OPEN DEMOCRACY LOBBY GROUP (9 NGOS)
THE OPEN DEMOCRACY BILL B67-98
SUBMISSION TO THE SELECT COMMITTEE ON SECURITY AND JUSTICE
11 AUGUST, 1998


Sponsoring organisations:
1. The Black Sash
2. The Environmental Justice Networking Forum
3. The Human Rights Committee
4. Idasa
5. The Legal Resources Centre
6. The South African Catholic Bishops Conference
7. The South African Council of Churches
8. The South African NGO Coalition

Introduction
The eight sponsoring organisations all welcome the introduction of the bill. We have monitored its progress over the past few years, examined its implications for South Africa and reviewed the impact of similar legislation in other jurisdictions. We have sponsored a number of workshops to explore issues related to the bill, including one at which legal experts considered ways of extending it to cover privately held information.

As a result of our research we share several common concerns about the current version of the bill. The following submission summarises this consensus with respect to the eight points, listed below, that we agree represent the most important issues. More detailed research and conclusions about these eight points will be presented during the oral hearings.

Overview of the bill
The Open Democracy bill is a critical piece of legislation that will have implications for all aspects of society. The exercise of power, whether by the private sector or the state, should be coupled with measures to ensure corresponding responsibility in the use of that power. Whereas secrecy helps to obscure abuse of power, openness in political and economic affairs promotes effective government and respect for constitutional rights.

The Constitution guarantees the right to access information. The Open Democracy bill must give effect to this right in a workable and convincing manner. It must provide a clear and useable way to gain access to information and offer speedy and inexpensive remedy to those whose requests for information are refused. It must create a system that is designed to serve the poor and the marginalised, and which is not effectively accessible only to the rich and powerful.

Our suggestions aim to improve the bill's capacity to realise the goal of openness in a manner that is practical and accessible to all. In particular our submission recommends:
· that the bill should give full effect to the "freedom of information" clause in the constitution (i.e. that it should be extended to also apply to privately held information);
· that the bill should articulate the principle of open meetings as an essential component of open democracy;
· that the bill should include a positive duty on government to disseminate certain information without waiting for a request for that information; and
· that the enforcement provisions should be reassessed to introduce cheaper and more user friendly remedies.

1. The application of the bill to privately held information
It is imperative that the bill give full effect to the right articulated in
section 32(1) of the Constitution. This includes the right of access both to government records and to privately-held information required for the exercise or protection of any right. The Constitution makes no provision for piecemeal recognition of this right, so half-measures may create unnecessary constitutional confusion. Legislation giving partial effect to section 32(1) may well
activate the entire clause, entrenching a right of access to records of private bodies with no mechanism to regulate the form and manner of that access.

We believe that it is practical and desirable to avoid these dilemmas by amending the bill to realise fully the intent of section 32(1). Moreover, incorporating both aspects of the right of access to information in a single bill will
emphasize that accountability and respect for rights are fundamental principles that must characterise relationships in the private, as well as the public sphere. A draft proposal for how the bill may be amended in this regard will be presented during the oral hearings.

2. Open Meetings
Earlier drafts of the bill contained provisions relating to open meetings of governmental bodies. These provisions were in accordance with, and went a long way to giving effect to, the central constitutional values of openness and transparency of government.

We object strongly to the removal of the provisions relating to open meetings from the tabled version of the bill. In effect, this reduces the Open Democracy bill to little more than a freedom of information statute. As with meetings of committees of this Parliament, there is great value in members of the public having physical access, not only to meetings of their elected representatives, but also, where appropriate, those of public servants implementing policy and legislation.

We are sympathetic to the administrative burden that this would place on government. However we feel there would be great value in this legislation framing the requirement of open meetings in principle, with the details being left to regulations. This process would preserve the underlying constitutional right to open government, while allowing for flexibility in the implementation of that right.

3. Incorporating the "Right to Know" principle in the bill
The bill should provide a framework for moving beyond "freedom of information" to the implementation of a more accessible "right to know" model. The bill currently provides mainly for access to information upon request, with provision made for complex exceptions and appeals. This approach will fail to meet the needs of the vast majority of South Africans who lack the resources and capacity to engage in an adversarial process of pursuing a demand for information. In order for the bill to fulfil its promise of open democracy, the most vital categories of information must be actively disseminated or made automatically available to the public. As the Australians like to call it, an "information shop" should be constructed, where ordinary people can "take off the shelf" bits of especially important information.

