DEPARTMENT OF LAND AFFAIRS

COMMENTS BY GEOFF BUDLENDER, DIRECTOR-GENERAL: DEPARTMENT OF LAND AFFAIRS

4 OCTOBER 1999

Introductory remarks

1 Implementation of the core of the proposals in the Bill would greatly improve the quality of public administration in South Africa. Despite the new Constitution, parts of public administration remain resistant to the need for public accountability and open government.

2 The express constitutional imperative behind the Bill is sec 32 of the Constitution, or the right of access to information. Another set of relevant constitutional imperatives is contained in sec 195, which deals with the basic values and principles which are to govern public administration.

3 The essence of this submission is the need to harmonise the requirements of sec 32 and sec 195 for open government and effective administration. If we succeed in achieving open government, but at the cost of making public administration ineffective, the people of South Africa will not have been well served. Conversely, of course, an "effective" but closed government will also not serve the people of South Africa well.

4 To put it simply: the time which a Department is required to spend on the administration of this law will be at the expense of the time which is spent on carrying out its programmes. When Parliament instructs government Departments on what they are to do, it needs to make choices about what it regards as priorities.

5 It is also necessary to make a considered judgment on the financial costs of any such proposal. Open government is undoubtedly a very important public good. There are also other important public goods, and funds spent on one are inevitably at the expense of another.

6. This staff and financial trade-off will apply to all governmental bodies. It applies even more strongly to the Human Rights Commission. The Bill imposes very onerous duties on the HRC. I do not know whether the cost in staff time and other expenditure has been calculated. Given the relatively small budget and personnel of the HRC, it seems likely that unless there is a guarantee that the HRC's budget and personnel will be increased to provide for the costs of administering this Bill, its performance of its compulsory functions under this Bill may disable it from performing its other functions. [See in this regard the comment below on clause 84.]

7 The demands on each "government body" will vary depending on the size and functions of the body. A small to medium-size national Department like Land Affairs would probably require a full-time staff member with some legal training and experience, probably at the level of Deputy Director, to act as information officer. That person will need some support staff. One can imagine that large municipalities will require substantial staff to carry out their duties under the Act.

8 The most significant cost to a Department such as Land Affairs will not be the cost of the information officer, his/her deputy, and the support staff. It is the time which line staff will have to spend on searching for information and preparing it for the requester. This function can not be carried out. by the information officer: that person can only manage and direct the responses to the requests for information. Government bodies carry out too many functions, at too many sites, for a central information officer to play any role in searching for the information, or more than a very limited role in preparing it for the requester.

9 We already have practical experience of this in the work of national Departments in preparing Answers to Questions in Parliament. This is demanding work. I suspect that Members of Parliament would be surprised by the amount of time which goes into preparing an Answer for the Minister, and by the cost of answering the typical Question. Usually the information requested is not readily available on the records of the Department, or not available in the form which is required. Significant work goes into locating and extracting the information, and then putting it into an appropriate form.

10 This raises a fundamental question in relation to the Bill: should there be any limit to the work which a government body is required to do in order to provide information? My strong view is that it is unwise to compel a government body to divert substantial and potentially unlimited time from carrying out its programmes - which are designed to serve the public interest - to answering questions which will often (usually?) serve a limited private interest.

11 If a significant fee is charged, it will lead to some cost recovery for government, and act as a deterrent to frivolous questions. However, in the case of government departments, they will not receive those fees (which will go to the revenue fund), and the nett effect will be that time is diverted from their programmatic work.

12 Any realistic consideration of this matter must also recognise the fact that the South African public service is still relatively inexperienced, not particularly well organised, and not particularly well resourced for the major transformational activities it is required to undertake. Government is attempting reforms and new programmes on a scale, and at a pace, which would be beyond the ambitions of more experienced, more stable, and better resourced and organised governments in other parts of the world.

13 The existence of these highly ambitious programmes does not negate the need for open government. On the contrary, one could argue that it is precisely at a time of change that one most needs to ensure rational and open government. However, the measures for open government need to have regard to the facts of limited resources and limited experience in public administration.

14 We have to be realistic and ask why, if experienced and sophisticated public administrations are not able to reach the highest standards of open government as set out in the Bill, we should expect that the present South African administration will do better. If other democratic societies have made the compromise between effective government and open government at a less idealistic level, what is it that should make us think we can achieve much higher levels, and still achieve effective government?

