Government’s compliance with the Promotion of Access to Information Act: Access Denied

Democratic Alliance survey of government compliance with the Promotion of Access to Information Act reveals that, with one or two exceptions, the government appears to be a reluctant participant in ensuring freedom of access to information.

The survey was based on a parliamentary question posed to all government departments in 2006. A number of problems with PAIA compliance are evident from the responses the DA received. Firstly, only 21 government departments have replied to the parliamentary question – a resistance to transparency in and of itself.

We also received non-compliant replies, deficient replies and replies that were hundreds of pages long (the original question is appended below).

The key findings of the DA’s survey were as follows:

Many departments received a low number of requests.

This suggests that people have not yet been adequately informed with regard to accessing information. If this does not change, there is a risk that PAIA could become meaningless. Without sufficient requests from the public, the departments will not be forced to become more open and accountable.

Therefore, this DA survey will be the first in an annual series in order to discover whether the departments receive more or less requests for information as time goes by, and as the general public becomes more aware of PAIA and how Government reacts.

Government departments tend to use the Act as a means of denying requests, rather than granting access to information.

This finding is based on the number of the departments’ refused requests.

59 out of 148 requests were refused and 56 percent of the refused requests were declined using sections 7; 12 and 33-46 of PAIA. In addition, the departments of Education, Sport and Recreation and Transport referred requests that were submitted to the wrong department, back to the requestor instead of transferring them to the relevant department, contrary to the requirements of PAIA which strictly specifies transferring.

There is a tendency for government departments to refuse a substantial number of requests for access to information.

39 percent of requests to those departments that replied to the DA question were refused. The majority of the departments that replied refused 50 percent, or more, of the requests for information that they received.

There is a general lack of enthusiasm for the legislation within government, which is worrying in light of the importance of PAIA.

However, two departments performed extremely well. Water Affairs and Forestry, and Environmental Affairs and Tourism received 30619 and 450 requests respectively. Water Affairs and Forestry granted all 30619 requests and Environmental Affairs and Tourism granted 419 requests. They are the exceptions to the rule and must be commended on their efficiency and transparency.

Departments generally responded to the requests on time.

Nearly 84 percent of all requests were answered within the 30 day limit. However, four departments, Transport, Housing, Public Enterprises and Home Affairs substantially failed to perform on time.

The South African Human Rights Commission (SAHRC) Reports.

PAIA requires government departments to send in annual reports to the SAHRC. The majority of departments have so far sent only one or two reports and many departments have not sent in any reports at all.

In addition the SAHRC is also an inefficient conduit for PAIA reports. It is chronically under-resourced and understaffed, which makes it difficult to fulfill the role provided for in the Act.

Solutions: As a result of this research, the DA has put together a list of steps we feel will help to reinvigorate PAIA. They are as follows:

• The public should be educated about their rights and options in relation to PAIA;
• The media, that is, television, print and radio, should be used to convey messages to the public educating them about PAIA;
• The PAIA reports should be tabled in Parliament directly, rather than going to SAHRC where there is a lack of capacity to deal with them;
• The PAIA reports should have a uniform structure, and consist of 1) individual reports, available from the departments in both electronic and print format, and 2) in relation to the reports required for the SAHRC, a single document that is available to the public in both electronic and print format.
• An intermediary or facilitating body could be helpful to channel the requests from members of the public to the various public and private bodies, and procure replies, instead of the current system where individuals have to approach the body themselves. This system which has been successfully implemented in other countries should be explored. The SAHRC could have this role as a one stop shop for all PAIA information to the public if it was properly capacitated.
• SAHRC capacity must be improved if it is to continue to deal with PAIA reports.

In Conclusion.

The state of access to government held information is unsatisfactory. The high number of refusals suggests that government is still secretive and suspicious when it comes to sharing information with the public. This points to a refusal, from within the departments, to acknowledge how critical it is for people to be granted access to information, as this is one of the cornerstones of transparent and accountable government.

The failure to reply of eight departments – Defence; Foreign Affairs; Health; Public Works; Safety and Security; Justice and Constitutional Development and the National Intelligence Agency is inexcusable. All departments are required to reply to parliamentary questions.

Unless steps are taken to properly implement PAIA and unless Government’s attitude changes, The Act is in danger of becoming a piece of purely decorative legislation. Government trumpets how far-reaching its access to information legislation is; and, in theoretical terms, PAIA is one of the most far-reaching in the world. However, unless the legislation is followed and respected by the government departments, we run the risk of losing the ability to enforce transparency and accountability in government.

Download supporting documents (PAIA.doc)