Civil society draft of the FOI law

Freedom of Information Enactment 2009

ARRANGEMENT OF SECTIONS

Preamble

PART I

PRELIMINARY

Section

1. Short Title and Commencement

2. Interpretation

3. Purpose of the Enactment

4. Public Authorities

5. Further Power to Designate Public Authorities

PART II

THE RIGHT TO ACCESS INFORMATION HELD BY PUBLIC AUTHORITIES WITHIN THE STATE JURISDICTION

6. Right of Access to Information

7. General Right of Access

8. Access to Other Records

9. Records

10. Request for Information

11. Transfer of Request for Access

12. Time Limits for Responding to Requests

13. Notice of Response

14. Fees

15. Forms of Access

16. Reasons for Decisions to be Given

17. Form of Record

18. If a Record is Not Held

19. Vexatious, Repetitive or Unreasonable Requests

PART III

DUTY TO PUBLISH INFORMATION

20. Guide to Using the Enactment

21. Duty to Provide Advice and Assistance

22. Publication of Information Concerning Functions, etc. of Public Authorities

23. Model Publication Schemes

24. Maintenance of Records

25. Unpublished Records Not to Prejudice Public

26. Reports to the State Information Commissioner

27. Information Officer

PART IV

EXEMPT INFORMATION

28. Non Disclosure of Information to Protect Public Interest

29. Information Already Publicly Available

30. Severability

31. Personal Information

32. State Executive Council Information

33. Information in Court Proceedings

34. Disclosure of Information which would be in Contempt of State Legislative Assembly

35. Confidential Information

36. Information Affecting the State Economy

37. Health and Safety

38. Information Affecting Enforcement or Administration of the Law

39. Disclosure of Exempt Information in the Public Interest

40. Policy Making and Operations of Public Authorities

41. Time Limits

PART V

THE STATE INFORMATION COMMISSION

42. Appointment of the State Information Commissioner

43. Independence and Powers

44. Salary and Expenses

45. Staff

46. Meetings

47. General Activities

48. Reports

49. Protection of the Commissioners

PART VI

ENFORCEMENT BY THE COMMISSION

50. Complaint to the Commission

51. Decision on the Complaint

52. Application for Decision by Commissioner

53. Direct Implementation of Decision

54. Commission’s Powers to Investigate

55. Appeal from Commission’s Decisions and Orders

56. Determination of Appeals

57. Binding Nature of Commission’s Decisions and Orders

PART VII

WHISTLEBLOWERS

58. Whistleblowers

PART VIII

CRIMINAL AND CIVIL RESPONSIBILITY

59. Good Faith Disclosures

60. Offences

PART IX

MISCELLANEOUS PROVISIONS

61. Correction of Information and Records

62. Preservation of Information

63. Protection Against Civil and Criminal Actions

64. Regulations

65. Interpretation of Provision by Court

Schedule 1

Lists of published information

Schedule 2

List of Public Authorities

Freedom of Information Enactment 2009

An Enactment to promote maximum disclosure of information in the public interest, to guarantee the right of everyone to access information, and to provide for effective mechanisms to secure that right.

Recognising the right to access information to participatory democracy, to promote openess, transparency and accountability within the State Government and its bodies;

Be it enacted by the Selangor State Legislative Assembly as follows:

PART I: DEFINITION AND PURPOSE

1. Short Title and Commencement

(1) This Enactment may be cited as the Freedom of Information Enactment 2009.

(2) This Enactment shall come into force on a date proclaimed by the Sultan of Selangor or it shall automatically come into effect six months after its passage into law if no proclamation is forthcoming.

(3) This Enactment extends to the whole of the state of Selangor Darul Ehsan.

2. Interpretation

In this Enactment, unless the context otherwise requires:

(a) “applicant” means the person making a request to have access to a record or records of a public authority or public authorities;

(b) “Menteri Besar” means the Menteri Besar of the State of Selangor Darul Ehsan

(c) “commission” is the State Information Commission as established under section 44 of this Enactment;

(d) “commissioner” is any member of the State Information Commission, established under section 44 of this Enactment , or the holder of that office, as the context may require;

(e) “Code of Practice” means set of guidelines and regulations as determined by the state executive council;

(f) “exempt record” means a record which, by virtue of any provision of Part IV, is an exempt record;

(g) “Tribunal” means the Information Tribunal;

(h) “information officer” means an individual with specific responsibilities under this Enactment required to be appointed by every public authority pursuant to section 27;

(j) “official” means any person employed by the relevant body, whether permanently or temporarily and whether part-time or full-time;

(k) “personal information” means information concerning a person, identified or identifiable, including that concerning his or her ethnic or racial origin, or referring to his or her physical, moral or emotional characteristics, sentimental and family life, domicile, telephone number, patrimony, ideology and political opinions, religious or philosophical beliefs or convictions, physical or mental state of health, sexual preferences, or any similar information that is in relation to or that affects his or her privacy;

(l) “public authority” has the meaning given by section 4;

(m) “publicly-owned company” is as defined in the Companies Act of 1965.

