KENYA: HIGH COURT DETERMINES THE RIGHT TO ACCESS TO INFORMATION FROM STATE BODIES AND THE ENFORCEMENT OF CONTRACTUAL NON-DISCLOSURE CLAUSES

By George Ndung'u,Terry Mwango,Cecil Kuyo Thursday, June 23, 2022
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The High Court has in a recent judgment determined the scope of the constitutional right to access to information under Article 35 (1) and the ability of parties to rely on contractual non-disclosure clauses in refusing to grant access to information sought by third parties.

The Petition

The brief facts are that the Petitioners wrote to the Secretaries of National Treasury & Planning and the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works (Respondents) requesting for the agreements entered between the government and third parties regarding the Standard Gauge Railway (SGR). The Respondents failed to comply with the Petitioners’ request, which led the Petitioners to file a petition at the High Court alleging that their request had not been adhered to and that the Respondents had failed to cite a valid exception or reason for their refusal to produce the documents. 

According to the Petitioners, the Respondents’ refusal to provide the documents was a violation of their constitutional rights under Article 35(1), which provides the right of access to information.

In response to the Petition, the Respondents argued that the disclosure sought, if permitted, would offend the Official Secrets Act and that the contractual documents contain non-disclosure clauses; that the disclosure would endanger state security; and that the information sought is privileged.

The Findings

In determining the petition, Mativo J determined that the provisions of the Official Secrets Act were subject to Article 35 of the Constitution and that the Respondents could not attempt to hide behind the provisions of the Official Secrets Act in violation of the Constitution. The court also held that the documents requested for were already public documents and that releasing the documents could not reasonably be expected to harm or disadvantage the parties in any way. Therefore, the non-disclosure clauses could not override the public interest in knowing the information contained in the documents.

In the end, the judge declared that the Respondents’ failure to provide the documents was a violation of the right to access to information and granted an order compelling the Respondents to forthwith provide, at the Respondents’ cost, information sought by the Petitioners.

Relevance

This decision reinforces the legal position that the right to access information held by the State is constitutionally guaranteed and can only be limited if the decision or law limiting the right passes the threshold set by Article 24 of the Constitution on the limitation of fundamental rights and freedoms.

However, for private entities and clients, this decision cements the position that the only limitations under section 6 of the Access to Information Act are reasonable and justifiable limitations on the right of access to information. These include instances where the disclosure is likely to involve the unwarranted invasion of the privacy of an individual other than the applicant or substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained.

The risk for clients is that non-disclosure and confidentiality clauses in contracts will not be strictly upheld by the court if the party requesting the information shows that the information is necessary for the exercise or protection of any right or fundamental freedom. The burden of establishing that the refusal of access to information is justified and that the non-disclosure clauses fall within the permissible limitations of the Access to Information Act rests on the state or any other party refusing access.