Access to Information Cases

Overview

In this section are summaries of, and links to, national and regional court judgments on freedom of information. We aim to include references to a selection of important decisions of the regional courts and the UN Human Rights Committee, and to national court judgments that support access to information. These cases illustrate how the courts all over the world interpret and view the right of access to information.

While we aim to include as many decisions as possible, we do not claim to have the latest decisions from each court. Rather this selection hopes to provide organizations and individuals intending to litigate with a set of good arguments to make their case. The cases in this section are easily searchable by country and keywords. Where we have access to briefs of the parties or amici, we have included links to these as well.

We will continue to add more case summaries, and we also aim to add summaries of and links to the most interesting and relevant decisions of information commissioners. As always your contributions to this process will be greatly appreciated. Please send us any corrections and missing links, as well as additional cases, case summaries and briefs to make this page even more interesting and useful.

International and Regional Bodies

European Court of Human Rights

Case title: Geraguyn Khorhurd Patgamavorakan Akumb v. Armenia

Case Number: 11721/04

Date of decision: 14 April 2009

Relevant law: European Convention on Human Rights and Fundamental Freedoms, 1950

Decision: The application was rejected as the applicant didn't exhaust domestic remedies

Key words: parliamentary elections, access to information

Summary:

Facts

The applicant is a non-governmental organization which has its registered office in Yerevan (Armenia). The applicant organization acted as an election observer during the parliamentary election held in Armenia on 25 May 2003 and subsequently applied to the Central Election Committee (the CEC) via registered mail requesting copies of documents on the parliamentary elections. The District Court dismissed the applicant organization’s request. Court of Cassation reiterated the findings of the Court of Appeal that the organization had failed to prove that it had sent request to the CEC. Relying on Article 10 (freedom of expression) applicant complained that its right to receive and impart information had been violated by the actions of the CEC.

Decision

The European Court held that as the applicant organization had not provided adequate evidence about the CEC’s alleged failure to respond to its request for information its complaint was not examined by the domestic courts on the merits. The applicant organization had therefore failed to exhaust domestic remedies as required by Article 35 § 4 of the Convention and its application had to be rejected.

Note: Justice Initiative made a submission to the Court stating that the right of access to information was well-established in both European and international law and practice and access to government information was an integral element of freedom of expression and an actual prerequisite for the meaningful exercise of other political rights in a modern democracy.

Resources:

Decision of the Court

Written comments submitted by the Open Society Justice Initiative.

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Case title: Kenedi v. Hungary

Case Number: 31475/05

Date of decision: 26 May 2009

Relevant law: European Convention on Human Rights and Fundamental Freedoms, 1950

Decision: The Court ruled that access to documents for historical research is an important element of the right to freedom of expression

Key words: access to information for historical research, state secrets

Summary:

Facts

The applicant, a professor of history at the Central European University (CEU), for the purpose of historical research requested the Ministry of Interior to grant him access to certain documents dating from the 1960s. The request was denied based on the argument that the documents had been re-classified as State secrets until 2048. Although several Hungarian courts ordered the Ministry to give access to the documents, the Ministry refused to disclose the documents for five years.

Decision

The Court held unanimously that there had been a violation of Article 6 § 1 (right to a fair hearing) of the Convention, because of the excessive length of proceedings Mr. Kenedi was required to pursue in order to gain access to the documents he sought. It also ruled by unanimous vote, that there had been a violation of Article 10 (freedom of expression). The Court stated that access to the documents for historical research is an important element of the right to freedom of expression.

Resources:

Judgment of the Court.

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Case title: Sdruženi Jiho?eské Matky v. Czech Republic

Case Number:

Date of decision: 10 July 2006

Relevant law: European Convention on Human Rights and Fundamental Freedoms

Decision: The Court noted that the refusal to grant access to administrative documents is a violation of the applicant’s right to receive information, though at the end it ruled that in the present case there was not public interest in the disclosure of technical information about the nuclear power station.

Key words: access to documents and plans of nuclear power station

Summary:

Facts

The applicant, an environmental NGO, was refused access to documents and plans regarding a nuclear power station in Temelin, Czech Republic.

Decision

The Court emphasized that the right to freedom of information is to guarantees that every person will be able to receive information which others would like to have or can agree to provide. The Court also held that Article 10 does not guarantee a general right to have access to administrative documents. However, it recognized that the refusal to grant access to administrative documents, including those related to a nuclear power station is a violation of the applicant’s right to receive information. At the end, the Court found that the technical information about the nuclear power station was not of a public interest and it also concluded that the .refusal to disclose information was in the interest of protecting the rights of others, national security and public health. Because of these grounds, the Court ruled that there was no breach of Article 10 paragraph 2 of the Convention and declared the application inadmissible.

Resources:

More information on the case.

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Case title: Társaság A Szabadságjogokért (Hungarian Civil Liberties Union) v Hungary

Case Number: 37374/05

Date of decision: 14 April 2009

Relevant law: European Convention on Human Rights and Fundamental Freedoms, 1950

Decision: The Court ruled that it would be fatal for freedom of expression if public figures could prevent public debate by referring to their personality rights.

Keywords: access to information as a fundamental right, personal data of public official

Summary:

Facts

A Hungarian Member of Parliament filed a complaint with the Constitutional Court about Hungary's drug laws. The Hungarian Civil Liberties Union (HCLU) applied to the Court to receive a copy of the complaint, but were refused based on the ground that petition constituted "personal data" that could only be disclosed with its authors' permission.

Decision

The European Court of Human Rights (ECHR) held that the refusal to grant information interfered with the right of an NGO to access information that was needed for them to play their role as a public watchdog.

The Court recognized for the first time that Article 10 of the Convention guarantees the "freedom to receive information" held by public authorities. The Court found that when the state has information of public interest in its possession, and is requested to disclose such information to a "watchdog" group - whether the press or NGOs that serve a watchdog role - it is obliged "not to impede the flow of information". The Court stated that it would be fatal for freedom of expression if public figures could prevent public debate by referring to their personality rights.

Note: The Justice Initiative led an effort by a number of NGOs and media companies, including the Financial Times, to intervene as third parties in the current case.

Resources:

Judgment of the Court

Written comments submitted by the Open Society Justice Initiative.

