Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Contracts Expression
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The Ugandan Chief Magistrate’s Court of Nakawa held that in seeking disclosure of the contents of confidential oil contracts between the government and various companies, the applicants failed to meet the legal standard of the Access to Information Act because they did not show that the public benefit in disclosure outweighed the harm to the third parties. The Court found that applicants did not state how they would use information to make the government more transparent, accountable and efficient in the management of the oil resources and was therefore insufficient to prove the public interest. Furthermore, the Court disagreed that whatever a government holds in trust for its people (in this case oil), it must always disclose since the keeping of certain documents secret is necessary for the proper functioning of public services.
This case analysis was contributed by Right2Info.org.
The Ugandan government has previously entered into Production-Sharing agreements with various multi-national companies to explore the country’s oil resources. In May 2007, the applicants, Ugandan Citizens Charles Mwanguhya Mpagi and Izama Angelo, requested from the Attorney General and the Permanent Secretary, Ministry of Energy and Mineral Resources, certified copies of the agreements. Under Sec.18 of the Access to Information Act, the Permanent Secretary is deemed to have refused the request because he did not respond, and only stated that he needed time to consult with other government Agencies and State holders.
The Solicitor General, acting on behalf of the Attorney General, refused to disclose the agreements citing a confidentiality clause in those agreements requiring the third-party consent of the prospecting companies. The applicants then sought an order under Articles 41 and 244 of the 1995 Constitution and Sections 37, 34(b), 41 and 42 of the Access to Information Act setting aside the Solicitor General’s decision and declaring that the public interest in disclosure outweighed any third party harms. Applicants argued that Uganda’s oil is the property of its people and that the people have a right to know how it is being exploited for purposes of efficient, accountable and transparent management, whereas the Attorney General argued that such disclosure would violate the confidentiality clauses.
The Court began by noting that the Attorney General’s breach of contract argument was not sustainable given that an order of the Court would supersede any agreement. Despite this, the Court determined that the applicants did not meet the legal standard of Section 34(b) that the public benefit in the disclosure of the details of the agreements outweighs the harm that such disclosure would entail in view of the confidentiality clauses. The Court held that the applicants’ statements that the citizens of Uganda have the right to participate in government decisions was insufficient to prove the public interest, and that applicants did not state how the applicants would have the information published by the media or how the applicants would use the information to bring the government to be more transparent, accountable and efficient in the management of the oil resources.
Furthermore, the Court disagreed that whatever a government holds in trust for its people (in this case oil), it must always disclose. In doing so, the Court noted that government business is not, in its entirety, supposed to be in the public domain, as the keeping of certain documents secret is necessary for the proper functioning of public services. Finally, the Court ordered that each party would bear its own costs because the applicants did not bring the case for material gain.
The case is now on appeal to the Ugandan High Court.
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