Ruling of the Freedom of Information Case to Publicly Disclose Uganda's Oil PSAs

7/28/2019 Ruling of the Freedom of Information Case to Publicly Disclose Uganda's Oil PSAs

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Table of Contents

Page

I. 1

I. BACKGROUND.......................................................................................................................1

II. UGANDAN LAW REQUIRES THE DISCLOSURE OF THE PSAS...................................3

A. Under Article 41 of Ugandas Constitution and Under the Access to Information Act,the Attorney General Must Disclose the PSAs..........................................................3

1. Under Section 41(3) of the AIA, the Burden of Proof Rests on the Party RefusingDisclosure.........................................................................................................4

2. The Exemptions to the Broad Obligation of Disclosure in the AIA Do Not Applyto the PSAs.......................................................................................................6

3. Even if an Exemption Applies, the Publics Interest Outweighs any PotentialHarm...............................................................................................................21

B. The Government of Uganda Is Obligated to Disclose the PSA to the Public Because itis a Trustee of Public Resources..............................................................................31

III. INTERNATIONAL LAW ALSO SUPPORTS DISCLOSURE OF THE PSAS.................33

A. Under International Law, Duties of the Sovereign Impose a Requirement to Disclose

Information Related to the Exploitation of Natural Resources...............................33

1. The Fundamental Rights to Information Guaranteed by Article 9 of the AfricanCharter on Human and Peoples Rights Requires Disclosure the PSAs........34

2. The Fundamental Rights to Natural Resources Guaranteed by Article 21 of theAfrican Charter on Human Peoples Rights Requires Disclosure of the PSAs37

B. International Case Law Holds that the Right to Information Overrides ConfidentialityClauses.....................................................................................................................40

IV. REBUTTALS OF OTHER ARGUMENTS AGAINST DISCLOSURE.............................44

A. Due to Widespread Disclosure of PSAs, Disclosing Additional PSAs Will Not Lead toa Race to the Bottom or to the Top..........................................................................45

B. Renegotiations Could be a Positive Result of Disclosure..........................................47

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I. BACKGROUND

On May 3, 2007, Charles Mwanguhya Mpagi and Angelo Izama (the Applicants)

applied to Attorney General (the Respondent) of the Republic of Uganda (Uganda) and to

the Permanent Secretary of the Ministry of Energy and Mineral Resources requesting that

certified copies of agreements made between Uganda and certain multinational companies for

the purpose of oil prospecting and exploitation around the Lake Albert Region be released to the

Applicants. Magistrate Opinion, at 1. These agreements are often referred to as Production

Sharing Agreements (PSAs).

Under section 18 of Ugandas Access to Information Act (AIA), the Permanent

Secretary constructively refused to disclose the PSAs by not responding to the Applicants.

Magistrate Opinion, at 2. In response to the application to the Attorney General, the Solicitor

General, through the Principal State Attorney Nakkungu, refused to disclose the PSAs, stating

that the agreements included confidentiality clauses and therefore required the consent of the

companies to be disclosed. Id.

In response, the Applicants filed an application with the Magistrates Court requesting an

order to disclose the PSAs (the Order). Id. They filed the Order under sections 41 and 244 of

the Constitution of the Republic of Uganda 1995 and under sections 37, 34(b), 41, and 42 of the

AIA. The Applicants also cited section 98 of the Civil Procedure Act. Id. The Order sought that

(i) the decision of the Attorney General denying them access to the PSAs be set aside; (ii) a

declaration be made that the public interest in the disclosure of the PSAs is greater than any harm

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that may exist to a third party; and (iii) the Respondent grants the Applicants unrestricted access

to the record of the PSAs in the public interest.

The Magistrate Judge ultimately ruled in favor of the Respondent. The Judge initially

ruled that, once the Order was brought before a court of law, the Respondents breach of contract

claim under section 28 of the AIA was not sustainable stating that [o]nce an order for

disclosure is made against an Information Officer under the Access to Information Act I believe

this would be a plausible defense to any action brought in the cause of such disclosure even

where there is provision for confidentiality and privacy for the information disclosed. Second,

the Judge ruled that the Applicants failed to show how disclosure of the PSAs would serve the

public interest or how the Applicants would use the information in the agreements to bring the

government to be more transparent, accountable and efficient in the management of the oil

resources. Id. at 5. Proving that the Applicants brought this particular application in the public

interest, noted the Judge, is a condition for disclosure under section 34(b) of the AIA. Id. at 4-5.

Third, the Judge determined that the Applicants did not prove that the public benefit in the

disclosure of the details of the [PSAs] far outweighs the harm that such disclosure would entail

in view of the confidentiality clauses. Id. at 4, 5. The Judge acknowledged that Ugandas

resources were held in Trust by the Government for the people, but he did not agree that

whatever a government holds in trust for its people it must always disclose. Id. at 5.

Furthermore, the Judge considered the negative impact that disclosing PSAs may have on

potential investors and prospecting companies. The Judge finally dismissed the application,

finding that the public interest in the disclosure of the agreement[s] is [not] greater than the

harm contemplated by the confidentiality clauses. Id. at 6.

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II. UGANDAN LAW REQUIRES THE DISCLOSURE OF THE PSAS

A. Under Article 41 of Ugandas Constitution and Under the Access toInformation Act, the Attorney General Must Disclose the PSAs

The government of Uganda showed strong commitment to democracy and economic

prosperity by enacting the Constitution of the Republic of Uganda, 1995. The Constitution

provides that [e]very citizen has a right of access to information in the possession of the State or

any other organ or agency of the State 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

other person. Constitution of the Republic of Uganda art. 41.

To secure this right for its people, the government passed the Access to Information Act,

2005 (the AIA). The AIA echoes the language of Ugandas Constitution, guaranteeing that

[e]very citizen has a right of access to information and records in the possession of the State or

any public body, except where release of the information is likely to prejudice the security or

sovereignty of the State or interfere with the right to privacy of any other person. Access to

Information Act, 2005 5(1). The purpose of the AIA is explicitly to give effect to article 41 of

the Constitution by providing the right of access to information held by organs of the State and

to promote transparency and accountability in all organs of the State by providing the public

with timely, accessible and accurate information. Access to Information Act, 2005 3(b), (d).

Production-Sharing Agreements are entered into by the government and held by organs

of the state. They involve the distribution, allocation, and production of state resources. Teh

people of Uganda need to have access to this information so they can better evaluate how their

elected officials are performing. Accordingly, the terms of the AIA, and the purposes that

underlie it, require that citizens of Uganda have access to the PSAs and their terms, both to

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promote transparency in government and to permit Ugandans to participate in the development

and use of their natural resources.

1. Under Section 41(3) of the AIA, the Burden of Proof Rests on the Party

Refusing Disclosure

The Chief Magistrates decision in this case misstates the burden of proof. In assessing

the burden of proof, the Chief Magistrate finds that the applicants had a duty to prove to a

standard satisfactory in civil proceedings that the public benefit in the disclosure of the details of

the agreements far outweighs the harm that such disclosure would entail in view of the

confidentiality clause. Chief Magistrates Ruling at 4,In re Access to Information Act, 2005,

Misc. Cause No. 751 (Feb. 3, 2010). Although the Applicants appeal is a civil proceeding,1 the

Chief Magistrate errs in stating the burden of proof.

Section 41(3) of the AIA states that when a party wishes to appeal the decision of an

information officer to a Chief Magistrate, or the decision of a Chief Magistrate to the High

Court, [t]he burden of establishing that . . . the refusal of a request for access . . . complies with

the provisions of this Act rests on the party claiming that it complies. Thus, the Applicants do

not need to prove that a strong public interest in disclosure exists. Rather, the public interest in

disclosure is presumed, and the Attorney General must show that the reason for denying the

request falls under a specific exemption provided for in the AIA. The Attorney General has not

met this burden. With the exception of section 28 of the AIA, which addresses the relevance of

the confidentiality clause in the PSAs, the Magistrate Judge did not refer to, nor did the

Applicants receive, any evidence that one of the exemptions in the AIA applies to the PSAs at

issue.

