Today, 15 years ago, the law intended to give effect to the constitutional right of access to information, as protected by section 32 of the Constitution, came into operation. The Promotion of Access to Information Act of 2000, better known as PAIA, was enacted to foster a culture of transparency and accountability in public and private bodies, to prevent and counteract the secretive and unresponsive culture that led to an abuse of power and human rights violations in the apartheid era.
At the time, PAIA was considered to be one of the most progressive laws of its kind, extending the reach of the right to know beyond the state to privately-held information, and allowing for the right to be exercised by foreign nationals, not resident in South Africa. It was also drafted with the express intention of incentivising proactive disclosure of information as government departments are absolved from having to comply with individual requests if the information sought is already in the public domain.
To date, however, the South African experience clearly demonstrates that legislation on its own will not achieve those objectives. As the work of SAHA’s Freedom of Information Programme (FOIP) over the last 15 years demonstrates, translating the promise of this lauded transparency law into a meaningful tool for justice, transparency and accountability, continues to be a painfully slow process.
As the PAIA compliance shadow reports produced by the PAIA Civil Society Network in recent years have highlighted, compliance with PAIA remains worryingly low, with the key blockages limiting the right of access to information in South Africa today being disturbingly similar to those impediments first identified in the early days of PAIA during this time. (Learn more about SAHA's early information activism some of the difficulties information activists and requesters encountered as they have attempted to put South Africa's constitutional right of access to information into practice in the 2009 SAHA publication Paper Wars: access to information in South Africa
From a basic lack of awareness and understanding of both the right and the law, the historic lack of an oversight body with teeth, through the legacy of those inherited cultures of secrecy in South Africa that was a deep-rooted feature of both the apartheid regime, and the liberation struggle movements working against it, to the woefully poor state of records and archival management within South Africa, the right of access remains largely one that exists on paper alone, with possibly the most intransigent blockages of all being the persistent lack of necessary political will to make the system work.
As Catherine Kennedy, SAHA director, observes:
Working to forward the right of access to information is a long, slow game - it is a right that is only strengthened through use yet most South Africans don't even know what PAIA is, let alone how to use it. In the last few years, we've started to see a growing awareness – growing interest in and use of PAIA by civil society and the media, more court victories that will bolster the right moving forward, but there is still of significant amount of work to be done if the right is to take hold in South Africa in any meaningful way - what is really needed is for more people to be using PAIA, to be demanding information that is important to them in their everyday lives, to put more pressure on government (and companies) to provide the information proactively.
Raising awareness of the proactive disclosure element of PAIA is a key feature of SAHA’s current training programme aimed at enabling greater access to information at the local level. 2014 saw the development of a pilot local government capacity-building project in which SAHA moved away from the usual sector based training, undertaken in previous years as part of the FOIP Training Programme, and partnered for the first time with local government to offer capacity building to municipal officials dealing with access to information. This year will see the roll out of phase two of the local government capacity building project, starting with engagements with municipalities and local community activists in KwaZulu-Natal. As James Ekron, the FOIP training and advocacy officer at SAHA, comments:
"Legislation is only as good as the functionary who does it. This is why SAHA's local government training program is so vital in creating accountability and transparency. I have found this capacity building to be sluggish within government as it grapples with intersecting challenges to rise the State out of its slumber around PAIA. A significant step which SAHA has identified is moving government towards proactive disclosure, as per its legislative duties, to release information prior to the onerous process of a PAIA request."
As is clear from two court challenges launched by SAHA against the Department of Defence and the Reserve Bank in recent weeks, the need to test and expand freedom of information in South Africa through the courts remains a priority for the organisation, particularly as it relates to the application of the public interest override to the release of apartheid-era records.
And SAHA will continue to conduct practice-based research and analysis in order to build up case studies reflecting on patterns of misinterpretation by public bodies, such as the current analysis of the application of severance to records being undertaken by the FOIP team as part of beginning of the end of an 11 year battle for the release of records from the Truth and Reconciliation Commission’s in-camera (Section 29) hearings. Kimberly Hui, current CBA intern based at SAHA, reflects on this process:
"It is startling to find significant inconsistencies while reviewing redacted records released by the DOJ. It is a public body’s duty to ensure information is properly severed or else it runs into the risks of either disclosing protected information or blanket over-redaction of information that should be publicly released. Evidently, there is a clear lack of understanding by the DOJ of when such redactions apply."
The PAIA Tracker System remains a central component of SAHA information activism. This online information management tool developed by SAHA to track and manage requests made under the Promotion of Access to Information Act, 2000 (PAIA) in South Africa, both by SAHA and by other members of the PAIA Civil Society Network (PCSN) will be expanded in the coming year to track and publish levels of PAIA compliance by each public and private body receiving PAIA requests through the system, with a particular focus on monitoring the extent to which local government departments are making records such as by-laws, budgets, council minutes, and so on, proactively available within the communities they serve. Imraan Abdullah, the FOIP Research Officer, reflects on the value of data-driven advocacy and activism in pushing for greater PAIA compliance:
"Laws rely on enforcement and compliance in order to be effective. We'll be testing areas of compliance with PAIA by submitting strategic requests, collecting data from those requests and analyse patterns of compliance or non compliance in order to measure the strengths and weaknesses of PAIA, and highlight anomalies in PAIA which appear to be providing loopholes for bodies to avoid complying with the law."
All in all, a busy year (or 15!) ahead for the Freedom of Information Programme team of SAHA in forwarding the right of access to information in South Africa.
