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Something to hide? Department of Environment takes the path of least disclosure (South Africa)

By February 16, 2021Law & legislation

If you want information from the Department of Environment, Forestry and Fisheries about the policies and activities it undertakes, it will stretch your patience and sanity to a snapping point. Image as originally published by Daily Maverick.

Don Pinnock, Daily Maverick | February 15, 2021

Secrecy, according to the 19th-century English philosopher Jeremy Bentham, is an instrument of conspiracy and ought never to be the system of regular government. Yet bureaucracy always seeks the path of least disclosure.

That path is well tramped by the Department of Environment, Forestry and Fisheries (Deff). Transparent they are not.

Because it’s their legal duty to provide information requested of them, they’ve become masters of diversion and diffusion. It’s not that they’re uncommunicative, but that they lead you on a merry dance just to get the facts that you’d expect to be freely available to the public in a functioning democracy.

Do Deff officials have something to hide, are they terrified their inefficiency will be exposed, or is it simply because it’s a damn nuisance to answer questions? That this is happening under Minister Barbara Creecy’s watch is deeply worrying, given the initial elation by the wildlife community at her appointment to the environment portfolio. Is she aware of the problem or part of it?

Access to information is the lifeblood of any democracy and in this our law is unambiguous. Section 32(1)(a) of the Constitution provides that everyone has the right of access to any information held by the state, including provincial governments. This was confirmed in the Public Access to Information Act (Paia) of 2000, which even requires that an officer assist you to frame good questions.

Government departments are required to reply within 30 days. If they’re having trouble finding it, they are permitted another 30 days. And that’s all.

So how are we doing? When I asked environmental NGOs and journalists if they were having problems accessing information, it turned out they were – in spadefuls.

Gold-star deflections

Let’s start with rhinos. For some years, journalist Tony Carnie has been requesting the census data for Kruger Park rhinos, to no avail. Dr Salomon Joubert, a former Kruger Park warden, confirmed that his requests had also been fobbed off by Deff.

When I asked for the same data, I was told to contact the International Union for the Conservation of Nature (IUCN – of which, incidentally, I am a law commissioner) based in Switzerland. As deflections go, that got a gold star.

In November last year, in answer to a parliamentary question on the number of rhinos poached, Creecy said: “The department does not publish this information because it poses a risk in terms of our conservation efforts.”

Last month, DA Shadow Minister of Environment Dave Bryant asked for rhino numbers but Deff officials refused to answer. Then, after these refusals, the stats suddenly appeared, buried in the 2020 SANParks annual report just released. So was Creecy mistaken about the risk to conservation or simply badly informed?

The reason for prior refusals became clear – the stats were an embarrassment. Simon Espley of Africa Geographic wrote that, “after years of silence about Kruger National Park rhino populations… we can now confirm that populations in the Kruger National Park have plummeted to an estimated 3,529 white rhinos and 268 black rhinos. This represents a population reduction of 67% for white rhinos – from 10,621 in 2011 – and 35% for black rhinos – from 415 in 2013.”

The EMS Foundation, which supports environmental work, has found state departments to be maddeningly unhelpful. According to its director, Michele Pickover, in 2020 EMS spent almost R500,000 in lawyers’ fees on Paia requests that resulted in microscopically little information.

In 66 requests from May 2019, mainly to Deff, its associated National Biological Institute (Sanbi) and SANParks, the departments either failed to answer, gave partial answers that required further Paia requests or referred requests to provincial authorities, which almost never replied.

According to Stefania Falcon of EMS, “Sanbi and the zoos are better at responding but often don’t give you the proper info. Many hide behind a ‘third party non-disclosure’ [requirement],which they claim exempts them from providing the information. Ledet [Limpopo Department of Economic Development, Environment and Tourism] won’t even reply to you; SAPS, the police, didn’t bother despite many mails.”

There’s also something overly cosy about the relationship between Deff and the wildlife industry. The department publishes online all authorisations such as waste management licences, atmospheric emission licences, Biodiversity Act permits and general permits for boat-based whale watching and shark cage diving. But not those of the wildlife industry.

Heavily redacted information

Its reasoning is that wildlife permits have “third-party information”, which they say could be detrimental to those they licence. But for all other licensees, that’s not seen as a problem, to the point where they put them online. What’s the difference? Or, to put it another way, what did hunters, captive breeders and game farmers do to get special protection in pursuit of private gain?

The National Society for the Protection of Animals (NSPCA) and local SPCAs are state-sanctioned enforcement agencies but are required to put in Paia requests for information related to their legal mandate. According to a society official, when they do get the information, it’s often heavily redacted to the point of being almost useless.

