The Malta Environment and Planning Authority(MEPA) has presented its preliminary reactions to the unofficial PAR 2007/026 by Mr Carmel Cacopardo on the 7 February 2007. The unofficial PAR (Preliminary Audit Report) question was initiated following complaints together with a dossier submitted by the Kumitat Kontra L-Impjant Ghar Riciklagg Kif Propost. A synthesis of these complaints and dossier was presented in the form of nine points at the beginning of the unofficial PAR.

Similarly to all other unofficial PARs this one adopts the format whereby the author first establishes the ‘Facts’ and subsequently presents an analysis or ‘Considerations” of these facts in separate sections. The unofficial PAR includes different sections or ‘Points’ each of which has its own presentation of ‘facts’ and ‘considerations’. Following these ‘Points’ the author proceeds to portray a list of ‘General Observations and Comments’ and finally concludes the unofficial PAR with a series of ‘Conclusions’ which basically summarize the considerations, comments and general observations in the previous sections.

This reaction by MEPA presents a detailed analysis of how the unofficial PAR is collated and, MEPA says, points out the various deficiencies and misconceptions in the unofficial PAR which depict a skewed picture of the whole process and outcomes related to the proposed recycling plant at Sant’ Antnin. Thus in doing so the author, both directly and indirectly substitutes his discretion on planning issues which are MEPA’s remit, MEPA added.

MEPA’s Conclusions

1. The way ‘facts’ are presented in this unofficial PAR clearly form the basis and direction to the subsequent considerations and conclusions.

Analysing these conclusions one realises that there were conjectures which portray a false picture of what actually happened during the development control process related to the proposed Waste Treatment Plant at Sant Antnin. For instance it is unacceptable and irresponsible to be selective in quotes while leaving out information which would have otherwise provided a fair judgement of this case.

2. In a report by the Ombudsman (case G 0562, dated 19 December 2006, page 8), the Ombudsman states the following:

“In reviewing the function and working of the Authority, the audit officer has to be careful to limit his investigation to an assessment as to whether the authority acted correctly in the exercise of its functions and whether its workings were carried out in strict conformity with its functions as established by law, rules, regulations and the Authority’s own policies. The audit Officer has no right to substitute his discretion to that of the authority, when it results that such discretion was exercised according to law in a reasonable, fair and just manner.”

On page 11 of the same report the Ombudsman continues that:

“This right (of the complainant to be informed), naturally, presupposes that the audit officer conducts his investigation strictly within the parameters of his functions and according to the basic rules of governance.”

In another report dated 8 February 2007 the Ombudsman (11 (iii) page 9) stated the following:

“(Il-partijiet) ma ghandhom l-ebda dritt li jinghataw la access u wisq anqas kopja ta’ dokumenti, notamenti jew annotazzjonijiet li l-membri ta’ Tribunal, f’dan il-Kaz il-Bord tal-MEPA, jew is-segretarju tieghu ikunu ghamlu biex jassistihom fid-deliberazzjonijiet taghhom qabel jiddeciedu. Dawk huma notamenti private u mhux pubblici u ma jkunx posthom li jkunu fl-atti tal-kaz.”

3. The explicit and implicit implications of these conclusions by the Ombudsman are:

· It is not within an audit officer’s remit to scrutinise discussions and deliberations made within the Directorate as recorded in the file, unless these are relevant to the procedure.

· In coming to a recommendation or to a decision, MEPA officers use their technical discretion to establish what is relevant and what is not and where an issue is considered to be relevant, to determine the weight that such a consideration is to be given in the eventual recommendation or decision.

· The fact that the final audit report is to be referred to the complainant puts an added weight of responsibility on an audit officer to ensure that his report includes only information which is directly relevant to his evaluations as to whether the Authority adhered to the established procedures.

4. Thus in relation to this unofficial PAR, MEPA contends that:

· Significant parts of the report refers to the discussions and deliberations made by the MEPA prior to making recommendations or taking a decision. The unofficial PAR author makes it seem as if he is reviewing procedure when in actual fact he is actually “substituting his discretion to that of the authority.”

· Similarly, the inclusions of quotes from the file and matters which are not relevant to procedure is unacceptable and prejudicial to MEPA’s interest. The unofficial PAR author should not put in the public domain information which is not relevant to his remit.

· MEPA contends that the unofficial PAR author is being selective as to what information is included in the report so as to justify its conclusions. It seems that information which does not support the conclusions has been ignored. Although MEPA is always given the chance to comment on the unofficial PAR, experience has shown that the unofficial PAR author is also selective in what he chooses to note and eventually include from MEPA’s response. This undermines the very system which is there to protect the citizen.

· The inclusion of minutes and reports relating to technical discretion (and not relating to procedure) into the official Final Audit Report which eventually becomes public undermines the operations of MEPA. MEPA officers are becoming increasingly reluctant to express an opinion on a technical planning matter because it could be quoted in an audit report and thus may become subject to interpretation and misinterpretation in the public domain. To safeguard the impartiality of technical opinions expressed by MEPA officers during the process of an application, every effort should be made to ensure that such opinions remain private, and subject of course that MEPA’s workings are “carried out in strict conformity with its functions as established by law, rules, regulations and the Authority’s own policies”. Thus only the eventual coordinated recommendations of the Directorates and eventual decision should be made public, together with matters relating to procedure.

A full copy of the reactions accompanying this statement is available for download here – http://www.mepa.org.mt/press/pressrelease_2008/mepa_reaction_PAR.pdf.

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