Programme Director, Mr Fola Adeleke
Deputy Chairperson of the SAHRC, Ms Pregs Govender
Members of the National Information Officers’ Forum Co-ordinating Council
Representatives of various NGOs and members of civil society organisations
Information Officers and Deputy Information Officers
Winners of the Golden Key Awards
Officials from various departments
Colleagues and friends
Thank you for the kind invitation to be part of this event, it is a pleasure for me to be here with you this morning.
The late Professor Kader Asmal once said that “information is the oxygen, the breathing space, of democracy”. And that statement would be no exaggeration; if one cuts off the flow of information it not only directly affects the individual concerned, but also stifles public discourse and debate and generally disempowers people.
This is all the more pertinent in a developmental state, where the individual is to a large degree reliant upon the state for the realisation of his or her socio-economic rights. A developmental state plays an active role in guiding economic development and using the resources of the country to meet the needs of the people. It uses state resources to try and alleviate poverty and expand economic opportunities.
Information and access to information are vital parts of the developmental state. Former Secretary General of the UN, Kofi Annan said: “If information and knowledge are central to democracy, they are conditions for development.”
Our developmental state needs to be responsive to the needs of our people. Our Constitution is often referred to as transformative as it requires and assists in facilitating the complete transformation of our society from a culture that was oppressive, secretive and profoundly disrespectful of basic human rights to a human rights based culture. The right of easy access to the relevant information is of fundamental importance in a constitutional democracy.
However, if one looks at some of the research and the information provided by the South African Human Rights Commission it becomes apparent, once again, that various government Departments and municipalities could be doing much more in making information available to people, so as to empower them to access and realise their constitutionally guaranteed rights.
The 2010 Golden Key Report, undertaken by the HRC to determine compliance with PAIA, really speaks for itself. The sample included 23 national government departments, 25 provincial departments and 34 local governments. Of the 23 national government departments, 15 of them scored 0 %. Of the 34 local governments, most of which were district municipalities, 26 municipalities scored a 0. This amounted to an overall compliance result of 31%, which was all the more worrying as it was lower than the 38% compliance in 2008.
The SAHRC also identified a number of challenges which thwart the realisation of the right to access information. In its article called “Ten Years of Access to Information in South Africa: Some challenges to the effective implementation of PAIA” it states that some of these challenges can be attributed directly to the regulatory framework while others relate to the orientation of the state apparatus to fully deliver on PAIA; and other factors relate to the socio-economic and cultural landscape in South Africa.
The commission argues that although reform to the legislative framework has been wrought incrementally on a few issues such as the lowering of request fee thresholds, the current dispute resolution mechanism in the legislation continues to present a critical barrier to the assertion of rights and its overhaul is warranted. Levels of awareness remain a common thread in the matrix of barriers to implementation.
Of the issues identified, let me start with the enforcement mechanism or dispute resolution issue. In as far back as 2007, the Report by the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions, better known as the Asmal Report, found that the appeal mechanisms in PAIA are complex and expensive and “places further obstacles in the way of ordinary individuals wishing to access information.” Should a requestor’s request for information be denied and the internal appeals process be unsuccessful, the aggrieved individual has no other choice but to approach a court of law.
The committee argued that the cost and complexity of such processes often make it difficult if not impossible for individuals or groups without adequate resources to exercise their right to information through the Act. It is significant that only a handful of such cases ever reach the court.
Therefore the Asmal Committee recommended that a dedicated Information Commissioner be established in the legislation. The proposals centre around the establishment of an independent information commissioner mandated to receive appeals from persons lodging requests for information and make binding orders on access and disclosure.
In addition to the recommendations by the Asmal Committee, NGOs and civil society bodies have suggested that some form of tribunal with enforcement powers be established in the legislation. Prior to the legislation being drafted there were suggestions for a specialist enforcement body, such as Information Courts and an Open Democracy Commission. At present, it seems that independent arbiters work well in terms of other legislation. As Justice Bernard Ngoepe was recently appointed by Minister of Finance in terms of Tax Administration Act as a Tax Ombud, one could argue that this is a generally accepted best practice.
The Protection of Personal Information Bill, or PPI for short, has brought about certain PAIA amendments. The PPI was passed by the National Assembly on 20 August 2013 and will now be submitted to the President for signature. The crux of the amendments to PAIA entail that access to personal information of the requester will be governed by the PPI, although the request procedure under PAIA will continue to apply. It creates an Information Regulator that will have powers both in terms of the PPI and PAIA and the powers of the SAHRC under PAIA have been transferred to the Information Regulator.
