Freedom of Information International Review: scope of bodies included

Annex

Scotland

History and Summary of FOI Law(s)

Freedom of Information in Scotland is governed principally by the Freedom of Information (Scotland) Act 2002.

How does the FOI Law determine which bodies are subject to the Act?

Section 3 of FOI(S)A defines a 'Scottish public authority' as any 'body', 'person' or 'holder of any office' which is listed in schedule 1^[91] or is designated by order under section 5(1)^[92] or is a publicly-owned company, as defined by section 6^[93].

There are thus three principal routes by which a body can discover whether they are subject to the Act.

First, the body can be listed in schedule 1 of the Act. This includes all bodies that were initially made subject to the Act and any bodies that have been subsequently designated by a Scottish Minister according to the requirements of Section 4(1) of the Act. Further, schedule 1 of the Act may be amended by other Acts of the Scottish Parliament. Bodies may also be removed from Schedule 1 by a Section 4(1) Order or by statutory amendment.

Second, bodies may be designated by a Scottish Minister according to the requirements in section 5 of the Act. Bodies that are designated in this manner are not included in schedule 1 of the Act. This is because such bodies tend not to be orthodox public authorities and are instead private or quasi-public bodies that are performing public functions. Section 5 states that Scottish Ministers may designate as a public authority persons that are not public bodies or holders of public office but appear to exercising functions of a public nature^[94] or have been contracted by a Scottish public authority to provide a service which is function of that public authority^[95]. Two such orders have been made; the Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2013, which extended coverage to arms-length external organisations that performed sporting, cultural, recreational and social functions on behalf of local authorities^[96] and the Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2016, which designated grant-aided schools, independent special schools, Scottish Health Innovations Ltd, those providing a 'secure accommodation service' to children and private prisons^[97]. Both of these Orders are interesting in that they do not produce a comprehensive list of the bodies being designated by the Order but instead describe which bodies will be subject to the Act's provisions. A further Order is currently being contemplated in which registered social landlords will be designated.

Finally, bodies that are 'publicly-owned companies' according to the conditions of Section 6 FOI(S)A are deemed to be 'public authorities' for the purposes of the Act. A company is a 'publicly-owned company' if it is wholly owned by either the Scottish Ministers^[98] by any other Scottish public authority listed in schedule 1^[99].

The Freedom of Information (Scotland) Act 2002 therefore makes use of both a list and a definition to determine which bodies are subject to the Act.

Which bodies are subject to the FOI law?

State Owned Enterprises?

Section 3(1)(b) of FOI(S)A states that a 'publicly-owned company, as defined by section 6' is a Scottish public authority for the purpose of the Act. Section 6 defines a publicly owned company as a company that is 'wholly owned' by either (a) the Scottish Ministers or (b) any other Scottish public authority listed in schedule 1, other than an authority so listed only in relation to information of a specified description.

State owned enterprises therefore are subject to FOI(S)A where they are 100% owned by either the Scottish Government or any other Scottish Public Authority subject to the Act.

Private entities that perform public functions?

Section 3(1)(a)(ii) of FOI(S)A states that a Scottish Minister may designate a person as a public authority under the section 5(1) of the Act. Section 5(1) provides for designation of persons that are (a) not currently and not capable of being added to schedule 1 of the Act and (b) not a public body or holder of a public office. Such persons can be designated if they (a) appear to exercise functions of a public nature or (b) are contracted to provide a service where provision of that service is a function of a Scottish public authority. Section 5(1) is thus designed to allow for the designation of private bodies that perform public functions. However, as only bodies that are designated under a Section 5(1) order are 'public authorities' for the purpose of the Act, many private bodies that provide public services may not be subject to the Act. Further, the Minister is required to designate such bodies only to the extent of their public functions.

As mentioned above, there have, thus far, been two section 5(1) Orders. The first, designated arms-length external organisations created by a local authority to provide recreational, sporting, cultural and social activities to the authority's inhabitants. The second, designated grant-aided schools, independent special schools, Scottish Health Innovations Ltd, those providing a 'secure accommodation service' and private prisons. For both orders, the bodies were included only to the extent of their public functions. For example, Scottish Health Innovations Ltd are required to comply with the Act only in respect of their function of 'promoting research and development within the National Health Service in Scotland.^[100]' A further order which designates registered social landlords is currently being prepared by the Government.

Although section 5(1) of FOI(S)A requires potentially designable bodies to have public functions, the Scottish Government has tended to define this broadly. In both its 2010^[101] and 2015^[102] consultations on extending the coverage of the Act, the Scottish Government adopted a factor based approach to determine whether a body can be described as having functions 'of a public nature'. It considered that a range of the stated factors could be considered to determine whether the functions were public. One of these factors is 'whether the public has lost rights to access information under the Act as a result of outsourcing how public services are delivered^[103].' This has been described as a 'loss of rights' approach^[104] and aims to ensure that the public's interest in receiving information is not compromised when the nature of provision changes.

Private entities that receive public funds?

FOI(S)A makes no mention of a body 'receiving public funds' as part of the criteria that leads to designation. However, according to section 5(1) of the Act, a Minister may designate a body if it has been contracted to provide public services. Thus, although public funds are important for designation, such funds must have been provided to perform a public function. For example, The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2013 designates bodies that, amongst other things, are 'financed wholly or in part' by local authorities in order to carry out certain functions.

However, the 2010 and 2015 consultation exercises mention 'the extent of public funding of the activity' as a factor that indicates that the body may have public functions and should be designated. Relatedly, 'the length and value of the contract[,]' should also be considered with the acknowledgment that designation of bodies with short term or low value contracts would be 'impractical.'

Thus, a private body receiving public funding is considered as designable by the Scottish Government but must receive such funds in order to provide a public service.

Private entities that are controlled by a public authority?

FOI(S)A makes no mention of 'control' as part of the criteria that leads to designation. However, Section 6, which relates to designated state-owned enterprises, means that all companies that are 100% owned by a relevant authority are subject to the Act.

In addition, in the aforementioned government consultations, one of the factors that favours designation is 'whether the body in question has activities that are enmeshed with a relevant Scottish public authority^[105]'.

Thus, the Government clearly considers bodies that are controlled by public authorities or have a close association with public service delivery may be capable of being designated under the Act.

Private entities that exercise administrative authority?

FOI(S)A makes no mention of the 'exercise of administrative authority' as part of the criteria that lead to designation.

However, if one considers some of the bodies listed in Schedule 1, for example the Scottish Law Commission, the Scottish Information Commissioner and the Crofting Commission it is clear that bodies that exercise administrative authority have been included as public authorities for the purpose of the Act.

Further, a number of the factors identified by the Scottish Government as capable of making a body subject to the Act indicate the Government considers the exercise of administrative authority as a legitimate basis for designation. Examples of such factors include, that a body 'exercises extensive or monopolistic powers which it otherwise would not have^[106]' and 'the body seeks to achieve some collective benefit for the public and is accepted by the public as being entitled to do so.^[107]' However, despite this criterion, professional or membership bodies, some that have been created by statute, such as the Law Society of Scotland, that vest administrative control are not currently subject to the Act.

Entities were established by legislation?

FOI(S)A makes no mention of a body being 'established by legislation' as part of the criteria that leads to designation.

However, if one considers some of the bodies listed in Schedule 1, for example, the Scottish Information Commissioner (FOI(S)A), the Judicial Appointments Board for Scotland (Judiciary and Courts (Scotland) Act 2008) and the Scottish Human Rights Commission (Scottish Commission for Human Rights (Scotland) Act 2006) it is clear that bodies that were established by legislation are often included as public authorities for the purpose of the Act.

Political Parties?

Political parties are not subject to FOI(S)A.

Monopolies or private entities with a dominant positon in the market?

FOI(S)A makes no mention of monopolies or private companies that have a dominant position in the market as part of the criteria that leads to designation. Further, schedule 1 of the Act does not appear to include monopolies, nor do any of the subsequent orders.

Private entities that hold information that is required for the exercise or protection of any rights?

FOI(S)A does not require private entities that hold information that is required for the exercise or protection of any other rights to provide information according to the provisions of the Act. This is unsurprising, since the right to information is not explicitly protected in the Scotland Act 1998 or the Human Rights Act 1998.

Brazil

History and Summary of FOI Law(s)

The right to information is protected by Article 5 XIV and XXXIII of the Brazilian Constitution 1998 (as amended)^[108]. The federal Government has also passed legislation that gives effect to the right, the Access to Public Information Law^[109]. Previously, there existed a number of disparate laws that intended to facilitate access to government records but none were as comprehensive as the Access to Public Information Law. The law applies at the federal, state, federal district and municipal level and encompasses all branches of the state.

How does the FOI law determine which bodies are subject to the Act?

Article 1 of the Access to Public Information Law states that the law applies to the Federal Government, the States, the Federal District and Municipalities. It clarifies this by stating that the law applies to the three branches of government^[110] as well as 'autonomous government agencies, public foundations, public companies, mixed-capital companies and other entities directly or indirectly controlled[,]^[111]' by the state. Such bodies are subject to all obligations under the Access to Public Information Act.

Further, Article 2 of the Act provides that '[t]he provisions of this Law are applicable, whenever possible, to non-profit entities which receive, in order to perform actions of public interest, public funds directly from the budget or through social subsidies, management or partnership agreements, contracts, adjustment agreements, or other instruments of the same kind.^[112]' However, such organisations are only required to comply with the Act to the extent of the 'received portion of public funds and its respective destination.^[113]'

The Brazilian Access to Public Information Act therefore assigns bodies using a broad definition. Brazilian bodies are therefore not explicitly designated; a body that wishes to determine whether it is subject to FOI, and which of the FOI obligations it is required to fulfil, must consider the definition and ask whether it qualifies.

