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Maltese Laws |
1. Short title and commencement.
2. Interpretation.
3. Right of access to official documents.
4. Access to documents other than through this Act.
5. Application of this Act.
6. Manner in which requests for access shall be made.
7. Public authority’s duty to assist applicants.
8. Transfer of requests.
9. Fees.
10. Decisions on and replies to requests.
11. Extension of time limits.
12. Manner in which access may be granted.
13. Deletion of exempt matter or irrelevant material.
14. Reasons for refusal of requests.
15. Reason for refusal to be given.
16. Decisions by public authorities under this Act.
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17. Publication of information by public authorities.
18. Right of access to certain official information.
19. Right of access to internal rules affecting decisions.
20. Right of access by a person to reasons for decisions affecting that person.
21. General functions of the Commissioner.
22. Recommendations as to good practice.
23. Application for decision by Commissioner.
24. Information notices.
25. Enforcement notices.
26. Exception from duty to comply with decision notice or enforcement notice.
27. Failure to comply with notice.
28. No civil action against a public authority.
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29. Documents affecting national security, defence or international relations, and
Cabinet documents.
30. Documents affecting the enforcement of the law and the protection of public safety.
31. Documents subject to legal professional privilege or containing material obtained in confidence.
32. Documents relating to business affairs, the economy and research.
33. Documents the disclosure of which would be contempt of Parliament or of
Court.
34. Information concerning existence of certain documents.
35. Application of this Part.
36. Internal working documents.
37. Documents affecting financial or property interests of public authorities.
38. Documents concerning certain operations of public authorities.
39. Appeals against notices served by the Commissioner.
40. Appeals from decisions of the Tribunal.
41. Code of practice.
42. Regulations.
43. Damage etc. of documents to constitute an offence.
44. Amendments to the Code of Organisation and Civil Procedure.
45. Amendments to the Press Act.
46. Amendments to the Data Protection Act.
47. Amendments to the Local Councils Act.
48. Amendments to the Freedom of Access to Information on the Environment
Regulations.
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I assent.
(L.S.) EDWARD FENECH ADAMI
President
19th December, 2008
ACT No. XVI of 2008
AN ACT to establish a right to information held by public authorities in order to promote added transparency and accountability in government.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives in this present Parliament assembled, and by the authority of the same, as follows:—
Act, 2008.
(2) This Act shall come into force on such a date as the Minister may by notice in the Gazette appoint, and different
dates may be so appointed for different provisions or different purposes of this Act.
“applicant” means, in relation to a request for the disclosure of a document in accordance with article 3, the person who made
that request;
“Commissioner” means the Information and Data Protection Commissioner appointed in terms of article 36 of the Data Protection
Act;
“decision notice” has the meaning given by article 23;
Short title and commencement.
Interpretation.
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“document” means any article that is held by a public authority and on which information has been recorded in whatever form, including
electronic data, images, scale models and other visual representations, and audio or video recordings, regardless of whether the
information can be read, seen, heard or retrieved with or without the aid of any other article or device;
“eligible person” means a person who is resident in Malta and who has been so resident in Malta for a period of at least five
years, and who is either a citizen of Malta or a citizen of any other member state of the European Union or a citizen of any other
state the citizens of which have a right, in virtue of any treaty between such state and the European Union, to be treated in Malta
in the same manner as citizens of member states of the European Union;
“enforcement notice” has the meaning given by article 25; “European Union” has the meaning given by the European
Union Act;
“exempt document” means a document which is not subject to disclosure under this Act in accordance with Parts V and VI;
“exempt matter” means matter the inclusion of which in a document causes the document to be an exempt document;
“information notice” has the meaning given by article 24; “Minister” means the Minister responsible for freedom of
information and data protection;
“Principal Permanent Secretary” means the officer appointed in terms of article 14 of the Public Administration Act;
“public authority” means:
(a) the Government, including any ministry or department thereof;
(b) a Government agency established in terms of the Public Administration Act or any other law; and
(c) any body established under any law, or any partnership or other body in which the Government of Malta, a Government agency or
any such body as aforesaid has a controlling interest or over which it has effective control;
“relevant public authority” means a public authority other than those mentioned in article 5;
“Tribunal” means the Information and Data Protection Appeals Tribunal established under article 48 of the Data
Protection Act.
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(a) are held by a Local Council and are accordingly subject to article 45 of the Local Councils Act;
(b) are subject to the Freedom of Access to Information on the Environment Regulations or to any other regulations made under
the Environment Protection Act and providing for freedom of access to information;
(c) have been transferred to the National Archives in accordance with the National Archives Act;
(d) are accessible to the public under any other law;
(e) are available for purchase by the public in accordance with arrangements made by a public authority; or
(f) are held by a commercial partnership in which the Government or another public authority has a controlling interest,
in so far as the documents in question relate to the commercial activities of the commercial partnership.