The Information Regulator is also given additional powers in respect of PAIA to act as an in dependent arbiter. A requester or third party may make a complaint to the Information Regulator within 180 days of receiving a decision from a public or private body. The Information Regulator may either investigate the complaint, or refer the complaint to the enforcement committee (a committee of the regulator) or decide to take no action if the complaint is out of time and no reasonable grounds for condonation exist or if the complaint is frivolous or vexatious or not made in good faith or if further action is unnecessary or inappropriate.
The Information Regulator also has the power to seek a settlement before investigation. After the Information Regulator receives a recommendation from the enforcement committee, the Information Regulator can serve the information officer of the public or private body with a notice confirming, amending or setting aside the decision that is the subject of the complaint and requiring the body to take action or refrain from taking action as specified in the notice.
It is an offence carrying a penalty of a fine and/or up to 3 years imprisonment not to comply with an enforcement notice. When conducting an investigation the Information Regulator has the power to summon and compel the attendance and/or giving of evidence, to administer oaths, to receive and accept any evidence other information the Regulator sees fit, whether or not it would be admissible in court.
The Information Regulator may enter and search any premises occupied by the public or private body and may conduct a private interview with any person in such a premise. When considering a matter the Information Regulator has the same powers as the court to examine the record in dispute.
There is a general right of appeal to court from a decision of the Information Regulator. A complaint to the Information Regulator must be undertaken before a party can make and application to court and the time period for applying to court has been be amended to 180 days.
The Information Regulator also has a general power at its own initiative or at the request of an information officer or any other person to make an assessment (in a manner to be prescribed) of whether a public or private body generally complies with the provisions of PAIA insofar as its policies and implementation procedures are concerned.
We are of the view that these amendments will greatly assist in making information easier to access and will address many of the problems experienced.
With regards to the second obstacle that was experienced, namely levels of awareness, it is a fact that levels of awareness of the Act, and possibly of most human rights instruments in general, amongst the general population, are low. The reality of the matter is that the ordinary person in the street doesn’t know that they have the right to ask for the information.
This is why we need to encourage proactive and voluntary disclosure of information. We come from living in the apartheid state, with its secretive culture and various restrictions and classifications relating to information held by the state. We have not yet succeeded in creating a culture of openness and transparency. In short, we need a change of mindset.
This is where the HRC and our NGOs and civil society have a crucial role to play. Knowledge and awareness of legislation is partly the responsibility of government, but is much more successfully achieved through activist civil society. A striking example of this, rather ironically, is The Protection of State Information Bill.
A significant portion of our society knows about the legislation and its provisions and there has been a lot of public interest and public debate on it. What this illustrates is the level of mobilisation and activism that civil society can achieve. And that is a good thing in a healthy democracy. But, if civil society and the media are saying that this is how vitally important information is to a democracy, why not have the same intensity of mobilization or activism around PAIA and its provisions and the PPI and its provisions?
From the side of the Department of Justice and Constitutional Development we have ongoing programs aimed at to raise awareness about people’s Constitutional rights in general and their right to access to information specifically. But the biggest challenge when it comes to raising levels of awareness or encouraging the voluntary or proactive disclosure of information is thinking creatively and out of the box.
For example, how do most Departments voluntarily make information available? They put it on their departmental website. However, the reach thereof is severely limited, as the majority of our people don’t have internet access or are not IT literate. We need to think creatively. For example, where do most people go? They visit their local clinics, they go to church or other religious institutions, their children go to school. Why are we not including the topic of access to information as part of the Life Orientation curriculum in high schools?
Why are we not placing leaflets at government clinics or Home Affairs offices? Should we not get the SA Post Office to add a leaflet with every piece of mail it delivers? Why, when there are government imbizos, are there no stalls or desks with officials providing information on PAIA? Could arrangements not be made with SASSA, that information leaflets are handed out to people when they go and collect their social grants? What about Community Development Workers, or our local libraries?
Finally on the issue of proactive and voluntary disclosure, we can examine some of the clauses of the Model Law. The Model Law on Access to Information for Africa was drafted to assist states to the African Charter on Human and People's Rights to fulfil their obligation to adopt legislative or other measures to give effect to the rights, duties and freedoms enshrined in the Charter.
The Model Law was created to guide the development of access to information, which is a fundamental right stated in Article 9 of the African Charter. In many instances, it has been argued that our PAIA is a better piece of legislation than the Model Law. However, when it comes to proactive disclosure the Model Law appears to be more detailed. Both laws provide for proactive disclosure, sec 7 of the Model Law and sections 15 and 52 of PAIA.
