DEPARTMENT OF PUBLIC WORKS

15 OCTOBER 1999

OPEN DEMOCRACY BILL 67 OF 1998

INTRODUCTION

The Bill is welcomed in the light of giving full effect to the principles embodied of the Constitution in section 32. The Bill comes at a time when "Batho Pele" is a concept that has been adopted in all government bodies and it is trusted that the Bill would, in allowing due access to information, strengthen the public perception of government's commitment to this concept.

This Department believes that such a Bill would foster and strengthen intergovernmental relations and inter-departmental co-operation due to the requirement to source such information from the respective departments when it is requested. However, proper guidelines must be developed by the responsible organisation in order to facilitate such a process and not create administrative confusion.

The practical aspects of the Bill are, however, far reaching and would entail the establishment of new components within government bodies. This implies additional expenditure on salaries and the recruitment of skilled personnel to give effect to the Bill. This runs counter to the current trend to reduce government expenditure on personnel and tighten the reins of expenditure in general. The creation of a structure within the department would be necessary in order to give effect to the sections within the Bill that give requesters the right to access information. The functions that are to be performed by the information officer cannot be performed by any department official on an ad-hoc basis due to the importance of the role that the information officer would play. Therefore the usual delegation of performance of tasks by the head of a Department to certain officers would not simply suffice in these circumstances. It may affect the approach of decentralisation of government bodies as the procedures lead themselves to centralised functioning in order to be fully effective.

The task of access to information would initially also place a burden on the government bodies in relation to the need to update information technology equipment. The delegations of the head of the body would have to be spelt out very clearly in order to ensure efficiency of performance in terms of the Act.

It is evident that the task of giving persons access to information is indeed a very onerous one on government bodies. It is trusted that the correct balancing approach is adopted to give effect to the individual's entrenched rights against the government's ability to effectively administer and govern. Below is a commentary on sections that are likely to impact on this Department. It is hoped that a practical, useful and consistent piece of legislation shall emanate from this process by 4 February 2000.

PART I

Section 3 (1) a

The object is extremely optimistic and in a sense not consistent with the ethos of the Bill. The onerous nature of the Bill lend itself to large costs in relation to searching for documents, the personnel power required and the worktime that may be spent to search for information that may be frivolous. The qualifier "without jeopardising good governance, privacy and commercial confidentiality" will no doubt be relied upon when requested to make available information on tenders which is a prime responsibility and activity of this Department. When applying the requirements of the Act the possible infringement of the rights of other tenderers, such as their right to privacy, has to be taken into account.

SECTION 4 (1)

The section places an onus on the Department to recruit personnel to fulfil the role of information officers and the deputy-information officers. This would require an "information access" component. It would be advisable if other means could be explored as a way of minimising the cost of such structures as it probably entails increased personnel expenditure.

PART 2

SECTION 5

It is welcomed that the initial manuals shall be printed and distributed by the Human Rights Commission. It is believed that a participatory role should be played by the private sector as part of their social responsibility to provide assistance in such a process. The printing of the information is only the theoretical and technical phase, the crux of the process lie in getting the information to the masses that have never had access to such information and now have the long awaited right. It must be worded in such a manner that they will have the knowledge to implement their entrenched right. It is in the understanding of the practical implementation of the right by an individual that he or she would be able to have access to the information and power to have the Bill on their side. Without the knowledge of the right there is not access to the right and the direct benefits it offers.

This section places a further onus on the Department in that even though the Human Rights Commission must produce the manual referred to within six months, the Departments will have to recruit the information officer and deputies before this in order to provide the necessary information to the HRC. This places limited time constraints on departments to set up the necessary structures within an extremely short space of time. It is therefore recommended that Departments will have to be forewarned timeously in order to get their acts together.

SECTION 7(1)

The information must be made available in directories that cover the particular areas wherein that government bodies are operating, or a special directory servicing government bodies must be produced by the GCIS. The cost to print such information in every telephone directory printed for general public use is immense, as we have 9 provinces and many smaller cities with differing directory requirements.

SECTION 8 (1)

Guidelines must be provided in respect of the discretionary power given to the head of the body when deciding what is in the interest of public safety and an environmental risk. In terms of section 8(1) b, what form must such disclosure take? Is it to be in form that is most accessible to the public and in what media form must it be made available? More clarity, probably in ensuring regulations is needed.