(2) This Act shall apply to documents to which subarticle (1) refers only in so far as may be provided for by any law governing
access to such documents.
(3) This Act shall not apply to documents in so far as such documents contain –
(a) personal data subject to the Data Protection Act; or
(b) information the disclosure of which is prohibited by any other law:
Provided that where it is possible to release a document with such data or information deleted, this shall be done in accordance with
subarticles (1) and (2) of article 13.
(4) This Act shall not apply to documents held by: (a) the Electoral Commission;
(b) the Employment Commission; (c) the Public Service Commission;
Right of access to official documents.
Access to documents other than through this Act.
Application of this
Act.
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(d) the Office of the Attorney General; (e) the National Audit Office;
(f) the Security Service; or
(g) the Broadcasting Authority, in so far as such documents relate to its functions under subarticle (1) of article
119 of the Constitution.; or
(h) the Ombudsman.
Manner in which requests for access shall be made.
Public authority’s duty to assist applicants.
Transfer of requests.
(a) be delivered in writing, including by post or electronically, subject to paragraph (e), to an office of the public authority;
and
(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the public
authority to identify it; and
(c) include a copy of the applicant’s identity card or residence permit, or make reference to the identity card
or residence permit in such a way as may be specified by regulations issued under paragraph (a) of article 42;
(d) specify a postal address at which notices under this
Act may, if necessary, be sent to the applicant; and
(e) be accompanied by any fee payable in accordance with subarticle (3) of article 9.
(2) No applicant shall be required to justify or give any reasons for a request under this Act, and any beliefs of
public authorities as to what are the applicant’s reasons for seeking access shall not affect that request.
(a) wishes to make a request to a public authority; or
(b) has made to a public authority a request that does not comply with article 6,
it is the duty of the public authority to take reasonable steps to assist the person to make the request in a manner that complies
with article 6, and it shall do so at no charge.
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held by the authority but is believed by the person dealing with the request to be held by another public authority, the public authority
to which the request is made shall promptly, and in any case not later than
10 working days after the day on which the request is received, transfer the request to the other public authority and inform the
applicant accordingly.
(2) Any fee set by a public authority shall not exceed the cost of making a document available to the applicant, whereas if regulations
issued as aforesaid prescribe a range of standard fees, such fees shall not exceed the average cost of making documents available
to applicants.
(3) Regulations issued as aforesaid may provide for the payment of a fee specifically for the processing of a request for access
to documents, and for the payment of such a fee on presentation of the request.
(4) Where a public authority decides to charge an applicant a fee, it shall advise him accordingly and inform him
that he has the right to complain to the Commissioner under article 23 if he feels that the fee is excessive:
Provided that if the fee is a standard fee established by regulations under this Act, the Commissioner may in response to such a complaint
inquire only into whether the regulations have been correctly applied.
(5) A public authority may waive any fees payable in respect of a particular application if, in the opinion of the authority
–
(a) the fee payable is so small as to be not worth collecting; or
(b) payment of the fee would cause financial hardship to the applicant, bearing in mind the applicant’s means and circumstances;
or
(c) disclosure of the information requested is in the public interest.
(6) Where a public authority fails to meet the time limit set by article 10 or, if applicable, article 11, it shall not charge
any fee for access to a document.
Fees.
Decisions on and replies to requests.
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later than 20 working days after the day on which the request is received by the authority –
(a) decide whether the request is to be granted and, if it is to be granted, in what manner and for what charge (if any); and
(b) inform the applicant accordingly in writing.
Extension of time limits.
Manner in which access may be granted.
(a) the request is for a large number of documents or necessitates a search through a large number of documents, and meeting the
original time limit would unreasonably interfere with the operations of the public authority; or
(b) consultations necessary to make a decision on the request are such that a proper response to the request cannot reasonably
be made within the original time limit.
(2) Any extension under subarticle (1) shall be for a reasonable period of time having regard to the circumstances.
(3) The extension shall be effected by giving notice to the person who made the request within 20 working days after the day on
which the request is received, and the notice shall –
(a) specify the period of the extension; (b) give the reasons for the extension;
(c) state that the applicant has the right under article 23 to make a complaint to the Commissioner about the extension; and
(d) contain such other information as is necessary.
(a) by giving the applicant a reasonable opportunity to inspect the document; or
(b) by providing the applicant with a copy of the document; or
(c) in the case of a document that is a recording of sounds or visual images, by making arrangements for the applicant to hear
or view those sounds or visual images; or
(d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form
of sound or in which words are contained in the form of shorthand writing or in codified form, by providing the applicant
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with a written transcript of the words recorded or contained in the document; or
(e) by giving an excerpt or summary of the contents.
(2) Subject to article 13, the public authority shall make the document available to the applicant in the way preferred by the
applicant unless to do so would –
(a) impair efficient administration; or
(b) be contrary to any legal duty of the public authority in respect of the document; or
(c) prejudice the interests protected by Part V and Part VI and (in the case of the interests protected by Part VI)
those interests are not outweighed by a contrary public interest.
