Appeals Tribunal rules in favour of international NGO, extends the right to information to non-residents

The Information and Data Protection Appeals Tribunal has ruled in favour of Access Info, a European organisation that argued all EU citizens have a right to submit information requests, irrespective of residency requirements.

The case dates to August 2019 when the request for data on migration to Malta was submitted by an Italian citizen working at Access Info’s Madrid office. The information requested at the time formed part of a pan-European survey and was sent to all EU member states, as well as Iceland, Liechtenstein, Norway, and Switzerland.

The request was refused by Malta’s Ministry of Home Affairs and National Security on the grounds that the researcher submitting the request was not a Maltese resident as required by Malta’s 2008 Freedom of Information Act which states that an “eligible” person requesting information must be both a citizen of Malta or another EU Member State and have been resident in Malta for five or more years.

Access Info challenged the Ministry’s decision and argued that not only was the decision a violation of the right to freedom of expression, and constituted discrimination, but that the Ministry had erred in its interpretation of “an eligible person”. Access Info argued that they were eligible as citizens of a Member State of the European Union.

However, in October 2019, the Information and Data Commissioner replied, saying that the ministry’s interpretation of an “eligible person” was correct and that the legislator’s intention was unequivocally to restrict such a right to persons who resided in Malta for five years.

The NGO then filed an appeal with the tribunal, asking for a review of the decision.

🇲🇹 🎉 Great victory for #transparency in #Malta!
Court ruled in favour of @Access_Info and non-residents can now submit access to information requests in the country! ✊
👉 Read the full story: https://t.co/SWJ2Dn1hfe

— Access Info Europe (@Access_Info) March 30, 2022

On 24 March, the Information and Data Protection Appeals Tribunal decided in favour of Access Info, and found that while the wording of the legislation leaves scope for interpretation, “the intention of the legislator was never to withhold such information from the EU citizens”.

The Ministry of Home Affairs and National Security will have to process the original 2019 request and consider it on its merits.

Following the decision of the tribunal, Helen Darbishire, Executive Director of Access Info, said “It is positive that the Tribunal reviewed the law of other EU Member States in reaching this decision. We hope that it will do the same when considering other FOI appeals in Malta”.

Meanwhile, Access Info also notes that journalists and civil society continue to have great difficulty obtaining information from government bodies in Malta, with FOI requests often being refused.

“The refusal to process requests on residency grounds is just one example of Malta’s weak transparency culture. This decision by the Tribunal is a positive example of change,” Rachel Hanna, Legal Researcher of Access Info, said.

Several international bodies have recently expressed their concerns on freedom of expression and information in Malta and have offered recommendations to bring law and practice in line with international standards, including The Council of Europe’s Group of States against Corruption (GRECO), the Commissioner for Human Rights of the Council of Europe and the OSCE Representative on Freedom of the Media.