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European Court of Justice (Grand Chamber)

Case Title: Access Info Europe v. Council of the European Union

Case Number: T?233/09

Date of decision: 22 March 2011

Relevant Law: Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents

Decision: The Court ruled that the Council infringed the Article 4(3) of Regulation No 1049/2001 by denying the disclosure of information relating to the identity of delegations of Member States who had made proposals, on the ground that this would seriously undermine its decision-making process. Subsequently, the Court annulled the contested decision of the Council.

Key words: decision-making process, access to the identity of delegations making proposals for amending Regulation of the European Parliament and of the Council.

Summary:

Facts

On 3 December 2008, the applicant association – Access Info Europe – applied to the Council under Regulation No 1049/2001 for access to a document containing proposals submitted by the Member States concerning the amendments to Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents.

Access Info Europe was granted partial access to the requested document. The Council provided the applicant with the proposals for amendments, but refused to identify delegations of Member States who put forward these proposals. For the justification of the refusal the Council stated that the disclosure would hinder the decision-making process and that there was no public interest in the disclosure based on Article 4(3) of the Regulation (para. 7).

The Council also argued that the discussion of the proposals was very sensitive and attracted serious public attention. It declared that some of the positions of Member States were met with public criticism which according to the Council would adversely influence the ability of the Member States delegations to express and defend their positions. Besides that, as the Council stated the delegations would refrain from submitting their views in writing and all these would hinder the Council to come to agreement regarding the revision of the Regulation (para. 44, 45).

Decision

As the Court noted the purpose of the Regulation No 1049/2001 was to ensure for the public the widest right to access and the exceptions to that right established by Article 4 of the Regulation should be interpreted strictly (para. 55).

The Court stated that “if citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information” (para. 69). The Court held that identification of delegations should not prevent them from submitting the new proposals and that proposal is supposed to be discussed and changed and that the public is capable of understanding that the delegations might amend their initial positions during the discussion process (para. 69).

The Court stated that it is characteristic for democratic debate that any proposal for amendment of the draft regulation can be subjected to positive and negative comments by the public (para. 78).

According to the Court the risk that delegations would refrain from submitting written proposals is not such as to undermine the decision-making process and to justify the refusal of access to the requested document (para. 81). Overall, the Court considered that all the arguments of the Council were abstract and not substantiated and according to it there was not demonstrated direct causal link between the disclosure to the public of the name of the delegations which made the proposals and the serious undermining of the decision-making process of the Council (para. 83).

Resources:

Judgment of the Court.

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Case title: Ciarán Toland supported by Sweden, Finland and Denmark v European Parliament

Case Number: T?471/08

Name & status of the court: General Court (Second Chamber)

Date of decision: 7 June 2011

Relevant law: Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents

Decision: The Court annulled the decision of the European Parliament of 11 August 2008 as the denial of access to Report No 06/02 of the Internal Audit Service of the Parliament of 9 January 2008 entitled ‘Audit of the Parliamentary Assistance Allowance’ was unfounded.

Key words: access to the audit report of European Parliament

Summary:

Facts

On 11 June 2008, an Irish lawyer, Mr. Ciarán Toland, applied to the European Parliament for access to the 2006 Annual Report of its Internal Audit Service, including the 16 audit reports referred to in paragraph 24 of the European Parliament Resolution of 22 April 2008. The requested report (known as the “Galvin Report” as it was prepared by Internal Auditor of the European parliament Robert Galvin), is an annual audit into the Parliamentary Assistance Allowance which examines the operation of the Allowance, and contains proposals for its reform and details of abuses in allowances paid to certain MEPs, in order to identify drawbacks in the allowance system. The requested report doesn’t identify the names of MERs. In March 2008, the Bureau of the European Parliament carried out a series of reforms for the implementation of recommendations contained in the Report. A month later the European Parliament voted to keep the report confidential.

On 23 June 2008, the Secretary-General of the Parliament granted the applicant access to the 2006 Annual Report of the Parliament’s Internal Audit Service with the exception of one paragraph which dealt with an audit still pending without mentioning the other 16 reports requested by the applicant. The applicant submitted second request reiterating his request for access to the 16 internal audit reports and claiming that there was provided no objective justification as to why access to those reports had been denied. The applicant also requested disclosure of the redacted paragraph in Report No 07/01.

By letter of 11 August 2008 (‘the contested decision’), the Parliament denied to provide access to the redacted paragraph in Report No 07/01, granted full access to 13 of the 16 internal audit reports and partial access to two further internal audit reports and refused access to the fourteenth of those reports, namely Internal Audit Report No 06/02 of 9 January 2008 entitled ‘Audit of the Parliamentary Assistance Allowance’ (‘Report No 06/02’) (para. 6). In its letter to the applicant Parliament stated that: “The use which its Members made of the allowances available to them was a sensitive matter followed with great interest by the media and that elements of Report No 06/02 could be used to derail the debate on the reform of the system and compromise rapid reform. Consequently, according to the Parliament, disclosure of Report No 06/02 could, at that stage, seriously undermine not only its decision-making process but also beyond, as the reform could not be carried out by that institution alone.” (para. 11). It also stated that exception set forth in the third indent of Article 4(2) of Regulation No 1049/2001 applied to the requested Report No 06/02, because its disclosure would have violated both the purpose of the audit and the Parliament’s decision-making process within the meaning of Article 4(3) (para. 12).

As a result of the refusal Mr. Toland initiated proceedings against the Parliament in the General Court of the European Union and the Governments of Sweden, Finland and Denmark intervened in his favor.

Decision

In respect of the argument relied on by the Parliament that the disclosure of the report would undermine decision-making process the Court ruled that the contested decision doesn’t contain any reliable argument that such a risk was reasonably foreseeable and not purely hypothetical on the date when the decision was adopted. As the Court stated “the fact that the use by the Members of Parliament of the financial resources made available to them is a sensitive matter followed with great interest by the media, which the applicant does not deny – quite the contrary – cannot constitute in itself an objective reason sufficient to justify the concern that the decision-making process would be seriously undermined, without calling into question the very principle of transparency intended by the EC Treaty” (para. 80). According to the Court neither the complexity of the process presents a reasonable ground to assume that the disclosure of the Report 06/02 would undermine it.

Regarding the argument of the Parliament that several attempts to reform parliamentary assistance system have failed in the past the Court stated that this argument was not given in the decision and was raised only later, before the Court, and also without any explanation that those failures had been caused by the disclosure of any sensitive information (para. 82).

