An appeals court has rejected Times of Malta’s request for access to documentation shedding light on the process leading to the controversial partial sale of three public hospitals to Vitals Global Healthcare (VGH).

In a three-year battle, Times of Malta has sought access through Freedom of Information (FOI) channels to a memorandum of understanding (MoU) that was signed with a consortium of investors behind VGH before the lucrative billion-euro contract even went to a public tender.

The signing of the MoU prior to the tender has led to accusations that the awarding of the contract to Vitals, whose ownership was hidden behind shell companies in foreign jurisdiction, was a done deal.

Malta Enterprise insists the MoU was non-binding and had no impact on the awarding of the tender to VGH, which sold the concession just two years later, without ever filing any accounts with the Malta Financial Services Authority.

Malta Enterprise, the government agency that oversaw the signing of the MoU, has refused to even grant the Data Commissioner, who adjudicates FOI requests, access to the documents.

Malta Enterprise says MoU was non-binding

This refusal meant the Data Commissioner was not even able to assess the merits of Times of Malta’s request and analyse whether access to the documents should be provided.

The Data Commissioner’s request for the MoU led Malta Enterprise to take the matter to the Information and Data Protection Appeals Tribunal, which upheld the appeal, arguing that the documents were covered by confidentiality and should, therefore, not even be handed over to the Data Commissioner.

This “superficial” decision by the tribunal was challenged by Times of Malta in the appeals court. Madam Justice Joanne Vella Cuschieri concluded that Malta Enterprise’s secrecy provisions effectively trumped Freedom of Information laws.

The court ruled that Malta Enterprise would be breaking the law if the MoU was handed over to the Data Commissioner for analysis. The judge said the MoU formed part of commercially-sensitive negotiations that had led to the signing of a contract.

The court noted how the heavily-redacted contract that was available for scrutiny by both the media and the public was that same contract that bound the parties together, not the MoU that had been superseded.

Questions and doubts raised over the hospitals deal led NGO Repubblika to submit a request in court for a formal magisterial inquiry to be conducted.

However, the request was blocked upon appeal although a fresh request has since been filed by Repubblika.