Officials invoke imaginary rule

Dear Corruption Watch

My organisation has submitted two applications for information under the Promotion of Access to Information Act. We have been told we cannot have the documents we requested because the issue will likely be the subject of criminal charges. Is this sufficient grounds for not disclosing information we believe to be in the public interest? When is it legitimate for a public body to invoke the sub judice rule in refusing access to information?

Frustrated

Dear Frustrated,

It is a common myth that there is a thing called the sub judice (Latin for “under judgment“) rule that prohibits people from revealing information from a court case, or even commenting on an upcoming case. It is completely false.

There is no legal rule against commenting on a matter that is before a court. The general rule is that people, including the parties, may comment on cases that are pending.

There is only a limited prohibition on disclosing information about a case that is under judgment. When disclosing information or commenting on a court case will prejudice the ability of the court to do justice or fairly decide the case, a court may prohibit someone from doing so, or find them in contempt of court if they do – for example, revealing information that may allow a witness to destroy or withhold information or may allow a suspect to escape.

The courts have set a stringent test for showing that information about a case may not be revealed. The complainant must show “a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice; substantial prejudice if it occurs; and a real risk that the prejudice will occur”. It is not enough that there may be some remote risk. There must be a real risk that is clearly caused by the publication.

For example, in 2005, e.tv wanted to broadcast a documentary about a child murder after suspects had been charged. The documentary included interviews with two potential witnesses. The director of public prosecutions objected on the grounds that it would prejudice the case if, for example, the documentary revealed the identities of the witnesses and put them at risk. The Supreme Court of Appeal disagreed and held that e.tv could broadcast the documentary.

Of course, it is often convenient for people to rely on the imaginary sub judice rule as an excuse not to comment on difficult issues. Also, in many circumstances it may indeed be inappropriate – ethically or politically – to comment on a pending court case. But it will seldom be illegal.

To return to the first part of your question, the Promotion of Access to Information Act sets a similar standard for when the government can refuse to honour a request for information.

In terms of section 39 of the act, it is only permissible to withhold information if it really will prejudice a prosecution or investigation in some way – if it will, for example, reveal law enforcement methods or techniques, disclose a confidential source, result in a miscarriage of justice, result in the intimidation of a witness, or facilitate the commission of an offence.

The mere fact that the issue will be the subject of a criminal charge is not a reason to refuse access. The official was only entitled to refuse to provide the document if providing it would be likely to prejudice that criminal case. Whether that is so will depend on the nature of the document and the nature of the case.

The reflex refusal to provide documents because the matter is “sub judice” is unlawful.

• This article was first published in Sunday Times: Business Times