Light in the dark: Key judicial decision affirms right to information

This 2023 case should elevate freedom-of-information laws in Penang and Selangor and pave the way for a more robust federal framework

HEBI B/PIXABAY

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By UK Menon

Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret. Bureaucratic administration always tends to be an administration of ‘secret sessions’: in so far as it can, it hides its knowledge and action from criticism. – Max Weber

In 2023, the federal government pledged to introduce federal freedom-of-information legislation.

But two state-level laws over a decade ago preceded that federal commitment. They are the Freedom of Information (State of Selangor) Enactment 2011 Enactment and the Penang Freedom of Information Enactment 2010.

Over the past few years, NGOs like the Centre for Independent Journalism (CIJ) have been holding consultations with civil society nationwide to shape the proposed legislation.

The federal law is expected to be stronger and have broader reach in ensuring the public’s access to information than the state laws.

A comparative analysis of these earlier state laws might provide some insights into the structure and functioning of freedom-of-information laws in Malaysia.

This analysis draws no conclusions on the effectiveness of the Selangor and Penang enactments. Nor does it support their continuation in their current form.

Such conclusions would require an analysis of how the enactments have served their purpose from the time they were implemented.

For a detailed assessment of the implementation of the two enactments, readers can refer to the Centre for Independent Journalism’s document titled “A preliminary assessment of the early years of state-level FOI enactment implementation” (2021).

That said, any analysis of the two enactments must now consider Christopher Chin J’s decision in Harris Mohd Salleh v Chief Secretary, Government of Malaysia & Ors [2023] MLRHU 323; [2023] 4 CLJ 744. The applicant, a former Sabah chief minister, applied to the court to direct the respondents to declassify an investigation report by Malaysian authorities into a Nomad aircraft 9M-ATZ crashing on 6 June 1976 in Kota Kinabalu.

In allowing an order of mandamus, Justice Christopher Chin held that “the right to information exists as a corollary to the right to free speech. The Federal Constitution seeks to establish an egalitarian society where citizens exercise their right to free speech on facts and reason, not on assumptions and conjecture.”

This judicial recognition of a constitutional right to information will fundamentally affect the interpretation of the two enactments (and indeed, the formulation of any new laws on the subject).

Before, without a constitutional right to information, access to information had to be determined largely based on the access provisions of the enactments.

Now, with a prior constitutional right, which the court recognised  in the Harris Salleh case, the provisions in both enactments must be examined against that constitutional right.

Aims of the state enactments

The common goal of both enactments is to grant access to government-held information.

Selangor takes a broader, aspirational approach, making explicit connections to transparency and accountability.

Penang focuses on the right to access state-made information, without expanding into the broader governance goals that Selangor seeks to address.

Decentralised system of access

Under both enactments, access to information is managed through individual departments, rather than a centralised state agency.

This decentralised model means that each department functions as the gatekeeper for the information it holds. Dedicated information officers are responsible for processing requests, determining eligibility for disclosure and facilitating access.

This structure promotes direct accountability within departments. It ensures that requests are handled by those with the best understanding of the records under their control.

Duty to produce and maintain information

For such laws to be effective, public authorities must first adopt a responsibility to produce, collect and maintain accessible records.

In many jurisdictions, the right to access information under such laws is coupled with a duty on government agencies to maintain and safeguard records.

This duty is often reinforced by public records laws or archival requirements, which ensure that records are properly managed, stored and preserved for future access.

These laws recognise that without proper record-keeping and safeguards, the right to access information cannot be effectively realised.

Both Selangor and Penang’s enactments recognise this need. Under both enactments, information officers are appointed to every department of the state. Their duties include the maintenance and care of information in their respective departments. They also act as intermediaries between the department and individuals applying for information.

READ MORE:  Requests denied! Penang's freedom-of-information facade

The expression and scope of the duties of information officers vary in the two enactments. But in both enactments, they are the keepers of state information through whom requests for information are made.

Under Section 3 of the Selangor enactment, information officers are appointed for each department. They are responsible for recording, maintaining and archiving information. They must also ensure systems are in place to track applications and facilitate access. Emphasis is placed on record-keeping practices, with a structured focus on training, tracking systems and implementation of best practices for managing information.

Under Section 3 of the Penang enactment, information officers are appointed to manage the care, storage and disposal of information. Penang also focuses on ensuring proper record maintenance. But it places less emphasis on structured training and tracking systems compared to Selangor.

Information officers are on the front line of the freedom-of-information process in both enactments. Much will depend on them to ensure the objectives of the enactment are met, especially in accessing departmental information.

