Richard Calland and Alison Tilley
A SECOND LOOK
Minister of Safety and Security Steve Tshwete was recently reported as saying that the majority of criminals are women.
The report raised eyebrows and hackles, not surprisingly. The accuracy or otherwise of the statement should be easy to check, by reference to the Department of Justice’s records on criminal convictions. To access those records we can use a new law that came into force on March 9: the Promotion of Access to Information Act 2000. This Act adds flesh to the constitutional right to access all government information and privately held information necessary for the protection or exercise of another right.
In the Tshwete case we now not only have the right to see the records that would establish whether his statement was in line with the facts or out of kilter with reality, but also the mechanisms to make the request and to appeal against any refusal of a request. This is an example of how the Act can operate to give life to the notion of accountability.
Just as important as enhancing accountability, the Act serves the democratic aspiration of citizen participation in the decision-making that affects their daily lives.
Although the advance in information technology has led to an exponential growth in the flow of information held by the public and private sector, many people have been unable to access information held about themselves, let alone issues such as the environment, social security and consumer testing.
The state holds an immense number of records that are useful to us.
During the policy-making phase, it is particularly important for citizens and citizens’ groups to make their voices heard, but often getting access to the information upon which the government is basing its policy judgements is crucial to permit a meaningful intervention.
University of Cape Town public lawyer Saras Jagwanth maintains that information is necessary in order to pursue rights such as the socio-economic rights contained in Chapter 2 of the Constitution. In this way the right to access information has an enabling mechanism.
In this context the new law should be seen as an instrument of social change. This is especially so because, uniquely, the law applies to both the public and private sector.
There are numerous challenges that lie ahead. The first concerns the set of exemptions to disclosure. Although broadly in line with international practice, there is a danger that their use and operation will lead to what Professor Karthy Govender describes as a “Swiss cheese” effect, with the exemptions eating away at the core right. If the holders of information seek out the exemptions so as to justify continued secrecy, then the Act’s future will be fundamentally imperilled.
Secondly, will the Act be used and who will use it? As the Congress of South African Trade Unions argued at the time the Bill was passed, “because of resource disparities, a requester-driven approach may place the Bill beyond the reach of the disadvantaged. Within a requester-driven approach the main beneficiaries will be the rich and powerful, thus deepening the uneven balance between commercial and non-commercial information seekers.”
That is why we have created the Open Democracy Advice Centre (Odac), to monitor the implementation of the Act, pursue test-case litigation, and offer training and advice to social justice requesters from civil society organisations. Odac’s purpose is to promote open and transparent democracy, foster a culture of corporate and government accountability, and assist people to realise their human rights through supporting the effective implementation of laws that enable access to and disclosure of information.
The concern about who will actually use and benefit from the Act also underpins the need for a proactive approach to information disclosure or the “right-to-know” approach. This approach has helped drive the relative advances around the world regarding environmental information. Pollution Release and Transfer Registries or Toxic Release Inventories have been established in a number of countries to require that polluters report to the government their use of specified potentially harmful chemicals.
The United States Environmental Protection Agency, for example, dedicates significant time, effort and resources to gathering, storing and publicly disclosing detailed information about the nation’s environment. This collection and dissemination is partly due to far-sighted legislation that mandated that industry disclose releases of certain toxic chemicals and the government disseminate the information to the public through electronic means.
It was also due to pressure from public-interest groups, the news media and individual citizens to ensure that the Act’s public-access provisions were implemented.
More than a decade of the public’s right to know about toxic chemicals has resulted in a 45% decline in the release of those chemicals.
The Act tilts its head in only modest fashion towards right-to-know. But that does not matter much: right-to-know manifests itself in a philosophical rather than a legal commitment to openness.
The government and the private sector would be well-advised to take note that right-to-know is cheaper and more convenient. Rather than await requests, the government should simply categorise as much information as possible as automatically disclosable and then make it available. Modern technology makes this easier “e-government” lends itself so well to right-to-know that the US Freedom of Information law was supplemented recently with an e-Freedom of Information law.
The future of the Promotion of Access to Information Act will be determined by the extent to which it signals and provokes a change in societal culture. The owners and holders of information must be prepared to overcome a heritage of secrecy and embrace a new spirit of openness. That would be in keeping with both the conceptual underpinning of the new law and the spirit of the information age. With this new law in force, we must make use of the opportunities it presents: it must not gather dust.
Richard Calland is executive chair of the Open Democracy Advice Centre, an initiative of the Institute for Democracy in South Africa in partnership with the Black Sash Trust and the University of Cape Town’s public law department. Alison Tilley is the centre’s project manager