South Africa ranked 12th out of 89 countries in the Centre for Law & Democracy's Global Access to Information Ratings (ATI Ratings), a two year comparative analysis of 89 legal regimes for access to information across the globe, and 13th out of 80 nations in an additional study that dealt with implementation of access to information laws, known as the Six Questions Campaign (the Campaign).
In the ATI Ratings, South Africa benefited from the broad application of its legislation, which is complemented by a strong constitutional right to access information. The ability to access privately held information which is necessary to protect human rights also gave support to South Africa's law.
Fallbacks in South Africa's legal regime identified by the ATI Ratings included the damaging exceptions for records of the cabinet and members of parliament, as well as the inability of the Human Rights Commission to provide binding solutions on review of a refused request for information. These obstacles are directly linked to the non-existence of an information commissioner with the power to review refusal decisions and provide decisions that are binding. Civil society organizations dealing with freedom of information legislation in South Africa have been strongly advocating for a body of this nature.
Notably, the ATI Ratings do not purport to assess the level of implementation of existing legislation, but only the value of the legislation itself. This represents a significant shortcoming of the assessment as it fails to reflect the culture of openness in many countries whose willingness to share information is not reflected in their legislation. Similarly, it does not recognize the culture of secrecy that prevents the free flow of information in many states with robust legislative regimes.
The Six Question Campaign revealed that South Africa took an average of 2.2 requests and 57 days to respond before information was received, despite a statutory obligation to respond within 30 days. Of the six requests made, the requested information was provided twice. On three occasions, incomplete information was provided. One of the pieces of requested information was not held by the government.
Notably, this analysis found that the South African government did not fail to respond in any instance. This finding is at odds with the recent Shadow Report released by the PAIA Civil Society Network, which used a significantly larger sample size in their assessment. That report found that 53% of the initial requests for information were refused. Perhaps what was most concerning was the fact that of the requests that were refused, 74% of the time the information holder failed to respond.
Although the Campaign indicated that performance tended to improve with the age of access to information laws, with the notable exception of France, several of the top performing states included new democracies and countries with young access to information laws. This indicates that recent promotional campaigns for the right to information have positively influenced performance. The poorest performers typically did not have any freedom of information laws.
India was the top performer when both studies were accounted for, finishing 2nd in the ATI Ratings and 3rd in the Campaign. Two African nations made the top ten in the ATI Ratings: Liberia finished 5th and Ethiopia was ranked 10th overall. Notably, Namibia, which does not have an ATI regime, finished 4th overall in the Campaign's view. For a complete listing of the results, visit the Centre for Law & Democracy's website.