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Private Bodies and Public Corporations

last modified Sep 13, 2013 10:15 PM

THIS IS AN ARCHIVED PAGE. THE INFORMATION BELOW IS NOT REGULARLY UPDATED. LAST PARTIAL UPDATE IS FROM DECEMBER 2012. THE CURRENT UPDATED PAGE CAN BE FOUND HERE.

Overview

Most ATI laws provide for access to information held by public corporations and/or private entities that perform public functions or receive public funds. Precisely which entities are covered often is unclear, however, given the multiplicity of kinds of entities that fall within this category.

First, there are state owned enterprises (SOEs), also called government owned corporations, which are defined by wikipedia as "legal entities created by a government to undertake commercial or business activities on behalf of an owner government. ... The defining characteristics are that they have a distinct legal form and they are established to operate in commercial affairs. While they may also have public policy objectives, SOEs should be differentiated from other forms of government corporation or entity established to pursue purely non-financial objectives ...." (See Wikipedia) Most SOEs are established by government, but some commenced as private entities that were then nationalized. SOEs can be fully or partially owned by the government. For instance, in Israel, Jamaica and Serbia, a "government owned company" is defined as any company in which the government holds more than 50% of the shares.

SOEs are generally fully guaranteed by the government; For example, in Finland, state-run corporations (liikelaitos), even though responsible for their own finances, cannot be declared bankrupt; the state is the ultimate guarantor of their liabilities. In contrast, the state may own an interest, even a controlling interest, in ordinary limited liability corporations (discussed below as private entities that receive government funding).

SOEs are covered by most ATI regimes in Europe, the Americas and Africa (including Angola, South Africa and Uganda), by several in Asia (notably India, Japan, Nepal, the Philippines, South Korea and Thailand), and by Israel, Jamaica and New Zealand. However, China's Disclosure of Government Information Regulations, which entered into force in May 2008, do not apply to SOEs, and Indonesia's Law on Public Information Transparency, passed in April 2008, applies to SOEs only to a limited extent, pursuant to a compromise reached after civil society strongly objected to the government's efforts to exclude SOEs entirely. See subsection on Indonesia. The contentiousness of the issue in Indonesia suggests that coverage of SOEs, as well as private bodies that exercise public functions or receive private funds, is likely to be a major area of controversy as new laws are adopted, especially in Asia.

Second, there are private entities that exercise administrative authority, perform public functions or receive substantial public funds. These three elements are closely related, and there are considerable variations and lack of precision concerning what is understood to constitute "administrative authority" and "public functions," as well as concerning the amount of funding that constitutes "substantial."

Administrative authority in many countries means the authority to regulate, for instance, by professional licensing and standard-setting bodies. Such bodies are the subject of administrative (or public) law. Regarding the definition of "public function," not only are there variations among countries, but within countries. "Public functions" may be limited to public safety and security (protection of life and property), or may encompass a broad range of services, e.g., including health care.  Trash collection is considered a public function in most jurisdictions, but not in all. Armenia's ATI law enumerates functions of "public importance" expansively to include "sport, education, culture, social security, transport, communication and communal services."

Most entities that perform public functions also exercise administrative authority. Notable exceptions include government-financed broadcasters (whether state-controlled or independent), which do not exercise administrative authority, but in many countries are considered to perform a public function. Virtually all entities that perform public functions or exercise administrative authority receive substantial public financing, but some - such as professional licensing boards in some countries - may be substantially funded by membership dues.  Moreover, an entity could receive substantial public funding and yet perform other than public or administrative functions.  For instance, private institutions that receive funding for scientific research generally are not considered to perform a "public function" although their work furthers the public interest.  In addition, different objectives justify the varying transparency requirements. Knowing how public funds are spent is just one objective; holding an entity accountable that has authority over people's lives is a separate one.

Information held by private bodies that exercise "administrative authority" or perform "public functions" appears to be covered by the ATI laws of most European countries (though not the United Kingdom), as well as at least 11 other countries: 2 in Africa (Angola, South Africa); 6 in the Americas and Caribbean (Antigua and Barbuda, Belize, Canada, the Dominican Republic, Ecuador, Peru, and Trinidad and Tobago), and 3 in Asia and the Pacific (Australia, New Zealand and South Korea). Moreover, the Constitution of Panama was amended in 2004 to provide, in Article 43, for the right to access information held by private companies involved in work of a public nature as well as by the state. The constitutions of at least three other countries - Poland, Serbia and South Africa - expressly extend the right to information to state owned enterprises and/or private entities that exercise public functions as well as to public authorities. Indeed, South Africa's Constitution guarantees a right of access to "any information that is held by another person and that is required for the exercise or protection of any rights."

In a few additional countries, e.g., Israel and Jamaica, application of the ATI law to private bodies requires an order of the Minister of Justice or other responsible Minister. The laws of several of these countries - e.g., Canada, the Czech Republic, Hungary, Iceland, India, the Netherlands, Peru and Slovakia - specify that only information related to the public functions is subject to disclosure. Hungary's law usefully extends coverage so as also to include "matters related to their [the entities'] financial management," an extension which is implicit in most of the other laws.

Laws that apply to entities that receive public funds regardless of the functions they perform. A smaller, but steadily growing number of countries extends coverage, in addition, to entities that receive public funds without reference to whether or not they perform public functions. Applying ATI laws to such entities makes good sense:  the approach (a) avoids the uncertainties that flow from a lack of agreement as to what constitutes "public functions;" (b) is rational, given that (i) the public should be entitled to obtain information from, and hold accountable, entities that receive substantial public funds, and, in any event (ii) most entities that receive public funds perform functions that benefit the public; and (c) is fair, applying a common test across the board. In contrast, laws that are applicable to an enumerated list of entities, including some private entities, comply with the interest in certainty, but lack fairness.

