Do Confidentiality Clauses act as a barrier to the exercise of the Right of Access to Information?
Confidentiality clauses are a common feature in agreements and they are meant to protect information shared between or among parties. However, when these clauses are included in an agreement that pertains to the environment or public health, their validity often comes into question since such matters fall under the public interest. Defining the public interest is anything but easy. While some scholars and judges have attempted to pin down its meaning, its scope remains broad. At its core, public interest can be defined as a matter or issue in which the populace as a whole has a stake. This Article seeks to provide clarity on whether it is a must for information in public interest to be disclosed to the public, and whether confidentiality clauses act as a barrier to the exercise of the right of access to information.
To begin with, Article 41 of the 1995 Constitution of the Republic of Uganda as amended (the “Constitution”) states that, “Every citizen has a right of access to information and records in the possession of the State or any public body except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any person”. Suffice to note, the term ‘citizen’ also encompasses corporate entities like companies but for them to qualify as “corporate citizens”, their shareholding must consist of Ugandan citizens (see Greenwatch v. Attorney General and the Uganda Electricity Transmission Co. Ltd, Miscellaneous Cause No. 139 of 2001).
The Access to Information Act Cap. 95 (the “Act”) expands on the privacy element mentioned in Article 41 of the Constitution. Section 25(1) of the Act stipulates that an information officer (i.e., the chief executive of a public body) may refuse a request for access if the disclosure would result in the unreasonable release of personal information, including information about a deceased person. For instance, if the information sought relates to an individual's medical history, such information is widely regarded as personal and sensitive and therefore its disclosure would not only be unreasonable but also constitute an invasion on that individual’s right to privacy unless he or she authorises the disclosure in writing.
The Act also points out other instances where a public body is not obligated to disclose information in its possession. Some of these instances include – (a) where the information sought are Cabinet minutes or minutes of Cabinet committees; (b) where the information sought is proprietary information i.e., information that relates to a person’s trade secrets, product designs, source code etc.; (c) where the disclosure of the information sought could cause danger to the life or physical safety of a person; and (d) where the disclosure of the information sought would constitute a breach of a duty of confidence owed to a third party in terms of an agreement. A third party is defined in the Act as any person including but not limited to the government of a foreign state, an international organisation or an organ of that government or organisation, other than – the person requesting for the record; and a public body.
So simply put, a third party could for example be a Chinese corporation that enters into an agreement with the Ministry of Energy and Mineral Development for the purposes of extracting oil from the Northern region of Uganda. If there happens to be a confidentiality clause in the said agreement, the fourth instance in the immediately preceding paragraph could work in favour of the Ministry in the event that a citizen requests for a copy of that agreement.
That notwithstanding, Section 33 of the Act provides for mandatory disclosure in public interest. Section 33 is reproduced below for ease of reference:
“33. Mandatory disclosure in public interest
Notwithstanding any other provision in this Part, an information officer shall grant a request for access to a record of the public body otherwise prohibited under this Part if—
(a) the disclosure of the record would reveal evidence of—
(i) substantial contravention of, or failure to comply with the law; or
(ii) an imminent or serious public safety, public health or environment risk; and
(b) the public interest in the disclosure of the record is greater than the harm contemplated in the pro vision in question.”
It is clear from the above section that an information officer will grant a request for access to a public interest record only if – (A) the disclosure of the record would reveal evidence of a significant violation of the law; or failure to obey the law; or a forthcoming or serious risk to public safety, public health or the environment; and (B) the public interest in the disclosure of the record is greater than the harm considered in providing the information.
The word ‘would’ carries a serious implication on the net effect of the section, and that implication is twofold – 1) for a citizen to request for a public interest record from a public body, he or she must be certain that the record sought contains evidence of a significant violation of the law; and 2) for a public body to release/disclose the record, that record (if found) must have revealed a violation of the law or a forthcoming or serious risk to public safety, public health or the environment. Honestly, the implication is unreasonable. The reality is that most citizens who request for such information do not know whether it contains evidence of legal violations—they are simply concerned citizens seeking to verify whether a public body has acted lawfully. Denying their request based on the word ‘would’ undermines their ability to engage in civic oversight. The framers of the Act would have better served the public by using the words ‘could’ or ‘might’ rather than the word ‘would’. The words ‘could’ or ‘might’ keep open the possibility that any information sought might reveal evidence of legal violations thus encouraging the active participation of all citizens in their own governance. The Constitution under its National Objectives and Directive Principles of State Policy explicitly states that, “The State shall be based on democratic principles which empower and encourage the active participation of all citizens at all levels in their own governance”. As such, by insisting on certainty through the use of the word ‘would’ and by requiring public bodies to disclose such information only when the information reveals evidence of a legal violation, Section 33(a) of the Act inadvertently discourages the very democratic engagement that it should be promoting. Public bodies, therefore, should interpret the provision with the National Objectives and Directive Principles of State Policy in mind and act as if the words ‘could’ or ‘might’ were used – by doing this, public bodies shall without a doubt preserve the sanctity of the Constitution.
