to the appeal or involved in the matter provided that an applicant who is dissatisfied with the decision of the State Information Board shall, within twenty one days from the issuance of the order of the State Information Board, appeal against such order in court. | 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 | State Information Board Rules 2012 (https://www.jakess.gov.my/images/pdf/ENAKMEN/Enakmen%20Kebebasan%20Maklumat/Kaedah%20Badan%20Maklumat%20Negeri%20%28Negeri%20Selangor%29%202012.pdf), 4(3) A fee shall be payable upon the filing of any notice of appeal as in the Third Schedule. | There is a fee provided for. While legal counsel 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 | YES | 4 | 9(1) Any applicant who: (a) is dissatisfied with the decision of the Information Officer; (b) is dissatisfied with the manner of disclosure of the information requested or is of the view that the information provided is incomplete, incorrect or misleading or does not correspond with the request in his application; (c) does not receive the information within the prescribed period; (d) or is otherwise aggrieved in any other way relating to the request or access to information under this Enactment, shall, within twenty one days after the date of receipt of the notice informing such decision under subsection 8(2), appeal against such decision to the State Information Board... | |
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 | Procedures are detailed in the State Information Board Rules 2012 (https://www.jakess.gov.my/images/pdf/ENAKMEN/Enakmen%20Kebebasan%20Maklumat/Kaedah%20Badan%20Maklumat%20Negeri%20%28Negeri%20Selangor%29%202012.pdf) but no overall timeline for the appeal process. | |
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 | 17(11) In respect of an appeal before it, the State Information Board— ... (f) may make any order whether or not provided for by, and not inconsistent with, this Enactment. | Not explicitly mentioned, but some benefit of the doubt given in view of the broad order-making power under 17(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 | YES | 2 | 18(1) It is an offence if a person—...(c) destroys, erases, alters, damages, conceals, blocks or falsify any information within the control of any department with the intention of preventing disclosure of any information or any part thereof or obstructing access to any information; (d) knowingly gives incorrect or misleading information to an applicant; or (e) willfully obstructs or denies access to information that is not otherwise exempted. (2) Any person who commits an offence under subsection (1) shall be liable on conviction, to a fine not exceeding RM50,000.00 or to imprisonment not exceeding five years or both. | |
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 | YES | 2 | 21. No prosecution, penalty, sanctions, suit or proceeding of any kind shall or can be brought, instituted or continued in any court against: (a) an Information Officer; or (b) other relevant officer of a department or the State Information Board, in relation to any disclosure of information made by such officers in good faith in the exercise or performance of any power, duty or responsibility under this Enactment or any regulations made in relation to this Enactment. | |
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 | YES | 2 | 3(1) The State Authority shall by Gazette appoint an Information Officer for every department. | |
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) The Information Officer shall, in addition to any obligation specifically provided for in other sections of this Enactment, have the following responsibilities: (a) to properly record all information within the department’s control and to maintain such records in a manner which facilitates the finding of such records and to enhance and implement within the department the best practices in relation to maintenance, archiving and disposal of information and disclosure of information to the public; (b) to provide training for the department in relation to maintenance, archiving and management and fulfillment of applications for information. 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) The Information Officer shall, in addition to any obligation specifically provided for in other sections of this Enactment, have the following responsibilities: ... (b) to provide training for the department in relation to maintenance, archiving and management and fulfillment 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. | This isn't mentioned explicitly, but in practice this must be necessary if the State Information Board is to produce a consolidated report, as is provided for under 22(1). |
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 | YES | 2 | 22(1) The State Information Board shall prepare and submit a report annually to the Legislative Assembly containing such information prescribed by the Legislative Assembly, which shall include at the minimum in respect of the year to which the report relates: (a) the total number of applications for information made to the departments; (b) the actions taken by each department in respect of every application received for the year; (c) the total number of applications which were refused by the department, the reasons for such refusals and the total number of times that each of the exemptions in Part IV or any other provisions of this Enactment were invoked as the basis for such refusals; (d) the total number of occurrences whereby the information requested could not be located and details of the steps taken to locate the same; (e) the number of appeals made during the year, the outcome of such appeals and the reasons for the appeals which did not result in a disclosure of the information requested; (f) the average number of days taken to process the applications for information of different types; (g) the applicable rates or range of fees imposed for requests or based on the various types of requests, whichever is applicable, the average amount of fees charged per request and the total amount of fees imposed; (h) the Information Officer and his department’s activities pursuant to section 3(2); and (i) any recommendations to improve the process of providing access to information, and the Legislative Assembly shall be required to publish the consolidated reports received from all departments. |
