Nancy Nkoko is the FOIP intern at SAHA and she has been reading the Centre for Environmental Rights report titled Money Talks: Commercial Interests and Transparency in Environmental Governance.
Why I chose this publication and its relevance to SAHA’s work
Recently the Centre for Environmental Rights (CER) released a report on their experiences in requesting records on environmental governance and management using the Promotion of Access to Information Act, 2000 (PAIA).
There are many parallels between CER’s experiences in using PAIA to access information on environmental governance and management and the experiences within the Freedom of Information Programme (FOIP) at SAHA. Unresponsive public and private bodies, poor record-keeping practices and the incorrect interpretation and application of PAIA are some of the challenges that access to information activists have to contend with.
· What issues raised in this publication are relevant to SAHA’s work
This report details CER’s experiences from January 2010 to August 2014 in requesting records from public bodies, parastatals and private bodies. According to CER there has been a decline in deemed refusals among public bodies however there has been a decline in released records as well.
CER profiled the three national departments to which they submit the most PAIA requests: the Department of Environmental Affairs (DEA), the Department of Water and Sanitation (DWS) and the Department of Mineral Resources (DMR).
The DEA has shown consistency in the granting of requests under PAIA and the subsequent release of records. It has also shown a pragmatic approach in dealing with third party notice processes to facilitate access to information. The cooperation of the DEA is laudable as it also cuts down the processing time before a request is responded to. Grounds for refusal under PAIA relied on by the DEA include the mandatory protection of the commercial information of a third party (section 36) and the refusal of access to records as they do not exist or cannot be found (section 23). The high levels of reliance on section 36 indicates that public bodies are at times simply denying requests whenever third parties do not consent to disclosure under the third party notification process without applying their minds to whether the relevant records really do amount to for example trade secrets. . Whereas the high levels of reliance on section 23 are very worrying, in light of the court’s judgment in the Mail and Guardian v Minister of Public Works and Another judgment where the court held that
“(A) (f)ailure to keep record or a tendency to lose documents, or to hide them or to deal with government business under a cloud of secrecy where it is not justified… constitutes a dereliction of one of the most important obligations on a government, which is to keep proper records. Such conduct on the part of government does not advance the values espoused in our Constitution, that of a democratic, transparent and accountable government. It is in the public interest to keep record in order to give credence to the business of government itself and to those who govern” (own emphasis).
The most common ground for refusal cited by the DWS is section 23(1) of PAIA which provides for the refusal of access where the records cannot be found or do not exist. CER reports that the DWS is unresponsive at best and at worst asks for requests to be resent to them. The DWS’ poor record-keeping and the constrained capacity of their legal services department Strangely, despite the DWS’s PAIA Manual listing water use licenses issued under the National Water Act, 1998 as automatically available, release of these records is still subject to third party notification – this is at odds with section 15 of PAIA which requires that records listed as automatically available be so without a person having to request access or in this instance release of these records being subject to third party notification.
According to CER 2013 and 2014 have been the worst years for transparency in environmental governance at the DMR. Although deemed refusals have decreased, actual refusals have increased leading to an increase in internal appeals. Additionally, records that are released are often incomplete or the wrong documents. Grounds for refusal cited most often by the DMR are that the information officer must refuse access to a record of the body if the record contains the trade secrets of a third party (section 36(1)) and the information officer of a public body may refuse a request for access to a record of the body if the record contains an opinion, advice, report or recommendation obtained or prepared; or an account of a consultation, discussion or deliberation that has occurred, including, but not limited to, minutes of a meeting, for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; or if the disclosure of the record could reasonably be expected to frustrate the deliberative process in a public body or between public bodies by inhibiting the candid communication of an opinion, advice, report or recommendation; or conduct of a consultation, discussion or deliberation; or the disclosure of the record could, by premature disclosure of a policy or contemplated policy, reasonably be expected to frustrate the success of that policy(section 44(1). At the end of August 2014 six of the ten internal appeals submitted by CER to DMR, during 2013-2014, were still outstanding. In its section 14 report to the SAHRC the DMR however stated that it received only three internal appeals in the 2012/2013 cycle. This discrepancy between CER’s records and the DMR’s report is indicative of poor record keeping practices. The DMR never requests extensions of time and while this may be a positive, it is also true that they seldom abide by the 30-day time period prescribed by PAIA.
CER notes in this report that, although there appears to be no right of internal appeal for parastatals, under section 74(1) of PAIA Eskom has developed its own internal appeal process, showing a positive attitude towards PAIA and its use to access information.
Reluctance and inexperience in engaging with PAIA has seen government departments believing that they are obliged to protect the ‘secrecy’ of the licence conditions of refineries and mining companies. This is despite the negative effect that emissions from refineries and environmental degradation caused by mining operations have on the health of people living in the surrounding areas. Section 46(a) (ii) of PAIA provides that a request for access to a record must be granted if the disclosure of the record would reveal evidence of an imminent and serious public safety or environmental risk. The arbitrary invoking of section 36 as a ground for refusal without weighing it against section 46 is an incorrect application of PAIA.
There appears to have been a significant drop in refusals by private bodies. This can be attributed to the fact that private bodies often have the means to employ larger legal teams, enabling them to respond to PAIA requests more efficiently and timeously. The most commonly cited grounds for refusal by private bodies were section 66(b) and section 68(1) (a)-(c). Section 66(b) provides for the refusal of access where disclosure of the record would prejudice or impair the security of property or methods or plans put in place for the protection of an individual or the public. Section 68(1) (a)-(c) provides for refusal where the record contains: trade secrets of the private body, commercial, financial, technical or scientific information which could harm the commercial or financial interests of the public body or information that could reasonably be expected to put the private body at a disadvantage in contractual or other negotiations; or prejudice the body in commercial competition.
This report highlights the right of fence-line communities to have access to the environmental documents of corporate polluters to enable them to protect their constitutional rights to a safe and healthy environment.
After more than four years of requesting records using PAIA, CER asserts that PAIA remains poorly implemented and inadequately enforced.
· How might this apply/be used in my work at SAHA
This report shows that non-compliance with, misinterpretation and the incorrect application of PAIA is still a barrier to information access. It also highlights a need for training in the use of PAIA.
The emergence of other ‘secrecy legislation’ such as the National Key Points Act reminds us of the importance of safe-guarding our hard-won constitutional freedoms.
· Who would I recommend read this?
This report is a must read for information access activists. Although it is limited to accessing information in the environmental governance and management sphere it is broadly applicable to accessing information in general. It is also an insightful read for academics and researchers who may wish to track the effectiveness of the use of PAIA to access information. Information Officers of public and private bodies should also read it for the irony inherent in having private institutions outperform public bodies in their responsiveness and granting of access to records requested under PAIA.
For the full CER report please click the following link: Money Talks: Commercial Interests and Transparency in Environmental Governance.