Freedom of Information requests almost double in a single year

Freedom of information requests almost doubled between 2020 and 2021, according to information provided to The Shift by the office of the Information and Data Protection Commissioner (IDPC).

The most striking increase, however, is in the number of appeals before the Appeals Tribunal. In 2020, only two appeals (out of 56 FOI requests) were lodged.

In 2021, this number rose to a staggering 38 (out of 98 FOI requests), very likely reflecting the shift in attitude by government authorities towards divulging information they want to shield from public scrutiny.

In 2020, just around four per cent of the FOI requests were appealed. This increased to approximately 40 per cent of the total number of FOI requests appealed in 2021.

Of those 98 requests, 84 were concluded, six were deemed inadmissible, and one was withdrawn. In 52 cases, the IDPC ruled in favour of the complainant, while in 31 FOI requests, the Commissioner ruled in favour of the public authority.

The data was made available to The Shift following questions sent to the IDPC in connection with the annual IDPC’s annual reports.

Art. 21(5) of the Freedom of Information Act (Cap. 496) states that the Commissioner must prepare and submit to the minister an annual report, which the minister must then table in parliament at the first available opportunity.

According to parliamentary records, the only annual IDPC report tabled in the House of Representatives was that of 2018, which was tabled on 10 March 2020. The 2019 annual report can be found on the IDPC’s website.

In reply to questions by The Shift, Information and Data Protection Commissioner Ian Deguara confirmed that the annual reports for 2020 and 2021 are currently being finalised and due to be published on the IDPC website early next year.

In the meantime, the Justice Ministry has refused to answer questions about a study it  commissioned almost two years ago to revise the Freedom of Information Act as suggested by the Council of Europe’s anti-corruption body GRECO, which forced The Shift to file an FOI request for access to the report.

At the beginning of 2021, a call for tenders by the Justice Ministry was awarded to a law firm (Aequitas Legal) to produce a study and a draft Bill for the review of the FOI Act.

According to the request made by the Justice Ministry, the law firm was asked to compare Malta’s FOI law to that of other EU member states, review the effectiveness of the Maltese law and review the proposed amendments to the law put forward by the government.

The study was presented to Justice Minister Jonathan Attard months ago but he has not taken any action to move forward with any of the changes that international institutions have recommended.

The Freedom of Information Act was approved by Parliament in 2008 and came into effect in stages, beginning in July 2009, with the last provisions coming into effect in September 2012.

Over the years, several international institutions, including the Council of Europe and the European Commission, noted how the current FOI Act allows for the arbitrary refusal by public authorities of requests for access to information held by them. The board of the public inquiry into the assassination of Daphne Caruana Galizia also highlighted this issue (pages 432-433).

Similarly, in an interview with The Times of Malta, the Data Protection Commissioner acknowledged that the current freedom of information law has several exemptions that don’t pass the public interest test, adding that his office had already made its submissions on the necessary reforms to the law.

International press freedom organisations have also underscored how the current legislation is regularly being abused to obstruct requests and obfuscate the disclosure of public information.

More recently, a study assessing data in 109 countries found that Malta has the lowest score out of 21 European countries surveyed, with 36.5 out of 100. The score is based on four key data areas: governance, capability, availability, and the use and impact of data for the public good.

And yet, nothing has been done so far. The government has been procrastinating for more than a year, and proposals have yet to be presented to parliament.

Instead, the government has embarked upon 40 appeals against Freedom of Information requests by The Shift, refusing to provide information that the Data Protection Commissioner and the Appeals Tribunal have said should be made public.

The Commissioner ruled 40 FOI requests in favour of The Shift. The government has appealed all decisions before the Appeals Tribunal. But as The Shift wins one appeal after another at the Tribunal stage – 27 so far – different government entities are proceeding to file a second challenge in the Court of Appeal.

A lawyer for the Planning Authority best summed up the authorities’ prevailing attitude towards divulging information when she suggested in court that if The Shift did not want to battle 40 lawsuits from the government, it should not have filed 40 Freedom of Information requests.