08 January 2019

Challenges to Full Realisation of PAIA

In 2000 the parliament passed the Promotion of Access to Information Act (PAIA), paving the way for the empowerment of the South African citizenry as well as foreign nationals for the development of a knowledge based nation. PAIA ushered in a paradigm shift from a culture of government secrecy to one of more openness and accountability as people gained a legal right of access to information held by the South African public and private bodies.

The act not only allows for public access to information, but it also enables public engagement, influence and participation in national decision-making while ensuring that there is greater transparency in a democratic governance. However, the act has a number of flaws as there are barriers to accessing information which have persisted for years due to some of the limitations of its provisions. While there are some notable improvements in the patterns of compliance with PAIA, the experiences of the South African History Archive (SAHA) suggest that there is a significant lack of compliance with PAIA due to its limitations. Not only does this frustrate the realisation of the right to access information as enshrined in the Constitution, but it is also a hindrance to the realisation of other constitutional rights that depend on it.

Since its enactment, PAIA has been regarded as having progressive and expansive content.  However, several aspects of PAIA present serious barriers to the full realisation of the right of access to information. Some of these stumbling blocks to the effective implementation of PAIA will be addressed below.

Section 32 of the Constitution provides for the right to access information, while PAIA only provides a limited access to information which is confined to records only. This essentially excludes access to all other types of information that is not contained in a record and is in contradiction to section 32 of the Constitution which provides that 'everyone has the right of access to any information that is held by the State; as well as any information that is held by another person that is required for the protection of any rights.' Consequently, many public and private bodies have identified this loophole and use it to their advantage in depriving people of access to information. PAIA should not only apply to 'records' but it should be expanded to include 'any' information held by a public or private body.

Moreover, section 27 of PAIA states that 'if an information officer fails to respond to a request within the prescribed 30 day period, such a request is deemed a refusal.' This gives holders of information the option of simply disregarding requests without facing any legal consequences and it undermines the main objectives of PAIA which is 'to promote transparency, accountability and effective governance of all public and private bodies...'

Furthermore, PAIA makes no explicit provision for raising awareness and educational programmes directed towards either public or private officials as well as in communities at large. It only makes provision for the South African Human Rights Commission (SAHRC) 'to encourage public and private bodies to participate in the development and conduct of programmes' that the SAHRC is directed to undertake amongst the general public in Section 83(2)(b). Although there is no legal obligation under PAIA for civil society organisations to carry out awareness and educational initiatives, SAHA, through its extensive Freedom of Information Programme, conducts community trainings in efforts to raise public awareness and education about PAIA. Our experience is that not many people receive training or are informed about this piece of legislation and it is no surprise then that its implementation is extremely low.

While PAIA has come a long way in providing a channel for access to information, the challenges of fully realising the right to access to information are still apparent.  Non-disclosure of information held by the State and private bodies as well as enforced secrecy were at the centre of the anti-democratic character of the apartheid system because public access to information translated to meaningful democratic participation.  It is unfortunate that in the post the apartheid era, information continues to be withheld from the public due to some limitations of the provisions of PAIA. It is now 18 years since PAIA was signed into law and ensuring the accessibility of information is an integral part of ensuring effective public engagement with public and private bodies therefore, concerted pressure should be placed on making a critical assessment and revision of some of the provisions of PAIA to ensure its effective implementation. It is important to be cognisant that without the right of access to information, the realisation of all other rights is fundamentally compromised.