(3) Where access is not granted in the way preferred by the applicant, the public authority shall give to the applicant the reason
for not providing the information in that way and state that the applicant has the right under article 23 to make a complaint
thereon to the Commissioner.
(a) it is possible for the public authority to make a copy of the document with the deletion of the exempt matter; and
(b) it is reasonably practical for the public authority, having regard to the nature and extent of the work involved in
deciding on and making those deletions and the resources available for that work, to make such a copy,
the public authority shall make such a copy available to the applicant.
(2) Where access is granted to a copy of a document in accordance with subarticle (1), the applicant shall be informed –
(a) that it is a copy;
(b) of the grounds for the deletions; and
(c) that the applicant has the right under article 23 to make a complaint to the Commissioner about the deletions.
(3) Where a document (not being an exempt document) contains material that is irrelevant to the applicant’s request, the public
authority may, if possible and reasonably practical and if the applicant agrees, make available to the applicant a copy of the document
with the irrelevant material deleted; but a document may not be withheld on the grounds that it contains irrelevant material which
cannot be deleted.
Deletion of exempt matter or irrelevant material.
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Reasons for refusal of requests.
Reason for refusal to be given.
(a) that the document requested is excluded from the scope of this Act by virtue of article 5;
(b) that, by virtue of Part V or Part VI, there is good reason for withholding the document requested;
(c) that, by virtue of article 34, the public authority does not confirm or deny the existence or non-existence of the
document requested;
(d) that the document requested is publicly available or will be published within three months;
(e) that the document requested cannot be found, and this is certified in writing by the head of the public authority;
(f) that the resources required to –
(i) identify, locate or collate a document or documents;
(ii) examine a document or consult any person or body in relation to its possible disclosure; or
(iii) make a copy, or an edited copy, of a document, would substantially and unreasonably divert the resources of the
public authority from its other operations, and it has not proved
possible for the applicant, with advice from the public authority, to redefine his request in such a manner as to make it more easily
addressed by the authority;
(g) that the document requested is not held by the public authority and the person dealing with the request has no grounds for
believing that the document is held by, or connected more closely with the functions of, another public authority; or
(h) that the request is frivolous or vexatious or that the information requested is trivial.
(a) subject to article 34, give the applicant the reasons for the refusal; and
(b) state that the applicant has the right, under article 23 of this Act, to seek an investigation and review by the Commissioner
of the refusal.
(2) A notice under this article is not required to contain any matter that is of such a nature that its inclusion in a document
would cause that document to be an exempt document.
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(a) the head of the public authority or its governing board (as applicable), as identified in or established under the Public
Administration Act or any other instrument to which the authority is subject; or
(b) an officer of the public authority, acting within the scope of the authority exercisable by him in accordance with arrangements
approved by the head of the authority or by its governing board.
(2) A decision to disclose or grant access to a document in accordance with this Act shall constitute authorised disclosure in
terms of the Official Secrets Act.
(a) a description of its structure, functions and responsibilities;
(b) a general description of the categories of documents held by it;
(c) a description of all manuals and similar types of documents which contain policies, principles, rules or guidelines in accordance
with which decisions or recommendations are made in respect of members of the public (including bodies corporate and employees of
the public authority in their personal capacity); and
(d) a statement of the information that needs to be available to members of the public who wish to obtain access to official
documents from the public authority, which statement shall include particulars of the officer or officers to whom requests for such
access should be sent.
(2) The Minister may, by regulations issued in consultation with the Commissioner, require relevant public authorities to
publish information additional to that listed in subarticle (1).
(3) Each public authority shall update the material published in accordance with subarticles (1) and (2) at least
annually, or at more frequent intervals as may be established by regulations issued under subarticle (2).
Decisions by public authorities under this Act.
Publication of information by public authorities.
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Right of access to certain official information.
(4) Publication on an internet website or another electronic medium that is publicly accessible at all reasonable
times shall be sufficient to satisfy the requirements of this article, provided that the information published hereunder shall be
made available in printed form to members of the public who so require it.
(5) Nothing in this article shall require the publication of information where there is good reason under this Act to withhold
it.
(a) services provided to the public by such bodies or persons on behalf of the Government or another public authority;
or
(b) projects or initiatives which are undertaken by such bodies or persons but financed by the Government or another
public authority.
(2) The giving of access to any information to which subarticle (1) applies shall be subject to the provisions of any
regulations made under this Act.
Right of access to internal rules affecting decisions.
(2) The provisions of Part II other than articles 12 and 13 shall apply mutatis mutandis to a request made under subarticle (1).
(3) Where, by virtue of Part V and Part VI, there is good reason for withholding parts of a document to which subarticle (1) relates,
the public authority shall, unless it is impracticable to do so, either –
(a) make a copy of that document available with such deletions or alterations as are necessary; or
(b) provide another document stating the substance and effect of the document except as it relates to the information withheld.
