Greenwatch v. Attorney General, Misc. Cause No. 232 of 2009 (13 August 2020)

Greenwatch v. Attorney General, Misc. Cause No. 232 of 2009 (13 August 2020)
High Court of Uganda at Kampala

Greenwatch sought to obtain copies of petroleum production sharing agreements authorizing oil and gas exploration and development in the Albertine region of Uganda.  The Ministry of Energy and Mineral Development refused to disclose specific agreements it negotiated with individual 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 specific production sharing agreements because it would be liable for breaching confidentiality provisions within the contracts.  

Article 41 of the Constitution of Uganda guarantees citizens the right to access information held by the State or its organs unless disclosure 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.” These exceptions are reiterated in the Access to Information Act. Para. 10. The High Court declared that petroleum production sharing agreements are “public documents” because they are contracted by the government of Uganda by public officials for Uganda.  Para. 8.  The High Court subsequently determined that the confidentiality provisions in the production sharing agreements do not fit within the narrow exceptions available to deny access to information.  The Court stated:  “A confidentiality clause between two contracting parties cannot on its own vitiate a constitutional right.  All terms between parties have to be in conformity with constitutional and other relevant legal regimes in the land. . . . To use a confidentiality clause in a contract without qualifying it within [the exceptions in the Constitution and Access to Information Act] would make such a confidentiality clause arbitrary, unfair, prejudicial and illegal.”  Para. 13.

The High Court directed the Ministry to release copies of the requested production sharing agreements to Greenwatch. Para. 15