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Public Expenditures

last modified Sep 12, 2013 12:00 AM

Overview

Several courts and information commission/ers have ruled that the high public interest in how public funds are spent outweighs business interests in commercial confidences. Thus, although some categories of proprietary commercial information should usually be kept confidential, taxpaying citizens and businesses generally should be entitled to obtain information about public expenditures, government contracts, and other transactions and relationships between the government and private business entities. Several cases are summarized – from Albania, Ireland, Mexico, Slovenia, the United Kingdom and the United States – in the section on Exceptions: Commercial Secrets: Information Regarding Public Expenditures.

Relevant cases

 

Relevant Cases

Title:Country:Year:Court / Arbiter:
Charles Mwanguhya Mpagi and Izama Angelo v. Attorney General Uganda 2010 First instance 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 Sec. 34(b) of the Access to Information Act because they did not show that the public benefit in disclosure outweighed the harm to the third parties.
Chavez v. National Housing Authority Philippines 2007 Supreme The 1987 Constitution provides that, despite a lack of enabling law that could require government bodies to publicly disclose information related to government projects and policies, there is a still a duty to permit access to such information.
Claase v. Information Officer of South African Airways South Africa 2006 Appellate A retired pilot was entitled, under the Promotion of Access to Information Act (PAIA), to a record held by a private airlines because he was able to establish that the record existed and that he needed it to protect a right.
Conrad Stefaans Brümmer v. the Minister of Social Development and Others South Africa 2009 Constitutional A thirty-day time limit for parties who wish to challenge a denial of a request for information in court is inadequate; until the legislature passes a law setting a fair time limit, requesters will have 180 days in which to file.
Derry City Council v. The Information Commissioner United Kingdom 2006 First instance A contract between a public authority and a third party contractor is not subject to exemptions primarily intended to protect third parties when the exemption arguments are not raised by the third party contractor itself but rather the public authority on behalf of the third party contractor.
Environmental Foundation Ltd., v. Urban Development Authority of Sri Lanka Sri Lanka 2005 Supreme Refusal of a development agency, which is a public body, to disclose information about plans to allow a private company to develop a public beach area, violated the constitutional right to freedom of expression, speech and publication of a non-profit organization dedicated to protection of the environment, because the organization acted in the public interest in seeking more information on the proposed transaction.
Freedom of Information Movement v. Clalit Health Services Israel 2011 Appellate Israel's largest health services provider, a public entity, must disclose a donation agreement made with the U.S. Schneider Family Foundation concerning a large contribution because the public has a right to know agreements made between public entities and private donors.
Garcia v. Board of Investments Philippines 1989 Supreme Applications filed by a foreign investment group to build a petrochemical plant are covered by the constitutional right to information and have to be disclosed with the exception of privileged information containing the investors’ trade secrets and other confidential financial information.
Gergely v. Ministry of Development and Economics ("the Gripen case") Hungary 2008 Appellate The Ministry of Defense, as an organ performing state functions, is obliged to disclose a list of deliverables, determined in the framework of an offset agreement between Hungary and Sweden. The fact that the overall offset procedure has not been finalized does not mean that all related documents were preparatory documents. RTI law overwrites private agreements on non-disclosure.
Gilby v. Information Commissioner and the Foreign and Commonwealth Office United Kingdom 2008 First instance Disclosure of information relating to arms trade between the United Kingdom and Saudi Arabia could cause real and substantial prejudice to UK international relations, the harm of which outweighs any public interest in favour of disclosure. However, information relating specifically to the role of UK government officials in accepting bribes is subject to disclosure.
Giustiniani v. Y.P.F. S.A. Albania 2015 Supreme The company Yacimientos Petroliferos Fiscales (YPF) is obligated to publicly disclose its investment agreement with Chevron Corporation, because YPF’s operations are controlled in significant part by the Executive branch of government. YPF did not substantiate its claim that the contract should be exempt from disclosure in order to protect trade secrets.
Greenwatch (U) Ltd v. Attorney General of Uganda and Uganda Electricity Transmission Co.Ltd Uganda 2002 First instance A power company wholly owned by the state is a government agent and therefore power agreements to which it is a party are public documents, although corporate citizens requesting access to such documents must adduce evidence as to status of their members as citizens, which an organization did not do.
