Peter Kimemia examines the reasons why the public’s right to information is regarded as sacrosanct and the legal provisions that attempt to make this a reality.

An old adage suggests that knowledge is power and knowledge can only be built upon accurate and relevant information. It is little surprise, therefore, that some of the most repressive and autocratic political systems in history tended to deal in outright misinformation or carefully controlled access to information. Without this, their citizenry might ask awkward questions about the way in which they are governed. History seems to affirm that unhindered access to information is a prerequisite to good governance. The renaissance that preceded the agrarian and industrial revolutions would probably not have materialised without a fairly widespread diffusion of new information across medieval Europe. Marion Edmunds writing for the Open Democracy Advice Centre points out that “for communities and individuals, information is potentially a powerful tool in their struggles with bureaucracy. Yet it is often the bureaucrats who block their access to it, holding fast to public information as if they own it”.

Why do we associate expanded access to information with better governance? For one, it enriches public debate and enhances the likelihood that such debate will make a useful contribution to policy formulation. Discussion and input into policy in turn gives citizens a sense of co-ownership and responsibility for governance that goes beyond voting and elections and legitimises the role of the state.  Basic political theory suggests that freedom is best secured when citizens take an active interest in public policy decisions and how these are implemented – as well as comparing policy intentions with actual outcomes. By doing so, citizens are able to give political leadership invaluable feedback on the extent to which needs are being met and the soundness of current and future development priorities. Such feedback can also avert deepening mal-administration and the huge social, political and financial costs associated with severe deterioration in the public service.

Apart from influencing the priorities and policies of government, information in the public domain is essential to prevent or curtail corruption. Public revenue, for example, is notoriously vulnerable to abuse either out of self-interest or in pursuit of shady political projects. Where access to information is curtailed, it is possible for decision-making in the legislature, executive and even the judiciary to be tainted with hidden interests and agendas. Local government is similarly vulnerable. Since the advent of democracy, municipal policy reflects an understanding that informed communities and well-briefed political leadership are critical in checking any local propensity towards the abuse of power. Apart from accurate and user-friendly information on government plans, proposals and policies, it is obvious that good local governance cannot begin to take hold without public access to independent audit reports on government spending and clear indications of the state of fiscal management within municipalities.

What do we do if government is not disposed to providing such information? Fortunately for South Africans there is a law that protects their rights in this respect. At the inception of democracy in South Africa, an important feature of the negotiated Interim Constitution was the Bill of Rights designed to ensure equal protection of a broad range of human, socio-economic and civil rights irrespective of race, gender, sexual orientation, disability, belief and other factors. Crucially, the right of access to publicly held information was embedded in the Bill of Rights. Section 23 of the Interim Constitution clearly states: “Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights”.

The Promotion of Access to Information Act (2000) was primarily aimed at fostering efficient democratic governance by broadening access to information and knowledge. In other words, if citizens have access to information, they are able to hold the government accountable for its actions and inaction.

The Act seeks to give effect to certain aspects of the Bill of Rights and establish a culture of human rights and social justice. It also sets out certain limitations on the right of access to information, which are aimed at protecting privacy and confidential commercial information. Moreover, the Act tries to educate people about their rights and legitimate expectations with respect to the functions and operations of public bodies. Its attempts to promote transparency, accountability and effective governance in the public realm are also extended into the private sphere.

According to the Act, a person can legally request and obtain records that belong to public bodies. These may include any department or national or provincial administration or any municipality or any official or institution that exercises a power or performs a duty in terms of the Constitution. The same right applies in respect of any official or institution that exercises a public power or performs a public function in terms of any law.

To facilitate access to information, public bodies are required to appoint an Information Officer and a Deputy Information Officer. Furthermore, the Act requires every public body to put together an easily used manual containing certain information about the body concerned. The manual should also explain how an interested person could become involved in policy formulation or in the work of that body.

Anyone can ask for records from public bodies. A person can request records on behalf of another individual or group of persons in seeking certain information. The reasons for requesting records do not have to be specified and officials are not required to consider why they think the records are being requested. Basically, once the request is made in terms of the required procedure, officials are obliged to avail that information unless they can find good reason within the Act not to do so.  Disabled persons may require the information in a specific form, in which case the information officer must abide by this request.

In terms of the Act, public and private bodies may charge a fee for providing the requested records. However, such a fee is only payable if the applicant is not asking for personal information. There is also an access fee that covers the amount of time it takes to find the records requested, the number of pages required as well as the actual cost of reproducing the record. Usually, the first hour of the search is free with a charge thereafter.

In the event that a request for records is refused, the Information Officer has to give the applicant reasons and has to refer to the relevant section of the Act. Further, the applicant should be informed that within a certain period they can appeal the refusal, either to a more senior official in the public body or to a court. The Information Officer must respond within a time period laid down in the Act and failure to do so will be construed as a refusal to avail the information and will attract the applicable legal sanctions.

Non-government organisations such as the Open Democracy Advice Centre (ODAC), who have tried to assist the public to access important information, report that a mix of diplomacy and legal threat usually works. The ODAC makes it clear that there is still much scope for the use of the Act for those who are determined to being governed in a fair, just and transparent manner.

References
Dimba, M. Advocacy on the Right to Know in South Africa. (A paper presented during a Good Governance Learning Network event held in Johannesburg from 30 May to 1 June 2006.)
Edmunds, M. The Right to Know in South Africa. (A publication of the Open Democracy Advice Centre, 2006)

The Local Government Transformer, Vol. 12 No.4, August/September 2006