Among the countries whose laws apply to private entities that receive substantial public funds regardless of the functions they perform are India and at least four European countries - Denmark, Ireland, Montenegro and Serbia. However, it should be noted that the ATI laws of two of these countries - Denmark and Ireland - provide that coverage shall be extended to private entities only pursuant to a specific order issued by the relevant minister and, at least in Ireland, few such private entities have yet been so designated. In the United Kingdom, the FOI Act similarly contemplates extension of its application to private entities pursuant to order of the Secretary of State; the government started a consultation in 2008 to consider whether the Act's coverage should indeed be so extended.

What constitutes "substantial public funds"? An interesting question is the amount of public funds required to subject private entities to ATI requirements. The laws of Denmark, Ireland, Serbia, and India suggest that more than 50% public funding should suffice: Denmark's law requires that the entity be "mainly" funded by government funds; Ireland's law requires that the entity be financed "wholly or in part" from the public purse; Serbia requires that an entity be "wholly or predominantly" funded; and India offers the most thoughtful (and far-reaching) approach . The RTI law applies to bodies that receive "grants or loans" (emphasis added) from Central or State government (presumably not including local governments) totaling more than the equivalent of about US$60,000 or 75% of their total budgets.

To whom are information requests submitted? Most laws that apply to private bodies treat them as public authorities for purposes of the ATI law and accordingly hold them responsible not only to publish information proactively but also to respond to ATI requests. However, the ATI laws of several countries - including Ireland and New Zealand - deem information held by private contractors that perform work for a government agency to be held by the contracting agency, and thus hold the contracting agency responsible to respond to ATI requests.

Problems with ATI laws that apply to private entities based on the functions they perform or the way in which public funds are granted or functions are delegated. Some ATI laws that apply to private entities that perform public functions or operate with public funds do so only if the delegation of public authority or grant of funding was pursuant to a law. For instance, the Council of Europe Convention on Access to Official Documents gives states the option to declare their intent to extend the coverage of their ATI laws to "natural or legal persons insofar as they perform public functions or operate with public funds, according to national law," pursuant to Article 1(2)(a)(ii)(3). The treaty's language is disappointing in at least three respects. First, the phrase "as provided for by national law" is unnecessarily restrictive. Entities may "perform public functions or operate with public funds" pursuant to a law (national or state), regulation, contract or other agreement, yet only those that do so pursuant to "national law" are covered by this optional treaty provision. Second, the very fact that the provision is optional is disappointing, reflecting the drafters' decision to exclude from the treaty's mandatory provisions all but the minimum standards accepted by influential Council of Europe member states. Third, the term "public function" is unclear; different countries understand the term differently. The drafters of the European Convention on Access to Official Documents recognized this ambiguity in paragraph 13 of the Explanatory Report that elaborates the Convention, yet provided no guidance.

Recommendation: It is important that bodies that rely significantly on public Funds to perform public functions should be covered by ATI legislation in order to address the specific problem of state functions being devolved to private bodies, sometimes precisely to avoid transparency and accountability requirements. ATI laws should apply to "natural or legal persons insofar as they perform public functions, exercise administrative authority or are substantially financed by public funds".

Alternatives to applying ATI laws to private entities based on functions they perform. Because of the difficulty of defining "public function," courts have tended to apply other tests, such as assessing the amount and impact of public funding, or the degree of control exercised by the government. For instance, in South Africa between 1994 and January 2000, the right of access to information was guaranteed by the Interim Constitution, which provided access to "all information held by the state or any of its organs [...] in so far as that information is required for the exercise or protection of any of their rights." The courts determined that a body constituted an "organ of the state" if the state exercised control over the body in question; the control test was easier to apply than one based on evaluating whether the functions were primarily public. As a result, coverage was extended to entities controlled by the state even if their nature might be private (Directory Advertising Cost Cutters v. Minister for Posts, Telecommunications and Broadcasting and Others 1996 (3) SA 800 (T); Korf v. Health Professions Council of South Africa 2000 (1) SA 1171 (T); Ngubane v. Meisch No and Another 2001 (1) SA 425 (N))

Several courts and tribunals - including in India and South Africa - have held that privatized companies come within the scope of their country's ATI law, even though they might not be controlled by government, by virtue of the fact that (a) they were substantially financed by the government given that the government had turned over significant assets to the company; or (b) they performed what traditionally had been a government function.

Recommendation: Businesses often complain about the extension of transparency requirements to private entities. They make several claims, to which there generally are sound responses. To the extent that they raise legitimate concerns, some adjustments to ATI laws could be made. First, while businesses may not relish transparency, most legitimate businesses do not object to transparency per se; rather they seek a basic level of predictability, rationality and fairness. Concerning the level of public funding that should subject an entity to disclosure requirements, such terms as "mainly" or "predominantly" funded by government should suffice, to the extent that they are understood to mean more than 50 percent government ownership. In contrast, application of an ATI law, such as Armenia's, to "private organizations that have a monopoly or leading role in the goods market," runs into predictability and rationality problems. What constitutes a "leading role"? And, if the phrase is to apply at all, why only to the goods market? Why not also to services? Making an ATI law applicable to private entities that receive substantial public funding (more than 50% of their income, or over a certain absolute amount, or substantial public assets at less than fair market value),  responds to public and business interests in rationality, certainty and fairness.

