Appeals Court rules all EU citizens can submit FOI requests to the government

In a landmark ruling, Malta’s Court of Appeal has ruled in favour of NGO Access Info’s contention that the Maltese government was discriminatory and violated the rights of EU citizens when it refused to register a freedom information request from a non-Maltese citizen.

The issue at stake dates back to an August 2019 request from an Italian citizen working with Access Info requesting data on the government’s return of irregular migrants.

The Ministry of Home Affairs and National Security had refused to register the request with the excuse that an “eligible person” under Malta’s 2008 Freedom of Information Act had to either be a Maltese citizen or a citizen of an EU member state who has been resident in Malta for a minimum of five years.

Access Info appealed the decision with the pro bono assistance of pro bono representation of Fenech Farrugia Fiott Legal and argued the law’s residency and citizenship requirements contravene international standards and European law.

Moreover, it was argued before the courts that the clauses are tantamount to discrimination and violate Malta’s constitutional obligation to protect the right to freedom of expression and information.

Malta’s Information and Data Protection Appeals Tribunal in March 2022 found in Access Info’s favour but the Ministry appealed the ruling.

The Court of Appeal has now confirmed that it was not the intention of the legislator to restrict the right to submit a request on the grounds of residency and therefore create a law that was out of line with the laws of other EU member states and that, as such, there was a breach of Malta’s obligations under EU law.

The Court noted that the Ministry’s strict interpretation of the law would make it practically impossible for anyone not living in Malta to submit a request, which was discriminatory and directly impacted not only the right to freedom of information, but also the freedom of movement of EU citizens.

In a statement on the landmark ruling. Access Info Executive Director Helen Darbishire said, “This win establishes an important principle of the right of all to request information without discrimination, and will support transnational investigations by journalists and civil society across Europe.”

Dr Paul Felice of Fenech Farrugia Fiott Legal added, “We are very pleased that Malta’s Court of Appeal has finally put to rest a matter of public interest significance which now confirms, without any shadow of doubt, that EU citizens have a right to access and receive information from government agencies under the Freedom of Information Act, irrespective of their residence.

“This judgment should enhance the standards of transparency which the Act was designed to safeguard and promote.”

The NGO had asked for information as to whether the returns were 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. It also asked for a list of all agreements that Malta made to return migrants to third countries – including informal agreements.

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

Access Info said it will be resubmitting its original freedom of information request.

The NGO added, “The Court decision comes at a time when standards of freedom of expression and information in Malta have come under scrutiny, both by international bodies and by local journalists and civil society.”

In fact, in what is being described in legal terms as a 40-strong SLAPP against The Shift, the government is battling 40 freedom of information requests, apparently adamant on crippling financially the small independent newsroom with continuous and lengthy legal battles.

The information that the government is going to extraordinary lengths to withhold concerns how public funds are being used to fund the operations of MaltaToday and Saviour Balzan’s private businesses, particularly the public relations consultancies offered to different ministries.

Headed by lawyer Anna Mallia, the Information and Data Protection Appeals Tribunal recently threw out yet another round of challenges against releasing such information.

In total, 40 government ministries and agencies are refusing to abide by the decision of the Data Protection Commissioner to release the information, taking the cases to the Appeals Tribunal.

So far, Chair Anna Mallia has so far dismissed 25 of those cases, which has led the government entities to file second appeals, this time in court, where The Shift is so far facing another 17 cases before Judge Lawrence Mintoff.