25 October 2016

At first glance transparent but in fact a little opaque: looking at SAPS’ PAIA compliance

Compliance figures

Since the launch of the SAHA PAIA Tracker in 2012 SAHA’s Freedom of Information Programme has submitted 88 access to information requests to the South African Police Service (SAPS). Five of the 88 requests are still within the timeframe for the provision of a decision. But, decisions have become due, at various points in time, on all 83 remaining requests. Out of those 83 requests:

  • Sixteen (19%) did not receive decisions, despite the expiration of the timeframe for the provision of a decision and are therefore deemed, by operation of law, to have been refused;
  • Twenty eight (34%) were actively refused;
  • Four (5%) were transferred: three transferred in full to other public bodies, one transferred in part with the remainder actively refused on the grounds that the relevant record does not exist; and
  • Access was granted, either in full or in part, on thirty five of those requests (42%).

The access rate, at 42%, is relatively high compared with figures for public bodies generally. Figures from the 2013/14 ‘Shadow Report’ of the Access to Information Network (ATIN) (formerly the PAIA Civil Society Network), show that access was granted (either in full or in part) on only 35% of requests submitted by the network, to public bodies, over the period 1 August 2013 to 31 July 2014.

A PAIA Request 

But, while a relatively high access rate can make it seem like the SAPS is fairly transparent, things are not always as they seem. In July 2015 SAHA submitted a request to the SAPS for copies of training manuals that were being used, or had been used over the previous 12 months, to train police officers on aspects related to the policing of protests and gatherings. Despite the issuance, in terms of provisions in the Promotion of Access to Information Act, 2000 (PAIA), of a notice of extension of time – extending the time available for the provision of decision from 30 to 60 days – the SAPS failed to provide a timely decision and by law was deemed to have refused the request.

In December 2015 therefore SAHA appealed the SAPS’ deemed refusal of the request. Early in February 2016 SAHA received a decision on our appeal. The decision did not comply with the provisions of PAIA in two respects. First, the decision did not come from the Minister of Police – the person designated by PAIA as the decision maker on appeals. Second, the decision came in over three weeks (24 days to be precise) later than the date on which it should, by law, have been provided. SAHA did not escalate the matter further however, as the decision had been to grant access in full – that is, to every requested record.

In May 2016, two months short of a year since we first submitted the request, SAHA finally received various training manuals related to the training of ‘platoon members’ and to basic training given to all police officers, in so far as all police officers can, to some degree, be required to participate in the policing of protests and gatherings. But, as it turns out, this is not everything we had been granted access to in terms of our request.

Digging deeper

In October of 2016 a researcher SAHA has previously collaborated with pointed out to SAHA that a 2011 SAPS policy document on the ‘Policing of Public Protests, Gatherings and Major Events’ refers to three levels of training: basic training (given to all police), training for platoon members and training for platoon commanders. While SAHA had received a decision on our request, giving us access to all training manuals, we had not received a training manual for the training of platoon commanders.

Giving the SAPS the benefit of the doubt SAHA wrote to them, requesting confirmation that their failure to provide a copy of a training manual for platoon commanders was based on the fact that there is in fact no separate training material for the training of platoon commanders. Surprisingly the SAPS wrote back indicating that there is a training manual for platoon commanders, and that they had not provided SAHA with a copy, despite the decision to the contrary, because the manual was currently being revised. The SAPS further requested that SAHA confirm that it would be acceptable to SAHA to only be provided with a copy of the revised addition. The anticipated date of finalisation of the revision being April 2017. SAHA wrote back noting our dissatisfaction with the misleading decision letter that gave no indication of the SAPS’ intention to defer access. SAHA further noted that PAIA makes no provision for the withholding or deferral of access on the grounds put forward in this instance by the SAPS and requested that the SAPS provide copies of the current edition of the training material on an urgent basis.

A gap in the law

A failure to provide access (or full access, as in this case) despite a decision granting access is a particularly problematic issue, one for which PAIA provides no remedy. The non-provision of a remedy in these circumstances should be urgently be addressed through amendment of PAIA.

Such failures to provide access are particularly problematic because they are not uncommon. It took, for instance, the institution of litigation against the Department of Justice before SAHA was provided with a copy of the Truth and Reconciliation Commission’s Victims Database; this despite a decision letter from the Minister, six years prior, granting access. In this instance however, it appears that litigation may after all not be necessary as the SAPS has notified SAHA that they intend to provide a copy of the current edition of the outstanding training material, within the next week.

Read more about SAHA's Freedom of Information Programme here

Read more about PAIA compliance of the SAPS here

Read more about SAHA's PAIA request for training manuals here

Read more about ATIN here

Access ATIN's Shadow Reports here

Read more about SAHA's proposed amendments to PAIA here

Read more about the TRC Victims Database here