The Court also noted that in the decision the Parliament didn’t discuss if there existed overriding public interest justifying the disclosure of the requested report. Regarding the assertion of the Parliament that the request of the applicant didn’t contain any arguments justifying the disclosure of the repot the Court held that in accordance with Article 6(1) of the Regulation No 1049/2001 the applicant is not obliged to indicate the reasons for requesting access to information (para. 84).

Due to the above the Court ruled that the contested decision must be annulled as it refuses access to the Report No 06/02 without justification.

Resources:

Judgment of the Court.

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Case title: Sweden and Turco v. Council of the European Union, Denmark, Finland, United Kingdom, and Commission of the European Communities

Case Number: C?39/05 P and C?52/05 P

Date of decision: 1 July 2008

Relevant Law: Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents

Decision: The Court annulled the decision of the Council that refused access to the document containing the opinion of the Council's legal service on a proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States.

Key words: access to legal opinions, legislative functions, public interest

Summary:

Facts

In October 2002 Mr. Turco, a resident of Italy, submitted a request to the Council for access to documents appearing on the agenda of the Justice and Home Affairs Council meeting, including an opinion of the Council’s legal service on a proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States. The Council refused to disclose the document.

Decision

The Grand Chamber held that a legal opinion given to the Council (which has legislative responsibilities) concerning proposed legislation had to be disclosed because (a) the Council had provided no concrete reasons as to why disclosure would undermine the protection of legal advice, and (b) there was an overriding public interest in disclosure. It rejected the Council’s abstract submissions that disclosure could (a) lead the public to doubt the lawfulness of a legislative act, or (b) undermine the Council’s interest in seeking frank advice. Regarding the first point, concerning impact on the public’s perception of the lawfulness of a legislative act, the Court reasoned that openness grants legitimacy to the institutions and increases the confidence of EU citizens towards these institutions while the lack of debate and information may produce doubts in respect of the legitimacy of the whole decision-making process.

The Court stated that it was incumbent on the Council to ascertain whether there was any overriding public interest justifying disclosure. Even if the Council had a legitimate concern that disclosure could harm important interests, it nonetheless had to weigh that risk against the overriding public interests which underlie Regulation No 1049/2001. The Court concluded that there is an overriding public interest because disclosure of documents containing the advice of an institution’s legal service on legal issues increases the transparency of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act. Accordingly, the Court set aside the judgment of the Court of First Instance and, pursuant to Article 61 of the Statute of the Court (which provides that the Court itself my give final judgment in a matter where the state of proceedings so permit) annulled the Council’s decision refusing to allow Mr. Turco access to the legal opinion in question.

Resources:

Judgment of the Court.

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Inter-American Court of Human Rights

Case title: Claude Reyes et al. v Chile

Case Number:

Date of decision: 19 September 2006

Relevant law: American Convention on Human Rights

Decision: The Court ruled that the State shall, through corresponding entity and within six months, provide requested information and within reasonable time shall adopt necessary measures to ensure the right of access to State-held information pursuant to the general obligation to adopt domestic law established in Article 2 of the American Convention on Human rights.

Key words: access to information as a fundamental right

Summary:

Facts

Fundacion Terram is an environmental NGO that filed a request for information with the government of Chile about a major logging contract. Requests were ignored and subsequent appeals by the victims were dismissed by the Supreme Court as “manifestly ill-founded”.

Decision

The Inter-American Court became the first international tribunal to recognize a basic right of access to government information as an element of the right to freedom of expression. The court held that any restrictions on the right of access should comply with the requirements of Article 13.2 of the Convention, the presumption being that all state-held information should be public, subject to limited exceptions. States are required to adopt a legal framework that gives effect to the right of access, and to reform secrecy laws and practices. The Court also ordered Chile to train public officials on the rules and standards that govern public access to information.

Note: The Justice Initiative, joined by four other groups, filed amicus curiae briefs in the case with both the Commission and the Court. Excerpts relating to Chile from Transparency and Silence, a Justice Initiative survey on governmental handling of information requests, were formally introduced as evidence by the applicants.

Resources:

More information on the case

Decision of the Court

Written comments submitted by the Open Society Justice Initiative

Transparency and Silence.

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Case title: Gomes Lund et. al. v. Brazil

Case Number:

Date of decision: 24 November 2010

Relevant Law: American Convention on Human Rights

Decision: The court ruled that by denying and delaying access by the victims’ relatives to relevant army archives and other information, Brazil had violated their Article 13 right to information established by American Convention, read together with Articles 8 (duty to investigate) and 25 (access to court) of the Convention.

Key words: torture, impunity, right to truth

Summary:

Facts

In 1972, a small guerilla movement of students and workers emerged from the region of the Araguaia River in Brazil, seeking to foment a popular uprising to overthrow the military dictatorship which had been in power since 1964. For the next two years, the Brazilian Army brutally suppressed the movement, arresting and torturing the guerrillas. More than 60 were disappeared, their fate still unknown. For nearly 30 years the families of the victims have tried to expose the truth about what happened to their relatives, but have been prevented from doing so by amnesty laws passed in 1979 by the military government precluding any criminal investigations into offences carried out by the military regime. Since 1982, family members and certain public authorities have brought various legal claims in an attempt to determine the circumstances of the disappearances, to locate burial sites, and to recover the remains of the victims. Though the Supreme Court ruled in favor of the applicants the government maintained throughout the process that public records, including army and national archives records are not available. In recent years, however, journalists and former army officials have published information about the case, including documentary and photographic material suggesting that documents and other evidence are available and that government searches have been inadequately performed.

The Justice Initiative together with the Commonwealth Human Rights Initiative, the Open Democracy Advice Centre (South Africa) and the South African History Archive filed an amicus curiae brief in which the following three main arguments are made: (1) the American Convention grants victims and the general public a right to the truth about gross or massive human rights violations, including forced disappearances (Article 13, in conjunction with Articles 1, 8 and 25); (2) the right to the truth has both an individual and a collective dimension, separate from the right to judicial accountability for gross human rights abuses; it imposes on the state a duty to establish the basic facts of the violations, the general circumstances in which they occurred, as well as their reasons and perpetrators; and (3) Brazil failed to comply with the right to the truth by failing to disclose or de-classify relevant records held by the armed forces, and by adopting amnesty laws that obstruct access to the truth and shield the perpetrators.

