The disclosure of information in the public interest has been the subject of a number of European Court of Human Rights judgments.“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).
Convinced that information on deals struck by Enemalta on power generation are of public interest, the Times of Malta made a number of requests under the Freedom of Information Act. When they were all turned down, it resorted to the Information and Data Protection Commissioner who informed us he deemed Enemalta’s decision “justified and in compliance” with the law. He said that “what is in the interest of the public to know may not generally be in the public interest to disclose”.
We beg to differ: if there is public interest, disclosure ought to follow. It is what the ECHR has been arguing all along. In Axel Springer AG vs Germany, the European Court noted that the duty of the press is to impart information and ideas on all matters of public interest. “Were it otherwise,’ it added, “the press would be unable to play its vital role of ‘public watchdog’.”
It pointed out in another judgment (Couderc and Hachette Filipacchi Associès vs France) “that 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. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue or which involve a problem that the public would have an interest in being informed about.”
The case Youth Initiative for Human Rights vs Serbia was about a request to an intelligence agency to provide factual information on the use of electronic surveillance measures. The agency insisted it was secret information and when the country’s Information Commissioner ordered disclosure, the agency said it did not have the information.
The ECHR found this amounted to interference with the applicant’s right to freedom of expression because the matter involved the legitimate gathering of information of public interest with the intention of imparting that information to the public and, thereby, contributing to the public debate.
In another judgment – Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria – the ECHR said the most careful scrutiny was called for when authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog.
In saying no to our requests, Enemalta spoke of “trade secrets” and said disclosure “would result in undue detriment” to itself, the government and Electrogas.
If that were really the case, why did the Prime Minister promise that the contract between the government and Electrogas would be published eventually? More recently, he pledged that all government contracts would be published by year’s end.
Enemalta must surely realise that, as Lord Justice Stephenson noted in 1984, “there is a wide difference between what is interesting to the public and what it is in the public interest to make known”.
That is why this newspaper is now taking its case to the Information and Data Protection Appeals Tribunal.