(4) Where a document is made available in accordance with subarticle (3), the public authority shall –
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(a) give to the applicant the reasons for withholding the information; and
(b) state that the applicant has the right, under article 23, to seek an investigation and review by the Commissioner of the withholding
of the information.
(a) the findings on material issues of fact; and
(b) subject to subarticle (2), a reference to the information on which the findings were based; and
(c) the reasons for the decision or recommendation.
(2) A reference to the information on which any findings were based need not be given under paragraph (b) of subarticle (1) if
–
(a) the disclosure of the information or of information identifying the person who supplied it, being evaluative material, would
breach an express or implied promise to the person who supplied the information to the effect that the information, or his identity,
or both would be held in confidence; or
(b) after consultation undertaken (where practicable) by or on behalf of the public authority with a natural person’s medical
practitioner, the public authority is satisfied that the information relates to that person and the disclosure of the information
(being information that relates to the physical or mental health of the person making the request under this article) would be likely
to prejudice the physical or mental health of that person; or
(c) in the case of a natural person under the age of 18, the disclosure of the information would be contrary to that person’s
interests; or
(d) the disclosure of the information (being information in respect of a person who has been convicted of an offence or is or
has been detained in custody) would be likely to prejudice the safe custody or the rehabilitation of that person.
(3) For the purposes of paragraph (a) of subarticle (2), the term “evaluative material” means an assessment or opinion
compiled solely –
(a) for the purpose of determining the suitability, eligibility or qualifications of the person to whom the material
relates for purposes relating to the award, continuation or
Right of access by
a person to reasons for decisions affecting that person.
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cancellation of an appointment, a contract, an award, a scholarship, an honour or any other benefit; or
(b) for the purpose of determining whether to insure any person or property or to continue or renew such insurance.
(4) The provisions of Part II other than articles 12 and 13 shall apply mutatis mutandis to a request made under subarticle (1).
General functions of the Commissioner.
(a) the requirements of this Act; and
(b) the provisions of the code of practice issued under article 41.
(2) The Commissioner shall arrange for the dissemination in such form and manner as he considers appropriate of such
information as it may appear to him expedient to give to the public –
(a) about the operation of this Act,
(b) about compliance with the law, and
(c) about other matters within the scope of his functions under this Act,
and he may give advice to any person or authority as to any of those matters.
(3) Without prejudice to articles 22, 24 and 25, the Commissioner may, with the consent or at the request of any public authority,
assess whether that authority is following good practice.
(4) The Commissioner may charge such sums as he may, with the consent of the Minister, determine for any of the services provided
by the Commissioner under this article.
(5) Within three months following the end of each calendar year the Commissioner shall prepare and submit to the
Minister an annual report on the workings of this Act during that year, and the Minister shall at the first available opportunity
cause a copy of the report to be laid on the table of the House of Representatives; the report shall state:
(a) how many requests for information under this Act have been made to public authorities;
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(b) how many of these requests have been accepted and rejected;
(c) the reasons for rejection;
(d) the average time taken to reply to requests;
(e) how many complaints have been made to the Commissioner, the grounds for such complaints, and the outcome thereof;
(f) the number of appeals lodged with the Tribunal and how they have been determined; and
(g) the number of information, decision and enforcement notices issued by the Commissioner.
(6) Without prejudice to subarticle (4) hereof and to articles 26, 39 and 40, in the exercise of his functions under this
Act the Commissioner shall act independently and shall not be subject to the direction or control of any other person or authority.
(7) In this article “good practice”, in relation to a public authority, means such practice in the discharge of its functions
under this Act as appears to the Commissioner to be desirable, and includes (but is not limited to) compliance with the requirements
of this Act and the provisions of the code of practice issued under article 41.
(2) A practice recommendation must be given in writing and must refer to the particular provisions of the code of practice with which, in the Commissioner’s opinion, the public authority’s practice does not conform.
(a) a request for information made by the applicant to a public authority has been dealt with in accordance with the requirements
of this Act; or
(b) a public authority is in compliance with the requirements set out in Part III.
(2) On receiving an application under this article, the
Commissioner shall make a decision unless it appears to him –
Recommendations as to good practice.
Application for decision by Commissioner.
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(a) that the applicant has not exhausted any complaints procedure which may be provided by the public authority in conformity
with the code of practice issued under article 41;
Provided that the Commissioner may decide on the application if in his opinion the complaints procedure provided by
the public authority has not been, or is unlikely to be, concluded within a reasonable period;
(b) that there has been undue delay in making the application;
(c) that the application is frivolous or vexatious; or
(d) that the application has been withdrawn or abandoned.
(3) Where the Commissioner has received an application under this article, he shall either –
(a) notify the applicant that he has not made any decision under this article as a result of the application and of his grounds
for not doing so; or
(b) serve notice of his decision (in this Act referred to as a
“decision notice”) on the applicant and the public authority.
