IDPC tribunal rules in favour of the Shift, throws out remaining FOI appeals

The Maltese government has lost the remaining appeals it filed against a decision by the Data Protection Commissioner (IDPC) that stated it must reveal information on government media spending that The Shift requested through freedom of information (FOI) requests.

On Monday, the Appeals Tribunal upheld the IDPC’s decision that various government entities, including Heritage Malta, the Ministry of Education, the Ministry of Justice, Projects Malta and the Malta Residency Visa Agency, must make the data available.

Meanwhile, the appeal filed by the Environment and Resources Authority (ERA) was withdrawn, and the tribunal closed the Manuel Theatre’s appeal due to their failure to follow up.

This latest development means The Shift has won all the appeals filed at the Information and Data Protection Commission Tribunal, chaired by lawyers Anna Mallia and Noel Camilleri.

However, in several cases, the government filed a court case to repeal that decision, but to date, The Shift has won all 18 cases filed in Court with Justice Lawrence Mintoff, ordering the ministries to make the requested information available.

The appeals relate to Freedom of Information (FOI) requests filed by The Shift in 2021 that asked government ministries and entities to make available copies of consultancy contracts and payments made to Saviour Balzan and his media companies, Media Today and Business 2 Business. The request came following reports he was acting as a PR consultant and spin doctor to the government while posing as an ‘independent’ journalist and media owner.

Most government bodies replied to The Shift that they had no such information, but the Data Protection Commissioner’s investigation found this was untrue.

After the Commissioner’s decision confirmed that the various ministries and government departments must provide this information to The Shift, per the FOI law, over 40 entities filed an appeal, challenging the Commissioner’s decision while refusing to divulge the information.

In their appeals, the ministries again argued that the requested documentation by The Shift did not exist. However, the Information and Data Protection Commissioner, the Appeals Tribunal, and the Court have all rejected this excuse.

In the rulings for the near identical cases appealed individually by the government, Judge Mintoff said: “The court reminds the appellant that they cannot expect the [Freedom of Information] law to be interpreted in its narrowest sense, to the point that it allows the appellant to escape its duties.”

“The court considers how the information is given irrelevant as long as the request is fulfilled in its substance,” the rulings said.

The court also dismissed arguments by the government, which claimed the information requested would be too costly to gather. The decision states that the government “besides not providing evidence of the costs, [the entity] clearly already has all the information requested”.

International organisations have repeatedly called out the Maltese government’s actions to muzzle and financially cripple an independent newsroom holding government to account, with the 40 legal challenges. The Council of Europe Human Rights Commissioner Dunja Mijatović also said the 40 legal challenges send a “chilling message” to other newsrooms.

The Shift has fought back thanks to reader donations, pro bono work from BCGL Advocates and the support of international organisations’ legal defence work against such abuse.