Response to e-Brief ‘The BioWatch Legal Battle and Media Spin’

Tuesday, August 7, 2007 - 08:18

The recent e-brief by Donrich Jordaan (“Centre for International Political Studies’ E-brief on the BioWatch Legal Battle and Media Spin”, 10 July 2007) requires a response.  Jordaan heads up the Unit for Policy Studies at the Centre and is also a director of Sylvean Biotech, a company established to pursue business opportunities in modern biotechnology.

The e-brief focuses on a High Court application launched by Biowatch, a non-profit organisation working nationally to monitor issues around genetically modified crops and promote biodiversity, biosafety, food security and social justice.  In 2001, Biowatch applied to the High Court for an order granting it access to information held by the Department of Agriculture relating to genetically modified organisms or “GMOs” and their regulation under the Genetically Modified Organisms Act.  Reliance was placed primarily on the constitutional right of access to information.  Despite strong opposition from six respondents, including three multinational seed companies, the February 2005 judgment granted Biowatch access to most of the information identified in its application papers and was hailed in the media as a victory for Biowatch. 

Not so, argues Jordaan in his recent e-brief.  The positive media publicity that accompanied the judgment was in his words “thoroughly one-sided and inaccurate” and “a precursory reading of the judgment clearly paints a different picture to that of a ‘major victory’ for BioWatch [sic], which was widely trumpeted by the media.”

These are strong words.  Unfortunately for Jordaan, the facts do not bear out his viewpoint, which is so one-sided that it is inevitably toppled by the weight of its own bias. 

The Biowatch judgment
A careful analysis of the judgment demonstrates the legal victories that Biowatch achieved in order to obtain information to which access had previously been denied.  Significantly, the Court agreed with Biowatch that it was entitled to rely on the constitutional right of access to information.  In doing so, the Court rejected a host of preliminary points raised by the respondents.  Certain respondents also argued that Biowatch should not have approached the Court without first exhausting internal appeal procedures.  The Court disagreed, stating that “Biowatch had no alternative remedy to enforce its rights”. (See paragraph [66] of the judgment.)  This clear statement by the Court shows up the obvious inaccuracy in Jordaan’s contention that the Court found “it [Biowatch] could have followed internal appeal procedures within the government department holding the information”. 

The judgment describes Biowatch’s four written requests for information addressed to the Department over an eight month period.  The Department was criticised by the Court for taking a passive role in relation to Biowatch’s requests.  (See paragraph 43 of the judgment.)  The Department’s response to the first request satisfied the Court, although Biowatch argued that it was not adequate.  Little or no response was given to the second and third requests, which consequently were repeated in the fourth request.  Since the fourth request encapsulated the second and third requests, it is the only one of direct relevance in determining whether Biowatch was successful.  Including the repeated information from earlier requests, the fourth request contained eleven categories of information to which Biowatch sought access. 
Jordaan’s argument
This brings us to the crux of Jordaan’s argument, which appears to be that the number of requests granted by the Court was insufficient to constitute a victory.  On his analysis of the judgment, Biowatch ended up with “two (small) wins; five debatable wins/defeats; and seven defeats” – in other words a 50/50 scenario.

Jordaan’s number-crunching exercise is not consistent with the Court Order, which granted Biowatch access to seven out of the eleven categories of information in the fourth request, namely: (1) all data regarding risk assessments accompanying permit applications under the GMO Act; (2) copies of permit applications; (3) details of permits granted; (4) details of public participation in relation to applications; (5) details of registered academic and research institutions for specified years; (6) copies of minutes of meetings of the decision-making bodies (Executive Council and Advisory Committee); and (7) details of all persons on the Advisory Committee, including the public sector appointees.  In addition, Biowatch was granted partial access to an eighth category, namely full details (excluding exact co-ordinates) of the areas for field trials and commercial releases of GMOs.  The only qualification in the Order was that access to information within one of the eight categories could be refused by the Department if the information was protected by the Promotion of Access to Information Act.  In such event, the Act provides for any paragraph or sentence containing protected information to be severed from the disclosed record.  This is consistent with Biowatch’s stance, articulated in its court papers, that it had no objection to the exclusion of confidential information.