1 Section 41(1) of the Access to Information Act holds that proceedings on application are civil proceedings, and41(2) holds that the rules of evidence applicable in civil proceedings should be applied

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The burden of proof as stated under section 41(3) of the AIA is also consistent with

international standards. Similar to the AIA, international standards require that the party

claiming that disclosure is not necessary or permitted under its FOI law prove that an exemption

to the general disclosure obligation applies. South Africas Promotion of Access to Information

Act contains language identical to Ugandas section 41, placing the burden squarely on the party

refusing access. See Constitution of the Republic of South Africa, 81(3), (a), (b) ([t]he

burden of establishing that ... the refusal of a request for access ... complies with the provisions

of this Act rests on the party claiming that it complies.). South Africas Supreme Court of

Appeal applied this provision in Transnet, holding that the burden of proof is on the party that

has refused access to show that refusal was in accordance with the provisions of the Act.

Transnet Ltd. v. S.A. Metal Machinery Co. (PTY) Ltd., (147/2005) [2005] ZASCA 113, 9 (29

Nov. 2005) at para 21. Section 48 of Canadas Access to Information Act states that the burden

of establishing that the head of a government institution is authorized to refuse to disclose a

record requested under this Act . . . shall be on the government institution concerned. In the

United States, the Freedom of Information Act holds that where a decision to withhold records

under the Act is challenged, a court may determine whether such records or any part thereof

shall be withheld under any of the exemptions . . . and the burden is on the agency to sustain its

action. Freedom of Information Act 552(a)(4)(B). The United States Court of Appeal for the

Ninth Circuit applied this provision inMinier v. CIA, 88 F.3d 796 (9th Cir. Cal. 1996), holding

that the agency resisting disclosure of requested information has the burden of proving the

applicability of an exemption (p. 7). See also National Association of Home Builders v. Norton,

353 U.S. App. D.C. 374, 309 F.3d 26, 32 (D.C. Cir. 2002) [cited inFlatheadat 5] (add

parenthetical).

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Although the method of meeting this burden of proof varies by country, a showing of

some evidence is necessary. For example, the court inMinierheld that the agency withholding

information could meet its burden if it submitted a detailed affidavit showing that the

information logically falls within the claimed exemptions. Minierat 6 citingHunt, 981 F.2d

at 1119. Here, in addition to the Chief Magistrate incorrectly placing the burden of proof on the

Applicants rather than the Attorney General, no evidence was offered by the Attorney General or

cited by the Judge. Accordingly, his decision is at odds with both Ugandan law and international

FOI standards. Because the Attorney General has not met its burden, we request that the Court

order the PSAs to be disclosed.

2. The Exemptions to the Broad Obligation of Disclosure in the AIA Do NotApply to the PSAs

Even if the burden of proof is applied correctly, the Attorney General cannot show that

the PSAs should be withheld because the agreements do not fall under one of the exemptions

provided in the AIA. The Applicants have a general right to information held by the state or any

public body under section 5 of the AIA. This right does not depend on the reasons given for the

request or the governments opinion of those reasons. Access to Information Act, 2005 6.

Accordingly, the right to information is broad and is limited in only a few narrow circumstances

enumerated within the AIA. If a request for information does not fall within an enumerated

exception, it must be granted. In the context of PSAs, there are three exemptions that arguably

could apply. These include (i) the protection of commercially sensitive information; (ii) the

protection of personal privacy; and (iii) the protection of certain confidential information. AIA,

26-28. With respect to the PSAs at issue, these three exceptions are not applicable and

therefore we respectfully request that the Court order the PSAs to be disclosed.

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(a) Section 27: Any Commercially Sensitive Information Contained in

the PSAs is Unlikely to Cause the Parties Substantial Harm

The most forceful argument for refusing to disclose the PSAs is that secrecy is necessary

to protect commercially sensitive information. The AIA provides that an information officer

shall refuse a request for access to a record if the record contains information supplied in

confidence by a third party, the disclosure of which could reasonably be expected (i) to put that

third party at a disadvantage in contractual or commercial negotiations; or (ii) to prejudice that

third party in commercial negotiations. Access to Information Act, 2005 27(1)(c). This

reasoning is also codified in many other FOI laws, most of which explicitly exempt from

disclosure trade and commercial secrets. Contracts, at 37;see, e.g., U.S. Freedom of

Information Act, 5 U.S.C. 552(b)(6) (This section does not apply to matters that are . . . trade

secrets and commercial or financial information obtained from a person and privileged or

confidential.); Canadas Access to Information Act, R.S., 1985, c. A-1 20(1) ([T]he head of a

government institution shall refuse to disclose any record under this act that contains (a) trade

secrets of a third party; (b) financial, commercial, scientific or technical information that is

confidential information supplied to a government institution by a third party and is treated

consistently in a confidential manner by the third party; . . . (c) information the disclosure of

which could reasonably be expected to result in material financial loss or gain to, or could

reasonably be expected to prejudice the competitive position of, a third party; or (d) information

the disclosure of which could reasonably be expected to interfere with contractual or other

negotiations of a third party.).

With respect to the PSAs at issue, because the bid has already been accepted, there is no

commercial disadvantage in disclosing the existing agreement. The third partys rights have

already crystallized. Moreover, the Attorney General has not pointed to anything in the PSAs

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that, if released, would prejudice the bidder in future negotiations. However, companies also

claim that keeping PSAs confidential is necessary to protect CSI, which, if disclosed to the

public, may cause a company economic harm in the future by weakening its competitive

advantage or its bargaining position. Contracts, at 33.

Although FOI laws do not define CSI, it is generally understood to be any information

that has economic value or could cause economic harm if known. Contracts, at 33. CSI

commonly encompasses two types of information. First, it includes trade secrets, which are any

formula, pattern, device or compilation of information which is used in ones business and which

gives him an opportunity to obtain an advantage over competitors who do not know or use it.

FOIA Book; Restatement of Torts 757 comment b (1938). Examples of trade secrets are

customer lists, formulas, and specific marketing strategies. Contracts, at 34. Second, CSI

includes certain other commercially material information that, if disclosed, would be likely to

cause substantial harm to the competitive position of the owner.2 James T. OReilly, Federal

Information Disclosure Vol. 1 14:26-27 (2000). An example of this kind of CSI would be

information regarding a potential merger or the quantity and quality of a reserve, which, if

released to the public, may cause commercial harm to the company from which the information

came. Contracts. at 34-35. These definitions of CSI are consistent with the AIAs exemption

for commercial information of third party, which protects commercial information that could

potentially disadvantage a company in negotiations or injure the company in commercial

competition. Disclosed trade secrets or other commercially material information both could

potentially damage a companys competitive and bargaining positions.

2 In addition, this category of information may also include information that the company voluntarily disclosed tothe government and which would not normally be disclosed to the public. James T. OReilly, Federal InformationDisclosure Vol. 1 14:26-27 (2000).

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FOI laws are based on principles of disclosure, which means that when a person makes a

request for information from the government, the law presumes that the government will release

the information to an applicant unless an exemption applies. In the case of CSI, therefore, the

government must show that the requested document contains CSI. With respect to the PSA at

issue, however, the Attorney General has not shown that the PSA contains CSI. Moreover,

because of the nature of PSAs, the PSAs at issue likely do not contain CSI.

(i) Primary contracts do not generally contain commerciallysensitive information

The Applicants are requesting PSAs between the Ugandan government and certain multi-

national companies. Although the details of the PSAs at issue are unknown, PSAs are generally

structured using multiple levels of contracts. Contracts, at 18-19. The primary contract is the

agreement between the government and the company or consortium of companies. Id. In

addition to the primary contract, explorative and extractive operations also typically involve

numerous other contracts, such as agreements between contractors and agreements between

contractors and sub-contractors (ancillary contracts). Id. In general, the ancillary contracts

contain most of the CSI related to the project, while the primary contract contains little or no

CSI. Id.

Primary contracts typically include basic information such as the parties involved, the

effective date, the general purpose of the contract, definitions, and the grant of formal legal title.

