Open Democracy Advice Centre Exposes Government for Failing to Implement 2-Year-Old Transparency Law

11 October 2002

At its Second Annual Open Democracy Review in Cape Town, ODAC reported that the majority of public servants have not heard of the Promotion of Access to Information Act 2000, which came into operation in March of 2001.

“We found that 54% of the public bodies we contacted were unaware of the Act, 16% were aware of the Act but not implementing it, and only 30% were aware and implementing it.” said Alison Tilley, ODAC Manager.

She was speaking at a conference today in Cape Town, where a community of users of access to information law came together to discuss problems with getting access to government and private sector records.

The Act is intended to provide a mechanism for giving effect to the right to access to information provided in the Constitution. This right of access applies to both privately and publicly held information.

“We also found that in the private sector, an insufficient number of bodies had heard of or implemented the Act to be a statistically significant sample. We are disappointed in the levels of implementation that we have found thus far.” said Tilley.

Andrew Puddephatt, Director of ARTICLE 19, an international organisation focussing on freedom of expression and access to information, said “The South African legislation is the gold standard against which we measure other laws: we would be very disappointed were it to fall at the hurdle of implementation.”

Tseliso Thipanyane, head of research at the SA Human Rights Commission, told the Review meeting that “Sadly, to date, out of more than 800 public agencies only twenty have prepared reports on the pattern of requests and refusals. Political Will – Question Mark!”

The results of the Study are also contained in a book published today by the Centre, called “The Right to Know, the Right to Live”, edited by Richard Calland and Alison Tilley, which also contains discussions from around the world on the impact of access to information on poverty and inequality. The book is available through IDASA Publishing: 021 467 5600.

“The right to access information is a right that unlocks the door to so many other rights.” said Richard Calland, Executive Chair of ODAC. “A strong sense of determination unites the access to information community. We will not let this crucial law gather dust. We will use it and we will enforce it. We will not go away.”

The Review meeting endorsed a Statement and Recommendations, a copy of which is included below.

For more information call Alison Tilley, Manager: ODAC, on 083 258 2209.


THE SECOND ANNUAL OPEN DEMOCRACY REVIEW

Declaration and Recommendations

On 10th October 2002, a group of civil society organisations, together constituting an access to information community, with representatives of the SA Human Rights Commission, the Public Service Commission and the Public Protector, and with some of its international associates, met in Cape Town for the purpose of reviewing the implementation of the Promotion of Access to Information Act 2000 and agreed on the following statement for publication to the media, government ministers and officials and to the Chairperson of the National Assembly Portfolio Committee on Justice:

NOTING:

1. That South African access to information act, underpinned by its constitutional bill of rights, represents the ‘gold standard’ internationally, and that the international human rights community expects that South Africa will continue to set the highest standards in terms of the implementation of a new culture of openness and accountability in the exercise of public and private power;

2. The importance of the right to information as a linking, leverage right, to enable citizens, especially the poor and most vulnerable members of society, to realise other socio-economic rights, and enabling them to participate meaningfully in the democratic process and thereby noting that the Right to Know is the Right to Live;

3. The inadequacy of government’s implementation of the Promotion of Access to Information Act 2000, including the widespread failure to appoint deputy information officers and the general failure to meet the time-limits for the completion and submission of manuals to the SA Human Rights Commission (while recognising exceptions, such as the excellence of the Department of Defence’s approach to implementation);

4. The apparent weakness and inconsistency of both electronic and paper-based record-keeping in state agencies;

5. The absence of any serious response to the Act by the private sector to its obligations under the Act;

6. The apparent flagrant disregard for the time-limits and other obligations under the Act by the implementing agency, the Department of Justice, in response to the request for the Reparations Policy document by the Khulumani Support Group;

7. The apparent general disregard for the time-limits when responding to requests for records;

8. The centrality of the SA Human Rights Commission’s role in monitoring the implementation of the Act, it’s own difficulties in meeting its statutory responsibilities under the Act that also influence the effective implementation of the Act by government;

9. The growing global campaign for transparency in the International Financial Institutions further notes the importance of the NEPAD project to all Africans, and the absence of adequate public participation in its development.

RECOMMENDS:

10. That parliament’s Portfolio Committee on Justice, as soon as practicable, review the options for the establishment of a new independent review mechanism, including at the provincial level, by comparing different models for an Access to Information Commissioner, such as the Hungarian Freedom of Information Commissioner, that would provide a more accessible remedy for citizens and a less expensive and resource-consuming enforcement mechanism for government than the current requirement to go the High Court to appeal a denial;

11. That the Public Protector be asked to investigate the general practice within government agencies in relation to responding to requests (in accordance with its authority under section 91 of the Act), with specific attention to the appointment of deputy information officers, the development of internal codes of practice and staff training programmes;

12. That government agencies be required, as a part of a standardised set of Codes of Practice, to respond to POATIA requests by means of a completed Access Request Response form, in order to provide greater transparency and accountability in the process of request-making and to provide a better service to citizen-requesters, and that the Regulations to the Act be amended accordingly;

13. That National Archives be resourced and tasked to fulfil its mandate to ensure the proper management of public records, in particular its inspection authority, and thereby to assist the preparation of manuals and the efficient response to requests for record;

14. That the NEPAD secretariat and members of the African Union adopt and publish a transparency policy and concomitant implementation plan, for the NEPAD project and related processes such as the monitoring mechanisms, so as to facilitate public participation in the evolution of NEPAD.

And CALLS on the SA Human Rights Commission:

15. To exercise its power under its own Human Rights Commission Act to hold government to account for its failure to meet its various obligations under POATIA;

16. To commit adequate resources to building capacity to meet its own obligations under the Act;

17. To join with civil society organisations active in the field of access to information in reaching a common strategy for combating the apparent absence of political will to effectively implement POATIA.

Signed by:

The Open Democracy Advice Centre
The Public Service Accountability Monitor
The Centre for the Study of Violence & Reconciliation
IDASA
The Black Sash
South African History Archive
The Khulumani Support Group

With their International Associates:

ARTICLE 19
The Commonwealth Human Rights Initiative, Ghana
The Peoples’ Campaign for Right to Information (MKSS), India
Media Rights Agenda, Nigeria
Media Institute of Southern Africa
IPYS, Peru
The Open Society Archive, Hungary
The Center for Public Integrity, United States.

10 October 2002

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