South Africa
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14 May 2012
Reception Lukewarm for ANC Compromises on Secrecy Bill
The ruling African National Congress in South Africa has proposed modifications to the controversial Protection of State Information Bill, but critics say they do not go far enough.
The Right2Know Coalition that opposes the “secrecy bill” on May 11 called… -
3 May 2012
R2K Campaign Objects to Shortened Schedule
The South African Right2Know coalition May 3 objected to plans by a parliamentary committee to consider the controversial Protection of State Information Bill in two sessions rather than the planned seven.
Nobel Prize winner Nadine Gordimer, who has opposed the…
freedom of information
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated July 2006)
Section 32 of the South African Constitution of 1996 states:
(1) Everyone has the right of access to – (a) any information held by the state, and; (b) any information that is held by another person and that is required for the exercise or protection of any rights;
(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.
The Promotion of Access to Information Act (PAIA) was approved by Parliament in February 2000 and went into effect in March 2001. It implements the constitutional right of access and is intended to “Foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information” and “Actively promote a society in which the people of South Africa have effective access to information to enable them to fully exercise and protect all of their rights.”
Under the Act, any person can demand records from government bodies without showing a reason. State bodies currently have 30 days to respond (reduced from 60 days before March 2003 and 90 days before March 2002).
The Act also includes a unique provision (as required in the Constitution) that allows individuals and government bodies to access records held by private bodies when the record is “necessary for the exercise or protection” of people’s rights. Bodies must respond within 30 days.
The Act does not apply to records of the Cabinet and its committees, judicial functions of courts and tribunals, and individual members of Parliament and provincial legislatures. There are a number of mandatory and discretionary exemptions for records of both public and private bodies. Most of the exemptions require some demonstration that the release of the information would cause harm. The exemptions include personal privacy, commercial information, confidential information, safety of persons and property, law-enforcement proceedings, legal privilege, defense, security and international relations, economic interests, and the internal operations of public bodies. Many of the exemptions must be balanced against a public-interest test that require disclosure if the information show a serious contravention or failure to comply with the law or an imminent and serious public safety or environmental risk.
For public bodies such as national government departments, provincial government departments and local authorities, the internal review is handled by the responsible Cabinet minister. It can then be reviewed by a High Court. Decisions of private bodies are appealed directly to the court. The courts can review any record and can set aside decisions and order the agency to act. The South African History Archive and the Open Democracy Advice Centre have brought a number of successful court cases against both public and private bodies where the courts have ordered the release of information or the public bodies have settled the cases out of court. In 2005, businessman Richard Young won a three-year fight to have draft documents released in respect of a controversial government investigation into procurement processes surrounding a major arms deal. The drafts showed that a number of significant findings had been omitted or watered down in the publicly-released report, suggesting “serious irregularities” in the procurement process. Notably, the Attorney General, when questioned by MPS in 2003, denied making any material edits to the final report. In another notable decision, in April 2005, the Institute for Democracy in South Africa (IDASA) lost an appeal to the Cape Town High Court seeking to establish the principle that political parties were obliged to give details of substantial private donations under the Act. The Court found that political parties are not public bodies under the Act and alternatively that the information was not required for the proper exercise of the right to vote, such that the political parties as private bodies were under no disclosure obligation under the law. The Supreme Court of Appeal limited the right of individuals to obtain information from private bodies, ruling in March 2006 that a hospital was not required to provide information to the wife of a deceased patient who was trying to obtain more information about his death as part of a potential lawsuit against the hospital.
There are criminal fines and jail terms for those who destroy, damage, alter or falsify records. The public prosecutor can investigate cases of maladministration.
Public and private organizations must publish manuals describing their structure, functions, contact information, access guide, services and description of the categories of records held by the body. The manuals are submitted to the South African Human Rights Commission and published in the Government Gazette. The National Intelligence Agency was exempted in June 2003 from having to publish a manual until 2008 and the South African Secret Service received a similar exemption. Most smaller private organizations were exempted in September 2005 from producing manuals until 2011. Government bodies must also publish a list of categories of information that is accessible without requiring an access request.