Second, SOEs and other private entities often complain that transparency obligations impose unfair competitive disadvantages vis-à-vis non-obliged private competitors. One response is that government funding gives entities a substantial competitive advantage; this is all the more the case regarding SOEs, which generally are fully or largely indemnified by the government.  A second response is that studies have shown that in fact transparency requirements do not place SOEs at a comparative disadvantage, or at least not a significant one. A third response is that private entities should only need to disclose information about their public functions. This is an approach taken by several countries, including the Netherlands. The Netherlands, furthermore, has charted an unusual approach by requiring private entities that could be viewed as competitive with public entities to be subject to the same transparency obligations as the public entities. However, this approach raises a rationality question: why should information that was available to the public be removed from public reach simply by virtue of the privatization of what was once a public company? If the only reason for transparency were to be able to monitor the expenditure of public funds, such a step could make sense, but generally transparency requirements are justified by other reasons as well, such as the public's right to know about decisions that will affect their lives concerning basic services, such as electricity, natural gas or water.

Below is information about the law and jurisprudence of various countries.

Europe

Most ATI laws in Europe apply to state-owned enterprises and most laws also apply to private bodies that exercise administrative authority or perform public functions, with some variations in definition. The laws of several countries - including Denmark, Ireland, Montenegro and Serbia- also expressly apply to private bodies that operate with public funds regardless of the functions they perform.

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Armenia

The Law on Freedom of Information applies to "organizations financed from the state budget, as well as private organizations of public importance and their state officials." Article 3 defines "organization of public importance" expansively to be "private organizations that have a monopoly or a leading role in the goods market, as well as those providing services to the public in the spheres of health, sport, education, culture, social security, transport, communication and communal services." In other words, the law applies to private entities based on their functions, not on their receipt of public funds, and considers "public functions" to include a wide range of enumerated functions.

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Bulgaria

The Access to Public Information Act extends to state institutions and other entities funded by the state budget and exercising public functions.

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Czech Republic

The Law on Free Access to Information applies to entities that exercise administrative authority, but only concerning matters related to the exercise of such authority. Article 2(2) of the Law states that "obliged entities" includes "those subjects to whom the law has entrusted deciding about legal matters, legally protected interests or duties of natural persons or legal entities in the area of public administration, but only to the extent of this decisive activity."

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Denmark

The Danish Access to Public Administration Files Act, by Article 1(2), applies to: "1º any public utility generating, transmitting, or distributing electricity at voltages of 500 volts or more; 2º Any company, partnership institution association etc. carrying on the business of natural gas suppliers; 3º Any collective district heating plant falling under the Danish Heating Act and having a capacity of 10 MJ/s or more." In addition, Article 1(3) reads:

Upon consultation with the Minister for Justice, the minister concerned may by Order provide that this Act shall apply also to specified companies, partnerships, institutions, associations etc. that cannot be classified as part of the public administration, provided that the operating expenses of such entities are mainly covered by central or local government funds or to the extent that by or pursuant to statutory provision they are empowered to make decisions on behalf of central or local governments.  The minister concerned may under this provision lay down more detailed rules on filing etc. of documents.

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Estonia

The Public Information Act defines "holders of information" to include "legal persons in public law and private entities that are conducting public duties including educational, health care, social or other public services."

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Georgia

Art 5(2) of the Law on FOI states that "Every individual has the right to have access to any official document of ... state enterprises, if they do not contain state, professional or commercial secrets." The FOI provisions (Chapter III) of the General Administrative Code of Georgia affect all (a) persons of private law that "exercise public authority in accordance with law," and (b) artificial persons of private law funded by the State or local government budget. A problem arises because (a) the term "exercise public authority" is not defined and often is difficult to prove, and (b) government funding subjects only artificial persons and not private persons to FOI obligations.

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Hungary

Article 19(1) of the former Act on Protection of Personal Data and Publicity of Data of Public Interest stated that "organs and persons ... fulfilling state or local government duties and other public duties defined in legal rules," shall provide precise and timely information to the public in connection with "matters coming within their sphere of duties, and also matters related to their financial management."

The 2011 ATI Act defines data of public interest as "information or data other than personal data registered in any mode or form concerning activities undertaken and controlled by the body or individual carrying out state or local government responsibilities, as well as other public duties defined in relevant legislation, regardless of their mode of control, independent or collective nature; therefore, with special regard to […] data concerning financial management and concluded contracts."

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Iceland

The Information Act (Article 1) expressly applies to "the activities of private parties insofar as they have been entrusted with official power to take decisions regarding people's rights or obligations."

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Ireland

The FOI Law in Ireland, like the law of New Zealand, applies to records held by private sector organizations carrying out activities under contract to an agency. The Act also allows bodies financed from the public purse (either wholly or in part) to be covered but only pursuant to an express regulation; to date few such bodies have been brought within the scope of the Act.

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Italy

Under Law No. 241, the right of access to information extends to "public entities and the providers of public services, as well as guarantee and supervisory authorities."

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Latvia

Section 1 of the Freedom of Information Law defines institutions to which the law applies as, among others, "persons who implement administrative functions and tasks if such person in the circulation of information is associated with the implementation of the relevant functions and tasks."

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Liechtenstein

The Information Act allows any person to obtain files from state and municipal organs and private individuals who are conducting public tasks.

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Lithuania

Article 6(7) of the ATI law states: "Other institutions or enterprises, as well as political parties, trade unions, political, public and other organizations, shall provide public information producers and other persons with public information concerning their own activity, according to the procedure established in the bylaws of these institutions, enterprises or organizations."

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Macedonia

Article 3 of the Law on Free Access to Information of Public Character defines "information holders" to include "public enterprises, and legal and natural persons performing public competencies and activities of public interest determined by law."