The remaining three of the eleven categories of information were described by the Court as either overbroad or too vague and access was refused.  Possibly due to this finding, the Court found substance in submissions by the respondents that the requests for information constituted a “fishing expedition” and that the “catch-all requests were clearly vexatious and oppressive”.  (See paragraph [42] of the judgment.)   This criticism overlooks the difficulty faced by a litigant who must describe records it has not seen while the record holder fails to clarify the requests with reference to the available records.  Yet, even accepting the criticism at face value, there is a vast distinction between some requests for information being criticised and an entire court application being characterised as vexatious and oppressive.  The latter was not the finding of the Court, although Jordaan seeks to suggest that it was. 

Private rights versus public interest
Aside from his statistical analysis, Jordaan argues that “BioWatch [sic] was not successful in even one single instance to override [sic] private industry’s confidential trade information, which is what BioWatch [sic] specifically set out to do”.  It is not clear why this would be of concern, given that the intellectual property of seed companies relating to the development of GMOs ordinarily is protected by patents.  In any event, Jordaan’s argument misses the point of the application.  The purpose of the application was to obtain information about the regulatory processes applicable to GMOs.  None of the respondents disputed Biowatch’s argument that potential dangers exist in GMO experimentation, as the technology is unpredictable and poses public health and environmental risks.  Indeed, the Court accepted that Biowatch acted in the public interest in bringing the application. (See paragraph [14] of the judgment.) The Open Democracy Advice Centre joined the proceedings as a friend of the Court in order to promote transparent democracy, as well as corporate and government accountability.  These collective motives hardly paint a picture of nefarious entities seeking to lay their hands on trade secrets. 

In its court papers, Biowatch indicated a willingness to negotiate on the exclusion of confidential information from the records that it sought.  As appears in the final paragraph of the judgment, a successful negotiation took place with Pannar (Pty) Ltd, a seed company that voluntarily agreed to make information available.  It is an irony of the application that the confidential trade information allegedly sought by Biowatch was peculiarly within the knowledge of the multinational respondents that submitted records containing such information to the Department.  Despite this, only Pannar was willing to discuss the records in order to clarify the scope of the requests. 

Biowatch has appealed against one aspect of the judgment – the granting of a costs order in favour of Monsanto.  Of the six, Monsanto was the only respondent to persist in its request for a costs order against Biowatch.  The appeal has been argued and judgment was reserved.  Jordaan objects to the appeal, alleging that it opens the door to “all kinds of vexatious cases in the name of ‘public interest’”.  What is disturbing is the evident attempt to equate the general rights of the public to environmental integrity with the narrow rights of a multinational corporation to preserve its profit margins.  Jordaan overlooks the Court’s acceptance of Biowatch as a public interest litigant and relies on his inaccurate characterisation of the court case as vexatious.  It is irresponsible and defamatory to describe a case as vexatious when a Court clearly accepts the constitutional right relied upon; finds that the litigant had no option but to approach the court for relief; and awards the majority of the relief sought.  This is especially so when the unwarranted criticism is leveled by an advocate (who is by virtue of his profession an officer of the Court) in circumstances in which judgment on the appeal remains pending. 

As noted by the Court in the application for leave to appeal, Biowatch was substantially successful.  Certainly, it is hard to regard an order granting access to seven out of eleven categories of information as anything other than a victory.   As Jordaan says, the public deserves the truth. 

We await the outcome of the appeal with great interest.

- Josie Eastwood (BA LLB LLM (constitutional and administrative law), an environmental lawyer, was peripherally involved in the Biowatch case whilst employed by the law firm that represented Biowatch in the first application.  She has subsequently left the firm.