15 A final question is this: who will the requesters be under this law? Who will be able to exercise these rights effectively? The bitter truth, which by now we should have learnt from much of the other rights legislation enacted in the first five years of the new government, is that the poor are often the last to gain. They do not have adequate access to knowledge of their new rights, or adequate means to enforce them. Provisions in the law dealing with manuals and entries in telephone directories can not and do not solve these serious problems. If the requesters are not mainly the poor or those acting on their behalf, and if the obligations created by the law divert government from its efforts to serve the poor, that should give us all pause for thought.

16 These are uncomfortable questions to ask - but they do need to be asked and answered. If not, we run the risk of seeing the enactment of legislation which reflects the highest and noblest aspirations, but which will fail in its implementation. The result would be widespread cynicism and a sense of failure. It would be better to make limited promises which are kept, than extravagant promises which will fail.

The possibility of incremental implementation

17 The Bill creates the possibility of incremental implementation. Clause

87(2) provides that different parts of the law can be brought into operation at different times. This is a very practical approach. For an initial period, the core requirements of open government can be introduced. More sophisticated and demanding measures can be introduced once the administration has developed the mechanisms, systems and habits which are necessary to ensure achievement of those core goals. An over-reach in the early years is likely to result in substantial under-achievement. Legal requirements which are in practice unachievable will be regarded by many as a nuisance to be circumnavigated, rather than as legitimate requirements of open government.

18 I would suggest that the Committee should put a phased implementation plan on the table, for consideration by the President and the Minister. For example, Part 5 (Protection of Whistle-Blowers) should be implemented immediately. It is probably the single most effective mechanism against corruption or other improper behaviour, and it imposes a very limited administrative burden or cost. Similarly, Part 4 (Access to Personal Information) is a core element of open government, and of the accountable use of power by both public and private bodies. It could and should be implemented immediately.

19 Against this background, I have the following comments on specific provisions of the Bill. I regret that the limited time available to me does not permit a more detailed analysis of the Bill.

COMMENTS ON SPECIFIC PROVISIONS OF THE BILL

PART 1: DEFINITIONS AND APPLICATION

Clause 1(v):

The definition of "government body" is very wide, it seems quite deliberately so. It includes every national and provincial department, every municipal council, and a large number of other bodies. Conservatively, it must cover at least 1000 bodies. It is not clear from clause 1 (2) whether it includes other governmental bodies such as schools, for example. If this is the case, the number of bodies covered is enormous. Some of the implications of this are set out below.

PART 2: GUIDES AND MANUALS

Clause 5: This will be a very large guide, containing details in respect of at least 1000 bodies - in each official language. The cost is going to be very high (see my comments on the limited budget of the HRC). The cost should be quantified before decision is made in this regard.

Updating the guide every 12 months will be a major task for the HRC. It will not be possible to decide whether annual publication is necessary" without every year containing all the information from every government body, and comparing it with the current published version.

While a general guide would be very helpful to users, requiring inclusion in this guide of the details of every government body -clause 5(2)(b) - seems to be over-14ll.

Clause 6: A manual on each body would be useful - but again, the level of detail required is vast, and will require a great deal of staff time in analysing and preparing the information, for limited benefit. For example:

- a description of the subjects on which the body holds records and the categories of records - clause 6(2)(d)(i)

- a description of "all remedies available in respect of an act or failure to act" - this would require a detailed analysis of every statute, proclamation and regulation administered by the body concerned - clause 6(2)(i)

Again, the requirement of annual re-publication "if necessary" is either so vague as to be ineffective, or extremely onerous.

I suggest that the information which has to be published should be reduced to more manageable proportions.

Clause 7:This places a very large burden on the head of GCIS. In order to carry out his/her statutory duty, he/she will have to identify every "government body" in terms of the law (probably an impossible

task). Even on a conservative estimate of the number of government bodies which are affected, I estimate that this means that every telephone directory will carry at least 40 to 50 extra pages of information. Does GCIS have the budget for this? Has the cost been accurately estimated (my guess is several million rand)? And is it really necessary for the Western Cape directory to carry details of the local councils in the Northern Province?

PART 3: ACCESS TO RECORDS OF GOVERNMENT BODIES

Clause 17:

I do not understand why non-commercial requesters should be exempted from paying a request fee. If in any event they have to pay an access fee in terms of Clause 24, why exempt them from this (presumably) lower fee?

The work required to determine the access fee is going to be substantial. To do this requires making contact with the relevant parts of the body, an initial search by the officials concerned for the information, and an analysis of the work which will be necessary to extract it and prepare it.

One can predict with certainty that certain non-commercial requesters will deluge certain government bodies with requests for access. The government bodies will spend a great deal of time investigating matters which will not be followed up if the access fee is significant. The time will be wasted, and will divert effort from the programmes of the body concerned.

