The New Green : Transparency in Private Sector

The New Green :  

Transparency in Private Sector 

New Era of RTI for Private Sector and Transparency in Information Sharing

 South Africa's Supreme Court sets the Trend

Private Sector will be forced to share data having impact of Public Health, Environment and Society

So far many companies were able to shield the data in the name of IPR issues and business interest but not willing to share the side effect on environment and public health.  

Should they allow this privilege - this is new debate now?

South Africa's Supreme Court land mark judgement will redefine the line on transparency about information sharing

The South African Supreme Court of Appeal has recently ruled that Arcelor Mittal, that country's steel production giant make environmental information in its custody accessible to the people. On 26 November, 2014, the Court dismissed the appeal filed by Arcelor Mittal, South Africa (AMSA) challenging the judgment of the High Court which directed it to disclose information about its compliance with environmental regulations to an NGO. Readers may recollect that Arcelor Mittal is headed by Mr. Lakshmi Mittal of Indian origin who was dubbed one of the richest men in the United Kingdom a few years ago.

What was this case all about?

In December 2011, Vaal Environmental Justice Alliance (VEJA) filed an information request with Arcelor Mittal under the Promotion of Access to Information Act, 2000 (PAIA) demanding access to their Environmental Master Plan including details of how the Vanderbijlpark site would be rehabilitated. Later in February 2012, VEJA filed a second request under PAIA demanding a wealth of information about compliance with the environmental laws and regulations relating to the Vereeniging site also known as Vaal disposal site. Under PAIA, any citizen may seek information from a private entity such as AMSA for the protection of any right recognized in law. VEJA's lawyers explained in their request that they had a right to get all this information in order to ascertain whether the AMSA was complying with all environmental laws and regulations. They argued that the information was being sought in public interest.

AMSA's lawyers responded late explaining that the festive season had caused the delay. Later they delayed a proper reply stating that AMSA required more time for internal consultations on whether to disclose all the said information or not. Even later they asked what was the mandate of the VEJA's lawyers to demand information and how they could usurp the role of environmental regulatory authorities. However to its credit, AMSA, did give some copies of information such as environmental authorizations and consents that they had been given in relation to their operations.

Finally, in February, AMSA formally conveyed its refusal to part with other information sought by VEJA arguing that they had not clearly established the nature and scope of the right that was sought to be protected by disclosure of information. They also argued that VEJA had not satisfactorily shown how disclosure of such information would help in the protection of the right they had claimed, namely, the right to environment guaranteed by Article 24 of the Constitution.

VEJA challenged this decision before the High Court as there was no provision for an Information Commission(er) under PAIA then, to appeal such rejections. The Appeals Court upheld VEJA's right to get copies of the information they sought. The main grounds on which the judge recognized the right of access to information are described in the attached judgment (1st attachment). Not satisfied with this decision, AMSA filed an appeal before the Supreme Court of Appeal.

How did the Court Rule?

The Supreme Court accepted the public interest argument that VEJA had put forward for seeking the information even though AMSA tried to discredit it by terming it as vague and amounting to usurping the role of the environmental regulatory authorities. It also argued that the Environmental Master Plan was obsolete and based on wrong data and had never been accepted by the company. Instead the data had plan had been revised through the commissioning of newer studies later on. It also argued that inspection reports from the environmental authorities had testified to the fact that it had cleared up some of the sites where pollution was found earlier. Further, AMSA argued that being a private company it cannot be made subject to the stringent requirements of PAIA like State departments and agencies covered by that law. 

The Court found that AMSA had in its Annual Report of 2010 declared its intention of engaging with key stakeholders including environmental NGOs, government, community and the media in relation to its industrial operations. So, the refusal to part with information was not justified in any way. 

Determining the meaning and test needed to satisfy the word 'required' contained in Section 50(1) of PAIA, the Court ruled that it meant 'reasonable requirement' i.e., adducement of reasonable facts why the information was required which VEJA had adequately done so in its requests. VEJA had pointed to the past history of AMSA as a polluter in the area because of which obtaining such information was essential to ascertain further compliance. The Court noted at para #52 of its judgment that AMSA was 'a major polluter, if not the major polluter' in the area where it conducts its operations.

The Court noted that the constitution and other environmental laws guaranteed every person including associations of persons to come together to protect the environment, so VEJA was not usurping any regulatory role. Instead it was exercising its rights under the law of the land. In response to AMSA's argument that they cannot be subject to stringent requirements of transparency like public authorities, the Court said: "Corporations operating within our borders, whether local or international, must be left in no doubt that in relation to the environment in circumstances such as those under discussion, there is no room for secrecy and that constitutional values will be enforced. AMSA espoused environmental sensitivity in its Annual Report but adopted an obstructive approach when it came to disclosing information that would assist a collaborative effort." The Court held that the information sought by VEJA does not fall in the category of trivial or frivolous. Instead the Court said: "it concerns us all". As AMSA had committed itself to dealing with environmental issues in a participatory and consultative manner, its objections to disclosure could not be justified. The appeal was dismissed as being without merit.

The South African judgement is a major victory not only for environmental activists in South Africa but also for advocates of transparency in the operations of private corporations across the world.

Big Question : Will Indian Business Chambers, Political System and MNC Corporates support transparency initiatives for Private Players? 

Time will tell.

Do you want to know the factual information about -

• Trials data of new drug discovery - Public health Concern

• Safety data of Genetically Modified Crop Data - Environmental and Health Concern

• Mining Rehabilitation plans -  Environmental Concern

Express your opinion. What do you say?