Decision

The Inter-American Court concluded that the provisions of the Amnesty Law of Brazil that prevent the investigation and punishment of serious human rights violations are incompatible with the American Convention and lack legal effect, and as such, cannot continue to represent an obstacle for the investigation of the facts of the case or for the identification and punishment of those responsible.

The Inter-American Court found that Brazil is responsible for the violation of the right to seek information, established in Article 13 of the American Convention, given the State’s failure to provide access to records, which were in its control, of information on these facts. Additionally, the court issued a number of important guidelines on the question of access to information about past human rights violations. These include the question of the burden of proof regarding the (non-) existence of relevant records; the state duty to respond to requests for such information in good faith; and the state’s inability to rely on the “state secrets” doctrine as a basis for denying access to information regarding serious human rights violations.

Resources:

More information on the case.

Order of the Court on the request for provisional measures

Written comments submitted by the Open Society Justice Initiative, Commonwealth Human Rights Initiative, the Open Democracy Advice Centre (South Africa) and the South African History Archive.

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Inter-American Commission on Human Rights

Case Title: Indigenous Communities of the Xingu River Basin, Pará, Brazil

Case Number: PM 382/10

Date of decision: 1 April 2011

Relevant Law:

Decision: The Commission ordered the State of Brazil to stop the construction of Belo Monte Hydroelectric Plant and to conduct informed consultations with indigenous groups and for that purpose to provide to them all the relevant information and studies in accessible format and understandable language for them.

Key words: indigenous groups, construction of power plant, precautionary measures

Summary:

Facts

10 indigenous groups have asked the Brazilian authorities to halt the construction of the Belo Monte Power Plant, in the Amazon. The Belo Monte Dam is a proposed hydroelectric dam complex on the Xingu River in the state of Para in Brazil. After more than 17 years of discussions, the construction of the plant was approved by the Brazilian Congress in 2005. The construction is argued to threaten the land and food supplies of indigenous tribes. As it is claimed, the Dam would destroy 516 square kilometers of an area where indigenous groups are settled and also would damage forest and decrease considerably the quantity of fish stocks which is the main source of survival for indigenous communities.

In February 2010, the Brazilian Institute for the Environment and Renewable Natural Resources (IBAMA) granted the Preliminary License for the construction of the power plant. The License set forth a list of 40 requirements which had to be fulfilled by the company responsible for the construction.

Local communities, indigenous groups and environmental organizations have constantly opposed the construction of the power plant because of its devastating influence on the local communities and the nature. They used available judicial remedies in order to prevent the construction.

Decision

The case was brought before Inter-American Commission. The affected groups complained of the lack of public participation in the licensing process; lack of information related to the power plant and its impact on the environment and the indigenous tribes. The 20,000-page report concerning these issues was made available only two days before the first public hearing in September 2009 and it was written in a technical language with no understandable explanations for indigenous people. Affected groups also complained that information was not available in indigenous languages. The lack of translation during public hearings made it difficult for indigenous groups to express freely their opinions, participate in the discussions and receive full information. As it is established by international standards and Brazilian legislation, indigenous people must be consulted before the approval of the power plant by the Congress and also during the licensing process. Regardless of this requirement there was not conducted any public consultations regarding the construction of the dam.

The Inter-American Commission granted precautionary measures to 10 indigenous groups against Brazil. The Commission ordered that Brazil immediately suspend the licensing process for the Belo Monte Hydroelectric Plant project and terminate construction until certain minimum requirements are complied with. According to the Commission the State must (1) conduct free, informed, and culturally appropriate consultations with affected indigenous people with the aim to reach an agreement; (2) guarantee that, for the purpose of informed consultations, the indigenous groups have access in advance to relevant Social and Environmental Impact Study, in an accessible format and understandable translation into the indigenous languages; (3) adopt measures to protect the life and physical integrity of the indigenous peoples in Xingu Basin, and to prevent the spread of diseases and epidemics among them.

Resources:

Decision of the Commission.

More information on the case

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UN Human Rights Committee

Case title: Marques v Angola

Case Number:

Date of decision: 29 March 2005

Relevant law: International Covenant on Civil and Political Rights

Decision: The Committee stated that restriction on Marque's speech contradicted Article 19(2) of the Covenant

Key words: freedom of expression, journalists

Summary:

Facts

Rafael Marques was imprisoned for publishing a news article critical of the Angolan president. After prolonged pretrial detention, he was convicted of defamation, ordered to pay a substantial fine, and prevented from traveling.

Decision

The Committee found that Angola had violated Articles 9, 12, and 19 of the International Covenant on Civil and Political Rights (ICCPR). The Committee stated that Marques' arrest and detention were not reasonable or necessary, and were therefore arbitrary infringements of his liberty and security in violation of Article 9(1); he was not promptly informed of the reasons for his arrest or the charges against him, in violation of Article 9(2); his incommunicado detention denied him the right to be brought before a judge, in violation of Article 9(3); he was denied counsel at an initial stage, and denied his right to habeas corpus in violation of Article 9(4).

According to the Committee the restrictions on Marques' speech were not provided for in law or necessary to achieve a legitimate aim, violating his right to criticize or publicly evaluate the government without fear of punishment, in contravention of Article 19(2). It also held that Marques' prevention from leaving Angola, and the subsequent confiscation of his passport, had no basis in law and violated his freedom of movement under Article 12(1).

Note: The Justice Initiative and Interights represented Marques before the United Nations Human Rights Committee arguing that his rights had been violated.

Resources:

More information on the judgment

Documents submitted by the Open Society Justice Initiative and Interights.

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Case title: Toktankunov v. Kyrgyzstan

Case Number: 1470/2006

Name and status of the court: UN Human Rights Committee

Date of decision: 28 March 2011

Relevant law: Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR)

Decision: The right to information is grounded within freedom of expression; and Kyrgyzstan violated this right by not disclosing information concerning death sentences pursuant to secret bylaws which do not qualify as legitimate restrictions to this right.

