KUALA LUMPUR (Aug 28): Malaysia's proposed federal Freedom of Information (FOI) Bill promises the public an avenue to access records held by the state. Yet, the draft preserves existing secrecy laws, narrows who may apply and sends appeals to an Ombudsman — an independent official who investigates complaints and helps people resolve disputes with governments, businesses or organisations — that does not yet exist.

Much of the bill regulates the mechanics of applying for information without mandating that government-held information should be open. That distinction sits at the heart of the debate over the FOI Bill 2026.

The Centre for Law and Democracy (CLD), which runs the leading global rating of right-to-information laws, scored the bill 47 out of 150 points on Aug 12 and ranked Malaysia 137th out of 142 countries with such laws. It described the draft as an extremely weak legislative effort, with Malaysia's score placing it close to the bottom of the global ranking.

Former Subang MP Wong Chen, who was an early advocate of federal FOI legislation, however, says the current draft strengthens official secrecy instead. The question is whether the bill creates a meaningful right to information or merely a procedure for asking for it.

Wong is among five MPs who supported the introduction of the law but now want the draft substantially revised. The others are Sungai Siput MP Kesavan Subramaniam, Petaling Jaya MP Lee Chean Chung, Pasir Gudang MP Hassan Abdul Karim and Wangsa Maju MP Zahir Hassan.

The bill was tabled for its first reading in the Dewan Rakyat on July 13 but was referred to a parliamentary special select committee (PSSC) the following day after scrutiny from civil society and lawmakers.

The 12-member committee, chaired by Minister in the Prime Minister's Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said, has three months to examine the bill and recommend changes, although it may extend the review if necessary.

The MPs point to the FOI enactments in Selangor and Penang as imperfect but stronger starting points for the federal law.

"What they should do is look at the freedom of information legislation already implemented in Selangor and Penang. Both should be the foundation of the bill. The bare minimum is to use their template as a starting point and improve on it."

A joint statement issued on Aug 17 by the Center to Combat Corruption and Cronyism (C4 Center), Centre for Independent Journalism (CIJ) and British international human rights organisation Article 19, together with more than 30 civil society organisations, urged the committee to address the bill’s CLD rating and ensure it aligns with international human rights standards.

The joint statement estimates that about 165 federal laws currently in force contain provisions requiring information to be kept secret. That amounts to roughly a quarter of Malaysia’s substantive federal laws.

Malaysian Bar president Anand Raj says passing the bill in its present form "would be a disservice to the country", arguing that Malaysia needs legislation that recognises access to information as a constitutional right, protects whistleblowers and strengthens investigative journalism.

Anand also flags the absence of a mandatory duty of proactive disclosure in Clause 21. Such a duty would require public authorities to publish and make government information openly available rather than wait for individual requests.

Without it, he says, the combination of broad exemptions and preserved secrecy laws leaves very little information readily available to the public.

The CLD recommends that Clauses 22 and 6(2) be removed so the law recognises access to information held by public authorities as a fundamental right.

Clause 6(2) places strict procedural restrictions on who can request government-held information and for what reasons, while Clause 22 states that nothing in the Act shall be construed as a fundamental liberty under Part II of the Federal Constitution.

Essentially, Clause 22 acts as a legal firewall, explicitly preventing the right to information from becoming a protected constitutional liberty under Malaysian law.

Anand describes the provision as "regressive", explaining that it purports to dial back advances in freedom of information law and rights in Malaysia. He also argues that this sits uneasily with the Federal Court's decision in Sivarasa Rasiah v Badan Peguam Malaysia, which the Malaysian Bar cites as recognising a constitutional right to information under Article 10.

Simply put, the Federal Court ruled that freedom of speech inherently includes the right to receive information.

C4 Center policy and legal research officer Prishanth Linggaraj says the provision also raises concerns about the separation of powers because it seeks to direct how the courts interpret constitutional rights.

"Now the government is seeking to dictate how the supreme law of the land ought to be interpreted. If the government can dictate what can and cannot be considered a fundamental liberty, all of our rights could be under threat," he says.

Even if the right is recognised, the range of information available under the bill remains limited.

Clause 2(3) preserves information protected from disclosure under the Official Secrets Act 1972 (OSA) and other written laws. For Wong, that safeguard is made worse by the absence of an objective test to determine whether withholding a particular record is justified.

The OSA is only one part of the problem, says Prishanth, who also points to blanket secrecy provisions in laws including the National Sports Institute Act 2011, the Solid Waste and Public Cleansing Management Corporation Act 2007 and the Feed Act 2009.

He says these often operate as broad confidentiality clauses without requiring an assessment of the harm that disclosure may cause. By allowing these provisions to take precedence, the FOI Bill excludes large categories of government-held information before an application is even considered.