Internationaler Hilfsfonds v. Commission European Union 2010 International / EU Requiring an applicant to resubmit his request for information after the requested institution’s definitive refusal to provide access, is contrary to the objective of the two-stage process established by Regulation No 1049/2001, namely - to guarantee swift and straightforward processing of applications for access to documents.
M & G Media Ltd v. 2010 FIFA World Cup Organising Committee South Africa Ltd. South Africa 2010 Appellate A non-government entity is a public body, and must disclose records about tender proceedings if the nature of the power and functions performed — with respect to the particular records — are public. If the entity is a private body, it must still disclose the records to the press because access to information enables the press to exercise the right to media freedom.
Nairobi Law Monthly Company Limited v. Kenya Electricity Generating Company and Others Kenya 2013 First instance A legal person does not enjoy the rights of the “citizens” to access information held by the state or by another person (private body) under Article 35(1) of the Kenyan Constitution. In order to enforce the right to request information held by another person (private body), a citizen must show that (i) the information is held by a person (not the state) and (ii) the information is required for the exercise or protection of another right. However, a journalists and media outlets may not claim that such information is required for the protection of their rights under Article 33 (freedom of expression) and Article 34 (freedom of the press), because such interpretation would blur the distinction intended by the Constitution in making the two distinct provisions in Article 35(1) and would give the media a special status that elevates it above other entities.
Public & Private Development Centre v. Power Holding Company of Nigeria & the Honorable Attorney-General of the Federation Nigeria 2013 First instance Disclosure of information about an already-awarded contract —one that is no longer in the stages of negotiations — does not interfere with the rights of the third party contractor.
Rosen Bosev (Capital Weekly) v. Director of the Government Information Service Bulgaria 2007 First instance When a member of the public requests access to an agreement between a government agency and a third party, the government agency is required to seek consent of the third party to disclose the information; mere assertion that disclosure would harm commercial interests does not suffice.
SA Airlink (PTY) Limited v. Mpumalanga Tourism and Parks Agency South Africa 2012 Appellate Burden to justify a refusal to disclose information rests on a public body, not the requester. Parties relying on harm to third party interests to justify refusals must show that these harms are “not simply possible, but probable”. A confidentiality clause cannot shield a contract of a state body with a third party from disclosure.
SNC Lavalin Inc. v. Canada (Canadian International Development Agency) Canada 2007 Appellate Records of auditor’s working papers regarding a project involving Canadian International Development Agency and a private corporation do not constitute “confidential third party information” and “personal information”.
Sophie In’t Veld v. European Commission European Union 2013 International / EU A certain level of discretion is justified when it comes to disclosure of information regarding the negotiation of international agreements such as the Anti-Counterfeiting Trade Agreement (ACTA), so as to allow mutual trust between negotiators and the development of a free and effective discussion. Since, in the European Union, conducting such negotiations falls in the domain of the executive, public participation in the process is necessarily restricted. Overriding public interest in disclosure does not apply to the mandatory exceptions under Article 4(1) of Regulation No 1049/2001.
Transnet Ltd. and Another v. SA Metal Machinery Co (PTY) Ltd. South Africa 2005 Supreme Parties relying on harm to third party interests to justify refusals must show that these harms are "not simply possible, but probable". A confidentiality clause cannot shield a contract of a state company with a third party from disclosure. Requesters need not show legitimate reasons for requesting information.
UK All Party Parliamentary Group on Extraordinary Rendition v. Ministry of Defense United Kingdom 2011 Appellate Information concerning detention and interrogation policies is of high public interest and should be disclosed; the public interest in access to diplomatic assurances that detainees would not be tortured outweighs any harm that might flow from disclosure; information concerning the Special Forces and legally privileged communications are exempt; and the personal data exemption is not implicated in a request for non-identifying statistical details.
Van Huyssteen and Others NNO v. Minister of Environmental Affairs and Tourism and Others South Africa 1996 First instance A constitutional provision (retained in the current constitution) that every person has a right to information that is “required” for the exercise or protection of any of his or her rights should be interpreted to mean “reasonably required”.