Deny, obfuscate, hide - our attempts to obtain information in Malta

This article by the Foundation’s advocacy officer, Rebecca Bonello Ghio, is the first in a series on our attempts to exercise our right — that exists on paper but often not in practice — to receive and impart information.

When you call a reply to your Freedom of Information (FOI) request “lazy” and “vague”, you can expect to receive attention. Unfortunately, it does not necessarily mean that you will also get what you want.

We reached this point after a FOI Officer at Malta’s Ministry for Energy rejected our request for the LNG Security of Supply Agreement that the Government of Malta signed with SOCAR Trading, one of the owners of Electrogas. The rejection listed 12 sub-articles of the FOI Act without offering any explanation. We filed a formal complaint saying that the reasons for rejecting the request are overly lazy and vague. The rejection of our complaint listed the same 12 sub-articles, with a brief note added to each, but we still don’t have the information we asked for.

Separately, we sent a FOI request to the Ministry for Energy asking for the report by “France Electric” that the Energy minister had cited in a press conference. In an interim reply, the ministry told us they were extending the deadline for replying by another 20 days. Later, we received a formal reply citing parts of the FOI Act without further explanation. We then filed an official complaint about the vague response to a request for a document of public interest. That prompted a second reply from the ministry citing several sub-articles of the FOI Act accompanied by several paragraphs of arguments claiming that non-disclosure better serves the public interest. We have now filed a complaint with the Information and Data Protection Commissioner, so the process is not over yet. But we still do not have access to the report which is on a matter of public interest, was publicly funded, and has been publicly cited by a public servant.

The lengthy and frustrating process of obtaining information through FOI requests demotivates applicants. Journalists, researchers, and anyone else who needs information might not have the time or know-how to see it through. Once you have submitted a complaint about the rejection of your original request, the authority which replies is the same one that rejected your original request. This means you’re likely to receive a copy-and-paste email of the first rejection you received. You’ll then have to lodge a formal complaint with the Information and Data Protection Commissioner (IDPC). If you still don’t get what you need, your next option is to take the matter to the Information and Data Protection Appeals Tribunal.

Barriers to receiving information through the FOI process are not only limited to requests being dismissed. One FOI request we filed to the Courts Services Agency (CSA) sent us around in circles. We were told to send our request to one CSA employee, then to another, and were then advised to submit our request via the online portal and via email. That all happened in January 2022. Two months later, and we’re still waiting for a reply from at least one of the many people we contacted with our request. We’ve filed a formal complaint to the IDPC regarding this case, so we might receive a reply at some point.

There are general barriers to requesting information, too. To file a FOI request, you must have resided in Malta for at least five years. This means that, say, a passport buyer who maintains a token residence in Malta can file an FOI request here while an Italian citizen residing in Italy cannot. The NGO Access Info Europe is challenging the residency requirement, given that Malta is the only EU state which restricts who can file FOI requests based on the applicant’s residency status.

Government and public entities are answerable to the public. The FOI Act exists to enable access to information to promote transparency, public understanding, and citizens’ involvement in the democratic process. Instead, it appears that government and public entities are inclined to use the Act as a mechanism to deny access to information, defeating its purpose by obstructing democratic participation.

Our FOI requests are not the only ones that get blocked. In 2021, we launched the FOI Youth Project along with Access Info Europe, funded by Erasmus+. We invited young people in Malta and Spain to learn about the FOI process in both countries and file requests themselves. The requests varied from the numbers of trees uprooted to widen roads to the death rate among construction workers in Malta.

One group requested the vaccine rates of those living in detention centres and open centres since March 2021, and of migrants, refugees, and those awaiting residence status. The group received a document on the vaccination strategy for Malta but none of the data they had requested. In September 2021, they filed a formal complaint saying that the document provided was not what they had requested. They were told that they will receive a response within ten working days. It’s January 2022, and they still haven’t received it.

We’ve got a few more FOI requests pending ourselves, including one about the excise tax in the Enemalta deal with Electrogas and another about the audit into alleged overspending on the 2021 Eurovision song contest. We don’t have the information yet, but we’re not giving up. We’ll let you know how those requests go.