On the 25th of January 2023 the Court of Appeal in its inferior jurisdiction confirmed a decision of the Data Protection Appeals Tribunal (the “Tribunal”) which had concluded that the five year residency requirement to be considered an “eligible person” under the Freedom of Information Act (chapter 496 of the laws of Malta – the “FOI Act”) runs contrary to the spirit of Malta’s obligations under European Union law.
This decision has finally put to rest a matter of public interest which stems back to August 2019 when an Italian citizen working with Access Info Europe (“Access Info”), a Madrid-based group that campaigns for access to information in Europe, had requested the Maltese Ministry of Home Affairs and National Security (the “Ministry”) for data on the return of migrants. This request was denied by the ministry on the basis that the individual making the request was neither a Maltese citizen, nor a European citizen who had resided in Malta for at least five years, thus not qualifying as an “eligible person” under the FOI Act.
Access Info filed a complaint with the Information and Data Protection Commissioner (the “IDPC”), who confirmed the Ministry’s decision.
Represented by Fenech Farrugia Fiott Legal, Access Info appealed the IDPC’s decision before the Tribunal arguing that the residency and citizenship requirements conflict with Malta’s obligations as a Member State of the European Union since such eligibility requirements discriminate against citizens of other Member States and therefore do not conform with European laws. Following an in-depth analysis of the laws in question, the intention of the legislator in drafting them, as well as the equivalent laws of other Member States, the Tribunal found in favour of Access Info stating that “it is clear that the intention of the legislator was never to withhold such information from the EU citizens”.
The Ministry appealed the Tribunal’s decision before the Court of Appeal, insisting that Freedom of Information requests should be restricted to Maltese citizens and EU citizens who have resided in Malta for at least five years. The Court of Appeal stated that if such a restrictive interpretation is given to the term “eligible person” it would be practically impossible for individuals who do not reside in Malta to file such requests. The Court of Appeal took into consideration not only the intention of the legislator, but also the repercussions of such a restrictive interpretation on individuals and organisations based outside of Malta. Honourable Justice Lawrence Mintoff stated that such a restriction had an impact not only on the fundamental human right to freedom of information, but also on the right of the freedom of movement since service providers looking to obtain information from government entities will face a restriction to obtain such information, as had happened in this case.
The Court of Appeal therefore found in favour of Access Info, denying the Ministry’s appeal and confirming the Tribunal’s decision.