Malta’s Information and Data Protection Appeals Tribunal has overturned a decision to refuse a request for information by a foreign national, ruling that all EU citizens have a right to submit information requests.
Chaired by lawyer Anna Mallia, the tribunal ruled that even though the Freedom of Information Act says that people who file a request for information must be both citizens of Malta or another EU Member State and have been resident in Malta for five or more years, “the intention of the legislator was never to withhold such information from the EU citizens.”
The case was successfully fought by Access Info Europe, a human rights organisation dedicated to promoting and protecting the right of access to information in Europe as a tool for defending civil liberties and human rights.
The case dates to August 2019 when a request for data on migration to Malta was submitted by an Italian citizen working at Access Info’s Madrid office. The information was requested from the Home Affairs and National Security Ministry which refused it on the grounds that she was not a Maltese resident.
Access Info challenged this as contravening Malta’s Constitution and international standards, amounting to a violation of the right to freedom of expression, and constituting discrimination.
In October 2019, the Information and Data Protection Commissioner rejected Access Info’s appeal and upheld the refusal by the ministry, stating that the legislator’s intention was unequivocally to restrict the right to make information requests to persons with at least five years’ residence in Malta.
Access Info successfully appealed the decision with the help of pro bono legal assistance, with the tribunal deciding in its favour.
The matter has now been sent back to the ministry to consider the request on its merits.
Access Info Executive Director, Helen Darbishire, welcomed the decision. “It is positive that the Tribunal reviewed the law of other EU Member States in reaching this decision. We hope that it will do the same when considering other FOI appeals in Malta.”
“The refusal to process requests on residency grounds is just one example of Malta’s weak transparency culture. This decision by the Tribunal is a positive example of change,” added Rachel Hanna, a legal researcher at Access Info.
The ruling was also welcomed by Matthew Caruana Galizia, director of the Daphne Caruana Galizia Foundation which was set up after the journalist’s assassination to support and protect investigative journalism and promote free access to information.
“Malta is the only country in the EU to disallow freedom of information requests by non-residents,” he said as he thanked Access Info for fighting the case.
Access Info said in a statement that journalists and civil society continue to have great difficulty obtaining information from government bodies in Malta, with FOI requests often being refused. Several international bodies have recently expressed their concerns on freedom of expression and information in Malta and have offered recommendations to bring law and practice into line with international standards.
The Institute of Maltese Journalists has long been demanding changes to the FOI laws in Malta, bringing the matter to the attention of top government officials, including Prime Minister Robert Abela.