The Brazilian Law requires bodies subject to the Act to appoint a Citizen Information Service Officer as a point of contact between the authority and the public.^[114] The Federal Government's access to information portal contains a list of such Officers^[115]. This may be used by the public to determine whether a body is subject to the Act.

Which bodies are subject to the FOI law?

State-Owned Enterprises?

Article 1, sub paragraph II of the Access to Public Information Act states that public companies and mixed-capital companies are fully subject to the law's publication requirements.

This implies that companies in which the state has 100% ownership but also companies that are also jointly owned by the Government and private investors are subject to the Act.

Brazilian law defines a mixed-capital company is 'an entity that is part of Indirect Administration, with legal personality under private law, whose creation is authorized by law, as an instrument of exploitation by the State^[116]'. This definition does not tell us the extent of Government ownership required to make a mixed-capital company but this has been interpreted as a majority stake^[117].

Electrobras, an electricity supplier that is 52% owned by the Brazilian Government is bound to comply with the legislation as is Petrobas, which is 64% owned^[118]. Recently privatised companies such as Embratel^[119], however, do not appear to be subject to the Act.

Private entities the perform public functions?

Article 2 of the Access to the Public Information Act state that it is applicable 'whenever possible, to non-profit entities which receive, in order to perform actions of public interest [emphasis added] public funds directly from budget or through social subsidies, management contract, partnership terms, covenants, adjustments, or other instruments of the same kind.'

Further, Article 2 (i) states that such bodies are required to publicise only to the extent of 'the received portion of public funds and its respective destination, without prejudice to the accountability to which they are legally bound.'

Private entities are therefore subject to the Acts provisions with a few important qualifications. First, it applies only to non-profit entities performing public functions. Second, 'actions of public interest' are defined in reference to public funding and not some independent notion of the public interest. Third, such bodies need not comply with all of the obligations under the Act, but merely those to which they have received public funds and for that purpose.

As the Brazilian law requires public authorities to pro-actively publish certain information, the exact duties of bodies under Article 2 (I) has caused confusion. However, this was clarified by Article 63 of the Brazilian Decree N° 7.724 16 May 2012 which set out the exact requirements of pro-active publication.

Private entities that receive public funds?

As mentioned above, Article 2 of the Brazilian law states that the provisions of the law are applicable to non-profit entities performing public functions 'which receive public funds directly from the budget or indirectly through social subsidies, management contract, partnership terms, covenants, agreements, adjustments, or other instruments of the same kind.'

Non-profit bodies receiving public funds are therefore subject to the Act's provisions. However, as mentioned above, the bodies are only required to provide information in respect of the activities to which they were provided funds and have lesser pro-active disclosure obligations than the bodies that fall within the definition in Article 1.

Private entities that are controlled by a public authority?

Article 1, subparagraph II of the Access to Public Information Act states that 'entities directly or indirectly controlled by the Federal Government, the States, the Federal District and the Municipalities' are required that comply with all of the obligations under the Act.

This is a relatively broad definition as it encompasses bodies both directly and indirectly controlled by public authorities.

Entities that exercise administrative authority?

The Brazilian law makes no mention of entities that exercise administrative authority as being required to comply with the Act.

Article 1, subparagraph II mentions 'autonomous government agencies', which may cover bodies that exercise administrative authority. However, as 'autonomous government agencies' has not been defined, this is not necessarily the case.

Entities that were established by legislation?

The Brazilian Law does not explicitly mention entities that were established by legislation as subject to the Act.

However, such bodies are likely to be included to the extent that they are owned, funded or controlled by other public authorities.

Political Parties?

Political parties are not subject to the Public Access to Information Act.

Monopolies or private entities with a dominant position in the market?

The Access to Public Information Act makes no mention of monopolies or private companies that have a dominant position in the market as part of the criteria that leads to designation.

Private entities that hold information that is required for the exercise or protection of any rights?

The Brazilian Act does not require private entities that hold information that is required for the exercise or protection any other rights to provide information according to the provisions of the Act.

Estonia

History and Summary of FOI Law(s)

Article 44 of the Estonian Constitution of 1992 guarantees the 'free access to information disseminated for public use'. This right of access to information is provided for and qualified in several statutes, including the State Secret Act 2001, the Protection of Personal Data Act 2003 and the Archive Act 1998. However, the principle statute that provides for the right to access information is the Public Information Act 2000^[120]. There have been a number of amendments to the Act since it initially coming in to force. The Act applies both to central and local government.

How does the FOI law determine which bodies are subject to the Act?

A body is subject to the provisions of the PIA if it is a 'holder of information'. Section 5 of the Act states that 1) state and local government agencies; 2) legal persons in public law; and 3) legal persons in private law and natural persons, if they satisfy the conditions in subsection (2) are holders of information for the purpose of the Act. According to subsection (2), private legal and natural persons have obligations as holders of information if they 'perform public duties pursuant to law, administrative legislation or contracts, including the provision of educational, health care, social or other public services'. Further the persons outlines in 3) are only holders of information with regard to information concerning the performance of their duties.

According to section 5(3) a body is also subject to the Act if it is deemed to be 'equal to holders of information'. Bodies that are equal to holders of information are 1) 'undertakings which have a dominant position in the market or special or exclusive rights or which are natural monopolies.' Such bodies are only required to comply 'with regard to information concerning the conditions and prices of the supply of goods and services and changes thereto'. 2) 'sole proprietors, non-profit associations, foundations and companies.' Such bodies are required to comply with the Act 'with regard to information concerning the use of funds allocated from the state or a local government budget for the performance of public duties or as support.^[121]'

The Estonian law therefore determines which bodies are subject to the law with reference to a definition. There can be seen to be three broad categories of body - all of which have different duties under the Act. First, are core public authorities and bodies established by legislation which are required to comply with all of the Act's obligations. Second, are bodies that are private in nature but perform public functions, which are subject to the Act with regard to those duties. Finally, are monopolies or dominant companies who only must provide information about the conditions and prices of their goods and services and private bodies that have been funded by the state or local government with regard to the funding or support.

Which bodies are subject to the FOI law?

State-Owned Enterprises?

State-owned enterprises are not explicitly designated in the Public Information Act.

However, it is possible that may be included on the basis that they are legal persons in public law^[122], if they perform a public function^[123], have a dominant position in the market or exclusive rights^[124] or have been allocated funds from a state or local government budget^[125]. Depending on which definition the state-owned enterprise satisfies, the duty of the body will vary.

Private entities that perform public functions?

According to s.5(1)3)(2) of the PIA, private bodies and persons are deemed to be holders of information if they 'perform public duties pursuant to law, administrative legislation or contracts, including the provision of educational, health care, social or other public services.'

It is therefore clear that bodies providing educational, health care and social service are subject to the Acts obligations. Further, the definition is intended to be expansive and provides for the inclusion of bodies providing other 'public services'. It is not immediately clear however what other services are regarded as public. Such bodies are only subject to the Act with regard to information concerning the performance of their public duties^[126].

Private entities that receive public funds?

S.5(3)2) of the PIA states that 'sole proprietors, non-profit associations, foundations and companies' that are allocated funds from the state or local authority for the performance of public duties or as support shall be deemed to be equal to holders of information. Further such entities are required to comply with the Act 'with regard to information concerning the use of [such] funds.'

Private entities that receive public funds are therefore required to comply with the Act subject to two qualifications. First, the body must be funded to either perform public duties or as 'support'. It is not clear what is meant by 'support' but the term could be read expansively to include most forms of public funding. Second, such bodies are only required to comply with the Act to the extent of the use of those funds.

Private entities that are controlled by a public authority?

Private entities that are controlled by a public authority are not explicitly mentioned in the PIA.

However, it is likely that such bodies are regarded as holders of information if they have been established by law^[127], perform a public function^[128] or have received funding from the state or a local authority for the performance of public duties or as support^[129].

Entities that exercise administrative authority?

Bodies that exercise administrative authority are not mentioned by the PIA as holders of information.

However, bodies that are legal persons in public law^[130] and bodies that perform public functions are deemed to be holders of information^[131]. Bodies that exercise administrative authority that satisfy such definitions will be subject to the Act. Depending on which definition that body satisfies, their duties under the Act will vary.

Entities that were established by legislation?

S.5(1)2) states that legal persons in public law are holders of information for the purposes of the Act. A legal person in public law is a legal person founded in the public interest.

One way to determine whether a legal person is founded in the public interest is that it was established by legislation. For example, Eesti Radio and Estonian Television both established by the Estonian Public Broadcasting Act^[132] are legal persons in public law^[133]. Legal persons in public law are subject to all of the information publication obligations required by the Act.

Political Parties?

Political parties are not subject to the PIA.

Monopolies or private entities with a dominant position in the market?

S.5(3)1) of the PIA provides that 'undertakings which have a dominant position in the market or special or exclusive rights or which are natural monopolies' are deemed as equal to holders of information 'with regard to information concerning the conditions and prices of the supply of goods and service and changes thereto'.

Monopolies and private entities with a dominant or exclusive position in the market are therefore required to comply with specific obligations under the Act. The inclusion of such bodies in the Act is uncommon. Estonia has privatised a vast amount of previously state owned assets since independence in 1991. The inclusion of such a definition is perhaps reflects this fact and ensures that individual's rights to access information are not lost when a previously public utility is privatised. Further, the purpose of designation appears to be to ensure that such bodies exercise transparency in the setting of prices where the lack of existence of competitors inhibits the individual's ability to opt for an alternative service.