(n) “publish” means make available in a form generally accessible to members of the public and includes but is not limited to, print, broadcast and electronic forms of dissemination;

(o) “record” has the meaning given by section 9;

(p) “state executive councillor” means any member of state executive council responsible for the administration of state agencies;

(q) “state” means the State of Selangor Darul Ehsan; and

(r) “vested interest” means any interest including but not limited to financial or pecuniary interest.

3. Purpose of the Enactment

(1) The purpose of this Enactment is to provide a right of access to any information held by public authorities within the jurisdiction of the state so that such information should be available to the public. Necessary exceptions to the right of access should be limited, specific and justified and decisions on the disclosure of such information should be reviewed independently of government;

(2) This Enactment shall provide such right in the state and to complement the right to access information as provided by federal laws.

4. Public Authorities

(1) For the purposes of this Enactment, a public authority includes any body within the state as stated in schedule 1, which includes the following bodies that are:

(a) established by or under the state constitution; or

(b) established by state enactments; or

(c) which forms part of any level or branch of the state government; or

(d) owned, controlled or substantially financed by funds provided by state Government; or

(e) that the state has a vested interest in any form or manner whatsoever; or

(f) that any Executive Councillor, member of the state parliament or the speaker of the state who may have a vested interest in any form or manner whatsoever; or

(g) individuals, companies as defined in the Companies Act 1965, businesses, partnerships and/or any legal entity within or out of the state that controls, manages, possess and/or deal with records in any way, on behalf of any Public Authority or any entity as listed in Schedule 1 herein.

(2) The Commission or the responsible state executive councillor may by order designate as a public authority any body within the jurisdiction of the state that carries out a public function

5. Further powers to designate Public Authorities

(1) The Menteri Besar may by order designate as a public authority for the purpose of this Enactment any person or body who appears to the Menteri Besar is neither listed in Schedule 1 nor capable of being added to that Schedule by an order under section 4(1), but who:-

(a) exercise functions of a public nature or appear to exercise functions of a public nature, or

(b) is providing under a contract made with a public authority any service whose provision is a function of that authority.

(2) An order under this section may designate a specified person or office or persons or offices falling within a specified description.

(3) Before making an order under this section, the secretary of the shall consult every person to whom the order relates to, or persons appearing to him to represent such persons.

PART II: THE RIGHT TO ACCESS INFORMATION HELD BY PUBLIC AUTHORITIES WITHIN THE STATE JURISDICTION

6. Right of Access to Information

Subject to this Enactment, every person shall have a right of access to information held by public authorities, other than an exempt record.

7. General Right of Access

Any person making a request for information to a public authority shall be entitled:

(a) to be informed whether or not the public authority holds a record containing that information or the source from which that information may be derived; and

(b) if the public authority does hold such a record, to have that information communicated to him or her within 14 working days from the date of such request.

8. Access to other records

Nothing in this Enactment shall prevent a public authority from publishing or giving access to records (including exempt records), otherwise than as required by this Enactment or required by federal law to do so.

9. Record

(1) For purposes of this Enactment, a record means or includes any information, 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 and/or in any form whatsoever, all of which are collated or otherwise, created by the body that holds it or otherwise and/or classified as not be released to any party or entity or otherwise.

(2) For purposes of this Enactment, a public authority holds a record if:

(a) the public authority holds the record, other than on behalf of another person; or

(b) another person, company or public authority holds the record, on behalf of the public authority.

10. Request for Information

(1) A person who wishes to have access to a record of a public authority shall make a request in writing to the public authority for access to the record.

(2) A request for information shall be made in sufficient detail or shall provide such information relating to the record as is reasonable necessary to enable the public authority to identify whether or not the public authority holds a record with that information.

(3) Where a request for information does not comply with the provisions of sub-section (1), the public authority who receives the request shall, subject to sub-section (6), take reasonable steps to assist the person making the request as may be necessary to enable the request to comply with sub-section (1).

(4) Where a request in writing is made to a public authority for access to a record, the public authority shall not refuse to comply with the request on the ground that the request does not comply with subsection (1), without first giving the person a reasonable opportunity of consultation with the public authority with a view to the making of a request in a form that complies with that section.

(5) A person who is unable, because of illiteracy or disability, to make a written request for information pursuant to sub-section (1) may make an oral request, and the public authority who receives an oral request shall, subject to sub-section (6), reduce it to writing, including their name and position within the public authority, and give a copy thereof to the person who made the request.

(6) Where a request is made to a public authority for access to a record and the request is not one that has been directed to the appropriate public authority, the public authority who receives the request for information shall transfer that request to the appropriate public authority and notify the person making the request of such transfer.

(7) A public authority may prescribe a form, without fee, for requests for information, provided that such forms do not unreasonably delay requests or place an undue burden upon those making requests.

(8) A public authority which receives a request for information shall provide the person making the request with a receipt recording the request.

(9) Where:

(a) a decision is made not to grant a request for access to a record on the ground that it is an exempt record; and

(b) it is practicable for the public authority to grant access to a copy of the record with such deletions as to make the copy not an exempt record; and

(c) it appears from the request, or the person making the request subsequently indicates, that the person would wish to have access to such a copy;

the public authority shall give the person access to such a copy of the record.

