The Maltese Labour Party government is ignoring scores of court decisions ordering it to answer Freedom of Information (FOI) requests filed by The Shift, raising serious concerns about the rule of law, the continuing deterioration of media freedom in the country, and the rights of citizens to access information.

Over two years ago, The Shift sent out FOI requests to all government institutions, asking them to make available copies of consultancy contracts and payments made to Saviour Balzan and his media companies, Media Today and Business 2 Business.

The government refused to hand over the information, filing 40 appeals before the Information Tribunal and 18 cases in court when the Tribunal ruled against the government’s decision. The Shift has won all the cases.

Only four government entities have made the information available – the Armed Forces of Malta (AFM), Identity Malta, Projects Malta, and the Planning Authority.

“This a flagrant violation of the law, breaching court decisions and violating citizens’ right to timely access to information,” said The Shift’s founder and managing editor Caroline Muscat.

How did we get here?

The FOI requests were made in 2021 after The Shift discovered Balzan was making millions of euro through consultancy contracts with government ministries.

While posing as an ‘independent journalist’ and media owner, he advised former minister Edward Zammit Lewis on how to act in public, deal with criticism, prepare responses to political statements, and more.

The Shift also found he had been awarded at least 30 other contracts to provide media and editorial consultancy services to ministers in the previous five years.

To gain full transparency of how much public money was being spent on his services, The Shift filed FOIs with each government institution.

The government refused all requests, and The Shift asked the data commissioner to intervene. While the commissioner ruled that the various ministries and government departments must provide this information to The Shift, the government refused.

Some 40 entities filed an appeal, challenging the Commissioner’s decision while refusing to divulge the information.

Responding to 40 appeals headed by some 80 lawyers caused a significant burden on The Shift regarding legal costs and capacity to fight the cases while continuing the newsroom’s work.

Considered Strategic Lawsuits Against Public Participation (SLAPP), they catapulted Malta to the number one country in Europe for the number of SLAPP suits filed against journalists and the media.

In their appeals, some 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, setting a legal precedent that helps all newsrooms and citizens seeking information.

A purposefully protracted process

The Freedom of Information Act was approved by parliament in 2008 and came into effect in stages, beginning in July 2009, with the last provisions coming into effect in September 2012.

Nevertheless, public bodies frequently deny FOI requests from the media on arbitrary grounds, and the process is so protracted that timely reporting and the ability of journalists to do their work are constantly undermined.

The government must reply within 20 working days when an initial FOI request is sent. The entity receiving the request can ask for an extension for a further 20 days, and this request is often delayed until the last minute. After a request is initially refused, the person asking for the information can request a ‘reconsideration’, and the government entity has ten days to reply.

If the information is again refused, the person can ask the data commissioner to investigate. There is, however, no set time frame for a reply and under-resourced and inundated with appeals, the commissioner can only take up some cases.

Repeated calls for revision ignored

Revisions to the current FOI act have been repeatedly called for by both the current data commissioner and the independent board of the public inquiry into the murder of Daphne Caruana Galizia, the Venice Commission and the Special Rapporteur for the Parliamentary Assembly of the Council of Europe (PACE).

Furthermore, a 2022 report by the OSCE (Organisation for Security and Co-operation in Europe) analysing the media bill put forward by the Maltese government recommended that the right of access to information be strengthened at a constitutional level by “expressly” incorporating basic international and regional principles to exercise this right effectively.

The European Commission’s latest Rule of Law report also notes how “the review of the Freedom of Information Act remains pending, and media houses and citizens continue to face obstacles when requesting access to information held by public authorities.”

The government has also refused to publish a study that the justice ministry requested three years ago to revamp the act as suggested by the CoE’s anti-corruption body GRECO. An FOI request by The Shift to see the report was also refused.

This inaction was further highlighted in a recent study by the Global Data Barometer, assessing data in 109 countries, which found Malta had the lowest score out of 21 European countries surveyed, with 36.5 out of 100. The score is based on four key data areas: governance, capability, availability, and the use and impact of data for the public good.

In response to the Council of Europe’s (CoE) Human Rights Commissioner Dunja Mijatovic’s concerns about Malta’s FOI Act, Justice Minister Jonathan Attard wrote that “the public authorities and departments of Government have always provided replies in line with the Act”.

Attard purposefully omitted the context of just how deficient and broad the terms of the Act are, how local and international organisations requesting a revision in line with international standards have been ignored, and crucially, that The Shift has still not received the information requested.