(4) Where the Commissioner decides that a public authority –
(a) has failed to provide access to a document, or to confirm or deny the existence of a document, in a case where it
is required to do so under this Act; or
(b) has failed to comply with any of the other requirements of Part II in its handling of the applicant’s request
for a document; or
(c) has failed to comply with any of the requirements of Part III,
the decision notice shall specify the steps which must be taken by the authority for complying with that requirement and the period
within which they must be taken.
(5) A decision notice shall contain particulars of the right of appeal conferred by article 39.
(6) Where a decision notice requires steps to be taken by the public authority within a specified period, the time specified in
the notice shall not expire before the end of the period within which an appeal can be brought against the notice and, if such an
appeal is brought, no step which is affected by the appeal need be taken pending the determination or withdrawal of the appeal.
(7) This article shall have effect subject to article 26.
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(a) for the purpose of determining whether a public authority has complied or is complying with any of
the requirements of this Act; or
(b) for the purpose of determining whether the practice of a public authority in relation to the exercise of its functions under
this Act conforms with that set out in the code of practice established under article 41,
he may serve the authority with a notice (in this Act referred to as an “information notice”) requiring it, within such time as
is specified in the notice, to furnish the Commissioner, in such a manner as may be so specified, with such information as is so
specified relating to the application or to the purposes to which paragraphs (a) and (b) refer.
(2) An information notice shall specify the purpose for which the Commissioner requires the information and, where it refers to
information recorded in a document, shall include such details as is reasonably necessary to enable a responsible officer of the
public authority to identify that document.
(3) An information notice shall also contain particulars of the right of appeal conferred by article 39.
(4) The time period specified in an information notice shall not expire before the end of the period within which an appeal
can be brought against the notice and, if such an appeal is brought, the information required by the notice need not be furnished
pending the determination or withdrawal of the appeal.
(5) A public authority shall not be required by virtue of this article to make available to the Commissioner any information in
respect of:
(a) any communication between a professional legal adviser and his client in connection with the giving of legal advice
to the client with respect to his obligations, liabilities or rights under this Act; or
(b) any communication between a professional legal adviser and his client, or between such an adviser or his client
and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings
before the Tribunal) and for the purposes of such proceedings.
(6) In subarticle (5) references to the client of a professional legal adviser include references to any person
representing such a client.
Information notices.
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(7) The Commissioner may cancel an information notice by written notice to the public authority on which it was served.
(8) In this article “information” includes unrecorded information.
Enforcement notices.
Exception from duty to comply with decision notice or
enforcement notice.
(2) An enforcement notice shall contain –
(a) a statement of the requirement or requirements of this Act with which the public authority has, in the Commissioner’s satisfied
opinion, failed to comply, and his reasons for reaching that conclusion; and
(b) particulars of the right of appeal conferred by article 39.
(3) An enforcement notice shall not require any of the provisions of the notice to be complied with before the end of the period
within which an appeal can be brought against the notice and, if such an appeal is brought, the notice need not be complied
with pending the determination or withdrawal of the appeal.
(4) The Commissioner may cancel an enforcement notice by written notice to the public authority on which it was served.
(5) This article shall have effect subject to article 26.
(2) A certificate under this article shall contain a statement by the Prime Minister of the reasons for his opinion,
except in so far as this would involve the disclosure of matter that is exempt matter in terms of the provisions of Part V.
(3) Where the Prime Minister issues a certificate under this article, he shall as soon as practicable thereafter lay a copy of
it before the House of Representatives.
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(4) Where the Commissioner receives a certificate under this article in respect of a decision notice, he shall inform the applicant accordingly.
(a) so much of a decision notice as requires steps to be taken;
(b) an information notice; or
(c) an enforcement notice,
this shall be regarded as an offence in terms of subarticle (2) of article
41 of the Data Protection Act, and the Commissioner may also levy an administrative fine against the defaulting authority or officer
thereof as provided for by subarticle (3) of article 42 of the Data Protection Act.
(2) Where a public authority fails to comply with an information notice, or where the Commissioner believes that an offence in
terms of article 43 is being or is about to be committed, the Commissioner may act to secure compliance with the notice or to prevent
the offence from being committed using the powers of entry and search vested in the Commissioner under subarticle
(5) of article 41 of the Data Protection Act, which shall be applicable for this purpose.
(3) For the purposes of this article, a public authority which, in purported compliance with an information notice –
(a) makes a statement which it knows to be false in a material respect; or
(b) recklessly makes a statement which is false in a material respect,
shall be taken to have failed to comply with the notice.
(2) Subarticle (1) shall not affect the powers of the
Commissioner under article 27.
Failure to comply with notice.
No civil action against a public authority.
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Documents affecting national security, defence or international relations, and Cabinet documents.
Documents affecting the enforcement of the law and the protection of public safety.