Key words: duties of public authority; procedure / process; human rights; judicial information; scope of information covered; classification; confidentiality; exceptions to access / exemptions; national security; interest of requester; press / media; requester, status of; admissibility; remedy; expression, freedom of; international law; regulations

Summary:

Facts

In March 2004, Nurbek Toktankunov, representing a Kyrgyz public association, requested the Ministry of Justice (MOJ) corrections unit to provide data concerning death sentences. The government entity denied the request on the ground that this information is classified under secret Kyrgyz bylaws. Paras. 2.1, 2.5. The MOJ asserted that a state secrets law restricted such information through secret lists and regulations. Paras. 2.7-2.8. After the exhaustion of domestic remedies, the requester filed a complaint at the HRC. Kyrgyzstan did not respond on the merits, but submitted data on death sentences and prison mortality, stating that this was declassified “for service purposes” but confidential for the media. Paras. 4.1-4.2.

Decision

The HRC declared admissible the Article 19 complaint as (1) the information sought is in the public interest; (2) criminal judgments are generally public; and (3) the ICCPR recognizes the right of individuals and the media to receive state-held information without requiring a demonstration of direct interest. Para. 6.3.

The HRC recognized a “right of access to State-held information”—including a duty of the government to disclose or to justify non-disclosure—grounded in the ICCPR Article 19.3 freedom of expression. Para. 7.4. Kyrgyzstan violated Article 19.3 as (1) the confidential regulations are not a “law” that can restrict the right; and (2) the disclosure of information concerning the death penalty is in the public interest and restrictions on the right to this information are not necessary to protect a legitimate interest. Paras. 7.6-7.7. The State must provide the requester with an effective remedy, yet the information provided pursuant to the initiation of the complaint constituted an effective remedy. Para. 9.

A concurrence expressed caution about subsuming RTI within the right to expression to avoid diluting the right to expression as RTI permits more limitations.

Resources:

Judgment of the Committee.

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Africa and the Middle East

Israel

Case title: Freedom of Information Movement v. Clalit Health Services

Case Number: No. 2032-08

Country or Region: Israel

Name & status of the court: District Court in Tel-Aviv, sitting as Administrative Court

Date of decision: 21 February 2011

Relevant law: Freedom of Information, 1998

Decision: The Court ordered the disclosure of a 20 year-old donation agreement between the Schneider Family Foundation, registered in U.S and Israel's largest Health Services provider (which is considered a public entities in Israel), concerning a 60 million NIS (approximately $16 million) contribution to the construction of a Children's hospital.

Key words: access to agreement concluded between the public authority and donor organization

Summary:

Facts

Freedom of Information Movement submitted the request for the disclosure of agreement between the Clalit Health Services (the general HMO or health fund) and the Schneider Family after an article appeared in the newspaper that Lynn Schneider, a chairman of the Schneider Family Foundation, was involved in the firing of the hospital staff and that according to the donation agreement the Foundation had the right to interfere in the management affairs of the hospital. The request was refused. The applicant appealed.

Decision

As the Court noted without publishing the requested information the public will be denied the right to control the communications of public bodies with donor organizations and thus will not have the possibility to comment on the issue. According to the Court only the right to access to information enables the public to reject or confirm the activities of public bodies.

The Court rejected the argument of the respondent that the Freedom of Information Act didn’t apply to the agreement as it was signed before the enactment of the act stating that such interpretation would deprive the law of its content.

The Court also stated that the engagement of a private entity with public authority, should assume implied consent of the private entity that details of the agreement, which are not personal, would be subject to the public criticism. Notwithstanding this, the Court noted that as far as there was a concern that the disclosure of the agreement would have a negative effect on future contributions this concern could be removed by disclosing agreement, except for details about the amounts and dates of payments, which must be considered as private information.

Resources:

More information about the case.

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Case title: Shalit v. Peres

Case Number:

Country or Region: Israel

Name & status of the court: Supreme Court

Date of decision: 1990

Relevant law:

Decision: The Court ruled that the public has a right to be informed of the content of coalition agreements negotiated by political parties participating in an election.

Key words: political parties, public life

Summary: The Court held that the public has a right to be informed of the content of coalition agreements negotiated by political parties participating in an election. Acting in the absence of explicit constitutional or statutory recognition of the right of access, the Court nonetheless held that the democratic system is based on the sharing of the information about what is happening in the public domain with the public itself. The Government can withhold this information only in exceptional circumstances when this is required by state security or foreign relations or where there is a risk threatening any vital public interest.

Resources

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Case Title:

Case Number:

Country or Region: Israel

Name & Status of the Court: Tel-Aviv Administrative Court

Date of decision: 23 March 2011

Relevant Law: Freedom of Information Act

Decision: The Court ruled that the Defense Ministry must immediately provide Gisha with the "red line document" and disclose the names of those officials responsible for the closure.

Key words: access to documents determining what products can be allowed into Gaza strip, internal deliberation, public interest

Summary:

Facts

Gisha, an NGO fighting for more freedom of movement in the occupied territories and against the closure policy, asked the Ministry of Defense to provide documents that the Ministry used to determine what products should be allowed into the Gaza strip and at what quantities. The ministry refused the FOI request.

Gisha brought a case before the Court. Following the Flotilla incident which took place during the Court hearing the Ministry agreed to disclose some of the documents stating that their disclosure no longer threaten national security or foreign affairs. But it refused to make public “red line document” which supposedly contained calculations of the most minimal consumption of food in Gaza that the closure policy will not cross.

The Ministry claimed that the requested documents presented sensitive security issues and that on such issues the relevant authorities should have right to deliberate freely. It also argued that as far as the documents are not part of any policy there is no public interest in their disclosure.

Decision

The Court rejected the arguments put forward by the Defense Ministry. Justice Ruth Ronen noted that the fact that the document was part of internal deliberations in itself is not sufficient to justify refusal of disclosure. According to her the state would have to show that in these specific circumstances there is a fear of a "chilling effect". Since the document doesn’t contain the views of particular individuals, she found that its disclosure wouldn’t threaten the deliberation process. She held that the State failed to explain why the document was sensitive. The fact that the document deals with a sensitive issue, wrote Justice Ronen, does not entail that the document itself is sensitive. As she stated there was public interest in disclosure even if the document was not the basis for the implemented policy.

The Court ruled that the Defense Ministry must reveal the "red lines document" in which the state apparently established the minimum caloric intake required for the survival of residents of the Gaza Strip and also to reveal the names and positions of the officials enforcing the closure of Gaza, which were blacked out in the documents previously provided to Gisha.

Resources:

More information about the case.

