Reference is made to your story, ‘Malta Independent boasts of invoking freedom law that is not yet into force’, published on Sunday, 11 October.
In the report, your journalist Matthew Vella claims that The Malta Independent on Sunday could not have invoked the Freedom of Information Act because it had not yet come into force.
We beg to differ, and feel it appropriate to highlight that the information relayed to your readers is factually incorrect. In Legal Notice 218 of 2009, published in the Government Gazette on 31 July, the Justice and Home Affairs Minister brought into force part of the Freedom of Information Act – namely articles 2, 4, 5, 17, 21 (1), (2), (6) and (7), 22, 46 and 47 (1).
Your newspaper, on 26 July, in a story again written by Mr Vella, had said that “part of the (Freedom of Information Act), passed in Parliament last year, is expected to be put into force by a legal notice that is to be issued shortly”.
That “shortly” was, in fact, five days after your report and yet, in your 11 October story, you claimed that The Malta Independent on Sunday could not have invoked the law because it was not yet in force.
To explain further without excessively belabouring the point, The Malta Independent on Sunday invoked Article 4 of the law which states that “nothing in this Act shall be construed as preventing public authorities from publishing or granting access to documents…”
It was with this Article in mind that The Malta Independent on Sunday went straight to the Lands Department, invoking the law, to ask to see documents related to the lease of government property to the Malta Labour Party in 1981 and thereafter.
Our request was passed on to the parliamentary secretary responsible for lands, Dr Jason Azzopardi, who, in turn, sought the advice of the Office of the Attorney General.
The AG’s office, in writing, confirmed that The Malta Independent on Sunday was correct to have invoked that part of the Freedom of Information Act, and therefore the Lands Department allowed us access to the documents requested.
Since our request – through Article 4 of the Act – was accepted immediately, there was no need to refer to Article 23 (which was mentioned in the MaltaToday story, and which has not yet entered into force). Article 23 gives applicants the right to refer to the Information and Data Protection Commissioner if, and only if, their initial request to a public entity is refused.
Our request to the Commissioner of Lands was not “simple”, as Mr Vella put it. Without the coming into force of part of the law as happened on 31 July, and which was invoked by The Malta Independent on Sunday, the Lands Commissioner would have refused our request.
David Lindsay
Editor, The Malta Independent on Sunday
Stephen Calleja
Managing Editor, Standard Publications Ltd
Editorial note It is of utmost importance that readers and journalists are correctly informed of what a Freedom of Information Act is and what the articles currently in force mean. It is certainly not the Space Race of Maltese journalism.
As reported by MaltaToday, (i) the Data Protection and Information Commissioner clearly stated that no FOIA requests can be lodged at present until Article 23 comes into force, and (ii) an FOIA request can only be made if information is refused by a public authority. These are undisputed facts.
The TMIS went ‘armed’ with Article 4 – the spirit of the Freedom of Information Act – to demand a document that had not even been refused; this is akin to somebody who requests their private details to be erased from a company’s database, without being forced to take recourse to the Data Protection Commissioner.
Our TMIS colleagues may not be aware that a Code of Practice is in the offing over the enforcement of the FOIA. Article 41 will guide public authorities as to what level of disclosure is expected from them; it is once these avenues are exhausted that the Data Protection and Information Commissioner can decide on whether a request for information has been dealt with appropriately.
That the parliamentary secretariat for lands felt the need to consult the AG (who is not the Information Commissioner) over whether a land deed should be made public is indeed a sign of the bureaucracy’s poor sense of transparency – but not a successful application of the partly-enacted FOIA. For journalists and citizens to be truly empowered by a law, its full enforcement is necessary.
Being “the first” newspaper to seek disclosure of information is the unlikeliest of prizes. The Independent should have used its excellent relations with government to secure that information. Matthew Vella
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