CITE. In addition, primary contracts may provide for methods of oversight, such as how

decisions will be made, establishing committees, and procedural matters. CITE. The contract

may also discuss the financing structure and resource allocation, including how much of the

resource the state will receive in kind in return for granting the contract. Id. at 19-20.

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The primary contract may contain more material provisions, however, such as work

obligations or expenditure requirements; infrastructure; local and foreign employment

requirements; training, health and safety standards; reporting and accounting standards;

environmental standards and harm mitigation measures; how and when public and private land

can be acquired; compensation to local communities; and community development obligations.

Id. Also, provisions concerning license and area fees, taxes, royalties, signing bonuses,

exemptions from taxes and levies; and definitions of the nature and calculation methods of taxes,

royalties and other payments, may be included. Id. The contract may also contain other fiscal

considerations, including foreign exchange arrangements, dividend and capital repatriation,

provisions for debt repayment and debt-to-equity ratios, revenue distribution requirements, and

criteria to regulate intercompany transactions. Id. Finally, the contract generally also contains

confidentiality clauses, assignment and termination provisions, and provisions regarding dispute

resolution. Id.

Although a primary contract may contain some CSI, the majority of the information is

not commercially sensitive. Regarding information that may be deemed to be CSI, the parties to

the contract and financial terms of the deal will almost certainly be included; and terms such as

certain payments, work obligations, local content, and employment and training obligations may

also be included. Id. at 36. However, primary contracts do not generally contain trade secrets,

such as particular processes, technology, formulas, or designs, nor do they typically include

information on future transactions. Id. Furthermore, primary contracts rarely contain

information regarding employee information, commercial assumptions, costs and expenditures

relating to operational and environmental capital, the quality and quantity of the reserve, or

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operational information and data. Id. The majority of this information is contained in ancillary

contracts, which are between two private parties and are not subject to the AIA.

This survey of information provided in primary contracts suggests that the PSAs at issue

probably do not contain much, if any, CSI, in which case the contracts are not protected under

section 27 of the AIA and should be disclosed. With respect to CSI that may be included in

PSAs, however, disclosure will typically not cause the company or government economic harm

because the terms of the PSAs are already in the public domain.

(ii) Commercially sensitive information contained in PSAs isunlikely to cause a party substantial harm if disclosed

Despite the importance of keeping CSI confidential, states recognize there are

circumstances under which CSI can be disclosed without harming the parties involved. For CSI

to be exempt from disclosure, FOI laws typically require that the information (i) not already be

in the public domain or have been publicly disclosed and (ii) be shown to cause substantial harm

to the competitive position of the party from whom the information was obtained. Contracts, at

37. These requirements are present in the AIA, which, in addition to requiring that CSI cause

substantial harm to the third party, states that a record may not be refused under [section 27]

insofar as it consists of information . . . already publicly available. AIA, Part III, 27(2)(a).

Accordingly, under both Ugandan law and international FOI principles, if the information in the

PSA at issue is either already publicly available or will not put the company at a competitive

disadvantage, then the PSA should be disclosed. Because of the wide availability of model and

actual PSAs, it is probable that (i) CSI in these particular PSAs is already in the public domain or

(ii) the terms of PSAs are similar and well known enough so that companies are not substantially

harmed if a particular contract is disclosed.

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(1) PSAs Are Widely Available to the Public

Much of the CSI included in primary contracts may already exist in the public domain, in

which case section 27 of the AIA would not apply. The definition of public domain may vary

depending on the country. For example, the United States includes in its definition of public

domain information that is commonly known within an industry. See Freeman v. Bureau of

Land Management, 526 F. Supp. 2d 1178 (D.Or. 2007) [(noting that the information that

companies want to keep confidential is already known within the industry and is therefore in the

public domain)]. Although Uganda has not established the scope of public domain, including

industry knowledge in the definition of public domain is reasonable given that the purpose of

keeping CSI confidential is to allow the parties to maintain a competitive advantage or superior

bargaining position. Once the information is available to the industry, the information no longer

needs to be kept confidential for competitive purposes. Accordingly, information known

throughout an industry should be considered to be in the public domain.

Much of the information contained in PSAs generally enters the public domain through

securities filings, industry publications and pay-for-access sites, and voluntary or accidental

disclosure by one of parties. Such information is therefore in the public domain and should not

be protected under section 27 of the AIA.

a. Securities Filings

Securities laws generally require certain information to be publicly disclosed, which

means that such information is already in the public domain. As part of this information, many

securities laws require companies to disclose any material contracts in their annual filings,

which, depending on the company, may include PSAs. This means that the PSA would be in the

public domain and would not be protected as CSI.

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PSAs do not have to expressly acknowledge the authority of applicable legislation for

parties to be required to disclose under applicable securities regulations. If an applicable law

requires disclosure, the parties must disclose the information regardless of a confidentiality

agreement in the contract. However, some PSAs do provide for disclosure under applicable

securities regulations. For example, Angolas and Polands PSAs provide for unilateral

disclosure to the extent required by applicable Law, Decree, or Regulation and if data is

already in the public domain [or] if required by law or rules of an official regulated securities

exchange, respectively. Id. at 30, 82. By providing for disclosure if the information is in the

public domain and under applicable securities laws, the parties acknowledge the supremacy of

legislative disclosure requirements over confidentiality agreements.

b. Pay-For-Access Sites & IndustryPublications

A second source of public disclosure is industry participants making PSA terms public

through pay-for-access sites and industry publications. On the websiteReal Deal Docs, for

example, users can access actual legal documents drafted by top law firms for their clients.

RealDealDocs, available athttp://agreements.realdealdocs.com/Production-Sharing-Agreement/.

The website says to use them for competitive intelligence, drafting documents or to get

information about transactions within a particular industry or sector. Id. If the user does a

search for production sharing agreements, the site returns 25 records, most of which provide,

free of charge, the date of the agreement and the parties involved. The user can then subscribe to

the website for US $67 per month to access the complete agreements. Id. at

http://www.realdealdocs.com/SearchResults.

aspx. Websites and industry publications such as this make the terms of PSAs readily available

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to both industry participants and the public for the express purpose of gathering and providing

competitive intelligence.

c. Voluntary and Accidental Disclosure

Some governments unilaterally disclose PSAs, either voluntarily or accidentally. With

the support of international organizations such as the World Bank and the IMF, governments are

moving in the direction of disclosure. CITE. For example, Congo-Brazzaville, Ecuador,

Liberia, Peru, and Timor Leste all have public disclosure polices. The Mexican Government has

also moved in the direction of disclosure, ordering the disclosure of (1) the names and addresses

of liquefied petroleum gas (LPG) distributors that had purchased LPG from Pemex, a state

company in charge of all exploitation and first sale of such products, and (2) Pemexs sales

volumes. Right2Info.org, Information About Natural Resources, available at

http://right2info.org/information-of-high-public-interest/information-about-natural-resources-1.

The Mexican Federal Access to Information Institute (IFAI) determined that because

petroleum is national patrimony under the Mexican Constitution and because Pemexs aggregate

sales data are indicative of its use of public resources, the IFAI concluded that disclosure of such

aggregate data would contribute to the objectives of the Access Law to enhance the

transparency and accountability of public administration. Id.

In addition to voluntary disclosure by governments, contracts sometimes are released to

the public without government consent. For example, the Chad-Cameroon pipeline contracts,

which included terms regarding revenue and expenditures, were disclosed by civil societies in

Chad who obtained an upstream Chad-Cameroon exploitation contract through government

contacts. CITE. In addition, some companies have interpreted a states laws as allowing

disclosure, even when government officials opposed disclosure. BP, for example, may have

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unilaterally disclosed its contract regarding the BTC pipeline, because the company determined

that the states laws required it. Although some suggest that BP consulted with high government

officials before releasing the contracts, this action suggests that governments will not always

have control over whether a contract is disclosed. Id. at 44.

