The South African History Archive swung into action to test the Act giving South Africans access to government information
Verne Harris
When South Africa’s freedom of information legislation came into operation in March the South African History Archive (Saha) was at the front of the queue submitting requests for access to hitherto secret files.
The reaction of the government departments concerned were enlightening: the department responsible for the Promotion of Access to Information Act was the least cooperative, while the South African National Defence Force (SANDF) went out of its way to respond professionally.
The Act gives effect to the Constitution’s recognition of citizens’ right of access to information held by public and private bodies. Saha in May submitted 13 requests.
Saha, an independent archive established in the 1980s to document struggles against apartheid, has broadened its mandate to incorporate a commitment to documenting struggles for justice. Recently it launched a freedom of information programme to build up a public archive of materials released under the Act and to test the Act’s provisions, many of which are vaguely formulated and are subject to interpretation.
Saha’s requests for information were in support of two archival projects one designed to access Truth and Reconciliation Commission (TRC) records and apartheid security establishment records identified by TRC investigators; the other intended to support research into the apartheid South African Defence Force’s programme for “dealing with homosexuals”. Nine requests were submitted to the SANDF, three to the National Archives and one to the Department of Justice.
Saha’s engagement with the SANDF was constructive and encouraging. The requests were complex, requiring intensive research and analysis by SANDF personnel. They were highly professional, liaising closely with Saha and providing a comprehensive response before expiry of the statutory maximum-response period of three months. (The Act provides for a 90-day maximum-response period in the first year of its operation, 60 days in the second year, and 30 days thereafter.) A significant number of records were released to Saha.
In at least one case the SANDF created a record in order to satisfy a Saha request. This goes beyond the requirementsof the Act.
The SANDF released a record with certain pieces of information in it “masked” (information restricted in terms of the Act). Thus the existence of restricted information in the record did not place the whole record outside of Saha’s reach. This has important implications for interpretation of the provision in the Act for the separation of restricted from unrestricted material.
Saha’s experience with the National Archives, which functionally is geared to making records available to the public, was very different.
Despite the fact that requests submitted were relatively straightforward, National Archives has not taken a decision, five months after the requests were submitted.
The National Archives is a directorate of the Department of Arts, Culture, Science and Technology and its information officer when dealing with requests under the Act is the department’s director-general.
Bureaucratic red tape could have been a factor. Which raises the question: in the interests of facilitating accessibility, should the National Archives not be seeking the status of a public body in its own right for the purposes of the Act?
The most curious response came from the Department of Justice, the department responsible for the Act. Because of administrative confusion, it took more than an hour to register the request and then the officials concerned were unable to supply Saha with a receipt for the request fee.
Worse was to follow. The request was for a list of TRC records taken into custody by the Department of Justice. Saha knew that a set of “sensitive” TRC records had been given to justice in 1999 and was simply seeking confirmation of precisely what records were involved. It took the department two months to inform Saha that it has no TRC records in its custody.
When Saha responded by indicating that it knew about the 1999 transfer and that it has already had sight of the list, the department said the National Intelligence Agency (NIA) would have to be consulted before a response could be given! Five months after the request was submitted, Saha is still waiting for a formal response.
Is the Department of Justice’s inadequate response the result of disorganisation or obfuscation? Where are the TRC records that were taken into the custody of the justice department in 1999? If they are now with the NIA, why are they there? And why has National Archives not at least been consulted, as is required by the National Archives of South Africa Act?
For the Act to be implemented effectively, sound record-keeping in government, supported by adequate resourcing, is essential.
It seems that some government departments lack the capacity to implement the Act effectively. And the length of time being taken by departments to process requests will severely impede the media and others requiring a quick response.
Saha’s expert knowledge of government record-keeping facilitated the request process. But what of those without such knowledge? Here the issue of the manual that each body subject to the Act must publish becomes of crucial importance. When this requirement comes into operation, it will be essential that regulations require a comprehensive and meaningful disclosure of record-keeping systems.
Verne Harris is director of the South African History Archive