ENVIRONMENTAL RIGHT RELIED ON TO FORCE DISCLOSURE OF INFORMATION SANDRA GORE AND CLAIRE TUCKER

Friday, April 17, 2009
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The use of South Africa’s Promotion of Access to Information Act 2000 (“PAIA”) to obtain environmental information from entities, was recently highlighted by the submission of an application for access to quality reports on drinking water from a local authority.
The Bill of Rights in the Constitution of the Republic of South Africa 1996 (“the Constitution”) includes a right of persons to an environment that is not harmful to their health and well being.  A right to any information is included in the Bill of Rights, this right can be used to access information held by the State as well as by private entities, as we discuss below.
PAIA was enacted to give effect to the constitutional right of access to information.  Whilst PAIA contains stipulated limitations to the right to access information, it expressly requires the mandatory disclosure of information if it is in the public interest.  In particular, it is specified that it is mandatory for both public and private entities to provide information if the disclosure would reveal evidence of an imminent and serious public safety or environmental risk; or if the public interest in the disclosure of the record clearly outweighs any harm in disclosing the record.  A public safety or environmental risk is described in PAIA as harm or risk to the environment or the public, associated with a product or service available to the public; a substance released into the environment; or a substance intended for human or animal consumption.
In an application for information held by public bodies (which include any department of state or administration, in the national or provincial sphere of government, or municipality in the local sphere of government) reasons are not required in obtaining information from public entities; a requester’s right of access to information from public bodies is neither affected by the reasons the requester gives for requiring access nor is it affected by the public body’s belief as to what the requester’s reasons are.  Access to the information requested must be given within a period of 30 days or, alternatively, written reasons for the grounds for refusing access to such information must be provided.
The recent application made to access information held by the Nelson Mandela Bay Municipality in the Eastern Cape Province displays the manner in which this right is exercised. 
The quality of drinking water in certain areas in South Africa has recently become a serious concern, in that it may constitute a public safety risk.  This followed a statement last month by the Department of Water Affairs and Forestry’s (“DWAF”) Deputy Director General of National Water Resources and Infrastructure that tap water in some small towns may not be fit to drink,  with only an 80% chance that the water was safe for consumption.   The Water Research Commission Director for Water-Linked Ecosystems conveyed that South African standards for tap water are among the best in the world and the major metropolitan areas are supplying high quality water.  However water quality in small towns is uncertain, with ineffective waste water treatment works adding to the risk of diseases in the water.
One area highlighted as a particular concern is the Nelson Mandela Bay Municipality in the Eastern Cape Province.  Due to previous reports of risks to residents’ health, the Democratic Alliance, an opposition political party submitted a PAIA application, requiring the Nelson Mandela Bay Municipality to disclose its data on the quality of local tap water and surface water. 
The main difference in using PAIA to access information from that of private entities as opposed to from public entities is that when requesting from a private entity the requestor must show that that the record is necessary for the exercise or protection of a right.  This does not need to be shown if requesting information from a public body. 
The public do often invoke PAIA to request information necessary to protect the environmental right to an environment that is not harmful to health and well being.  This is recognised as one of the rights which can be relied upon in such an application.  While the request can be refused on various grounds including that it contains trade secrets or pricing information, if the information demonstrates an imminent and serious public safety or environmental risk the request may not be refused.
Claire Tucker is a director and Sandra Gore is a senior associate in the Corporate Department at Bowman Gilfillan