OPEN DEMOCRACY BILL
SUBMISSION BY THE HUMAN RIGHTS COMMITTEE
23 MARCH 1999

Contents
Introduction
The ethos and principles underlying the bill
The "right to know" approach
Problematic areas and HRC’s recommendations
Conclusion

It is our understanding that this round of public hearings is focussing on the broad principles of an Open Democracy Bill. Our submission therefore does not refer to the detail in the bill, but presents a holistic view of what HRC would like to see in an Open Democracy Bill. We hope this will be of assistance to Parliament at this stage of the process. We would appreciate a later opportunity to address the new Parliament on specifics when the bill is re-introduced in August.

Introduction
One of the central ideals of the Constitution is an aspiration to an open and participatory democracy. Central to this aspiration is the right of access to information. Section 32 of the Constitution expressly provides every citizen with the right of access to information, but requires government to pass legislation to extend this right and to create effective mechanisms for its enforcement.

Making the constitutional right of access to information a reality is essential to ensure:

• an open and democratic society,
• good governance,
• transparent exercise of power
• accountability
• and a participatory democracy

The bill will not only cover this government but all governments to come after it. Like the Constitution, it should be clear, concise, firm and principled in its approach. The bill signals a definite step away from our past which was characterised by secrecy and deliberate concealing of important information. It shows why chunks of our history are missing and why we needed a TRC and why we still do not know what happened in certain state structures. One of the factors which contributed to the development and growth of the Apartheid state’s covert operations was lack of information. Never again should this be allowed to happen.

The Open Democracy Bill, in giving effect to the right of access to information, should not be a tool which government or powerful private entities can use to restrict access to information. The premise upon which the bill should be built, is maximum disclosure. Any individual or state body attempting to withhold information should bear the burden of proving that the information is exempt from disclosure.

Neither should the bill be accessible only to the rich and powerful. It must create a system that is designed to serve all South Africans, particularly the poor and marginalised sectors.

Our submission contains suggestions to improve the bill’s capacity to make the right of access to information a reality for all South Africans.

The ethos and principles underlying the bill
In 1994, the Deputy President appointed an Open Democracy Task Group. In 1995, the Task Group published Policy Proposals which were to lay the foundation for the first draft of the bill.

The Policy Proposal Document refers to the legacy of the South African past that needs to be addressed before an open democracy can be achieved.

"This effort to achieve an open democracy will have to contend with the legacy of the South African past. Obstacles to a participatory and accountable democracy include a high rate of illiteracy and an authoritarian tradition which for generations has inculcated in our people a deferential and fearful attitude towards the institutions of governance, and in our civil service a secretive and unresponsive culture….To overcome this legacy, the Act will have to pay special attention to the need actively to assist citizens to obtain access to official information."

• high rate of illiteracy
• authoritarian tradition
• citizenry with a deferential and fearful attitude towards the institutions of governance
• secretive and unresponsive culture permeating our civil service

Bearing this in mind, the drafting team established principles that the bill should adhere to. HRC believes that these important principles must not be lost sight of in the drafting and deliberations process. It is for this reason that we re-state these principles in the next few paragraphs:

Maximum Disclosure
Proactive mechanisms
Speedy response to requests
"Citizen-Friendliness"

Maximum Disclosure
"The governing principle of the Open Democracy Act ought to be the greatest possible openness of government". [Policy Proposals: 1995]

Adherence to this principle requires:

Narrow exemptions: The exemptions should be drawn as narrowly as possible, to exclude from disclosure the minimum of information necessary to safeguard the interests that the exemptions protect.

The exemptions therefore need to be detailed, yet in plain language, in order to make them accessible to citizens and governmental officials.

Well-justified exemptions: The exemptions should be constructed so that there is a tight fit between their scope and the principles that justify them. The exemptions should protect sensitive information, they should not be blanket immunities for particular bodies or organisations.

Although the first draft of the bill did not exempt any government departments, the tabled version specifically exempts Cabinet, the Courts and the judiciary from the ambit of the bill. HRC submits that no government body should be exempt from the ambit of the bill. Only sensitive information should be exempt.

