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The Maltese Freedom of Information Act, 2008

Overall, the Freedom of Information Act, Chapter 496 of the Laws of Malta, is comprehensive and covers most issues adequately. I fully endorse the proposal that the Data Protection Commissioner should be tasked with the duties of a Freedom of Information Commissioner. In this way, the same person can balance out both aspects of data protection and freedom of information. Indeed, although these two laws are considered opposed to each other yet they are very much related and complimentary. Hence having one Commissioner to oversee both data protection and access to information will ensure that there are no conflicting interpretations of both laws. Even, at appeals stage, there will be only one Appeals Tribunal – the Information and Data Protection Appeals Tribunal - to ensure uniformity and consistency in decision-making.

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The Freedom of Information Act 2008 is a milestone in so far as citizens’ rights are concerned: it enables the public, directly or indirectly (through investigative journalists), to disclose that information which the public authorities have not rendered public. In this respect, a freedom of information law brings with it more transparency on the working of the public administration rendering it more accountable to the public. Of course, in more advanced democracies than ours, there are other complementary laws which further ensure transparency, openness and accountability in government. Such is the case with a law on public interest disclosure, otherwise colloquially known as a Whistleblower’s act, and open meetings laws which allow the public to attend meetings of various government entities thereby ensuring that these proceedings are conducted in public. Our Administrative Justice Act 2007 is a move in the right direction at least in so far as administrative tribunals are concerned. But there should be more instances where meetings of certain public corporations and certain government boards are held in public. But these are still awaited developments which we yearn for in our law.

 

On the whole the Freedom of Information Act 2008 is a good law. Naturally, as with other laws, it is not a perfect law for there are many ways how to improve it. But it is a legislative landmark in so far as citizens’ rights are concerned: it is the first law of its nature, a law which deals not with making available to the public information on one sector of public administration, be it local government or the environment, but a comprehensive law which deals with information held by the public administration in its entirety even if nonetheless with notable exceptions as well. Indeed, this law has been the subject of political manifestos for surely the last two decades but it was only in 2008 that it was enacted. Even in the United Kingdom, their Freedom of Information Act is a relatively new enactment: it dates back only to the year 2000 and came into force as recent as 2005.

 

The approach adopted by our law is that it tends to protect and err more on the side of the public administration rather than that of the citizen. For instance, article 5(4) of the Freedom of Information Act exempts, amongst others, the Electoral Commission, the Employment Commission, the Public Service Commission and the Broadcasting Authority (in so far as the latter’s constitutional functions are concerned), from the provisions of the Freedom of Information Act. Whilst I understand and appreciate that there might be certain confidential data held by these constitutional entities, not all the documents held by them are necessarily of a secret or confidential nature. If, for instance, a historian is writing a book on the workings of any of these entities, why should s/he be denied access to information held by such entities which, though not yet public information, is neither confidential nor secret? In addition, there are cases where the information might be needed to be treated as confidential or secret for a short period of time but once this period elapses it can be easily unclassified and made public. Furthermore, whilst in the case of the non-exempt entities there is a public interest test which decides whether the document in question can or cannot be divulged, the same cannot be said with regard to the entities mentioned in article 5(4). I would have preferred an amendment being made to the Constitution of Malta in terms of which it is stated that in so far as information held by the Commissions and Authority established by the Constitution is concerned, that information may be released subject to a public interest test, as is after all the situation with documents held by government, on the lines of any law which might be in force from time to time. This absolute prohibition on disclosure is anachronistic and amounts to bad governance. For instance, article 29(2) empowers the Prime Minister, on an annual basis, to authorise the disclosure of Cabinet documents that are 30 years old or more: no similar provision exists however with regard to exempt entities to disclose for instance their own documents, at least those which are no longer secret or confidential. Finally, whilst article 4 states that the Freedom of Information Act does not prevent a public authority from publishing or granting access to documents, including exempt documents, this provision does not apply to the exempt entities as, in terms of article 5(4), ‘this Act does not apply to documents’ held by exempt authorities.

 

One hopes that the Act comes into force as soon as possible and that it does not take an eternity for it to come into force as was the case of the United Kingdom where the law took five years since its enactment to become operative. Will our Government emulate its British counterpart in continuing to deny its citizens the right to access to official documents? That still has to be seen.

