Refusing Information In Terms of the Promotion of Access To Information Act No. 2 Of 2000: Earthlife Africa (Cape Town Branch) v Eskom Holdings Limited (unreported WLD Case No. 04/27514)

22 February 2006

Source: Article by Neil Kirby of Werksmans Attorneys

Originally published in Litigation Werks: Volume 16 / February 2006

The Promotion of Access to Information Act No. 2 of 2000 (“the Information Act”) has already received much attention from our courts. In a recent unreported judgment in the Witwatersrand Local Division, further principles concerning the manner in which information may be requested and refused were elucidated by the court.

The matter concerned a request by Earthlife Africa (“Earth Life”) to Eskom Holdings Limited (“Eskom”) for information relating to certain emission records of Vaalputs, Pelindaba and Koeberg waste sites from 1983 to 2003 including sampling results of water, air, vegetation, animals (sea and land), other data concerning emissions and certain of Eskom board minutes from 1998 to 2003. Consequently, Eskom granted access to the emission reports of the Koeberg power station but stated that it was not in possession of similar information in respect of Vaalputs and Pelindaba sites. Eskom refused requests concerning its board minutes stating that the minutes were protected in terms of the Information Act by virtue of the exclusions concerning –

Undeterred, Earth Life lodged a second request for information with Eskom in or about January 2004. The second request was more pointed in so far as it requested information and documents concerning the Pebble Bed Modular Reactor, which the court referred to as the PBMR. The information requested concerned, more particularly, business plans relating to the PBMR, technical reports and any financial reports concerning support for any alternative energy source. Eskom again refused the minutes of the board meetings and business plans concerning the PBMR and the financial implications and technical reports of the PBMR. Eskom, once again, relied on the exclusions contained in the Information Act aforementioned.

The court accepted that the applicant had overcome the hurdle, in the Information Act, basing its request on the enforcement of a right contained in section 24 of the Constitution of the Republic of South Africa, 1996 which provides everyone with the right to an environment that is not harmful to their health or wellbeing and to have the environment protected. To this end, the court stated that “[t]his application clearly addresses such matters so that the crucial issue is whether the applicant is or not entitled to access the remainder of the records.”

Due to the nature of the grounds upon which Eskom relied in order to refuse access to the information, the court was required to assess whether or not the information, so requested, related to trade secrets and potentially sensitive information the disclosure of which would place Eskom at a commercial disadvantage. The court stated that the matter “clearly, involves a considerable body of technical information and material in respect of which the court must, of necessity, seek the guidance of a suitably qualified expert. For example, the question as to whether certain information or a particular document is to be classified under one of the statutory exemptions, whether it is a trade secret or on any other basis, might well involve experts in specialised knowledge which the court does not possess. Thus, the question whether certain information or documentation does or does not qualify for exemption from disclosure may well involve a consideration of expert opinion.”

The court then examined carefully the nature of the evidence attached to Eskom’s answering affidavit as well as the nature of the expert evidence that was attached to and contained in Earth Life’s founding and replying affidavits. The court dismissed the evidence of a number of the experts on the basis that affidavits, supporting the views that were contained in technical articles, were not provided. The court examined the nature of the expert evidence and, in certain instances, dismissed the expert evidence adduced by both parties. However, the conclusion reached by the court was that, based on the expert evidence produced by Eskom, the documents and information requested by Earthlife Africa constitute “confidential information and trade secrets which are protected from disclosure.”

The court indicated that the basis for adjudicating whether or not information requested constitutes confidential information is a question of fact. In this regard, the classification of information as confidential information is only competent, for the purposes of the Information Act, when it is supported by expert evidence concerning both the nature of the information requested and the context in which the requested information is used by the entity. These issues render the requested information confidential or sensitive and thus protected by the Information Act:

“[Earth Life] has provided no evidence which contradicts that of Dr Lennon. Insofar as it may be suggested that there exists a dispute of fact as to the classification of the information sought by [Earth Life], the relief sought may be granted only if justified by the admitted averments in [Earth Life]’s founding affidavit together with the facts alleged by [Eskom].”

Earth Life also did not place into question the commercial, financial and technical nature of the information it requested. Earth Life was therefore at a distinct disadvantage in so far as it attempted to argue that the information, notwithstanding the classification of it by Eskom when dealing with the Earth Life’s request, was incorrect and that the information should be classified in an alternative manner so as to provide Earth Life with access to the records it had requested. Fundamentally, the court summarised the issue as “whether, on the factual information available to the court, the respondent is entitled to refuse access by virtue of the statutory provisions contained in the Information Act. This is essentially a question of fact and I reiterate that there appears to be little or no dispute as to questions of law.” Based on the expert evidence assessed by the court, Earth Life’s application was dismissed.

Whilst the short title of the Information Act indicates that it is a statute that is to be used in order to obtain access to information, large portions of the Information Act are dedicated to the protection of information. There is no reason why records should be made available to a requester who requests access to those records in terms of the Information Act. A person receiving a request is entitled to refuse access to records provided that –

The court adopted a conservative and cautious approach to the interpretation of the Information Act. Whilst it was certainly argued by Earth Life that “the withholding of information is only permitted on the grounds explicitly set out in the [Information] Act [and that] [a]ccess should only be denied where it is clearly justified”, the court held that Eskom had succeeded in demonstrating that the information should be protected on the grounds set out in the judgment:

“In applying such a principle, the court cannot read more or less into the limitations which have been expressly defined in the Information Act. Although the applicant has contended that the statutory limitations should be narrowly construed, they are, in my view, perfectly clear and cannot be expanded or constricted at the whim of either of the parties.”

The approach by the court, in relation to the cause of action of Earth Life being the potentially adverse effect which Eskom’s activities at Pelindaba, Koeberg and Vaalputs would have on the environment, constitutes a departure point that may have been more useful for Earth Life to use in order to argue for the mandatory disclosure of the information requested.

The court recognised the objects of the Earth Life, being “to highlight environmental injustice and to promote ecologically sound alternatives such as renewable energy. Its activities are mainly campaign related and include lobbying and advocacy with a range of stakeholders, including government, building campaigns at community level through sharing information and skills, engaging with environmental impact assessments, engaging the media and researching and producing information materials.” The court also recognised the environmental basis upon which Earth Life made its request for information in so far as it has lobbied against the establishment of nuclear energy facilities in South Africa. The approach therefore by Earth Life was one based primarily on environmental concerns and considerations. This issue does not, however, appear to have been granted much attention by the court in assessing whether or not there existed grounds upon which to require the disclosure of the information concerned, notwithstanding the grounds advanced by Eskom upon which to refuse the information. Section 46 of the Information Act may be applied in circumstances to require mandatory disclosure of information where there is an imminent and serious public safety or environmental risk that would be revealed if the record requested was disclosed in the public interest and the disclosure would outweigh the harm contemplated in the provision in question.

The emphasis in the judgment is placed clearly on whether or not the information requested was suitably classified by Eskom for the purposes of refusing disclosure of the records and not on whether or not section 46 was applicable to the records ie, whether or not the nature of the records, if disclosed, would reveal an imminent and serious public safety or environmental risk. It may be these differences of emphasis that caused the court to find that the applicant had not adequately addressed the expert information produced by Eskom. This appears to be clear from the emphasis placed by the court on the expert evidence produced by both parties in the light of the sections of the Information Act, referred to above, excluding section 46.

If one considers this case to be one more concerned with an environmental issue rather than one based exclusively on an explanation of the provisions of the Information Act, then it is arguably at odds with –

“[i]f the Companies Act does not provide an equivalent process to safeguard his proprietary interests in the company, then it cannot be contended that the [Information] Act should be superseded by the Companies Act. In the as yet unreported Constitutional Court decision of Ingledew v Financial Services Board & Others [2003 (4) SA 584 (CC)] it was acknowledged that the [Information] Act is applicable in instances of concurrent rights to information; all the more so in the instant case given the absence of a right to the information sought under the Companies Act and consequently the absence of concurrent rights.” (at 86D-E)

However, in so far as one considers this judgment in the context exclusively of the Information Act, then further guidance is provided on the application of the exemptions provided for in the Information Act and the manner in which persons, receiving requests for information, may deal with those requests and successfully avoid providing the information requested.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Specific Questions relating to this article should be addressed directly to the author.