The Model Law obligates public bodies to publish information including but not limited to information on whether meetings of the body are open to the public, the contents of decisions reached at meetings, the process of decision making, the design and execution of any subsidy programmes implemented with public funds, any amounts allocated, the criteria for accessing the subsidies, all contracts, licenses, permits and authorisations granted by a public body, reports containing the results of surveys, studies or tests including scientific or technical reports and environmental assessment reports.
Programme Director, the long and the short of it, is that we know what the shortcomings of PAIA are. We have amended the legislation and drafted new legislation. Yet there are still some issues that have been raised even before the Asmal Committee existed and some 6 years after the Committee delivered its report, we are still raising and debating the very same issues. I think I can safely say that those of you who knew Prof Asmal will agree that, were he here with us today, he would be pleased about the Information Regulator, but would be highly annoyed at the lack of progress in making government departments more responsive.
Some commentators argue that people are turning to service delivery protests, rather than access to information requests in order to realise their rights. As Allison Tilley of ODAC wrote: “We have recently expressed particular concern about the responsiveness of district municipalities.
As the Public Service Commission noted in their 2008 report: “Some citizens have found alternative ways to draw attention to the need for public participation through service delivery protests and rising activism. This development should come as a signal to government that effective communication and public participation must remain a fundamental priority.”
Let me return to the issue of enforcement and the suggested creation of some sort of Information Ombud or Information Commissioner, or as we now have, the Information Regulator.
A major concern with the creation of such an office is that it does, by no means, guarantee that there will be more compliance or greater responsiveness by government departments. If government departments are ignoring requests from the SAHRC, which is a Constitutional Chapter 9 body, what assurance do we have that they will assist and comply with requests or directions from an information commissioner or ombud, or in this specific case, the Information Regulator? And even if such an office has significant powers to make orders, how will it enforce it?
The Information Regulator has wide powers of enforcement and we are confident that these powers and responsibilities will bring about the desired outcomes. However, this will have to be closely monitored and where problems are experienced with non-compliant bodies, action will have to be taken swiftly.
Once again, I would argue that we need to work with what we have. Our legislative framework may not be perfect, but we have new legislation in place and there are amendments to PAIA to bring about extended powers of enforcement. I believe that these powers and responsibilities can assist. For example, with regards to non-compliant government departments or departments who do not make sufficient voluntary or proactive disclosure, these can and should be reported to Parliament.
Parliament can deal with it in a variety of ways, such as referring it to the relevant Portfolio Committees for them to follow-up as part of their oversight function. Or it can be put into a formal Parliamentary report, or it could be referred to the Leader of Government Business to deal with in the same manner as with outstanding answers to parliamentary questions.
Very importantly, if bodies such as the Human Rights Commission and other Chapter 9 bodies, not only for the purpose of PAIA but in their general functioning, struggle to obtain information and co-operation from government departments these matters can and should be brought to the attention of the Office on Institutions Supporting Democracy which is part of the Speaker’s Office in the National Assembly. In August 2010, the National Assembly Forum and the Speaker approved the Unit, to be known as the Office on Institutions Supporting Democracy (OISD).
The vision of the Office is to enhance Parliament’s oversight over the Institutions Supporting Democracy. The purpose of the Unit is to facilitate and coordinate all engagements between Parliament and the ISD in order to ensure meaningful engagement and support.
In short, Programme Director, perhaps the time has come for “more stick, less carrot”. In other words, as much as we all realise the benefits of voluntary disclosure, that we do not rely on proactive disclosure, but ensure that departments are compelled to comply.
There are also other avenues available such as government initiatives like the Open Government Partnership of DPSA and the work being done by the Department of Performance Monitoring and Evaluation in the Presidency. Some departments, such as the Department of Justice and Constitutional Development have PAIA compliance as one of its key measureable objectives or performance indicators. Perhaps it is time that all other government Departments, both nationally and provincially, be compelled to do the same?
In conclusion, I can inform you that the magistrates’ training on PAIA is nearly complete and therefore we will very soon have Magistrates Court being able to adjudicate on PAIA.
May I take the opportunity to congratulate and thank the winners of the Golden Key Awards. Access to Information is about people. We are dealing with people’s lives. If people do not have access to the information they require to realise their rights, they lose trust in government, in democracy, and in the rule of law. Then we are doing our struggle for freedom and our struggle for justice for all our people a disservice. All of us here today have an important role to play, our people deserve our best efforts.
I thank you.