Both enactments expect these officers to not only facilitate information access. They are also expected to assist those with special difficulties in obtaining the information they seek.

However, as a recent account on the Aliran website has shown, information- seekers are also likely to be given the runaround when they approach a state department for information.

The Selangor – but not the Penang – enactment, makes it an offence for an information officer to destroy, erase, knowingly give wrong or misleading information or wilfully deny or obstruct access to information (Section 18 of Selangor enactment). The punishment could be a fine not exceeding RM50,000, imprisonment of up to five years or both.

Right to access information

Central to any legislation on access to information is how it articulates the right to access information.

Both enactments are uncompromising on this point and provide a framework for every person to access information. But they differ in how they express the right to access.

Section 5 (1) of Selangor’s enactment states:

5 (1) Every department shall provide access to every person, information which is within the control of the department unless otherwise exempted with exception in this Enactment.

When read together with the broad definition of information in the Selangor enactment, an application can be made for almost any information, however trivial, that is obtained, held or kept in the custody or control of any department or to which any department has reasonable access.

In the Selangor enactment, this would include any documents made, amended, modified, transformed, obtained or received by the department.

The Penang enactment in Section 5 is equally broad on who may access information. But the right to access is limited to information that is “available” in the department as opposed to information which is within the ‘control’ or reasonable access of the department as in the Selangor enactment.

Another difference arises from Penang’s definition of information which is, “any documents made by the department”. This makes it more restrictive than Selangor’s broader scope.

The Selangor definition covers any information in whatever form, including any documents made, amended, modified, transformed, obtained, received, held or kept in the custody or control of any department or to which any department has reasonable access.

‘Persons’ who may apply

The Penang and Selangor enactments do not explicitly define the term person when referring to who may apply for information.

However, when read together with related regulations (Penang) or guidelines (Selangor), the term “person” is interpreted in a broad manner in a legal context. It encompasses natural persons (individuals), legal persons (corporate entities) and unincorporated bodies (such as NGOs).

The Interpretation Acts 1948 and 1967 define a person as including a body of persons, corporate or unincorporated – unless the context otherwise requires. This means, unless specified otherwise in a specific law, the term person automatically includes both individuals and entities (incorporated and unincorporated).

Application for information

Making an application for information under both enactments is straightforward but must be made through prescribed forms.

If an applicant is unable to complete the form because of illiteracy or disability, he or she may make the application orally. In these circumstances, the information officer is required to reduce the oral application into writing and provide the applicant with a copy.

READ MORE:  Freedom of information essential for transparency

Under Section 6 of the Selangor enactment, applications for information require a declaration of the purpose of the application. Section 6 of the Penang enactment only requires the details of the information applied for.

Section 18(1)(a) of the Selangor enactment makes it an offence for information obtained for a declared purpose to be used for another purpose, “if the effect is detrimental”. The section does not specify to whom or how the effect of such use of information must be detrimental.

The basic cost of making a freedom-of-information request in Selangor is RM12. In Penang, it is RM50 for data from a current year, and RM100 for other years.

Responding to an application

Both enactments require information requests to be responded to in writing within stipulated time limits.

Under Section 7 of the Selangor enactment, the department concerned must respond to the request within 30 days of the application date. For requests for information related to life or liberty, the department must respond within seven days.

Under Section 7 of the Penang enactment, the corresponding periods are 14 days and 48 hours (which can be extended to seven days).

The two enactments also have differences relating to the duty to respond.

Section 7(3) of the Selangor enactment provides that if an application is unclear, the department shall use all reasonable efforts to obtain clarification from the applicant within the prescribed time.

The Penang enactment has no similar provision. However, under Section 8 (2), if an application is made to the wrong information officer, he or she is required to transfer the application to the appropriate information officer and inform the applicant.

Exemptions from disclosure

Both enactments set specific categories of exempted information, which cannot be accessed under the enactments.

The Selangor enactment in Section 14 lists three broad categories of exempted information:

  • Classified information under the Official Secrets Act 1972, which if disclosed, would seriously prejudice national security or national defence
  • Confidential information obtained from a third party, another state or an international organisation, which if communicated would constitute an actionable breach of confidence or seriously prejudice the commercial or financial interest of a third party or relations with a state or international organisation from whom the information was obtained
  • Information which, if disclosed, would prejudice the formulation of policy or development of the state

In addition to the above three categories of exempted information, an applicant may also be denied access under the Selangor enactment if the information applied for,

  • Would interfere unreasonably with the operations of the department – Section 10(3)(a)
  • Would be detrimental to the preservation of information after having regard to the physical nature of the information – Section 10(3)(b)
  • Would involve an infringement of copyright (other than copyright owned by the state government) subsisting in the information. In such a case, the information may be provided in a form in which the copyright would not be breached – Section 10(3)(c)
  • Is not in the possession of the department – Section 11
  • If the application is vexatious, unreasonable or repetitive – Section 12
  • Would involve the disclosure of personal information of an individual third party unless the third party has consented to the disclosure of the information or the person making the application is the legal guardian of the third party, the legal next of kin or the legal administrator of a deceased third party – Section 13

The Penang enactment has a longer list of exempted information which includes most of the types of information exempted under the Selangor enactment.