Meanwhile, Clause 12 sets out broad exemptions that allow public authorities to refuse requests for government-held information, including in areas involving government procurement, concessions and public-private partnerships.

Records concerning a contractor's performance, the pricing of a concession or the use of public funds may touch on commercial interests or third-party information, even when disclosure is needed to examine possible waste or abuse.

Other countries also protect genuinely sensitive commercial information, but Prishanth says these exemptions generally come with safeguards. For example, under Section 6C of Australia's Freedom of Information Act 1982, agencies entering certain Commonwealth contracts must be able to obtain contractor-held documents relating to the delivery of public services when they are sought through an FOI request.

The Malaysian draft, however, imposes no comparable requirement, leaving a gap in public scrutiny when government services are delivered through private contractors.

"Without anything of this nature, the current FOI Bill would fail to enable meaningful public oversight of public-private contractual relationships," Prishanth says.

The bill lacks a comprehensive harm test and a public interest override. A harm test requires a public authority to show that disclosure would cause real, substantial and demonstrable harm, while a public interest override requires information to be released when the public value of disclosure outweighs that harm.

Anand says both considerations should be weighed before any request is refused, with written reasons given in every case. Without these safeguards, a document's classification could become the deciding factor.

The CLD says many exemptions allow secrecy for reasons that are not recognised internationally. It recommends setting common standards for all secrecy provisions so that, where other laws conflict with those standards, the stricter standards would prevail.

C4 wants the PSSC to set out clear factors favouring disclosure, including whether the information would inform debate on a matter of public importance or strengthen scrutiny of public expenditure. It also wants the law to make clear that embarrassment to a public body or the seniority of a document's author should have no bearing on the decision.

The bill also restricts who may apply for information and the purposes for which it may be used.

Access is limited to Malaysian citizens aged 18 and above, who must verify their identity and state the purpose of the request.

Under Clause 6, anyone whose request falls outside the specified purposes must show a "proper and tangible interest" and demonstrate that they have been "prejudiced" by a public authority.

Anand says neither term is defined, leaving public officers with wide discretion to decide whether an applicant has sufficient standing.

The CLD reserves some of its sharpest language for this part of the Bill, assigning it a score of 13% for requesting procedures, an area that is typically easy to score higher. The CLD calls the purpose restriction a "truly massive limitation" that is unknown in other right-to-information laws.

"Only one other country does this poorly, namely tiny Palau," it says.

The restrictions continue even after an applicant obtains the records, says Wong.

"If you manage to get access, there is also a restriction on what you can do with the information. For the media, you may get the document on a certain ground, say public interest, but you cannot publish it,” he says.

The purpose requirement carries greater weight when read together with the Bill's offences. Critics say an applicant could face criminal liability if information lawfully obtained is later used for a purpose different from the one stated in the original request.

That creates a practical problem for journalists, researchers and anti-corruption groups because records often reveal issues that cannot be anticipated when an application is filed.

Anand says the offences under Clause 18, which cover misuse of information, supplying false information and obstructing disclosure, are excessive, carrying a fine of up to RM100,000, imprisonment of up to five years or both.

The prospect of such penalties, he says, risks deterring legitimate requests under a law that is supposed to encourage openness.

The appeals framework is the bill's strongest category in the CLD assessment at 61%. That rating sits awkwardly beside the fact that the external reviewer it depends on has not been created.

An unsuccessful applicant may first seek an internal review by the head of the public authority, followed by an external review by an Ombudsman.

An internal review can correct an individual officer's mistake, Prishanth says, but it cannot be the only functioning avenue because the institution that rejects the request remains responsible for reconsidering it.

Yet the Ombudsman Bill, which is meant to establish the external review body referred to in Clauses 13 to 17, has not been tabled. The explanatory statement to the FOI Bill acknowledges that the relevant provisions cannot take effect until the accompanying law exists.

"Unless the Ombudsman Bill comes out, there is no way you can pass this law on its own. It is not complete,” says Wong, adding that the five MPs want both Bills considered together rather than asking lawmakers to assess an appeals system without seeing the law that governs it.

C4 also favours a specialised Information Commission with the power to make binding decisions, inspect records, compel disclosure, monitor implementation and train civil servants and the public.

"The name given to this independent external party does not matter as much as the structure and operational autonomy granted to it," Prishanth says.

An Ombudsman can perform those functions, he adds, but only if it has sufficient legal authority, funding and staff. Until such a body exists, judicial review remains the only external route beyond an agency's internal process.

"This creates a risk of agencies becoming black boxes, their decisions immune to any external oversight beyond judicial review, which is often inaccessible to most laypersons because of its high cost and lengthy timelines," he says.