Regarding the Applicants request, the possibility of the CSI contained in the PSAs

already being in the public domain is particularly relevant. With respect to unilateral disclosure,

for example, Tullow and Heritage, two companies with which Uganda primarily deals, have

stated that that they are happy to disclose the terms of their contracts . . . if the government

allows it. James Herron, Tullow, Heritage face tough choices on Uganda oil. Given this

willingness to disclose and the AIAs clear disposition towards disclosure, these companies may

follow BPs lead and unilaterally disclose the PSAs if there is enough pressure from external

sources. Furthermore, Tullow is a public company incorporated under the laws of the United

Kingdom. This means that the company is required to disclose a significant amount of

information to its shareholders, both at home and abroad, through its securities filings. As a

result, it is possible that much of the potential CSI in the PSAs has already been disclosed.

These various methods of disclosure and the public status of Tullow imply that most of

the terms of PSAs at issue are already available to competitors. If the information is already in

the public domain, then section 27 of the AIA does not protect it and the government must

disclose the PSA under Ugandan law. Furthermore, even if the PSAs contain CSI that is not in

the public domain, the wide availability of PSAs means that companies will not suffer substantial

damage to its commercial or bargaining position if a PSA is disclosed, because industry norms

and market forces have already been established.

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harm, then the Government should nonetheless comply with the AIA and disclose the PSA with

any CSI redacted as necessary.

(b) Section 26: Companies Do Not Have Privacy Rights Under

Ugandan or International Law

In his opinion, the Magistrate Judge stated that a disclosure of the agreements would

entail a breach of contract and an infringement of privacy that would have far reaching

implications. Magistrate, at 3. The Judge thereby implicitly raised the question of whether,

under section 26 of the AIA, a company can claim a right to privacy. Whether a company has a

right to privacy under the AIA should depend on the definition of person. The AIA provides

that an Information Officer may refuse a request for access if its disclosure would involve the

unreasonable disclosure of personal information about a person. Part III, 26(1). The AIA

does not define the word person, but the text of the statute suggests that person only includes

individuals and does not include legal entities such as companies. First, the section refers to a

person who is deceased as well as a person who is or was an official of a public body.

26(3)(d)-(e). Being deceased and holding public office are not capacities that entities other than

individuals have. Second, sections 27 and 28 both address privacy concerns that relate to

companies such as commercial information and confidential information. 27-28. These

sections could be considered to be redundant if section 26 was meant to protect a companys

privacy. Based on the text of the statute, therefore, section 26 of the AIA is meant to cover only

the privacy of individuals.

A textual analysis of the AIA notwithstanding, Uganda has not addressed whether a

corporation has a right to privacy outside of confidentiality agreements and commercial

information. The international community, however, generally agrees that legal entities do not

have privacy rights outside of trade secrets or contractual confidentiality protections. See Kristen

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Mathews, Since when does a legal entity have privacy rights? (Sept. 30, 2009), available at

http://privacylaw.proskauer.com/2009/09/articles/foia/since-when-does-a-legal-entity-have-

privacy-rights/#more(discussing the Third Circuit decision inAT&T v. FCC, No. 084024, which

held that a corporation has a privacy claim under the U.S. FOIA based on the statutes specific

definition of person). The Australian High Court has noted that a company is endowed with

legal personality only as a consequence of the statute law providing for its incorporation. It is a

statutory person, apersona ficta created by law which renders it a legal entity as distinct from

the personalities of the natural persons who constitute it. . . . But, of necessity, this artificial

legal person lacks the sensibilities, offence and injury to which provide a staple value for any

developing law of privacy. ABC v. Lenah Game Meats Pty Ltd, HCA 63; 185 ALR 1, para. 126

(2001). Similarly, U.S. and U.K. courts have typically refused to acknowledge a corporate right

to privacy outside the context of statutes that specifically provide for a corporate privacy right. 3

Lee A. Bygrave,A right to privacy for corporations? Lenah in an international context, Privacy

Law & Policy Reporter, vol. 8, pp 130-134, 5-6 (2001). Additionally, corporations are generally

not protected under Article 17 of International Covenant on Civil and Political Rights

(ICCPR), which protects individuals against an invasion of privacy. ICCPR, Art. 17;see

Bygrave, at 6 (As for corporate rights under the international human rights treaties, the bulk of

authority on the ICCPR holds that the rights contained therein are for the protection of

individuals only.).

Given a textual reading of the AIA, as well as the general foreign and international

position that corporations do not have a right to privacy as such, interpreting section 26 of the

AIA to apply to legal entities would be inconsistent with both the AIA and the common

3 For example, the 3rd Circuit has determined that corporations are protected under FOIA and the UK Court ofAppeal has ruled that corporations are covered under the Broadcasting Act of 1996.

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understanding of privacy rights. Accordingly, with respect to the PSAs at issue, section 26

should not apply to legal entities; the companies therefore cannot seek protection from disclosure

under this provision.

(c) Section 28: Confidentiality Clauses Cannot Defeat a Court Order

Section 28 of the AIA offers a general protection to information provided in confidence.

An analysis under this section has two parts. First, section 28 requires an information officer to

refuse access to information if disclosure of the record would constitute an action for breach of

a duty of confidence owed to a third party in terms of an agreement. Access to Information Act,

2005 28(1)(a). Chief Magistrate Deo John found, however, that no person can be held in

breach of contract where the said breach is occasion [sic] by an enforceable court order.

Indeed to hold otherwise would, in situations providing for confidentiality, be to render S.37

[allowing a person to lodge a complaint with the Chief Magistrate against the decision of an

information officer to refuse a request for access] of the Access to Information Act redundant.

Chief Magistrates Ruling at 4,In re Access to Information Act, 2005, Misc. Cause No. 751

(Feb. 3, 2010). The Judge therefore quickly dismissed the 28(1)(a) breach of contract claim,

saying that [o]nce an order for disclosure is made against an Information Officer under the

Access to Information Act I believe this would be a plausible defense to any action brought in

the cause of such disclosure even where there is provision for confidentiality and privacy for the

information disclosed. Id. The Chief Magistrates reasoning on this point is sound. The

legislatures goals of government accountability and transparency cannot be defeated by prudent

drafting.4

4 The Chief Magistrates holding raises the question of whether section 28(1)(a) has any application at all. Althoughthe Chief Magistrate is dismissive of this section of the AIA, some weighing of the public interest is implicit in hisdecision. If there is little public interest in government-held information (for example, in the identifying details of aprivate citizens medical records), the government should not disclose confidential information. As the ChiefMagistrates decision shows, however, a confidentiality clause has no force where the public interest favorsdisclosure. A prudent information officer might think twice before disclosing an agreement subject to a

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Second, the Attorney General may withhold a third partys confidential information if

disclosure may reasonably be expected to prejudice the supply of future information. Under

section 28, an information officer may refuse a request for access to a record of the body if the

record consists of information that was supplied in confidence by a third party, the disclosure of

which could reasonably be expected to prejudice the future supply of similar information, or

information from the same sources and it is in the public interest that similar information, or

information from the same source, should continue to be supplied. Access to Information Act,

2005 28(1)(b) [emphasis added]. Since the AIA applies equally to all companies, it is unlikely

that disclosing the terms of a successful bid will discourage any company from submitting future

bids. Disclosure of contracts under freedom of information laws is standard practice in the

worlds most economically advanced nations, including the United Kingdom, the United States,

Australia, Canada, and South Africa. CITE.

Furthermore, the legislature granted the Attorney General the discretion, but not the

obligation, to withhold information under section 28. The governments interest (i.e., promoting

the public interest), not the bidders, is therefore paramount. Since there is a strong public

interest in disclosing natural resource contracts, only a serious threat to the future supply of

information should cause the government to withhold a contract.

3. Even if an Exemption Applies, the Publics Interest Outweighs anyPotential Harm

Even if the Attorney General can show that disclosure should be denied under an

exemption, then the Applicants still have the opportunity to show that the public interest

outweighs any harm prevented by the applicable exemption. Section 34 of the AIA supersedes

confidentiality clause. Once a dispute over information has reached the courts, however, a judge will decide thecase on the merits, weighing the public interest against the parties interest in confidentiality. Therefore, theconfidentiality clause has no application in this case.