The South African Human Rights Commission (SAHRC) has been designated to oversee the functioning of the Act. It was required under the law to issue a User’s Guide on the Act in all official languages. It must also submit annual reports to Parliament, and can promote the Act, make recommendations, and monitor its implementation. A major problem has been that the Commission initially received little funding for any activities under the Act.
The expert committee that drafted the Act proposed creating an Open Democracy Commission and specialized information courts, but those sections were removed by the Cabinet before the draft bill was introduced in Parliament. The SAHRC commissioned papers on its role and the possible creation of an independent information commission and announced in October 2004 that it planned to seek the authority to have greater oversight over the PAIA. The 2004-05 SAHRC Annual Report included a recommendation for the establishment of an Information Commissioner to act as a cheap, timely independent appeals mechanism under the Act.
There have been problems in the implementation of the Act and its use has been limited. A survey conducted by the Open Democracy Advice Centre in 2002 found, “on the whole, [PAIA] has not been properly or consistently implemented, not only because of the newness of the act, but because of low levels of awareness and information of the requirements set out in the act. Where implementation has taken place it has been partial and inconsistent.” Almost half of the public employees had not heard of the Act. A larger problem pointed out by the Centre for the Study of Violence and Reconciliation is the poor records management of most departments.
More recently, ODAC published results of a monitoring survey carried out over a period of 6 months in 2004 during which 140 requests were submitted to 18 public institutions by 7 requestors from different spheres of civil society. The 2004 Monitoring Survey followed a similar 2003 Monitoring Survey, undertaken as part of a pilot monitoring study. The 2004 Survey found that only 13 percent of the submitted requests for information resulted in the information being provided within the 30-day time limit in the Act, while 63 percent of the requests were ignored. Out of the 140 requests that were formulated, the requestors were unable to submit 15 percent of them. Only 1 percent of the responses to the requests for information culminated in a written refusal and 2 percent met with oral refusals. Interestingly, a comparison of the two surveys shows that compliance has actually dropped; in 2003, 52 percent of the requests received no response and only 23 percent of requests received a positive response.
The South African History Archives also commissioned a study in 2004 on how prepared State departments were to manage requests for digital electronic records made under the Act. The Report indicated that few departments keep official records in electronic form and that there was no formal policy and procedure on how and when electronic records should be stored.
The last SAHRC report, produced for 2004-05, reported with concern that the number of public bodies submitting their statistical reports continues to remain low, with a decrease in the number of reports received. The SAHRC noted that if they cannot obtain proper reports the extent of use of the Act by the public cannot be accurately and comprehensively ascertained. The SAHRC identified that more training of officials will be undertaken in the following year to deal with the problem. The SAHRC also flagged that the reporting year will be changed from the financial year (ending in March) to the calendar year from 2007. Notable statistics for the 2004-05 year included the fact that the South African Police Service received 17,001 requests, compared to 14,744 the previous year. The next most targeted public body was the Department of Transport, with 716 requests. Interestingly, it appears that very few appeals – less than 20 – were made against refusals to disclose information.
The Apartheid-era Protection of Information Act of 1982 sets rules on the classification and declassification of information. The government announced the creation of a classification and declassification review committee in March 2003. The Truth and Reconciliation Commission found that there was a systematic destruction of classified documents starting in the period 1990-1994, sanctioned by the Cabinet. There has been considerable controversy over access to the records of the Truth and Reconciliation Commission (TRC) some of which were sent to the National Intelligence Agency. The government is claiming that it can reclassify the “sensitive” documents in the files. In 2003, SAHA won an out of court settlement under the terms of which the files were moved to the National Archives and are being prepared for public access. SAHA also discovered the existence of many thousands of Military Intelligence files that had never been sent to the TRC. SAHA used the PAIA to secure lists of these files and is now systematically accessing the files themselves. SAHA discovered in February 2006 that thousands of files from military intelligence files had been sent to Zimbabwe without keeping copies even after a PAIA request had been filed.
The Law Reform Commission is currently holding a public consultation on privacy and data protection as part of an effort to enact a law to enforce the constitutional right of privacy. It issued a second discussion paper and draft bill in October 2005.
The National Archives of South Africa Act of 1996 provides for the release of records in the custody of the National Archives after 20 years.
All footnotes and references are also available in the full study, available here.
2004 freedominfo.org Global Survey Results – South Africa