If the public interest in the disclosure of certain information is greater than the harm considered in disclosing that information, the public body shall disclose that information. In other words, if the disclosure of the information is justified in the public interest and that justification in the public interest outweighs the justification given by a public body for its refusal to disclose the information, the public body shall be required to disclose that information. However, it is important to note that even when the disclosure of certain information is thoroughly justified in the public interest, that justification can never outweigh or be greater than a non-disclosure justification that is firmly hinged on the first exception in Article 41 of the Constitution, which is, that the State or any public body shall not disclose information likely to prejudice its security or sovereignty. That is why under the Official Secrets Act Cap. 323, public interest is not a defence to the indictable offence of disclosing information likely to prejudice the State’s security.
Section 2(1) (c) of the Official Secrets Act Cap. 323 states that, “Any person who, for any purpose prejudicial to the safety or interests of the territories of Uganda – obtains, collects, records, or publishes or communicates in whatever manner to any other person any secret official code word, or password or any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power, commits an offence…”. The scope of this statutory provision is so broad that it includes records beyond those of the military or intelligence organisations. For example, the disclosure of a contract between a public body and a Chinese corporation for oil extraction could be regarded as “likely to prejudice the State’s security or sovereignty” if that contract might ‘directly’ or ‘indirectly’ be used by a foreign power to harm the security and/or sovereignty of Uganda.
Furthermore, the High Court of Uganda in the case of Greenwatch v. Attorney General, Miscellaneous Cause No. 232 of 2009, laid down the test to be used in determining whether a confidentiality clause acts as a barrier to the exercise of the right of access to information.
In that case, Greenwatch, an environmental rights advocacy Non-Government Organisation based in Uganda, requested for copies of petroleum production sharing agreements authorising oil and gas exploration and development in the Albertine region of Uganda. The Ministry of Energy and Mineral Development refused to disclose copies of the said agreements it negotiated with oil companies and instead provided Greenwatch with a copy of a model production sharing agreement (i.e., a contract template). The Ministry claimed that it could not publicly disclose the production sharing agreements because it would be liable for breaching confidentiality provisions within the contracts. As a result, Greenwatch sued the Attorney General (AG) in his representative capacity for the Ministry’s refusal to disclose the agreements. On 13th August 2020, Hon. Lady Justice Lydia Mugambe ruled that the petroleum production sharing agreements were public documents and ordered that Greenwatch be availed with the agreements since the Attorney General had failed to demonstrate that the disclosure of the agreements to Greenwatch or to the wider public (breach of the confidentiality clauses) would prejudice the security or sovereignty of Uganda or affect the privacy of any person. “To use a confidentiality clause in a contract without qualifying it within the exception in Article 41 and Section 5(1) above to deny access to information would make such a confidentiality clause arbitrary, unfair, prejudicial and illegal,” the Learned Judge authoritatively stated. The learned Judge further guided that the determination of whether denial of access to information is proper, can only be made on a case-by-case basis.
The Greenwatch v. Attorney General case shows that it is not enough for a public body to merely state that a disclosure would amount to a breach of a confidentiality clause. A public body must qualify that confidentiality clause within the established standard of exception in Article 41 of the Constitution i.e., the State or any public body shall not disclose information which is likely to prejudice the State’s security or interfere with the right to privacy of any person. The case also shows that qualifying a confidentiality clause within the said established standard of exception requires a public body to demonstrate that the disclosure might prejudice the security of the State or interfere with the right to privacy of a person. For example, if a public body is specifically saying that a disclosure might prejudice the State’s security, that public body should demonstrate why they hold that position—and that demonstration, in my considered opinion, does not have to be a detailed one (considering the restrictions in the Official Secrets Act) but it should at least be sufficient to some degree so as to give a Judicial Officer an opportunity to determine whether a disclosure might prejudice the State’s security. In the seminal case of United States v. Reynolds, 345 U.S. 1 (1953), the Supreme Court of the United States stated that once a Judge is satisfied that information is covered by the state secrets privilege, “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake”.
In conclusion, a confidentiality clause cannot act as a barrier to the exercise of the right of access to information unless it is first qualified within the established standard of exception in Article 41 of the Constitution. Similarly, no matter how thoroughly presented, a justification in public interest cannot outweigh or be greater than a non-disclosure justification that is firmly hinged on the first exception in Article 41 which prohibits the State from disclosing information likely to prejudice its security or sovereignty.