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the exemptions under Part III, stating that [n]otwithstanding 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 . . . the public interest in the disclosure of the record is greater than

the harm contemplated in the provision in question. Access to Information Act, 2005 35.

Section 34 holds that the public interest can override an applicable exemption where the

public interest in disclosure outweighs the harm contemplated in the provision in question. In

this case, there is a great deal of public interest in disclosure. Disclosure is necessary to promote

transparency and democracy and to ensure continued economic growth. These interests are

enough to outweigh the bidders interest in enforcing a confidentiality clause or a general interest

in protecting CSI.5 The public interest override is common in international FOI laws, and

international jurisprudence consistently supports the override.

(a) Information Asymmetry Hampers the Negotiating Power of

Ugandas Government

A notable feature of oil contract negotiation is the information asymmetry that exists

between oil companies and host governments. Numerous authorities have addressed the curious

government argument that disclosure [of contracts] would erode their bargaining power for

future contracts. IMF GUIDEON RESOURCE REVENUE TRANSPARENCY 2007, 11 (2007)

[hereinafter IMF GUIDE];see also PETERROSENBLUM & SUSAN MAPLES, REVENUE WATCH,

CONTRACTS CONFIDENTIAL: ENDING SECRET DEALSINTHE EXTRACTIVE INDUSTRY 38 (2009).

As noted above, it is widely known that industrial actors already have access to these contracts

shortly after they are signed, via fee-based websites and other industrial intelligence services.

See ReadDealDocs website, http://agreements.realdealdocs.com/

Production-Sharing-Agreement (last visited May 21, 2010);see also IMF GUIDE, 11; Oil &

5 Specific CSI could be redacted on a case-by-case basis.

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Gas Observer, Contracts & Tenders Newsletter, http://www.oilandgasobserver.com/contracts/

(last visited Apr. 20, 2010). The expert negotiating teams who operate on behalf of oil firms

benefit from significant experience in operating in challenging environments, while governments

often lack experience and training in such negotiations, especially where oil resources are a new

discovery, as in Uganda. See Jenik Radon,How to Negotiate an Oil Agreement, in ESCAPING

THE RESOURCE CURSE 89, 90-93 (Macartan Humphreys, Jeffrey D. Sachs & Joseph E. Stiglitz

Eds. 2007). Further, oil firms bring immense financial resources to bear on negotiations. See,

e.g., id. at 90 (highlighting the stark differences in ExxonMobils 2007 revenues of $371 billion

and the GDP of oil-rich Saudi Arabia, $281 billion). The factors paint a troubling picture of

negotiating imbalance. There is a stark contrast between the oil companys resource and

experience-rich expert negotiation teams, who are supplied with valuable industrial intelligence

benchmarks for contract terms and costs, and the government negotiators, who must rely on

limited experience and judgment that is based on incomplete information. Id. at 105-06. Such

information asymmetry makes it virtually impossible for governments to objectively benchmark

the competitiveness of their contractual terms,see, e.g., Dino Mahtani, Transparency Fears

Lead to Review of Congo Mining Contracts, FINANCIAL TIMES, Jan. 3, 2007 (noting that lack of

information may have resulted in the sale of natural resources at an extremely undervalued

price), an asymmetry that would be vastly diminished by transparency and policies of disclosure

of such agreements.

(b) Disclosure of Oil Production Sharing Agreements LeveragesGovernments Negotiating Strengths and Improves Governmental

Autonomy

One of the most significant advantages host governments possess is the territorial control

over the natural resources. Notwithstanding the considerable financial resources, experience and

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data that oil companies bring to negotiations, these assets cannot alter the fact that oil and other

natural resources are limited in quantity and location. See Jenik Radon,How to Negotiate an Oil

Agreement, in ESCAPINGTHE RESOURCE CURSE 89, 97 (Macartan Humphreys, Jeffrey D. Sachs

& Joseph E. Stiglitz Eds. 2007). Put simply, oil firms face increasing difficulties in locating and

extracting such resources and are forced to negotiate with the governments that control access to

them. Governments of resource-rich countries thus have a substantial advantage in that oil

companies have few alternatives to negotiating with them.

Transparency also provides benefits of improved governmental autonomy. As one

scholar has noted, interviews with oil executives reveals that oil firms typically tailor their

negotiating posture to the perceived political and legal climate. Risks of corruption or

authoritarianism normally leads firms to adopt self-protective, uncompromising and feisty

posture that frequently excludes critical considerations of environmental, social and other

external risks. Radon at 90-91. Research indicates that where transparency is lacking, oil

companies perceive risks of corruption, and political and legal instability. Jenik Radon,How to

Negotiate an Oil Agreement, in ESCAPINGTHE RESOURCE CURSE 89, 96 (Macartan Humphreys,

Jeffrey D. Sachs & Joseph E. Stiglitz Eds. 2007). Such risks make it more likely that oil firms

press for stability clauses that essentially require the State to compensate the firm for changes

in laws or regulations that adversely impact the firms operations. Radon at 96. This effectively

means that nations take a risk that they will need to pay a fine if they enact more stringent tax,

labor or environmental laws or rules. Radon at 97. Transparency in the negotiation of these oil

agreements is one critical method to avoid a subversion of governmental autonomy.

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(c) Disclosure Combats Corruption and Improves Efficiency of

Industry and Oil Resource Revenue Management

As noted above, history is rife with examples of the paradox of plenty, in which

resource-rich nations all too frequently experience drastic failures in growth and economic

development. See JEFFREY D. SACHS & ANDREW M. WARNER, NATURAL RESOURCE

ABUNDANCEAND ECONOMIC GROWTH (1997), available athttp://www.cid.harvard.edu/ciddata/

warner_files/natresf5.pdf. Extensive research on the causes of this problem converge on

patronage and rent-seeking behavior of government actors as an explanation. Where

governments are oil-rich, they depend less on tax revenue from their citizens, uncoupling an

economic link of accountability between government actors and their citizens. See Terry Lynn

Karl,Ensuring Fairness: The Case for a Transparent Social Contract, in ESCAPINGTHE

RESOURCE CURSE 256, 263-64 (Macartan Humphreys, Jeffrey D. Sachs & Joseph E. Stiglitz Eds.

2007); Ivar Kolstada & Arne Wiiga,Is Transparency the Key to Reducing Corruption in

Resource-Rich Countries?, 37 WORLD DEV. 521, 524 (2009) (noting that larger resource revenue

can reduce the need for taxes, a scenario that is associated with lower public demand for

government accountability). Extensive scholarship also reveals that, in the absence of this

dependence on their citizens for tax revenue, oil revenues are used in corrupt manners, to provide

financial benefits and jobs as a form of patronage to woo political support. See, e.g., James A.

Robinson et al.,Political Foundations of the Resource Curse, 79 J. DEV. ECON. 447, 450 (2006)

(noting that resource revenue is frequently spent via corrupt mechanisms such as patronage to

remain in power); Halvor Mehlum et al.,Institutions and the Resource Curse, 116 ECON. J. 1,

12-16 (2006); Catharina Lindstedt & Daniel Naurin, Transparency Against Corruption. A Cross-

Country Analysis (2006) (unpublished manuscript, available athttp://www.qog.pol.gu.se/

research/reports/Lindstedt_Naurin.pdf)

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This corruption often occurs via patronage and bribery, and plagues these economies with

mounting inefficiencies. See MENACHEM KATZETAL., INTL MONETARY FUND, LIFTINGTHE

OIL CURSE: IMPROVING PETROLEUM REVENUE MANAGEMENTIN SUB-SAHARAN AFRICA 56

(2004); Vito Tanzi & Hamid Davoodi, Corruption, Public Investment, and Growth 13-18 (Intl.