PART V
CONCLUSIVE REASONS FOR NOT DISCLOSING OFFICIAL DOCUMENTS UNDER THIS ACT
29. (1) A document is an exempt document if its disclosure under this Act:
(a) would, or could reasonably be expected to, cause damage to the security, the defence, or the international relations of Malta< or
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government, or an international organisation to the Government of Malta or to another public authority, or by the Government of Malta or another public authority to a foreign government, an authority thereof, or an international organisation.
(2) Subject to subarticle (3), a document is an exempt document if it is>
(a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission to the Cabinet<
(b) an official record of the Cabinet<
(c) a document that is a copy of all or part of, or contains an extract from, a document referred to in paragraph (a) or (b)< or
(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was published>
Provided that each year, the Prime Minister may direct that certain Cabinet documents, being documents selected from among
those that are 30 years old or more, shall be subject to disclosu> re,
whereupon this subarticle shall not apply to such documents.
(3) Subarticle (2) shall not apply to a document if, and in so far as, it contains factual information relating to a decision of the Cabinet that has been published.
(4) In subarticles (2) and (3) “Cabinet” includes Cabinet
Committees.
30. (1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:<
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance<;
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-
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existence of a confidential source of information, in relation to the enforcement or administration of the law; or
(c) endanger the life or physical safety of any person.
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the fair trial of a person or the impartial adjudication of a particular case by any court, tribunal, disciplinary
board, arbitration panel or similar body, or prejudice an inquiry conducted under the Inquiries Act;
(b) prejudice the effectiveness of lawful methods or procedures for preventing, detecting, investigating, or dealing with matters
arising out of breaches or evasions of the law through the disclosure thereof; or
(c) prejudice the maintenance or enforcement of lawful methods for the protection of public safety.
(3) For the purposes of paragraph (b) of subarticle (1), a person shall be taken to be a confidential source of information in
relation to the enforcement or administration of the law if the person is receiving, or has received, protection by the Police or
other public authorities as:
(a) a witness; or
(b) a person who, because of his relationship to or association with a witness, needs or may need such protection; or
(c) any other person who, for any reason, needs or may need such protection.
(2) A document is an exempt document if its disclosure under this Act would found an action by a person (other than a public authority)
for breach of confidence.
(3) Subarticle (2) shall not apply to internal working documents prepared by a member, officer or employee of the Government or
any other public authority in the course of his duties unless the disclosure would constitute a breach of confidence owed to a person
or body other than a member, officer or employee of the Government or any other public authority as aforesaid.
(a) trade secrets;
Documents subject to legal professional privilege or
containing material obtained in confidence.
Documents relating to business affairs, the economy and research.
A 442
(b) 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; or
(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his
business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, being
information:
(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in
respect of his lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial
or financial affairs; or
(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Government
or to another public authority for the purpose of the administration of a law or the administration of matters administered by the
authority.
(2) Subarticle (1) shall not apply to a request for access to a document by reason only that the document contains
information about:
(a) the applicant’s own business or professional affairs;
(b) the business, commercial or financial affairs of an undertaking where the applicant is the proprietor of the
undertaking or is acting on behalf of the proprietor; or
(c) the business, commercial or financial affairs of an organisation where the applicant is acting on its behalf.
(3) Paragraph (c) of subarticle (1) shall not apply to information solely concerning a person’s status as a member of a profession.
(4) A document is an exempt document if its disclosure under this Act would be contrary to the public interest by reason that
it:
(a) would, or could reasonably be expected to, have a substantial adverse effect on the ability of the Government to manage the
Maltese economy; or
(b) could reasonably be expected to result in an undue disturbance of the ordinary course of business in the community, or an
undue benefit or detriment to any person or community, or an undue benefit or detriment to any person or class of persons, by reason
of giving premature knowledge of or concerning proposed or possible action or inaction of the Government or Parliament.
A 443
(5) The kinds of documents to which subarticle (4) may apply include, but are not limited to, documents containing matter relating
to:
(a) currency or exchange rates; (b) interest rates;
(c) taxes, including duties of customs or of excise;
(d) the regulation or supervision of banking, insurance and other financial institutions;
(e) the stability of the financial system; (f) proposals for expenditure;
(g) foreign investment in Malta; or
(h) borrowings by the Government or other public authorities.
(6) A document is an exempt document if it is in the possession of a member of the academic staff of the University of Malta and
contains information relating to research that has been or is being undertaken by such a member, unless the research has been commissioned
by a public authority.
(7) A document is an exempt document if:
(a) it contains information relating to scientific or academic research that is being, or is to be, undertaken
by a member of staff of a public authority, other than research to which subarticle (6) applies; and
(b) disclosure of the information before the completion of the research would be likely unreasonably to expose the public authority
or the member of staff to disadvantage.
(8) Subarticle (7) shall not apply to a document that, in so far as it contains information relating to research, only contains
information relating to research that has been completed.
(9) A document is an exempt document if it contains information relating to research on security and defence matters which has
been undertaken or commissioned by, or with the involvement of, a public authority.