(10) Where access is granted to a copy of the record in accordance with subsection (8), the person making the request shall be informed that it is such a copy and also be informed of the provisions of this Enactment by virtue of which any information deleted is exempt information.

11. Transfer of request for access

(1) Where a request is made to a public authority for access to a record and the request has not been directed to the appropriate public authority, the public authority to which the request is made shall transfer the request to the appropriate public authority and inform the person making the request accordingly.

(2) Where a request is transferred to a public authority in accordance with this section, it shall be deemed to be a request made to that public authority and received on the date on which it was originally received.

12. Time Limits for Responding to Requests

(1) Subject to sub-section (3), a public authority must respond to a request for information pursuant to section 10 as soon as is reasonably practicable and in any event not later than 30 days from the date on which the request is made.

(2) Where a request for information relates to information which reasonably appears to be necessary to safeguard the life or liberty of a person, a response must be provided within 48 hours from the date on which the request is made.

(3) Where a public authority is of the opinion that processing the request would substantially and unreasonably divert the resources of the public authority from its other operations, the public authority shall assist the person making the request to modify the request accordingly.

(4) A public authority may, by notice in writing within the period specified in sub-section (1) extend the period to an additional 14 days, where the request made is for a large number of records or requires a search through a large number of records, and where compliance within the 30 days would unreasonably interfere with the activities of the public authority.

(5) Failure to comply with sub-section (1) shall be deemed to be a refusal of the request.

13. Notice of Response

(1) Where a request for access to a record is made and:

(a) the request is approved by the public authority; and

(b) subject to section 14, any fee required to be paid before access is granted has been paid,

access to the record shall be given in accordance with this Enactment.

(2) Where in relation to a request for access to a record of a public authority, a decision is made under this Part that the person making the request is not entitled to access to the record in accordance with the request or that no such record exists, the public authority shall give the person notice in writing of the decision, and the notice shall:

(a) state the findings on any material question of fact, referring to the material on which those findings were based, and the reasons for the decision;

(b) where the decision relates to a public authority, state the name and designation of the person giving the decision; and

(c) where the decision is to the effect that the record does not exist, state that a thorough and diligent search was made to locate the record.

(3) A public authority is not required to include in a notice under subsection (2) any matter that is of such a nature that its inclusion in a record would cause that record to be an exempt record.

14. Fees

(1) The communication of information pursuant to a request under section 10 by a public authority may, subject to sub-sections (2) and (3), be made conditional upon payment by the person making the request of a reasonable fee, which shall not exceed the actual cost of preparing and communicating the information, excluding the cost of searching for or reviewing information.

(2) The state Government may, after consultation with the Commission, make regulations providing:

(a) for the manner in which fees are to be calculated;

(b) the maximum amount payable; and

(c) an exemption for any person or category of persons from paying any fees under this Enactment, where the information contained in the record for which access is requested is in the public interest.

15. Forms of access

(1) Access to a record may be given to a person in one or more of the following forms:

(a) a reasonable opportunity to inspect the record;

(b) provision by the public authority of a copy of the record;

(c) delivery by the public authority of a copy of the record in electronic form;

(d) in the case of a record that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images; or

(e) in the case of a record by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the public authority of a written transcript of the words recorded or contained in the record

(2) Subject to subsection (3), where the applicant has requested access in a particular form, access shall be given in that form.

(3) If the form of access requested by the applicant:

(a) would interfere unreasonably with the operations of the public authority;

(b) would be detrimental to the preservation of the record or, having regard to the physical nature of the record, would not be appropriate; or

(c) would involve an infringement of copyright (other than copyright owned by the Government) subsisting in the record,

access in that form may be refused and access given in another form.

16. Reasons for decisions to be given

(1) Where in relation to a request for access to a record of a public authority, a decision made under this section that the applicant is not entitled to access to the record in accordance with the request or that no such record exists, the public authority shall cause the applicant to be given notice in writing of the decision, and the notice shall:

(a) state the findings on any material question of fact, referring to the material on which those findings were based, and the reasons for the decision;

(b) where the decision relates to a public authority, state the name and designation of the person giving the decision;

(c) where the decision does not relate to a request for access to a record which if it existed, would be an exempt record but access is given to a record in accordance with section 16, state that the record is a copy of a record from which exempt information has been deleted; and

(d) where the decision is to the effect that the record does not exist, state that a thorough and diligent search was made to locate the record.

(2) A public authority is not required to include in a notice under subsection (1) any matter that is of such a nature that its inclusion in a record would cause that record to be an exempt record.

17. Form of Record

(1) The form of a record to be forwarded to the applicant shall be in any one or more of the following forms or manner:

(a) a reasonable opportunity to inspect the record;

(b) provision by the public authority of a copy of the record;

(c) delivery by the public authority of a copy of the record in electronic form;

(d) in the case of a record that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images; or

(e) in the case of a record by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the public authority of a written transcript of the words recorded or contained in the record.

(2) Subject to subsection (3), where the person making the request has requested access in a particular form, access shall be given in that form.

(3) If the form of access requested by the person:

(a) would interfere unreasonably with the operations of the public authority; or

(b) would be detrimental to the preservation of the record or, having regard to the physical nature of the record, would not be appropriate; or

(c) would involve an infringement of copyright (other than copyright owned by the Government) subsisting in the record,

access in that form may be refused and access given in another form.