Monetary Fund, Working Paper No. WP/97/139, 1997). A notable impact of corrupt patronage

is that relevant institutions become staffed ineffective or incompetent clientele of the corrupt

actor. Studies have indicated that the quality of institutionsas measured by degree of

corruption, accountability and transparency, among other factorsis directly linked to efficient

resource management. Mehlum et al. at 12-16; Robinson et al. at 451. Where relevant

institutions that would hold politicians accountable are themselves products of corruption,

inefficient resource management follows, along with the waste and impairments in economic

growth that should otherwise attend natural resource booms, a classic paradox of plenty. See

id. As one author put it, opacity in this area means that enormous sums of money are being

passed around, both internationally and domestically, without the most basic forms of

accountability. Terry Lynn Karl,Ensuring Fairness: The Case for a Transparent Social

Contract, in ESCAPINGTHE RESOURCE CURSE 256, 267 (Macartan Humphreys, Jeffrey D. Sachs

& Joseph E. Stiglitz Eds. 2007). Transparency then, manifest in the instant case by public

disclosure of oil production sharing agreements, is one means of attacking such waste.

Transparency finds broad scholarly support as a critical component of combating

corruption. Disclosure of revenue and terms of oil contracts creates ex ante obstacles to corrupt

officials by forcing them to expend ever greater effort and resources in concealing illicit actions,

such as finding new ways to unlawful transfers of money and to concoct credible accounts in

public records as to where funds have gone. See, e.g., Catharina Lindstedt & Daniel Naurin,

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Transparency Against Corruption. A Cross-Country Analysis, manuscript at 9 (2006)

(unpublished manuscript, available athttp://www.qog.pol.gu.se/research/reports/Lindstedt_

Naurin.pdf). Transparency also impedes corruption by making evidence easier for law-

enforcement to obtain, and making it more challenging for corrupt actors to use bribery to offset

or avoid punishment. See Ivar Kolstada & Arne Wiiga,Is Transparency the Key to Reducing

Corruption in Resource-Rich Countries?, 37 WORLD DEV. 521, 523 (2009). Consistent with the

points made above, transparency has worked in Uganda in the context of fighting corruption in

educational funding. See Ritva Reinikka & Jakob Svensoon,Fighting Corruption to Improve

Schooling: Evidence from a Newspaper Campaign in Uganda, 2 J. EURO. ECON. ASSOC. 1

(2005). Prior to a transparency measure, only 24% of educational grants actually reached

schools in the 1990s, the remainder of these grants were taken by local government actors. Id.

After the Ugandan government published monthly grants to school districts in newspapers, by

2001 more than 80% of these grants reached the schools. Id. Similarly, a move towards

transparency with respect to PSAs could also produce favorable results.

As noted above, governments hold natural resources in trust for their citizens, and must

ensure the benefits of these resources accrue to their citizens. The risks of waste and inefficiency

that resource-rich nations face, often resulting from rent-seeking and corruption, should render

obvious the importance of disclosure of oil production sharing agreements in Uganda.

(d) Transparency in Extraction Industry Holds Parallel Benefits for

Broader Scale of National Development

Transparency in a host government is attractive, not discouraging to investors. Chief

Magistrate Deo Johns ruling articulated concern about the possibility of withdrawal by the

prospecting companies upon any disclosure and what this could mean for the nation. Chief

Magistrates Ruling at 6,In re Access to Information Act, 2005, Misc. Cause No. 751 (Feb. 3,

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2010). In fact, the enactment and practice of good governance policies, such as transparency,

attracts foreign investment. As the Chief Executive of Royal Dutch Shell, Jeroen van der Veer,

stated in 2005: Put simply, we prefer to invest and work in countries that are tackling the

scourge of corruption; that are instilling good governance and the rule of law; and that are

concerned about the health, education and livelihoods of all their people. Jeroen van der Veer,

Chief Exec. Officer, Royal Dutch Shell, Speech at the London Extraction Industry Transparency

Initiative Conference: Why Transparency is Important (Mar. 17, 2005).

Surveys of investing entities indicate that predictability and stability in political and

economic arenas stability that is bolstered by factors such as transparency are chief among

the concerns of potential investors in countries like Uganda. See WORLD BANKGROUP,

SNAPSHOT-UGANDA: BENCHMARKING FDI COMPETITIVENESS 7 (2007) (noting that surveys

across six economic sectors including textiles, apparel, and telecom services, revealed that

political and economic stability were critical factors in investment decisions);see also Marios B.

Obwona,Econ. Poly Research Ctr., Determinants of FDI and Their Impact on Economic

Growth in Uganda, 13 AFR. DEV. REV. 46, 63 (2001) ([T]he importance of political stability in

creating a climate for investors cannot be underestimated. Political instability, whether

perceived or real, constitutes a serious deterrent for FDI as it creates uncertainties and increases

risks and hence costs.).

Transparency and its role in combating corruption is not only important to investors, but

also to international donor organizations. See WORLD BANK: IMPLEMENTATIONOFTHE

MANAGEMENT RESPONSETOTHE EXTRACTIVE INDUSTRIES REVIEW 4 (2008) (noting its support

for the Extractive Industry Transparency Initiative and the importance of transparency in

extractive industries); IMF GUIDETO RESOURCE REVENUE TRANSPARENCY 2007, at 7 (noting

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the considerable emphasis on revenue transparency as part of World Bank involvement in

extractive industry activities); Paolo Mauro, The Effects of Corruption on Growth, Investment

and Government Expenditure 7, 11-12 (Intl Monetary Fund, Working Paper No. WP/96/98,

1996) (providing empirical evidence that corruption impairs investment and growth). Compare

Kenyas Government: Going Wrong?, ECONOMIST, Oct. 9th 2003 (noting the reluctance of

foreign donors to engage in Kenya given an apparent failure to enact anti-corruption policies

after the arrival of the administration of President Mwai Kibaki following ouster of former

President Daniel arap Moi), withKenya, Corruption and the IMF: Dirt Out, Cash In,

ECONOMIST, Nov. 27th 2003 (noting that eventual reforms by President Mwai Kibaki lead to

dramatic reversal in investment and foreign donor activities in Kenya).

Industrial actors are also joining in consensus toward disclosure and transparency. For

example, more than 46 of the worlds largest oil companies, including ExxonMobil and Royal

Dutch Shell, have joined the Extractive Industry Transparency Initiative (EITI). See, e.g., List

of EITI Supporters, http://www.eiti.org/supporters/companies (last visited Apr. 15, 2010). The

participants in the EITI support several core principles, among these are the wide dissemination

of comprehensive and comprehensible material on payments and revenues and active

participation by civil society, and that [g]overnments should also lift any confidentiality

provisions that would impede reporting of resource revenue payments. IMF GUIDETO

RESOURCE REVENUE TRANSPARENCY 2007, at 45 (2007). Importantly, as of October 31, 2007,

Uganda was one of several nations engaged in dialogue regarding participation in EITI. WORLD

BANK: IMPLEMENTATIONOFTHE MANAGEMENT RESPONSETOTHE EXTRACTIVE INDUSTRIES

REVIEW annex F (2008). Although EITI is an important factor in promoting good governance

practices such as transparency, it addressed only one component of the resource value chain,

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revenues and taxes. Nations like Uganda only bolster the impact of their good governance

campaigns by extending transparency initiatives to upstream events such as contract

negotiations. See Ivar Kolstada & Arne Wiiga,Is Transparency the Key to Reducing Corruption

in Resource-Rich Countries?, 37 WORLD DEV. 521, 528 (2009). Lastly, and perhaps most

importantly, Tullow Oil, Plc, and Heritage Oil, Ltd., the parties to the oil production sharing

agreement in Uganda at issue, have publicly stated that they are willing to disclose these

contracts. James Herron, Tullow, Heritage Face Tough Choices on Uganda Oil, INDEPENDENT,

June 10, 2009, available athttp://www.independent.co.ug/index.php/business/business-news/54-

business-news/1052-tullow-heritage-face-tough-choices-on-uganda-oil (Tullow and Heritage

said they are happy to disclose the terms of their contracts which they described as containing

good terms for Uganda if the government allows it.).

The preceding facts make it clear that, rather than discouraging investors, disclosure of

oil production sharing agreements is promoted by oil companies, international investors and

donors, in part because of the benefits such practices have on the political and economic stability

of the investment environment.