(a) be in contempt of court;
Documents the disclosure of which would be contempt of Parliament or of Court.
A 444
(b) be contrary to an order made or direction given by any Board to which the Inquiries Act applies, or by any tribunal or other person having power to take evidence on oath; or
(c) infringe the privileges of Parliament.
Information concerning existence of certain documents.
Application of this Part.
(a) a request under this Act relates to a document to which the provisions of this Part apply, or would apply if such
a document existed; and
(b) the existence or non-existence of the document would in its own right, if it were stated in a document, be subject to non-
disclosure in terms of any of the said provisions,
the public authority dealing with the request may give notice in writing to the applicant that it neither confirms nor denies the
existence or non- existence of that document.
provisions of this Part only if it contains matter in relation to which the public interest that is served by non-disclosure outweighs the public interest in disclosure.
Internal working documents.
(2) Subarticle (1) shall not apply to a document by reason only of purely factual information contained in the document.
(3) Subarticle (1) shall not apply to:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether
employed by a public authority or not, including reports expressing the opinions of such experts on scientific or technical matters;
or
(b) the record of, or a final statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative
function.
(4) In subarticle (3) the term “scientific or technical expert” shall be construed as excluding senior managers in
public authorities.
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by a public authority;
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by a public
authority;
(c) have a substantial adverse effect on the proper and efficient conduct of the operations of a public authority; or
(d) have a substantial adverse effect on the conduct of negotiations (including commercial and industrial negotiations) by or
on behalf of the Government or another public authority.
(2) A public authority on which an information notice or an enforcement notice has been served by the Commissioner may
appeal to the Tribunal against the notice.
(3) If, on an appeal under this article, the Tribunal considers –
(a) that the notice against which the appeal is brought is not in accordance with the law; or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his
discretion differently,
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Documents affecting financial or property interests of public authorities.
Documents concerning certain operations of public authorities.
Appeals against notices served by the Commissioner.
A 446
Appeals from decisions of the Tribunal.
Code of practice.
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other
case the Tribunal shall dismiss the appeal.
(4) Where the Tribunal substitutes a notice as aforesaid, the Commissioner shall take action under article 27 to secure
compliance as if that notice had been issued by the Commissioner.
(5) In hearing appeals under this article the Tribunal shall remain subject to the following provisions of the Data Protection
Act:
(a) subarticle (3) of article 49; and
(b) subarticles (2), (3) and (4) of article 50.
(2) The code of practice shall, in particular, include provisions relating to:
(a) the provision of advice and assistance by public authorities to persons who propose to make, or have made, requests
for information to them;
(b) the transfer of requests by one public authority to another public authority which holds, or may hold, the documents
requested;
(c) consultation with persons to whom the information requested relates or persons whose interests are likely to be affected
by the disclosure of information;
(d) the inclusion in contracts entered into by public authorities of terms relating to the disclosure of information;
(e) the provision by public authorities of rapid procedures for dealing with complaints about the handling by them of requests
for information; and
(f) the keeping of documents and records by public authorities in such a manner as to facilitate the identification and retrieval
of documents for the purposes of this Act.
(3) The code may make different provision for different public authorities.
(4) Before issuing or revising any code under this article, the Minister shall consult the Commissioner and the
Principal Permanent Secretary.
A 447
Regulations.
(a) to prescribe application forms (manual or electronic) and other documents required for the purposes of this Act, or authorising
any person to prescribe or approve such forms or documents:
Provided that forms cannot place requirements on applicants additional to those set out by this Act, and that an application meeting
all such requirements shall still be considered if it is made otherwise than using the prescribed form;
(b) to establish the procedure for the service of notices and documents by public authorities under this Act;
(c) to prescribe reasonable charges or scales of reasonable charges for the purposes of this Act; and
(d) to provide for such matters as are contemplated by or necessary for giving full effect to this Act and for its due administration.
“(2) No witness may be compelled to disclose any information derived from or relating to any document to which subarticle (3)
of article 637 applies.”
(2) Subarticle (3) of article 637 of the Code shall be substituted by the following:
“(3) It shall not be lawful to demand the production of any document which is held by a public authority and –
(a) which is an exempt document under articles 29, 30 or 36(1) or subarticles (4) or (5) of article 32 of the Freedom of
Information Act; or
(b) the disclosure of which is prohibited by
Damage etc. of documents to constitute an offence.
Amendments to the Code of Organisation and Civil Procedure.
A 448
Amendments to the
Press Act.
Amendments to the
Data Protection
Act.
any other law.”
(3) Subarticle (4) of article 637 of the Code shall be substituted by the following:
“(4) Where a demand is made for the production in court of a document held by a public authority, and the
public authority is of the view that paragraph (a) of subarticle (3) applies to that document, the public authority shall reply to
the demand as if that demand were a request for disclosure of the document under the Freedom of Information Act; and the provisions of Parts II and IV and of articles 39, 40 and 43 of the Freedom of Information Act shall apply accordingly.”
