Background and legislation
One of the first African countries to pass freedom of information legislation, South Africa has a constitutional requirement for guaranteeing access to public information. Section 32 of country’s constitution “provides that everyone has the right of access to any information held by the State” and “provides for the horizontal application of the right of access to information held by another person to everyone when that information is required for the exercise or protection of any rights”.
This constitutional background derives from the South African culture of promoting human rights after the abolishment of the apartheid regime. According to Colin Darch and Peter G. Underwood, the enactment of FOI legislation in South Africa has taken place as a part of self-conscious attempt to begin building a national human rights culture.
Specific FOI legislation came into force on 9 March 2001 in form of Promotion of Access to Information Act, (Act 2 of 2000) (PAIA), enforced primarily by the South African Human Rights Commission (SAHRC). South African FOI legislation has been described unique in the world since it permits access to records held by private as well as public bodies. The Act defines public body as:
- any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or
any other functionary or institution when
- exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or
- exercising a public power or performing a public function in terms of any legislation
and private body as:
- a natural person who carries or has carried on any trade, business or profession, but only in such capacity;
- a partnership which carries or has carried on any trade, business or profession; or
- any former or existing juristic person, but excludes a public body
In order to implement the Act, public and private bodies must have certain structures in place - manuals, identified information officers, voluntary disclosure and automatic availability of records. Both public and private bodies must provide information within 30 days of the request. There is a request fee of 35 rand for request to public body and R50 for private bodies , and additional costs for finding, searching and copying records.
If unhappy, the requester or a third party may lodge an internal appeal - with application payment - against the decision of the information officer within 60 days of the decision. If unsuccessful in internal appeal or aggrieved by the decision of an information officer, the requester or third party may within 30 days apply to a court.
The main objectives of PAIA can be categorised as follows:
- To allow people to access information held by public and private bodies
- To set out how people will be able to access these records
- To determine the grounds on which access to information can be refused
- To set out how citizens can lodge an appeal against any decision to deny access to information
Under South African legislation, all public bodies must make what is called a ‘Section 32’ report to the SAHRC, detailing the number of requests received, the number granted in full, the number granted under Section 46 (mandatory disclosure in the public interest), the number of partially and fully refused requests, and some other statistics. SAHRC then tabulates this data and includes it in its annual report to Parliament.
According to the latest SAHRC annual report available on South African government website, in finance year 2005/2006 national government departments received total number of 145 requests, of which 53 resulted in a full access given. Other public bodies and local government bodies were more popular targets for FOI requests: City of Johannesburg alone received 103 requests for access, of which full access was given in 84 cases. By far the most requests were made to South African Police Service, who received total number of 18,258 requests, 14,813 of which resulted in a full access granted.
In 2007 the Public Service Commission of South Africa conducted a survey of public organisations, finding many areas for improvement for FOI. In particular, they found shortcomings in the appointment of deputy information officers (a mandatory requirement); the training of FOI officials; record keeping; public awareness and proactive publication.
The survey concluded that “ access to information is ultimately a human rights issue, as citizens cannot fully enjoy the fruits of democracy without timeous, accurate, and reliable information about government and the services it renders .”
In addition to the views of the Commission, Darch and Underwood argue that the popular demand for access to information started at low level in South Africa and has remained there; citizens are not making very extensive use of a law regarded highly amongst FOI regimes around the world. According to Darch and Underwood, one reason for this might be South Africa’s cultural and linguistic diversity and the possible lack of access to discourse of power. Citizens aren’t necessarily aware how ‘the system’ works and what are their rights within it.
According to the Commission, the implementation of PAIA is not being adequately prioritised and addressed by government departments and government departments should ensure that citizens become aware of the role information plays in the improvement of the quality of their lives. Professor Richard Calland also picks the enforcement mechanism and implementation as the greatest failing of PAIA.
Earlier this year South African FOI and document declassification was in the global news after the disclosure of documents revealing Israeli plans to sell nuclear weapons to South African apartheid regime in 1970’s. Reportedly the government of Israel tried to stop the disclosure of the documents but nevertheless South African officials decided to release the documents after a request made by an American historian.
Recently, much controversy has been risen over the new Protection of Information Bill, which could – according to many FOI campaigners – result in “drawing an iron curtain of secrecy around much government activity” and which Nicholas Dawes, the editor-in-chief of Mail & Guardian newspaper has even called “Protection of Government Officials and Cronies Bill”.
The Bill, which was first introduced in Parliament in 2008 but was later withdrawn following a fierce criticism, was placed back on agenda earlier this year and despite the criticism, Cabinet plans to pass the Bill. It has been criticised on a number of grounds.
First, the bill apparently gives any state agency, government department, parastatal or local municipality power to decide whether a piece of information should be classified or not. FOI campaigners have argued that secrecy should be limited to core state bodies in the security sector alone and to strictly defined national security matters and no more.
Second, the Bill would also allow for the classification of state-held commercial information such as tender proceedings and the activities of state-owned enterprises, which critics argue could contribute to the concealment of corrupt practices.
Third, the bill may criminalise the disclosure of state information, regardless whether this is in the public interest. According to FOI campaigners – e.g Open Democracy Advice Centre - the Bill would lead to a situation where t he disclosure of information which is not formally classified can land citizens in jail and where anyone involved in the ‘unauthorised’ handling and disclosure of classified information can be prosecuted; not just the state official who leaks information as is the case in other democracies.
Recently, the US Ambassador to South Africa, Mr Donald Gipps called on the SA government and journalists to work together to strike a balance between national security and freedom of information.
Darch, Colin & Underwood, Peter G.: Freedom of information legislation, state compliance and the discourse of knowledge: The South African experience, The International Information & Library Review (2005) 37, 77-86.