Private entities that hold information that is required for the exercise or protection of any rights?

The PIA does not explicitly deem private entities that hold information that is required for the exercise or protection of any other rights to be holders of information. However, the relatively expansive definition in other areas makes it likely that in many circumstances entities that are capable of affecting the rights of others will already be subject to the Act.

India

History and Summary of FOI Law(s)

Article 19(1)(a) of the Indian Constitution protects the right 'to freedom of speech and expression'. The Indian Supreme Court has interpreted this, along with Article 21, which protects the right to life, to claim that there is implied protection for the 'right to know^[134]' in the Constitution. However, freedom of information in India is primarily regulated by the Right to Information Act 2005. The Act applies both at the federal and the state level.

How does the FOI law determine which bodies are subject to the Act?

The RTIA requires that a 'public authority' complies with the provisions of the Act. Section 2 of the Act, which defines the terms used in the legislation, outlines what is meant by a 'public authority'.

There are three broad categories of bodies defined as 'public authorities'. First are bodies established by or under the Constitution^[135]. Second, are bodies established by a law made by Parliament^[136], State Legislature or by order issued by the appropriate government (federal or state)^[137]. Finally the definition 'includes any --- (i) body owned, controlled or substantially financed; (ii) non-Government organisation substantially financed directly or indirectly by funds provided by the appropriate Government^[138]'.

The RTIA therefore makes exclusive use of a definition to determine which bodies are subject to the Act.. Where there is a dispute over whether or not a body is a 'public authority' for the purposes of the Act, either body may ask the Central Information Commission, the principal oversight body, to make a decision. If either party is unhappy with this decision, it may be challenged in an appropriate court. Thus, some of the terms used in Section 2 have been subject to further clarification and discussion in the courts. The RTIA also requires bodies to appoint a 'Public Information Officer', charged with the task of principally complying with the body's obligations under the Act^[139]. The CIC publishes a list of designated Central Public Information Officers on its website and therefore it is possible for citizens unsure of whether a body is subject to the Act to consult this list^[140].

Which bodies are subject to the FOI law?

State-Owned Enterprises?

According to s.2(h)(i) of the RTIA, state-owned enterprises are 'public authorities' and subject to the Acts obligations. The Act does not define what is meant by 'body owned' by the appropriate government. However, the Delhi High Court has established that a 'body owned' by an appropriate government is one in which the appropriate government has more than 50% of the total shares^[141].

In some ways, the need to define what is meant by a body owned by an appropriate government is made unnecessary due to the inclusion of bodies that are 'substantially financed' by an appropriate government, as this implies that bodies in which the state has less than a majority shareholding may still be deemed to be public authorities for the purpose of the Act. Indeed this was found to have been the case in Tamil Nadu Newsprint & Papers Ltd v State Information Commission^[142].

However, in Indubala Argawal v. National Commodity & Derivatives Exchange Ltd^[143], the Central Information Commissioner decided that the National Commodity and Derivative Exchange Ltd was not a 'public authority' for the purposes of the Act. Although 46% of the equity capital held by the company was held by a public authority, it was not held by an 'appropriate government' as required by section 2(h). Section 2(a) defines 'appropriate government' as either the central government or the state government. Thus bodies created or owned by 'public authorities' apart from federal or state governments are not subject to the Act.

Private entities that perform public functions?

The RTIA makes no mention of public functions when determining which bodies are subject to the Act. This is unusual, especially considering the otherwise broad definition of 'public authority' in the RTIA.

However, despite no mention of 'public functions' in the RTIA, a number of courts appear to have taken into account a body's functions when determining whether the body should be designated as a public authority. In Electronics and Computer Software Export Promotion Council v CIC and Navneet Kaur, the Delhi High Court determined that a 'trade facilitation organization' was a 'public authority' partly due to its public functions^[144]. Further, the Delhi High Court appeared to partly base its judgement designating the Indian Stock Exchange as a public authority on the fact that it had 'public functions^[145]'.

Thus, while public functions are not mentioned in the RTIA as part of the criteria for designation of public authorities, it is clear that some courts consider a body's public functions as a factor that tends towards designation.

Private entities that receive public funds?

Section 2(h)(i) of the RTIA designates bodies that are 'substantially financed' by an appropriate Government.

The RTIA does not define 'substantially financed' but it has been confirmed that it has the same meaning section 14 of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act 1971. Here, 'substantially financed' is defined as a 'grant or loan… not less than rupees twenty-five lahks [about £27000] and the amount of such grant or loan is not less than seventy-five percent of the total expenditure of that body or authority^[146]'.

Further, the Delhi High Court has included such benefits as share capital contribution, subsidies and land allotment as examples of financing^[147]. Courts have also included private schools, where teaching staff received their salary from government as public authorities under the Act^[148]. The Indian Olympic Association was also designated due to the fact, amongst other things, that the central government paid travel expenses and a large percentage of the living expenses of athletes. The Court in that case rejected a rigid definition of what 'substantially financed' means, arguing that it 'cannot be straight-jacketed into rigid formulae, of universal application. Of necessity, each case would have to be examined on its own facts^[149].'

Private entities that are controlled by a public authority?

According to s.2(h)(i) of the RTIA, bodies controlled by an appropriate Government are 'public authorities'.

'Control' is not defined by the Act but there has been some attempt at clarification in the courts. In The Hindu Urban Cooperative Bank Ltd v The State Information Commission^[150] , the court claimed that a number of factors, including whether the appropriate government has some degree of control of the body 'through the medium of Acts/Rules^[151]', would mean that it would 'squarely fall within the ambit and scope of the definition^[152]'. However, this concept of 'control' has been disputed elsewhere^[153].

Entities that exercise administrative authority?

The RTIA does not explicitly mention entities that exercise administrative authority as 'public authorities'. However, such bodies may be included if they receive funding from federal or state government.

Entities that were established by legislation?

Sections 2(h)(a)-(d) cover bodies that have been created either by the constitution, the federal legislature, a state legislature or by an order of an appropriate government. Entities that are established by legislation are clearly therefore subject to the Act.

This initially led to some confusion, as some bodies that were created according to the terms of a statute, for example a cooperative established under the terms of the Multi-State Co-operative Societies Act 2002, were claimed to be public authorities under the Act. However, the Karnatka High court distinguished bodies that are created by legislation, which are subject to the Act and bodies that are established according to the terms of legislation, which are not subject to the Act (at least on the basis of being established by legislation)^[154].

Political Parties?

The RTIA makes no explicit mention of political parties as 'public authorities' for the purposes of the Act.

However, in 2013 the Central Information Commission issued an order that designated six major political parties as public authorities^[155]. This designation was highly controversial and although it has not been appealed, the designated parties have refused to comply with the ruling^[156]. Several individuals have challenged the parties' failure to comply at the Supreme Court but no decision has been made at the time of writing^[157].

Monopolies or private entities with a dominant position in the market?

The RTIA does not include monopolies or private entities with a dominant positon in the market as 'public authorities' under the Act.

However, recently privatised companies have been deemed by courts to be a 'public authority' on the basis that they were substantially financed by the government on the basis that the government had provided them with assets^[158].

Private entities that hold information that is required for the exercise or protection of any rights?

The RTIA does not require private entities that hold information that is required for the exercise or protection of rights to comply with the Act, unless such bodies have been designated for another purpose.

Ireland

History and Summary of FOI Law(s)

The right to access information is not constitutionally guaranteed in Ireland. Access to information is principally governed by the Freedom of Information Act 2014. The 2014 Act replaced the 1997 Act^[159], which had been significantly amended in 2003^[160]. The Freedom of Information Act applies both to central government and to local authorities.

How does the FOI law determine which bodies are subject to the Act?

Sections 6 and 7 of the FOIA govern which bodies are subject to the Act. If an entity is subject to Act it is referred to as a 'public body'.

Section 6 is divided in three parts. Subsection (1) covers bodies that are required to fully comply with the Act's obligation. Subsection (2) covers bodies, some of which may only comply with specific obligations. Finally, Subsection (3) explicitly excludes certain bodies.

Section 6(1) includes the following bodies: (a) a Department of State; (b) an entity established by or under any enactment (other than Companies Acts); (c) any other entity established (other than under the Companies Acts) or appointed by the Government or a Government Minister, including those established by a Minister established under any scheme; (d) a company (within the meaning of the Companies Acts) in which a majority of shares are held by or behalf a Government Minister; (e) a subsidiary of the entities in (d); (f) an entity that is directly or indirectly controlled by an entity described in (b), (c), (d) or (e); (g) a higher education institution that receives public funding and (h) any entity that was a public body within the meaning of the FOIA 1997 unless it has been specifically excluded by the 2014 Act.

Section 6(2) covers any entity specified in Part of Schedule 1 of the Act, as well as any of their subsidiaries and other entities that they directly or indirectly control. Part 1 of Schedule 1 includes bodies that would traditionally fall within the definitions in Section 6(1) but for which, for whatever reason, it has been decided that they should not be fully subject to the Act's obligations.

Section 6(3) explicitly rules out bodies listed in Part 2 of Schedule 1 as well as their subsidiaries and entities directly or indirectly controlled by them. Part 2 of Schedule 1 lists bodies that would fall within the definitions in Section 6(1) but for whom, for whatever reason, it has been decided that they should be excluded from the Act.

