MEPA’s data protection excuse shot down by commissioner

The publication of the names of the architects and companies proposing changes to Malta's local plans is not in breach of privacy rules, the Information and Data Protection Commissioner Joseph Ebejer told MaltaToday after MEPA, the planning authority, announced it will start withholding the names of those seeking changes to planning limits during public consultations.

The startling announcement was made by MEPA as it launched public discussions for the forthcoming changes to the local plans - the guides to all decisions related to planning applications.

MEPA cited "data protection" as the justification for this change in policy, which gives developers the opportunity to propose changes to their own advantage without 'showing their cards'.

On his part, Commissioner Ebejer said that data protection should only be invoked to protect the identity of individuals making submissions in their "personal capacity" and not in their professional capacity.

MEPA is obliged by law to take into account all submissions in the various phases of consultation and give a reply to each request or comment. MEPA is also obliged by law to publish the gist of every request and comment, as well as its response.

But now MEPA will only publish the reference number given to each submission - and not the name and surname of the person making the comment or submission.

Environmentalists Din l-Art Helwa criticised this decision, insisting that MEPA's previous practice should remain: all persons and organisations that make submissions during the consultation period should be identified and not remain anonymous.

Previously, for local plans and others subject to public consultation, the names of companies and citizens submitting proposals were published alongside MEPA's response to each submission. These included the names of architects and developers who had proposed changes and had a vested interest in developing particular parcels of land. This transparency enabled the media and NGOs to question the motivation behind the inclusion of particular plots of land in development zones or in areas with relaxed height limitations.

Contacted by MaltaToday, Data Protection Commissioner Joe Ebejer confirmed that despite the invocation of data protection laws to justify this change in policy, MEPA has not sought the advice of the Data Protection Commission on this particular matter. Neither did the data protection office receive any complaints on this matter in recent years, in which MEPA repeatedly published the names of architects and individuals proposing changes to local and other development plans.

Asked by MaltaToday whether he agrees with MEPA's interpretation of data protection rules, Ebejer made it clear that he "does not see any data protection impediments to the publication of names of architects, companies and professional persons acting in their business or professional capacity".

However, according to Ebejer, the publication of the given names and surnames of the individuals submitting their proposals to MEPA in their personal capacity requires a legal basis under the Data Protection Act.

One option for MEPA is to obtain the consent of each such individual at the submission stage before publishing his or her names. In the absence of this, according to Ebejer, the only other possible legal justification for publication of the personal data of ordinary citizens would be "the public interest".

"However, I do not regard the publication of names and surnames of individuals making submissions in a consultation process in their personal capacity as being in the public interest, and therefore would advise against such publication," Ebejer told MaltaToday.

If MEPA were to heed the advice of the data protection commissioner, it would have to provide the names of all the architects representing clients who propose changes to local plans. (MEPA encourages citizens to seek the advice of architects when proposing changes to local plans.) In fact, citizens are asked to provide MEPA with the names of the architects representing them when filing a submission on the local plans. Although consulting an architect is not compulsory, on its website MEPA says that it would help to have an architect involved whenever plans and technical arguments are presented.

Heeding the advice of the commissioner would also mean that MEPA would continue to publish the names of companies making submissions, but would have to seek the consent of citizens who make proposals in their personal capacity before publishing their names.

The MEPA website still includes the names of citizens and companies who made submissions during the process leading to the approval of the 2006 local plans and related plans, like the Planning Policy for Ta' Masrija in Mellieha, the Ta' Qali Action Plan and local plan revisions related to the Marsa Sports Ground. MEPA also recently published the names of citizens and companies who had sent their comments on the proposed height limitation policy for hotels. Most submissions on past plans were made by developers and architects.