Environmental information can be accessed

By Sandra Gore

The use of South Africa's Promotion of Access to Information Act 2000 (“PAIA”) to obtain environmental information was recently highlighted by the submission of an application for access to quality reports on drinking water to a local authority.
The Bill of Rights in the 1996 Constitution includes the right of persons to an environment that is not harmful to their health and wellbeing. The right to information included in the Bill of Rights can be used to access information held by the state, as well as by private entities.

PAIA gives effect to the constitutional right of access to information. While PAIA contains limitations to the right to access information, it expressly requires the mandatory disclosure of information if the information shows evidence of an imminent and serious public safety or environmental risk. This applies to public and private entities.

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.

The recent application for access to information held by the Nelson Mandela Bay Municipality in the Eastern Cape Province shows how this right is exercised.

The quality of drinking water in certain areas of South Africa has recently caused concern. A statement was issued by the Department of Water and Environmental Affairs' deputy director general of national water resources and infrastructure, stating that tap water in some small towns may be unfit to drink, with only an 80% chance that the water is safe for consumption. The Water Research Commission's director for water-linked ecosystems indicated that South African tap water standards are among the best in the world and that the major metropolitan areas supply high-quality water. However, the quality of water 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 was the Nelson Mandela Bay Municipality in the Eastern Cape Province. Due to previous reports of risks to residents' health, the Democratic Alliance, a political opposition party, submitted an application under PAIA for the municipality to disclose its data on the quality of local tap and surface water.

The main difference between using PAIA to access information from private and public entities is that the request for information from a private entity must show that the record is necessary for the exercise or protection of a right. This is not necessary when requesting information from a public body. Access to the information must be given within 30 days or, alternatively, written reasons for the refusal of access must be provided.

PAIA is often invoked to request information necessary to protect the right to an environment that is not harmful to health and wellbeing. This is recognized as one of the rights which can be relied upon in such an application. While the request can be refused on various grounds (e.g., that the information contains trade secrets or pricing details), if the information demonstrates an imminent and serious public safety or environmental risk, the request may not be refused.

Brought to you by the Environmental, Natural Resources and Climate Change Practice Area.

For further information on this topic please contact Claire Tucker at Bowman Gilfillan Inc telephone +27 11 669 9000 or fax +27 11 669 9001 or email c.tucker@bowman.co.za.