In conclusion, the above analysis illustrates that, under the AIA, the burden of proof is on

the Attorney General to show that denying disclosure of the PSAs is warranted under a specific

exemption. However, an exemption prescribed in the AIA is unlikely to apply to the Applicants

request. Enough of the commercially sensitive information that could realistically be in the

PSAs at issue is in the public domain to prevent substantial harm to the parties involved.

Furthermore, both the AIA corporations do not have a general right to privacy. These points,

coupled with the Chief Magistrates rejection of a claim based on the confidentiality clause,

suggest that none of the exemptions in the AIA apply to the request for the PSAs. Lastly, even if

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the Court finds that an exemption applies, the Applicants have shown that the public interest,

both economically and politically, in having access to information regarding the production and

disposition of Ugandas resources outweigh any harm that may result from disclosure.

B. The Government of Uganda Is Obligated to Disclose the PSA to the PublicBecause it is a Trustee of Public Resources

Chief Magistrate Deo John unreservedly agreed with the Applicants claim that

petroleum and natural resources discovered under any land in Uganda are national treasures

vested in the Government to hold in trust for the people of Uganda. Chief Magistrates Ruling

at 5,In re Access to Information Act, 2005, Misc. Cause No. 751 (Feb. 3, 2010). The Chief

Magistrates finding is supported by the Constitution, which holds that the State shall protect

important natural resources, including land, water, wetlands, minerals, oil, fauna and flora on

behalf of the people of Uganda. Constitution of the Republic of Uganda para. XIII. The text of

the Constitution suggests that the government of Uganda is a trustee of the peoples interest in

their natural resources.

The Supreme Court of the United States recently confirmed that the government may

hold resources in trust for a people. The majority opinion considered two possible reasons for

finding the government is a trustee in its management of natural resources. The first is

substantive law setting out specific fiduciary or other duties. (US v. Navajo Nation 129 S. Ct.

1547 at ) [hereinafterNavajo II]. By saying the State holds natural resources on behalf ofthe

people of Uganda, the legislature implies a fiduciary relationship between the government and

the people. Second, even without an explicit statutory source establishing a fiduciary

relationship, common law courts have found fiduciary duties by applying common law trust

principles. Idat *6. In this case, the Ugandan government is in total control of the oil located on

its territory. This is sufficient to create a trust under the common law. SeeThe Navajo Nation v.

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United States 501 F.3d 1327 [hereinafterNavajo] (holding a trust exists where virtually every

aspect of the coal located on the Nations land is under the federal governments control.) at 42

(overturned byNavajo IIon other grounds).

InNavajo, the court considered whether the trust between the government and the Native

Americans was sufficient to give the latter a claim for statutory damages against the government.

InNavajo II, the claim for damages ultimately failed because the statute under which the

plaintiffs sought damages demanded a trust relationship created by statute in order to grant

monetary damages. CITE. In this case, however, the applications do not seek damages; they

seek only the disclosure of government held information. As such, any trust, or trust-like

relationship militates in favor of disclosure. See, e.g., Samson Indian Nation Band v. Canada

(where the Federal Court of Appeal for Canada held that there is a special fiduciary relationship

between the [government] and the Indians, and attorney-client privilege is abrogated because,

as beneficiaries of a variation of a trust in Indian land, the plaintiffs share an interest in that

advice with the [government], which is responsible for administration and management of the

mineral assets and revenues therefrom for the benefit exclusively for the plaintiff bands and

nations.). CITE.

The trust relationship between the government and Native Americans has consistently led

common law courts to abridge attorney-client privilege. American courts have found that there

is a fiduciary relationship between the government and Indian tribes. See Jicarilla Apache

Nation v. United States 88 Fed. Cl([t]hough this relationship is currently founded in statutes

that undoubtedly serve to delimit somewhat the governments obligations, it has, nevertheless,

historically been measured and evaluated using principles typically applied to common law

fiduciary relationships. at *6.). InJicarilla, the court found this fiduciary relationship was

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enough to grant the Applicants access to information normally covered by attorney client

privilege. Idat *10 (fiduciaries may not shield from their beneficiaries communications

between them and their attorneys that relate to fiduciary matters, including the administration of

trusts.). The attorney client privilege is more zealously guarded than information protected by a

confidentiality clause. CITE. If the fiduciary relationship between the American Indians and the

government is sufficient to abrogate the attorney-client privilege, it is certainly enough to compel

disclosure of the PSAs.

III. INTERNATIONAL LAW ALSO SUPPORTS DISCLOSURE OF THE PSAS

A. Under International Law, Duties of the Sovereign Impose a Requirement toDisclose Information Related to the Exploitation of Natural Resources

International consensus recognizes numerous, fundamental sovereign duties. One of

these duties requires nations to utilize natural resources in trust for their citizens best interests.

Another duty other demands that nations protect the right to information, both in access to

information and in expression of opinion. These rights and duties are enshrined in numerous

international legal documents. See, e.g., Universal Declaration of Human Rights art. 19, G.A.

Res. 217A, at 74, UN GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948)

(including Uganda as a party to the Declaration); European Convention on Human Rights and

Fundamental Freedoms, art. 10, 1, Nov. 4, 1950, Europ. T.S. No. 5. These rights are also

protected under the Constitutions and laws of numerous countries, including Uganda. See

Constitution of the Republic of Uganda arts. 4, 29 & 41. African nations have embraced these

principles in the drafting and adoption of the African Charter on Human and Peoples Rights,

which Uganda has ratified and incorporated into its legal regime, under Article 287 of the

Ugandan Constitution. Uganda Constitution art. 287;seeUganda Law Society & Anor v. The

Attorney General (Constitutional Petitions Nos. 2 & 8 of 2002) [2009] UGCC 1 (5 Feb. 2009)

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([T]he African Charter on Human and Peoples Rights [Banjul Charter] which was adopted on

27th June, 1981 by the OAU and which came into force on 21st October, 1986 is part and parcel

of our Constitution.). Article 9 of African Charter establishes informational rights, while

Article 21 establishes the rights of the people to their nations natural resources. Parties to the

African Charter assume the obligation to enact legislation to give effect to these rights, which,

among other principles address below, compel the conclusion that the Government of Uganda is

obligated to disclose oil contracts.

1. The Fundamental Rights to Information Guaranteed by Article 9 of theAfrican Charter on Human and Peoples Rights Requires Disclosure the

PSAs

The right of access to information is clearly articulated in Article 9 of the African

Charter: Every individual has the right to receive information. International legal frameworks

to which Uganda is a party (such as the Universal Declaration on Human Rights and the

International Covenant on Civil and Political Rights) recognize that this fundamental right to

access information is fundamentally intertwined with freedom of expression. See Universal

Declaration of Human Rights art. 19 ([T]he right to freedom of opinion and expression . . .

includes freedom to hold opinions without interference and to seek, receive and impart

information.) (emphasis added); International Covenant on Civil and Political Rights art. 19(1)

([T]he right to freedom of expression . . .shall include freedom to seek, receive and impart

information and ideas of all kinds) (emphasis added); see also European Convention on Human

Rights and Fundamental Freedoms, art. 10, 1 ([T]he right to freedom of expression . . . shall

include freedom to hold opinions and to receive and impart information and ideas without

interference by public authority.) (emphasis added);Joint Declaration by the UN Special

Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the

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Media, and the OAS Special Rapporteur on Freedom of Expression, Dec. 6, 2004 (declaring that

the right of access to information held by public authorities is a fundamental human right, with a

presumption that all information is accessible subject only to very narrow limitations). Ugandas

Constitution, which incorporates these international treaty obligations via Article 287, reflects

this international consensus in its guarantees of freedom of expression and thought, Article 4,

freedom of the press, Article 29, and rights to information held by the Government, Article 41.

