Report No. 275

b. International Perspective

5.9 Internationally, the concept of 'public authorities/bodies' can be understood with the help of the definition hereunder:99

'Public authorities' include all bodies within the executive, legislative, and judicial branches at all levels of government, constitutional and statutory authorities, including security sector authorities; and non-state bodies that are owned or controlled by government or that serve as agents of the government. 'Public authorities' also include private or other entities that perform public functions or services or operate with substantial public funds or benefits, but only in regard to the performance of those functions, provision of services, or use of public funds or benefits.

5.10 On similar lines, the Human Rights Act, 1998 of the United Kingdom provides, ""Public Authority" includes.... any person certain of whose functions are functions of public nature."100

5.11 In the case of Finnigan v. New Zealand Rugby Football Union Inc.,101 the Court opined, [w]hile technically a private and voluntary sporting association, the Rugby Union is in relation to this decision in a position of major national importance, for the reasons already outlined. In this particular case, therefore, we are not willing to apply to the question of standing the narrowest of criteria that might be drawn from private law fields. In truth the case has some analogy with public law issues.

This is not to be pressed too far. We are not holding that nor even discussing whether, the decision is the exercise of a statutory power - although that was argued. We are saying simply that it falls into a special area where, in the New Zealand context, a sharp boundary between public and private law cannot realistically be drawn.

5.12 In South Africa, determination of what a 'public authority/power' is, can be seen in the observations made by the Court in the case of Chirwa v. Transnet Limited and Ors.,102:

Determining whether a power or function is 'public' is a notoriously difficult exercise. There is no simple definition or clear test to be applied. Instead, it is a question that has to be answered with regard to all the relevant factors including:

(a) the relationship of coercion or power that the actor has in its capacity as a public instituti whether there is a need for the decision to be exercised in the public interest. None of these factors will necessarily be determinative; instead, a court must exercise its discretion considering their relative weight in the context.

5.13 Article 19, paragraph 2 of ICCPR embraces a right to access of information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and date of production. Designation of such bodies may also include other entities when such entities are carrying out public functions.103

5.14 The Law of the Republic of Armenia on Freedom of Information, 2003, Article 3 defines 'Organisation of public importance' as "private organizations that have monopoly or a leading role in the goods market, as well as those providing services to public in the sphere of health, sport, [emphasis added] education, culture, social security, transport, communication and communal services.

5.15 Under the UK Freedom of Information Act 2000 (FOI), the Secretary of State has the power to designate any person who appears to exercise functions of a public nature as a public authority [emphasis added].104In this manner, anybody, performing public functions or functions of a public nature can be covered under the ambit of the FOI Act.105

5.16 In Mexico, the General Act of Transparency and Access to Public Information referring to 'right to information' as the "human right of access to information"106, lays down rather exhaustive criteria for inclusion of 'individuals and legal entities who receive and use public resources and exercise acts of authority'. Article 81 thereof requires the concerned agency to take into account factors such as "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".

[emphasis added]

5.17 Thus, it may be noted that various countries have opted for an exhaustive definition, which even includes private bodies that either perform functions of public importance or are funded by their governments within the ambit of their respective Right to Information/ Freedom of Information Acts.