(4) Where a record exists in more than one language, communication of the record shall, from among those languages, be given in accordance with the language preference of the person making the request.

(5) A person who is unable, because of illiteracy or disability, to access information in the record in the form in which it is stored or copied, shall be given the option of having the information communicated to him or her in an alternative form in which he or she can access it.

18. If a Record is not Held

(1) Where an official who receives a request pursuant to section 4(1) believes that that request relates to information that is not contained in any record held by the public authority, the official may, within five (5) working days, transfer the request to the Information Officer for purposes of compliance with this section.

(2) Where an Information Officer receives a request pursuant to sub-section (1), he or she shall, as soon as possible and within a period of not more than five (5) working days, confirm whether or not the public authority does hold a record containing the information and, if it does not, shall, if he or she knows of another public authority which does hold the relevant record: –

(a) transfer the request to that public authority and inform the person making the request of such transfer; and

(b) indicate to the person making the request which public authority holds the relevant record.

19. Vexatious, Repetitive or Unreasonable Requests

(1) A public authority is not required to comply with a request for information which is vexatious or where it has recently complied with a substantially similar request from the same person.

(2) A public authority is not required to comply with a request for information where such request is vexatious and to do so would unreasonably deplete its resources.

PART III: DUTY TO PUBLISH INFORMATION

20. Guide to Using the Enactment

(1) The Commission shall, as soon as practicable, compile in as many languages as practicable a clear and simple guide containing practical information to facilitate the effective exercise of rights under this Enactment, and shall disseminate the guides widely in an accessible form.

(2) The guide in sub-section (1) shall be updated on a regular basis, as necessary.

(3) The guide in sub-section (1) shall be made available in formats or mediums that are accessible to individuals with a disability or who are illiterate.

21. Duty to provide advice and assistance

(1) It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.

(2) Any public authority which, in relation to the provision of advice or assistance in any case, conforms with the relevant code of practice and shall comply with the duty imposed by subsection (1) in relation to that case.

22. Publication of Information concerning functions, etc. of Public Authorities

(1) A public authority shall, with the approval of the state executive council:

(a) cause to be published in the Gazette as soon as practicable, but not later than twelve months, after the date of commencement of this Enactment, in a mode approved by the Menteri Besar:

(i) a statement setting out the particulars of the organization and functions of the public authority, indicating, as far as pricable, the decision-making powers and other powers affecting members of the public that are involved in those functions, and particulars of any arrangement that exists for consultation with or representations by, bodies and persons outside the state government administration in relation to the formulation of policy in, or the administration of, the public authority;

(ii) a statement of the categories of records that are maintained in the possession of the public authority;

(iii) a statement of the material that has been prepared by the public authority under this Part for publication or inspection by members of the public, and the places at which a person may inspect or obtain that material; and

(iv) a statement of the procedure to be followed by a person when a request for access to a record is made to a public authority, and

(b) during the year commencing on the first day of January next following the publication, in respect of a public authority, of the statement under subparagraph (i), (ii), (iii) or (iv) of paragraph (a) that is the first statement published under that subparagraph, and during each succeeding year, cause to be published in the Gazette statements bringing up to date the information contained in the previous statement or statements published under that subparagraph.

(2) The mode approved by the Menteri Besar under subsection (1) shall be such as he or she considers appropriate for the purpose of assisting members of the public to exercise effectively their rights under this Enactment.

(3) Nothing in this section requires the publication of information that is of such a nature that its inclusion in a record would cause that record to be an exempt record.

(4) Where a public authority comes into existence on or after the date of commencement of this Enactment, it shall comply with subsection (1) as soon as practicable after the date it so comes into existence and no later than 12 months from that date.

23. Model Publication Schemes

(1) The Commissioner may from time to time approve, in relation to public authorities falling within particular classes, model publication schemes prepared by him or by other persons.

(2) Where a public authority falling within the class to which an approved model scheme relates adopts such a scheme without modification, no further approval of the Commissioner is required so long as the model scheme remains approved; and where such an authority adopts such a scheme with modifications, the approval of the Commissioner is required only in relation to the modifications.

(3) The Commissioner may, when approving a model publication scheme, provide that his approval is to expire at the end of a specified period.

(4) Where the Commissioner has approved a model publication scheme, he may at any time publish, in such manner as he thinks fit, a notice revoking his approval of the scheme as from the end of the period of six months beginning with the day on which the notice is published.

(5) Where the Commissioner refuses to approve a proposed model publication scheme on the application of any person, he must give the person who applied for approval of the scheme a statement of the reasons for his refusal.

(6) Where the Commissioner refuses to approve any modifications under subsection (2), he must give the public authority a statement of the reasons for his refusal.

(7) Where the Commissioner revokes his approval of a model publication scheme, he must include in the notice under subsection (4) a statement of his reasons for doing so.

24. Maintenance of Records

(1) Every public authority is under an obligation to maintain its records in a manner which facilitates the right to information, as provided for in this Enactment, and in accordance with the Code of Practice stipulated in sub-section (3).