SECTION 8(2)

A threshold period must be defined in order to seek the third person. The limits should relate to attempts via publication in two national newspapers that are likely to be read by the third person, and traces at their last known places of work, business and residences and contacting of the immediate family. In terms of civil procedure the above are reasonable and necessary steps to show that attempts have been made and have proved unsuccessful. The appointment of tracing agents to do searches for such persons would place a heavy additional financial burden on government bodies.

SECTION 8 (4)

The representations made must be of a written nature unless the person is physically unable to make such representation due to disabilities. The making of oral representations places a burden on the government to keep a proper record of such representations. The time frames must be set for when such representation must be made. Since the period often used in the Bill is 14 days it seems a reasonable time within which the third party must act from the date upon which he gained knowledge of the intention to publish. This would then place an onus on the third party to show why he was unable to act within that said period and to provide a reasonable explanation therefor.

SECTION 8 (5)

Limits must be placed on the time for representations and should the third party act outside of the time frames he should lose the right to make representations if no reasonable or bona fide explanation is provided for the delay.

PART 3

SECTION 11

Does this section imply that the government body bears no responsibility for the information once it is released and the prescribed form has been correctly complete? The parties would then have to determine the effect of such a release on their rights by resorting to common law. This could lead to a plethora of civil claims against government bodies for the wrongful release of information.

SECTION 13 (1)

It must be noted that electronic mail requests are very difficult to trace and follow up, therefor a hard paper request should be made as well. Electronic mailing systems have limits wherein once deleted the server will not be able to retrieve the deleted information. The requests may be stored in in-boxes and after 100 in-messages are received they are deleted to remove the last messages, hence requests may be lost if the system carries more than 100 messages at a time. The onus then rests on the mailer of such electronic equipment to provide a paper copy of the request at a later stage as a follow up to the initial electronic request. This would also alleviate false requests wherein users of electronic equipment insist such information be sent to the government bodies. The problem also exists where servers are

non-functional, hence urgent requests may not be retrieved. The onus rests on the requester to ensure that the request reaches the government body and proof is shown of the request having been sent. This Department has a relatively small Information Technology component, which may not be able to cope with lost information.

This section ties in with Section 9, where it is believed that the Bill should be clear in that all stated requests must be in writing, and the exception will only be accepted where the requester is unable to complete the form. That the request must be in writing is strengthened by the fact that the response must also be in writing, and would assist in keeping good and reliable records.

SECTION 13 (2) g

The person concerned must provide authorisation where the requester seeks personal information on behalf of another. The written authorisation empowering the person to have access to the information.

SECTION 13(4)

The individual referred to in this section must provide a form of identification when making an oral request for information.

The person must make some significant recognisable or identifiable mark after the I/O has completed the form, to indicate that he understands the contents and accepts the contents thereof as true.

SECTION 14

The very nature of section 14 places a burden on a government body and affects the process of good governance and delivery in terms of this Bill. The onus to transfer the information to another I/0 is too great to place on the I/O of a government organ. The I/O should provide the person with the correct contact details of the I/0 involved and the onus must rest on the seeker of such information to expend costs to approach the correct I/O.

SECTION 15

The I/O is faced with the burden of determining which government body handles specific matters. It is likely that the advice given is incorrect, as every I/O is unlikely to have complete knowledge of the intricacies of other government body portfolios. Therefore a central system for enquiries should be developed made so that the requester is aware firsthand to which government body the request must be referred for attention.

It is unwise to use this method of access to information as a post for general enquiries. It will in many instances bog the process down with general enquiries.

The onus to locate the correct government body using the directory must remain on the requester as he seeks the information. If not, the requester might abuse the fact that the government bodies have allegedly delayed as a means of continuous complaints in the appeal system, which may create a bottleneck of complaints based on incorrect referrals in the first place.

The onus should also be on the requester to be clear as to what information he/she wants prior to making the request. General enquiries are likely to frustrate the system and therefore a central body should be created for such enquiries.

SECTION 17

How should payment be effected where the request is made electronically? If the requester can only be contacted electronically the Bill should not place an onus on the government body to make the information available electronically. To minimise the cost the information should not be released to commercial requesters without the payment of the prescribed fee in a specific manner.

SECTION 18

The hours prescribed for the searching of information must take into account the type of information required, e.g. is it of a technical nature, for what periods is the information required, if such information is captured electronically or is it archived paper information etc.

A deposit should also be paid by a personal requester if the personal information requested require many hours of searching and would result in a cost to the government body in retrieving such information from other sources, if not housed in the archives of that government body.