The blanket exemption of Cabinet is particularly problematic. One of the key elements of our Apartheid past was the secrecy which shrouded the deliberations and decision making processes of Cabinet and its committees. Today as a result, there are holes in our country’s history.

We have only ever experienced a system of blanket immunity for Cabinet. We have been socialised to the extent that we feel we are only entitled to some information and not to all information. HRC implores the Justice committee to move away from this premise and move towards the principle of maximum disclosure where only sensitive information is exempt from disclosure and not whole government structures.

Harm: Information should be exempt from disclosure only when its release would cause real, not speculative harm.

In previous drafts of the bill, the chapter dealing with exemptions culminated in a section entitled "Necessity of harm". The section prevented information being refused on the basis of an exemption, if the harm envisaged by the exemption was unlikely to occur. This section is no longer in the bill. We submit that this section should be re-incorporated into the bill as it will help prevent the unreasonable refusal of information.

Public-interest override: Some exemptions should be subject to a public-interest override. Thus, even if information falls under the cover of the exemption, and is prima facie protected, it should be disclosed if disclosure would be in the public interest.

The bill subjects some of the exemptions to a public-interest override. We support the retention of this section.

Maximum disclosure an interpretative guideline: The bill ought to incorporate the principle of maximum disclosure explicitly as a general interpretative guideline. This would mean that whenever there was doubt, it should be resolved in favour of disclosure and openness.

We suggest that an "interpretation clause" expressly stating this principle, should be included in the bill.

Pro-active mechanisms
In order to ensure that the Open Democracy Bill creates a culture of transparency within government, the Task Group recommended that government bodies be required to take pro-active steps to facilitate access to information under their control. These include:

Manuals: Government bodies should publish manuals containing information inter alia on their structure and functions, appeal procedures and descriptions of the classes of information in their possession.

Section 6 of the Bill obliges each government department to publish such a manual within 12 months of the commencement of the Bill. We support this provision.

How to use the Act: Information about how to use the Act should be made available through schools and post offices. It should also be included in the telephone directory as part of each government body’s entry.

Section 5 of the bill requires the Human Rights Commission to publish a guide in all 11 official languages, on how to use the Act. We support this provision.

Section 7 of the Bill provides for information on how to contact each department’s information officer to be published in the telephone directory. We support this provision.

Reading room material: Government bodies should hold certain documents and records in a conveniently accessible place for inspection, study and copying by citizens. These should include a complete set of the unreported judicial and administrative judgements and authoritative rulings on questions of law and policy used by the body in its decision making processes.

In previous drafts of the bill, a section entitled "Disclosure of governmental decision making guidelines" was included. However, this has been left out of the tabled bill. The section compelled government bodies to make available for inspection any guidelines which are used to make decisions or recommendations to confer rights, privileges, grants or benefits, or to impose obligations, liabilities, penalties or detriments. These would include objectives, rules, criteria, precedents, procedures or interpretations.

HRC suggests that this section should be re-introduced into the bill. In the alternative, it should be included in the Just Administrative Action Bill.

Speedy response to requests
Official information can only be used to hold government accountable, or to participate in a decision making process, if the information is obtained speedily. The time periods proposed in the bill (government has 30 days in which to respond to a request), coupled with the time delays inherent in the external review High Court proceedings, put adherence to this important principle in jeopardy. We propose a shorter time period for response to requests for "already packaged" and available information. Requests for information that needs to be sorted and compiled should understandably be subject to the 30 days period.

"Citizen- Friendliness"
"One of the great impediments threatening the success of the Open Democracy Act is the novelty and the unfamiliarity of the democratic culture required to nurture it. South African citizens are not used to demanding information from their government, and they are unaccustomed generally to using the instruments for holding government accountable."[Policy Proposals: 1995]

Solutions?
Education: Open democracy education should form part of human rights education at schools and a public education drive should be undertaken when the bill becomes law. Civil Society has a role to play here.

