Access to Public Information
Bubon v. Russia
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The Federal High Court of Nigeria held that disclosure of information about a contract that had already been awarded and was no longer in the negotiation stages of negotiations does not interfere with the rights of the third party contractor.
This case analysis was contributed by Right2Info.org.
On August 30, 2012 the Public & Private Development Centre Ltd. (PPDC) requested information from the Power Holding Company of Nigeria regarding the award of a contract for the supply and installation of 300 power units in several Nigerian cities. Among the requested items were a procurement plan for the project, the bidding documents issued to all interested bidders on the project, a list of all contractors that submitted bids, a copy of the bid evaluation, the minutes of the board meeting where the winning bids were approved, and copies of final contract award documents. The Power Holding Company of Nigeria and the Attorney-General of the Federation refused to furnish the requested information, prompting the PPDC to bring suit.
The main issue before the Court was the Power Holding Company of Nigeria’s argument that the requested information fell under Section 15(1)(b) of the Freedom of Information Act (FOIA), which allows public institutions to “deny an application for information that contains information the disclosure of which could reasonably be expected to interfere with the contractual or other negotiations of a third party”. Since the bid evaluation report involved contractual information between the Power Holding Company and the third party company who won the contract, Crown Resources Development Co. Ltd., the Power Holding Company claimed it would be an injustice to the third party contractor and a breach of the privity of contract doctrine to grant PPDC’s request for information.
Considering the Section 15(1)(b) argument, the Court first outlined that a scrutiny of the provision indicates that three conditions must be concurrently present for a public institution to deny a request for information on these grounds: (1) the transaction must still be at the negotiation stage, (2) a third party must be involved, and (3) the disclosure of the information must reasonably be expected to interfere with the contractual or other negotiations of a third party. The Court found that the first condition had not been met. Rather, “the uncontroverted evidence before the Court state[d] unequivocally [that] the negotiations [had been] concluded” well before PPDC had made its request. Moreover, even if the transaction had been at the negotiation stage at the time of PPDC’s request, the third condition also would not have been met. According to the Court, “the disclosure of the information sought by [PPDC] cannot by any stretch of the imagination reasonably be expected to interfere with any contractual or other negotiations of the . . . third party”. Absent these two conditions necessary for Section 15(1)(b) to apply, the Court ordered the Power Holding Company of Nigeria to produce the requested information.
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