A team of Public Interest Litigation Network (PILN) lawyers and the Daphne Caruana Galizia Foundation are challenging Malta’s Freedom of Information Act (FOI) in the Constitutional Court, arguing that the remedies it provides are unconstitutional because they do not respect the right to freedom of expression and information protected by Article 41.
The case, filed last week, is the first ever to challenge the FOI Act and the misuse of FOI procedures to block or limit access to information within a reasonable time.
The Daphne Caruana Galizia Foundation said that the case “aims to limit state authorities’ arbitrary refusals to provide information in the public interest and to reverse the culture of secrecy behind their claims of privacy and commercial sensitivity, enabling public interest journalism to hold power to account.”
The case is based on FOI requests for a secret agreement, signed by Konrad Mizzi on behalf of Malta Government and by SOCAR Trading SA, and for a report on the feasibility of a second interconnector to Malta.
The Foundation said that the Energy Ministry has refused both requests on questionable grounds.
The Foundation said that their application has a four-fold aim.
Firstly, the foundation is calling on the courts to declare that the energy minister’s refusal to provide access to the requested information violates the Constitutional right to free expression and information.
Secondly, it is arguing that the FOI Act’s remedies for rejected requests infringe an applicant’s fundamental rights.
Thirdly, the Foundation wants the courts to declare null and void specific parts of the FOI Act that are in conflict with the Constitutional right to free expression and information, and finally it wishes that the courts take appropriate steps to offer redress to the applicant.
Public Interest Litigation Network (PILN) members Dr Claire Bonello, Dr Alain Muscat, and Dr Joseph Mizzi filed the Constitutional case on behalf of the Daphne Caruana Galizia Foundation and its director.
Bonello has been practising law for over 20 years. She is a legal consultant for environmental NGOs and has led campaigns in relation to residents’ rights. Muscat and Mizzi are partners at Muscat Mizzi Advocates, a boutique law firm with offices in Valletta and Rabat.
The PILN is a network of lawyers focussed on cases of human rights violations and other matters of public interest, exploring national, supranational, and international legal mechanisms to ensure State and individual accountability, address abuses of power, and engage civil society and the legal community to advance social change. It is currently made up of sixteen members covering a wide range of legal expertise with years of experience in human rights, media, environmental and planning, constitutional, commercial, and civil law. Five members form the Governance Committee which oversees the function of the network and selects cases for onward referral to its members.
The PILN was launched by the Daphne Caruana Galizia Foundation in September 2021, but functions autonomously. It is currently funded by Iceland, Liechtenstein and Norway through the EEA Grants Active Citizens Fund, which is operated in Malta by the NGO, SOS Malta.