Section 7 gives the power to the Minister to designate other bodies by order. Designation must come only after consultation with the Commissioner, other Ministers of the Government the Minister considers appropriate and a Committee of the House of the Oireachtas the Minister considers appropriate. According to 7(8) the draft order must be laid before and approved by the House of the Oireachtas. When considering designation the Minister should take into account the need to ensure the oversight of entities referred to in 7(6) and the need for entities to adhere to the principles of transparency and accountability in government and public affairs in respect of their relevant activities. Section 7(4) gives the power to require the entity only complies with the Act with respect to prescribed functions as well as the power to specifically exclude certain functions of a designated body from the Act's obligations. Section 7(6) lists the type of body that the Minister may prescribe including (a) (i) companies in pursuance of powers conferred by or under another law (ii) any other entity, whether financed wholly or partly, or directly or indirectly by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or behalf of a Minister of the Government; (b) any other entity with public functions but only in respect of those functions; (c) a subsidiary or an entity directly or indirectly controlled by an entity referred to in 7(6); and (d) an entity (being a body corporate) that directly or indirectly controls any entity referred to in 7(6).

Ireland thus uses a combination of lists and definition to determine which bodies are subject to FOIA. This stands in contrast to the earlier FOIA law that exclusively used lists. The Irish law is comparatively detailed and is unique in that allows for the specific exclusion of bodies as well as designation. Some have questioned the need for such a complex system of designation arguing that if the exemptions in the Irish law were more watertight then there would be no need to specifically exclude certain functions of otherwise public bodies^[161].

Which bodies are subject to the FOI law?

State-Owned Enterprises?

Section 6(1)(d) of the FOIA states that a company, the majority of the shares in which are held by or behalf of a Minister of the Government shall be a public body for the purpose of the Act. Further, section 6(1)(e) includes subsidiaries of state-owned companies. State-owned enterprises and their subsidiaries are therefore subject to the FOIA and must usually comply with all of its obligations.

However, part 1 of Schedule 1 of the Act, contains details of certain companies that have had their duties to comply with Act restricted. EirGird Plc, for example, is only required to comply with the Act insofar as 'it relates to records held by it relating to its functions under its transmission system operating licence granted under section 14(1)(e) of the Electricity Regulation Act 1999'.

Further, a number of companies that fall within the definition of Section 6(1)(d) have been specifically exempted from the Act's obligations in part 2 of Schedule 1. Examples include An Post (a state-owned postal services provider), Bus Éireann and Dublin Airport Authority plc.

The number of state-owned enterprises that have been exempted from the Act is relatively extensive and therefore, while such bodies are included within the Act's definition of 'public body' this does not necessarily mean that many are subject to the Act's obligations.

Private entities that perform public functions?

Section 6(1) of the FOIA does not designate private entities that perform public functions. However, section 7(6)(a) allows a Minister to designate by order a company that has powers conferred by or under another enactment'. Public function is therefore defined in relation to statutory powers/requirements. In addition, section 7(6)(b) allows ministers to designate by order 'any other entity on which functions in relation to the general public or a class of the general public stand conferred by any enactment (but only in respect of those functions).

Private bodies with public functions are thus not automatically designated under the Act but may be added by a Ministerial order. Few such bodies have been designated by Irish Ministers thus far.

Private entities that receive public funds?

Section 6(1) does not designate private entities as public funds as public bodies subject to the FOIA, apart from higher education institutions in receipt of public funding, which are designated by Section 6(1)(g). Higher education institutions are thus normally required to comply with all of the obligations under the Act.

However, Section 7(6)(a)(ii) allows Ministers to designate by order 'any other entity, whether financed wholly or partly, or directly or indirectly, by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government.' Ministers are therefore capable of designating bodies that are in receipt of public funding as public bodies for the purpose of the FOIA.

Private entities that are controlled by a public authority?

S.6(1)(f) of the FOIA includes entities that are directly or indirectly controlled by a public body. Such bodies usually are required to fully comply with the Act's obligations.

However, such bodies' obligations may be limited in part 1 of Schedule 1 of the Act or the organisation may be completely excluded if they are included in part 2 of Schedule 1 of the Act.

Entities that exercise administrative authority?

There is no explicit mention of entities that exercise administrative authority as public bodies for the purpose of the FOIA.

However, such bodies may be included in a number of the other definitions. Further, such institutions are certainly capable of being included within the Act, Section 7(6)(b) allows a Minister to designate bodies that 'functions in relation to the general public or a class of the general public'. Interpreted broadly this could include bodies that exercise administrative authority.

Entities that were established by legislation?

Section 6(1)(b) designates 'any entity established by or under any enactment (other than the Companies Acts). All entities established by or under legislation apart from companies are public bodies for the purpose of the FOIA and subject to all obligations.

Again however, certain companies may be only partially subject or completely excluded according to Section 6(2) and Section 6(3).

For example, the Insolvency Service of Ireland, established by the Personal Insolvency Act 2012, only needs to provide access to 'records concerning the general administration of [it's] functions^[162]'. And the National Lottery Company, established by the National Lottery Act 1986, is completely exempt^[163].

Political Parties?

Political parties are not public bodies for the purpose of the FOIA.

Monopolies or private entities with a dominant position in the market?

Monopolies or private entities with a dominant position in the market cannot be designated under the FOIA. However, it is possible for such bodies to be designated on the basis they are state-owned or have public functions.

Private entities that hold information that is required for the exercise or protection of any rights?

Private entities that hold information that is required for the exercise or protection of any rights cannot be designated under the FOIA, unless the bodies can fit within another of the definitions.

Kenya

History and Summary of FOI Law(s)

Article 35 of the Constitution^[164] guarantees citizens the right of access to two classes of information; 'a) information held by the state; and b) information held by another person and required for the exercise or protection of any right or fundamental freedom.' The constitutional right is further expounded in the Access to Information Act, which came into force on the 21^st September 2016^[165]. The Act applies to both central and local government.

How does the FOI law determine which bodies are subject to the Act?

Section 4 of the AIA restates the constitutional guarantee that every citizen has the right of access to information held by the state^[166] and any other person where that information is required for the exercise or protection of any right or fundamental freedom^[167]. The Act refers to the obligations of 'public entities' and 'private bodies' throughout the Act. The obligations of both appear to be different in terms of when private bodies have to disclose information and public entities have greater responsibilities in terms of the proactive release of information^[168]. However, the duty to appoint an 'Information Access Officer', responsible for the body's duties under the Act, is requited of both public entities and private bodies ^[169].

Section 2 of the Act defines a 'public entity as a) any public office as defined by Article 260 of the Constitution; or b) any entity performing a function within a commission, office, agency or other body established under the Constitution'. Article 260 of the Constitution defines 'public office' as 'an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable from the Consolidated Fund or directly out of money provided by Parliament'.

Section 2 of the Act defines a "private body" as 'any private entity or non-state actor that a) receives public resources and benefits, utilizes public funds, engages in public functions provides public services, has exclusive contracts to exploit natural resources (with regard to said funds, functions, services or resources);' or '(b) is in possession of information which is of significant public interest due to its relation to the protection of human rights, the environment or public health and safety, or to exposure of corruption or illegal actions or where the release of the information may assist in exercising or protecting any right'. Private entities that fail to comply with their duties may be barred from entering into contracts with the Government^[170]. The obligations of private bodies defined above are unclear. It appears that the drafters envisioned that some private bodies, namely those in section 2(a) and (b), should be treated like public bodies but their obligations should be limited to the areas that led to their designation. It appears that such private bodies therefore have to provide such information even if it is not required for the protection or exercise of another right or fundamental freedom.

Further, private bodies that do not fall within the definition in section 2(a) and (b) are still required to comply with the Act but only to the extent that they hold information required for the exercise or protection of any other right or fundamental freedom.

The AIA therefore determines which bodies are subject to the Act with a broad definition. It appears there are three main bodies that are required to comply with the legislation. First, are public entities that must fully comply with the Act. Second, are private bodies that are either publicly funded, performing public functions, providing public services or have exclusive contracts to exploit natural resources or otherwise hold information which is of significant public interest who are subject to the Act in relation to such areas. Finally are private bodies that only have to provide information if it is required for the exercise or protection of any other right or fundamental freedom. It should be stressed that this interpretation of the law might be incorrect. The Katiba Institute, a Kenyan NGO dedicated to the promotion and study of the Kenyan Consitution, acknowledges that the legislation is unclear^[171]. It may alternatively be the case that all private bodies including those defined in section 2(a) and (b) are only subject to the Act if they hold information that is required for the exercise or protection of another right or fundamental freedom^[172].

Which bodies are subject to the FOI law?

State-Owned Enterprises?

Section 2 of AIA states that any public office, as defined by Article 260 of the Constitution, is a public entity for the purpose of the Act. Article 260 of the Constitution defines 'public office' as 'an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable from the Consolidated Fund or directly out of money provided by Parliament'.

It is not immediately clear whether state-owned enterprises fall within this definition. However, in Nairobi Law Monthly Ltd v KENGEN, the High Court of Nairobi found that, KENGEN, an electric power generation company that was 70% owned by the state was a public entity for the purpose of Article 35(a) of the Kenyan Constitution^[173]. Although this case was decided before the AIA came into force, the distinction between public and private body appears to be the same under the Act. This suggests that it remains the case that state-owned enterprise are public entities for the purpose of the Act and thus fully required to comply with its obligations.

Private entities that perform public functions?

Private entities that perform functions are clearly fall within the definition of 'private body' in section 2(a) of the Act. Such bodies are required to comply with the Act in respect of their public functions and in the provision of any public services.

Private entities that receive public funds?

Section 2(a) of the AIA prescribes bodies that 'receive public resources and benefits' or 'utilize public funds'. Private entities that receive public funds are therefore required to comply with the Act.

Further, the designation of bodies that receive public funds is not dependant on such funds being for the provision of public services, any form of public funding is sufficient. However private bodies that receive public resources and benefits or utilize public funds are only subject to the Act with regard to such resources or funds.