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Moldova

Law on Access to Information defines "information providers" to include "c) individuals and legal entities that, under the law or contract with public authorities, are empowered to provide some public services and to collect, select, preserve and hold official information, including data of private character."

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Montenegro

Article 4 of the Law on Free Access to Information defines "government agency" subject to the Act to include any "public company or other business entity that has been granted to perform public functions, which is founded by the State or a local self-government authority, or which is funded from public revenues and with which the information are filed."

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Netherlands

The Dutch FOIA states, in section 1a, that it applies to all administrative authorities -- including a) ministers; b) administrative authorities of provinces, municipalities, water boards and regulatory industrial organizations; and c) administrative authorities whose activities are subject to the responsibility of the authorities referred to in a) and b) - except those excluded by order in council. However, the explanatory memorandum that accompanies the Act and Dutch litigation and disclosure practice and jurisprudence establish that not all bodies are obliged to disclose the same categories of information. Essentially, there are three different levels of application.

First, some bodies must disclose all documents they hold (subject, as always, to specified exceptions); these are:

  • all public bodies, and
  • private bodies that are owned or co-owned by the government, which are treated as if they were public bodies.

Second, some bodies are required to disclose only information related to their public functions:

  • Private bodies that perform functions mandated by law must disclose all documents related to those functions.
  • Private bodies that temporarily perform functions in the context of a public contract must disclose all documents directly related to the contract and/or those functions, including any underlying or source documents (which is especially important, e.g., for private contractors who undertake a research job for a public body).

Third, requesters are able to obtain some documents concerning private entities from agencies that are entitled to possess or have access to those documents. These entities include:

  • private bodies in which the government is the only shareholder or one of the shareholders.
  • private bodies that operate in an industry or sector, such as electricity, that includes public bodies.

Treatment under the Dutch FOI law of entities in the last above-mentioned category, namely that that operate in sector that includes at least one public company, is clear but complex. Dutch administrative law jurisprudence states that as long as at least one of the companies is public, and thus subject to the FOIA, the Act applies also, flowing from notions of parity and fair competition, to all of the private companies. However, as soon as the last public company in an industry or sector is privatized, transparency is gone. 

In addition, requesters are entitled to gain access to documents which are held by the public partner in a private-public partnership; these documents tend not to be the most operational or detailed.

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Poland

Article 4(1) of the Act on Access to Public Information provides that entities that are obliged to make public information available are "the public authorities as well as other entities performing public functions, in particular:

  1. bodies of public authority;
  2. bodies of economic and professional local authorities;
  3. entities representing the State Treasury in accordance with the separate provisions;
  4. entities representing state legal persons or legal persons of local authorities and entities representing other state organizational units or organization units of local authority;
  5. entities representing other persons or organizational units, which perform public functions or dispose of public property as well as legal persons, in which the State Treasury, units of local authority or economic or professional local authority hold dominant position in the understanding of the provisions of competition and consumer protection."

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Romania

Article 2 of the Law Regarding the Free Access to Information of Public Interest defines "authority or public institution" to which the law applies to include "any state company (régie autonome) which uses public financial resources and carries on its activities on Romania's territory, in accordance with the Constitution."

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Serbia

Article 3 of the Law on Free Access to Information of Public Importance defines "public authority body" to include (1) an organization vested with public authority, and (2) a legal person founded by or funded wholly or predominantly by a state body."

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Slovakia

Article 2(1) of the Freedom of Information Act 2000, as amended, provides that "entities obliged to provide access to information under this Act" include "legal entities and natural persons that have been given the power by law to make decisions on the rights and responsibilities of natural persons or legal entities in the area of public administration," and the obligation to disclose applies "only [to matters] within the scope of their decision-making power."

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Slovenia

Article 1(1) of the Act on Access to Information of Public Character provides:

This Act governs the procedure which ensures everyone free access to and re-use of public information held by state bodies, local government bodies, public agencies, public funds and other entities of public law, holders of public powers and public service contractors.

"Public funds," which disburse and manage public funds, form a sub-set of holders of public powers; they include such bodies as the Housing Fund of Slovenia, which finances and manages the National Housing Program, and the Farmland and Forest Trust, which manages the farmland, farms and forests owned by the state. Holders of public powers refer to bodies that exercise public (or administrative) authority. It is understood that companies that do not perform public functions but receive public funds - such as farm subsidies, subsidies for film-making and other cultural activities - are not covered by the Act. Thus, if a company is only receiving public funds this does not mean that it is an obliged body, although of course the public body that pays the public funds is obliged to provide information.

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Sweden

The right to request information applies to legal persons owned or controlled by municipal authorities and some other private bodies performing public functions explicitly mentioned in an annex to the Secrecy Act.

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Turkey

Article 2 of Law No. 4982 on the Right to Information provides "This law is applied to the activities of the public institutions and the professional organizations which qualify as public institutions."

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United Kingdom

Publicly-owned companies (such as Royal Mail) are covered by the UK FOI Act, pursuant to Section 3(1) of the FOI Act.  However, "publicly-owned company" is defined narrowly in Section 6 to be one which is wholly owned by a public authority. Section 6 reads:

(1) A company is a "publicly-owned company" for the purposes of section 3(1)(b) if:

(a) it is wholly owned by the Crown, or

(b) it is wholly owned by any public authority listed in Schedule 1 other than:

(i)  a government department, or

(ii) any authority which is listed only in relation to particular information.

(2) For the purposes of this section:

(a) a company is wholly owned by the Crown if it has no members except:

(i) Ministers of the Crown, government departments or companies wholly owned by the Crown, or

(ii) persons acting on behalf of Ministers of the Crown, government departments or companies wholly owned by the Crown.

