Access to Information Act, 2016
Act 13 of 2017
- Published in Government Gazette Extraordinary no. 3C on 16 February 2017
- Assented to on 10 February 2017
- Commenced on 30 September 2020 by Government Notice of 2020
- [This is the version of this document from 16 February 2017 and includes any amendments published up to 31 October 2021.]
Part I – Preliminary
1. Short title and commencementThis Act may be cited as the Access to Information Act, 2016, and shall come into operation on a date appointed by the Minister by notice published in the Gazette.
2. InterpretationIn this Act, unless the context otherwise require—"Commission" means the Human Rights Commission established under Chapter XI of the Constitution;"Court" means the High Court of Malawi or a Court of a Resident Magistrate;"information" includes an original or copy of any material, record or document which communicates facts, opinion, data or any other matter regardless of its form, characteristics or date of creation, that is in the custody or under the control of any information holder to which this Act applies;"information holder" means a public bods and a relevant private body;"personal information" means information about an identifiable individual including—(a)information relating to the race, colour, sex, language, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition of the individual;(b)information relating to the education, medical, or employment history of the individual or information relating to financial transactions in which the individual has been involved;(c)any identifying number, symbol or other particular assigned to the individual;(d)the address, fingerprints or blood type of the individual;(e)correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; and(i)the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual;[Please note: numbering as in original.]"private body" means a person or organization, not being a public body, who or which carries out any business in relation to public interest, or to rights and freedoms of people;"public body" means the Government, a statutory body, or any other body appointed by the Government to carry out public functions;"record" means any recorded information, in any format, including an electronic format in the possession or control of a public body or relevant private body, whether or not that body created it;"relevant private body" means a body which would otherwise be a private body under this Act, that is—(a)wholly or partially owned or controlled or financed, directly or indirectly, by public funds; or(b)carries out a statutory or public function or service, but only to the extent of such statutory or public function or service; and"third party" in relation to a request for access to information, means any person, other than the person requesting the record.
4. ObjectsThe objects of this Act are to—
5. Access to information
Part II – Oversight mechanism for implementation of access to information
7. Designation of the CommissionThe Commission is hereby designated to oversee the implementation of this Act.
8. Powers of the CommissionThe Commission shall, in performing its oversight function, have the power to—
9. Publication of guidelinesThe Commission shall publish, in forms accessible to the general public, guides whose contents shall include the—
10. Immunity of the CommissionNotwithstanding the provisions of any other law, no civil or criminal proceedings shall lie against any staff of the Commission, or any institution to which this Act applies, or a person acting on their behalf, for the disclosure of any information or for any other act done in good faith pursuant to this Act.
11. Submission of reportsThe Commission shall, as soon as practicable but not more than six months after the expiry of each financial year, submit to the National Assembly a report concerning its activities during that financial year and the report shall include—
Part III – Compliance with access to information obligations
12. Appointment of information officers and establishment of procedures for compliance with this Act
13. Record keeping and maintenance of records
14. Capacily building for staff and provision of requisite infrastructure
Part IV – Disclosure of certain categories of information
15. Disclosure of information
16. Preparation and disclosure of infomation manuals
17. Annual reports
Part V – Procedure for access to information
18. Request for access to information
19. Processing of requests for information
20. Third party notification
21. Partial disclosure of informationWhere an information holder determines that part of the information requested is exempt from disclosure, the information holder shall disclose the remainder of the information which is not exempt from disclosure and shall accordingly inform the person who made the request.
22. Means by which communication is to be provided to an applicantAn information holder, shall, having regard to any specific request by an applicant of the format in which the applicant wants requested information to be given, as well as the circumstances and the costs to provide the information in the manner requested, provide the information requested—
23. Transfer of request for information to relevant institutions
25. Refusal of disclosure of requested informationWhere an information holder refuses to disclose information which has been requested either in whole or in part, the information holder shall, in writing, notify the applicant of the refusal and—
26. Information that cannot be found or does not exist
27. Deemed denial
Part VI – Information exempt from disclosure
28. Limitation on the right of access to information
29. Protection of personal informationAn information holder shall not disclose information which has been requested where the information holder determines that disclosure of the information requested would result in the unreasonable disclosure of personal information about a third party.
