The South African National Highway Agency (Sanral) will not release information on the 30-year contracts with the toll road concessionaires showing their earnings. The Services Sector Education and Training Authority (SETA) will not release information about a R162 million contract that benefited the students. The public protector declined to explain how she exonerated David Mabuza in her luxury car report for her prime minister’s office.
These are all requests that the Organization to Undo Fiscal Abuse (OUTA) has made under the Promotion of Access to Information Act (PAIA), which should have resulted in the information being provided within a few weeks.
Instead, these requests have taken months or even years, and OUTA had to pursue costly legal action. Sanral PAIA’s request was made in 2019, but will only be heard in court next year; The case of Servicios SETA is pending trial. OUTA won the Public Protector case but is waiting for the information.
However, civil society and the public now have a cheaper and more effective tool for obtaining information from recalcitrant government departments: the Information Regulator (IR) and its power to enforce PAIA requests.
Government officials who evade PAIA requests
The PAIA law was supposed to be the tool that allowed for transparency. An activist, journalist or member of the public should be able to fill out a standard form requesting specific information, submit it and obtain the information within 30 days or, if it is difficult to compile, within 60 days.
Instead, officials block. Individuals give up. Civil society resorts to costly litigation against opponents with unlimited resources. Departments and most municipalities ignore PAIA data requests from the South African Human Rights Commission (SAHRC). Even the Parliament ignores the SAHRC’s complaints about these entities.
The unfortunate scenario created is that transparency can only be obtained if you have the appetite and the money to fight for it in court.
This is a mockery of UNESCO’s International Day for Universal Access to Information, celebrated on Tuesday, September 28.
The SAHRC 2019/20 report on PAIA saw “the worst levels of compliance seen in years,” with government-wide refusal to cooperate, but particularly with “rampant non-compliance” by municipalities.
The SAHRC says there is no political will to cultivate the free flow of information.
The PAIA has allowed for some important victories for civil society and individuals, but there have been too many defeats. PAIA has let South Africa down.
The information regulator: our new transparency superhero?
Now there is new hope that the Information Regulator (IR) can become an enforcer of transparency.
The IR was established in terms of the 2013 Personal Information Protection Act (POPIA), which came into effect in July 2021.
While much of the focus has been on the role of the RI in protecting information, it also plays a crucial role in access to information, as the RI now takes on certain PAIA functions from the SAHRC.
The IR can make regulations to improve the PAIA and its procedures, and help the public to be successful in PAIA requests. The SAHRC was supposed to do this, but it lacked tenacity, and its failure is perhaps the main reason for its replacement by the RI.
The recently improved section 77 of the PAIA provides that those who have been denied PAIA applications and lost internal appeals obtain help from the IR before resorting to litigation. The IR should assist the complainant in drafting the complaint if necessary, investigate it and, if the complaint is reasonable, intervene, which may include an execution order. Failure to comply with an order can result in a fine, imprisonment for up to three years, or both.
The IR is exactly what the pursuit of accountability needs: an independent body to decide on a PAIA denial before one of the parties goes back to court.
Using the IR
Monday, OUTA archived an EPAI request with Eskom, requesting information on the program that extends the life of the Koeberg nuclear power plant, which has been quietly in operation since 2014 without the legally required regulatory approval. This time, if we do not get the information we request, we will go to the IR for help.
The PAIA is a tool for transparency and accountability. Without transparency, there can be no accountability. Transparency provides the information to decide whether to pursue accountability.
The PAIA is not only the tool that gives effect to the right of access to information, but it is the tool that provides the public and civil society with the means to ensure transparency. PAIA itself will not arrest a municipal official or stop an unreliable tender. Rather, PAIA empowers the information requester to do so.
Transparency can only be enforced if it is sought first. Seeking transparency and holding the government accountable based on the responses it receives is being an active citizen.
Enforcing transparency will help overcome South Africa’s culture of secrecy and enable civil society and the public to drive forward the government accountability we need.
Opinions expressed are not necessarily those of GroundUp
© 2021 GroundUp. This article was published for the first time here.