A BILL
i n t i t u l e d
An Enactment to provide for the disclosure of information for public interest, an opportunity on access to information made by every department of the State Government and any other matters connected therewith.
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ENACTED by the Legislature of the State of Penang as follows:
PART I
PRELIMINARY
1. Short title and commencement
(1) This Enactment may be cited as the Penang Freedom of Information Enactment 2010.
(2) This Enactment shall come into operation on a date to be appointed by the State Authority by notification in the Gazette.
2. Interpretation
(1) In this Enactment, unless the context otherwise requires-
"document" has the same meaning as defined under the Evidence Act 1950 [Act 56];
"department" means any department of the State Government;
"information" means any document made by any department of the State Government but does not include document-
(a) which has been classified under the Official Secrets Act 1972 [Act 88];
(b) which has the 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 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) where if disclosed it would, or would be likely to-
(i) cause serious prejudice to the effective formulation or development of the State Government policy;
(ii) seriously frustrate the success of the State Government policy, by premature disclosure of that policy;
(iii) cause serious prejudice to the administration of any department or the State Government;
(iv) cause serious prejudice to economic development or security of the State Government;
(v) significantly undermine the deliberative process of any department by inhibiting the free and frank provision of advice or exchange of views; or
(vi) significantly undermine the effectiveness of a test or audit procedure used by any department; or
(d) any other documents which may be prescribed, from time to time, by the State Authority by notification in the Gazette.
"Information Officer" means any person appointed under section 3 of this Enactment.
PART II
INFORMATION OFFICER
3. Appointment of Information Officer
(1) The State Authority may, by notification in the Gazette, appoint an Information Officer for every department.
(2) The Information Officer shall have the following responsibilities:
(a) to enhance within the department the best practices in relation to maintenance, archiving and disposal of information;
(b) to provide training for the department in relation to maintenance, archiving and management of applications for information; and
(c) to serve as an intermediary to the department in receiving applications and assisting individuals seeking for information.
4. Control of information
(1) Every department shall have control on all information made by the department.
(2) An Information Officer of the department is under an obligation to maintain information under the control of his department in accordance with any written laws, instructions or guidelines.
PART III
ACCESS TO INFORMATION
5. Access to information
(1) Any person may be given access to information made by every department.
(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.
6. Application for information
(1) An application for an access to information shall-
(a) be made to the Information Officer of a department in a prescribed form which contain-
(i) the name and address of the applicant;
(ii) the particulars of the information; and
(iii) the reason and purpose of the application, and
(b) be accompanied with a prescribed fee.
(2) Notwithstanding paragraph (1)(a), 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) An Information Officer who receives the application shall acknowledge the application and provide the applicant with an acknowledgement receipt.
7. Response to application
(1) Every Information Officer shall response to the application made under section 6 within thirty days from the date of acknowledgement of the application.
(2) Notwithstanding 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 the acknowledgement of the receipt of such application.
(3) If there is no response within the time specified in subsection (1) or (2), such application is deemed rejected.
(4) An access to the information shall be given when-
(a) the application to access such information is approved; and
(b) the fee under paragraph 6(1)(b) has been paid.
8. Refusal to application
(1) The application to access information may be refused by an Information Officer if-
(a) the applicant is not entitled to access such information; or
(b) such information does not exist or is not under the control of the department.
(2) For any refusal under subsection (1), the Information Officer shall inform the applicant in writing and shall state the reasons of such refusal.
9. Appeal to Board of Appeal
Any applicant who is aggrieved with the decision of the Information Officer may appeal to the Board of Appeal by submitting written representation within twenty one days after the date of receipt of the notice informing such decision under subsection 8(2).
10. Mode of access to information
(1) An access to information may be given generally in the form or mode that is most practical to the department, subject to the form of the information itself, and-
(a) if the information is an article or thing from which sounds or visual images are capable of being reproduced, the applicant is allowed to view the visual images or to hear the sound; or
(b) if the information are words in the form of record which are capable of being reproduced in the form of sound or words in the form of shorthand writing or in codified form, the department may reproduce the information in the form of a written copy.
(2) If an access to information applied by the applicant-
(a) would interfere unreasonably with the operation of the department;
(b) would be detrimental to the preservation of the information or, after having regard to the physical nature of such information would not be appropriate; or
(c) would involve an infringement of copyright (other than copyright owned by the State Government) subsisting in the information,
the access may be refused or access may be given in another form subject to subsection (1).
(3) 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.
11. Information not in possession
Any Information Officer who receives an application and finds that the information applied for is not in the possession of the department, the Information Officer shall inform the applicant of the matter in writing.
12. Vexatious, unreasonable or repetitive application
An Information Officer may refuse any application to access information if it-
(a) is vexatious;
(b) is unreasonable; or
(c) is a similar application from the same person and the application has been fulfilled.
13. Personal Information of third party
(1) An Information Officer may refuse to indicate whether or not he holds an information, or refuse to communicate any information, where to do so would involve unnecessary disclosure of personal information of a third party.
(2) Subsection (1) does not apply if-
(a) the third party has give his written approval to the disclosure of such information; or
(b) the applicant is the legal guardian of the third party, the legal next of kin or the legal administrator of a deceased third party.
PART IV
THE APPEAL BOARD
14. The Appeal Board
(1) For the purposes of this Enactment, there shall be constituted an Appeal Board. (2) The State Authority shall, by notification in the Gazette, appoint-
(a) a Chairman and a Deputy Chairman of the Appeal 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 Appeal Board.
