Over the past decade, ministers and top civil servants have fine-tuned the manner in which they administer the Freedom of Information Act. Not to facilitate access to government information but, rather, to make certain official documents are more impenetrable than Fort Knox.
Times of Malta, and other media, can provide a long list of instances where requests to obtain information manifestly of public interest were refused.
Creatively and ridiculously, those refusals often quoted “conclusive reasons for not disclosing official documents under this act”, as the law puts it.
These included the names of members of public selection boards in controversial high-profile projects and the taxpayer-funded employment contracts of certain individuals.
The Malta Tourism Authority has just rejected a request by Times of Malta for a copy of concession agreements to set up sunbeds on Comino, saying the information is commercially sensitive.
Rejection of requests under the Freedom of Information Act has become the order of the day. The law was passed by parliament in 2008 but took four long years for all its provisions to come into force, an indication of the reluctance to positively entertain inquisitive requests by ‘nosy’ citizens and, worse, investigative journalists.
The aim of this piece of legislation officially is to “establish a right to information held by public authorities in order to promote added transparency and accountability in government”. However, it is already becoming rusty.
Calls for its revision have been made by the public inquiry into Daphne Caruana Galizia’s murder and the information and data protection commissioner himself, among others.
The three judges who conducted the public inquiry deemed it necessary for the law to include provisions limiting the cases whereby the public administration can arbitrarily refuse to furnish information that is of interest to the public and to which it has a right.
“The culture of confidentiality and secrecy, on the pretext of privacy or commercial prejudice, has nothing to do with democracy in terms of the administration of the common wealth, which must always be transparent and accountable,” they remarked.
In the search for truth, the three jurists observed, there needs to be an open administration ensuring participatory democracy.
That may be what the law set out to ensure but is also what politicians and their yes-men are determined to avoid in a desperate attempt to hide their sins of commission or omission.
The information and data protection commissioner thinks the law as it stands provides for exemptions, many of which are not subject to the public interest test.
No wonder the Venice Commission and the Special Rapporteur for the Parliamentary Assembly of the Council of Europe have raised concerns about the manner in which the law is being implemented in practice.
Press freedom groups too have expressed fear that, rather than fostering a culture of transparency, this legislation is regularly being abused to obstruct requests and obfuscate the disclosure of public information.
Only last May, a team of lawyers within the Public Interest Litigation Network together with the Daphne Foundation decided to formally challenge the Freedom of Information Act in the Constitutional Court. They argue that the remedies it provides are unconstitutional because they do not respect the right to freedom of expression and information.
If the government means what it says about protecting the media and facilitating their work, it would be a good start to lose no more time in amending the Freedom of Information Act. Provided, of course, that the changes are in the right direction.
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