Access to environment information is being blocked, reveals report

This is even when the centre had submitted a Promotion of Access to Information Act (PAIA) request.

The Act is the most important way that citizens have of accessing information, and is meant to be a way to ensure transparency. It allows access to any information held by the state, and any information held by private bodies that is required for the exercise and protection of rights. But in its second report the centre found that the system is not working.

The Centre for Environmental Rights puts in many requests – last year they submitted 66 – and was the recipient of the Golden Key Award from the South African Human Rights Commission. This was in recognition for it being the best user of the Act.

The report, Barricading the Doors, said a majority of the centre’s PAIA requests were to public bodies. The rest were to parastatals and private bodies. The report is a follow-up to one last year and compares the findings from 2011 with those from 2012.

And while the majority of requests to public bodies in 2011 were simply ignored, this had changed and the requests were now being accepted, but then refused. “Generally, we have started to see some acknowledgement by public bodies of their obligations under PAIA, but a decrease in actual disclosure of records,” it said.

The number of requests refused dropped from 36% to 7%. "This shows a more active engagement with PAIA requests, and potentially that more resources are being made available in public bodies to process PAIA requests," it said.

But at the same time the number of requests refused went from 11% to 29% in the same period. The percentage of records released after the public body had granted the information request also dropped. 

The least compliant department
In the 2011 report the department of mineral resources was the least compliant department. They did not respond to requests 44% of the time. Last year that dropped to 12%, but at the same time their active refusal of requests went from 8% to 12.5%.

To slip through the Act, the department had kept giving letters that gave partial access to PAIA requests. But the report said this only resulted in actual delivery of records in seven instances out of 36 requests. This percentage was the same for last year, it said.

It had also not updated its PAIA since 2004, which a department is supposed to do every year. And the report found that this was a trend across most departments that it dealt with – which included water affairs, transport, and the Gauteng department of agriculture and rural development. Only environmental affairs had a PAIA which met the requirements, it said.

And only 12% of municipalities had PAIA manuals which were in line with regulations, it said.  

“At the same time, the stance of private companies to releasing environmental information has hardened to the extent of opposing legal proceedings brought to compel disclosure,” it said.

In 2011 60% of all the requests submitted were deemed to have been refused – where the company does not respond. In 2012 there were none of these, but more than 50% of the requests were refused.

“In 2012 companies stopped ignoring requests for information submitted by the Centre for Environmental Rights, and started to make use of PAIA – unfortunately to actively refuse access to information,” it said.

Water monitoring data
The report cites two instances where JSE-listed companies refused to disclose water monitoring data to community organisations, because they said non-governmental organisations had no right under PAIA to access the information, it said.  

A report released alongside Barricading the Doors found that companies tailored their response to reports along the legal minimum, and government was doing little to enforce this.

Turn on the Floodlights found that: "Although South African environmental laws acknowledge the importance of transparency in environmental governance, few statutes compel disclosure of licences and compliance data."

By looking at other countries, it found that mandatory disclosure of environmental licences is common. And large multinational companies might be disclosing their licences in these countries, but would not be doing so locally because they do not have to. Many of the centre's PAIA requests were for these licences.

The current system in South Africa excluded members of the public, affected communities, and civil society organisations. “A number of databases of environmental licences already exist, but are designed to give access to authorities themselves, and often also to licence applicants and holders,” it said. 

Melissa Fourie, executive director of the Centre for Environmental Rights, said that in many government departments the people dealing with PAIAs were not in a dedicated section and had to deal with many other legal problems. This led to bottlenecks and put the burden on the applicant, who would have to litigate when they were rejected or ignored.

"You can't leave this all to litigation, which places a heavy burden on citizens," she said. And at the moment there was very little litigation in the court system, because it was a fairly new area for court challenges, she said. 

She hoped that with time government would realise that it could work with civil society to protect environmental rights. And with this become more transparent, releasing things like environmental permits for anyone to look at. This in turn should make companies more responsible, she said. "Licences are not a secret, so put them on a website," she said.

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Sipho Kings
Sipho Kings is a former acting editor-in-chief of the Mail & Guardian

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