Private entities that are controlled by a public authority?

Section 2(a) of the AIA states that a 'public entity' is b) any entity performing a function within a commission, office, agency or other body established under the Constitution'. It is likely that this includes arms-length bodies set up by public institutions to perform public functions. If so, bodies controlled by a public authority will be subject to the obligations of a 'public entity', although this is not definitely the case.

If they are not deemed to a be a 'public entity', it is likely that private bodies that are controlled by a public authority will fall within the definition in section 2(a) AIA, According to this section, a private body is any 'private entity or non-state actor that—(a) [r]eceives public resources and benefits, utilizes public funds, engages in public functions, provides public services or has exclusive contracts to exploit natural resources'. Such bodies are required to provide information with regard to their funds, functions, service or resources, whichever is appropriate.

Entities that exercise administrative authority?

Again, the AIA makes no explicit mention of bodies that exercise administrative authority as entities that are subject to the Act.

However, it could definitely by argued that such bodies could be considered to fall within the 'private body' that 'engages in public functions' or 'provides public services' limbs of section 2(a) of the Act. If this was the case, such bodies would be subject to the Act only in respect of such public functions or services.

Entities that were established by legislation?

It is very likely that bodies established by legislation, especially those funded by the Parliament of Kenya, fall within the definition of a 'public office' in Article 260 of the Constitution of Kenya. As such, bodies established by legislation are deemed to be 'public entities' and are required to comply fully with the Act.

Political Parties?

Political parties are not subject to the AIA.

Monopolies or private entities with a dominant position in the market?

The definition of private bodies in Section 2(a) of the AIA includes any private entity or non-state actor that 'has exclusive contracts to exploit natural resources'. This implies that private bodies with a dominant or privileged position in the exploitation of natural resources are subject to the Act. Such bodies are only required to comply with requests in relation to resources that they are in a privileged position to exploit.

Private entities that hold information that is required for the exercise or protection of any rights?

Both Article 35 of the Constitution of Kenya and section 4 of the AIA state that citizens are entitled to information that is held by 'another person where that information is required for the exercise of any right or fundamental freedom.'

In order to access such information, the person making the request must prove both that the information is held by the private entity and that the information is required for the exercise or protection of another right^[174]. Placing this burden of proof on the requester makes this right difficult to realise in practice, as it is extremely difficult for an individual to prove that information is required in the exercise of a right if they do not have access to that information.

In Nairobi Law Monthly Ltd v KENGEN, which pre-dates the AIA, the High Court of Nairobi found that KENGEN, which was 70% owned by the Kenyan Government was a state body, and was thus fully obliged to comply with the right to provide information^[175]. However, the court went on to consider whether KENGEN would have had to have provided the information to the applicant, a Kenyan Newspaper if it was a private body under Article 35(1)(b). The Newspaper had alleged that Articles 33 and 34 of the Constitution, which protect the right to freedom of expression and of the media respectively, entitled them to seek information that they deemed to be in the public interest on the basis of Article 35(1)(b). However the court argued that this was not the case. It would be incorrect to assume that Article 35(1)(b) required 'a positive obligation on everyone to give it [the media company] whatever information it sought in order to enable it to publish stories and information.^[176]'

Mexico

History and Summary of FOI Law(s)

Article 6 of the Political Constitution of the Mexican United States 1917 guarantees the right to information. This protection was first included when the constitution was amended in 2007 and was further updated in 2015. Freedom of Information in Mexico is also governed by the General Act of Transparency and Access to Public Information 2015 (General Transparency Law). The General Transparency Law replaced the Federal Access to Information Law which was first passed in 2002^[177]. Before the General Transparency Law came into force, Mexican states were required to adopt their own access to information laws. However, the General Transparency Law applies to all levels of government. All states have retained their own laws however, which have been updated to comply with the General Transparency Law.

How does the FOI law determine which bodies are subject to the Act?

Unlike other constitutional provisions examined, Article 6 of the Mexican Constitution sets out the requirements for protections in a detailed manner. According to Article 6(A)(I), '[a]ll information in custody of any authority, entity or organ of the Executive, Legislative and Judicial powers, autonomous organisms, political parties, public funds or any person or group, such as unions, entitled with public funds or that can exercise authority at the federal level is public'. Further, '[t]he obligated subjects must record every activity that derives from their authority, competence or function'. Article 6 therefore includes a broad definition of bodies that are required to facilitate the right to information including creating an obligation for the recording of activities relating to the body's authority, competence or function.

The General Transparency Law further clarifies the bodies required to comply with the right to information and their obligations.

Article 23 of the Act states that the bodies that are required to ensure effective access to information are 'any authority, entity, body or agency of the Legislative, Executive and Judicial branches, autonomous bodies, political parties, trusts and public funds, as well as any individual, legal entity or union who receives or use public resources or performs acts of authority of the Federation, the States and the municipalities'.

There are three broad categories of bodies subject to General Transparency Law and each have different obligations.

First are those defined in the first part of Article 23 including the Legislature, Executive and the Judiciary and their related entities, autonomous bodies, political parties, trusts and public funds. Such bodies are known as 'regulated entities' and are required to fully comply with the Act's obligations for example those set out in Article 24.

Second are individuals, legal entities and trade unions that receive or use public resources or perform functions that are within the authority of the state. Article 81 of the General Transparency Law requires that 'Guarantor Agencies', responsible for the supervision of the Act, shall determine where such bodies 'shall comply with obligations of transparency and access to information'. This can be done either directly or indirectly through the regulated entities. In order for the Guarantor Agencies to determine which bodies should comply with the Act, the regulated entities are required to send a 'list of individuals or legal entities to which, for any reason, they allocated public funds or, in the terms established by the applicable provisions, exercise acts of authority^[178].' When considering whether the body should be subject to the Act, 'the Guarantor Agencies will take into account if a governmental function is performed, the level of public funding, the level of regulation and government involvement, and whether the government participated in its creation.^[179]' Article 82 states that Guarantor Agencies, after they have received relevant information for the bodies in question, shall determine the extent of that bodies transparency obligations.

Finally, Article 83 of the Act places additional specific obligations on 'regulated entities' in the energy sector. Such obligations are numerous but include 'information relating to contracts, allotments, permits, partnerships, corporations and other acts that the State subscribes or grants'.

The Mexican freedom of information laws designate bodies using a broad definition. The provisions of the Act are extremely detailed an impose on bodies different obligations depending on their nature. The Act gives guarantor agencies the obligation and power to designate private bodies subject to certain criteria. The Instituto Nacional de Transparencia, the body tasked with overall oversight of the Act, publishes a table on its website that outlines the bodies that have been designated and the obligations they are required to fulfil^[180].

Which bodies are subject to the FOI law?

State-Owned Enterprises?

Article 23 of the General Act of Transparency requires that 'any authority, entity, body or agency of the… Executive branches' as well as 'trusts and public funds' are regulated entities and required to comply fully with the Act's obligations. It is likely that most state-owned enterprises will be considered to be an entity of the executive branch.

In addition, Article 26 states that trusts and public funds are considered to be government-owned entities and are therefore required to comply with the Act on their own. That trusts and public funds are considered to be government owned entities and therefore 'regulated entities' confirms that government owned entities are also subject to the Act.

Private entities that perform public functions?

The second part of Article 23 states that bodies that 'perform acts of authority of the Federation, the States and the municipalities' are subject to the Act. As mentioned above, Article 81 states that it is the responsibility of 'Guarantor Agencies' to determine which bodies are subject to Act and to determine what their obligations are. The criteria that the Guarantor Agency should take into account includes whether ' a governmental function is performed' as well as 'whether the government participated in its creation'. The latter factor appears open the possibility of privatised former state entities being designated under the Act.

Thus private entities that perform public functions are capable of being designated under the Act. The extent to which such bodies are assigned depends on the relevant Guarantor Agency but there Act is clear that such bodies should be subject the Act's requirements at least in relation to their public functions.

Private entities that receive public funds?

The second part of Article 23 of the Act provides that any person or body that 'receives or uses public resources' are required to comply with obligations under the Act. However designation is subject to the decision of the Guarantor Agency, who after receiving a list from 'regulated entities' that outlines individuals or entities that have been allocated public funds, must take into account the level of public funding when deciding whether the body should be made subject to the Act^[181]. Private entities that receive public funds do not necessarily have to have received such funds in order to perform public functions.

Private entities that are controlled by a public authority?

The General Act of Transparency does not mention entities that are controlled by a public authority as required to fulfil the Act's obligations.

However, such bodies could fall within the second part of Article 23 as a body that 'receives or uses public resources' or performs public acts. Indeed, that Guarantor Agencies are required by Article 81 to take into account 'the level of regulation and government involvement', when determining whether to assign the body obligations under the Act, confirms that private entities that are controlled by a public authority are capable of being designated.

Such designation is not automatic and depends on the opinion of the Guarantor Agency but the fact that 'designated entities' are required to make Guarantor Agencies aware of such bodies^[182] and the criteria for designation such bodies that are subject to a lot of control from designated entities should be included, suggests that most entities controlled by a public authority will be subject to some of the Act's obligations.

Entities that exercise administrative authority?

Article 23 of the Act assigns 'autonomous bodies' as 'regulated entities' for the purpose of the Act. This would seem to cover bodies that do not fall within the traditional three branches of the state but nonetheless assume some public powers and functions. Thus it is likely that entities that exercise administrative authority are fully subject to the Act's obligations.

Entities that were established by legislation?

