Show MPs government contracts, says parliamentary Ombudsman

The parliamentary ombudsman, Chief Justice Emeritus Joseph Said Pullicino, is proposing a “protocol” through which the government will be in a position to share commercially sensitive information with the opposition in parliament while ensuring that it is not divulged to the public.

Speaking to MaltaToday, Said Pullicino insisted that while “there should be no reason why Parliament should not be fully informed of the contents” of agreements signed by the government, he recognised that in a limited number of cases this information can be transmitted “in a limited and restricted manner”. 

While the “non-disclosure” of information should be the exception and never the rule, he refers to cases where agreements contain sensitive information, which cannot be divulged to the public either because of the national interest or to protect the commercial interests of those signing the agreements.

In these limited cases the Ombudsman is proposing that this information is transmitted to the Leader of the Opposition or to the Select Committees of the House while adequate safeguards are in place to prevent it from being divulged to the public. 

Over the past months the government came under increased criticism for not publishing the power purchase agreements with Electrogas and Shanghai Electric Power. So far the government has only published a 15-page agreement with Shanghai Electric Power, which contains no details on how Enemalta will purchase energy from the privatised BWSC plant.

The government has so far not published its agreement with Henley and Partners, the main concessionaire of the Individual Investor Programme.  

The government has replied to calls by the Opposition to publish its agreement with Auotobuses Urbanos De Leon by saying that this will be published at the “opportune time”.

When contacted by MaltaToday for his views on whether these contracts should be published, Ombudsman Joseph Said Pullicino refused to comment on specific commercial agreements, which are “subject to a healthy political controversy”.

Instead he limited himself to outlining a number of general principles, which should regulate “good public administration”, and to making proposals to fine tune laws regulating freedom of information. 

Disclosure should be the rule

Said Pullicino insists that providing information should be the rule, and withholding it the exception: turning the ‘right’ of the public to be informed, into the ‘duty’ of the executive to inform the public.

Since the executive is answerable to Parliament, MPs should therefore have the right to be fully informed by the government to be in a position to judge, approve or disapprove of the actions of the executive. “At that level the balance of the right to be informed in case of doubt should be tipped in favour of disclosure,” he says.  

But Said Pullicino recognises that the right to be informed, like all other basic rights, is not absolute.

He referred to constitutional and statutory limitations, specifically meant to protect the national interest. The executive may withhold information when it is still involved in negotiations with a third party. “At that stage, it should be guided by public interest and is entitled to take any measure it deems fit to ensure that negotiations would not be prejudiced by untimely disclosure.”

But once an agreement is finalised it should, in principle, be made available to Parliament within a reasonable time and submitted to public scrutiny.  

“The underlying constitutional principle should clearly be that the electorate, through their representatives in Parliament, have the right to know what agreements that affect their lives have been concluded by the executive, entrusted by them to administer public affairs.” 

He also calls for a definition of “national interest”, the only grounds he says can be used to justify non-disclosure. “It has to be adequately proved that substantial harm would result to the national interest if the document is published and that non-disclosure to avoid such prejudice is in the national interest.”

In the case that agreement could contain commercially sensitive information, access should only be refused when there is no overriding public interest that requires disclosure. And then, only parts of the requested document covered by this exception should not be disclosed.

“The law needs to determine with more precision the parameters within which non-disclosure would be justified in the public interest,” Said Pullicino said, calling on the government to revisit the Freedom of Information Act “to bring it in line with more progressive legislation”.

Parliament should always be informed

He also adds that there is no reason why MPs should not be fully informed of such agreements even when they contain commercially sensitive information, as long as the information is transmitted “in a limited and restricted manner”.  

“I have suggested that one way to strike a correct balance between the interests of all parties involved would be to have a protocol that would establish how such information could be transmitted to the Opposition leader or Select Committees of the House.”

The information can be transmitted “under confidentiality”, excluding this information “from being in the immediate public domain”.

An example is the Malta Citizenship Act, which provided that the Leader of the Opposition was to be a member of the Monitoring Committee to monitor the workings of the Individual Investor Programme.

“It does not seem proper that Parliament or at least the Leader of the Opposition is not privy to commercial agreements… when it is not only the government that is fully aware of the contents of these agreements but also top civil servants, executives of public authorities, consultants and technocrats.”

Sharing information on commercial agreements within limits, he adds, is “one of the most effective ways to prevent and combat corruption in the management of public affairs”.