The Appeal is dismissed as harm from disclosure outweighs public interest if the private entity chooses the path of arbitration resulting in severe financial penalties for the country because of the confidentiality clauses in Share Purchase Agreement dated 14.11.2005, other related documents, agreements and communication.
Secretary, Privatization Commission is directed to create balance between protecting public interest and citizens’ right of access to information in matters of public importance and protecting legitimate commercial interests of private entities while signing contracts in the future.
This commission takes strong exception to the fact that the Respondent agreed to a wide-ranging confidentiality clause which covers “entire exchange of information between the Respondent and other related parties to the privatisation of KESC”.
The purpose of the confidentiality clause in contract is to protect legitimate commercial interests of the private entities and not shrouding in the cloak of secrecy entire range of documents which have nothing to do with the commercial interests of the private entities. Especially, after the insertion of Article 19-A through 18th Amendment in the constitution, federal public bodies are expected to ensure that only reasonable restrictions are imposed on citizens’ right of access to matters of public importance through the confidentiality clauses in the contracts.
The instant appeal demonstrates that the relevant civil servants have been protecting commercial interests of the private business at the cost of transparency, openness and citizens’ right of access to information in matters of public importance. As such, while negotiating these contracts with wide-ranging confidentiality clauses, the officers have not been exercising powers vested in them “reasonably, fairly, justly, and for the advancement of the purposes of the enactment” as required under Section24A of the General Clauses Act 1897.
Despite its strong reservation about this wide-ranging confidentiality clause, this commission is left with no option but to agree with reasons proffered by the Minister-in-charge that the disclosure of KESC privatisation agreement will tantamount to the breach of the contract in the presence of the confidentiality clause. As such, the disclosure of the agreement is likely to have grave legal and financial implication for the country if the private entity chooses the path of arbitration.
It is legal responsibility of officers of the federal government who negotiate contracts with private entities on the behalf of the federal government to protect public interest and citizens’ right of access to information in matters of public importance. As such, officers of the federal government should ensure that public interest and citizens’ right of access to information in matters of public interest is not compromised in negotiations with private entities and signing contracts with wide-ranging confidentiality clauses in the name of protecting commercial interests of these private entities. The officers of the federal government can and should create a balance between protecting public interest and citizens’ right of access to information in matters of public importance and protecting legitimate commercial interests of private entities while signing contracts.