Though in force for over a decade, the much-vaunted Freedom of Information Act has yet to achieve its desired aim: “to establish a right to information held by public authorities in order to promote added transparency and accountability in government.”
In its annual rule of law report published early in July, the European Commission noted that a review of the law remains pending. In the meantime, Brussels noted, “media houses and citizens continue to face obstacles when requesting access to information held by public authorities”.
Anyone can submit a request for information under the Freedom of Information Act, even if it is usually journalists and NGOs that do so. They are often unsuccessful, with the government and the public authorities and entities coming up with all sorts of excuses why disclosure is being refused.
The right of access to official documents is, on paper, guaranteed by the law. Applicants do not have to explain why they are making a request and a public authority has a duty by law to help a person filing a request. In practice, the opposite happens and, more often than not, applicants have to go through the long process contemplated by law and, at times, ending up in court.
In a landmark judgment just under three years ago, the court had basically ruled that confidentiality should be the exception not the rule when seeking information about public projects. Confidentiality, data protection, privacy and commercial sensitivity are often listed as reasons by public authorities why disclosure is not possible.
Judge Wenzu Mintoff had correctly argued that the first pre-requisite must be that of upholding the substantial public interest that lies in protecting the right to information and freedom of expression.
Times of Malta had then hoped the decision would be a game changer. Of course, nothing changed and accessing official information is now as difficult as it was then, if not worse.
There are two opposing forces at play. On one hand, there is the applicant seeking information deemed to be in the public interest. The government and its entities, on the other hand, exercise their “censorial power of an information monopoly” by refusing to release information sought by the media or civil society organisations in their “watchdog” function, to quote the European Court of Human Rights.
As recently as last February, the Strasbourg-based court reiterated, in a case against Luxembourg, there would be instances when “the interest the public may have in particular information can be so strong as to override even a legally-imposed duty of confidentiality”.
When dealing with cases involving the right to information and freedom of expression, the European Court of Human Rights keeps stressing a crucial point: “In a democratic system, the actions or omissions of the government must be subject to close scrutiny not only by the legislative and judicial authorities but also by public opinion.”
It also pointed out that information on acts, practices or conduct that, though not unlawful are still reprehensible or controversial, could also be considered particularly important.
Likewise, worth bearing in mind is that information deemed of public interest could also involve private parties, which, therefore, would too be open to close public scrutiny.
There is certainly a lot to be done to improve the Freedom of Information Act. Still, more than having a comprehensive and robust piece of legislation, what really matters is the will to make it work. But, as the prevailing scenario amply proves, the government is unlikely to rock the boat further by laying itself bare.