It was a privilege for SAHA to this year, alongside a number of other PAIA Civil Society Network (PAIA CSN) members, participate in the annual Public Interest Law Gathering (PILG).
SAHA’s Toerien van Wyk along with Karabo Rajuili from AmaBhungane and Tracy Davies from Centre for Environmental Rights (CER) spoke about the impact of recent litigation, undertaken by members of the PAIA CSN, on the right of access to information broadly and the application and implementation of the Promotion of Access to Information Act, 2000 (PAIA) specifically. The discussion was facilitated by the PAIA CSN secretariat the Centre for Applied Legal Studies (CALS), represented by Lisa Chamberlain.
Members of the audience were engaged in and participated in the discussion with a lot of the comments from the floor being focused on the issue of holding private bodies accountable for their infringement of environmental rights, and the role of PAIA in that struggle. There were also a number of questions and comments about the impact of a failure more broadly by public and private bodies to implement the provisions of PAIA correctly. One audience member suggested stronger sanctions for non-compliance with PAIA may be necessary pointing out that the Nigerian Freedom of Information Act, 2011 provides for the leveling of a heavy fine in instances of wrongful denial of access. Interestingly, while PAIA does not provide any criminal sanction for “wrongful denial” of access, section 90 of PAIA does provide for criminal sanctions for certain failures under PAIA. This includes the grossly negligent failure to ensure that a public body has a section 14 PAIA manual and the destroying, damaging or altering of a record forming part of a PAIA request.
Although the failures to implement PAIA correctly has in many instances had a shockingly stifling effect on the constitutional right of access to information, there are also many success stories, some highlighted by the panel discussion. It was also clear from the discussion that strategic litigation on PAIA by members of the PAIA CSN has had a significant impact the interpretation of key sections of PAIA that many bodies had deliberately been misinterpreting to avoid complying with their duties under PAIA.
Some of the litigation discussed included AmaBhungane’s battle, using PAIA, to gain access to records related to the costs of improvements at the President’s Nkandla estate (Mail and Guardian Centre for Investigative Journalism v Minister of Public Works). Karabo from AmaBhungane spoke about how AmaBhungane, anticipating reliance by the Department of Public Works on the provisions of PAIA allowing for a denial of access in circumstances where release of records may endanger the life of physical safety of individuals, carefully formulated their request to note that they were not interested in technical security sensitive information, only in records evidencing financial expenses incurred. In discussing the need, from a journalistic point of view, to ensure a story remains news worthy Karabo also pointed out that the failure to comply with a PAIA request is in itself a story and that bad press around that can sometimes add pressure for non-compliant bodies to step up and comply. SAHA’s Toerien noted in relation to this case that SAHA’s submissions as amicus curiae related to record keeping duties of public and private bodies in terms of key archival and other legislation and the impact that a failure to comply with these duties has on access to information. The court, taking up some of SAHA’s key submissions held that one of the most important obligations on a government” is to “keep proper records” and further that “[i]t is in the public interest to keep record in order to give credence to the business of government itself and to those who govern.”
Another key case discussed was the litigation arising out of the Vaal Environmental Justice Alliance’s (VEJA) PAIA request for access to ArcelorMittal South Africa’s (AMSA) environmental “Master Plan” – litigation in which VEJA was represented by CER (Vaal Environmental Justice Alliance (VEJA) v Arcelormittal South Africa). CER’s Tracy Davies discussed the highlights of the hard-hitting judgement handed down in this case by the Supreme Court of Appeal in November last year. AMSA was ordered by the Supreme Court of Appeal to release the requested records and to pay VEJA’s legal costs. Access to the Master Plan was an important victory for affected communities who were made ill by pollutants in the air and water that affected not only people but also vegetation and animals. During the long battle for access to the Master Plan AMSA noted that they take the view that they owe no“…no duty of transparency to anybody” but this judgment confirms that the duty of transparency promised by the Constitution is indeed, as outlined in PAIA, a duty that falls on private bodies as well as public ones.
Speaking to some of the highlights from the decision in the Right2Know Campaign and SAHA v Minister of Police (the National Key Points matter) it was pointed out that this request came about after the Right to Know Campaign (R2K) approached SAHA to assist with using PAIA to gain access to a list of national key points (NKPs) and national key point complexes. This was because R2K members had on various occasions been told, for instance, that they were not allowed to protest in certain places as these were NKPs, this despite the fact that there was no publically accessible list of NKPs. The court in this matter, taking into account the fact that the legal principal called the ‘principle of legality’ requires that laws that make actions criminal, and create penalties for those crimes must be accessible, found that to save the constitutionality of the National Key Points Act, 1980 (the Act) the list would, at a minimum, have to be made publically available. The court also considered that NKPs had garnered a lot of media attention and that questions still remained about whether decisions taken in terms of the Act were in fact an abuse of the Act. The court found in that respect that the list should have been released in the public interest, as provided for in section 46 of PAIA.
The panel also discussed the fact that while strategic litigation by organisations such as those forming part of the PAIA CSN may have had some impact on improving PAIA compliance, litigation is generally too prohibitively expensive to be an option for non-profit organisation and the average individual. In this respect it was noted that the Protection of Personal Information Act, 2013 makes provision for the establishment of an Information Regulator and that, while we are still awaiting the setting up of this office, the Regulator may well become a more affordable enforcement mechanism open to those attempting to exercise their right of access to information through PAIA.