Information Law Arrives in Malta, But Reform Needed

23 August 2012

By Kevin Aquilina

Aquilina is the Dean of the Faculty of Laws at the University of Malta. This article was first published Aug. 22 in the Times of Malta.

By means of Legal Notice 156 of 2012 published in The Malta Government Gazette of May 18, 2012, the remaining provisions of the Freedom of Information Act 2008, which had not yet been brought into force, will be law from September 1. That means 39 provisions out of 48, the vast majority, will enter into force in a few days’ time. The 2008 enactment will no longer remain a dormant law.

It will also empower the fourth estate to be more vigilant of the government’s actions especially when the government tries to hide embarrassing decisions from the public and the media. The culture of secrecy very much prevalent till today and even after the entry into force of the Freedom of Information Act will, slowly but surely, start to be dismantled.

The procrastination of the public administration to see the Freedom of Information Act coming into force is evidenced by the fact that this law was enacted on December 19, 2008 and has taken roughly three years and eight months to see the light of day. Between December 19, 2008 and August 31, 2012 it was nothing more and nothing less than a dead letter for the citizen as the latter could not seek, let alone obtain as of right, information under this enactment.

Now that the law will soon come into force, one hopes it will usher into Maltese politics an era of openness which renders the public administration more accountable and transparent in its workings. The law needs to be exploited to the full, especially by the media, so that it will not remain a dead letter.

Although one should celebrate September 1, 2012 as Freedom Of Information Day, this does not mean that one should be content with this law. This is because the law sets up various hurdles to make it difficult and, at certain times impossible, for the citizens and the media to arrive at the truth. In the meantime, the public administration’s workings will continue to be shrouded in secrecy even in those cases where secrecy cannot be necessarily justified. Let me refer to three restrictive provisions of the law.

According to article 5(4), no Maltese citizen is entitled to apply to see documents held by the Electoral Commission, the Employment Commission, the Public Service Commission, the Office of the Attorney General, the National Audit Office, the Security Service, the Ombudsman and the Broadcasting Authority when the latter authority is exercising its constitutional function. I see no reason why the records of the Electoral Commission should not be available to public view when the political parties have a right to see all documents held by the Electoral Office in terms of article 10(3) of the General Elections Act. It seems that there are some stakeholders which are more equal than others.

Questions About Eligibility

According to article 3, it is only an ‘eligible person’ who has a right of access to documents held by the public administration. In terms of article 2, an eligible person is a person resident in Malta for a period of five years. Such resident can be a Maltese citizen or an EU citizen. But the five-year restriction is another unwanted hurdle especially for EU citizens who might not necessarily be resident in Malta. Take the case of a BBC reporter who is writing a story on Malta and needs government-held information. The public administration will refuse to disclose the information simply because the English journalist has not resided for the last five years in Malta. The only way for the English journalist to get hold of the required information is by making arrangements with a Maltese or other EU citizen who has resided in Malta for the last five years.

Moreover, it is not clear in the law how these five years are counted. Is it five years before the freedom of information request is made? Have the five years to be uninterrupted? What happens if you go abroad for a week? Would that mean you must have resided in Malta for five years and one week to be considered an eligible person? How do you prove that you have been resident in Malta for the last five years? Do you have to subscribe to an oath? Is an affidavit required? Do you need witnesses to testify that during the last five years you have resided in Malta? Or does the public administration simply presume that this is so if you happen to be a Maltese or an EU citizen?

The Prime Minister is empowered to overrule the Information and Data Protection Commissioner. If the Commissioner issues a decision or enforcement notice of a decision to the effect that a document should be made available to an eligible person, the Prime Minister can annul the Commissioner’s decision. This is wrong because if the public administration disagrees with the Commissioner’s decision or enforcement notice, the public administration should have a right of appeal before the Information and Data Protection Appeals Tribunal. The Prime Minister should not annul the Commissioner’s decision as the Prime Minister is not an independent and impartial arbiter. He might want to conceal certain damaging information from the public administration which should be disclosed in the public interest and may give irrelevant or general reasons not to divulge that information.

On the other hand, the tribunal is independent and impartial and it, not the Prime Minister, should be vested with determining whether the document should or should not be released.

Powers like these are very much arbitrary and undesirable in a democratic society and should always be reviewable by an independent and impartial tribunal established by law. This is however not the case under the Freedom of Information Act where all of a sudden the Commissioner loses all his independence and becomes subservient to the Prime Minister.

Finally, the Freedom of Information Act does not meet the high standards of the Council of Europe Convention on Access to Official Documents which is by far more data-seeker friendly.

Our law, on the contrary, is restrictive and tries to protect the public administration, as far as possible, from revealing information it holds. That is why it needs to be revised, once it does not establish an adequately transparent regime of data access in a democratic society.

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