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Kenya

Case title: Kariuki v. Attorney General

Case number: Petition no. 403 of 2006

Country or Region: Kenya

Name and Status of Court: High Court of Kenya at Nairob

Date of Decision: 8 July 2011

Relevant law: Constitution (Articles 2(1), 3, 10 and 35(1))

Decision: The salaries and allowances of the Armed Forces personnel are not private or confidential and must be disclosed to the requester and the Court.

Key words: Duties of public authority; Evidence; Mute refusal; Time; Security sector; Military; Economic information; Income and assets; Public servant / official; Scope of information covered; Classification; Confidentiality; Exceptions to access / exemptions; National security; Privacy; Interest of requester; Requester, status of; Third parties; Accountability; Constitutional protections; Fundamental right.

Summary:

Facts

Peter Kariuki, a former Commander of the Kenya Air Force, was relieved of his duties, arrested, detained, and eventually tried and convicted after a 1982 attempted coup. He brought a suit to challenge the conditions of his detention as in violation of his fundamental rights. In connection with this legal challenge, Mr. Kariuki sought from the Department of Defense employment records, payment vouchers, and current salary records for officers of similar rank. The Court ordered the Department of Defense to produce the information, but the Department of Defense refused, asserting that salaries and allowances of Armed Forces personnel are confidential and personal. P. 11.

Decision

The Court ruled that the Defense Forces are subject to the Constitution, pursuant to Articles 3 and 10. Article 10 stipulates transparency and accountability as among the national values binding all state organs. The Court further ruled that Article 35, on the right to information, grants Mr. Kariuki the right of access to the information requested from the Department of Defense. The Court thus rejected the Attorney General’s assertion that defense salary and allowance information is confidential, and compelled the Department of Defense to provide this information to the Commander and to the court. The Court stated that “records regarding salaries and benefits payable to public officers cannot be classified as private or confidential.” The Court recognized as relevant that the underlying case related to serious alleged violations of constitutional rights. Pp. 14-15.

Resources:

Judgment of the Court.

Case title: Republic v John Kiptorus Chemweno and David Barasa Makali

Case Number:

Country or Region: Kenya

Name & status of the court: Magistrates Court

Date of decision: 2003

Relevant law:

Decision: The court ruled that the information about investigation is the property of the public as it pays to the state to conduct investigation. The press had a duty to find out truth about the murder and provide correct information to the public.

Key words: criminal investigation

Summary:

Facts

The case concerned a police investigation into a murder in September 2003 that was of great public interest. In the midst of heated constitutional debate, Dr. Odhiambo Mbai, the Chairman of the Devolution Committee of the National Constitutional Conference at Bomas, who advocated limiting the president’s broad powers, was killed in his home. The police opened an investigation. The Standard newspaper ran a story implicating some key government people, including an MP, in the murder. John Kiptorus, a police officer at the station that was handling the investigation, was suspected of having given a copy of the police video cassette containing information about Dr. Mbai’s death to David Makali, who was at the time the Standard’s editor and a journalist. Both of them were arrested and charged in criminal court for stealing the video cassette, the property of the Kenyan Government.

Decision

The Chief Magistrate, Aggrey Muchelule (who has since become a Judge) found that there was no theft of the transcript in question and acquitted both accused. In his ruling, the Chief Magistrate stated that death was the issue of public interest and caused anxiety in the public and the police are obliged to investigate the case and provide information to the public. Information about investigation is the property of the public as it pays to the state to conduct investigation. The press had a duty to find out truth about the murder and provide correct information to the public. It had a complementary role to that of the police. To prevent the press to carry out this function would be restriction of the constitutional freedom of the press and the right of Kenyans to have information about their country’s affairs.

Noteworthy is the court’s finding that the public has the right to know about affairs of their country.

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South Africa

Case title: Claase v Information Officer of South African Airways

Case Number:

Country or Region: South Africa

Name & status of the Court: Supreme Court

Date of decision: 2006

Relevant law:

Decision: The Court ruled that access to the passenger records of a certain commercial flight was required for the protection of the contractual (retirement) rights of a former pilot.

Key words: passenger records

Summary:

Facts

The retired pilot was entitled to a certain number of business class flights per year as a part of his contractual retirement package. Arriving in New York to fly to South Africa, he was informed that there were no such seats available. He disbelieved this assertion and, by successfully accessing the computer records relating to the flights and its passenger assignments, was able to show that at the point he sought the seat, he was unlawfully denied one in breach of his contractual rights.

Decision

The Supreme Court of Appeal found that access to the passenger records of a certain commercial flight was required for the protection of the contractual (retirement) rights of a former pilot of South African Airways (SAA).

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Case title: Conrad Stefaans Brümmer v. the Minister of Social Development and Others

Case Number:

Country or Region: South Africa

Name & status of the court: Constitutional Court

Date of decision: 13 August 2009

Relevant law: Promotion of Access to Information Act

Decision: The Court ruled that a person who seeks to challenge the refusal of access to information must be afforded an adequate and fair opportunity to do so and ordered the legislature to enact legislation that prescribes a reasonable time limit to approach a court for relief.

Key words: access to court, access to information, time limit

Summary:

Facts

Mr. Brümmer, a journalist of the Mail & Guardian newspaper, made a request to the Department of Social Development for information about a tender the department is alleged to have awarded to IT lynx Consortium.

When Mr. Brümmer’s request was denied and an internal appeal was unsuccessful, he turned to the Cape High Court for relief. However, his application to the High Court was made after the 30-day limit, set out by the Promotion of Access to Information Act, Article 78(2). The applicant submitted that the time limit violates his rights of access to court as well as access to information guaranteed by the Constitution.

Decision

The High Court accepted the claim of unconstitutionality of the 30-day limit and held that section 78(2) was unconstitutional in that it does not give a person who is refused information adequate time to approach a court for relief. It therefore referred the matter to the Constitutional Court for confirmation.

Amicus briefs were presented by the South African History Archives Trust (SAHA) as well as the South African Human Rights Commission.

Judge Sandile Ngcobo, in a unanimous judgment, upheld the conclusion by the High Court. He held that a person who seeks to challenge the refusal of access to information must be afforded an adequate and fair opportunity to do so. He further declared that access to information is crucial to the right to freedom of expression, which includes freedom of the press and other media, and also freedom to receive or impart information or ideas.

