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 information sought was commercially confidential and its disclosure would harm interests of several companies (para. 24). Biowatch appealed to the High Court.
The Court recognized that 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 Registrar’s failure to grant access to these documents violated the organization’s rights under section 32(1)(a) of the Constitution (para. 66).
Note: 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 South African Constitutional Court held that it is 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).
Judgment of the Court.
Judgment of the Constitutional Court.