Article 23 of the General Transparency Law states that 'any authority, entity, body or agency of the Legislative... branch' as well as 'autonomous bodies' are regulated entities. A body established by legislation is likely to be a legislative entity or body or, alternatively, if not considered to have legislative functions, an autonomous body. Such bodies are thus 'regulated entities' required to comply with all of the Acts obligations.

Political Parties?

Article 23 of the Act states that political parties are regulated entities. Political parties are therefore fully subject to the Act.

Monopolies or private entities with a dominant position in the market?

Monopolies or private entities are not subject to the Act unless they meet the criteria in the second part of Article 23.

Private entities that hold information that is required for the exercise or protection of any rights?

Private entities that hold information that is required for the exercise or protection of any rights are not subject to the Act unless they meet the criteria in the second part of Article 23.

The Netherlands

Note: The definition of public bodies in the Dutch law is very general. The specific bodies subject to the Act tend to be clarified in the Explanatory Memorandum or in individual cases. Neither the Explanatory Memorandum or individual cases could be found. Much of the information on the Netherlands therefore comes from secondary material. Readers should be aware of this fact when considering the position of bodies in the Netherlands.

History and Summary of FOI Law(s)

Article 110 of the Constitution of the Kingdom of the Netherlands establishes 'the right of public access to information in accordance with rules to be prescribed by an Act of Parliament^[183]'. However, this is not considered to be a judicially enforceable right to information. Freedom of Information in the Netherlands is governed by Public Access Act 1991^[184], or the WOB as it is better known. The 1991 Act replaced a previous version, which was first enacted in 1978. There have been a number of attempts^[185] to update or replace the WOB but so far these attempts have not come into fruition. The WOB applies to central government as well as to provincial and municipal authorities.

How does the FOI law determine which bodies are subject to the Act?

Section 1a of the WOB states that the Act will apply to the following administrative authorities; Government Ministers^[186], provincial and municipal governments^[187], water boards^[188], regulatory industrial organisations^[189] and bodies whose activities are subject to the responsibility of the previous bodies mentioned^[190], except those excluded by order in council^[191].

According to the explanatory memorandum of the Act, Dutch jurisprudence and disclosure practice not all of these bodies are subject to the same obligations under the Act^[192]. There are three broad categories of obligations under the Act.

First, are bodies that must fully comply with the Act's obligations. This includes all public bodies and private bodies that are owned or co-owned by the government^[193].

Second are bodies that are only required to provide information that is related to their public functions. This includes bodies that fulfil functions required by law and companies that are contracted to provide public services, who must disclose all details related to that contract and the services provided^[194].

Third are private bodies in which the government owns shares and private bodes that operate in industries where they compete with public bodies. Here, agencies that have access to the records of such companies must provide certain information on request^[195].

The Dutch law therefore designates bodies with a definition. However, the statutory definition is relatively imprecise and reference to the explanatory memorandum and case law is required to get a sense of which bodies are subject to Act and to what degree. The case law and explanatory memorandum could not be located and thus any information found comes from secondary material.

Which bodies are subject to the FOI law?

State-Owned Enterprises?

Section 1a(1)(c) of the WOB states that bodies whose activities are subject to the responsibility of the central or state government are required to comply fully with the Act's obligations. This has been interpreted to included bodies that are owned or co-owned by the government^[196].

Private entities that perform public functions?

Private bodies that perform public functions and private bodies that are contracted to perform public functions are both subject to the Act^[197]. However, the bodies are only required to release information relating to those public functions.

Private entities that receive public funds?

Entities that receive public funds are not mentioned in the WOB.

However, bodies that are contracted to provide public services are included^[198]. Thus bodies that receive public funds to perform public services are subject to the Act in relation to their contract and the services.

Private entities that are controlled by a public authority?

Section 1a(1)(c) of the WOB states that bodies whose activities are subject to the responsibility of the central or state government are required to comply with the Act.

Whilst it is not completely clear, if 'subject to the responsibility' is seen to be equal to 'controlled by' then such bodies will be fully subject to the Act.

Entities that exercise administrative authority?

Section 1a(1)(b) of the WOB states that 'regulatory industrial organisations' are subject to the Act. 'Regulatory' implies that the body exercises some form of administrative authority.

Bodies that exercise administrative authority may also be included within the definition in Section 1(a)(1)(c).

If such bodies are included in such definitions, it appears they are required to fully comply with the Act's obligations.

Entities that were established by legislation?

There is no mention of entities that were established by legislation in the WOB.

However it is possible they would be subject to the Act if, as is presumed due to their establishment by legislation, that they fulfil some public function, then they may be subject to the Act on that basis.

Political Parties?

Political parties are not required to comply with the WOB.

Monopolies or private entities with a dominant position in the market?

Interestingly, under the Dutch regime, private companies that compete with state-owned companies have to comply with a similar degree of transparency^[199]. However, requesters may not ask such firms to provide the information directly. Instead, requesters must contact an agency with access to the information, which has a responsibility to comply with the obligations^[200]. Further, if a state company is privatised and there remains no government-owned entities within the particular market, then those companies' records are no longer subject to publication^[201].

Private entities that hold information that is required for the exercise or protection of any rights?

Private entities that hold information that is required for the exercise or protection of any rights are not required to provide information under the WOB.

New Zealand

History and Summary of FOI Law(s)

Section 114 of the New Zealand Bill of Rights Act 1990 acknowledges the 'right to seek and receive information.' However, freedom of information in New Zealand is principally governed by the Official Information Act 1982, which was most recently reformed in 2003. The OIA only applies to central government. Local authorities are governed by the Local Government Official Information and Meetings Act 1987, which contains broadly similar obligations to the OIA.

How does the FOI law determine which bodies are subject to the Act?

'Determining whether an agency is subject to the Acts is[,]' according to a 2012 report from the New Zealand Law Commission, 'not a simple question.^[202]'

The OIA principally designates bodies by listing them. Section 2 of the Act states that an 'Organisation' means either '[a]n organisation named in Part 2 of Schedule 1 of the Ombudsmen Act 1975 (other than the Parliamentary Service or mortality review committees)^[203];' or 'an organisation named in Schedule 1 of this Act^[204]'.

Further, a 'State enterprise' is defined as 'an organisation that is a State enterprise within the meaning of section 2 of the State-Owned Enterprises Act 1986 and that is named in Schedule 1 of this Act;^[205]' or 'an organisation that was a State enterprise within the meaning of schedule 2 of the State-Owned Enterprises Act 1986 but which continues to be named in Schedule 1 of this Act.^[206]' The Act also covers companies related to a State enterprise if 'alone or together with any other State enterprise, directly or indirectly owns, or controls the exercise of all voting rights attaching to the issued shares of the company^[207].'

The Act also covers 'information… held by an unincorporated body (being a board, council, committee, subcommittee, or body, but not being a mortality review committee)^[208]' which is established 'for the purpose of assisting or advising, or performing functions connected with^[209]', a department, Minister or organisation and is so established in accordance with legislation or by a department, Minster or organisation^[210]. The information of such bodies is deemed to be information held by either the department, organisation or Minister, (whichever is appropriate)^[211].

Finally, the Act covers information held by 'an independent contractor engaged by' any department, Minister or organisation^[212]. Such information only extends to the information on the entities capacity as a contractor and should be divulged by the relevant department, Minister or organisation and not the entity itself^[213].

The OIA therefore designates bodies using numerous lists and definitions. Several Acts need to be consulted before a person can be sure of whether a body is covered. The New Zealand Law Commission claimed that is 'not very satisfactory', and that the complexity of the Act is bad for public use^[214].

Which bodies are subject to the FOI law?

State-Owned Enterprises?

Section 2 of the Act states that bodies that are State enterprises within the meaning of section 2 of the State-Owned Enterprises Act 1986 and named in Schedule 1 of the OIA, as well as those that were subject to the above definition and are still included in Schedule 1 are subject to the Act.

According to the State-Owned Enterprises Act 1986, state enterprises are defined as bodies listed in Schedule 1 of the Act^[215]. State-owned enterprises are therefore subject to all of the Act's obligations if they are listed in Schedule 1 of both the OIA and the State-Owned Enterprises Act.

Alternatively, bodies that are no longer listed in Schedule 1 of the State-Owned Enterprises Act, either because they have been fully or partially privatised, but remain in Schedule 1 of the OIA are subject the Act's obligations.

State owned enterprises subject to the Act include Solid Energy New Zealand Limited, a state-owned coal company, Kordia Group Limited, which are government owned broadcasters and New Zealand Post Limited^[216]. Further, Schedule 1 includes 'Airport companies' as defined in section 2 of the Airport Authorities Act 1966 in which more than 50% of the shares are owned by a the Crown, a local authority or a combination of the both. However, a number of bodies that were previously subject to the Act, such as Genesis Energy, Mighty River Power and Meridan Energy were removed, when they were partially privatised in accordance with the Public Finance (Mixed Ownership Model) Amendment Act 2012. Further, Air New Zealand, which was privatised and removed from Schedule 1 before the Government bought back a 74% stake, was not re-admitted to the Schedule 1^[217].

Private entities that perform public functions?

Section 2(5) of the OIA states that any information held by 'an independent contractor' engaged by a Minister, department or organisation is subject to the Act's obligations. However, information need only be disclosed if it is in relation to the contract and the request must be made to the contracting authority and not the contractor.

It is assumed that the work Ministers, departments and organisations contract out is work of a public nature. Therefore private entities that perform public functions are subject to the Act but only indirectly and only with regard to the services they're contracted to provide.

Private entities that receive public funds?

Section 2(5) of the OIA states that any information held by 'an independent contractor' engaged by a Minister, department or organisation is subject to the Act's obligations. However, information need only be disclosed if it is in relation to the contract and the request must be made to the contracting authority and not the contractor.