 

An applicant for information has to be an ‘eligible person’. This expression is defined as a citizen of Malta or an EU citizen or a citizen of a third country with which the EU has an agreement to treat such third country citizen as an EU citizen. But the provision does not stop there: it requires such person to have resided in Malta for five years. The question which arises here is from when do you count these 5 years? From one’s birth? I might have been born in Malta, am a Maltese citizen, lived in Malta till the age of 15, went abroad whilst still retaining my Maltese citizenship and returned back today at the age of 30 years. Am I an eligible person? The provision is not clear and might give rise to different interpretations. One hopes that a liberal interpretation is adopted which is more consonant with the principles of transparency, accountability and good governance.

 

Otherwise, the Freedom of Information Act 2008 can be criticised more on its lacunae rather than in its provisions.

 

For instance, a provision should have been included at the very beginning of the law setting out the objectives of the law to the effect that the constitutionally enshrined right to information presupposes free access to the sources of information and that, in the exercise of this right, free access to the data and documents produced or in the possession of the public authority, in accordance with the principles of transparency and accountability, is the right of all citizens in the terms envisaged in the Act. Again, the Act may have been said to give effect to the fundamental right to information, which will contribute to strengthening democracy, improving governance, increasing public participation, promoting transparency and accountability and reducing corruption.

 

The law in article 5(2) does not apply to commercial information, that is, to documents held by a commercial partnership in which the Government or another public authority has a controlling interest, in so far as the documents in question relate to the commercial activities of the commercial partnership. Commercial information should not be automatically excluded from the application of the Act but there should be the possibility of establishing whether a substantial adverse effect on the commercial partnership in question would ensue if the document is released. Such partnerships are still owned by the public and their obligation to be a good employer and to exhibit a sense of corporate social responsibility and good governance justifies their being held accountable to the public and therefore falling within the remit of the law even if subject to the public interest test.

 

The Act does not apply, in terms of article 5(3)(b), to documents which contain information the disclosure of which is prohibited by any other law. This is a blanket provision, bearing in mind the several secrecy and confidentiality provisions that exist in Maltese law, some of which date to colonial times. By framing this provision is such a general way, it is possible through other laws to narrow down, not to say exclude, the purport of the Act’s provisions. These other laws, which are numerous, can indeed nullify the Act. Hence an exercise should be carried out to identify these various laws and decide which are to be excluded from the purview of the Act and which not. An Appendix to the Act in the form of a Table should state which are these laws which are to be excluded from the operation of the Act.

 

As to article 12, the manner in which access may be granted should also include the possibility of obtaining copies of recordings of sounds or visual images on an audio cassette or a video cassette or a digital versatile disk or compact disk and, in the case of data held on computer, through a floppy disk, compact disk, digital versatile disk, and other electronic equipment which the citizen may provide so that in this way s/he would not need to incur hefty amounts of money for photocopying, this apart from being an environmental friendly measure which cuts down on paper use.

A provision should be inserted in the Act whereby information classified as exempt should cease to be so considered on the expiry of thirty years calculated from the end of the calendar year in which the information came into existence and, on the expiry of that period, any person may seek access to that information and, for the purposes of the Act, will no longer continue to be considered as an exempt information. The public authority will thus be bound to give access thereto in terms of the Act. Otherwise Government might wish to apply a procedure similar to that set out in article 10(2) of the National Archives Act whereby the Commissioner examines these records and determines whether they should be declassified after the expiration of thirty years and made available for public inspection.

 

One still has to await to see how the law will be applied in practice, whether there will be a cultural change in the mentality of the public authority which is accustomed at not divulging sensitive information, whether citizens - especially the press - will make use of this new weapon in their arsenal of reporting upon the workings of the public administration, whether the Commissioner and the Tribunal will adopt a liberal or a rigid approach in interpreting and applying the law’s provisions, whether the instruments mentioned in the law (regulations, Codes, etc.) are made in due time and in sufficient detail, whether Information Officers are appointed by the public authority and well trained to service freedom of information application requests, and overall, whether the public feels that the law has contributed to a more democratic society based on the principles of accountability, transparency, good governance and openness. It will only be the test of time which will tell us whether this law was successful or not.

 

 

 

 

 

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