The Freedom of Information Act in its current draft form is in danger of falling short in that the “cautious and narrow approach to providing access to information that permeates Bill 7 may undermine the effectiveness of the law in practice”, according to the Commonwealth Human Rights Initiative (CHRI).

Just before the summer recess, the Bill was given its second reading in Parliament and has been listed as a priority by the Prime Minister for the current legislature. It is expected to be debated again when Parliament resumes on 29 September.

In a letter due for publication in The Malta Independent, James M. Ferguson of the CHRI’s Access to Information Programme criticises the Bill’s provisions against disclosing records of the Cabinet of Ministers and the government’s internal working documents, while raising a number of other concerns.

The CHRI is an international non-governmental organisation working for the practical realisation of human rights in Commonwealth countries.

In his letter, Mr Ferguson states that while the Act is a positive step toward implementing an effective freedom of information law in Malta, the exemptions and exclusions listed in the draft need to be reviewed if Malta’s commitment to international and regional transparency is to have practical value.

Mr Ferguson says it is “fundamentally unclear” why Cabinet’s official records should be insulated within a contemporary context in which governments around the world are committing themselves to increased openness. As long as Cabinet discussions are recorded accurately, Mr Ferguson contends, they should be open to public scrutiny unless other legitimate exemptions, such as concern for national security, apply.

The provision to protect the government’s internal working documents, he contends, could “too easily be abused by overly-cautious officials who believe that all decision-making processes are sensitive and should not be open to the scrutiny of the public”.

While the disclosure of such documents prior to a decision being taken could frustrate the success of a policy or the decision-making process, Mr Ferguson advises that such documents should at least be made public after a government decision has been taken.

Moreover, information that discloses advice given to the government during the policy and decision-making process is, according to Mr Ferguson, “exactly the kind of information that the public should be able to access, unless it is particularly sensitive, and thus subject to a separate, case-by-case exemption”.

“It is precisely the openness in disclosing an opinion of the legal service that confers greater legitimacy on public institutions in the eyes of European citizens,” he adds.

The exemption from public scrutiny of the Electoral Commission, the Employment Commission, the Public Service Commission, the Attorney General’s Office, the National Audit Office and the Malta Security Service without considering whether documents held by the public authorities are in the public interest is also unwarranted, Mr Ferguson comments.

“These,” he comments, “are blanket exclusions and go against the best practice standards of maximum disclosure. All public bodies that are funded by taxpayers should be covered by this law.”

While observing it was “positive” that the proposed legislation will apply freedom of information requests to private bodies, the CHRI argues this right of access should be “clearly enshrined” under the Act and not left open for the possibility of future regulations.

He observes, “International experience demonstrates that, with more and more private companies providing public services under government contracts, previously clear distinctions between public and private information may need to be reconsidered for the public good.

“It is increasingly important that the public interest receives greater attention in the FOI Bill in the light of these ongoing developments.”

The issue of eligibility for information has also been questioned, in that the proposed legislation provides a restrictive definition of eligible persons being a Maltese or EU citizen, a resident of Malta for five years or a citizen of another country that had specific treaties with the EU.

“Good international practice,” Mr Ferguson observes, “supports the extension of the Act to allow all persons access to information under the law, whether citizens, residents or non-citizens (such as asylum seekers) and to juristic persons, rather than only individuals.”

This approach, he says, is followed in a number of jurisdictions including the United States and Sweden – the two countries with the oldest access laws – and more recently in the UK and Ireland, whose laws provide for anyone around the world to request information.

He adds, “In an increasingly globalising world, where students, migrant workers, and tourists visit Malta, they will also have information needs even though they are not ‘eligible persons’ under Bill 7. These groups are equally deserving of access rights.”