(2) Every public authority shall ensure that adequate procedures are in place for the correction of personal information.

(3) The Commission shall, after appropriate consultation with interested parties, issue and from time to time update a Code of Practice relating to the keeping, management and disposal of records.

25. Unpublished Records Not to Prejudice Public

If a records required to be made available in accordance with section 10, being a record containing a rule, guideline or practice relating to a function of a public authority, was not made available and included in a statement in the Gazette, as referred to in that section, a member of the public who was not aware of that rule, guideline or practice shall not be subjected to any prejudice by reason only of the application of that rule, guideline or practice in relation to the thing done or omitted to be done by him if he could lawfully have avoided that prejudice had he been aware of that rule, guideline or practice.

26. Reports to the State Information Commissioner

The Information Officer of every public authority shall annually submit to the Commission a report on the activities of the public authority pursuant to, or to promote compliance with, this Enactment , which shall include information about: –

(a) the number of requests for information received, granted in full or in part, and refused;

(b) how often and which sections of the Enactment were relied upon to refuse, in part or in full, requests for information;

(c) appeals from refusals to communicate information;

(d) fees charged for requests for information;

(e) its activities pursuant to section 25 (publication schemes); and

(f) its activities pursuant to section 26 (maintenance of records).

27. Information Officer

(1) Every public authority shall appoint an Information Officer and ensure that members of the public have easy access to relevant information concerning the Information Officer, including his or her name, function and contact details.

(2) The Information Officer shall, in addition to any obligations specifically provided for in other sections of this Enactment , have the following responsibilities:

(a) to promote within the public authority the best possible practices in relation to record maintenance, archiving and disposal; and

(b) to provide training within the public authority on record maintenance, archiving and dealing with information requests; and

(c) to ensure that the general public are aware of their rights under this Enactment ; and

(d) to serve as a central contact within the public authority for receiving requests for information, for assisting individuals seeking to obtain information and for receiving individual complaints regarding the performance of the public authority relating to information disclosure.

PART IV: EXEMPT INFORMATION

28. Non Disclosure of Information to Protect Public Interest

Notwithstanding any provision in this Part, a public authority may not refuse to indicate whether or not it holds a record, or refuse to communicate information, unless the harm to the protected interest outweighs the public interest in disclosure.

29. Information Already Publicly Available

Notwithstanding any provision in this Part, a public authority may not refuse to communicate information where the information is already publicly available.

30. Severability

If a request for information relates to a record containing information which, subject to this Part, falls within the scope of an exception, any information in the record which is not subject to an exception shall, to the extent it may reasonably be severed from the rest of the information, be communicated to the person requesting the record.

31. Personal Information

(1) A public authority 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.

(2) Sub-section (1) does not apply if:

(a) the third party has effectively consented to the disclosure of the information; or

(b) the person making the request is the guardian of the third party, or the next of kin or the executor of the will of a deceased third party; or

(c) the third party has been deceased for more than 20 years; or

(d) the individual is or was an official of a public authority and the information relates to his or her function as a public official.

32. State Executive Council Information

(1) A record is an exempt record if it is:

(a) a record that has been submitted to the state executive council for its consideration or is proposed by an assemblyman to be so submitted, being a record that was brought into existence for the purpose of submission for consideration by the state executive council;

(b) an official record of any deliberation of the state executive council;

(c) a record that is a draft of copy of, or of a part of, or contains an extract from, a record referred to in paragraph (a) or (b); or

(d) a record of the disclosure of which would involve the disclosure of any deliberation of the state executive council, other than a record by which a decision of the state executive council was officially published.

(2) Subsection (1) does not apply to a record that contains purely statistical, technical or scientific material unless the disclosure of the record would involve the disclosure of any deliberation of state executive council;

(3) For the purposes of this Enactment, a certificate signed by the secretary to the executive council or a person performing the duties of the secretary, certifying that a record is one of a kind referred to in a paragraph of subsection (1), establishes conclusively that it is an exempt record of that kind;

(4) Where a record is a record referred to in paragraph (1)(c) or (d) by reason only of matter contained in a particular part or particular parts of the record, a certificate under subsection (3) in respect of the record shall identify that part or those parts of the record as containing the matter by reason of which the certificate is given. (5) In this section, any reference to “state executive council” shall be read as including a reference to a committee of the state executive council;

33. Information in Court Proceedings

A record is an exempt record if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

34. Disclosure of Information which would be in Contempt of State Legislative Assembly

(1) Information is exempt information if exemption is required for the purpose of avoiding an infringement of the privileges of the state assembly

(2) The duty to confirm or deny does not apply if, or to the extent that, exemption is required for the purpose of avoiding an infringement of the privileges of the state legislative assembly

(3) A certificate signed by the appropriate authority certifying that exemption from sub-sections (1) and (2) above, or at any time was, required for the purpose of avoiding an infringement of the privileges of the state legislative assembly shall be conclusive evidence of that fact.