SECTION 20

Guidelines must be provided as to how this section shall operate in practice. The guidelines must assist the I/O where the matters are of a discretionary nature so that decisions are made within guidelines and may be assessed accordingly. The discretion in determining when a matter is not urgent and when the requester suffers "no prejudice" require the definite and clear formulation of application guidelines so that the appeal process is not unnecessarily bogged down by appeals against the use of such discretion by the I/O.

In respect of urgent matters the requester may allege that the process of appeal resulted in the request losing its urgency and consequently expose government bodies to litigation based on financial losses suffered. "The prejudice" referred to in this section, should it be defined as " a) immediate prejudice or b) prejudice that is likely to be foreseen by the I/O. Some clarity is needed on what is meant by "prejudice" in this context. The party must in his application, provide reasons why he will suffer prejudice. If the matter is not to be treated as urgent this removes the onus on the I/O to determine the prejudice as the requester has offered possible reasons for the urgency and prejudice he/she will suffer which the I/O may then consider.

SECTION 20(5)

Where the notice is given telephonically record must be kept of the time and date when the notice was given, as telephonic notices may not be reliable.

SECTION 21

The onus is placed on the government bodies to obtain extensions of time where information is requested outside of the area. The person seeking the information must first ascertain the correct area where the information is to be sought and thereafter pay an additional amount if the information is not within the immediate vicinity of that government body, as the extension of time means that it entails more work for the government bodies in trying to access such information. This would relate to where government bodies would have to source information kept at different locations and the use of intergovernmental facilities.

SECTION 31

Guidelines must be prepared in order to assist the I/O in the performance of their tasks set out in this section and the proper use of their discretionary powers. In a department such as Public Works, where one of the main function relates to tenders, this discretionary power conferred on the I/O stresses the need for the I/O to draw on the experience of other officials and sections. This may place pressure on the functioning of the other sections within the Department. This could entail changing tender documents to ensure that tenderers are made aware of the possibility of the information being made available to others. The Department in the interest of protection of all tenders, would be loath to allow this and it is foreseen that it would rely heavily on this clause not to release certain information

SECTION 35 (a) &(b)

Proof must be supplied by the requester as to whether the information person entitled to claim the privilege has waived such a right. The nature of such proof must be written. As in subsection (b)- the finality of the legal proceedings must be ascertained by providing written proof that the matter has been finally disposed of or otherwise it will be sub judice.

SECTION 38

As this Department holds the portfolio as custodians of state property it is important that guidelines are correctly prepared to consider the interest of this Department and the I/O concerned in implementing this section of the Bill. More substantive guidelines must be provided as to what "substantial jeopardy" amounts to. The fact that this Department is involved with the sale and acquisition of property and often needs to made public information pertaining to such activities makes it imperative that guidelines are formulated to assist the I/O in determining when such information shall not "substantially jeopardise the welfare of the Republic".

SECTION 40

The discretion provided in terms of section 40 may seem restricted on the basis of the access being denied if the request is "manifestly frivolous and vexatious". The nature of the words "frivolous and vexatious" must be more definitive and the context within which it should be used must be explained. The I/O must be offered guidelines as to what amounts to "manifestly frivolous and vexatious".

In pleadings, a vexatious and frivolous pleading could amount to a contemptuous attitude to the court and the use of scurrilous language. (Caluza vs. The Minister 1969 10 SA 908).

The last definition of the word "vexatious" within an Act was provided in section 14 of Act 32 of 1916 (Insolvency Act), wherein it meant, "without reasonable and probable cause and such that the only result to be expected is to vex and harass the defendant". It must be defined if vexatious and frivolous relate to a request that may result in harassment of the process by continuous and similar requests of no substance. It is therefore reiterated that such words are defined and proper guidelines should be made available to non-legally trained I/O is to interpret the Act without ambiguity. The I/O would have to first access the information and thereafter determine if such request is frivolous and vexatious, this would amount to time being wasted. What power does the I/O have once the information is found to be vexatious? This needs to be spelt out more clearly.

SECTION 41

Cognisance must be taken of the destruction of records which are sometimes not sent to the National Archives and preserved for the 20 year-period as referred to in the National Archives Act 43 of 1996. What of records that cannot be found due to theft or loss of the records, what recourse does the requester have or does the requester accept the version of the I/O or challenge it and appeal against it. An appeal against the inability to locate documentation may stall the process where genuine appeals should rather be heard.

