Individuals’ access to government information is still severely hampered, argues `Serjeant at the Bar’
RECENT media reports suggest that government departments might be using commercial contracts in an attempt to shield themselves from the public’s right to know. This is a misguided course of action, which signifies an inability to grasp the profound implications which the right of access to information has for our new constitutional democracy.
The public’s right to have access to state- held information was introduced by the Interim Constitution. While the right has existed on paper for the past three years, it has been the experience of many legal practitioners that government departments are often stubbornly unco-operative when such information is claimed in practice.
The reasons for this bureaucratic coyness are not hard to identify. Disclosing information is a burdensome annoyance for administrators, and the glare of public scrutiny can make life difficult for government. Such costs are, however, far outweighed by the benefits offered by a right of access to information, which provides an important guarantee of open and accountable administration.
It is against this backdrop that one should read the recent media reports that the Posts, Telecommunications and Broadcasting Ministry has apparently refused to disclose the commission paid to merchant banks involved in the Telkom privatisation on the basis that the contracts with the banks include a “confidentiality clause”.
In a similar vein, Democratic Party finance representative Ken Andrew is reported as saying that the DP is frequently met with “confidentiality clauses” when it requests information such as the salaries of parastatal employees.
These reports give rise to two legal questions, both of which have significant ramifications for our conception of open government. The first question is whether a contractual “confidentiality clause” can cocoon the state from the reach of a constitutional right of access to information. The answer must surely be “no”.
If the constitutional right requires disclosure of a certain item of information held by a government department, it would be absurd if the department were able to override the right by the simple device of concluding a contract which required such information to remain confidential. A contractual provision cannot trump the Constitution.
The second question is more difficult, for it concerns the issue of whether or not the constitutional right does in fact apply to items of information such as the commission paid in the Telkom privatisation, or the salaries of parastatal employees. This question brings to the fore a crucial difference between the Interim Constitution and the final Constitution.
The Interim Constitution grants a right of access to state-held information only if this is required for the exercise of a right by the person claiming the information.
The final Constitution has dropped the requirement that the information must be necessary for the exercise of the applicant’s rights, but unfortunately this new provision has been put on ice for a period of up to three years. For as long as the provision in the new Constitution is kept in such a state of suspended animation, we will be forced to make do with the right of access to information contained in the Interim Constitution.
The difficulties which this convoluted arrangement gives rise to are neatly illustrated by the commission paid to the merchant banks involved in the Telkom privatisation. A member of the public who claimed a constitutional right to have access to the amount of this commission would currently be required to establish that the information was required for the exercise or protection of a right.
This would not present a problem if the applicant’s “right” were understood in a broad and generous sense. Unfortunately, however, some courts have interpreted this notion much more narrowly, in which case a person demanding the information may well find it impossible to get past first base.
This is a disconcerting outcome. If the government is truly committed to open and accountable administration, it makes little sense for it to adopt the formalistic view that a member of the public has no legitimate interest in knowing about the commission paid to participants in the Telkom privatisation.
The point is that the deal concerns taxpayers’ funds, and a government which purports to be wedded to openness should put its mouth where its money is.
It is important that Parliament should move speedily to enact legislation regulating access to information in the manner which is envisaged by the final Constituion.
In the absence of such legislation, we should accept that the constitutional right of access to information allows for the lifting of any “contractual veil” by means of which government attempts to screen its activities from public scrutiny.