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Are you faced with an ethical dilemma? Are you witnessing corruption but don’t know what to do about it? Ask the team of Corruption Watch experts what to do by writing to: letters@businesstimes.co.za and mark your letter ‘Dear Corruption Watch’.
I represent a public interest organisation that aims to inform and educate the public on the issues we advocate for. But we are finding it increasingly difficult to get information from government departments. I know that the Promotion of Access to Information Act (PAIA) is supposed to entitle citizens to the information held by government. But our PAIA requests are always denied, and we usually aren't given reasons for why we can't have the information.
The media has been up in arms about whether the controversial Protection of State Information Bill is consistent with PAIA – but PAIA doesn't seem to be much use even without the bill. How could PAIA be changed to correct these problems? – Looking for answers
Dear Looking
You are quite right. Despite our hopes, PAIA has not ushered in a new era of openness and transparency in government.
In our experience, the main problem is that organs of state generally don't behave as PAIA requires them to. The most frequent response to a PAIA request for information from South African government departments is no response. The vast majority of requests simply go unanswered.
PAIA does provide legal remedies for this problem, but they are laborious, time-consuming and costly. This is because they tend to depend heavily on litigation.
As a result even if information is ultimately disclosed, it usually happens long after it would have been useful.
In the main, this is an institutional problem of organisational culture.
It is not unique to requests for information, and is part of the general institutional malaise that we are struggling with at the moment.
It will only change if enough committed citizens and NGOS continue to fight to enforce their rights under PAIA.
That said, there are several ways in which PAIA could be changed to make things easier for citizens. The following amendments could be considered:
The procedure for disputing the refusal of a request or failure to respond to a request could be made less litigious. At the moment, if you are unhappy with a decision to refuse access your only recourse is to go to court.
If, for example, there was an access to information ombudsman, disputes about disclosure could be referred to him/her for an impartial decision, and time and money would be saved.
Failure to respond to a request within the prescribed time should entitle the requester to approach the ombudsman or a court immediately for a decision on the request.
Penalties could be imposed on organs of state that fail to disclose information that they should have disclosed.
PAIA currently requires information to be disclosed in the public interest, but only when disclosure would reveal evidence of a substantial contravention of the law or a serious public safety risk. The public interest in the disclosure must also clearly outweigh the harm of disclosing. This requirement should be strengthened. Disclosure should be mandatory whenever it is in the public interest, not just when it would reveal a breach of the law of a serious public safety risk.
South Africa is not alone in struggling to give effect to the right of access to information. Governments around the world often treat access to information requirements as irritations to be avoided, rather than a meaningful way of giving content to democratic rights. Governments generally have to be prodded into complying with such laws.
So even if PAIA remains unchanged, we encourage you to keep seeking the information you need, to use those processes that are available to you, and where necessary, to use litigation to get the information you need.
Take a stand and report an incident of corruption. This article originally appeared in the Sunday Times Business Times on 27 May 2012.
