Information that is in the public interest need not necessarily be disclosed, the Data Protection Commissioner has ruled, as he backed the government on seven refusals to publish documents under freedom of information law.
The requests had been pending since last year and all relate to energy agreements signed by the government for the nation’s supply of electricity and the process that led to the selection of the preferred bidder.
Following the government’s refusal on each of these requests, The Sunday Times of Malta appealed to the Data Protection Commissioner.
In a reply that dealt with all seven separate requests at one go, Commissioner Saviour Cachia informed this newspaper that the refusals would be upheld.
“It shall be emphasised that what is in the public interest to know may not generally be in the public interest to disclose,” the Commissioner said.
The Sunday Times of Malta consulted a number of legal experts to interpret this conclusion. They were unable to clarify the meaning, with comments ranging from “a quizzical conclusion” to “this is nothing more than doublespeak (deliberately ambiguous political language)”.
“It’s in your interest to know this, but I’m deciding it’s not in your interest to know this,” one lawyer said, questioning the validity of such a statement.
One of the main functions of the Commissioner is “to facilitate the right to access information held by public authorities to promote added transparency and accountability in government”.
The Commissioner said he had inspected the relevant documents requested and justified the government’s refusal on the grounds of “commercially sensitive information” and the “adverse effect” the publication of the information would have on “the ability of the government to manage the Maltese economy”.
The energy agreements signed by the Labour government have been the subject of controversy over the past three years. The Opposition even filed a motion in Parliament in July last year that calls for the publication of all agreements related to the bank guarantee. It has never even been debated.
Opposition leader Simon Busuttil told this newspaper the public interest is best served by transparency. “The government’s determination not to publish these documents is undermining the public interest,” he stressed.
“There is a clear imperative for these documents to be published because it is in the public interest to do so. We therefore find the decision by the Commissioner inexplicable,” Dr Busuttil added.
The seven refusals follow yet another refusal endorsed by the Commissioner earlier this month for the disclosure of the exchanges leading to the €360 million State guarantee covering the new gas-fired energy generation facility.
What is in the public interest to know may not generally be in the public interest to disclose- Data Commissioner
Any suspicion of wrongdoing is one of the main reasons justifying disclosure of information in Freedom of Information Acts in European countries. The office of the British Information Commissioner, for example, stipulates that “a potential public interest in transparency is where there is a suspicion of wrongdoing on the part of the public authority”.
Questions surrounding the agreement were then compounded by the controversy that erupted over the Panama Papers leak and the opening of a Panama company by minister Konrad Mizzi and the Prime Minister’s chief of staff Keith Schembri.
“The imperative to publish these documents is even more clear when one considers that this agreement is mired in controversy and has been negotiated by people who were caught red-handed with a secret company in Panama for the deposit of brokerage fees. On this basis alone, the agreement merits police investigation, let alone full disclosure,” Dr Busuttil said.
The disclosure of information in the public interest has been the subject of a number of judgments at the European Court of Human Rights. “The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community” (Barthold vs Germany).
It is further substantiated by another judgment last year in the case Couderc and Hachette Filipacchi Associes vs France: “The press’s contribution to a debate of public interest cannot be limited merely to current events and pre-existing debates. The press is a vector for disseminating debates on matters of public interest, but it also has the role of revealing and bringing to the public’s attention information capable of eliciting such interest and of giving rise to such a debate within society”.
The Nationalist Party has committed to publishing in full the agreement that would be subjected to a public inquiry. Dr Busuttil commended the “relentless efforts of the independent media to insist on the publication of these agreements and to press for the respect of the principle of transparency as one would expect in a truly democratic society”.
The Sunday Times of Malta will be appealing the Commissioner’s decision before the Information and Data Protection Tribunal.
Requests made – transparency denied
Request 1: Adjudication report on the responses to the expression of interest for prospective candidates to submit proposals for the supply of natural gas and electricity to Enemalta.
Request 2: The full agreement between Enemalta and Shangai Electric for Chinese investment in Enemalta and their purchase of the BWSC plant as well as joint ventures with Enemalta.
Request 3: The interlocking agreement between Enemalta, Electrogas and Shangai Electric Power mentioned by Minister Konrad Mizzi in November 2014.
Request 4: A copy of all agreements signed between the government and/or Enemalta with Electrogas.
Request 5: The adjudication report on the responses to the Request for Proposals from the shortlisted bidders after the call for expressions of interest.
Request 6: The Request for Proposals and any addenda and/or clarifications distributed to the shortlisted bidders.
Request 7: The Expression of Interest issued in 2013 for potential bidders to submit their proposals.
Request 8: Details of exchanges leading to the State guarantee for the new power station.
(This last request had been refused earlier. The previous seven have now been refused en masse by the commissioner.)