Dr Bool Smuts of the Landmark Foundation says government departments hide behind the claim that providing information will expose someone’s right to privacy. “Mostly it’s fabricated and shields them from accountability,” he said. “That way they become unaccountable to the general public.

“Departments have been granted rights to issue permits concerning wildlife and these get issued under a cloak of secrecy. What’s inexplicable is that government departments are giving private parties permits of use or ownership of our biodiversity assets, but hide behind third-party confidentiality to avoid accountability for these allocations.

“It’s hard to avoid suspicion of corruption. And you can’t get the information. Hundreds and hundreds of Paia requests are being ignored. The claimed right to confidentiality is denying the public access to information that affects their right to a healthy environment. It is being abused to hide governance actions of state players for the secret gain of private parties and concealment of accountability. I think it’s ripe for a constitutional challenge.

“And here’s a further problem. If your demands for accountability get uncomfortable, officials turn on the ‘agitators’ by weaponising the permitting system. They cancelled our leopard research and conflict mitigation permits. We’re going to the high court over these issues and we’re quite happy to proceed to the Appeals Court and Constitutional Court because I think it’s fundamentally a constitutional matter that must be settled. But it’s expensive. Who or what are they shielding and why? They feel they’re above accountability.”

Louise de Waal confirmed that Blood Lions has similar problems. “Many of the provinces have no dedicated Paia officer or don’t advertise such a person. Information on websites is often outdated and/or people within those positions are moved so often that a steady contact is difficult to identify.

“Once the Paia officer’s contact details have been found, the emails go unresponded to, or an automated non-delivery email is received. Follow-up emails and phone calls end up in a big black hole or promises are made that are not kept. If requests are answered and Paia fees are paid, extensions are requested by the Paia officer for a variety of reasons and, again, the request is not fulfilled within the extended period.

“After eight months of sending emails, making follow-up phone calls and receiving empty promises, we received satisfactory responses from only three out of the nine provinces approached – Western Cape, KZN and Free State.”

Audrey Delsink, the wildlife director of Humane Society International-Africa, says: “In the last two years we made 14 Paia applications directly to the relevant entity, except for two that were made on our behalf by our attorneys. Our requests included information regarding quotas, numbers of captive breeding facilities, permits (CITES and local), transfer of hunting rights, permission to hunt species including lion, elephant, Cape mountain zebra and giraffe.

“Of the 14 Paia applications, we received one complete response with documents as requested, two rejections which we appealed but did not receive any further communications, had one response stating that information would not be supplied as we had not supplied a reason for the request.

“Our legal counsel provided a counter-response stating that you don’t have to provide a reason for the request. But, despite several attempts, there has been no further response from the department concerned.”

Other information blockages abound. Journalist Elise Tempelhoff said she had been trying to get an interview with Creecy since May 2018; requests were not denied, just flatly ignored.

“Whose environment is it anyway?” she asked. “Why do we have to put in Paias to get answers on our environment? And, besides, we pay these people’s salaries.”

Increasingly, NGOs and journalists have turned to Parliament to find answers. It’s laborious – you have to find an MP prepared to ask the questions in portfolio committee meetings, then wait for the written replies. Even then the results are not always satisfactory. Analysing parliamentary questions, it’s apparent that even when government departments do provide input, they use semantics to avoid answering. Here’s an example:

When Deff was asked in Parliament about hunting in the Associated Private Nature Reserves, the private reserves open to the Kruger National Park, they first answered that they did not “recommend” hunting offtake numbers, but only “comment and support” them (even though the Annexure B to the cooperation agreement refers to both). When then asked in a follow-up question what numbers they “supported”, Deff said they “were not at liberty to release the offtake requests”.

Why so cagey?

Why not? In fact, they’re legally not at liberty to refuse. This despite the fact that, in their own letter, they refer to having “supported” the animal offtakes. The implication: No, we’re simply not going to tell you, but because we’re obliged to answer parliamentary questions, we’ll play word games.

So, it’s fair to ask: What’s going on with our public institutions? Why are they so cagey? Who are they protecting and why? To quote the Swedish philosopher Sissela Bok: “If officials make public only what they want citizens to know, then publicity becomes a sham and accountability meaningless.”

I sent this article to Deff for comment and got a reply from its chief director of communications: “The Department of Environment, Forestry and Fisheries responds to all media inquiries received. Deff tries to meet deadlines set by journalists. In instances where the Department is not able to meet a deadline, it is communicated to the journalist.”

I think they may have forgotten to read the article. Or maybe they just don’t want to acknowledge (or, worse, realise) they have a serious communication problem. People trying year after year to source legitimate information from Deff are in no doubt that they do. What are they trying to hide?