Data Protection Tribunal accused of ‘abandoning’ request for FIAU governor candidates

Repubblika President Robert Aquilina has accused the Information and Data Protection Tribunal of "abandoning" a case in which he sought information about appointments to the board of governors of the Financial Intelligence Analysis Unit (FIAU).

Aquilina testified before Mr. Justice Francesco Depasquale this morning, as part of a Constitutional Case he filed over the authorities’ repeated refusals to publish the names of candidates suggested by a former police chief to serve on the board of governors of the FIAU.

The board is responsible for the oversight of Malta’s anti-money laundering and countering financing of terrorism (AML/CFT) regime.

The case was filed after Aquilina’s request for a full and uncensored list of nominees for the FIAU board proposed by former police chief Lawrence Cutajar to the finance ministry, had not been fulfilled as Aquilina had only been provided with a redacted document that only identified the successful candidate.

He is claiming the State’s reticence to provide information about the selection of the FIAU’s board of governors constituted a breach of rights.

Aquilina told the judge this morning that before filing the latest Freedom Of Information request, Repubblika’s previous two requests, sent to the Police and the Finance Ministry, had been rejected on the ground that only natural persons could make such a request. As a result, he decided to request the information in his personal capacity.

“I wanted to know who made the decision to put Silvio Valletta on the FIAU board of Governors,” he said.

Aquilina filed the original request on 23 March 2020, which was transferred to the Commissioner of Police by the Ministry of Finance on 26 March that year. Aquilina said that the request transferred was not identical to the one that he had filed.

The Commissioner of Police refused the request, and on 16 May that year, Aquilina had sent the Commissioner a letter requesting a reconsideration of the decision. On May 29, the Commissioner of Police replied with a refusal of both of Aquilina’s requests.

On 20 July 2020, Aquilina had then filed an application to the Information and Data Protection Commissioner, requesting he weigh in with a decision on the police’s refusal. On 24 Feb 2021, the IDPC concluded that the transfer of the request for information from the Ministry of Finance to another authority was “not entirely justified” and had rebuked those responsible. It also ordered that Aquilina be provided with copies of the documents, with the names of the unsuccessful candidates redacted.

Aquilina said that he had received copies of three letters, redacted as ordered by the IDPC, which had been sent by former Commissioners of Police, Peter Paul Zammit and his successor Lawrence Cutajar, dated January 2014, January 2017 and an email dated May 2019.

Eventually, Aquilina's case was assigned to the Data Protection Tribunal presided over by Anna Mallia, who had been one of the lawyers assisting Yorgen Fenech. This was going to pose a problem, he said, as the police “have sufficient information in hand to arraign [Silvio] Valletta over leaks from the investigation into the murder of Daphne Caruana Galizia.”

At the first sitting before the tribunal, Aquilina's lawyer Sarah Cannataci had requested that Mallia recuse herself from the case. The request was upheld on 1 June 2021. Mallia was substituted as president of the Data Protection Tribunal by lawyer Noel Camilleri.

During that first sitting, Mallia had phoned up Camilleri in the presence of the parties, to inform him of this fact and to establish the date for the next sitting.

The date of the first sitting was finally set for 10 March 2022. Aquilina recalled the events of that sitting. “As we were about to begin, Dr. Camilleri informed us that he could not begin hearing the case… because 26 March was election day and he would have to resign.”

Aquilina said he had asked the Chairperson what part of the law this emerged from and the Chairperson had replied that it was “customary.” 

“Not only did he not want to hear the case, but he refused to assign a date for the next sitting, resulting in the case being adjourned sine die [indefinitely],” he said. “In that sitting I strongly objected to Camilleri’s decision not to start hearing the case. I made it clear that it was unacceptable and that the tribunal was showing clear submission to the executive, when its role was to scrutinise the executive.”

Camilleri did not budge and said it was a question of custom and ethics that he tender his resignation at election time, Aquilina said. “He absolutely did not want to listen.”

When the case resumed on 19 July 2022, Noel Camilleri was still presiding over the tribunal. The judge asked whether the election had taken place by that point. It had, replied the witness.

During that hearing, Aquilina had testified that he had used the word "subservient" to describe the tribunal's behaviour towards the executive but had later found out that Noel Camilleri had amended the verbal note to read that they had not objected to the tribunal's declaration.

Aqulina said he was left “gobsmacked” by a Facebook post uploaded by Noel Camilleri, who eulogised Joseph Muscat’s legacy under a Facebook post uploaded by Muscat about his dealings with Azerbaijan, following a deal struck by the European Commission with that country.

Aquilina told the court that Camilleri had subsequently been appointed to the Industrial Tribunal and Commission for Voluntary Organisations, which had later presented an award to Michelle Muscat, the wife of the disgraced former Prime Minister.

Aquilina stressed that he had filed his requests for information three years ago and that the wasted time was attributable to the tribunal. He highlighted that the information had been required urgently, especially since Muscat was still in politics at the time and Silvio Valletta had just resigned as police commissioner. “It is still important today, but I definitely needed it more at the time.”

Asked by Comodini Cachia to explain the public interest aspect of the information, Aquilina explained that he wanted to see who the other applicants for the post were, as they could have been constables or even civilians.

Despite discussing the matter with Commissioner Gafa, Aquilina had not been contacted by Assistant Commissioner Alexandra Mamo, who he said, had been delegated to handle the matter.

Aquilina also referred to the public inquiry into the Caruana Galizia murder, where Comodini Cachia had put several questions about the FIAU board to former minister Edward Scicluna, who had been prepared to publish the names of the other candidates, only to be stopped from doing so by the Data Protection Commissioner.

“I have information which contradicts this account. The most senior officer was Pierre Calleja who publicly stated to MaltaToday’s Chris Mangion that he had no intention of retiring.”

“One of the reasons I need those lists is to see who didn’t tell the truth about why Calleja had been removed from the Board and replaced by the husband of a Parliamentary secretary, Silvio Valletta.”

The judge adjourned the sitting to July, suspending Aquilina's deposition to allow the secretary of the Data Protection Appeal Tribunal board to exhibit recordings of the sittings, as evidence about Aquilina's claims of lack of impartiality and the violation of fundamental rights due to the lengthy appeal process.