SECTION 44

The requester must prove the public interest referred to in this section and guidelines must be drawn up to assist I/O as to what may be deemed to be in the public interest. The onus must be placed on requesters, as it will assist to root out those requesters who might use "public interest" as a false basis for the request. Penalties must then be imposed on those who falsely use the reason or excuse of public interest in order to gain access to information. The inclusion of such a section may seem harsh but due to the leeway provided when it comes to public interest disclosures, stricter measures should be put in place where requesters attempt to thwart the process.

PART 4

SECTION 52

Section 52(5) - the request for correction should be made orally only as an exception and not as a rule. The exception would relate to persons who by virtue of a physical disability are unable to complete the prescribed form and the form is then completed by the I/O. The correction of information orally makes the keeping of records more difficult and onerous on the Department. It is furthermore necessary for the requesters to provide the I/O with written proof/confirmation of the information they want to be changed. Such documentary proof should become a part of the record for future reference and use.

SECTION 58

Section 58 (2) b- The withdrawal of consent by a person in respect of disclosure of his/her records must be coupled with a reasonable explanation so that if the withdrawal is challenged it can be done so based on the reasons given. It is accepted that the regulations will provide more clarity on the proper operations of this clause.

PART 5

SECTION 63

To further tighten the ambit of disclosure of information by whistle blowers, the information must be reduced to an affidavit. In this case the worth of the evidence is tested in that the person is bound by an oath that the information is true and correct according to his belief. The person will not be subject to civil or criminal proceedings based on the substance of the evidence but if the information was found to be conjured up by the person, the rules pertaining to the making of a false affidavit should apply.

This section lacks protection for the person wrongly accused by another due to personal vendettas. The section should have stricter measures of determining genuine whistleblowers from false and personal claims. If the section is not more restrained in its wording, it will result in costly investigations by the bodies referred to in sub-section 3, which bodies currently already face a backlog in the work under their current portfolios.

SECTION 65

The practical application of this section is limited. The section assumes that the personnel in government bodies shall have knowledge of its provisions. If this section is to be effective it must place an onus on government bodies to inform their personnel of the contents of this section and the implications thereof. The system of whistle blowing will operate more effectively as personnel will then have full knowledge of their rights in this regard.

SECTION 66

The copies of the notice referred to in this section must be made available by the Human Rights Commission in every one of the 11 (eleven) official languages. This then alleviates the duty on the governmental body to translate copies, as all copies will be available in official languages. At this point it then allows for distribution to the public as well so that they may participate in rooting out corruption etc. within government bodies. The actual distribution of copies may not be enough, as people need to be educated about the process and application of their rights as referred to earlier. The Human Rights Commission would have to play a leading role to facilitate and co-ordinate such an education process.

PART6

SECTIONS 67-71

The issue of internal appeals poses many challenges to Departments. The most serious challenge is delivery to the public- no doubt the appeals may be many and the process may be clogged by frivolous appeals that will have to be heard. The concept of "Batho Pele" will be dealt a serious blow. The financial constraints for smaller Departments is great. This adds pressure on the Department of Public Works where the current vision is decentralising most of the functions and an internal appeal structure may affect the very decentralising process that is being undertaken. At such a level and in accordance with the definition of "head" this would be a centralised function and require another component just for the appeal structure. The head of the Department would be unable to cope with the task of hearing appeals and representations made by aggrieved persons. This would have negative financial and logistical implications for this Department.

It would remove the burden within the Department if such a structure was dealt with externally by a specially created independent body and the government bodies then accept the decisions. This would also be more in line with the principles of natural justice and section 33 of the Constitution relating to fair and just administrative action. The body may then also take on the functions as suggested under Section 14 and 15 where requesters that are unclear of the government body to approach may be provided with assistance. This body will deal with requests that span across various government bodies and co-ordinate such requests.

The time period within which the process of appeal must be finalised is not practical if the maximum time periods are considered for the lodging of an ordinary appeal (the process would take a period of not later than 90 days for finalisation). Even in the event of an urgent appeal such a process would take not less than 30 days to finalise.

These time frames are too long and if they are to be retained in their present form they would have to have enforceable prescriptive periods placed on them in order that no undue burden is placed on the administration of the Departments. Therefore should a person not appeal within the time frames their internal appeal would have to prescribe and other recourse would have to be sought.

CONCLUSION

This Department trusts that the commentary providing will assist the

Committee in finalising the Bill by the Constitutional deadline of 4 February

2000 and that in meeting this deadline due consideration is given to the

practical implementation of the Bill.