The Penang enactment does not provide for vexatious applications. But it does include the following exemptions that are not included in the Selangor list of exemptions:

  • Information in court proceedings
  • Information that would affect the state economy
  • Health and safety
  • Information that would affect the enforcement or administration of the law
  • Prevention or detection of crime

The Penang enactment also takes a more protective approach to documents of the state executive council and its committees. Section 11(1)(b) of the enactment exempts:

  • Documents submitted for consideration by the council or committees or created for such purpose
  • Official documents of deliberations and decisions of the council or committees
  • Disclosure of information which would be in contempt of the state legislative assembly (the exemption is required to avoid an infringement of the privileges of the assembly)
READ MORE:  Freedom of information essential for transparency

However, the first two exemptions above do not apply to documents containing statistical, technical or scientific material unless the disclosure would involve the disclosure of any deliberation or decision made by the state executive council – Section 11(1)(b)(ii).

Power to disclose exempted information

Both enactments allow state departments and the state authority to bypass disclosure restrictions on exempted information.

Under Section 15(1)(b) of the Selangor enactment, the state government has the discretion to declassify confidential information so that it may be accessible and to give access to exempted information.

The Penang enactment in Section 11(2)(b) confers a similar discretion on the state authority.

Both enactments also impose a duty – as opposed to a discretion – on a department to grant access to exempted information if the public interest outweighs the harm of disclosure. This is provided for in Selangor under Section 15(1)(a) and in Penang under Section 11(2)(a).

Information officers in both states may allow access to exempted information if the information is required for the investigation of an offence or misconduct. In Selangor, this is allowed under Section 15(1)(c) and in Penang under Section 11(2)(c).

Partial disclosure

Both enactments also allow for the disclosure of documents containing exempt information if the exemption information can be redacted from the document. In Selangor, this is allowed under Section 16 and in Penang, under Section 12.

Right to appeal

Both enactments establish mechanisms for individuals to appeal against decisions denying access to information.

Independent appeals boards provide oversight. In Selangor, the appeals body is the State Information Board. In Penang, it is the State Appeals Board.

Both bodies are established as quasi-judicial tribunals with the power to summon witnesses and take evidence under oath.

However, the appeal provisions in the two enactments differ in scope and procedure.

Section 9 of the Selangor enactment offers a broader range of reasons to appeal. Besides outright rejection, dissatisfaction with the form of disclosure (eg incomplete or incorrect information) or delays in receiving the information may also be the basis of an appeal.

In contrast, Section 9 of the Penang enactment limits the grounds for appeal to cases where the application for information is rejected.

Looking ahead

Selangor and Penang should be commended for implementing state-level freedom-of-information laws well before the federal government’s pledge in 2023.

These state enactments provide a valuable starting point and can serve as basic models for new federal legislation. They offer practical insights into how decentralisation of information access through departmental-level management and the appointment of information officers can function in a legislative framework.

These states’ experiences highlight the importance of public outreach and structured training. They also show the importance of having clear exemptions and procedural guidelines.

However, the judicial recognition of a right to information, as seen in the Harris Mohd Salleh v Chief Secretary Government of Malaysia case in 2023, fundamentally changes the landscape. It affirms the right to information as a constitutional principle.

So, any future freedom-of-information laws must now be interpreted based on this broader constitutional right. This applies to the Selangor and Penang enactments as well.

This recognition strengthens the public’s access to information. It places greater legal weight on the obligations of government bodies to disclose information.

It also ensures that the provisions in these enactments and the new federal law will be subject to constitutional scrutiny. This makes the right to information more robust and difficult to curtail arbitrarily.

This legal development elevates the two states’ enactments, allowing them to evolve in line with constitutional principles and setting a high standard for future legislation.

UK Menon is a lawyer who left practice to teach law, and then combined law with education and developed an expertise in law and education. He finds politics to be unduly interfering in education, using law as an instrument for that interference, and feels that a better knowledge of those laws will help minimise that interference.

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.
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