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Karl Schembri
The Prime Minister is “evaluating the viability” of taking a step forward towards transparency and in modernising our democracy through a Freedom of Information Act – a piece of legislation that would lift a great part of the veil of secrecy over the civil service and government corridors.
Malta is flanked by only Cyprus and Luxembourg of all the 25 European Union member states in not having a Freedom of Information Act, that gives citizens the right to direct and unfettered access to information held by all government departments, agencies and authorities.
Suggested earlier this month by the Ombudsman, Prime Minister Lawrence Gonzi said in parliament last Monday that he had “effectively given instructions to the Principal Permanent Secretary to start the process to evaluate the viability of having a Freedom of Information Act, before the Ombudsman made his recommendation.”
Gonzi was replying to a parliamentary question by Labour MP Leo Brincat, who asked him whether he had any intention of enacting a Freedom of Information Act as suggested by the Ombudsman.
A spokesman for the prime minister told MaltaToday that Gonzi had instructed Principal Permanent Secretary Godwin Grima to begin developing proposals on a Freedom of Information Act last spring. MaltaToday is informed that the Ombudsman was not consulted since he made his statement.
“Currently, legislation in other countries is being reviewed and their experience evaluated,” the spokesman said. “Options for local legislation will then be prepared for consideration by the government, and the viability of such options will need to be assessed primarily in terms of their relationship with existing legal provisions and the cost of implementation.”
The introduction of the Data Protection Act, in force since 2003, without an accompanying Freedom of Information Act, has only created an information lacuna when it comes to releasing information in the public interest.
But according to the prime minister’s spokesman, “there are already a number of legal provisions concerning freedom of information”, even though there is hardly any way to appeal a government decision to withhold information except when it comes to personal information covered by the Data Protection Act.
Also, the Church and political parties have been exempted from data protection obligations, allowing them to keep secret databases which, owned by other organisations, would be illegal.
The spokesman quoted the Press Act, the regulations on Freedom of Access to Information on the Environment, the Local Councils Act, and the Data Protection Act as measures that somehow serve to release information, “besides other facilities such as question time in Parliament, the servizz.gov.mt and similar administrative measures”.
In most of the cases, however, the release of information is discretionary and unregulated.
“One of the considerations in developing a Freedom of Information Act is to what extent it should seek to consolidate these provisions as opposed to addressing the remaining gaps,” the spokesman said. “As soon as the current work is finalised it is government’s intention to publish its proposals.”
Civil servants are bound to work overtime on the eve of a Freedom of Information Act coming into force to shred as many official documents as possible – an experience quite familiar among British civil servants before such a law came into force in the UK last January.
Outgoing Ombudsman Joe Sammut, whose term expires at the end of this month, said government could easily utilise the Ombudsman’s office to serve as an Information Commissioner who would investigate and decide citizens’ complaints whenever their requests for information are declined.
This would save the government from having to invest in a new authority that would drain further public funds.
“Maltese democracy is at a stage that warrants the introduction of an Information Act and an Information Commissioner who will defend the rights of citizens to access information which is of public interest,” the ombudsman said.
“At the moment, information regarding matters that interest the public is given as a concession on the part of the government, and not as a right. There is some information which any government is entitled to retain as confidential. However, it is only in special cases that information should be kept from the public. We like using the word ‘transparency’ but in reality obtaining information is restricted. The preparatory work on the introduction of freedom of information legislation should rank high on the agenda of Government and of the incoming Ombudsman if it is decided to entrust the Office with this new task.”
If properly drafted and enforced, a Freedom of Information Act would give the right to citizens to access thousands of government documents which have so far never been released, documenting how public authorities carry out their duties, why they make the decisions they do and how they spend public money, among others.
A glaring example of this is the Health Department’s internal inquiry reports at St Luke’s Hospital, shelved away from public scrutiny even when they were of direct public interest. Tucked among these reports there is a file about Andrea Massa, the seven-year-old child who died in St Luke’s Hospital on 28 February 2001 after an appendicitis operation.
More than four years since the tragedy, Andrea’s parents are banned by the health department from accessing the hospital file which sheds light on the consultants’ responsibility in the fatal blunder after the operation – an infection left unchecked by the doctors.
Then Attorney General Anthony Borg Barthet added another shroud to the tragedy by stopping court proceedings in the face of enough evidence to indict the paediatric consultant.
Government had also dragged its feet on publishing several impact assessment reports prior to Malta’s membership to the EU containing damning evidence about the disposal of hazardous waste and GMOs, among others. The infamous Scott Wilson Report – effectively an X-ray of the contamination found at the Maghtab rubbish dump of direct public interest was kept secret since 2002 until Environment Minister George Pullicino finally decided to make a summary of it public last February.
On the other hand, the UK gave Malta its first taste of freedom of information last January when it published British Army files documenting a top secret racial policy implemented in the 60s and 70s which put quota restrictions on the recruitment of soldiers with “Asiatic or Negroid” features, with Maltese singled out as having non-north European facial features.
karl@newsworksltd.com
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