22 August 2012

New PAIA judgment demonstrates how poor record keeping continues to frustrate the realisation of the right to information.

On 22 August the South Gauteng High Court issued an order requiring the Mpumalanga Tourism and Parks Agency (MPTA) to release records to SA Airlink (Pty) Limited in terms of the Promotion of Access to Information Act (PAIA).

While the judgment essentially turned on principles regarding the application of exemptions under PAIA already established by the Supreme Court in Transnet Ltd and Another v SA Metal Machinery Co (Pty) Ltd 2006 (6) SA 285 (SCA), the case is noteworthy for its revelation of the poor record keeping and information systems practices that continue to plague public bodies and frustrate the right to information.

The case involved a request by SA Airlink for a copy of an agreement and related documentation between MTPA and Comair for flights between O R Tambo Airport and Kruger Mpumalanga Airport. Alerted to the possible existence of such an agreement by an article in the Business Day in August 2009, SA Airlink lodged a number of PAIA requests and engaged in a series of communication in an attempt to obtain access to the records.

MTPA's responses to the various communications and PAIA requests demonstrate the impact of poor record keeping and information system practices on the right to information afforded by PAIA. During the three year period that SA Airlink pursued the records, MTPA's responses to the requests varied significantly, from indicating that no ‘final' agreement was in place in August 2009, to claiming the agreement was ‘unknown' to MTPA three months later, before subsequently admitting and publicly announcing the existence of the agreement, but refusing SA Airlink access to a copy on the basis of a number of exemptions contained in PAIA, most notably the protection of confidential third party information.

Indeed, confusion within the MTPA as to the existence of an agreement seems to have continued beyond its public announcement and the decision to deny access under PAIA, which should have involved a thorough analysis of the document. The court noted in its judgment that contradictory statements were provided in the answering affidavit to the court application; the respondents in some sections of the affidavit seemingly admitting the existence of the agreement and in other sections stating "there was no agreement that was entered into between [MTPA] and [Comair] that I am aware of".

Such failures in information systems management and record keeping are not unique to MTPA, nor do these problems represent a new obstruction in the realisation of the right to information. In the SAHA publication Paper Wars: Access to Information in South Africa, former manager of the SAHA Freedom of Information Programme, Kate Allan, highlighted the poor record keeping practices of public bodies:

"It is apparent ... that since transition, records management has been poor. This is apparent even in bodies such as SAPS , which fervently implement PAIA; in response to a request for access to records relating to Operation Crackdown, a highly publicised operation targeting organised crime, SAHA was informed that numerous records at all levels of SAPS - that is, area, provincial and national levels - could not be found despite having been created in 2005. Similarly, upon a request for access to records relating to the repatriation of the remains of Saartjie Baartman, the Department of Arts and Culture acknowledged that a number of key documents had been misplaced."

The continued failure by government to implement procedures to create, manage and retain records, which is essential to facilitate access, demonstrates the low priority that continues to be afforded to the realisation of the right to information at all levels of government.

The case is also noteworthy for the insistence on the part of a public body to proceed to litigation to allegedly protect the commercial interests of a third party, Comair. While Comair initially opposed the request for access to information by SA Airlink, claiming that the information sought was "highly sensitive and of a commercial nature", Comair elected not to oppose the court application. It can therefore be assumed that either Comair determined that the information was not of the highly sensitive commercial nature it initially claimed, or that it recognised on a fair interpretation of the exemptions under PAIA, SA Airlink was entitled to the information.

Whatever the reasons of Comair, the decision of MTPA to spend public funds to protect the commercial interests of a third party that did not consider it worthy to spend its own funds to do so is deeply concerning.

Download the case: SA Airlink (Pty) Limited v The Mpumalanga Tourism and Parks Agnecy and Others.