(3) A person appointed under subsection (2) shall, unless he sooner resigns or vacates his office or his appointment is sooner revoked, hold office for a term not exceeding three years as determined by the State Authority in the notification of appointment, but shall be eligible for reappointment.
(4) The State Authority may revoke the appointment of a member of the Appeal Board without assigning any reason therefore.
(5) When the Chairman is unable to exercise his functions owing to illness, absence from Malaysia, or any other cause, the Deputy Chairman shall exercise the functions of the Chairman; and in exercising those functions, the Deputy Chairman shall, for the purposes of this Enactment, be deemed to be the Chairman of the Appeal Board.
(6) When a need arises for the Appeal Board to be convened, the Chairman shall call upon any two of the members appointed under paragraph 2(b) to serve with him in the Appeal Board; and it shall be the duty of every members so called upon, to serve in the Appeal Board, unless he is excused by the Chairman, on such grounds as the Chairman considers reasonable, from so serving.
(7) A member of the Appeal Board having an interest in any matter before it shall, as soon as he is aware of his interest, disclose the fact and nature thereof to the Chairman and shall take no part or further part in the proceedings of the Appeal Board relating to the matter.
(8) Every disclosure of interest made under subsection (7) shall be recorded.
(9) Every decision of the Appeal Board shall be made by the Chairman after considering the opinions of the other two members, but in making the decision the Chairman shall not be bound to conform to the opinions of the other two members or either of them, but if the Chairman dissents therefrom, he shall inform his reasons for dissenting.
(10) In respect of an appeal before it, the Appeal Board-
(a) shall hear the appellant and the Information Officer;
(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 but not including document which is rejected by the Information Officer;
(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.
(11) Every person summoned by the Appeal 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 Appeal Board to produce or deliver any document to the Appeal Board or to any public servant is legally bound to so produce or deliver the document.
(12) All summonses, notices and orders issued, made, or given under the hand of the Chairman shall be deemed to be issued, made, or given by the Appeal Board.
(13) An order made by the Appeal 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.
(14) For the purposes of the Penal Code [Act 574], every member of the Appeal Board shall be deemed to be a public servant.
(15) The State Authority may make rules or regulations on the procedure of appeals and the fees payable under this Part.
(16) Members of the Appeal Board may be paid such allowances as may be prescribed by the State Authority.
PART V
GENERAL
15. Offences
(1) No person shall-
(a) use any information obtained under this Enactment contrary to the reasons and purposes of such information was applied for; or
(b) gives false information in the form under paragraph 6(1)(a).
(2) Any person who contravenes the provision of subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or both.
16. Prosecution
No prosecution shall be instituted for an offence under this Enactment without the consent in writing of the Public Prosecutor.
17. Regulations
(1) The State Authority may make regulations as may be necessary or expedient for the purpose of carrying into effect the provisions of this Enactment.
(2) Without prejudice to the generality of the powers conferred by subsection (1), such regulations may be made for all or any of the following purposes:
(a) to prescribe forms and fees for the purpose of this Enactment;
(b) to prescribe the responsibilities of the Information Officer; or
(c) to provide for any matter which under this Enactment is required or permitted to be prescribed or which is necessary or expedient to be prescribed to give effect to this Enactment.
EXPLANATORY STATEMENT
This Penang Freedom of Information Bill ("the proposed Enactment") seeks to provide for the disclosure of information for public interest and an opportunity to access information made by every department of the State Government.
PART I
2. Part I of the proposed Enactment contains preliminary matters.
3. Clause 1 contains the short title and power of the State Authority to appoint a date of coming into operation of the proposed Enactment.
4. Clause 2 contains the definition of certain expressions used in the proposed Enactment.
PART II
5. Part II of the proposed Enactment provides for the appointment and responsibility of the Information Officer.
6. Clause 3 provides for the appointment of the Information Officer for every department. This clause also provides for responsibilities of the Information Officer.
7. Clause 4 provides for the control of the department over the information and the obligation of an Information Officer to maintain any information under the control of his department.
PART III
8. Part III of the proposed Enactment provides for matters relating to access to information.
9. Clause 5 provides for an access to information in any department by any person and if the information is subject to any written law, the access of such information shall be subjected to such written law.
10. Clause 6 provides for the procedure on access to information which includes payment of prescribed fee.
11. Clause 7 provides for the duration in which the Information Officer should response to any application and a different duration is provided where the information involve the life and liberty of a person.
12. Clause 8 seeks to provide for the circumstances where an Information Officer can refuse an application under the proposed Enactment.
13. Clause 9 provides the provision for an appeal to the Appeal Board by any party who is aggrieved with the decision of the Information Officer.
14. Clause 10 provides for modes of access to information.
15. Clause 11 seeks to provide the circumstances if the information is not in the control of the department.
16. Clause 12 provides that an Information Officer is not required to comply with any vexatious, unreasonable or repetitive application.
17. Clause 13 empowers the Information Officer to refuse the disclosure of personal information of a third party except on certain circumstances.
PART IV
18. Part IV of the proposed Enactment provides for matters relating to an Appeal Board.
19. Clause 14 provides for the establishment of an Appeal Board and procedures relating to it.
PART V
20. Part V of the proposed Enactment contains provision on miscellaneous matters.
21. Clause 15 seeks to provide for offences and sentences under the proposed Enactment.
22. Clause 16 requires consent of the Public Prosecutor for institution of prosecution for offences under the proposed Enactment.
23. Clause 17 empowers the State Authority to make regulations under the proposed Enactment.
FINANCIAL IMPLICATIONS
This Bill will involve the Government in extra financial expenditure the amount of which cannot at present be ascertained.