Keeping the contract the government signed with Henley and Partners a secret actually serves the public interest more than publishing it, the Home Affairs Ministry said as it refused The Malta Independent’s request to publish the contract.

The contract made Henley & Partners “concessionaires” of the Individual Investor Programme, through which wealthy individuals can effectively purchase Maltese citizenships for themselves and their immediate family provided certain conditions are met.

The ministry cited a number of other reasons when it refused to accede to a request made under the terms of the Freedom of Information Act, including that publishing the contract could see the government incur legal action for breach of confidence, and that it would have a “substantial adverse effect on the ability of the government to manage the Maltese economy”.

In refusing to publish the contract, the ministry missed the 20-working day deadline established by law: the request was made on 11 June, but the reply only arrived on 24 July. While the law does allow public entities to seek an extension for various reasons, the ministry opted for another tactic instead: falsely claiming that the request was sent on 23 June instead.

The Nationalist Party in opposition is also seeking the publication of the contract, through Parliament’s Public Accounts Committee, but the government’s refusal to accede to the request suggests that it will be equally unsuccessful in its quest.

In a ruling last May, Speaker Anglu Farrugia had said that the Public Affairs Committee had the right to demand the contract, dismissing the argument that it could not be discussed because of a court decree.

But the backing of at least one government MP would be required for the committee to actually demand the publication of the contract: given the government’s reasons to refuse to provide it to The Malta Independent on Sunday, it is highly unlikely that it will do so.

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The ministry cited “Articles 31(2), 32(1)(a)(b)(c), 32(4)(a), 32(5)(g), Article 35 read in conjunction with Article 37, and Article 35 read in conjunction with Article 38(c)” of the Freedom of Information Act to justify its refusal to publish the contract.

Article 31(2) states that a document is exempt if its disclosure “would found find an action by a person (other than a public authority) for breach of confidence”: effectively, the publication of the contract could lead to Henley & Partners suing the government due to a confidentiality clause.

What this means, therefore, is that the government has freely consented to ensure that a contract governing the operation of a lucrative programme – given the sparing details in the legislation, it could perhaps almost be considered to be Maltese law in itself – remains hidden from public view or scrutiny in its entirety.

Of course, it is only fair to point out that this practice is hardly new: perhaps the most notable case of a controversial, confidential contract was the one through which BWSC built the Delimara power station extension.

Back then, Opposition leader Joseph Muscat had insisted that the Nationalist government should publish the contract, and even argued that the case brought out the differences between the Labour Party and the Nationalist Party on issues concerning administration.

What these differences are supposed to be is somewhat less clear now, given Dr Muscat’s government decision to refuse to publish the Henley & Partners contract.

So far, the government has given no indication that it is ready to at least emulate what the previous government had done in the face of heavy criticism: ask BWSC to rescind the confidentiality clause to allow for the publication of the contract. As it turned out, BWSC partly acceded to the request but insisted that certain sections should remain unpublished.

In a reaction to this development, Dr Muscat had even declared that it was humiliating for the government to have to ask permission from a private entity to publish an agreement.

Since his government would have to do just that for the Henley contract to be published, it remains to be seen whether the Prime Minister will choose to humiliate himself or break his promise of a more transparent administration.

In the meantime, however, accusations of hypocrisy appear to be reasonable.

Article 35, meanwhile, states that a document may be withheld “if it contains matter in relation to which the public interest that is served by non-disclosure outweighs the public interest in disclosure”.

Effectively, therefore, the government is insisting that it is not in the public interest to know what agreement it has reached – the exact opposite of what a Labour opposition had argued over the BWSC contract.

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As the ministry’s reply suggests, Article 35 must be cited in conjunction with other articles, to prevent a blanket “not in the public interest” response to legitimate requests for information.

Article 37 states that documents are exempt if their disclosure “would have a substantial adverse effect on the financial and property interests of the government or of another public authority”.

In case this argument was not clear enough, the ministry also cited Article 32 (4)(a), which exempts the disclosure of documents if it “would, or could reasonably be expected to, have a substantial adverse effect on the ability of the government to manage the Maltese economy.” Article 32(1)(b), meanwhile, speaks of “any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed”.

Arguing that publishing a contract would seriously affect the government’s ability to manage the economy appears to imply that the government’s economic strategy depends on the revenue the programme is expected to bring, in spite of repeated claims that it is not needed to shore up government finances.

Additionally, if the government’s economic strategy depends on secret agreements, then it is nigh-on impossible for it to fulfil its electoral pledges of transparency.

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