(4) In subsection (3) “the appropriate authority” means in relation to the state legislative assembly the Speaker of that Assembly

35. Confidential Information

(1) A public authority may refuse to communicate information if:

(a) the information was obtained from a third party and to communicate it would constitute an actionable breach of confidence; or

(b) the information was obtained in confidence from a third party and:

(i) it contains a trade secret; or

(ii) to communicate it would, or would be likely to, seriously prejudice the commercial or financial interests of that third party; or

(c) the information was obtained in confidence from another state or international organisation, and to communicate it would, or would be likely to, seriously prejudice relations with that state or international organisation.

(2) A Public Authority shall not withhold information under this provision if in the event the request for such information is pursuant to an investigation of a criminal offence or criminal offences.

36. Information Affecting the State Economy

Information is exempt information if its disclosure under this Enactment would, or would be likely to, prejudice:

(a) the economic interests of the state; or

(b) the financial interests of any administration in the state.

37. Health and Safety

A public authority may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, endanger the life, health or safety of any individual.

38. Information Affecting Enforcement or Administration of the Law

A public authority may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to:

(a) the prevention or detection of crime;

(b) the apprehension or prosecution of offenders;

(c) the administration of justice;

(d) the assessment or collection of any tax or duty;

(e) the operation of immigration controls; or

(f) the assessment by a public authority of whether civil or criminal proceedings, or regulatory action pursuant to any enactment, would be justified.

39. Disclosure of Exempt Information in the Public Interest

(1) Notwithstanding any law to the contrary, a public authority shall give access to an exempt record where, in all the circumstances of the case, to do so is in the public interest, having regard both to any benefit and to any damage that may arise from doing so in matters such as, but not limited to:

(a) abuse of authority or neglect in the performance of official duty;

(b) injustice to an individual;

(c) danger to the health or safety of an individual or of the public; or

(d) unauthorised use of public funds.

(2) In considering whether or not to claim exemption under this Part, the public authority, shall act in good faith and use its best endeavours to achieve the object of this Enactment to afford to members of the public maximum access to official records consistent with public interest.

40. Policy Making and Operations of Public Authorities

(1) A public authority may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to:

(a) cause serious prejudice to the effective formulation or development of state government policy; or

(b) seriously frustrate the success of a policy, by premature disclosure of that policy; or

(c) significantly undermine the deliberative process in a public authority by inhibiting the free and frank provision of advice or exchange of views; or

(d) significantly undermine the effectiveness of a testing or auditing procedure used by a public authority.

(2) Sub-section (1) does not apply to facts, analysis of facts, technical data or statistical information.

41. Time Limits

(1) The provisions of sections 30 to 40 apply only in as much as the harm they envisage would, or would be likely to, occur at or after the time at which the request is considered.

(2) Sections 28 to 40 do not apply to a record which is more than 30 years old.

PART V: THE STATE INFORMATION COMMISSION

42. Appointment of the State Information Commission

(1) The Commission shall consist of five members, inclusive of a Chairperson, appointed by the Sultan of Selangor after nomination by a simple majority vote of state legislative assembly and after a process in accordance with the following principles:

(a) participation by the public in the nomination process;

(b) transparency and openness; and

(c) the publication of a shortlist of candidates.

(2) The nomination and appointment process of the Commission shall be published in detail by the state legislative assembly and made available to the public. This process shall be amended or reformed from time to time by the state legislative assembly, as the need arises, to ensure the transparency and accountability of the Commission.

(3) No-one may be appointed a Commissioner if he or she:

(a) holds an official office in, or is an employee of a political party, or holds an elected or appointed position in central or local government; or

(b) has been convicted, after due process in accordance with internationally accepted legal principles, of a violent crime and/or a crime of dishonesty or theft, for which he or she has not been pardoned.

(4) The Commissioners shall hold office for a term of seven years, and may serve a maximum of one term, but may be removed by the Sultan of Selangor for cause upon a recommendation passed by a two-thirds majority vote of the State Legislative Assembly.

(5) Members of the Commission shall be appointed within 12 months of the gazetting of this Enactment.

43. Independence and Powers

(1) The Commission shall enjoy operational and administrative autonomy from any other person or entity, including the government and any of its agencies, except as specifically provided for by law.

(2) The Commission shall have all powers, direct or incidental, as are necessary to undertake its functions as provided for in this Enactment.

44. Salary and Expenses

The Commissioners shall each be paid a salary equal to the salary of a judge of the High Court of Malaya and are entitled to be paid reasonable travel and living expenses incurred in the performance of their duties.

45. Staff

The Commissioners may appoint such officers and employees as are necessary to enable them to perform their duties and functions.

46. Meetings

(1) The Commission shall appoint its own Chairperson and Vice-Chairperson from among the Commissioners.

(2) The Commission shall, subject to this Enactment, adopt such rules, in relation to meetings and other matters, as it considers necessary and appropriate to enable it to perform its functions and all business shall be conducted in accordance with such rules.

(3) The Commission shall meet as often as it deems necessary and shall, in any case, meet at least once every month.

(4) Meetings of the Commission shall be convened by the Chairperson, or in his or her absence the Vice-Chairperson, provided that it shall be mandatory to convene a meeting within seven days of a request for such a meeting by not less than two Commissioners.

(5) The Chairperson or, in his or her absence the Vice-Chairperson, shall preside at all meetings of the Commission.

(6) The quorum for meetings of the Commission shall be three Commissioners.

