Democracies die behind closed doors: Battling for the right to know
As information activists around the world mark International Right to Know Day on Sunday, there seems little to celebrate about the state of the right of access to information in South Africa.
This enabling right lies at the heart of our nascent constitutional dispensation and its promotion of a culture of openness and transparency, yet, regrettably and perhaps not surprisingly, an access to information culture in South Africa has not taken hold.
The law intended to give effect to this right, the Promotion of Access to Information Act, 2000 (commonly known as PAIA), has been in operation since 2001. It was drafted with the express intention of incentivising government departments to publish information proactively by absolving them of the need to respond to requests if the records sought have already been made publicly accessible. But proactive disclosure has been weak and uneven, and most government departments – especially those operating at the coalface of local government – are routinely failing to make available records that should readily accessible to citizens.
So the bureaucratic process of submitting a PAIA request has become the primary way to access state records, rather than the exception envisaged by the drafters of PAIA. This is a costly and ineffective way to proceed.
A 2012/2013 review of nongovernmental organisation (NGO) experiences of requesting records found openness and transparency by public bodies has decreased from already worryingly low levels of compliance.
This is starkly illustrated by the number of public bodies that simply don’t respond to requests for information – a wanton violation of their legal obligation, for which there is no apparent consequence.
The NGO report outlined key implementing constraints including, low levels of legal knowledge and awareness, inadequate resource allocation and training of responsible officials; concerns that have been raised repeatedly for over a decade. But does anyone care?
The South African Human Rights Commission has a constitutional mandate to oversee PAIA compliance. Given its own woefully under-resourced PAIA unit, it can do little more than shine a light and make recommendations, and its 2008-2012 audit of compliance certainly confirms systemic challenges to implementation.
Ironically, these problems are also acknowledged by government in its own National Development Plan, yet current battles over corruption and secrecy reinforce perceptions that a selective politics of engagement around commitments to transparency is in play.
Reliance on an already overburdened legal system has severely restricted options for arbitration and remedy around access to information. This appears to suit government departments who have been able to fend off information requests by dragging out administrative and legal processes, sometimes for years.
The Mail & Guardian’s efforts to secure the Khampepe report – six years of litigation – have cost the tax payer millions, as the presidency’s arguments repeatedly failed to convince different levels of the judiciary of legal merit. Few applicants are able to pursue such cases like a dog with a bone, and hundreds of applications are abandoned, as options for challenging the arbitrary decisions of government information officers through the courts is beyond the reach of most South Africans.
Elsewhere, government is being forced to settle, seemingly after an appropriate legal assessment has been made.
Not surprisingly, there is no apparent internal accountability, or assessment of the performance and cost benefit of bureaucrats whose decisions ultimately add to the taxpayer’s burden.
While the recently passed Protection of Personal Information Act finally provides, on paper, for an Information Regulator with enforcement powers around PAIA, there seems to be little urgency on the part of the state in setting up this new watchdog body and recent attacks on the independence of the public protector do not auger well in this regard.
Equally worrying is the fact that the Department of Justice and Constitutional Development remains one of the most egregious offenders of non-compliance with PAIA.
The South African History Archive’s (SAHA) Freedom of Information Programme has been at the forefront of testing government and private sector compliance with PAIA. It has submitted close to 2000 requests over the past 13 years, many of which have been directed at the justice department.
Numerous requests, often relating to those records of the Truth and Reconciliation Commission that should by their very nature be readily available, have been refused on the basis of highly dubious reasoning, and the misapplication of exemption provisions. Given its responsibility as government’s lead agency on the implementation of PAIA, the dubious pattern of non-compliance is particularly distressing and requires urgent attention.
Despite being forced into a number of settlements, a culture of refusal continues to characterise the department’s response to many requests and key bureaucrats have assumed powerful, apparently unchecked gatekeeping roles.
The justice department has yet to demonstrate real leadership in this regard; it is unlikely to be able to do so without first putting its own house in order. Not surprisingly, avoidance and refusal have become default settings elsewhere in government as requests are routinely ignored instead of being treated as an opportunity to determine what records should be disclosed proactively.
How government, democracy-supporting institutions and civil society respond or not to this challenge will remain a key indicator of South Africa’s commitment to the democratic journey. Certainly, without greater activism, the cultivation of “political” champions and the development of a competent and committed infrastructure within government to deliver, the potential of this critical accountability tool is likely to wither on the vine.
Catherine Kennedy is the Director of the South African History Archive. Piers Pigou is a member of the SAHA board of trustees.