A Freedom of Information Act for Malta

An important law which has not yet made its way onto the Statute Book in Malta is that providing for freedom of information. Noticing the absence of such legislation the Ombudsman, in his latest annual report for the year 2004, advocated the introduction of a new law on freedom of information. This is not, however, the first proposal made towards the enactment of a Freedom of Information Act. The electoral manifestos of our political parties are replete with such a suggestion. More concretely, a Freedom of Information Act was drafted in the 1990s, under the aegis of the late Joseph Fenech, when Minister of Justice. Indeed, a committee was appointed specifically to draft a Freedom of Information Act for Malta. But for some reason or other, the draft bill was never published as a Bill nor was it enacted into law.

The Prime Minister has also stated in the House of Representatives, when replying to a parliamentary question by Leo Brincat (Lab.) last July 11 that he had already instructed the Principal Permanent Secretary to commence the process to establish the viability of enacting a Freedom Of Information Act.

This notwithstanding other more partial successful attempts have been made in the past to release government-held information to the public. Such was the case with the enactment of the first National Archives Act in 1990. This piece of legislation has been considerably improved in its current version, the National Archives Act, 2005.

The Press Act was also amended in 1996 to enable a limited sector of society - journalists - to have access to government-held information through a provision which explicitly states: "The government shall establish procedures to give representatives of the press the information which helps them fulfil their public tasks". Nonetheless, no such procedures, if extant, have been published.

Other legislation regulating freedom of information in Malta has had to be made because of the requirements of European Union accession. Such is the case with the Freedom of Access to Information to the Environment Regulations, 2001 - now repealed by a fresh set of regulations bearing the same title made in 2005 - and the Availability of Consumer Information on Fuel Economy and Carbon Dioxide Emissions in Respect of the Marketing of New Passenger Cars Regulations, 2002, just to mention two instances.

Indeed, it is vital in this day and age of information technology to make as much government-held information as possible available to the public so that all the decisions taken are backed by sound, updated and detailed information. This information will assist various public and private policy-makers to adopt the best possible decisions in the given circumstances.

A Freedom Of Information Act is intended to give effect to the transfer of information from the government to the public. Since many countries have adopted freedom of information legislation, it is not difficult for the Maltese legislator to adopt as a model one of these related foreign laws.

I can here cite the Swedish Freedom of the Press Act 1949, the American Freedom of Information Act 1966, the French law of 1978, the Australian Freedom of Information Act 1982, the New Zealand Official Information Act 1982, the Canadian Access to Information Act 1985, the Irish Freedom of Information Act 1997 and the UK Freedom of Information Act, 2000 as good models which could be referred to in drafting such a law. Naturally, the new provisions have to be adapted to the Maltese context which follows a Westminster constitutional and administrative structure, bearing also in mind the Committee of Ministers of the Council of Europe's Recommendations to Member States No. R(81)19 On Access To Information Held By Public Authorities, Recommendation R(2002)2 On Access to Official Documents and the Declaration On The Freedom Of Expression And Information.

Information could be defined as including any written or printed matter, any map, plan or photograph and any article or thing that has been so treated in relation to any sounds or visual images that those sounds or visual images are capable, with or without the aid of some other device, of being reproduced from the article, and includes a copy of any such matter, map, plan, photograph or article.

In addition, the proposed law should apply to all government ministries, divisions, departments and units as well as to bodies corporate established by law (referred to here as "government entities") and to all information held by them except with regard to exempt information. This is information which would deal with national security and defence; the conduct of Malta's international relations; Cabinet matters and internal government working documents; law enforcement; information covered by secrecy provisions in other enactments; the monetary affairs of Malta; confidential commercial information in the possession of government entities (where such information is known only in the particular business in which it is used) and personal privacy and privileged information, and where all the above mentioned exempt information would cause any harm or prejudice to the various interests concerned by its disclosure. If no such harm or prejudice would be met then the information in question could be freely disclosed.

All other information which is not exempt as already mentioned should be available for public inspection provided that, with regard to commercial information and personal privacy information, the information officer would have to consult with the third party affected before deciding to grant access. If the information officer decides to grant access, the third party would have a right to appeal to the Information Commissioner.

Copies of information should be made available upon payment of a reasonable fee.

Each government entity should have an information officer who would be entrusted with the administration of the proposed Freedom of Information Act. Any person wishing to obtain information should apply in the prescribed form to such officer.

The information should be provided, where permissible, say not later than one month from the date of application. Where information contains exempt information, references to that exempt information ought to be deleted. Where no access is granted or where certain parts are deleted, the information officer should give reasons why the request is not being complied with or why it is being partially entertained. The relevant provisions of the law should be quoted together with these reasons.

An Information Commissioner should be appointed to hear and determine any appeals which may be lodged before him/her from decisions of information officers. The commissioner should be a person who is qualified to hold judicial office. S/he should be authorised to inspect all documents, including exempt information.

Where an information officer does not communicate his/her decision to an applicant within the prescribed period, the applicant ought to have a right to appeal before the commissioner after the expiration of the period set and the commissioner should have the power to summon the information officer to give his/her views before deciding the application. Naturally, the commissioner should also hear the applicant.

A number of freedom of information laws establish some sort of administrative machinery to review decisions of the Executive when access to government-held information is not granted by government entities. For instance, in France, it is the Conseil d'etat which carries out such function. In Canada it is the Information Commissioner (whose office is established under section 54 of the Canadian Access to Information Act 1982). In Australia, it is primarily the Administrative Appeals Tribunal and in New Zealand it is primarily the Information Authority.

In his 2004 annual report, the Ombudsman proposed that it should be the Ombudsman who should act as the person who reviews decisions of information officers. This is a valid suggestion but tends to confuse roles in the sense that whereas the Ombudsman's recommendations under the Ombudsman Act are not binding, those of the Information Commissioner are intended to be so.

Nevertheless, the establishment of new administrative structures should be avoided once there are already existing ones which are well equipped to carry out such task. In this respect, Parliament would not need to think of establishing the office of Information Commissioner with all its concomitant expenditure.

Other options can be considered as well apart from that suggested by the Ombudsman such as having the Data Protection Commissioner - instead of the Ombudsman - carrying out the functions of Information Commissioner. A preferred option could be to assign the duties of Information Commissioner to the National Archivist. Otherwise such functions can be assigned to an administrative court or tribunal.

It bears emphasising that whichever administrative structure is adopted and whichever foreign legislative model is emulated, the time has come for Malta to eyewitness electoral pledges transforming themselves into hard law in the realm of access to information. This is not a matter for piecemeal legislation as has been the tradition in the past but for the enactment of a comprehensive law encompassing information concerning all the spheres of social life. This is achieved only when a Freedom of Information Act eventually forms part of our Statute Book thereby enriching the democratic process by making government entities more transparent and accountable and permitting the individual to partake in the wealth of government-held information for the benefit of society as a whole.

Dr Aquilina is senior lecturer in the Department of Public Law, Faculty of Laws, University of Malta.