Confidentiality vs Transparency Balancing Rules

1. Introduction

Confidentiality and transparency are both important in energy markets. Confidentiality protects commercially sensitive information, while transparency promotes accountability, public participation and confidence in energy regulation.

Energy-market information can include electricity supply contracts, bidding information, tariff calculations, fuel prices, network information, investment plans and technical data. Some information requires protection because disclosure could damage legitimate commercial interests. However, excessive confidentiality can prevent consumers, competitors and the public from understanding important decisions.

In South Africa, the balance is primarily governed by section 32 of the Constitution, the Promotion of Access to Information Act 2 of 2000 (PAIA), the Electricity Regulation Act 4 of 2006 and administrative-law principles.

2. Rule 1: Transparency Is Subject to Lawful Exceptions

The Constitution provides a right of access to information, but the right is not absolute. PAIA establishes specific grounds on which access may be refused.

Section 36 of PAIA protects certain third-party commercial information where disclosure would be likely to harm the third party's commercial or financial interests, or prejudice it in contractual negotiations or commercial competition.

Therefore, an energy company cannot simply classify information as “confidential.” It must identify a recognised legal ground for withholding it.

3. Rule 2: Prove Actual or Likely Commercial Harm

A central balancing rule is that a party relying on commercial confidentiality must provide evidence supporting the claim.

In BHP Billiton PLC Inc v De Lange (2013), the Supreme Court of Appeal considered requests for information concerning electricity supply contracts between Eskom and BHP Billiton. The Court examined the requirements of PAIA and the claimed commercial harm. The judgment demonstrates that the party relying on the confidentiality provisions carries the burden of establishing the relevant harm.

The rule is therefore:

commercial sensitivity must be demonstrated, not merely asserted.

4. Rule 3: Publicly Available Information Should Not Be Protected as Confidential

Section 36(2) of PAIA provides that information may not be refused under section 36(1) where it is already publicly available.

This is important in energy markets because information about electricity prices, regulatory decisions and market structures may already appear in public reports, tariff documents or regulatory publications.

Confidentiality should therefore be assessed against the actual information available to the market, rather than against a general claim that the subject is commercially sensitive.

5. Rule 4: Consider the Public Interest Override

Section 46 of PAIA creates an important transparency rule. Even where certain grounds for refusal apply, disclosure can be mandatory where it would reveal evidence of a substantial legal violation or an imminent and serious public-safety or environmental risk, subject to the statutory requirements.

This rule is particularly significant in energy regulation because electricity infrastructure can affect public safety and the environment.

6. Rule 5: Consider the Nature of the Energy Information

Not all energy information has the same legal character. A private company's future bidding strategy may require stronger confidentiality protection than information concerning the expenditure of public funds by a state-owned electricity institution.

In BHP Billiton v De Lange, the electricity contracts attracted substantial public interest because they concerned Eskom's electricity supply and pricing arrangements. The case demonstrates the difficulty of balancing commercial confidentiality against public interest in information concerning an essential public service.

7. Rule 6: Use Evidence-Based Decision-Making

A regulator or public institution should examine the specific information and specific risk rather than applying a blanket confidentiality policy.

The courts' approach under PAIA generally requires the holder of information to justify reliance on an exemption. A recent 2025 High Court decision, Joseph and Others v Head, Department of Social Development Gauteng, reaffirmed that merely identifying commercial information is insufficient; the holder must establish the relevant likelihood of commercial harm. The judgment also considered the public-interest override under section 46.

8. Rule 7: Protect Genuine Confidentiality While Preserving Accountability

Where only a portion of a document is genuinely sensitive, the legal framework can support a more precise approach rather than treating the entire document as confidential. This promotes accountability while protecting legitimate commercial interests.

The objective is therefore not maximum disclosure or maximum secrecy. It is legally justified disclosure with protection for genuinely sensitive information.

9. Conclusion

The principal confidentiality-versus-transparency balancing rules in energy markets are:

Identify the statutory basis for confidentiality.

Require evidence of likely commercial or financial harm.

Do not protect information already publicly available under section 36.

Consider the public-interest override under section 46.

Examine the specific nature of the information.

Consider public safety, environmental risks and accountability.

Avoid blanket confidentiality classifications.

The cases BHP Billiton v De Lange and Joseph v Head, Department of Social Development Gauteng demonstrate the importance of evidence and statutory requirements when confidentiality is claimed. Ultimately, South African law seeks to protect legitimate commercial interests while preserving the public's lawful right to scrutinise energy institutions and decisions affecting essential energy services.