Court throws out PBS appeal over Eurovision studio FOI mix-up

Public Broadcasting Services has lost its appeal in a Freedom of Information battle after the Court of Appeal ruled that the broadcaster filed its case against the wrong party.

The mix-up meant the appeal was null from the start, leaving in place an order for PBS to hand over tender and procurement documents linked to the refurbishment of the Malta Eurovision Song Contest studio.

Public Broadcasting Services (PBS) saw its case collapse this week after Judge Lawrence Mintoff confirmed that a basic filing error rendered its entire appeal null.

The ruling leaves in place an earlier decision obliging PBS to disclose tenders, quotations, and direct orders linked to the 2024 Eurovision studio overhaul, information originally requested by journalist Caroline Muscat.

The dispute began in February 2024, when Shift News owner Caroline Muscat filed a Freedom of Information request asking for procurement documents tied to the refurbishment of the PBS studio used for Malta’s Eurovision selection show. PBS refused, arguing the programme was entirely funded through commercial income and therefore exempt from FOI rules.

The Information and Data Protection Commissioner disagreed, finding the refusal unjustified and ordering disclosure last November.

PBS appealed that decision. Instead of filing the appeal against Muscat, the person who made the FOI request, PBS addressed it to the Commissioner himself, who acts as an adjudicator rather than a party in such cases, writing the okkju as Public Broadcasting Services Limited vs Il-Kummissarju għall-Informazzjoni u l-Protezzjoni tad-Data, instead of Public Broadcasting Services Limited vs Caroline Muscat.

PBS later tried to correct the mistake, arguing it was an innocent “lapsus calami”, a slip of the pen that harmed no one, especially since Muscat had been notified of the appeal.

But the Information and Data Protection Appeals Tribunal refused to amend the filing and declared the appeal null. PBS escalated the matter to the Court of Appeal.

Judge Mintoff upheld the Tribunal, stressing that this was not a minor clerical typo but a substantive flaw: correcting the appeal would mean swapping out the wrongly named respondent and replacing them with the person PBS had never actually appealed against.

That, the court said, would fundamentally change the case and could leave the newly inserted party at a disadvantage.

The court also shot down PBS’s claim that Muscat was in default for not filing a reply. Since she was never actually named as a party, she had no obligation to respond, and her lawyer’s remark about the flawed filing was simply an observation the Tribunal was entitled to consider on its own motion.

With the error unfixable, the appeal remained legally defective, and the court concluded that the Tribunal had no choice but to throw it out. Judge Mintoff also noted that even PBS’s arguments on timing would not have saved it: the 20-day window to appeal FOI decisions is a strict legal deadline that cannot be interrupted.

In the end, all four grievances raised by PBS were rejected, and the original disclosure order stands. PBS must now bear the costs of the appeal, and hand over the Eurovision studio procurement documents.