/ 3 February 2015

Transparency deferred: 14 years on and secrecy still rules

A report by a group of civil society organisations has found that there is a worrying shift towards more secretive practices on the part of government.
A report by a group of civil society organisations has found that there is a worrying shift towards more secretive practices on the part of government.

Constitutional imperative, the law and the courts be damned. Government departments remain as secretive as ever, a new civil society report shows.

Private companies aren’t great, and organisations ranging from South Africa’s largest city to the operator of nuclear reactors are all culprits. But none are quite as bad as the government department tasked with administering justice – which neither understands the law nor implements it, and routinely flouts the Constitution when it comes to transparency.

Government departments and public bodies continue to talk the talk of transparency while performing abysmally when put to the test, a report by a group of civil society organisations released on Tuesday found.

And in the context of a number of altercations about embarrassing information withheld by the state, that is not a good sign.

“While public opposition to the Protection of State Information Bill [better known as the Secrecy Bill] has been extensive, with many prominent lawyers and commentators opining it is unconstitutional, the government used its majority to push the bill through Parliament,” writes SA History Archive (Saha) director Catherine Kennedy in the introduction to the annual Shadow Report.

“Read alongside other recent controversies – including the Nkandlagate saga, the Spy Tapes scandal, the ‘missing’ Khampepe Report and the use of apartheid-era legislation to increase numbers of National Key Points, at times expressly in order to limit access to information – a worrying shift towards more secretive practices on the part of government emerges.”

Flouting the Access to Information Act
The Shadow Report is a regular measure of actual transparency, mostly on the part of public bodies, by the Promotion of Access to Information Act (Paia) Civil Society Network, a group of seven organisations that centralise their requests in terms of Paia. 

In terms of Paia, government organisations are obliged to provide information, on request, to anyone who asks for it, except in special circumstances, such as when third parties are affected.

Paia is 14 years old, very clear in its implications, subordinate to no other law or rule, and has been extensively tested in the courts. Yet government departments still routinely flout it, with the department of justice and correctional services – technically the keeper of Paia – as one of the worst offenders.

In the 2013/ 2014 year, the Shadow Report found, the Paia network submitted 237 completed requests for information to public bodies. A quarter of those requests were simply ignored, despite a legal obligation to respond to every Paia request.

Another 30% of the requests were denied, most often without any clear or reasonable reason given, and without meeting the obligation to inform the requester that it was possible to appeal the denial.

In most cases, government departments claimed they did not have or could not find the information requested – but failed to say so under oath, and under threat of perjury. And sometimes they cited imaginary law as justification for refusal.

“By way of example, the deputy information officer at the department of justice and correctional services (formerly the department of justice and constitutional development) has on more than one occasion, referred to a section that simply does not exist in Paia when refusing access to records,” the report finds.

Ignoring the rules
The justice department refused every single Paia request the group sent it over the one-year period, and also ignored or denied every internal appeal lodged on such refusals. That is not counting long-running matters, such as an anonymised version of the Truth and Reconciliation Commission’s database of apartheid victims that Saha has demanded since 2006.

“This lack of openness, as it relates to records of apartheid violations that the TRC was tasked with uncovering, points to an unacceptable conflation of pre- and post-apartheid realities in the treatment of state records and arguably amounts to a continuation of the old frame,” the report laments.

When public bodies did respond to Paia requests, they most commonly failed to do so within the deadlines set in law. Over a period of one year, 14 bodies did not once make the legal deadline for a response; these include City Power in Johannesburg and the Nuclear Energy Corporation of South Africa, alongside a range of national and provincial government departments, two municipalities and the Mthatha Hospital.

Companies also withhold information
Large companies fared no better. In terms of Paia any information held by a private organisation can also be requested, although the requester must show why the information is required to exercise a constitutional right, and commercial secrecy is a valid reason for refusal.

Of the 36 completed requests submitted to private bodies by the Paia network over the 2013/ 2014 year, only 11 were fully complied with. Companies such as African Rainbow Minerals and Engen Petroleum ignored requests, while seven other companies refused every request received.

Most of the requests to private companies revolved around environmental matters such as pollution.

While the broader context speaks to a plain unwillingness to be transparent, many bodies claim (if not under oath) that their failure to comply is one of poor administration: information is either not kept at all, or cannot be found.

But that, said Saha’s Kennedy in a statement, is hardly a good excuse.

“Given the fundamentally record-centric nature of South Africa’s access to information law, the flagrant disregard by certain bodies of their responsibilities in terms of creating and managing records speaks volumes about the endemic lack of commitment to paying anything more than lip service to South Africa’s right to know.”