Judge Ngcobo said the public must have access to information held by the state. The Constitutional Court ordered the Parliament to enact legislation that prescribes a time limit that is consistent with the Constitution, bearing in mind the right of access to court as well as the right of access to information. He ordered that pending the enactment of this legislation, a person who wishes to challenge the refusal of access to information must lodge an application to court within 180 days of being notified of a decision of an internal appeal refusing access to information.

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Case title: Mittal Steel South Africa LTD (Formerly Iscor Ltd) v Hlatshwayo

Case Number:

Country or Region: South Africa

Name & status of the Court: Supreme Court of Appeal

Date of decision: 2007

Relevant law: Promotion of Access to Information Act

Decision: The Court ruled that the “public bodies” within the meaning of the PAIA included state-owned company that was privatized but at the material time was under the state control and was performing a public function

Key words: private bodies receiving public funds and/or performing public functions, access to information

Summary:

Facts

The respondent company had at one time been a state-owned company (then named Iscor) that was then privatized. The requester – a “determined student,” sought the records as a part of his academic study of state corporations in the ‘old’ South Africa.

Decision

In a well-reasoned judgment, Judge Conradie observed that nowadays when the privatization of public services and utilities is a common practice, private bodies may perform what is traditionally considered as a public function without being subject to control from the government’s side and despite this may still be classified as public bodies.

In finding that Iscor not only was under the control of the state at the time but was performing a public function in providing South African industry with a supply of government-regulated steel, the SCA made clear that the term “public bodies” within the meaning of the PAIA included previously public bodies that had been privatized.

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Case title: President of the Republic of South Africa. v. M & G Media Ltd.

Case Number: 570/10 ZASCA 177

Country or Region: South Africa

Name & status of the court: Supreme Court of Appeal, highest court of appeal except for constitutional matters

Date of decision: 14 December 2010

Relevant law: South African Constitution (Section 32(1)(a)) Promotion of Access to Information Act (PAIA) of 2000

Decision: Under the South African Bill of Rights and the Promotion of Access to Information Act of 2000, conclusory affidavits provided by the President to justify the secrecy of a judicial report prepared for the President are insufficient evidence to justify non-disclosure.

Key words: evidentiary basis for secrecy; reports prepared for and held by President; discretionary right to non-disclosure; Promotion of Access to Information Act (PAIA); constitutional right to information

Summary:

Facts

M&G Media Limited, the publisher of a weekly newspaper, requested the disclosure of a report on the 2002 Zimbabwe elections prepared by two judges at the request of then President incumbent Mbeki. The President refused to release the report. In its information request, M&G relies on the constitutional right to “any information . . . held by the state” as promulgated and limited by the Promotion of Access to Information Act of 2000 (PAIA). The President asserts three grounds within PAIA to defend the report’s secrecy: (1) the exclusion of Cabinet and committee records from PAIA disclosure obligations; (2) Section 41(1)(b) permitting discretionary non-disclosure of information “supplied in confidence by or on behalf of another state or an international organization”; and (3) Section 44 permitting discretionary non-disclosure of records containing “an opinion, advice, report or recommendation obtained or prepared . . . for the purpose of” legally required policy formulation or decision-taking. On the first judicial ruling, the North Gauteng High Court ordered the release of the report. The President appealed (paras. 3-8, 21).

Decision

The appellate court upheld the lower court’s order requiring the report’s release and soundly rejected the evidentiary support presented by the President to justify non-disclosure. The court planted South Africa’s freedom of information law within the “legal culture of accountability and transparency,” and South Africa’s Bill of Rights and freedom of information law as representative of a “‘culture of justification’” (paras.10-11). The public body must provide adequate justification for non-disclosure and not conclusory, perfunctory and dismissive statements, as provided here (paras. 13, 19, 31).

Recognizing the inequality of information between the public body and the information requestor, the court “must scrutinize the affidavits put up by the public body with particular care” and “not hesitate to allow cross-examination of witnesses . . . if their veracity is called into doubt” (para. 15). The court contests the President’s failure to present “direct knowledge”—here held by Mr. Mbeki and the judges who do not provide affidavits (para. 20). Further, “proper grounds” must be laid to justify the indirect knowledge of the witness, to judge the validity and the weight of the assertions presented (paras. 37-38). The appellate court finds that the affidavits supplied by the government “assert conclusions . . . with no evidential basis to support them, in the apparent expectation that their conclusions put an end to the matter. The Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy” (para. 19).

The court rejects the evidentiary basis presented in support of each of the President’s specific justifications, outlined above. First, no evidence is presented that the President is the Cabinet or that the report was before the Cabinet (para. 21). Second, no or insufficient evidence was presented that the public body exercised the discretion required under Section 41(1)(b); that a state or an international organization supplied the information requested; that any such information was supplied in confidence; or that certain information not supplied by a state or international organization could not be severed and released (paras. 22-26, 40-49). Lastly, no or insufficient evidence was presented that the public body exercised the discretion required under Section 44; and that the purpose of the report’s preparation satisfied Section 44 requirements (paras. 27-34). In a reference to the judicial discretion to review records that a public body asserts should not be disclosed, the court in closing warns that the public trust in a court, gleaned from the court’s openness and judicial reasoning, is jeopardized by “becom[ing] a party to secrecy” (para. 52).

Resources:

Judgment of the Court.

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Case title: Transnet Ltd. & Another v SA Metal Machinery Co

Case Number:

Country or Region: South Africa

Name & status of the Court: Supreme Court of Appeal

Date of decision:

Relevant law:

Decision:

Key words: commercial secrets

Summary: The Court ordered disclosure of the price and composition of a winning bid for a contract with a state-owned transportation company.

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Case title: Trustees For the Time Being of the Biowatch Trust v. Registrar: Genetic Resources

Case Number: 23005/2002

Country or Region: South Africa

Name & status of the Court: High Court

Date of decision: 23 February 2005

Relevant law: Promotion of Access to Information Act

Decision: The Court ordered the Registrar for Genetically Modified Corps to disclose information concerning the use of genetically modified organisms (GMOs) in South Africa, including certain risk assessment data as the disclosure was in public interest because of the potential dangers that GMO experiments may have caused to public health and environmental safety.

Key words: commercial interest, public health, public interest

Summary:

Facts

The Registrar for Genetically Modified Corps initially refused to disclose the information pertaining to the use of genetically modified organisms (GMOs) in South Africa, including certain risk assessment data, to Biowatch on the ground that the disclosure of such information would harm the commercial and financial interests of Monsanto and several other companies.

