An international organisation is contesting the basis on which a Freedom of Information (FOI) request was refused by the Home Affairs Ministry, saying that linking the fundamental right of access to information with a residency requirement was a violation of freedom of expression.

Access Info Europe has turned to the Information and Data Protection Appeals Tribunal after an FOI request to have access to data related to migration, to be used in a European survey, was turned down. The ministry refused the request on the grounds that the individual requesting the information was not “eligible” to acquire the data because she had not been a resident in Malta for at least five years.

Earlier this month, the organisation’s Executive Director Helen Darbishire and researcher Martina Tombini filed separate affidavits in the tribunal where they highlighted the unfairness of the situation.

The information requested formed part of a pan-European survey and was sent to all EU member states as well as Iceland, Liechtenstein, Norway and Switzerland. It requested information on data of migrant return decisions, the total number of migrant return operations together with the number of migrants returned in 2017 and 2018, per year and per month.

The NGO also asked for information as to whether the return information was national or joint, voluntary assisted, a readmission or forced operation, destination and date, a breakdown of gender, age and country of origin of the returned migrants, and the total cost. They also asked for a list of all agreements that Malta made to return migrants to third countries – including informal agreements.

The saga dates back to August last year when Tombini filed an FOI request, which was refused a month later.  Harbishire then filed an FOI complaint to the Information and Data Protection Commissioner, challenging the refusal.

Access Info argued that the ministry erred in its interpretation of “an eligible person”, and questioned whether the core intention was to grant the right to request information exclusively to Maltese or EU citizens who have resided for at least five years in Malta.

The Information and Data Commissioner replied, saying that the ministry’s interpretation of an “eligible person” was correct and that it was the legislator’s intention was unequivocally to restrict such a right to persons who resided in Malta for five years.

The NGO then filed an appeal with the tribunal, asking for a review of the decision.

‘We’ve never encountered anything like this’

The subject of agreements related to migration has always been a sensitive one in Malta. Only last month, Neville Gafa – a former official in the Office of the Prime Minister – spoke about the deal he had brokered with the Libyan authorities to prevent migrants arriving in Malta.

With the exception of Malta, not one country refused to register the NGO’s freedom of information request.

“Indeed, in Access Info’s extensive experience of working on freedom of information within Europe and globally, as well as our studies of FOI laws around the world, Access Info Europe had never encountered a situation in which the right to request information is granted only to persons who have been resident for five years. We believe that this goes against the principles enshrined within the EU treaties and international human rights law and jurisprudence,” Harbishire said in her affidavit.

Linking the fundamental right of access to information with a residency requirement was a violation of freedom of expression. The link between freedom of expression and the right of access to information has been confirmed by the UN Human Rights Committee and the European Court of Human Rights, “whose respective opinions and jurisprudence Malta is bound to uphold”.

Access Info said that denying them the right of access to information in Malta hindered their ability to carry out their pan-European projects. “Doing so puts us in a direct disadvantage to that of an NGO based in Malta carrying out the same work. This could constitute a protectionist measure and interference with freedom of movement and the freedom to provide services across the entire European Union,” Harbishire said.