(b) a company is wholly owned by a public authority other than a government department if it has no members except:

(i) that public authority or companies wholly owned by that public authority, or

(ii) persons acting on behalf of that public authority or of companies wholly owned by that public authority.

Companies that are partly owned or companies that are jointly owned by two or more public authorities are not covered. Network Rail, for example, is not covered because its members are drawn from the rail industry and general public as well as from the Department for Transport. Transparency advocates find this to one of the unsatisfactory, and indefensible, provisions of the Act. The issue of publicly-owned companies and FOI arose in early 2008 when the Government introduced emergency legislation to nationalize the Northern Rock Bank.  As a publicly owned company wholly owned by the Treasury, Northern Rock should automatically have been covered by the Act, but the Government included a specific provision in the legislation to exclude it from the FOI Act.

In mid-2008, the Government initiated a consultation on extending the scope of the FOI Act to some private entities. Section 5(1) of the Act authorizes the Secretary of State to designate as a public authority for purposes of the Act any person who "(a) appears to the Secretary of State to exercise functions of a public nature" or  "(b) is providing under a contract made with a public authority any service whose provision is a function of that authority". As of August 2008, the Government had not concluded the consultation, nor had the Secretary of State made any such designations.

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Americas and the Caribbean

At least six countries in the Americas apply their ATI laws to entities that are government owned or controlled: Argentina, Canada, the Dominican Republic, Ecuador, Peru and the United States. The Dominican Republic, Ecuador, and Peru appear to also apply their laws to private bodies that perform public functions.

 

Canada

The Federal ATI Act applies to federal government institutions. Subsection 3(1) defines "government institution" as "any department or ministry of state of the government of Canada or any body or office listed in Schedule 1" and "any parent Crown corporation, and any wholly-owned subsidiary of such a corporation". Schedule 1 lists hundreds of federal departments, ministries, administrative boards, tribunals and review agencies, as well as hundreds of Crown corporations and their subsidiaries. The list is frequently updated. Pursuant to s.77(2) the Governor in Council may, by order, amend Schedule 1 by adding thereto any department, ministry of state, body or office of the government of Canada. Deletions from the list of government institutions must be approved by parliament.

In addition, a private entity that does business with the Government of Canada is subject to the federal Access to Information Act and the Privacy Act concerning matters within the scope of their work for the Government.

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Dominican Republic

The ATI Law (Article 1) recognizes a right to request and receive comprehensive, truthful, adequate and timely information from any state institution, including state enterprises, and private entities that receive public money to conduct state business.

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Jamaica

Section 5(1)(a) of the Access to Information Act 2002 provides that the Act applies to all public authorities.  "Public authorities" is defined in the Act to include any government company which is wholly owned by the Government or an agency of the Government, or in which the Government holds more than 50% of the shares. Section 5(3) states:

The Minister may by order, subject to affirmative resolution, declare that this Act shall apply to ... "(b) any ... body or organization which provides services of a public nature which are essential to the welfare of the Jamaican society, or to such aspects of their operations as may be specified in the order.

Section 5(3) has not yet been applied to an actual case.

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Mexico

The Law on Federal Transparency and Access to Public Government Information does not appear to apply to private bodies of any kind or even to state owned enterprises. Article 3, para. XIV of the Law lists the bodies that are compelled to provide information, namely: the Federal Executive Power, the Federal Public Administration, the Office of the Attorney General; the Federal Legislative Power; the Federal Judicial Power; any autonomous constitutional body; any federal administrative court; and any other federal body.

The constitutional reform to Article 6 of the Constitution published in July 2007 includes an obligation to publicize any public funds given to private bodies or individuals. Subsection VI states that "[t]he laws will define the form in which the obliged entities will have to make public information related to public resources which they give to legal or moral persons [meaning individuals and public or private legal entities]." [unofficial translation] This reform is now the law of the land although the law to implement the provision has not yet been passed.

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Panama

The Constitution of Panama was amended in 2004 to provide for the right of access to information held by the state or by private companies involved in work of a public nature. The ATI law applies to, among other bodies, any private entity that offers public services or executes administrative functions.

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Peru

Article 9 of the Law on Transparency and Access to Public Information 2003 requires private sector bodies that offer public services or are responsible for public administrative duties to report the characteristics, costs and functions of services.

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United States

The FOIA expressly applies to any "government corporation" or "government controlled corporation." 5 U.S.C. sec 552(f)(1). The FOIA does not apply to private entities and any bodies that "are neither chartered by the federal government [n]or controlled by it." Forsham v. Harris, 445 U.S. 169, 179-80 (1980). See also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980). However, government agencies may be obliged to disclose information submitted to them by private entities pursuant to the FOIA or other laws. Information generated by private entities that could be disclosed to the public (pursuant to FOI or other laws) includes the following.

Subject to FOIA

1. Information prepared by the private sector and submitted to the government, whether voluntarily or pursuant to other laws, is fully subject to FOIA (subject, as always, to various exceptions, e.g., for trade secrets, commercial confidentiality or national security).

2 FOIA amendments passed in 2007 inserted in the statute an expanded definition of "record" subject to FOIA to include information "maintained for an agency by an entity under Government contract, for the purposes of records management."  (Sec. 552(f)(2)(B).)  This is a narrow provision, but is not inconsequential.

3. Records that are created or maintained by a private contractor under contract with an agency may be considered "agency records" under the control of the contracting agency in certain circumstances, depending on the degree of government control over those records.

