XVI tal-2008 - Att tal-2008 dwar il-Libertà ta’ l-Informazzjoni

Short title and commencement.

2. Interpretation.

ENVIRONMENT (AMENDMENT) REGULATIONS, 2008

I assent.

(L.S.)

E DWARD F ENECH A DAMI

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:—

PART I

PRELIMINARY AND DECLARATION OF PRINCIPLES

(1)

This Act may be cited as the Freedom of Information

1. 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.

In this Act, unless the context otherwise requires

2. “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;

“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.

Any eligible person has a right of access to documents held

3. by public authorities in accordance with and subject to the provisions

of this Act.

Nothing in this Act shall be construed as preventing public

4. authorities from publishing or granting access to documents (including

exempt documents) otherwise than as required by this act.

(1) Subject to subarticle (2), this Act shall not apply to

5. documents that –

(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;

(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.

PART II

SUBMISSION AND HANDLING OF REQUESTS

FOR INFORMATION

(1) An applicant’s request to a public authority in terms of

6. article 3 shall –

(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.

Where an eligible person –

7. (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.

Where a request in accordance with article 6 is made to a

8. public authority, and the document to which the request relates is not

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.

(1) Subject to subarticle (2) and to any regulations issued

9. under this Act, a public authority may charge a fee to an applicant for

access to a document in accordance with this Act.

(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.

10. Subject to this Act, the public authority to which a request is

made in accordance with article 6 or is transferred in accordance with

article 8 shall, as soon as reasonably practicable, and in any case not

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.

11. (1) Where a request in accordance with article 6 is made

or transferred to a public authority, the authority may extend the time

limit set out in article 10 by up to 40 working days in respect of the

request if –

(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.

12. (1) A public authority may grant an applicant access to a

document in one or more of the following ways

(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

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.

13. (1) Where a request is made to a public authority for a

document which is an exempt document, but –

(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.

14. A request made in accordance with article 6 may be refused

only for one or more of the following reasons

(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.

15. (1) Where a request made in accordance with this Act is

refused, the public authority shall –

(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.

16. (1) A decision by a public authority in respect of a request

under this Act shall, subject to paragraph (c) of article 6 of the

Interpretation Act, be taken by –

(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.

PART III

ACCESS TO CERTAIN DOCUMENTS

17. (1) Not later than one year after the coming into force of

this article, every relevant public authority shall publish, in accordance

with any instructions issued by the Commissioner

(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).

(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.

18. (1) Regulations may be issued under this Act to establish

a right of access to information which is held by bodies or persons

other than public authorities or the employees thereof, and which

pertains to

(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.

19. (1) Subject to Part V and Part VI, any eligible person has

a right to and shall, on request made under this article, be given access

to any document (including a manual) which is held by a public

authority and which contains 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).

(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 –

(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.

20. (1) Subject to the provisions of Part V and Part VI, where

a public authority makes a decision or recommendation in respect of

any eligible person, including an eligible person acting on behalf of a

body corporate, that person has the right to and shall, on request within

six months from when the person learns of the decision or

recommendation, be given a written statement of –

(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

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).

PART IV

THE INFORMATION AND DATA PROTECTION

COMMISSIONER

21. (1) In addition to his duties under the Data Protection Act

it shall be the duty of the Commissioner to promote the observance by

relevant public authorities of –

(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;

(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.

22. (1) If it appears to the Commissioner that the practice of a

relevant public authority in relation to the exercise of its functions

under this Act does not conform with that proposed in the code of

practice issued under article 41, he may give to the authority a

recommendation (in this section referred to as a “practice

recommendation”) specifying the steps which ought in his opinion to

be taken for promoting such conformity.

(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.

23. (1) Any applicant may apply to the Commissioner for a

decision whether, in any specified respect –

(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 –

(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.

24. (1) If the Commissioner has received an application under

article 23, or reasonably requires any information –

(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.

(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.

25. (1) If the Commissioner is satisfied that a public authority

has failed to comply with any of its obligations under this Act, the

Commissioner may serve the authority with a notice (in this Act

referred to as “an enforcement notice”) requiring the authority to take,

within such a time as may be specified in the notice, such steps as may

be so specified for complying with those obligations.

(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.

26. (1) A decision or enforcement notice issued by the

Commissioner in respect of the disclosure of a document shall not have

effect if the Prime Minister certifies to the Commissioner that, in his

opinion, the document is an exempt document in terms of any of the

provisions of Part V.

(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.

(4) Where the Commissioner receives a certificate under

this article in respect of a decision notice, he shall inform the applicant

accordingly.

(1) Where a public authority or an officer of such an

27. authority refuses or, without a good reason, fails to comply with

(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.

28. (1) This Act does not confer any right of action in civil

proceedings in respect of any failure to comply with any duty imposed

by or under this Act.

(2) Subarticle (1) shall not affect the powers of the

Commissioner under article 27.

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 disclosure,

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-

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.

31. (1) A document is an exempt document if it is of such a

nature that it would be privileged from production in legal proceedings

on the ground of legal professional privilege.

(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.

32. (1) A document is an exempt document if its disclosure

under this Act would disclose

(a)

trade secrets;

(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.

(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.

33. A document is an exempt document if public disclosure of

the document would, apart from this Act and any immunity of the

Government

(a)

be in contempt of court;

(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.

Where –

34. (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.

PART VI

OTHER REASONS FOR WITHHOLDING

OFFICIAL INFORMATION

(1)

This Part shall apply subject to the provisions of

35. Part V.

(2) A document may be withheld in accordance with the

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.

