Michele Pickover and Verne Harris
Brought into operation on March 9 this year, the Promotion of Access to Information Act is intended to be the legislative cornerstone of freedom of information in South Africa. Technically it is sound, drawing on the experiences of drafters and implementers of such legislation in a number of other countries.
Uniquely, it goes beyond defining the right of public access to information held by the state, also defining the constitutional right of access to information held by private bodies. Its numerous possible grounds for refusing access are to be weighed against the public interest in disclosure, giving courts the burden of interpreting competing imperatives and determining the parameters of freedom of information for South Africa. This reliance on judicial interpretation is appropriate to a fledgling and rapidly developing democracy.
However, as with any piece of legislation, the Act is dependent on a variety of processes to ensure its effective implementation. And there are several concerns.
Firstly, in order to exercise their rights, it is imperative that South Africans have adequate access to information about what records are in the custody of public and private bodies.
The Act requires that every public and private body produce a regularly updated manual detailing its records systems and related contextual information. Presumably because of the huge administrative burden this will create for bodies already challenged by the Act’s other provisions, its implementation has been delayed.
A second concern is the degree to which organisations in South Africa, both public and private, exercise only tenuous intellectual control over their ever more complex records systems. In the public sector, the national archives and provincial archives services are charged with ensuring that public records are properly managed and preserved for appropriate periods.
Severe under-resourcing of the national archives, together with the slow and troubled development of provincial services, means that this mechanism is reaching only the tip of the record-keeping iceberg in public bodies across the country.
Traditional paper-based systems tend to be poorly resourced, managed by junior officials with little status and subject to high turnover rates, and imperfectly connected if at all to parallel or related electronic systems.
In many provincial government offices and local authorities, record-keeping is either out of control or in chaos. Of particular concern is the realm of electronic record-keeping, where a Wild West scenario prevails.
The national archives recently issued a set of guidelines for the management of electronic records and is working with the State Information Technology Agency to develop government-wide standards for electronic record-keeping. Nevertheless, an effective programme for preserving the long-term electronic memory of the state remains out of reach. Furthermore, at present only a sliver of the state’s electronic records resources is under any form of archival control.
Conditions in the private sector are little better. With the notable exception of financial and related records, records generally (both paper-based and electronic) are generated and disposed of at the whim of individual systems managers.
Inadequate record-keeping will mean that many requests will be frustrated by an organisation being unable to find a particular record or having already destroyed or lost it.
Even the routine destruction of records no longer needed for operational purposes is an area of concern. The key issue here is that of records retention. Which records should an organisation preserve indefinitely, and for how long should it retain records not identified for preservation?
In the public sector, the national archives and provincial archives services are mandated to identify records that should be preserved. Concerns here relate to holding these agencies publicly accountable for their decision making and ensuring that they have adequate resources for preserving the records they identify as having enduring value.
A number of pieces of legislation address public records retention, but the vast majority of public records fall outside such legislation. This means that, in most cases, retention periods are decided on by administrative process or personal whim.
In the private sector legislative controls are minimal. For most categories, decisions on retention periods and disposal are made through managerial or operational processes. Serious consideration should be given to providing a comprehensive legislative framework for governing records retention in both public and private sectors.
Most organisations in South Africa are not geared to providing public access to their records. To do so effectively they will need adequate and appropriately trained human resources dedicated to the task. At this stage public bodies seem to assume that they can rely on existing staff already heavily overburdened by other responsibilities.
Training for public servants is being provided by the Justice College, but thus far it has reached only insignificant numbers. Particularly worrying is the small number of judges and magistrates who have been trained. Given the Act’s reliance on interpretation by the judiciary, comprehensive training is vital.