Not subject to FOIA

4. Information that is collected and maintained by a private entity is not automatically subject to the FOIA even though it may both be paid for by the government and intended for use in agency decision-making. .  Forsham v. Harris, 445 US 169 (1980).  Even where the government contracts out government functions, the FOIA does not apply to the contractor and - under Forsham - the government has no responsibility to take possession of the information and make it available under FOIA.  This is a major loophole in U.S. law.

Subject to Disclosure Pursuant to Laws other than FOIA

5. Some laws require the government to collect information for the express purpose of making it available to the public.  A great deal of environmental information (about toxic releases; air pollutants; effluents into waterways) falls into this category.  Examples include campaign finance information and the Environmental Protection Agency's toxic release inventory.

6. Other laws require private entities to provide information to the government - such as chemical facility worst-case scenario reporting - to which the public has limited availability.

7. Private entities are required to make some types of information available to the public as well as the government. This category includes pharmaceutical product package inserts, and some tax forms and annual reports. For instance, nonprofit organizations are required to publish their annual Tax Form 990, which includes the salaries of top paid Board and staff members and other major expenditure lines; income, including total amounts from private and public donors (without needing to name the sources); names of any top-paid staff or Board members who are related to each other; and statement of accomplishments.

Corporations are required to make public, in their tax forms and annual reports, audited financial data, compensation and benefits for top officials, and any events that may have a material affect on the value of their shares. The Securities and Exchange Commission has explained the rationale for such transparency as follows: "The laws and rules that govern the securities industry in the United States derive from a simple and straightforward concept: all investors, whether large institutions or private individuals, should have access to certain basic facts about an investment prior to buying it, and so long as they hold it.  To achieve this, the SEC requires public companies to disclose meaningful financial and other information to the public. This provides a common pool of knowledge for all investors to use to judge for themselves whether to buy, sell, or hold a particular security.  Only through the steady flow of timely, comprehensive, and accurate information can people make sound investment decisions" (The Investor's Advocate:  How the SEC Protects Investors, Maintains Market Integrity, and Facilitates Capital Formation).

8. Private companies are required to make a great deal of consumer information public, even though not required to submit the information to government.  This information includes privacy policies, credit disclosure terms, food labeling and health warnings.

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Asia and the Pacific

ATI laws apply to government owned or controlled enterprises in at least six Asian countries -India, Japan, Nepal, the Philippines, South Korea and Thailand - and one territory, namely Hong Kong. Indonesia's ATI law, passed in April 2008, requires state owned enterprises (SOEs) to disclose certain information, primarily of an administrative nature. China's Disclosure of Government Information Regulation, which entered into force May 2008, does not extend to SOEs at all. The laws of at least two countries - India and South Korea - extend to private bodies that perform public functions, and India's law also applies to private bodies based solely on their receipt of private funds.

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Australia

Authorities subject to the FOI Act's coverage include "a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council," other than several exemptions, or "(b)  any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act ...."

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Hong Kong

The Code on Access to Information lists, in Annex A, the departments and other bodies to which the law applies. Some of the bodies appear to be state-owned enterprises, such as Invest Hong Kong and the Telecommunications Authority.

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India

The RTI Act covers any body that is owned, controlled or substantially financed directly or indirectly by funds provided by the Central or State Governments (section 2(h)(d)(i)) and any non-governmental organization that is substantially financed directly or indirectly by funds provided by the Central or State Governments (section 2(h)(ii)). However there is little clarity and hardly any implementation guidelines for identifying bodies in the private and NGO sectors under these criteria.

The Central Information Commission has used the criterion provided in another law, the Comptroller and Auditor-General's (Duties, Powers and Conditions of Service) Act, 1971, to determine whether a body is substantially financed by the Central Government. The law governing the powers and duties of the Controller and Auditor General (C&AG) states that a body will be considered to be substantially financed by the government if it receives grants or loans from the Central or State Governments totalling more than (a) INR 2.5 million (about US$ 60,000) or (b) 75% of its total budget (Section 14). See alsoVeeresh Malik v. Department of Sports, New Delhi.

All estates and properties of a religious nature including mosques, madrassas and other Islamic charities in India are controlled by Wakf Boards set up under various state and central laws (see Wakf Act 1995), and so are covered by the RTI Act directly.

The State Information Commission of Goa has found in Shri Guiri S. Pai Raikar V PIO, Mamlatdar of Ponda Taluka that all Hindu temples managed by a body of trustees to be public authorities for purposes of the RTI Act as they are effectively controlled by the State Government under existing statutes.

Some states like Madhya Pradesh and Chhattisgarh have established minimum amounts of grants or funding received from government during a given financial year that subject an NGO to direct coverage by the RTI Act. However, these guidelines have not been used adequately to identify all bodies covered by the RTI Act in those states.

In Electronics and Computer Software Export Promotion Council v. CIC and Navneet Kaur, the Delhi High Court ruled that a "trade facilitation organization" is a "public authority" because of (a) financial support and (b) administrative control, and therefore must abide by the RTI Act. The applicant alleged sexual harassment against two officials of the Electronic and Computer Software Export Promotion Council (ESC). When she requested information about the committee that was established to investigate the allegation, ESC argued it did not need to release the information because it was not a "public authority" for purposes of the RTI Act because it had autonomy to make its own rules and its employees were not government employees. First the Central Information Commission, then the High Court, disagreed. An organization is a "public authority" if it discharges public functions and meets financial and administrative criteria. The High Court relied on the fact that ESC receives over half of its budget from the central government. Significant administrative factors included the fact that ESC is audited by a government department, reported to the central government through a department, and received department assignments. This "public authority" nature was not negated by the ESC's autonomy in framing its rules governing the service conditions of its employees or by the fact that ESC employees are not considered government servants.

