In December 2014, after over a decade of refusals by the DOJ and the eventual launch of litigation, the Department of Justice and Constitutional Development (DOJ) responded to SAHA’s PAIA request for transcripts of hearings conducted by the Truth and Reconciliation Commission (TRC) under section 29 of the Promotion of National Unity and Reconciliation Act, 2003, by releasing over 13 000 pages to SAHA.
This was to be the first of several releases in response to this litigation. A number of the transcripts released under this first release, had information redacted out of them. Under section 25(3) of the Promotion of Access to Information Act 2000 (PAIA), when read in conjunction with section 28 of PAIA, a public body must state adequate reasons for such redactions. On reviewing the records SAHA noted, not only was there information redacted out of some of the transcripts, but there were also pages missing from some of the transcripts and a number of copies were unreadable in addition, through research, as well as comments in some of the released transcripts SAHA determined that there are transcripts that were not provided to us at all. SAHA therefore, through our attorneys Cliffe Dekker Hofmeyr’s Pro Bono and Human Rights Practice, requested that the DOJ provide reasons for the severed parts of the records, provide copies of the missing pages and better copies of the unreadable pages and also provide copies of the transcripts that we were never provided copies of. In response the DOJ in July 2015 handed further copies of some of the transcripts to SAHA, while this addressed some of the issues, there was still a large number of unresolved issues and still no reasons were provided for the redactions. SAHA therefore continued to follow up, through our attorneys, seeking reasons for the redactions and resolution of the remaining issues.
In December 2015 the DOJ again released copies of transcripts, again without providing reasons for the redactions in the copies released in December 2014, and while there were two new transcripts in this release the rest of the transcripts were copies of the same transcripts that had previously been released, but this time without any redactions. SAHA, is unclear as to why the DOJ has decided to release clean copies of the records, after previously, apparently, having determined that it was necessary under PAIA to redact certain information from that record. In order to try and gain an idea of whether the DOJ appears, from a look at the two sets of transcripts – the clean copies and the copies with redactions whether the DOJ had applied redactions correctly in the first place SAHA took a 10% sample transcripts and compared the two sets. We looked, where the DOJ had redacted, at the information in the clean copies to determine whether the redaction appeared possibly necessary under PAIA, and also scanned for other information that may reasonably, possibly be subject to redaction under PAIA. We found that many of the redacted names were inconsistently severed from the record, that is, a name that was redacted on one page appears unredacted on other pages. This is not compliant with the provisions of PAIA, it seems to indicate that the DOJ was redacting without applying its mind to the information in the records, and cannot become the common practice for any department. We also found that many of the redactions were not properly made under PAIA, while there was also information that might possibly be subject to redaction under PAIA.
Below is an example of an improper redaction as the severed company name is public knowledge. Please find publicly accessible transcripts of the TRC hearings on our TRC website in conjuction with the SABC.
Unfortunately SAHA cannot definitively make a call on whether redaction was or was not properly applied in the later instances as we are not privy to other information, necessary to make such a decision, to which the DOJ is privy. It appears to us that the DOJ might have decided to release this information, unredacted, in the public interest (something that PAIA makes possible in section 46 of that Act), given that these are records of gross human rights violation under apartheid. The risk of arbitrary redaction, such as that applied by the DOJ in this instance, is twofold: on the one hand, the DOJ has applied a ‘blanket redaction system’ where too much is severed, and on the other hand, the DOJ has released information, which possibly should have been protected through redaction, unless it is released in the public interest, which seems likely, given the clear public interest in records of gross human rights violations.
While SAHA accepts that there are legitimate grounds for refusing access to information under PAIA, such refusal needs to be in line with PAIA and sufficient reason needs to be provided for such refusal. SAHA therefore continues to call on the DOJ to comply with their statutory obligations and provide a sufficient response to a question that should have been answered long ago.
