SAHA submitted a request to access information in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) on 9th November 2007 for information relating to Presidential Pardons granted in 2006-07.
The Department of the Presidency (PRE) refused access on 12 December 2007 citing Section 34(1) of PAIA as grounds for refusal: in PRE’s view SAHA had requested access to personal information about third parties and the disclosure therof would be unreasonable.
This refusal was contested by SAHA who lodged an Internal Appeal in terms of Section 74 of PAIA on 04 February 2008. SAHA’s Internal Appeal explicitly clarified the specific information that had been requested: (i) the names; (ii) details of offence committed for which the person is now being pardoned; and (iii) prison numbers of the 515 individuals who received a Presidential Pardon in 2006-07. Section 34(1) was refuted as a valid ground for refusal in view of a number of points including: the requested information should be disclosed in view of Section 34(2)(c) as details concerning those who received a Presidential Pardon in 2006-07 had already been disclosed during a public hearing (in the form of court cases); in terms of Section 25(3)(a) PRE failed to detail how disclosure of such third party information would be unreasonable; and Section 46 in view of the public interest override.
SAHA argued that PRE’s response was in direct contrast to the spirit of openness and disclosure regarding the inter-related issues of indemnity, amnesty and pardons that forms the basis of a number of recent pieces of legislation, including PAIA, as well as the Promotion of National Unity and Reconciliation Act of 1995 and the Indemnity and Further Indemnity Acts of 1990 and 1991. SAHA further argued that this matter should be dealt with in the same vain as parallel processes which necessitate transparency and disclosure, citing the controversies and ongoing debate around how the State deals with crime: namely the public interest and deliberations around previous pardons and the current parliamentary process around pre-1999 applications for pardons around political offences.
The Department of the Presidency responded on 14 March 2008 (letter dated 15 February 2008) stating that they would contact each of the 515 individuals who had received a Presidential Pardon in 2006-2007 in terms of Section 76 requesting their permission to disclose the requested details to SAHA in view of SAHA refuting Section 34(1) as a ground of refusal. SAHA had no objection to this action, despite believing this to be an excessive waste of resources, and provided correspondence accepting PRE’s proposed action. SAHA subsequently received an additional two copies of the letter dated 15 February 2008 and reminded PRE of its previous response.
In April 2008 SAHA received a number of phone calls and letters from angry, confused and misinformed individuals. In fact, the Department of the Presidency hadn’t sought their permission to provide SAHA with the information which had been requested in its PAIA Request: the Presidency had written to these 515 individuals stating that Charlotte Young of SAHA had requested their personal information including: sex conscious (sic), financial records, employment history and religious beliefs. This was a complete misrepresentation of the facts and failed to respond accordingly to the Act or to the content of SAHA’s PAIA Request.
SAHA immediately attempted to contact the author of this letter (dated 31 March 2008) in order to rectify the situation. Whilst SAHA was unable to speak with the author of the letter or the Deputy Information Officer several messages were left and eventually SAHA made contact with the officer to whom the case had been handed over to. Several unanswered emails were sent to the relevant officer in PRE requesting a meeting in order to discuss this matter. SAHA finally received a response stating that its emails had been received and would be responded to in due course. However, despite waiting patiently, a response was not received. SAHA was somewhat distressed by how this matter had been handled and were looking for an expedited way forward. SAHA attempted to contact PRE again by email and phone in order to obtain some kind of response from the relevant officer. At the end of May 2008 SAHA was contacted by phone by the relevant officer advising that they would provide a response to SAHA within a week.
Such a response again was not provided. SAHA once again emailed the relevant officer in PRE requesting some kind of communication indicating a response to the suggestion that the matter of misinformation being sent by PRE to the 515 individuals concerned in SAHA’s PAIA Request needs to be resolved. Once again SAHA received no response.
On 24 June 2008 SAHA received a fax from PRE advising that its initial PAIA Request would be provided to SAHA by Monday 30 June 2008. No reference was made to the inaccurate letter that had been sent by PRE in relation to this request.
On 30 June 2008 PRE provided SAHA with the records that had been requested in the initial PAIA Request. SAHA responded by thanking PRE for these records and suggesting that the need to resolve the matter of the inaccurate and misleading letter remains.
SAHA has still to receive a response from PRE regarding this matter.
Whilst there must be a certain level of acceptance that PAIA is a relatively new Act and that not all officers within the National Government have been appropriately trained in order to deal with PAIA SAHA can not understand why PRE felt it necessary to write 515 letters to individuals requesting that they provide personal information that was simply not asked for.
At no point did SAHA lead PRE to believe that personal information such as that referred to in the inaccurate letter dated 31 March 2008 was being sought. SAHA accepts that leniency, diplomacy, patience and understanding are required when submitting PAIA Requests to a number of Public and Private Bodies. Nonetheless it is simply unacceptable for any Public or Private Body to misrepresent SAHA and its employees in such a manifestly untruthful way. SAHA continues its attempts to resolve this matter.