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Hazardous waste

Image source: www.amnestyusa.org

In many jurisdictions a distinction is made between company records that must be made available to the public by law, and records that companies may disclose at its own discretion.

There has been some debate in the legal fraternity as to whether company documents pertaining to environmentally hazardous activity falls within the ambit of compulsory public disclosure.

Looking at the nature and theme of records that are subject to compulsory public disclosure, the one underlying common factor is that disclosure of such records serves some or other public interest.

For instance, laws of a country may require that a company disclose the names and identities of its executive management in order to inform the public of the people authorised to act on behalf of the company.

It is in the interest of the public that records which may bear information of environmentally hazardous activity are disclosed. This may not have been the case many years ago, but in an age where our existence literally hinges on environmental protection it is quite important that private persons have the power to inquire into a company’s activity.

The lack of access to information also has a negative effect on the work carried out by environmental NGOs. It stands to reason that if a state should allow NGOs to pursue their different courses within its territory, such state should also make it possible that the objectives of the organisations can be reasonably achieved. This is not the case if companies are allowed to refuse disclosure of certain documents without furnishing reasons thereto.

The other problem with lack of access to information is that it sends out the message that companies can do as they wish. For instance, in Swaziland there is a company that allegedly pays large sums to landowners to dump toxic waste on their land. Such company cannot be forced to disclose any of its contracts, nor can the landowners disclose their interaction with such company pursuant to non-disclosure contracts signed by them. The culture of impunity is thus perpetuated.

Public disclosure is an intricate part of public participation. It is important that all subjects of a legal system feel that they too own the environment, and that they can protect it when the need arises.

Non disclosure frustrates that ambition.

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