26 September 2012

SAHA dialogue forum: South Africa's Right to Know? Reviewing the power of PAIA as an agent for change

Hennie van Vuuren speaks on the rise of the securocrats in South Africa at SAHA's dialogue forumAs part of SAHA's series of events celebrating the 10th International Right to Know day, SAHA hosted a dialogue forum on 26 September to discuss the implementation challenges associated with the right to know and consider what steps must be taken by government and civil society to transform the right from paper to reality.

The first panel discussed the challenges that have hindered the implementation of the right and the utilisation of PAIA as an agent for change.
Tammy O'Connor, SAHA - Tammy discussed the legislative challenges inherent in PAIA which have hindered the implementation and utilisation of the right. In particular she highlighted:

  • The formalised nature of the request process, which has prevented many communities from utilising the right independently because they are unable to access the necessary form, have difficulty completing forms, or do not have the resources to submit the request.

  • The uncertainty of many of the grounds for refusal and the failure of many information holders to recognise the often conditional nature of grounds for refusal, instead refusing information simply on the basis of the existence of a category of information, rather than assessing the harm that would result from the release.

  • The high threshold established by the public interest override test.

  • The lack of an independent, swift and inexpensive mechanism to which requesters refused information can appeal.

Download Tammy's presentation notes.

Note: Tammy spoke in place of Jay Kruuse, Public Service and Accountability Monitor, who was unfortunately unable to attend the event due to flight difficulties. Jay has kindly provided the paper he had prepared for the event.

Download Jay's paper.

Hennie van Vuuren, Fellow, Open Society Foundation - Hennie discussed external legislatives threats to PAIA, focussing on the rise of secrecy and the power of the intelligence agencies in South African society. Hennie argued that the Protection of State Information Bill (secrecy bill) and General Intelligence Laws Amendment Bill (spy bill) reflect a growing culture of secrecy that threatens the right to information. In particular Hennie noted the criminalisation of sharing classified information under the secrecy bill and the lack of sufficient protection for whistleblowers. He also discussed the powers afforded to security agencies under the spy bill to monitor electronic communications of South Africans, such as email, facebook and twitter, without the need for judicial permission.

Download Hennie's presentation notes.

Dale McKinley, activist and independent researcher - Dale discussed the socio-economic factors that impact on the utilisation of the right to information in South Africa. Dale argued that the right to information has been commodified; available only to those who can afford it. Dale suggested the purchase and sale of the right can be seen at three levels - access and reproduction fees applicable under PAIA; the high costs of the justice system; and the telecommunication infrastructure necessary to submit and pursue requests for information.

Dale also contended that South African's suffer from information poverty. Those on the social and economic margins must rely on the public sphere to enable them to learn about their rights and thus be able to pursue information. He argued, the failing education system, the lack of resources available from government departments and chapter nine institutions responsible for PAIA about the right, and the failure to make resources, such as PAIA manuals, available in locations accessible to communities demonstrates the failure of the public sphere to provide the necessary education. Dale concluded that in a context where many people are so information poor that they are unaware of the right itself, it is little wonder that the demand for information by such groups is low and that PAIA is not being used as an instrument for change.

Download Dale's presentation notes.

Lisa Chamberlain, Centre for Applied Legal Studies - Lisa discussed the challenges in using PAIA to obtain access to information from private bodies. She noted the additional hurdle placed on obtaining access to information from private bodies, as opposed to public bodies, that the record requested be ‘required for the exercise or protection of any right'. Lisa discussed the way in which the phrase has been interpreted by the courts and noted that while some liberal interpretations have been applied, insufficient case law exists and that the inaccessibility of the judiciary as an avenue of appeal for many requesters means that private bodies have been allowed to apply the phrase restrictively, limiting successful requests for information. Lisa suggested that in the future it may be necessary for requesters to look beyond the bounds of PAIA when requesting information from private bodies and consider using reputational leverage to place pressure on private bodies to release information.

Download Lisa's presentation.


The second panel discussed the future of PAIA as an agent for change, focussing on legislative developments and strategies that could be adopted in South Africa to improve the realisation of the right and its power to effect change.

Tammy O'Connor, SAHA - Tammy discussed the need for education to improve the power of PAIA as a future agent for change. Tammy argued that education must be undertaken both among civil society and with information holders. If such education is to be effective it must be grounded in issues facing the constituency, and not examine the right in the abstract. Tammy suggested that this would involve:

  • for communities, highlighting the role of information as an enabling right, which can inform everyday issues, such as access to housing, water and electricity;

  • for NGO's and CBO's, highlighting the role of information as a strategic advocacy tool that can be used to inform evidence based campaigns for change; and

  • for information officers, highlighting the broader contextual basis of the right in terms of informed public participation, active citizenry and service delivery.

Download Tammy's presentation notes.

Mukelani Dimba, Open Democracy Advice Centre - Mukelani discussed the need for legislative change to effect the realisation of the right in South Africa in the context of regional developments. Mukelani noted that when South Africa introduced what was considered a new ‘gold standard' law in 2000, other countries within the region and more globally followed suit, including Uganda, Antigua and Barbuda. However, developments in the region have seen many African countries pass laws that are more progressive than South Africa's and could assist in addressing the implementation problems encountered with PAIA. In particular Mukelani noted the following progressive provisions in other African statutes:

  • Liberia's access to information law establishes an information commissioner that is the final administrative arbiter on requests for information.

  • The Nigerian Freedom of Information Act and the Draft Model Law for the African Union allow for access to ‘information', regardless of form or medium, rather than restricting the right to ‘records', as is currently the case with PAIA.

Mukelani also noted the regression in South Africa from the promotion of openness; particularly in the form of the Protection of State Information Bill. That bill will allow access to information to be refused simply on the basis of its classification. Mukelani noted that in Ethiopia officials are expressly excluded from denying access to information on the basis of its classification, while the Declaration on Principles of Freedom of Expression by the African Commission on Human and People's Rights, calls on governments to amend or repeal secrecy laws to ensure they are consistent with the declaration.

Download Mukelani's presentation notes.
Alison Tilley, Open Democracy Advice Centre - Alison discussed the introduction of an information regulator that will have the power to make binding decisions in regard to information disputes. The regulator is established in the Protection of Personal Information Bill, which passed the National Assembly on 11 September and is awaiting consideration by the National Council of Provinces. Alison argued that the powers afforded to the information regulator in the bill should see positive developments for the realisation of the right to information, however, in practice its success will depend on the appropriate staffing and financing of the office. Furthermore, Alison suggested that while the regulator will bring positive developments, there is a need to move away from the ‘one document at a time' approach under PAIA and instead promote broad proactive data sharing; ‘information liberation'.

Dario Milo, Webber Wentzel / Wits Law School - Dario considered the role of the judiciary in promoting access to information, utilising four recent cases as examples. He noted that strategic litigation has produced positive outcomes for the furtherance of the right to information in that courts have found that access to information is the rule and secrecy is the exception; grounds for refusal in PAIA must be narrowly construed; information holders must justify their refusals by sufficiently grounding them within the criteria in PAIA; and have liberally applied the public interest override. However, he noted that the courts are not necessarily an effective means of furthering the right to information as court action is costly and generally results in long delays in accessing information.

Download Dario's presentation.