Although the Constitutional guarantees to freedom of expression and access to information are

contained in different Articles, the Supreme Court of Uganda has indicated that this distinction is

immaterial. SeeObbo & Anor v. Attorney General(Constitutional Appeal No.2 of 2002) [2004]

UGSC 1, 7 (11 Feb. 2004) (noting that the previous 1962 Independence Constitution of Uganda

defined freedom of expression as the freedom to hold opinions and to receive and impart ideas

and information without interference and that omission of this definition in the current

Constitution did not alter the meaning or character of the freedom as previously drafted)

(emphasis in original). In Obbo, the Court cited Article 9 of the African Charter for the

proposition that Uganda, as a party to the Charter, had clearly undertaken to protect these

fundamental informational rights. Id. (noting that the parties to the Charter guarantee that the

right to access information is a fundamental and inalienable human right and an indispensible

component of democracy) (citing Declaration of Principles on Freedom of Expression in Africa,

Oct. 2002). Obbo thus demonstrates that Ugandas Constitutional guarantees of informational

rights are coextensive with the rights guaranteed in Article 9 of the African Charter.

Other African courts have joined Ugandas Supreme Court by citing the informational

rights established by Article 9 of the African Charter. See, e.g.,Laugh It Off Promotions CC v.

SAB International (Finance) BV t/a Sabmark International and Another, 2005 (8) BCLR 743

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(CC), 2005 SACLR LEXIS 9, * 46 (RSA), ([F]reedom of expression is a vital incidence of

dignity, equal worth and freedom. It carries its own inherent worth and serves a collection of

other intertwined constitutional ends in an open and democratic society.);see alsoIslamic

Unity Convention v. Independent Broadcasting Authority and Others, 2002 (5) BCLR 433 (CC);

2002 SACLR LEXIS 2, *33 (RSA) (South Africa is not alone in its recognition of the right to

freedom of expression and its importance to a democratic society.). Notably, South African

courts, having clearly affirmed the legal principles embodied in Article 9 of the African Charter,

also presume a default of plenary access to government information, subject only to narrow

exceptions. Confidentiality clauses in government contracts, for example, are given limited

effect that does not prevent disclosure of terms and prices. See, e,g., Transnet Ltd. v. S.A. Metal

Machinery Co. (PTY) Ltd., (147/2005) [2005] ZASCA 113 (29 Nov. 2005). As indicated in Part

II.Asupra, the same considerations articulated by South Africas Supreme Court of Appeal in

Transnetsupport the finding that confidentiality clauses in oil production sharing agreements are

of minimal effect.

Uganda, as a party to the African Charter, clearly endorses and has undertaken to protect

the informational rights articulated in Article 9. Public access to information is critically

important when it relates to the use of natural resources that are held in trust by the State for the

people of Uganda. Uganda Constitution objective XIII (The State shall protect important

natural resources, including land, water, wetlands, minerals, oil, fauna and flora on behalf of the

people of Uganda.);see also Chief Magistrates Ruling at 5,In re Access to Information Act,

2005, Misc. Cause No. 751 (Feb. 3, 2010) (noting that I unreservedly agree with the notion

that petroleum [is] a natural resource held by the Government in trust for the people of

Uganda). Further, as discussed below, the presumption of access should be subject only to

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extremely narrowly tailored exceptions that are not relevant to virtually all of the oil production

sharing agreements at issue. See Part X.Y, infra. The informational rights guaranteed by Article

9 of the African Charter and incorporated in Articles 4, 29 and 41 of the Ugandan Constitution

clearly compel the disclosure of oil production sharing agreements regarding the use of natural

resources that are held in trust for the people of Uganda.

2. The Fundamental Rights to Natural Resources Guaranteed by Article 21 ofthe African Charter on Human Peoples Rights Requires Disclosure of thePSAs

Article 21 of the African Charter provides, among other things, that the rights to the use

and benefits of a countrys natural resources shall be exercised in the exclusive interests of the

people. African Charter on Human and Peoples Rights art. 21(1). See also Uganda

Constitution objective XIII (The State shall protect important natural resources, including land,

water, wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda.). Further, the

African Charter requires that parties shall undertake to eliminate all forms of foreign

exploitation, particularly that practiced by international monopolies so as to enable their peoples

to fully benefit from the advantages derived from their natural resources. African Charter art.

21(5). This provision directly relates to the tragic paradox of plenty, where resource-rich

nations often paradoxically experience drastic failures in growth and economic development.

See JEFFREY D. SACHS & ANDREW M. WARNER, NATURAL RESOURCE ABUNDANCEAND

ECONOMIC GROWTH (1997), available athttp://www.cid.harvard.edu/ciddata/warner_files/

natresf5.pdf. Enabling citizens to fully benefit from the advantages derived from their natural

resources demands that the people be involved in a transparent and meaningful process of

discussion regarding the use of such natural resources. Failure to involve citizens in natural

resource development has been found to be a direct violation of Article 21, as found by the

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African Commission on Human and Peoples Rights. Social & Economic Rights Action Center

& Center for Economic & Social Rights v. Nigeria, Africa Commission on Human & Peoples

Rights, Commn No. 155/96, 55-58 (2001) [hereinafterSERAC]. In SERAC, the African

Commission considered the social and environmental devastation of land populated by the Ogoni

people that resulted in part from the failure of the Nigerian government to engage the Ogoni

people in negotiations over oil extraction contracts. Id. 1-9. The complaint in SERACstated

that the government of Nigeria did not require oil companies to consult communities before

beginning operations, even if the operations pose direct threats to community or individual

lands. Id. 6. Further, the complaint alleged that the Nigerian government refused to provide

access to information about environmental impact and responded with protests about these

refusals with violence and executions. Id. 4-5. Not only had the Nigerian Government failed

to monitor or regulate the operations, in all their dealings with the Oil Companies, the

government did not involve the Ogoni Communities in the decisions that affected the

development of Ogoniland. Id. 55. After considering the evidence, the Commission found

that the conduct of the Nigerian government was a violation of Article 21 of the African Charter

on Human and Peoples Rights:

Contrary to its Charter obligations and despite such clearly

established international principles, the Nigerian Government has

given the green light to private actors, and the oil Companies, in

particular, to devastatingly affect the well-being of the Ogonis. By

any measure of standards, its practice falls short of the minimum

conduct expected of governments, and therefore is in violation of

Article 21 of the African Charter.

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Id. 58;see also Justice C. Nwobike, The African Commission on Human and Peoples

Rights and the Demystification of Second and Third Generation Rights under the African

Charter: Social and Economic Rights Action (SERAC) and the Center for Economic and Social

Rights (CESR) v. Nigeria, 1 AFR. J. LEGAL STUD. 129 (2005) (noting that signatories to the

African Charter are obligated to respect, protect, and fulfill the rights guaranteed under the

Charter, and that the non-inclusion of the Ogoni people in the oil exploitation process was

undoubtedly contrary to Article 21 of the Charter).

Yet another international legal body, the Inter-American Commission on Human Rights,

has cited Article 21 of the African Charter in finding that the failure to openly engage citizen

stakeholders and provide information about the contractual negotiation over oil extraction

projects violated fundamental rights to natural resources. Maya Indigenous Communities of the

Toledo District Belize, Inter-American Commission on Human Rights, Report No. 40/04,

149-50 & nn. 151, 154 (2004) (citing the Article 21 of the African Charter and the decision of

the African Commission on Human and Peoples Rights for the proposition that government

development activities must acknowledge, respect and protect the fundamental rights of citizens,

such as rights to natural resources and land).

Clearly, where immense risks of violations of human rights attend a failure to engage

local stakeholders, there is no question that disclosure of agreements that embody these risks

must be shared to the greatest possible degree with those citizens whose fundamental rights are

at stake. See James Herron, Tullow, Heritage Face Tough Choices on Uganda Oil,

INDEPENDENT, June 10, 2009, available athttp://www.independent.co.ug/index.php/business/

business-news/54-business-news/1052-tullow-heritage-face-tough-choices-on-uganda-oil (noting

that Ugandan citizens in the Lake Albert region are worried about the problems caused in

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Nigeria, Angola and Chad by the exploitation of oil resources and unchecked flows of

petrodollars to governments with a reputation

Ruling of the Freedom of Information Case to Publicly Disclose Uganda's Oil PSAs

Documents

Transcript of Ruling of the Freedom of Information Case to Publicly Disclose Uganda's Oil PSAs