Key information about FOI Act omitted in letter to Council of Europe

Justice Minister Jonathan Attard sent a letter to the Council of Europe (CoE) Human Rights Commissioner Dunja Mijatovic on the topic of media reform and the Freedom of Information (FOI) Act, but omitted some crucial and very telling information.

When Prime Minister Robert Abela tabled the second report of the government-appointed media committee in parliament on 2 October, Attard updated Mijatovic in an official letter where he reiterated the prime minister’s promise to publish a white paper outlining proposed media reforms.

The letter also responded to the commissioner’s concerns regarding the Daphne Caruana Galizia public inquiry report and the lack of consultation in preparing the draft media legislation.

The Shift has added some of the missing context to two key statements by Attard.

Concerns about the Freedom of Information Act

In response to the Commissioner’s concerns about Malta’s FOI act, Attard states that “the public authorities and departments of Government have always provided replies in line with the act. Moreover, should a request be refused, the applicants have always been provided with a reason for refusal as obliged by article 15 of this Act.”

This statement omits the experience of journalists in Malta, such as the well-documented fact that public bodies regularly deny FOI requests from the media on arbitrary grounds. Responses are often delayed until the last minute and are usually followed by requests for extensions.

When FOI requests are accepted, information is often incomplete. Meanwhile, regular appeals to the Data Commissioner lead to lengthy and taxpayer-funded court battles, undermining timely reporting.

Attard does not mention that revisions to the current FOI act have already been called for by both the current Data Commissioner and the independent board of the Public Inquiry into the murder of Daphne Caruana Galizia, by the Venice Commission and the Special Rapporteur for the Parliamentary Assembly of the Council of Europe (PACE).

He also fails to write that the government has not only ignored the public inquiry board’s recommendation to revise the act to limit arbitrary refusal but also rejected the media committee’s proposal to add a criterion for the conditions which are justifiable in a democratic society under which access to information is granted.

Moreover, in its second report to the government, media committee members noted that the government had ignored its original proposal, imposing an explicit obligation for authorities to provide access to information within a reasonable time.

Another critical bit of context Attard fails to provide is that the government has refused to publish a study his ministry requested three years ago to revamp the act as suggested by the CoE’s anti-corruption body GRECO.

A FOI request by The Shift to see the report was also refused.

Meanwhile, The Shift continues to battle the 40 legal challenges to FOI requests it submitted to government institutions.

The broad consultations that weren’t

Much like his response to an alert from the Council of Europe’s Platform for the Safety of Journalists, Attard once again insisted that the government had held broad public consultations with various stakeholders on its proposed media bills, including the Caruana Galizia family, the Institute of Maltese Journalists, and international organisations.

Attard writes that the legislative proposals “followed a round of broad and inclusive consultations held with key stakeholders, including the Caruana Galizia family and their legal representatives, the Institute of Maltese Journalists (IGM) and members of international organisations”.

However, Attard does not mention the international organisations that said prime minister Robert Abela had not taken up their offer for technical assistance in implementing the public inquiry findings or that Daphne Caruana Galizia’s family have repeatedly denied being consulted.

Attard also claimed that the government-appointed committee of media experts “held wide consultations.”

However, correspondence submitted in the committee’s first report shows that when the committee was invited to participate in a conference to discuss the legal changes being proposed by the government, the committee’s secretary, Frank Mercieca, declined the invitation, writing that “until our recommendations are finalised, it would be prudent not to participate in public discussions”.

More pertinently, in his update to the CoE, Attard also fails to mention that when the media committee finally held its half-day consultative conference, he did not attend or send a representative in his place.

Neither the prime minister nor Attard have indicated when the white paper on media law reforms will be published.