In a separate case, the Central Information Commission held that all electricity distribution companies (DISCOMS) in the national capital Delhi are public authorities within the meaning of the RTI Act. The DISCOMS challenged this decision before the High Court claiming that they are privately owned and managed companies and did not meet the criteria mentioned in the RTI Act. The High Court referred the matter back to the Central Information Commission with the advice that the matter be heard once again by the full bench and an opportunity be given to the DISCOMS to present their case. After conducting more hearings the CIC arrived at the unanimous decision that the DISCOMS were indeed substantially financed by the Government of Delhi because assets of huge monetary value had been handed over to the DISCOMS when the original public sector power utility was privatized and split into multiple entities. The DISCOMS challenged this order before the High Court for a second time, with the same result in Sarbajit Roy v Delhi Electricity Regulatory Commission.

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Indonesia

Article 14 of the Law on Public Information Transparency provides a list of the kinds of information that "a State Corporation, a Regional Corporation and/or other state-owned corporations" are obliged to provide under the law:

a. the name and domicile, purposes and objectives as well as the type of business activities, period of establishment, and the capital, as stated in the Articles of Association;

b. the full name of the shareholders, members of the board of directors, and members of the board of commissioners of the corporation;

c. the annual report, financial report, balance of profit and loss account, and the audited report on the social responsibilities of the corporation;

d. the result of the evaluation by an external auditor, a credit rating institute, and other rating institutes;

e. the system and allocation of the remuneration fund of the members of the board of commissioners/board of supervisors and board of directors;

f. the mechanism of appointment of the board of directors and the board of commissioners/the board of supervisors;

g. legal cases that under the Law are open as Public Information;

h. the implementation directives for the proper management method of a company, based on the principles of transparency, accountability, independency and fairness;

i. the announcement on the issue of stocks on credit;

j. the substitution of an accountant who is the company's auditor;

k. the change of the company's fiscal year;

l. government assignment activities and/or public service or subsidized service obligations;

m. the mechanism of the procurement of goods and services; and/or

n. other information determined by the Law pertaining to a State Corporation/a Regional Corporation.

The above list, while detailed, does not cover a great deal of information of public interest. For instance, while the law covers "the mechanism of the procurement of goods and services," it does not necessarily require disclosure of the criteria for evaluating bids, and it clearly does not require disclosure of the contracts actually awarded. Nor does it require disclosure of information that would enable the public to evaluate an SOE's efficiency or effectiveness, such as statistics concerning output.

Indonesia's law also requires political parties and non-governmental organizations (NGOs) to disclose certain kinds of information, albeit fewer categories than required to be supplied by state owned enterprises. One requirement for NGOs raises concerns: namely, a requirement that they disclose "the management and use of funds originating from the state budget and/or the regional budget, contributions from the people and/or from overseas sources". If that provision merely requires disclosure of "the management and use of funds" from whatever sources, then it raises no concerns, but if NGOs are required to disclose the names of, and amounts contributed by, individuals and overseas sources that would be problematic.

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Japan

Japan's Law Concerning Disclosure of Information Held by Administrative Organs gives a legally enforceable right to any person to request administrative documents from administrative organs covered by the statute.  A separate law, enacted in November of 2001, extended the coverage of the Act to public service corporations.

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Korea, Republic of (South)

The Official Information Disclosure Act covers any "government-invested institution provided for in Article 2 of the Framework Act on the Management of Government-Invested Institutions, and other institutions prescribed as such by the Presidential Decree." Article 2 states that institutions subject to the Act are "corporations in which the Government invests 50 percent or more of paid-in capital," except for several named corporations, including the Korea Broadcasting Corporation.

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New Zealand

New Zealand's Official Information Act (OIA) applies to state-owned enterprises. Section 12 allows requests to be made to "a Department or Minister of the Crown or organization," and section 2 and the First Schedule define "organization" broadly. When the State-owned Enterprises Act was passed in 1986, it provided (in section 31) for a Select Committee review of the operation of the OIA and Ombudsmen Acts to SOEs after three years. That review reported to the House in 1990, and did not recommend any changes. Despite occasional complaints from SOEs that the OIA regime impairs their competitiveness, they remain subject to the OIA. In addition, Section 2(5) of the Act deems information held by private contractors that perform work for a government agency to be held by the contracting agency.

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Philippines

The Constitution's guarantee of the right to information covers government-owned and controlled corporations. However, there is no legal basis for extending the scope of coverage to private entities. Disclosure of information by private bodies is governed by government regulatory bodies, such as the Securities and Exchange Commission and the Energy Regulatory Commission. The public does not have a direct right of access to such information.

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Africa and the Middle East

African Union

The African Commission on Human and Peoples' Rights, in its Declaration of Principles on Freedom of Expression in Africa, declared in Article 4(2) that "The right to information shall be guaranteed by law" in accordance with several principles, including that "everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right .. . ."

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Angola

Law No. 11/02 on Access to Administrative Documents applies to private bodies that exercise public functions.

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Israel

Until 2007, the Israeli FOI Act did not apply automatically to government-owned corporations. The law was amended in 2007 and now includes all government owned corporations; the Justice Minister, with consent of parliament, is authorized to exempt, and has on occasion exempted, certain activities of a company, for instance, on national security grounds. A "government owned company" is defined in Israeli law as any company in which the government holds more than 50% of the shares. There are more than one hundred government-owned corporations including the national water, electricity and cross-Israel highway companies.

