Monday 28 September 2009 is the 7th International Right to Know Day. The aim of this day is to raise global awareness of each citizen's right to access government-held information, the right to know how elected officials are exercising power and how tax-payers' money is being spent. Access to information is a crucial component of citizen empowerment. In South Africa, this is a constitutional right, enabled by the Promotion of Access of Information Act (PAIA). PAIA gives all South Africans the right of access to information held by the State or by another person if that information is needed to exercise or protect rights. But how well is our government performing, in real terms, in responding to access to information requests? And how many of our citizens are actually aware of how PAIA can be used to access information to help them to improve service delivery, to hold public and private bodies accountable for their actions, to reduce corruption and to push for better government policies?
SAHA's experiences in using PAIA to extend the boundaries of access to information in South Africa have demonstrated time and time again that much of the secrecy and concealment that existed in South Africa's past continues in state and private institutions today. This culture of secrecy, along with poor records management and lack of resources in public and private bodies, only serves to hamper the effective implementation of PAIA, which in turn encourages the misuse of power.
It is all too common for the government to refuse access to legitimate requests for information, often when information that may reveal mismanagement or conflicts of interest on the part of government is requested. Some government departments seem to drag their feet in response to PAIA requests, perhaps in the hope that the requester will become disgruntled and give up. However, when the requester perseveres, choosing instead to litigate, the government departments in question suddenly are much more eager to be of assistance. SAHA have repeatedly been granted information only once lawyers have been called in and court papers filed. When offending departments agree to such out of court settlements, they are, in essence, conceding that they had formerly been unnecessarily obtrusive. Inevitably, this apparent lack of goodwill of government departments towards PAIA serves as a strong deterrent to individuals or organisations in South Africa considering using this legislation.
In addition, the absence of an independent information ombudsman or commissioner in South Africa, makes the right to access information one that only the wealthy can really afford to pursue. Currently, if an access to information request is refused and an internal appeal proves to be unsuccessful, the person or organisation making the request has to resort to litigation to try and secure the information requested. The costly, time consuming nature of litigation has the potential to make the right to access information one that is of little practical use to poorer communities in South Africa. If, rather than having to resort to court, there was an independent ombudsman with the authority to make rulings on access to information requests, then economic status would be less of a factor in determining who can exercise this right. If PAIA is to be used effectively to encourage accountability and transparent governance in South Africa, government must engage with the freedom of information community's lobby for the introduction of an information commissioner in South Africa - there needs to be far greater demonstration of political will to promote an open information regime in South Africa.
Encouragingly, there has been some developments in recent months that may have a positive effect on the implementation of PAIA. In a landmark PAIA victory in June of this year, the Constitutional Court set aside a significant costs order that had been awarded against Biowatch, a small environmental NGO, because the litigation Biowatch has been pursuing for nine years had been in the public interest, in line with constitutional rights. This ruling is significant to information activists and NGOs as it offers reassurance that litigating in cases relating to access to information and other human rights will not necessarily result in crippling costs orders.
In another case in June 2009, Brummer vs Minister of Social Development, the Constitutional Court ruled that the right to access information cannot be exercised if the state imposes unreasonable time frames in which to challenge its decisions, and so extended the time limit to lodge a court challenge after a failed PAIA request from 30 to 180 days. And in an unexpected breakthrough earlier this month, the Minister of Justice ruled - in response to an internal appeal SAHA had submitted to him - that a masked version of the TRC's Human Rights Violations database and a copy of Eugene De Kock's amnesty application be made available to SAHA under PAIA. SAHA have been trying to access these records in question, amongst others, since 2006. The Department of Justice (DOJ) had, until Minister Radebe's ruling, repeatedly refused SAHA access to the records, citing various illogical exemptions over and over. This obstructive attitude is somewhat ironic, given that the DOJ is supposed to be the country's ‘lead agency' on access to information, technically responsible for mainstreaming the implementation of PAIA within government. SAHA had time and again pointed out to the DOJ that the cited exemptions did not make sense, but to no avail. Hopefully Minister Radebe's recent ruling will now set the tone for future requests submitted to the DOJ and encourage other government departments to follow suit.
While these developments may be a sign that PAIA is on its way to becoming a more accessible and useful tool for fostering a culture of openness and accountability in South Africa, this year's Right to Know Day serves as a timely reminder that all South Africans need to be sending a clear message to both private and public bodies, on an ongoing basis, that we expect our 'Right to Know' to be respected and upheld, in order for principles of transparency and accountability to become embedded in our fledgling democracy.