Private entities that receive public funds to carry out contracts are therefore subject to the OIA but only indirectly and only in relation to those functions.

Private entities that are controlled by a public authority?

The OIA does not explicitly mention entities that are controlled by a public authority as subject to the Act.

However, if the entity is an unincorporated body (a board, council, committee, subcommittee, or body but not a mortality review committee) that has been established 'for the purpose of assisting, advising or performing functions connected with any minister, department or organisation.^[218]' Then that body is deemed to be part of the appropriate parent authority and the information it holds is subject to the Act.

Entities that exercise administrative authority?

The OIA does not explicitly mention entities that exercise administrative authority as bodies subject to the Act.

However, a number of bodies that exercise administrative authority such as the Broadcasting Standards Authority, Financial Markets Authority and the Law Commission are listed in Schedule 1 of the Act, suggesting that this criteria is relevant to designation.

Entities that were established by legislation?

The OIA does not explicitly mention entities that were established by legislation as criteria for designation.

However, several of the bodies listed in Schedule 1, including the Broadcasting Standards Authority^[219] and the Health Research Council of New Zealand^[220] were established by legislation. This suggests that being established by legislation is a factor that leads to designation.

Political Parties?

Political parties are not subject to the OIA.

Monopolies or private entities with a dominant position in the market?

Monopolies or private entities with a dominant position in the market are not subject to the OIA, unless they are state-owned enterprises.

Private entities that hold information that is required for the exercise or protection of any rights?

Private entities that hold information that is required for the exercise or protection of any other rights are not subject to the OIA.

Nigeria

History and Summary of FOI Law(s)

Section 39(1) of the Nigerian Constitution^[221] protects the right to freedom of expression. This includes the freedom 'to receive and impart ideas and information without interference'. The freedom to receive information was given effect by the Freedom of Information Act 2011. The Nigerian FOI law was several years in the making and was finally passed 11 years after it was first presented to the legislature^[222]. Further, since its initial enactment there has been considerable debate over whether the Act applies to both the Federal and State Governments or exclusively the Federal Government. Some State Legislatures have passed their own FOI legislation^[223]. However, a 2018 judgment from the Nigerian Court of Appeal has confirmed that the FOI applies to both the Federal and State Governments^[224].

How does the FOI law determine which bodies are subject to the Act?

Bodies that are required to comply with the FOIA are described as 'public institutions.' Public institutions have several duties under the Act, including a requirement to respond to information requests as well as duties to proactively publish specific information^[225].

Section 2(7) of the Act states that: "Public institutions are all authorities whether executive, legislative or judicial agencies, ministries or extra-ministerial departments of the government, together with all corporations established by law and all companies in which government has a controlling interest and private companies utilizing public funds, providing public services or performing public functions."

'Public institution' is also defined in the interpretation section of the Act, section 31, as 'any legislative, executive, judicial, administrative or advisory body of the government, including boards, bureau, committees or commissions of the State, and any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in part by public fund or which expends public fund and private bodies providing public services, performing public functions or utilizing public funds.'

Despite Section 31 containing a slightly lengthier definition, it looks to cover the same bodies as those in Section 2(7). Section 31, thus, seems to be a clarification of the bodies covered in the Act. The Nigerian Act therefore designates bodies exclusively using a definition. The Nigerian Law does not have an oversight body, therefore if there is a dispute over whether a body is subject to the Act recourse must be made to the Nigerian Courts. There have been a few cases where the terms in the Act have been clarified.

Which bodies are subject to the FOI law?

State-Owned Enterprises?

Section 2(7) of the FOIA states that 'all companies in which government has a controlling interest' are 'public institutions' for the purposes of the Act.

State-owned enterprises are therefore fully subject to the Act's obligations.

Private entities that perform public functions?

Section 2(7) states that 'private companies… proving public services or performing public functions', are public institutions required to comply with the Act's obligations.

The Act does not specify whether such bodies are required to fully comply with the Act's obligations or only in respect of their public functions.

Private entities that receive public funds?

Section 2(7) of the FOIA requires 'private companies utilizing public funds' to comply with the Act's obligations. Private entities are therefore subject to the Act.

Further, it appears that such bodies are not required to perform public functions in order to be subject. Again, it is not clear whether such bodies are required to fully comply or rather merely with regard to the funds received.

Private entities that are controlled by a public authority?

Section 2(7) of the FOIA designates 'all companies in which government has a controlling interest' as 'public institutions'. This covers bodies which are financially controlled by the government.

Further, the Act covers administrative and advisory bodies 'of the government including, boards, bureau, committees or commissions of the State, and any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in part by public fund or which expends public fund^[226]'.

This is an extremely broad definition and is likely to cover any bodies that are directly or indirectly controlled by a public authority. It is thus highly likely that bodies that are controlled by a public authority are subject to the FOIA.

Entities that exercise administrative authority?

Section 2(7) designates executive agencies as public institutions required to comply with the Act's obligations. Section 31 clarifies this as 'any… administrative or advisory body of the government, including boards, bureau, committees or commissions of the State.' This definition appears to cover entities that exercise administrative authority.

The Nigerian Bar Association, Nigerian Medical Association and the Nigerian Labour Congress are all subject to the Act^[227]. All of these bodies, while technically non-state have certain regulatory functions. That they are included in the Act, confirms that this quality is likely to lead to designation.

Entities that were established by legislation?

Section 2(7) states that 'corporations established by law' are subject to the Act's obligations.

The phrase 'by law' rather than 'under law' or an equivalent suggests that this only covers bodies directly established by legislation and not those that have been established according to the terms of legislation, for example those established under Companies Acts.

In Boniface Okezie v. Central Bank of Nigeria^[228], it was found that the Central Bank of Nigeria was a public institution and therefore required to comply with the obligations of the FOIA. The Central Bank of Nigeria was established by the Central Bank of Nigeria Act 1958.

Political Parties?

There is no mention of political parties as being 'Public Institutions' for the purpose of the Act. Political parties are therefore not required to comply with the Act's obligations.

Monopolies or private entities with a dominant position in the market?

There is no indication that monopolies or private entities with a dominant position in the market are 'public institutions' for the purposes of the FOIA.

Private entities that hold information that is required for the exercise or protection of any rights?

The FOIA or the Nigerian Constitution does not require private entities that hold information that is required for the exercise or protection of any other constitutional rights to release that information. Unless, of course, the body meets another of the criteria in the Act.

South Africa

History and Summary of FOI Law(s)

Section 32 of the Constitution of the Republic of South Africa provides that '[e]veryone has the right of access to information' and also requires that national legislation is enacted in order to give effect to the right^[229]. This requirement was fulfilled with the enactment of the Promotion of Access to Information Act, (Act 2 of 2000), which came into force on 9 March 2001. The Act applies at the national, provincial and municipal level.

How does the FOI law determine which bodies are subject to the Act?

According to section 32 of the South African constitution, the right to information applies to 'any information held by the state^[230]'; and 'any information that is held by another person and that is required for the exercise or protection of any rights^[231]'. A constitutional obligation to respond to information requests thus applies to both public bodies and private bodies. The latter, however, are only required to provide information if it is required for the exercise or protection of the requester's rights. As shall be seen, there have been a number of cases which have clarified how this provision operates in practice.

Section 1 of the Promotion of Access to Information Act clarifies what is meant by a 'private body' and what is meant by a 'public body'.

A 'private body' is either a natural person who carries or has carried on any trade, business or profession but only in that capacity^[232], a partnership which carries or has carried on any trade, business or profession^[233], or any former or existing legal person^[234].

A 'public body' is 'any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government^[235]'. Alternatively a 'public body' is 'any other functionary or institution when- exercising a power or performing a duty in terms of the Constitution or a provincial constitution^[236]; or exercising a public power or performing a public function in terms of any legislation^[237]'.

The Act goes on to specifically spell out the duties of public bodies and private bodies under the Act. Part 2 of the Act covers public bodies and Part 3 covers private bodies. Generally, the obligations of public are far more stringent than those imposed on private bodies.

Section 8 of the Act acknowledges that it is possible for a body to be a public body in one instance and a private body in another. The obligations of that authority therefore depends on the type of information held. If it is information that the body holds as a result of exercising a power or performing a duty in terms of the national or a provincial constitution or due to it performing a public function in terms of legislation, then the body has the obligations of a public body for that information^[238]. If the information is that which is required for the exercise or protection of the requester's rights, then the body has the obligations of a private body for that information^[239].

South Africa therefore determines which bodies are required to provide information with use of a definition. Further, some of the terms in the legislation have been clarified in case law.

Which bodies are subject to the FOI law?

State-Owned Enterprises?

The definition of 'public body' in the PAIA is relatively imprecise and does not explicitly mention state-owned enterprises.

However, Right to Info, an NGO that monitors the FOI regimes of jurisdictions around the world, states that state-owned enterprises are public bodies for the purpose of the PAIA^[240].

This can also be understood from the Mittal steel^[241] case. Here, the Court of Appeal found that the respondent company, which was a previously state-owned company that had been privatised, was still a 'public body' under the Act. The court acknowledged that the privatisation of state-owned assets did not necessarily mean that the body was no longer performing a public function:

"In an era in which privatization of public services and utilities has become commonplace, bodies may perform what is traditionally a government function without being subject to control by any of the spheres of government and may therefore, despite their independence from control, properly be classified as public bodies.^[242]"

The judgment in the Mittal steel case reveals two things. First, that state-owned enterprises are public bodies for the purpose of the PAIA and are therefore subject to all of its obligations. Second, that state-owned enterprises may remain subject to the Act after they have been privatised, if they remain under the control of the state or perform public functions.