Decision

The Court ordered the Registrar of Genetically Modified Crops to release requested information to the requester. The court placed the burden of establishing that a refusal of a request for access is justified on the parties claiming the refusal. Section 36 of the Promotion of Access to Information Act provides that access to a record may not be refused if it consists of information “about the results of [any] investigation” performed by or on behalf of a third party “and its disclosure would reveal a serious public safety or environmental risk.” The Court noted the potential dangers to public health and environmental safety that result from GMO experimentation and concluded that disclosure of most of the requested information was in the public interest.

Resources:

Judgment of the Court.

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Case title: Van Huyssteen and Others NNO v Minister of Environmental Affairs and Tourism and Others

Case Number:

Country or Region: South Africa

Name & status of the court: High Court

Date of decision: 1996

Relevant law:

Decision: The Court held that the applicants were entitled to get copies of records relevant to the planning permission of steel mill.

Key words: construction, environment

Summary: High Court ruled that applicant requesters, who sought to protect their rights to trust property which were potentially threatened by the building of a large steel mill, were entitled to copies of the records held by the Minister of Environmental Affairs relevant to the proposed rezoning and planning permission.

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Uganda

Case title: Charles Mwanguhya Mpagi and Izama Angelo v. Attorney General

Case Number: 751of 2009

Country or Region: Uganda

Name & status of the court: The Chief Magistrate’s Court of Nakawa at Nakawa

Date of decision: 3 February 2010

Relevant law: Access to Information Act (AIA), 2005

Decision: The magistrate court observed that the applicants had a right to access the oil agreements, but that, on balance, the harm (to confidentiality interests) from disclosure outweighed any public benefits from disclosure (given that the applicants failed to establish or even allege any concrete public benefits), and accordingly dismissed the application.

Key words: access to agreements on oil exploitation, natural resources

Summary:

Facts

Since 2006, over two billion barrels of oil reserves have been discovered in various parts of the Uganda’s northern region of Albertine Graben, bordering on the Democratic Republic of Congo (DRC). On the basis of these discoveries, the government and oil companies have entered into several Production Sharing Agreements (PSAs).

Applicants, with the support of Ms. Katuntu & Co. Advocates, applied to Attorney General and the Permanent Secretary of the Ministry of Energy and Mineral Resources requesting certified copies of agreements made between the government of Uganda and certain multinational oil companies for the purpose of oil prospecting and exploitation around the Lake Albert Region (Production Sharing Agreements, or PSAs). The request was refused on the grounds that a clause in the PSAs provided for confidentiality about the agreements and resulting information, and mandated the consent of the multinational companies for disclosure.

Applicants, two journalists, supported by Human Rights Information Network (Hurinet) and OSIEA, applied to a Ugandan magistrate court for an order to force the government to disclose the oil agreements. Application seeking from the court: (i) to set aside the administrative decisions actively or constructively denying access to the PSAs; (ii) a declaration that the public interest in disclosure is greater than any third party harm; and (iii) unrestricted access to the record of the PSAs in the public interest. The government argued that the disclosure would amount to a breach of contract because of PSA confidentiality clauses requiring third party consent of the prospecting companies, and that AIA § 28(1)(a) requires the rejection of an information request if the disclosure would breach a duty of confidence owed a third party.

Decision

In the initial hearing, the magistrate court observed that the applicants had a right to access the oil agreements, but that, on balance, the harm (to confidentiality interests) from disclosure outweighed any public benefits from disclosure (given that the applicants failed to establish or even allege any concrete public benefits), and accordingly dismissed the application ruling that the government did not have to disclose the documents. The Court concluded that:

  • The government has to show more than that disclosure would breach its contract with private oil companies given that a court order of disclosure “supersedes any agreement between the parties.”
  • Standard for 34(b) mandatory disclosure in the public interest requires that applicants demonstrate “that the public benefit in the disclosure of the details of the agreements far outweighs the harm” that would result from violation of the “privacy and confidentiality interest of the contracting parties.”
  • Applicants did not sufficiently establish that this application is brought in the public interest: failed to demonstrate that disclosure would translate into public engagement in oil exploitation or a more accountable government.
  • Trustee-beneficiary relationship between the government and the people vis-à-vis natural resources is a unique one that does not require disclosure, particularly where disclosure can be detrimental to the Ugandan people.
  • Other countries similarly keep these agreements confidential.

The case is now on appeal to the Ugandan High Court.

Resources:

Judgment of the Court.

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Case title: Greenwatch (U) Ltd v. Attorney General of Uganda and Uganda Electricity Transmission Co.Ltd

Case Number: HCT-00-CV-MC-0139 of 2001

Country or Region: Uganda

Name & status of the court: High Court of Uganda at Kampala, judgment by Hon. Justice F.M.S. Egonda-Ntende

Date of decision: 12 November 2002

Relevant law: Constitution

Decision: The Court ruled that as the Implementation Agreement (IA) covering the building, operation and transfer of a hydroelectric dam was a public document, Power Purchase Agreement which was incorporated into IA was also a public document. Notwithstanding this the Court ruled that the applicant NGO didn’t have right to access these documents only because not all of its members were citizens of Uganda.

Key words: commercial secrets, state security and sovereignty, public document, construction, operation and transfer of hydroelectric dam

Summary:

Facts

The Government of Uganda entered into a series of agreements, the main agreement being an Implementation Agreement (IA), with the AES Nile Power Limited covering the building, operation and transfer of a hydro-electric dam on the River Nile near Jinja, Uganda. As a consequence of the IA, a Power Purchase Agreement (PPA) was executed by AES Nile Power Limited and Uganda Electricity Board (UEB), a statutory corporation at the time, established and wholly owned by the Government of Uganda, with the commercial monopoly to generate, transmit and sell electric current in Uganda. Subsequently Uganda Electricity Transmission Company Ltd. (UET) became the successor to the UEB, and so the applicant filed the case also against UET.

The Applicant Greenwatch is a Ugandan NGO dedicated to environmental protection. It sought to obtain a copy of the PPA from the Government in vain. The Government responded in November 2001 that the PPA contained commercial secrets, and that disclosure would not only impair the economic credibility and sovereignty of Uganda, but would also amount to a breach by the State of its sovereign commitments under the said agreements. Greenwatch submitted that it was entitled under Article 41 of the Constitution to have access to information that is in the hands of the state, its organs and agencies, and t