(7) A decision at a meeting of the Commission shall be adopted by a simple majority of the Commissioners present and voting except as otherwise decided by the Commission. In case of an equality of votes, the Commissioner presiding at the meeting shall have a casting vote in addition to his or her original vote.

(8) Minutes shall be kept in proper form of each meeting of the Commission and shall be confirmed by the Commission at the next meeting and signed by the Commissioner presiding at the meeting.

47. General Activities

In addition to any other powers and responsibilities provided for in this Enactment, the Commission may:

(a) monitor and publicly report on the compliance by public authorities with their obligations under this Enactment;

(b) make recommendations for reform both of a general nature and directed at specific public authorities;

(c) co-operate with or undertake training activities for public officials on the right to information and the effective implementation of this Enactment;

(d) refer to the appropriate authorities cases which reasonably disclose evidence of criminal offences under this Enactment; and

(e) publicise the requirements of this Enactment and the rights of individuals under it.

48. Reports

(1) The Commissioner shall, within three months after the termination of each financial year, lay before the state legislative assembly an annual report on compliance by public authorities with this Enactment, the activities of the Commission and audited accounts of the Commission during that financial year.

(2) The Commission may from time to time lay before the state legislative assembly such other reports as it deems appropriate.

49. Protection of the Commissioners

(1) No criminal or civil proceedings shall lie against the Commissioners, or against any person acting on behalf of or under the direction of the Commissioners, for anything done, reported or said in good faith in the course of the exercise of any power or duty under this Enactment.

(2) For the purposes of the law of libel or slander, anything said or any information supplied pursuant to an investigation under this Enactment is subject to qualified privilege.

PART VI: ENFORCEMENT BY THE COMMISSION

50. Complaint to the Commission

A person who has made a request for information may apply to the Commission for a decision that a public authority has failed to comply with an obligation under Part II, including by:

(a) refusing to indicate whether or not it holds a record, or to communicate information, contrary to section 7; or

(b) failing to respond to a request for information within the time limits established in section 12; or

(c) failing to provide a notice in writing of its response to a request for information, in accordance with section 14; or

(d) failing to communicate information forthwith, contrary to section 10 (3); or

(e) charging an excessive fee, contrary to section 14; or

(f) failing to communicate information in the form requested, contrary to section 10.

51. Decision on the Complaint

(1) The Commission shall, subject to sub-section (2), decide on an application under section 52 as soon as is reasonably possible, and in any case within 30 days, after giving both the complainant and the relevant public authority an opportunity to provide their views in writing.

(2) The Commission may summarily reject applications:

(a) which are frivolous, vexatious or clearly unwarranted; or

(b) where the applicant has failed to use any effective and timely internal appeals mechanisms provided by the relevant public authority.

(3) In any application under section 52, the burden of proof shall be on the public authority to show that it acted in accordance with its obligations under Part II.

(4) In its decision pursuant to sub-section (1), the Commission may:

(a) reject the application; and/or

(b) require the public authority to take such steps as may be necessary to bring it into compliance with its obligations under Part II; and/or

(c) require the public authority to compensate the complainant for any loss or other detriment suffered; and/or

(d) in cases of egregious, refusal or wilful failures to comply with an obligation under Part II, impose a fine on the public authority.

(5) The Commission shall serve notice of its decision, including any rights of appeal, on both the complainant and the public authority.

52. Application for decision by Commissioner

(1) Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.

(2) On receiving an application under this section, the Commissioner shall make a decision unless it appears to him:

(a) that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 26,

(b) that there has been undue delay in making the application,

(c) that the application is frivolous or vexatious, or

(d) that the application has been withdrawn or abandoned.

(3) Where the Commissioner has received an application under this section, he shall either:

(a) notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or

(b) serve notice of his decision (in this Enactment referred to as a “decision notice”) on the complainant and the public authority.

(4) Where the Commissioner decides that a public authority:

(a) has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or

(b) has failed to comply with any of the requirements of sections 9 and 15,

the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.

(5) A decision notice must contain particulars of the right of appeal conferred by section 55.

(6) Where a decision notice requires steps to be taken by the public authority within a specified period, the time specified in the notice must not expire before the end of the period within which an appeal can be brought against the notice and, if such an appeal is brought, no step which is affected by the appeal need be taken pending the determination or withdrawal of the appeal.

53. Direct Implementation of Decision

(1) The Commission may, after giving a public authority an opportunity to provide their views in writing, decide that a public authority has failed to comply with an obligation under Part III.

(2) In its decision pursuant to sub-section (1), the Commission may require the public authority to take such steps as may be necessary to bring it into compliance with its obligations under Part III, including by:

(a) appointing an information officer;

(b) publishing certain information and/or categories of information;

(c) making certain changes to its practices in relation to the keeping, management and destruction of records;

(d) enhancing the provision of training on the right to information to its officials;

(e) providing it with an annual report, in compliance with section 17; or

(f) in cases of egregious or wilful failures to comply with an obligation under Part III, paying a fine.

(3) The Commission shall serve notice of its decision, including any rights of appeal, on the public authority.

54. Commission’s Powers to Investigate

(1) In coming to a decision pursuant to section 54 or 55, the Commission shall have the power to conduct a full investigation, including by issuing orders requiring the production of evidence and compelling witnesses to testify.

