In December 2002 the South African History Archive (Saha) published comparative statistics on its use of the Promotion of Access to Information Act (Paia) during the years 2001 and 2002. Why is this significant? Well, clearly, statistics on use are a vital measure of success in the implementation of any piece of legislation. And to date no statistics on Paia implementation have been placed in the public domain. In terms of the Act, it is the responsibility of the Human Rights Commission to generate and publish such statistics, but we still await the first Commission report on Paia implementation.
Paia came into operation in March 2001, the legislative mechanism for giving expression to the Constitution’s recognition of South Africans’ right of access to information held by both public and private bodies. Use of the Act to date has been extremely limited. While the absence of statistics makes accurate assessment impossible, it is clear that very few South Africans are using the legislation. Freedom of information, as an idea and as a culture, has not yet taken root in the country.
This is the context within which Saha, a human rights archive dedicated to documenting struggles for justice, has been using Paia to test the parameters of access to information in South Africa and to build up an archive of materials released under Paia for use by the public. Probably the single heaviest user of Paia to date, Saha has concentrated its freedom of information endeavours on accessing surviving Apartheid-era security establishment records. At the same time, it assists individuals and organisations with the submission of their Paia requests – nearly half of the requests covered in the published statistics fall into this category.
So, what do the statistics reveal? Saha’s experience in 2001 was very encouraging. Of the 24 Paia requests submitted to 4 state agencies, 11 resulted in the release of materials, only 2 were refused, and 11 were pending at year-end. While average response times were not good, the South African National Defence Force (SANDF), to whom 10 requests had been directed, came in with a respectable average of 4 months. The worst performer in this respect was the National Archives, with an average of 8 months. At that time the Paia prescribed response time was 90 days.
In 2002 state obduracy in dealing with Paia requests became a significant factor. Of the 96 requests submitted to 21 state agencies, 27 resulted in the release of materials, 40 were refused, and 37 were pending at year-end. Average response times remained way over the prescribed period (reduced from 90 to 60 days in March 2002). Saha took 11 refusals on internal appeal and 6 to the High Court. A formal complaint against the Department of Justice, related to 34 boxes of missing or concealed “sensitive” TRC records, was lodged with both the Human Rights Commission and the Public Protector.
As in 2001, the best performer in 2002, statistically, was the SANDF. By far the highest number of requests were directed to them (30), and of the 21 requests responded to by them at year-end, only 9 of them were refused. Moreover, their average response time (3 months), especially in the light of both the volume and complexity of requests directed to them, was very good. Again, the National Archives trailed in with an unimproved average of 8 months.
It is apparent that a growing number of state agencies are adopting negative strategies in dealing with Paia requests. Incompetence, including several cases of Saha requests being lost by the agencies dealing with them, partially explains the poor response times. But there is growing evidence of some agencies simply ignoring both requests and internal appeals on the assumption that most requesters will give up and will not have the resources required to apply to the High Court for relief. In this context, capacity and determination to use the Court becomes of crucial importance.
The single Saha High Court action finalised by year-end began with the SANDF releasing certain Military Intelligence file lists with various categories of information masked. Included in these categories was information on countries and firms having dealings with the Apartheid military during the international arms embargo of the 1980s. Saha’s internal appeal against these maskings was unsuccessful, and consequently papers were filed in the High Court. The SANDF quickly offered Saha an out of court settlement in terms of which fresh copies of the lists were made available with this information unmasked.
Despite the obstacles, Saha has demonstrated that Paia can be an effective tool for ensuring public access to records held by the state. The substantial archive of released materials built up by it in less than two years has been admired by international freedom of information commentators. Good working relationships have been secured with a number of state agencies, out of which have come numerous clarifications on the often complex and vague provisions in Paia. And the successful court action, seen together with the equally successful 2002 High Court action of Richard Young in relation to documentation on the arms deal investigation, raises hope that use of the Court appeal mechanism will broaden the scope of freedom of information in South Africa.
But considerable work remains to be done by activists and citizens before South Africa can be said to enjoy freedom of information in any meaningful sense. The vast majority of South Africans remain unaware of what Paia offers them. The costs of using Paia are prohibitive – for example, in one instance Saha was charged over R5 000 for access to 30 files (including the access fee, search and preparation fees, and copying fees). Rights of access to the records of private bodies have still not been tested. And case law to establish interpretations of key Paia provisions is desperately needed. Progress in addressing these and related challenges will be the yardstick against which the success of Paia will be measured in the longer term.