Access to Information: Using the law By Gabriella Razzano Middelburg: 19-20 October
ODAC is a specialist law centre working in the areas of access to information, open data and whistle blowing. We provide legal advice and We also provide training on support to access public and effective implementation of private information throughPAIA, the PDA and open data the Promotion of Access to issues. Information Act (PAIA). We support and provide legal advice to bona fide whistleblowers using the Protected Disclosures Act (PDA).
The Law1993 Interim Constitution„Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.‟
Section 32 of the Constitution Broader(1) Everyone has the right of access to(a)information held by the state; and(b) Any information that is held by another person and that is required for the exercise or protection of any rights.(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.
Promotion of Access to Information• Objects Act-To give effect to the Constitutional Right to access information-To give effect to that right subject to justifiable limitations-To give effect to the constitutional obligations of the State in promoting a human rights culture-To establish voluntary and mandatory mechanisms to give effect to that right-To promote transparency, accountability and effective governance of all public and private bodies
• Transition from Apartheid- era secrecy Constitutional Democracy• Post-1994 saw progressive legal paradigm, in many ways leading continent on governance• Recent developments: – Protection of State Info Bill (backlash) – Protection of Personal Info Bill (Info Commission)SA context By United Nations Photo on Flickr
“Government documents: they hold the truth. And the truth always matters. And the truth really does set us free”. - Martha Mendoza“Every thing secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity”.- Lord Acton Value of Access to Information
• Access to information is a human right• Need information for proper public participation• Need information to be an active citizen and hold government to account• Need information to facilitate all your human rights e.g. can not access your right to housing without information Value of Access to Information
Problems with the law1. PAIA manuals • Low compliance – a guide2. Proactive disclosure • Use PAIA for all requests3. Requesting process • Cumbersome e.g. India4. Timeframes5. Exemptions6. Independent oversight body • POPI7. Costs.
Benefits of the law1. The extension of the law to private bodies;2. The legal framework provides for a presumption in favour of release;3. The law provides that, if after 30 days no response is received, this constitutes a deemed refusal which can be reviewed; and4. The law provides for a full explanation, and evidentiary standards, for utilising an exemption ground.5. Allows for legal recourse
Expenses Scandal• Ben Leapman 2009• Member of Parliament Expenses• Leak• “The Duck House”• Slow release and profit (open data)• Role of wobbing? Pressure tool.
Compare: M&G• M&G LOC – Awarded in High Court – Story in the response – “Private” even though 8 Ministers dealt with public money• M&G Kampepe-Moseneke – Zimbabwe violence – HC – SC – CC – HC…
What can you do?• Supply and demand• Use PAIA!• The Act applies to: – Public Bodies (all three levels of government, government departments, official institutions, statutory bodies and, parastatals) – Private Bodies (businesses and other juristic persons)
Record has a BROAD meaning: it meansany recorded information – (a) regardlessof form or medium; (b) in the possessionor under the control of that public orprivate body; and ( c) whether or not thatentity created it. Meaning of record
The Requester: Public Body Anyone Anyone who needs Private Body the record to protect or exercise a human right.
• For public bodies, a record is requested the following way:• The requester must use the form printed in the government gazette – A for a public body – C for a private body – B for an appeal• The form must be sent to the information officer of the public body....
Who is the Information Officer?• The administrative head (generally) – National: Director-General – Provincial: Head of Executive Council – Municipal: Municipal Manager
Their job• Assist people to access information• Facilitate automatic accessibility of records• Decide on: 1. the granting of access to records, 2. transfer of requests 3. Refusal of requests• Inform requesters, in writing, of the decision• Forwarding to the requester an affidavit explaining steps taken to locate a record which cannot be found• Assist the requester in filling in the forms• Deputy Information Officers Forum
By Eva Blue on Flickr• The form can be faxed, posted or emailed. – Contacts can be problematic• A requester must give enough detail in the form so that the official knows what record the requester wants and who he or she is. What? When? Who? Where?
• The form must explain how the requester wants to get access to the record. – Machine readable?• The information officer can fill in forms on behalf of illiterates.• NOTE: You do not have to provide a reason for requesting information from a public body
Exemption types• NOTE: these are the limits for refusal• Information which may be given to you: Information given to a public body in confidence by 3rd party (s37) Information that prejudices the safety of others (s38 & 66) Information on defence, security and international relations(s41) Methods of Law enforcement (s 39) Information about the economic or financial interests of the Republic (s 42) Trade secrets of private bodies ( s 68) Information about operations of Public Bodies (s 44)
• Information which must not be given to you: Private information about someone else (unless they agree) (s34&63) Certain records of SARS (s35) Confidential information of third party (s37 & 65) Commercial information about a third party (s 36 & 64) Information that will endanger the life of another (s38 & 66) Police dockets in bail proceedings (s39) Privileged legal records (s40 & 67) Information about someone else‟s research (s43 & 69)
Public Interest Override• Disclosure is required if the information shows a serious contravention or failure to comply with the law or an imminent and serious public safety or environmental risk, or where the public interest clearly outweighs the harm contemplated in the provision in request. (S46 & 70)
Appeals• If a government department refuses to give access to a record, there is first an internal appeal process. After this, the requester can take the matter to court.• The appeal lies with the „relevant authority‟, most often the political head.• If a private body refuses a request, the requester can take the matter straight to court.• If a request is refused, the person making the decision has to give reasons and tell the requester which part of the Act allows them to refuse – M & G• Protection of Personal Information Bill
Appeals Cont.• The requester can lodge an appeal about a decision not to grant access to a record, the fee charged, and a decision to extend the time period to deal with the request and the form in which the record is made available.• Deemed refusal
FeesPUBLIC BODIES: Request Fee - R35,00 Various other reproduction fees, ranging from R0,60 - R17,00 Search Fees - R15,00 per hourPRIVATE BODIES: Request Fee - R50,00 Various other reproduction fees, ranging from R1,10 - R30,00 Search Fees - R30,00 per hour* The Minister has exempted people earning less than R14 700 p.a. from payment of fees.