Access to Information:Using the law

By Gabriella Razzano

The Law

1993 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

(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.

Broader

• 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)

By United Nations Photo on Flickr

Value of Access of Information

“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

Expenses Scandal: lessons?

• Ben Leapman 2009• Member of Parliament Expenses• Used their law to try and access• “The Duck House”• Slow release and profit (open data)• Role of access law? Pressure tool.

Compare: South Africa’s M&G

• M&G FIFA Local Organising Committee case– Awarded in High Court– Story in the response– “Private” even though 8 Ministers dealt

with public money

• M&G Kampepe-Moseneke case– Zimbabwe violence– Justifications (building law)– HC – SC – CC – HC – released! But…

appealing.

Promotion of Access to Information Act

• Preceded by the Open Democracy Bill

• Main Objects:-To give effect to section 32 -To give effect to that right subject to

justifiable limitations-To create mechanisms-To promote transparency, accountability

and effective governance of all public and private bodies

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; and

4. The law provides for a full explanation, and evidentiary standards, for utilising an exemption ground.

5. Allows for legal recourse

Problems with the law

1. PAIA manuals• Low compliance – a guide

2. Proactive disclosure• Use PAIA for all requests

3. Requesting process• Cumbersome e.g. India

4. Timeframes5. Exemptions6. Independent oversight body

• POPI

7. Costs.

What can you do?

• Use PAIA! The more its used, the better government becomes at responding.

• 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)

The Process:

How to request a record

Public Body Anyone

Private BodyAnyone who needs

the record to protect or exercise a human right.

Who is a requester?

Meaning of record

Record has a BROAD meaning: it means any recorded information – (a) regardless of form or medium; (b) in the possession or under the control of that public or private body; and ( c) whether or not that entity created it.

• 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

The forms you must use

• 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?

By Eva Blue on Flickr

• 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

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 requests3. 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

Examples of exemption types

• NOTE: these are the limits for refusal – they are the only reasons that can be used to refuse information

• 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, and where the public interest clearly outweighs the harm contemplated in the provision in request. (S46 & 70)

FeesPUBLIC BODIES:

· Request Fee - R35,00

· Various other reproduction fees, ranging from R0,60 - R17,00

· Search Fees - R15,00 per hour

PRIVATE 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.

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• Use Resource Kit

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.

• You can appeal because of a mere deemed refusal