UNESCO joins growing list of international organisations calling on Malta to reform its FOI Act

UNESCO is the latest to join calls for for Malta to reform its Freedom of Information (FOI) Act to ensure the right to access to information of public interest held by public authorities and assess the Broadcasting Authority’s appointment system to ensure its independence.

The recommendation is part of the country report for Malta of the Working Group on the Universal Periodic Review (UPR) at the United Nations Human Rights Council 45th Session (UN HRC45), which thoroughly analyses Malta’s human rights situation.

UNESCO’s recommendation is the latest in a string of international calls on Malta to reform its FOI law, all of which the government has ignored.

Malta’s current FOI legislation has long been considered deficient, but the issue was recently brought to the fore when government entities initiated over 40 legal challenges against The Shift’s FOI requests.

The appeals relate to requests filed by The Shift in 2021, which asked government ministries and entities to make available copies of consultancy contracts and payments made to Saviour Balzan and his media companies, Media Today and Business 2 Business. The request came following reports that he acted as a PR consultant and spin doctor to the government while posing as an ‘independent’ journalist and media owner.

Most government bodies replied to The Shift that they had no such information, but the Data Protection Commissioner’s investigation found this was untrue.

After the Commissioner’s decision confirmed that the various ministries and government departments must provide this information to The Shift, over 40 entities filed near-identical appeals, challenging the Commissioner’s decision.

After a protracted two-year battle, The Shift won all 40 cases at the Information and Data Protection Commissioner (IDPC) Appeals Tribunal, and 18 cases in court, but ministries and government agencies have yet to provide the information.

The FOI Act was approved by parliament in 2008 and came into effect in stages, beginning in July 2009. The last provisions came into effect in September 2012.

Nevertheless, public bodies frequently deny FOI requests from the media on arbitrary grounds. The process is so protracted that timely reporting and journalists’ ability to do their work are constantly undermined.

UNESCO’s recommendation can be added to the call for revisions to the current FOI act by the current data commissioner and the independent board of the public inquiry into the murder of Daphne Caruana Galizia, the Venice Commission and the Special Rapporteur for the Parliamentary Assembly of the Council of Europe (PACE).

A 2022 report by the OSCE (Organisation for Security and Co-operation in Europe) analysing the media bill put forward by the Maltese government recommended strengthening the right of access to information at a constitutional level by “expressly” incorporating basic international and regional principles to exercise this right effectively.

Meanwhile, the government has refused to publish a study that the justice ministry requested four years ago to revamp the act as suggested by the Council of Europe’s (CoE) anti-corruption body GRECO. An FOI request by The Shift to see the report was also refused.

When, in September 2023, CoE Human Rights Commissioner Dunja Mijatovic raised concerns about Malta’s FOI Act, Justice Minister Jonathan Attard wrote back, saying, “The public authorities and departments of government have always provided replies in line with the Act”.

However, Malta’s justice minister purposefully omitted the context of just how deficient and broad the terms of the Act were and how local and international organisations requesting a revision in line with international standards have been ignored.

The Maltese authorities’ inaction was also noted in the European Commission’s latest Rule of Law report describing how “the review of the Freedom of Information Act remains pending, and media houses and citizens continue to face obstacles when requesting access to information held by public authorities.”