I respectfully submit that there is no rational basis for exempting certain requesters from the request fee. To do so will have unintended consequences which can already be predicted.

Clause 18:

It is proposed that members of parliament, provincial legislatures and municipal councils will be exempt from payment of deposits or access fees - Clause 24(6). This will have far-reaching consequences. It means that there will be more than 10 000 people who at any time can demand information from a government body, and no matter how complex the request is, or how much information is required, the government body is compelled to do the work necessary to answer the request. The possible consequences are mind-boggling.

In fact, elected officials are the people who have least need for this special treatment. If relevant information is requested and not supplied, they have other channels for taking this up. Questions can be asked in Parliament, and the matter can be taken up through political channels.

There is a real risk that some elected officials will ask for information simply in order to "prove" that they are "doing their job". I have been informed that at least one political party has instructed its Members of Parliament to ask a certain number of Questions per week. If this is true, it seems to be based on the view that the number of questions asked by a Member of Parliament is an indicator of the Member's diligence. This is of course a very simplistic and in fact misguided view. It is analogous to the view that the number of Bills introduced by a Minister is an indicator of that Minister's diligence. However, once this is used as a "measure of performance", there is a very real risk that multiple questions will be asked for no reason other than to run up a satisfactory tally of questions.

Clause 19:

Thirty days may sound like a substantial period, but in reality it is not. These are the basic steps which will have to be taken during that period: register the request; consider whether it is excluded on any of the variety of grounds set out in Chapter 2; if not, identify where in the Department those records are likely to be found; send it to the relevant part of the Department (which may be away from the head office); at that site, conduct the research necessary to establish whether the information is available; estimate the time necessary to collect it and prepare it; submit that information to the information officer; consider the response from the line functionary; and prepare a response to the request. If the response is a refusal, it the information officer must prepare a considered account of the relevant findings of fact and reasons for the refusal.

This must all be done within thirty days, while continuing to carry out the work of the Department on which members of the public rely. It can be done, but only at the expense of the latter work. The question which Parliament needs to decide is one of priorities.

Clause 24(6) Please see the comments in respect of Clause 1 8 in respect of the provision that holders of elected offices do not pay any fee at all.

Clause 25: The problem of time is compounded by Clause 25(1). The information must be provided 'upon payment" of the access fee, or "immediately" if no access fee is payable. This means that as soon as the request for access has been received, the officials must immediately start preparing the information, as it is otherwise obviously impossible to comply with this requirement. If the requester does not pay the access fee, all this time and effort is simply wasted.

The government body must surely be given a reasonable time to research, prepare and deliver the records once the access fee or deposit has been paid.

Chapter 2 The most striking aspect of the grounds for refusal is that none of them seems to relate to the time and effort involved in researching and repairing the information.

The effect of this is that government officials can for a fee (and in the case of elected officials, for no fee at all) simply be turned into "researchers" for a member of the public, whatever the motive of the person concerned, and irrespective of whether there is any broader public interest in provision of the information. What this means is that requests for information "trump" all the other work of a government body. If there is a conflict between the body's general functions and these specific statutory duties, the general functions must take second place while thc information is being researched and provided.

This is a far-reaching proposition. It is difficult to see any public policy justification for it. The right to information is important, but it is not the only important thing to which government bodies must attend. I do not believe that it is the function of government to act as a research agency.

Clause 40 Why "manifestly" frivolous or vexatious? The test is an objective one: either the request is frivolous or vexatious (in which case it should be refused), or it is not.

Clause 43 I suggest "... if the record is open to the public access in accordance with any other legislation or in any other manner".For example, the Department of Land Affairs has a large variety of deeds, survey and mapping records which are made available to the public, not all of them in terms of specific legislation.

PART 6

Clause 68(4)(a) For the reasons set out above, an appeal fee should be payable by all requesters.

Clause 71(2)(a) I suggest the insertion of the word "substantial" or "material" before "prejudice"

Clause 73(2) It is difficult to see why all applications to the High Court in this Court should automatically be deemed to be urgent. This privileges litigants under this law over every other litigant in the courts. Why should this be so? There is nothing inherently urgent about an application under this law. If there is indeed urgency, the applicant should have no difficulty in proving it.

PART 7

Clause 84

The intention of this clause is not clear to me. If it is intended to provide that the budget must provide funds for the functions of the HRC under this law, then this is again a privileging of this law over all other laws. All the other functions of government are subject to budgetary constraints. There is no apparent reason for dealing differently with the functions of the HRC under this law. This would be a truly extraordinary provision. But perhaps I misunderstand the intention and meaning of this Clause.