Government launches new attempt to cripple The Shift with FOI appeals

Tista’ taqra dan l-artiklu bil-Malti hawn

The government has launched its latest coordinated campaign attempting to financially cripple The Shift by filing a series of appeal lawsuits challenging, for the second time, decisions by the Data Protection Commissioner and subsequently the Appeals Tribunal in favour of transparency and accountability.

The Shift is still battling, at the Appeals Tribunal, 40 government entities challenging the Commissioner’s decision to grant information requested by The Shift in Freedom of Information requests. Tribunal Chair Anna Mallia has ruled on 12 of those cases, all in favour of the Commissioner and The Shift.

Mallia ruled that since all these entities are financed through public funds, taxpayers have a right to know how their money is being spent.

Yet, each government entity is now appealing a second time, this time in court, resulting in tens of thousands of euros the newsroom needs to raise to defend its right to access the information in the public interest.

A year has passed since the Commissioner ruled in favour of The Shift. Yet the government has deployed more than 40 lawyers against a single journalist (Freedom of Information requests must be filed by individuals, so The Shift’s requests were all filed by The Shift’s Managing Editor Caroline Muscat).

“While we continue to fight the cases at the Appeals Tribunal, each case we win is now being appealed a second time. One by one, they are now all going to court repeating the same arguments already dismissed by both the Data Protection Commissioner and the Appeals Tribunal. It’s a massive waste of taxpayer money to block information that should be given because it concerns the expenditure of public funds,” Muscat said.

Muscat pointed out that while Prime Minister Robert Abela was boasting that he would enact legislation against Strategic Lawsuits Against Public Participation (SLAPPs – financially crippling lawsuits against journalists) the government was mounting precisely such lawsuits itself against an investigative news portal holding it to account.

“This is about wearing us down and draining our resources, so we are unable to do our work in the public interest. It is clear that when Robert Abela talks about supporting the free press, he means only the press that says things of which he approves,” she added.

This battle has been ongoing since December 2020, when The Shift filed a set of Freedom of Information requests for a list of contracts and/or payments, including direct orders, entered into between different government entities as well as ministries with Media Today co-owner Saviour Balzan or any of his private companies since 2013.

The request is focused on the use of public funds and the public interest need for transparency in the operations of the independent media with the government. Contracts have already been revealed that show Saviour Balzan, while acting as editor and columnist at his newspapers and presenting several publicly-funded TV programmes on PBS, was advising ministers on how to deal with the media on controversial projects and scandals.

The government has deployed over 40 lawyers, including Charlon Gouder, and Joe Gerada of Acapulco fame who said our questions amounted to harassment of public officials and filed a request for the court to ban The Shift. While the government is using public funds to block the information, the cost of tens of thousands in court and legal fees for The Shift to fight back are prohibitive.

The appeals court is the last stage where the government can defy the release of information. It is very rare that an FOI request that has been lost twice – first before the Data Protection Commissioner and then before the Appeals Tribunal – is taken to court. The Shift faces the possibility that this will happen with all 40 cases currently being decided by the Tribunal.

In the first of what is expected to be a raft of identical appeals of the Tribunal’s decisions, Wasteserv, through its lawyers Charlon Gouder and Marc Sant, objected to the decision by the Tribunal Chair to uphold the Commissioner’s order for full transparency on tens of thousands of euros in payments from state coffers to Saviour Balzan and his companies. Another four appeals have already been filed in court.

One of our lawyers, Andrew Borg-Cardona, expressed his bemusement as to how the government, through its assorted manifestations, was appealing against the decisions of institutions appointed by the government itself. “At this rate, we’re going to witness the Peppone-esque spectacle of the government suing itself,” he added, referencing Don Camillo’s Little Valley of the Po.

Other lawyers consulted by The Shift said the government’s decision to ignore, twice, a decision for more transparency and accountability by public authorities “goes much beyond its legal and democratic ramifications”.

“These are futile but expensive lawsuits which will pressure The Shift to spend many thousands in court registry fees and to provide for costs in the event the appeals go against them. It is evident that the government is getting annoyed at The Shift’s quality of distinctive investigative journalism and wants to put it in a position where it cannot function any longer,” a legal analyst said.

He stressed, “While the government uses taxpayers’ funds abusively to mount these legal challenges, it knows that the small media organisation doesn’t have the resources to fight back as it depends on crowdfunding.”

The Shift is appealing to the public to support its work by launching a crowdfunding campaign to raise the necessary funds to fight back and defend the public’s right to know.