Boudewyn Homburg De Vries Smuts N.O. and Others v Member of the Executive Council: Eastern Cape Department of Economic Development Environmental Affairs and Tourism and Another

The Landmark Foundation Trust, a conservation NGO focusing on predator management and leopard conservation, requested access to information under PAIA from the Eastern Cape Department of Economic Development, Environmental Affairs and Tourism. The Foundation sought details of all applications received and permits issued to trap, kill, hunt or translocate leopards from 2017 to December 2019, including applicant names, types of restricted activities, locations, species details, and translocation information. Leopards are listed as 'vulnerable species' under the TOPS Regulations and NEMBA prohibits restricted activities without a permit. The Information Officer refused the request, confirmed on appeal, on the grounds that disclosure would constitute unreasonable disclosure of third parties' personal information under section 34 of PAIA. The Foundation argued that there could be no reasonable expectation of privacy given the nature of the information, and alternatively, that the public interest override in section 46 of PAIA applied.

• Whether disclosure of information contained in TOPS permit applications and issued permits constitutes 'unreasonable disclosure of personal information' under section 34(1) of PAIA
• The proper interpretation of section 34(1) of PAIA and the meaning of 'unreasonable disclosure'
• The interplay between the constitutional right of access to information (section 32) and the right to privacy (section 14)
• The relationship between PAIA and POPIA in protecting and disclosing personal information
• Whether applicants for permits to conduct restricted activities involving vulnerable species have a reasonable expectation of privacy
• The burden of proof in justifying refusal of access to information under PAIA
• Whether the public interest override in section 46 of PAIA needed to be considered

The second respondent's decision refusing the PAIA request was set aside. The second respondent was directed to provide the Landmark Foundation Trust with access to all requested records within fourteen days. The second respondent was ordered to pay the applicants' costs including the costs of two counsel.

Section 34(1) of PAIA requires the Information Officer to assess whether disclosure of personal information would be 'unreasonable' in the circumstances, not merely whether personal information is contained in the record. Not all personal information is protected from disclosure under section 34(1). The test for determining whether disclosure is unreasonable involves assessing whether there is a reasonable expectation of privacy, applying both subjective and objective criteria. Activities requiring permits for restricted activities involving vulnerable species under NEMBA and the TOPS Regulations have acquired a social dimension outside the private domain, given their potential impact on the environment and the public trust nature of environmental resources. Applicants for such permits do not have a reasonable expectation of privacy regarding the information contained in permit applications and issued permits. Contemporary boni mores and constitutional principles of transparency, accountability and openness in environmental decision-making, as reflected in NEMA, support disclosure of such information. Personal information that may be reasonably disclosed falls outside the scope of protectable information under the constitutional right to privacy. The burden rests on the party refusing access to prove on a balance of probabilities that the information falls within the claimed exemption. Under POPIA, objections to disclosure must be based on reasonable grounds, and processing of personal information may be lawful where necessary for the proper performance of public law duties or pursuing legitimate interests of third parties to whom information is supplied.

The court noted that the amicus curiae raised important issues regarding the need for public participation in the TOPS permitting process and questioned whether information should automatically be made available rather than requiring PAIA applications. However, following the approach in AmaBhungane Centre for Investigative Journalism, the court declined to address these broader issues as they were not fully ventilated by the parties and would have far-reaching implications warranting comprehensive treatment. The court suggested that Information Officers could address disclosure issues prospectively by informing persons providing information to public bodies under section 34(2)(b) of PAIA that such information forms part of a class that would or might be made available to the public, thereby precluding future refusals. The court observed that concerns about information being used by criminals for poaching were speculative and did not discharge the burden of proof. The court noted that following Paul v MEC for Health, there is no basis for citing or granting relief against the appeal authority in section 78 PAIA applications - the focus must remain on the Information Officer.

This judgment is significant for South African law on access to information and environmental governance. It clarifies that section 34(1) of PAIA requires a substantive assessment of whether disclosure of personal information would be 'unreasonable' - not automatic refusal whenever personal information is involved. The decision establishes that activities requiring permits for restricted activities involving threatened species have a social dimension that negates any reasonable expectation of privacy, given the public trust nature of environmental resources and constitutional principles of transparency and accountability. The judgment emphasizes that access to information is the constitutional norm and exemptions must be narrowly construed and justified by evidence. It recognizes the close link between access to information and realization of environmental rights, particularly regarding conservation of vulnerable species. The decision confirms that the burden lies on the state to justify refusal of access on a balance of probabilities. It also clarifies the interplay between PAIA and POPIA, holding that objections to disclosure of personal information under POPIA must be based on 'reasonable grounds' and that processing may be lawful where necessary for public law duties or legitimate interests. The case reinforces constitutional values of openness, transparency and accountability in environmental decision-making.