The bill already contains the basic blueprint for an information shop, requiring publication of manuals explaining the functions of each government department and the categories of records it possesses (s. 6) and the governmental duty to disclose records revealing a public safety or environmental risk (s. 8). This sort of pro-active dissemination of information should be expanded to more types of government records, as well as to the collection and dissemination of important privately held information. This will increase the flow of information to the public, while also easing the administrative burden of replying to individual requests for public records.

Each government entity should engage in an open and inclusive process of analysing which of its records should routinely be made available to the public, in an easily accessible and understandable format, including via the Internet. Government entities should further identify areas of privately held information to be collected and disseminated and should be required to implement its recommendations within a specified time frame through regulations.

4. Whistleblowers
We support the section on whistleblowers and see it as a critical tool for the prevention and exposure of corruption. However we believe it needs to be extended to also provide appropriate protection to whistleblowers in the private sector. To give potential whistleblowers the confidence to come forward, the bill should establish a mechanism to give practical and other support to whistleblowers prior to the whistle being blown.

5. Enforcement
The current bill provides for external review to take place in the High Court. We believe that this forum is inappropriate for the adjudication of freedom of information disputes. Earlier drafts of the bill made reference to forums for external review, which were described as speedy, inexpensive, accessible, uncomplicated and informal. We are concerned that the High Court is not accessible, speedy or cheap. Even with the automatic assumption of urgency, which is provided for in the bill, it is unlikely that the time frames for court applications and dates of hearings envisioned in the bill will be accommodated in the High Court. In addition the High Court is formal, adversarial and prohibitively expensive.

The novelty of the right of access to information, and the absence of any existing precedent or jurisprudence on the question, particularly in the area of exemptions, may result in a large number of external appeals after the introduction of the legislation. We would like to propose the consideration of the introduction of an interim procedure between internal and external review by the courts. Such a procedure would be directed towards conciliation and mediation, with a view to facilitating settlement of matters, and would utilise an informal and inquisitorial procedure. It would however have authority to make a decision if settlement is not achieved. This could be introduced in the form of an information Commissioner, some form of a tribunal, or an Ombudsman.

The Human Rights Commission is central to the bill's vision of enforcement. However, unless sufficient resources are allocated to the Commission to carry out this extensive additional mandate, the bill will, we believe, prove unworkable.

6. The Exemptions
It appears that considerable work has gone into developing exemptions from government's duty to disclose. Although they are appropriate, in general, we believe that there are several flaws in the formulation. Firstly, the exemptions should be drafted in more accessible language. Secondly, the efforts to protect information about individual persons from disclosure are overly broad and unduly weaken the right to information. Thirdly, we believe the trade secrets/confidential information exemptions are overly broad. We recommend a narrower and more flexible approach such as is included in the draft Environmental Management Bill. Thirdly, we are concerned that the sections 2, 12, and 43, dealing with the relationship between this and other legislation, may unwittingly interfere with existing statutory rights to information. We suggest that these sections be rewritten so as to ensure that where there are conflicts among legislation, the legislation most favorable to access must be followed.

7. Necessity of harm exemption override
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. We believe that the re-introduction of this consequential test to the exemptions sections is important, and will prevent the unreasonable refusal of information.

8. Decision-making guidelines
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. We believe the section should be re-introduced in some form. The section compelled governmental 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.

We believe this type of information is significant, and its omission may detrimentally affect the ability of applicants to identify and ascertain the type and nature of the information to which they may want access. We also believe that the inclusion of such a section will relieve the administrative burden on governmental bodies, as the description of the information requested will be more accurate. Re-introducing a section requiring disclosure of governmental decision-making guidelines is particularly important if the chapter providing for open meetings is not reinstated in the bill.

9. Conclusion
Because of the importance we all attribute to the concept of open democracy, we believe that it is critically important that the best bill possible is passed. Thus while we support the bill as tabled we believe it is essential that it be amended to reflect the full ambit of the constitutional right to access information and to be made more workable in practice.

Open democracy is more than a question of legislation, however. It is about changing a culture of secrecy that permeates every part of South African society. It is therefore critical that attention is given to the implementation of the bill. Education of both government employees and members of the public must be carried out. People must be encouraged to exercise their constitutional right to access information and when they do so they must find a responsive public service. If implemented effectively the Open Democracy bill will become a crucial tool for consolidating confidence in South Africa's newly formed democracy.