31 January 2014

PAIA zooms into state secrecy

Ryan Shapiro, a United States (US) citizen, has filed a lawsuit against the CIA (Central Intelligence Agency) for failure to respond to a request for Nelson Mandela's arrest records.

It has long been suspected that the CIA worked closely with the South African apartheid government to assist with the arrest of Nelson Mandela in 1962, and Shapiro is seeking information that sheds light on the arrest.

The lawsuit against the CIA relates to requests for information that were made under the US's Freedom of Information Act in 2013 by Shapiro, a PhD candidate at the Massachusetts Institute of Technology in the US. As part of his dissertation research, Shapiro made the requests for information to the CIA, Federal Bureau of Investigation (FBI), the Defense Intelligence (DI), and the National Security Agency (NSA).

The CIA was due to respond to the request before 29 December 2013. However, the CIA completely failed to respond to the request. Shapiro then turned to the courts in order to have his request responded to by the CIA.

In the meantime NSA has refused to confirm or deny the existence of the requested records. It is understood that the FBI and DI are still yet to consider the requests. However, the FBI has already branded Shapiro's freedom of information research work as a threat to national security.

The Shapiro case has brought attention to similar challenges faced by information requesters in South Africa particularly related to lack of responses to requests, known as deemed refusal. Institutions such as SAHA are faced with challenges of deemed refusals when requesting information under the Promotion of Access to Information Act, 2000 (PAIA), including information that relates to the apartheid government era.

The PAIA Civil Society Network (PAIA CSN) has reported that there is an increase in the number of failures to respond to PAIA requests by public bodies. In 2013 about 73% of public body denials were deemed refusals. The PAIA CSN shadow report notes that the public bodies that failed to respond included institutions at a national level, provincial level, local government level and legislative bodies.

Furthermore the Shapiro case has placed a spotlight on the issue of access to information versus national security. Without preempting the outcome of the pending lawsuit against the CIA by Shapiro and the pending consideration of his outstanding requests, the clear implication of declaring Shapiro's work a threat to national security instead of defending the non-release of information by using the freedom of information law, is that not providing a response to the request is an easier approach than making a defense in terms of the freedom of information law that provides for a national security exemption.

This is a similar approach to that taken by the Department of Public Works (Department) in South Africa against a PAIA request related to the upgrading of the president's home in Nkandla.

In the Nkandla case brought under PAIA, in which SAHA made submissions as amicus curiae, the Department initially refused to release documents by invoking the National Key Points Act, and raised national security as a defence to refuse a PAIA request for information. The department later released some of the information without any explanation as to why it had raised national security concerns.

The lack of response to requests for information, such as those in the Shapiro and the Nkandla cases, raise concerns because when public institutions do not respond they are potentially trying to avoid justifying why information should not be released under the national security exemption.

Nkandla is an example of a refusal by a public body where the government uses a national security defence outside of PAIA in order to avoid using the exemptions provided for by PAIA. This leaves requesters with having to approach the courts and engage in lengthy court processes to force government to respond to the requests in terms of PAIA.

Cases similar to the Nkandla case also demonstrate successes that can be yielded from being persistent with a PAIA request and advocating for the right to information.

PAIA continues to be tested in courts against an imbedded historical culture of secrecy.

For more information on SAHA's PAIA requests, please consult the PAIA Request Tracker