THE OPEN DEMOCRACY BILL
A SPECIAL BRIEFING FOR MEMBERS OF THE AD HOC COMMITTEE
Prepared by The Open Democracy Campaign Group

 Overview
The Open Democracy Bill is a crucial piece of legislation. It should

As such, the Act must create a new culture in relation to the use of information. Hence, the Act needs to put in place a new system that for both the requesters and the holders of information is

Moreover, it should create a new system that can be used by the majority of citizens to give effect to their constitutional right rather than a system that can be used by the rich and powerful to protect their narrow interests.

The Open Democracy Campaign Group
Ten civil society organisations have been conducting research and working together in exploring the best options for the Open Democracy Bill for over three years. Individually and collectively the Open Democracy Campaign Group has substantial expertise and knowledge in the Act. This document presents its research and main findings; more detailed submissions can be found in the bundle of documents prepared for the members of the ad hoc committee:

The Bill’s Biggest Defect: Privately Held Information
Section 32(1) of the Constitution creates a right of horizontal application, in that sub-section (b) gives the right to access information held by any other person (or body) that is required for the exercise of any rights. The current draft of the bill, as its Memorandum concedes, fails to give full effect in that it deals only with information held by the state.

Our view of the constitutional position, supported by counsel’s opinion, is this: if the bill goes through as it stands, then it will give effect to section 32(1)(a) but not sub-section (b), and that accordingly people will be left with the bald right contained in section 32(1)(b) when seeking privately held information.

Thus, on the one hand information held by the state will be regulated, with detailed exemption and enforcement procedures, on the other, access to privately-held information will be entirely unregulated.

This is a very unfortunate situation:

Government has taken the view that because there will still be a remedy – albeit an unwieldy, expensive and unregulated remedy via the ‘bald’ constitutional right – it is not worth taking the trouble to amend the legislation to cover privately-held information.

The detailed submissions made earlier by Cosatu and by the SACC demonstrate that it is possible for the bill to be satisfactorily amended. However, given the exigencies of time we recognise that the parliamentary committee may not wish to attempt to pass such a comprehensive set of amendments.

RECOMMENDATION ONE
The alternative is to insert into the bill a set of clearly defined broad principles to govern access to privately-held information, with a view to subsequent legislation and/or regulations adding more flesh. A proposal for such broad principles will be provided to the parliamentary committee.

The Key to Success: The Enforcement Procedure
If the bill is to achieve its goals it must create an enforcement procedure which is

Currently, the bill proposes that if an application for information is refused then appeal lies to the High Court – which is inaccessible, expensive and slow.

The procedure should be looked at holistically, in terms of both the internal and external procedure. Furthermore, the procedure should be linked to similar enforcement systems for administrative justice and equality (see other legislation before parliament).

RECOMMENDATION TWO
We therefore propose a new division of the Magistrates Court – the Democracy Tribunal – at which access to information, equality and administrative justice cases will be heard. Using the infrastructure of the Magistrates Court in order to keep extra costs to a minimum a system of accessible, inquisitorial and informal (no lawyers), speedy and inexpensive justice will be dispensed by specialist, part-time tribunal members. A full detailed proposal will be presented to the parliamentary committee.

A "Right to Know" system of automatic disclosure of certain categories of information should be established in principle by the Act and further developed in subsequent regulations. Again, a proposal will be put to the committee as how this can best and easily be achieved.

Whistle Blowing & the Fight Against Corruption
Chapter 5 of the ODB aims to protect Whistle blowers. Again, the crucial thing is to create a workable, effective system that will provide potential Whistle blowers with sufficient confidence to take the courageous step of reporting malpractice, dishonesty or corruption. The provisions could be significantly improved:

Recommendation Three
The sections dealing with Whistle-blower protection should be amended to: