Case Summary and Outcome

The High Court of South Africa (Transvaal Provincial Division) granted Biowatch access to information about genetically modified crops and held that the state has a duty to assist those seeking information even where a request is considered broad.  The Registrar of Genetic Resources and the Executive Council for Genetically Modified Organisms relating to GMOs had refused Biowatch’s request on the grounds that the request was too broad and that a part of the information sought was commercially confidential and its disclosure would harm interests of several companies. The Court reasoned that although a right of access to information is subject to limitations, Biowatch should have access to any information it seeks which is not immune from disclosure and that the Registrar’s failure to grant access to these documents violated the organization’s constitutional rights.  Furthermore, on appeal, the Court ruled that Biotech was not obliged to pay the legal fees of a party to the dispute since it is the state’s duty to cover costs of a successful applicant in constitutional litigation. The court additionally noted the potential chilling effect of such economic burdens on applicants.   

This case analysis was contributed by Right2Info.org

Facts

Biowatch Trust, a non-governmental organization engaged in nature conservation activities, lodged a number of requests asking the Registrar for Genetically Modified Corps to disclose information pertaining to the use of genetically modified organisms in South Africa, including certain risk assessment data (para. 19). The Registrar refused access on the grounds that (1) Biowatch’s request was too broad, and (2) a part of the information sought was commercially confidential and its disclosure would harm interests of several companies (para. 24). Biowatch applied to the High Court.

Decision Overview

The Court recognized that the right of access to information is subject to limitations enumerated in Chapter 4 of Part 2 of the Promotion of Access to Information Act . However, “the burden of establishing that the refusal of a request for access is justified rests on the party claiming the refusal”, i.e. the onus to justify limitation of Biowatch’s right to information was on the Registrar (para. 40). In addition, the refusal could not be justified by the mere fact that requests for information were  too broad. If the governmental agency is of the opinion that a request is not sufficiently specific, it is under obligation to assist the requester in identifying the document it is seeking (para. 43).

Although confidentiality of information and potential violation of third parties’ rights are legitimate concerns, they cannot serve as a ground to bar access to all requested information. Thus, the Court reasoned that “Biowatch [should have] access to the information it seeks in any record, or those portions [of] any record, that is or are not immune from disclosure” (para. 47).

The Court concluded that Biowatch had “a clear right to some of the information” and the Registrar’s failure to grant access to these documents violated the organization’s rights under section 32(1)(a) of the Constitution (para. 66).

Although the High Court granted eight out of eleven of Biowatch’s requests, it held that because of the sweeping nature of the requests made, governmental authorities did not have to pay the legal costs of the organization. Moreover, the High Court awarded costs against Biowatch in favor of one of the companies, which allegedly was ‘compelled’ to intervene in the proceedings. Due to the economic consequences of such a decision and bearing in mind the chilling effect on similar litigation, Biotwatch appealed the costs’ orders. In 2009 the South African Constitutional Court held that it is the state’s duty to cover costs of a successful applicant in constitutional litigation (para. 56). Given that litigation addressed not a private dispute, but inaction on the part of state authorities, Biowatch was also not obliged to bear the costs of the company (para. 57).