(4) Subarticle (6) of article 637 of the Code shall be substituted by the following:
“(6) In this article “public authority” shall have the meaning assigned to it by the Freedom of Information Act.”
(2) Subarticle (3) of article 47 of the Press Act shall be renumbered as article 47 thereof.
(2) In article 2 of the Data Protection Act, for the words “Minister responsible for data protection” there shall be substituted
the words “Minister responsible for freedom of information and data protection”.
(3) In paragraph (m) of article 40 of the Data Protection Act, the words “international obligation of Malta.” shall be replaced
by the words “international obligation of Malta; and”, and a new paragraph shall be added as follows:
“(n) to carry out the functions assigned to him by the Freedom of Information Act.”
(4) In article 48 of the Data Protection Act and in the marginal note thereto, for the words “Data Protection Appeals
Tribunal” there shall be substituted the words “Information and Data Protection Appeals Tribunal”.
(5) In subarticle (1) of article 52 of the Data Protection Act, the words “and under the Freedom of Information Act and other laws” shall be added immediately following the words “The expenses required by the Commissioner to exercise his functions
under this Act”.
(6) In subarticle (1) of article 53 of the Data Protection Act, the words “under this Act and under the Freedom of Information Act and other laws” shall be added immediately following the words “The Commissioner shall cause to be kept proper accounts and other
records in respect of his operations”.
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Amendments to the
Local Councils
Act.
“ “Inform ation and Data Protection Commissioner” means the official appointed in terms of article 36 of the Data
Protection Act;”.
(2) The provision of article 45 of the Local Councils Act shall be numbered as subarticle (1) of the same article.
(3) The following new subarticles (2) and (3) shall be added to article 45 of the Local Councils Act subsequent to the
current provision thereof:
“(2) Any person who requests information from a Local Council in accordance with subarticle (1) and who is dissatisfied
with the Council’s response to his request may apply to the Information and Data Protection Commissioner for a decision whether,
in any specified respect, his request has been dealt with in accordance with the requirements of this Act and any regulations made
hereunder.
(3) Part IV of the Freedom of Information Act, other than article 26, as well as articles 39, 40 and 43 of the same Act, shall apply mutatis mutandis to requests for information under this article, save that references to a code of practice in Part IV of the Freedom of Information Act shall be construed as referring to any code of practice on the disclosure of information that may be issued by the Minister through
regulations under this Act; but the application of the Freedom of Information Act in terms of this subarticle shall not be dependent on the issue of such a code.”
Amendments to the Freedom of Access to Information on the Environment Regulations.
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(Article 48)
BY VIRTUE of the powers conferred by articles 3, 9, 19, 23 and 28 of the Environment Protection Act the Prime Minister has made the following regulations:—
Citation and commencement.
Amendment to regulation 2.
Addition of new regulations.
(2) These regulations shall be read and construed as one with the Freedom of Access to Information on the Environment Regulations,
2005, hereinafter referred to as “the principal regulations”.
(3) These regulations shall come into force on such a date as the Minister responsible for the environment may by notice in the
Gazette appoint.
“ “Inform ation and Data Protection Commissioner” means the official appointed in terms of article 36 of the Data Protection Act;”.
“Enforcement. 12. (1) Any person who requests the competent authority to provide him with environmental information in accordance with regulation 3, and who is dissatisfied with the response, may apply to the Information and Data Protection Commissioner for a decision whether, in any specified respect, his request has been dealt with in accordance with the requirements of these regulations and any additional regulations made in accordance with regulation 11.
(2) Part IV of the Freedom of Information Act other than article 26, as well as articles 39, 40 and 43 of the same Act, shall apply mutatis mutandis to requests for information under this article, save that references to a code of practice in Part IV of the Freedom of Information
Act shall be construed as referring to any code of practice on the disclosure of information that may be issued by the competent
authority through regulations in accordance with regulation 11; but the application of the Freedom of Information Act in terms of this sub-regulation shall not be dependent on the issue of such a code.
(3) Where the question emerges as to whether or not information requested under regulation 3 is environmental information to which these regulations apply, that question shall be subject to review and decision by the
Information and Data Protection Commissioner and additionally subject to appeal under articles 39 and 40 of the Freedom of Information Act.
Interpretation. 13. In deciding whether or not particular environmental information is exempted from disclosure under paragraph (a) of sub-regulation (2) of regulation 7, regard shall be had to subarticles (2), (3) and (4) of article
29 and article 36 of the Freedom of Information Act; and information to which the aforementioned paragraph applies shall not be released under these regulations if it would be considered exempt matter under the Freedom of Information Act.”
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Passed by the House of Representatives at Sitting No. 67 of 15th December,
2008.
LOUIS GALEA
Speaker
PAULINE ABELA
Acting Clerk to the House of Representatives
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