Private entities that perform public functions?

Section 1 clearly states that private entities that perform public functions either as required by legislation or by the national or a provincial constitution are public bodies for the purpose of the Act.

Private entities that receive public funds?

There is no mention of funding in the PAIA's definition of public bodies.

However, several cases, including M&G Media Ltd and Others v 2010 Fifa World Cup Organising Committee South Africa Ltd and Another^[243], has mentioned the receipt and dispensation of public funds as a factor that determines whether the body is exercising a public function.

Private entities that are controlled by a public authority?

The PAIA does not mention 'control by a public authority' as part of the criteria that makes a private body a 'public body' for the purpose of the Act.

However, in M&G Media Ltd and Others v 2010 Fifa World Cup Organising Committee South Africa Ltd and Another^[244], it was held that the Fifa World Cup Organising Committee was a public body for the purpose of the Act. The court argued that because the Committee was largely controlled by the state and had received and dispensed public funds it could be said to be performing a public function as required by (b) of the definition of public body in the PAIA. It is clear therefore that public control is a considered as a corollary of public function and is a factor that can lead to designation.

Entities that exercise administrative authority?

The PAIA does not mention 'the exercise of administrative authority' as part of the criteria that makes a private body a 'public body' for the purpose of the Act.

However, according to part (a) of the definition of public body in section 1 of the Act, bodies that are given powers derived from the constitution are public bodies for the purpose of the Act.

It is also likely that, given that the courts have interpreted 'public function' in part (b) relatively broadly in other contexts, that the exercise of administrative authority is also likely to be a factor that could lead an entity to be considered to be a public body and thus required to fully comply with the Act's obligations with regard to those functions.

Entities that were established by legislation?

The PAIA does not mention 'entities that were established by legislation' as part of the criteria that makes an entity a 'public body' for the purpose of the Act.

However, in Mittal Steel, the court emphasised the company's establishment under the Iron and Steel Industry Act (11 of 1928) as proof of its public function^[245]. It therefore appears that entities established by legislation are public bodies for the purpose of the Act.

Political Parties?

The PAIA does not require political parties to provide information as public bodies.

However, in My Vote Counts NPC v President of the Republic of South Africa and Others^[246], the Western Cape High Court found that since section 32(1)(b) of the South African constitution grants citizens access to information of private bodies that is required for the protection or exercise of any other constitutional rights, and the right to be informed about the funding of political parties was crucial to the right to vote, protected by section 19 of the Constitution, then the PAIA had to allow the release of information about substantial funding of political parties. Since the PAIA exempted commercially sensitive information from release, it did not currently allow for the release of the details of political party funding. It was therefore incompatible with section 32 of the constitution and required amendment. Parliament's response has been to enact the Political Party Funding Bill 2017, which is yet to receive Presidential assent^[247].

Monopolies or private entities with a dominant position in the market?

Monopolies or private entities with a dominant position in the market are not covered by the PAIA.

However, as was seen in MittalSteel, if the body is a previously state-owned company that has some functions that could be considered public then it may be a public body on that basis.

Private entities that hold information that is required for the exercise or protection of any rights?

Section 32 of the South African Constitution and Section 1 of the PAIA both state that private bodies are subject to the Act with regard to information they hold that is required for the exercise or protection of any of the requester's rights. Subsequent case law has clarified how the right works in practice.

In Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others^[248], it was found that in order to make use of the right, 'an applicant has to state what the right is that he wishes to exercise or protect, what the information is required and how that information would assist him in exercising or protecting that right^[249]'. This position has been criticised by some for placing a too onerous burden on the requester^[250]. Often requesters are asking for information precisely because they do not know it's contents. Asking a requester to demonstrate a link between requested information and a right when they have not seen that information therefore make the use of this right substantially more difficult. Further, in Clutch (Fty) Ltd v Davis^[251], the Supreme Court of Appeal interpreted the term 'reasonably required' as 'understood to connote a substantial advantage or an element of need^[252]'. This interpretation of the term restricts the use of Section 32(1)(b) of the Constitution even further. However, use of this Section is not impossible and it has used by citizens to access information from private companies on a number of occasions, for example in the My Vote Counts^[253] case where the requester relied on Section 32(1)(b) in conjunction with the right to vote, Section 19, to require political parties to disclose information about the source and details of their funding.

Sweden

History and Summary of FOI Law(s)

Sweden is widely known for being the first jurisdiction to enact freedom of information legislation, the Freedom of the Press Act 1776^[254]. There are several modern laws that regulate access to information in Sweden. The most important are the Freedom of Press Act 1949^[255] which has been amended several times, the most significant of which came in 1976, and the Public Access to Information and Secrecy Act 2009^[256]. The Freedom of the Press Act 1949, along with three other laws, forms the fundamental laws of the Constitution of Sweden. The second part of the Act sets out the right of access to official documents. The Public Access to Information and Secrecy Act 2009 is extremely detailed, containing more than 400 provisions, and is intended to supplement the Freedom of the Press Act 1949. Both Acts apply to central government and at the municipal level.

How does the FOI law determine which bodies are subject to the Act?

Chapter 2 of the PAISA determines which bodies are subject to Act and the extent of their obligations.

Bodies that are subject to the Act are described as 'authorities'. This is not defined in the legislation, however, an English-language explainer of the law produced by the Swedish Government states that:

"[P]ublic authorities are those bodies included in the state and municipal administration. The Government, the central public authorities, the commercial public agencies, the courts and the municipal boards are examples of such public authorities.^[257]"

The PAISA goes on to include further bodies that do not fall within this definition.

First, both the Swedish Parliament and the municipal assemblies are equated with authorities for the purpose of the Act^[258].

Second, the Act states that the access to information provisions of the Freedom of the Press Act applies 'mutatis mutandis to documents of public limited companies, commercial companies, economic associations and foundations where municipalities or county councils exercise a controlling influence.' The Act also defines what is meant by a 'controlling influence'. This is where, alone or together, municipalities or county councils have a degree of ownership that supplies them with more than half of votes in the entity^[259], have the right to appoint or remove more than half of the members or the board of the entity^[260] or they constitute all responsible partners in a corporation^[261].

Third, the Act applies to documents of bodies listed in the Annex to the PAISA. However, requesters may only obtain documents if they pertain to the specific activities mentioned. Broadly the organisations listed in the Annex are, universities and colleges, art, music and sport associations, unemployment funds, vehicle institutes, professional associations, the Royal Swedish Aeroclub, the Notary Public, Swedish Post, the State Housing Mortgage Company, research foundations and the Swedish Church.

The Swedish law therefore includes bodies with a mix between a definition and a list. The bodies included in the annex to the Act must only comply with the Act, in respect of the specific activities listed.

Which bodies are subject to the FOI law?

State-Owned Enterprises?

Enterprises owned by municipalities and county councils are subject to the Act, if the relevant municipality or county council owns more than 50% of the shares in the enterprise^[262].

Moreover, state-owned enterprises may be included in the Annex to the PAIsA. PostNord Sverige, for example, which is 60% owned by the Swedish Government is subject to the Act but only in relation to its statutory powers in relation to elections, referenda, the special post service, customs control, license release and relocation reports^[263].

Private entities that perform public functions?

As private entities can only be designated by being included in the Annex, and bodies that are included in the Annex tend to have obligations specific to their role, there is no mention of the performance of public functions as criteria that leads to designation.

However, depending on how broadly 'public functions' are defined, it is arguable that more or less all of the bodies listed in the Annex are private entities that perform public functions. If 'public functions' is defined narrowly as 'providing a public service' then the inclusion of bodies like the Swedish Church in relation to its duties to provide funeral services demonstrate that the performance of public functions is criteria that leads to designation^[264].

Private entities that receive public funds?

There are a few bodies listed in the Annex to PAISA that are required to allow access to documents in relation to their public funding.

For example, Swedfund International AB which is required to grant access to documents in relation to review of state aid issued for small and medium-sized Swedish companies in Swedfund's partner countries^[265].

Private entities that are controlled by a public authority?

Private entities that are controlled by a local authority are required to comply with the principle of access to information and the provisions of the PAISA.

'Controlling influence' is defined as "where, alone or together, municipalities or county councils have a degree of ownership that supplies them with more than half of votes in the entity^[266], have the right to appoint or remove more than half of the members or the board of the entity^[267] or they constitute all responsible partners in a corporation^[268]." Such bodies are required to comply fully with the Act's obligations.

Entities that exercise administrative authority?

Bodies that exercise administrative authority are subject to the principle of access to information and some of the obligations of the PAISA if they are included in the Annex to the Act.

For example, the Royal Swedish Aeroclub is required to allow access to documents related to the 'inspection and supervision of aircraft and issue and renewals of the airworthiness certificate.^[269]' The exercise of administrative authority seems clearly to be a criteria that leads to designation of certain bodies.

Entities that were established by legislation?

Entities that were established by legislation are required to comply with the Act if they deemed to be 'authorities'.

If not, they will be subject to the Act if they are included in the Annex. Moreover, a number of bodies that have been given powers under Swedish legislation, but not necessarily established by that legislation, are included in the Annex to the PAISA. Example

Political Parties?

Political parties are not required to comply with the principle of access to information established in the Freedom of the Press Act 1949 and the provisions of the PAISA.

Monopolies or private entities with a dominant position in the market?

Monopolies or private entities with a dominant position in the market are not subject to the Swedish laws on access to information.

Private entities that hold information that is required for the exercise or protection of any rights?

Entities that hold information that is required for the exercise or protection of any rights is not criteria that leads to designation in Sweden.