Active assistance:
Enforcement mechanisms must be cheap, simple, quick and easy to use. The system proposed in the bill for external review does not meet these criteria.
Right to know, not need to know: The information requester should not have to demonstrate a need for the information or an interest in it.
• Burden of proof must be on government to show that the information is exempt
• Information officers should have a duty to assist requesters (e.g. To reduce oral requests to writing, redirect misdirected requests)
• Reasons for refusal and information on how to appeal must be given when requests are turned down.

The "right to know" approach
The bill currently provides mainly for access to information upon request, with provision made for complex exceptions and appeals. This approach is not accessible to the vast majority of South Africans who lack the resources and capacity to engage in an adversarial process.

In order for the bill to fulfil its promise of open democracy, the most vital categories of information should be made automatically available to the public. An "information shop" should be constructed, where ordinary people can access public records.

Government has already begun to lay the foundation for a "right to know" approach, in fact, the Government Communication and Information System (GCIS) credo is " the right to know". These initiatives and policy shifts have however not being incorporated into the framework of the Open Democracy Bill. We will briefly mention a few initiatives that are relevant.

The Internet and IT approach
The Department of Communications has initiated various projects aimed at improving access to government information, particularly via the Internet:

• Public Information Terminals (PITs): The Post Office has committed R2 million for the development of the pilot and prototype of PITs. The idea is to provide communities who do not have access to the Internet, with access to information terminals in Post Offices. Citizens can use the terminals to access government information normally inaccessible to rural areas and other remote areas.

• Other pilot projects include Community Information Centres, One-Stop Government Information Shops and Internet 2000. This last mentioned project commenced in recognition of the lack of knowledge amongst the majority of South Africans of the Internet and how to use it. Internet 2000 is a long-term project aimed at creating a knowledge based society with regards to the Internet and Information Technology. The first phase of the project will focus on primary schools.

• The Government Communication and Information System (GCIS) website was launched in January 1999 and contains the basic framework for an Internet Government Information Shop. (It appears as if each Government Department is responsible for creating and maintaining their own website. While some Departments have very detailed sites containing up to date information on their structure, functions and records, others have not yet created their websites. Notable in this last category are the Justice, Home Affairs and Health Departments. Parliament is also lagging behind when it comes to on-line information. The official Parliamentary website has not been updated since November 1998.)

The Paper approach
Government bodies are obliged to publish various reports and documents. The bill, in sections 42 and 43, exempts information officers from having to respond to requests for information which is already published or about to be published. However, there is an important proviso to the exemption: The request may not be refused if the Human Rights Commission determines that the manner in which access may be obtained and the fee payable for access is too onerous.

It is important therefore to mention that the current manner in which official publications are distributed is not always accessible. A document that is tabled in Parliament is not accessible to the majority of South Africans, particularly those who do not live in Cape Town. Publication in the Government Gazette is also problematic. Besides being packaged in an inaccessible format, Government Printer outlets are not accessible to the majority of South.

Publication of documents on the Internet makes them accessible to a larger number of people. However, the Internet solution is a long-term project. It will take a number of years before all South Africans are up to speed on how to access and use the Internet to obtain government information. Furthermore, access to the Internet is not yet affordable for the vast majority of South Africans. In the light of these facts, HRC submits that there is a need to create "Paper-based" community information terminals. Again there are various initiatives under way in other government departments notably Arts and Culture and Communications.

A positive development is the creation in the Legal Deposit Act of 1997[the Act commenced on 1 July 1998], of Official Publications Depositories (OPDs). Government bodies are obliged to send all documents published by them to each provincial OPD.

The OPDs shall serve as centres for promoting public awareness of, and access to, information held by the government; and will provide public access to databases and other information sources to which the public may gain access under any law.

At the time of writing this submission, we were unable to find out whether the Minister of Arts and Culture had established or designated any of the provincial OPDs, what type of information they contained, where they were located and whether they were accessible to the public.

We submit that the Open Democracy Bill should take cognisance of these developments, both the Internet and Paper approaches. The bill should establish a broad framework to develop a right to know approach for the most important government information.

