Commissioner upholds refusal by Malta Enterprise to disclose Sai Mizzi, Shiv Nair contracts

The Information and Data Protection Commissioner has upheld a refusal by Malta Enterprise to divulge the contract of employment for investment envoys Sai Mizzi Liang - wife of minister Konrad Mizzi - and British national Shiv Nair.

MaltaToday is appealing the IDPC decision, but the new government has not even appointed an appeals tribunal, leaving such decisions unable to be challenged.

The IDPC upheld Malta Enterprise's refusal to a freedom of information request by MaltaToday, even though the investment promotion corporation said that "in principle [it] is not against granting access to the documents requites."

Shiv Nair was appointed on a €6,000 fee and has accompanied energy minister Konrad Mizzi to Qatar to discuss energy matters; Mizzi's wife Sai Liang was appointed envoy to Asia, on an alleged €30,000 basic salary.

But Malta Enteprise claimed that Nair's and Mizzi Liang's CV, contract of employment and their full remuneration and benefits were excluded from the scope of the FOIA by virtue of Article 5(3) - which excludes personal data or any other information whose disclosure is prohibited by other laws.

Article 5 is a blanket exclusion clause that is invoked by most public authorities refusing to divulge any information through the FOIA, unless MPs request it in the House of Representatives.

MaltaToday followed up the first refusal through Malta Enterprise internal complaints procedure.

In its complaint the newspaper said that:

• Sai Mizzi's appointment was a matter of public interest, necessitating comment from the prime minister, the minister for the economy, and the minster for energy;
• While Mizzi had a right to her privacy, her appointment and spousal relation to energy minister Konrad Mizzi could have a bearing on the way Malta Enteprise conducts its investment policy;
• Konrad Mizzi himself revealed partial details of her salary, irrespective of data protection safeguards;
• Malta Enterprise failed to consider whether the public would be better served with transparency on the appointment of Mizzi and Nair.

In its reply, Malta Enterprise insisted the request was excluded by Article 5, but again reiterated that "in principle [it] is not against granting accuses to the documents requested... such disclosure [should] not go against third party rights protected under the Data Protection Act. Hence ME would prefer that these issues be determined by the Data Protection Commissioner."

The Data Protection Commissioner, John Ebejer, doubles up as the Information Commissioner.

MaltaToday subsequently filed a complaint to the IDPC, but in its decision, the commissioner upheld ME's refusal.

The IDPC asked Malta Enterprise for a submission and clarification on its refusal, but did not ask MaltaToday to present its own submissions: a practice otherwise employed by the European Ombudsman and the European Data Protection Supervisor.

In his decision, the IDPC considered three laws: the FOIA which excludes disclosure of personal data under the Data Protection Act; the Data Protection Act, whose Article 9 says that personal data can be processed if "carried out in the public interest"; and the Malta Enterprise Act, whose Article 21(5) binds its investment envoys to treat "documents and information relating to [Malta Enterprise] as secret and confidential."

The IDPC concluded that there was "no objection for the processing of the information requested" but that the terms and conditions of Malta Enterprise employees were "secret and confidential" and may not be divulged.

MaltaToday has filed an appeal of this decision to the secretary of the IDPC appeals tribunal, Aldo Testone.