The FOI Act applies to some specified not-for-profit private entities, including universities and health service providers, that receive funding from the government based on the number of students or patients they serve. The FOI Act does not expressly apply to any other private entities. There has been some dicta (court statements that are not part of a ruling) suggesting that some privately-held information could be subject to the Act based, however, on principals outside the Act. In addition, information that private entities submit to government agencies whether voluntarily or pursuant to law is subject to disclosure by the agencies that hold the information. Considerable information is covered, especially concerning environmental issues (for instance, information gathered on industrial waste from private entities).

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South Africa

In the Mittal Steel case, the respondent company had at one time been a state-owned company (then named Iscor) that was then privatized. The requester - a "determined student," according to the Supreme Court of Appeal - sought the records as a part of his academic study of state corporations in the 'old' South Africa. In a well-reasoned judgment, Judge Conradie observed [at para. 22] that:

In an era in which privatization of public services and utilities has become commonplace, bodies may perform what is traditionally a government function without being subject to control by any of the spheres of government and may therefore, despite their independence from control, properly 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 includes previously public bodies that had been privatized.

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Uganda

The ATI Act 2005, by Articles 2 and 4, applies to "statutory corporations."

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Public Media

A few ATI laws expressly exempt public media from their coverage. For instance, Canada's ATI Act (Section 68.1) provides that its provisions do not apply to the work of the Canadian Broadcasting Corporation. In contrast, the FOI laws of the United Kingdom and Ireland cover public broadcasters (including the BBC, Channel 4 and Gaelic Media Services) except for information that is held, in the United Kingdom, for the purposes of journalism, art or literature (Schedule I, Sect 6) and in Ireland, covering information only in respect of non-programmatic functions (management, administration, finance, commercial communications and the making of contracts). The UK's Information Tribunal, which decides appeals from the Information Commissioner's decisions, in 2007 ruled that the BBC had to disclose minutes of a meeting of the BBC Board of Governors regarding the BBC's coverage of a news story of high public interest and the termination of employment of its Director General. Slovene National TV is covered by the ATI Act because it is a public service contractor. The Information Commissioner has decided a few cases ordering SNTV to disclose information, including salaries of the management and top ten paid journalists.

From time to time, public broadcasters have argued that they should not be required to disclose information because compelled disclosure would violate their media freedom and independence. The following case from Korea provides sound reasoning for rejecting that broad claim under the given circumstances.

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Korea, Republic of (South)

The broadcast media, both public and  private, are subject to disclosure of information under the Broadcasting Act of 2000.  Article 90 states: "A broadcasting business operator engaged in general programming or specialized programming of news reports shall, under the conditions as prescribed by the Presidential Decree, disclose the information concerning the broadcasting business requested by the viewers." The access to information clause of the Broadcast Act covers all of the broadcasting stations, except KBS (Korean Broadcasting System), a government-invested corporation, and EBS (Educational Broadcasting System), which was established under the Korea Educational Broadcasting System Act.  The Official Information Disclosure (OID) Act applies to the KBS and EBS. The application of the OID Act to the KBS was confirmed by the  Seoul High Court in Han v. Korean Broadcasting System which affirmed the ruling of the Seoul Administrative Court that the KBS is a "public institution" covered by Article 2-3 of the Official Information Disclosure Act, regardless of whether, as a government-invested institution, it is subject to exemption pursuant to the Framework Act on the Management of Government-Invested Institutions. The case started in November 2006 when Han, a supporter of Dr. Hwang Woo-Suk, a disgraced biomedical scientist who had been accused of fabricating stem cell research, asked KBS for a tape on Dr. Hwang that had been edited by a KBS TV producer without authorization, but had not been used for any KBS broadcast. The Court further ruled that the requested tape was "information" under the information disclosure law; although the tape was edited by a KBS employee without permission, it was still prepared, obtained, and managed by KBS. Importantly, the Court ruled that compelled disclosure of the tape would not violate media freedom under the Constitution and the Broadcasting Act. The Court reasoned as follows:

The Plaintiff's request is for disclosure of the information, not for broadcasting of the information. So, we cannot consider the request to be a direct restriction to or interference with the Defendant's freedom of the press or with its freedom and independence of programming. ... If the Defendant's argument based on freedom of the press and the broadcaster's independence is not specifically applied to any of the exempted categories under Article 9(1), freedom of the press and the freedom and independence of broadcasting cannot constitute grounds for rejection of the information request.

The Court made four other key holdings: disclosure would not violate rights to privacy or copyright, the tape was not exempt as a document under preparation, and the request could not be excluded as vexatious even though more than 23,000 others had submitted similar requests.

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Private Bodies Covered Indirectly

In most countries, requesters may obtain information from government agencies that the agencies have collected. In many of these countries - including India, the Netherlands and the United States - the authority for some such "indirect" public access is conferred by the RTI law itself, although other laws impose the obligation to report the information to government. India's RTI Act is exceptional in that, if a citizen requests information that a public authority may collect, but has not collected, the authority is obliged to collect the information and make it available to the requester.  Many European countries grant a right of indirect access to environmental information under the Aarhus Convention.

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India

The RTI Act, section 2(f), extends the right of access to "information" relating to private bodies, even when they are not covered directly by the RTI Act, if a public authority can access the information under any other law in force. A citizen must seek such information from that public authority and not from the private body directly. For example, it is mandatory for all industries and factories in the public and private sector to obtain environmental clearance and pollution certificates from Pollution Control Boards (PCB) at the central and state level, under The Air (Prevention and Control of Pollution) Act, 1981. Information about these bodies is available from the PCBs. While a citizen can get this information directly from industries in the public sector, he/she can obtain this information about privately owned industrial establishments from the PCB. Even if public authorities have not collected and maintained information that they are authorized to collect from a private body under any other law, citizens may request such information and the public authority will be obliged to collect the information and make it available to the requestor.

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