36. (1) Subject to article 35 and to subarticles (2) and (3)

hereof, a document is an exempt document if its disclosure under this

Act would disclose matter in the nature of, or relating to, opinions,

advice or recommendations obtained, prepared or recorded, or

consultation or deliberation that has taken place, in the course of, or for

the purposes of, the deliberative processes involved in the functions of

the Government or another public authority.

(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.

37. Subject to article 35, a document is an exempt document if

its disclosure under this Act would have a substantial adverse effect on

the financial or property interests of the Government or of another

public authority.

38. Subject to article 35, a document is an exempt document if

its disclosure under this Act would, or could reasonably be expected to

(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.

PART VII

FURTHER PROVISIONS

39. (1) Where a decision notice has been served, the applicant

or the public authority may appeal to the Tribunal against the notice

within twenty working days.

(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,

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.

40. Decisions of the Tribunal under this Act shall be subject to

appeal to the Court of Appeal as provided for by article 51 of the Data

Protection Act.

41. (1) The Minister shall issue a code of practice providing

guidance to public authorities as to the practice which it would, in his

opinion, be desirable for them to follow in connection with the

discharge of public authorities’ functions under Part II and Part III.

(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.

42. The Minister may, following consultation with the

Commissioner, make regulations for any or all of the following

purposes

(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.

43. Article 144 of the Criminal Code shall apply to any person

who embezzles, destroys, mutilates or purloins a document with the

intention of preventing the disclosure of information to an applicant

under this Act.

44. (1) Subarticle (2) of article 590 of the Code of

Organisation and Civil Procedure (in this article referred to as the

Code) shall be substituted by the following

“(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

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.”

45. (1) Subarticles (1) and (2) of article 47 of the Press Act

shall be deleted.

(2) Subarticle (3) of article 47 of the Press Act shall be

renumbered as article 47 thereof.

46. (1) In article 2 of the Data Protection Act and wherever

else they may appear, for the words “Data Protection Commissioner”

there shall be substituted the words “Information and Data Protection

Commissioner”.

(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”.

47. (1) In article 2 of the Local Councils Act, there shall be

added the following new definition after the definition of “identity

“ “Information 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.”

48. The Freedom of Access to Information on the Environment

Regulations shall be amended in accordance with the Schedule to this

FREEDOM OF ACCESS TO INFORMATION

ON THE ENVIRONMENT (AMENDMENT) REGULATIONS, 2008

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:—

(1) The title of these regulations is the Freedom of Access

1. to Information on the Environment (Amendment) Regulations, 2008.

(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.

In regulation 2 of the principal regulations, after the

2. definition of “environmental information” there shall be added the

following new definition

“ “Information and Data Protection

Commissioner” means the official appointed in terms

of article 36 of the Data Protection Act;”.

(1) There shall be added to the principal regulations new

3. regulations 12 and 13 as follows

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.

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.”

Passed by the House of Representatives at Sitting No. 67 of 15th December,

2008. P AULINE A BELA

Acting Clerk to the House of Representatives

Right of access to official documents.

Access to documents other than through this Act.

Application of this Act.

PART II – SUBMISSION AND HANDLING OF REQUESTS FOR

INFORMATION

Manner in which requests for access shall be made.

Public authority’s duty to assist applicants.

Transfer of requests.

9. Fees.

Decisions on and replies to requests.

Extension of time limits.

Manner in which access may be granted.

Deletion of exempt matter or irrelevant material.

Reasons for refusal of requests.

Reason for refusal to be given.

Decisions by public authorities under this Act.

PART III – ACCESS TO CERTAIN DOCUMENTS

Publication of information by public authorities.

Right of access to certain official information.

Right of access to internal rules affecting decisions.

Right of access by a person to reasons for decisions affecting that person.

PART IV – THE INFORMATION AND DATA PROTECTION

COMMISSIONER

General functions of the Commissioner.

Recommendations as to good practice.

Application for decision by Commissioner.

Information notices.

Enforcement notices.

Exception from duty to comply with decision notice or enforcement notice.

Failure to comply with notice.

No civil action against a public authority.

PART V – CONCLUSIVE REASONS FOR NOT DISCLOSING OFFICIAL

DOCUMENTS UNDER THIS ACT

Documents affecting national security, defence or international relations, and

Cabinet documents.

Documents affecting the enforcement of the law and the protection of public

safety.

Documents subject to legal professional privilege or containing material

obtained in confidence.

Documents relating to business affairs, the economy and research.

Documents the disclosure of which would be contempt of Parliament or of

Court.

Information concerning existence of certain documents.

PART VI – OTHER REASONS FOR WITHHOLDING OFFICIAL

INFORMATION

Application of this Part.

Internal working documents.

Documents affecting financial or property interests of public authorities.

Documents concerning certain operations of public authorities.

PART VII – FURTHER PROVISIONS

Appeals against notices served by the Commissioner.

Appeals from decisions of the Tribunal.

Code of practice.

42. Regulations.

Regolamenti.

ƪsara eƛƛ. lil dokumenti gƫandha tikkostitwixxi reat.

Damage etc. of documents to constitute an offence.

Amendments to the Code of Organisation and Civil Procedure.

Amendments to the Press Act.

Amendments to the Data Protection Act.

Amendments to the Local Councils Act.

Amendments to the Freedom of Access to Information on the Environment

Regulations.