30. Protection of information that preserves national security or defenceAn information holder may not disclose information which has been requested where disclosure of the information would reasonably be expected to—
31. Protection of information to preserve the life, health and safety of a personAn information holder may refuse to disclose information that has been requested where disclosure of that information has a real likelihood of endangering the life, health or safety of a the life, health and safety of a person
32. Protection of legally privileged information
33. Protection of information on going academic or recruitment processes
34. Protection of information on Malawi's international relationsAn information holder may refuse to grant access to information which has been requested where the information—
35. Protection of commercial and confidential information of an information holder or a theird partyAn information holder may refuse to disclose information which has been requested if that information contains—
36. Manifestly malicious, frivolous or vexatious requestsAn information holder may refuse to grant a request for information where the information holder considers that the request is manifestly malicious, frivolous or vexatious and states reasons for such consideration.
37. Third parties to be notified of diclosure of exempted informationWhere disclosure of information in respect of which an information holder has claimed an exemption is determined to be of public interest, the information holder shall—
38. Proof of exemption to be shown when disclosure is deniedAn information holder that refuses to grant access information which has been requested shall, on a balance of probabilities, prove that—
Part VII – Internal review of decisions of information holders
39. Right of internal review of decisions of information holders
40. Application for internal review of decisions of information holders
41. Decision on internal review
42. Decision making on internal review not to be delegatedThe decision referred to in section 41 shall be made by the head of the information holder personally and may not be delegated to any other person.
43. Deemed refusal under an internal review processWhere the head of the information holder fails to give a decision on an application for request for an internal review within the time specified in section 40, he shall be deemed to have affirmed the original decision of the information officer which is the subject of the application for internal review.
Part VIII – Review of decisions of information holders
44. Review of decisions of information holders
45. Examination of recordThe Commision may, during investigations relating to any application for a review under this Part, examine any record that is under the custody or control of an information holder.
46. Report of findings
47. Information on determinationsThe Commission shall, within thirty working days from the date the determination is made, inform the applicant and any third party of whether the information holder concerned has taken action to comply with the determinations of the Commission.
48. Provision of access to informationWhere, during or after the consideration of an application for review, the head of the information holder notifies the Commission that access to the information requested has either been given or will be given to an applicant, the head of the information holder shall give the applicant access to the information requested—
49. Application to court for reviewA person may, after proceedings for review under this Part have been concluded, apply to Court for a review of the decision of the Commission.
Part IX – Protection of whistle blowers
50. Protection of whistle blowers
Part X – Offences and penalties
51. Prevention of disclosure of informationAny person who willfully conceals, destroys, mutilates, falsifies or otherwise alters a document or record containing information which has been requested with intent to prevent disclosure of the information, commits an offence and shall, on conviction be liable to a fine of three million Kwacha (K3,000,000) and imprisonment for a term not exceeding three years.
52. False informationAny person who provides false information maliciously intended to injure another person commits an offence and is liable, on conviction, to a fine of five hundred thousand Kwacha (K500,000) and to imprisonment for a term not exceeding two years.
53. Wrongful denial of disclosure of informationWhere an information holder wrongfully denies to disclose information either through negligence, recklessness or otherwise under this Act, whether it is in response to a specific request for information or disclosure of information under Part IV, the officer or institution responsible shall be liable to a fine of three million Kwacha (K3,000,000).
54. Misuse of disclosed informationAny person who, having been granted access to information under this Act, uses that information—
Part XI – Miscellaneous
56. Transitional arrangementsAll information holders shall comply with the provisions of this Act within twelve months of commencement of this Act.
History of this document
30 September 2020
16 February 2017 this version
Published in Government Gazette Extraordinary number 3C
10 February 2017