(2) The Commission may, during an investigation pursuant to sub-section (1), examine any record to which this Enactment applies, and no such record may be withheld from the Commission on any grounds.

55. Appeal from Commission’s Decisions and Orders

(1) The complainant, or the relevant public authority, may, within 30 days, appeal to the court for a full review of a decision of the Commission pursuant to section 54 or 55.

(2) In any appeal from a decision pursuant to section 54, the burden of proof shall be on the public authority to show that it acted in accordance with its obligations under Part II.

56. Determination of Appeals

(1) If on an appeal under section 58 the Tribunal considers:

(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

57. Binding Nature of Commission’s Decisions and Orders

Upon expiry of the 30-day period for appeals pursuant to section 58, the Commission may certify in writing to the court any failure to comply with a decision pursuant to section 54 or 55 and the court shall consider such failure under the rules relating to contempt of court.

PART VII: WHISTLEBLOWERS

58. Whistleblowers

(1) Subject to Federal laws, no one may be subject to any legal, administrative or employment-related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing that would disclose a serious threat to health, safety or the environment, provided such disclosure was in good faith and with the reasonable belief that the disclosed information was substantially true and would disclose evidence of wrongdoing which is of a criminal nature or otherwise, or is a serious threat to health, safety or the environment of any state or territory of Malaysia.

(2) For purposes of sub-section (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public authority.

PART VIII: CRIMINAL AND CIVIL RESPONSIBILITY

29. Good Faith Disclosures

Subject to Federal laws, no one shall be subjected to civil or criminal action, or any employment detriment, for anything done in good faith in the exercise, performance or purported performance of any power or duty in terms of this Enactment , provided they acted reasonably and in good faith.

60. Offences

(1) It is a criminal offence to wilfully:

(a) obstruct access to any record contrary to Part II of this Enactment ; or

(b) obstruct the performance by a public authority of a duty under Part III of this Enactment ; or

(c) interfere with the work of the Commission; or

(d) destroy records without lawful authority.

(2) Anyone who commits an offence under sub-section (1) shall be liable on conviction to a fine not exceeding RM50,000 and/or to imprisonment not exceeding two years.

PART IX: MISCELLANEOUS PROVISIONS

61. Correction of Information and Records

(1) Where a record of a public authority to which access has been given under this Enactment or otherwise, contains personal information of a person and that person claims that the information:

(a) is incomplete, incorrect or misleading; or

(b) not relevant to the purpose for which the record is held, the public authority may, subject to subsection (2), on the application of that person, amend the information upon being satisfied of the claim.

(2) An application under subsection (1) shall:

(a) be in writing; and

(b) as far as practicable, specify:

(i) the record or official record containing the record of personal information that is claimed to require amendment;

(ii) the information that is claimed to be incomplete, incorrect or misleading;

(iii) whether the information is claimed to be incomplete, incorrect or misleading;

(iv) the applicant’s reasons for so claiming; and

(v) the amendment requested by the applicant.

(3) To the extent that it is practicable to do so, the public authority shall, when making any amendment under this section to personal information in a record, ensure that it does not obliterate the text of the record as it existed prior to the amendment.

(4) Where a public authority is not satisfied with the reasons for an application under subsection (1), it may refuse to make any amendment to the information and inform the applicant of its refusal together with its reasons for so doing.

62. Preservation of Information

(1) A public authority shall maintain and preserve or cause to be maintained and preserved records in relation to its functions and a copy of all official records which are created by it or which come at any time into its possession, custody or power, for such period of time as may be prescribed.

(2) A person who wilfully destroys or damages a record or record required to be maintained and preserved under subsection (1), commits an offence and is liable on conviction to a fine not exceeding RM50,000 and/or to imprisonment not exceeding two years.

(3) A person who knowingly destroys or damages a record or record which is required to be maintained and preserved under subsection (1) while a request for access to the record or record is pending commits an offence and is liable on conviction to a fine not exceeding RM50,000 and/or to imprisonment not exceeding two years.

63. Protection against Civil and Criminal Actions

Neither the person authorising the access nor any person concerned in the giving of the access is guilty of a criminal offence by reason only of the authorising or giving of the access where access has been given to a record and:

(a) the access was required by this Enactment to be given; or

(b) the access was authorised by the state government or by an officer having authority, to make decisions in respect of requests, in the bona fide belief that the access was required by this Enactment to be given.

64. Regulations

(1) The state executive council may, by notice in the Gazette and after consultation with the Commission make regulations regarding: –

(a) additional forms of communication of information;

(b) publication schemes under section 25;

(d) reports to the Commissioner under section 50;

(e) any notice required by this Enactment ; or

(f) any administrative or procedural matter necessary to give effect to this Enactment .

(2) Any regulation under sub-section (1) must, before publication in the Gazette, be tabled before the state legislative assembly.

65. Interpretation of the Provisions by Court

When interpreting a provision of this Enactment, every court must adopt any reasonable interpretation of the provision that best gives effect to the right to information as provided in this Enactment.

Schedule 1

List of Published Information

Schedule 2

List of Public Authorities

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