30 January 2015

National Key Points List and PAIA - where to next?

The release of a list of national key points is a significant victory for civil society’s efforts to promote the principles of accountability and transparency within government. However the two-year long process of trying to obtain these records by way of a request to the South African Police Service (SAPS) made in terms of the Promotion of Access to Information Act, 2000 (PAIA) shows a disregard by government for the processes prescribed in PAIA and highlights the need for the establishment of the Information Regulator, created by the Protection of Personal Information Act, 2013 (POPI), to be urgently fast-tracked.  

The PAIA request submitted by the South African History Archive (SAHA) on behalf of the Right2Know Campaign (R2K) for a record containing a list of national key points was denied by the Police Ministry, both at the initial request stage as well as at the internal appeal stage but Judge Roland Sutherland, sitting in the South Gauteng High Court in Johannesburg, found the denials completely without merit and ordered the release of the requested record within 30 of his judgment.

The judgment and its implications for PAIA

In finding the decision to deny access to the requested record to be unlawful and unconstitutional the court considered a number of factors:

The principle of legality

The court took into account the fact that the legal principal called the ‘principle of legality’ requires that laws that make actions criminal, and create penalties for those crimes must be public – this is so that people can know what conduct is considered criminal and adjust their behaviour in order to avoid committing crimes. The fact that the National Key Points Act, 1980 (the Act) imposes criminal penalties for certain actions if those actions take place at a national key point, when those same actions would otherwise be lawful, means, so the court found, that the Act violates the principle of legality and is thus unconstitutional. The court also found that in order to fix the unconstitutionality of the Act, the public would, at the very least, have to be made aware of which sites are national key points through the release of the requested record.

The public's interest in the National Key Points

In considering whether the so-called ‘public interest override’ contained in section 46 of PAIA should have been applied the court considered the fact that national key points had garnered a lot of media attention and that questions still remained about whether decisions taken in terms of the Act are an abuse of the Act. The court found in light of these considerations that it was in fact in the public’s interest to know which sites are national key points and that the public interest override was therefore applicable.

The judicial peek

In discussing the sticky issue of when it would be appropriate for a court to exercise the power conferred on it in terms of the provisions of section 80 of PAIA to take a so-called ‘judicial peek’ at a record, the court found a judicial peek is not available “for the asking, but must be seriously motivated as the only appropriate mechanism to avert a failure of justice.” The court confirmed that the Constitutional Court’s  decision to order the high court to take a judicial peek at the so-called ‘Khampepe report’ in President of the RSA v M&G Media Ltd 2012 (2) SA 50 (CC) was based on the fact that the State had in that instance claimed and showed to be plausible an “allegation that [its] ‘hands were tied’ or ‘hamstrung’ in meeting the threshold requirements of PAIA to justify the non-disclosure” of the requested record, and that a judicial peek was necessitated in order for the interests of justice to prevail.

While the SAPS originally filed legal notice of their intention to seek leave to appeal the high court judgment, sanity thankfully prevailed and this was withdrawn and the record released to SAHA and R2K’s lawyers, Cliffe Dekker Hofmeyr’s Pro Bono and Human Rights department, on 22 January 2015. Catherine Kennedy, speaking on behalf of SAHA has stated that SAHA is "delighted that SAPS have come to their senses in recognising that, as was well-demonstrated in Justice Sutherland's judgment, they simply failed to comply with PAIA from the outset so really had nowhere to go with an appeal.”

The way forward

Since its release there has been much analysis of the list, with some consideration given to which sites made the list and which did not and some speculation about the consequences of sites like the Square Kilometer Array making the list. The Mail & Guardian has published a comparison of national key points by province and by type as well as a map that can be used to check for the locations of the various national key points.

Certainly the list itself is not particularly revelatory in terms of what it contained, but rather what isn’t on the list. Inconsistencies in terms of the types of sites declared National Key Points points to the problem at the heart of the NKPA - nebulous definitions interpreted and applied behind closed doors. And the fact that a number of sites purported to be National Key Points did not appear on the list confirms suspicions that the NKP sceptre has been used repeatedly as a bullying tactic, to avoid scrutiny.

To try and uncover more about the process and timeline for how and why National Key Points have been delared over the last decade, SAHA has now in two further PAIA requests to the SAPS requesting the records that were handed over by the Department of Defence to the SAPS in 2004, when responsibility for national key points was transferred from that department to the SAPS, as well as requesting records with information about the declaration of and declassification of national key points, year by year since the transfer of responsibility in 2004. SAHA has also submitted a PAIA request relating to strategic installations on behalf of R2K.

R2K and SAHA also continue to call for the Act to be scrapped.        

Collage of National Key Points