Restricting information requests by non-Maltese citizens to persons who have lived in Malta for at least five years was discriminatory and impinged upon the applicant’s fundamental rights, a court of appeal has declared.

This declaration was made by a court presiding over an appeal filed by the Home Affairs Ministry requesting revocation of a decision handed down by the Information and Data Protection Appeals Board in March 2022. 

The proceedings originally stemmed from a request for information made by Access Info Europe to the ministry about the return of third-country migrants by Maltese authorities. 

That request was forwarded by an Italian researcher engaged by the Madrid-based group while conducting a survey among all EU states together with Liechtenstein, Norway and Switzerland. 

The information requested was to focus specifically on the decisions taken by Maltese authorities in 2017 and 2018, the total number of migrants returned, their age, gender and country of origin, the expenses involved, whether those were national or joint operations, whether assisted or forced returns and other questions in same vein.

Access Info Europe claimed that none of the information sought was personal or confidential.

However, in October 2019 the request was turned down by the Information and Data Protection Commissioner who applied a restrictive interpretation of the relative provision under the Freedom of Information Act.

Article 2 of that Act said that a person was eligible to seek information if he has resided in Malta for at least five years and was a Maltese citizen or a citizen of another EU state. 

In this case, the applicant did not satisfy the five-year residency criterion, the commissioner said. 

Access Info appealed that decision before the tribunal which decided in its favour, prompting another appeal by the ministry. 

The matter landed before the Court of Appeal, presided over by Mr Justice Lawrence Mintoff, who this week rejected the appeal and confirmed the tribunal’s decision.

The group argued that such requests for information fell within the right to freedom of expression and was not to be limited by the applicant’s nationality or citizenship. 

As an EU state, Malta was to adopt standards of transparency in its decision-making processes and this was part and parcel of the concept of good governance as well as participation in democratic life. 

Access Info said that no other country had rejected a similar request for information. 

The commissioner's decision would negatively impact the group's prospects for funding and fulfilment of its obligations on international projects.

The ministry argued that the tribunal was not correct because it was to limit itself to applying Maltese law, rather than refer to laws and practices applied in other member states. 

The court analysed both the tribunal’s decision as well as the parliamentary debates which preceded the enactment of the Freedom of Information Act in 2008. 

The Prime Minister at the time had clearly stated that restrictions on information requests were being introduced only because of limited human resources.

Such requests often involved research which called for several persons working over a number of months to compile the requested data.

However, the then-Prime Minister had made it clear that the intention of the legislator was not to place restrictions on the right to information. 

The wording of the law when laying down the criteria was not so ideal, observed Mr Justice Mintoff. 

A strict interpretation of the law would imply that an applicant had to satisfy both criteria cumulatively rather than alternatively. 

However, going beyond the intention of the legislator, the court also considered the repercussions such restrictive interpretation could bring about on individuals or organisations seeking access to information from some Malta-based entity. 

Imposing a five-year residency criterion was discriminatory, impinging upon the applicant’s right to freedom of information as well as freedom of movement. 

However, this court would not delve deeper into this matter since this fell under the competence of the constitutional courts. 

The parliamentary debates referred to clearly showed that this right to information was to be extended to every citizen of a non-EU state having a reciprocity agreement with the EU. 

The tribunal had rightly interpreted the law in light of those debates and also in terms of Malta’s legal obligations as an EU state, concluded the court, as it rejected the ministry’s appeal. 

In comments following the judgment, Helen Darbshire, executive director of Access Info, said: “this win establishes an important principle of the right of all to request information without discrimination and will support transnational investigations by journalists and civil society across Europe”.

Lawyers from Fenech, Farrugia Fiott law firm represented Access Info pro bono. 

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