Don’t ask questions if you don’t want lawsuits, PA lawyer tells The Shift

A lawyer for the Planning Authority suggested in court on Wednesday that if The Shift did not want to battle 40 lawsuits from the government, it should not have filed 40 Freedom of Information requests.

The comment comes in response The Shift’s lawyers’ remarks about us having to fight 40 identical appeals filed by 40 different public entities against our FOI requests, and against the rulings of the Information and Data Protection Commissioner as well as the Appeals Tribunal.

The lawyer for the Planning Authority, Melanie Sammut, effectively confirmed, if not in so many words, the argument made by international press freedom organisations as well as the OSCE and the Council of Europe that the government’s stream of cases against The Shift was intended to create a “chilling effect” among journalists.

The 40 cases, going through two rounds of appeals after government-appointed bodies already ruled the information should be made public, send a message to those filing Freedom of Information requests that they will face a battle with the government that risks crippling the newsroom financially.

“It was really quite incredible to hear the Planning Authority’s lawyer argue in court today that if we did not want to face 40 court cases, we should not have filed 40 Freedom of Information requests. So it’s our fault for asking questions and demanding accountability,” said The Shift’s Managing Editor Caroline Muscat.

Eleven international press freedom organisations have called on the government to drop the “vexatious” cases that “pose a serious threat to the country’s already worrying freedom of information and press freedom climate.”

“We call for these cases to be immediately dropped and for the government of Malta to fully comply with its FOI obligations going forward,” the organisations added.

Rallying behind The Shift’s fight for transparency, the organisations explained how “these vexatious lawsuits seem intended not to win, but to exhaust The Shift’s time and resources, and divert the outlet’s ability to pursue public interest reporting, while also sending a clear signal to others that the Maltese government will fight media attempts to obtain information under the FOI law.

“Our organisations condemn these legal proceedings aimed at weakening Malta’s independent press and call for them to be immediately dropped. The Maltese government must instead comply with its FOI obligations and take immediate steps to improve freedom of information and press freedom in the country.”

All the appeals are filed against Caroline Muscat as an individual. The costs of fighting these appeals, fronted by some 80 lawyers apart from the State Advocate’s office paid by taxpayers to defend the government against releasing information in the public interest, amount to half the newsroom’s operational budget for a year.

Yet the Planning Authority’s lawyer argued that “this burden” is no excuse.

The arguments made by the Planning Authority’s lawyer even questioned the motivation of the Information and Data Protection Commissioner when ruling in favour of transparency.

Sammut further questioned the process at the Appeals Tribunal, chaired by government-appointed lawyer Anna Mallia, that confirmed the Commissioner’s decision.

Sammut insisted, as the lawyers of the 40 government entities are insisting alongside her, that the document requested by The Shift – a list of contracts and payments made to Media Today owner Saviour Balzan and his private companies – “does not exist”.

She argued it was time-consuming to put together a list of the contracts handed out to Balzan and his companies.

The Information and Data Commissioner argued that the information was in fact available and The Shift had a right to access the contracts in the public interest. The Appeals Tribunal confirmed the decision.

It is rare for a Freedom of Information request approved by the Data Commissioner and the Appeals Tribunal to be appealed for a second time in Court.

The Commissioner ruled 40 FOI requests in favour of The Shift. The government has appealed all decisions before the Appeals Tribunal.

As The Shift wins one appeal after another at Tribunal stage – 27 so far – different government entities are proceeding to a second appeal in court.