Towards such an approach, we suggest that government departments should be required to classify their information. The first category of information, that which is "safe" ,"uncontroversial" and frequently sought after information, should automatically be published and made accessible to the public through the various outlets mentioned above.

This will increase the flow of information to the public, while also easing the government’s administrative burden of having to reply to repetitious individual requests for the same public records.

The "classification" process should be done in an open and inclusive manner involving input from the users of the information: the public and organised civil society.

Problematic Areas and HRC’s recommendations
In summary of the points mentioned above and looking at the bill as a whole, we would like to make the following recommendations:

1) The bill should provide a framework for implementing a "right to know" approach. This involves obligating government to "put out" certain "safe" categories of information. Besides ensuring easy access for citizens, this approach also relieves government of the administrative burden of having to respond to repetitious individual requests for the same public records.

2) The Bill should give full effect to the constitutional right of access to information (Section 32):

• The bill should be extended to apply to information held by private bodies. We endorse the submissions by the South African Council of Churches and the Legal Resources Centre on this issue. Private bodies are increasingly wielding traditionally public power and should therefore not be exempt from having to provide access to information which citizens may need in order to empower them to protect or exercise their rights. Section 32 of the Constitution provides for access to information held by private bodies. If the bill does not give full effect to section 32, besides creating legal uncertainty, it could be subject to a Constitutional Court challenge.

• The section on Open Meetings which appeared in previous drafts of the bill and which is an essential component of open democracy, should be put back into the bill. To this effect we endorse the submission by the Black Sash. If the Justice committee would prefer to see open meetings provisions in a separate piece of legislation or in the various Acts regulating government bodies, we suggest that the Open Democracy Bill should set down the minimum principles and framework which should be adhered to and an obligation for such separate provisions to be drafted within a certain time limit.

3) If the right of access to information is to be meaningful, the enforcement procedure must be cheap, speedy, accessible, uncomplicated and informal otherwise the Act will only be used by the rich and powerful to defend their interests. The High Court external review procedure proposed in the bill is not accessible to the majority of South Africans. External review by the High Court, as currently envisaged by the Bill, does not provide a remedy that is cheap, speedy and accessible – in fact, the reverse. Hence a creative, innovative – and cost effective – alternative, such as a tribunal, must be considered. We endorse the submission by Idasa on this issue.

4) The Human Rights Commission has been allocated certain important duties under the bill. The addition of functions to the Commission should be followed by the necessary budget increase and re-structuring within the Commission. We suggest that the bill should stipulate that a dedicated Open Democracy unit, with separate and adequate resources, should be set up within the Commission. The Human Rights Commission should also be obliged to consult with organised civil society when drafting its report to Parliament in terms of section 83 of the bill.

5) The whistleblower protection section is a welcome addition to the bill. We submit that the section should be extended to provide appropriate protection to whistleblowers in the private sector. Private sector companies often carry out state functions or fulfil state tenders. As these companies are being paid with taxpayers' money, it is important to protect whistleblowers who expose corruption, maladministration or illegal acts. Furthermore, white collar crime has been identified in the NCPS as a priority crime.

6)The drafting of the exemptions should be guided by the principle of maximum disclosure. We endorse Nadel’s submission on the issue of exemptions. The principle of maximum disclosure requires narrow well justified exemptions, a necessity of harm override, a public interest override, adherence to the principle of severability and maximum disclosure as an interpretative guideline. No government body should receive a blanket exemption.

Conclusion
The Open Democracy Bill is an important piece of legislation primarily because it purports to give effect to a Constitutional right which bears a particular significance in South Africa. It is therefore profoundly important that it give full effect to the right and to the spirit of openness which pervades throughout the Constitution.

The Human Rights Committee would like to thank the Justice Portfolio Committee for the opportunity to make this submission and we look forward to making further inputs on the detail of the bill.

Contact person:
Paula Proudlock
Legislation Researcher, Human Rights Committee
Tel. 021 – 426 1942
[email protected]