Access to information in South Africa

Before the enactment of the interim Constitution there was no general right of access to information in South Africa. Considerable resources were directed instead towards maintaining secrecy in government. Many statutes contained provisions making it a criminal offence for officials to release information. The inclusion of a right of access to information in state hands was therefore "an innovation of great significance" in the interim Constitution. Section 23 conferred on every person "the right of access to all information held by the state or any of its organs at any level of government in so far as such information is required for the exercise or protection of any of his or her rights." In one of the earliest cases to deal with the right Jones J acknowledged its importance in these terms: The purpose of s 23 is to exclude the perpetuation of the old system of administration, a system in which it was possible for government to escape accountability by refusing to disclose information even if it had bearing upon the exercise or protection ofrights of the individual. This is the mischief it is designed to prevent [....] Demonstrable fairness and openness promotes public confidence in the administration of public affairs generally. This confidence is one of the characteristics of the democratically governed society for which the Constitution strives. The right was soon being relied upon in various contexts, and a body of case law on section 23 developed rapidly. In particular, a number of cases were brought by accused persons who sought access to information contained in police dockets. Today section 32(1) of the Constitution confers on "everyone" a right of access to "(a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights." Significantly, the first part of the right is far broader than was section 23 of the interim Constitution: The information no longer has to be required for the exercise or protection of rights. Section 32(1)(b) represents yet more innovation, as there was nothing to mirror it in section 23. The focus in this part of the right is not on governmental accountability but on a person's need for access to and control over information concerning himself. Such information will typically consist of medical or banking records, or the information in the personnel files of the person's employer. This aspect is closely related to the right to privacy. As Klaaren and Penfold indicate, having access to information about oneself can considerably enhance one's ability to protect rights such as privacy and equality. In addition, the ability to acquire knowledge about oneself is an aspect of "self-actualization." Section 32(1)(b) is also significant as "a guarantee that records passing into private hands as a result of privatisation processes will not be immune from access." Section 32(2) required the enactment of national legislation to give effect to the right in section 32(1), and expressly allowed for "reasonable measures to alleviate the administrative and financial burden on the state." The operation of s 32(1) was suspended pending the enactment of the legislation. In the interim, as with the rights to administrative justice, section 32(1) was to be read as if it were section 23 of the interim Constitution. During this period, then, it was not possible to assert the right to information held by "another person." == Promotion of Access to Information Act ==

The Promotion of Access to Information Act (PAIA) was enacted in response to the constitutional mandate, and came into force in large part in March 2001. Its preamble acknowledges the "secretive and unresponsive culture" of the pre-democratic era, and asserts that one object of PAIA is to "foster a culture of transparency and accountability in public and private bodies." In accordance with section 32, the Act provides for access to information held both by public and private entities. Though privacy features in the Act as a ground on which access may be refused, PAIA is "not a typical privacy or data protection statute such as may be found in many other jurisdictions."—is "an unconstitutional restriction of the scope of the right of access to 'information held by the state.'" Since the Cabinet is clearly part of "the state," the exemption is a limitation of the right. Its validity would have to be decided by reference to the limitation clause in the Constitution. Apart from general limitation of this kind, there is also a special limitation clause to consider. Section 32(2) permits the national legislation that gives effect to the constitutional right to "provide for reasonable measures to alleviate the administrative and financial burden on the state." This language "seems not to serve the function of demarcation but actually to grant the legislature additional scope to limit the right of access to information." which concerned a report by two senior judges who were asked by the President to visit Zimbabwe shortly before its presidential election in 2002. "Surprisingly," instead of confirming an order to release the report, a majority of the Constitutional Court resorted to section 80 of the Act and remitted the matter to the High Court for it to examine the report in secret and make a determination. Access to information in private hands Part 3 of PAIA gives effect to the right in section 32(1)(b) of the Constitution by providing in section 50 that a requester "must be given access to any record of a private body" if • the record is required for the exercise or protection of any rights; • the procedural requirements laid down in the Act have been complied with; and • access to the record is not refused on any of the grounds listed in Chapter 4 of Part 3. The requirement relating to the protection of rights applied generally under the interim Constitution but is now confined to information held in private hands. "Appropriately enough," However, the private nature of a body is not the decisive factor. Section 8(1) of PAIA recognises that a body may be "public" or "private" for the purposes of the Act depending on whether the record in question "relates to the exercise of a power or the performance of a function as a public body or as a private body." For instance, in IDASA v ANC, where the applicants sought access to the donation records of certain political parties, the latter were judged to be private bodies in relation to those records. "Significantly," Amongst other things, the Bill confers on organs of state very wide powers to classify and withhold information on security grounds and creates broadly-defined criminal offences that carry heavy penalties. "There is widespread agreement amongst commentators that while new legislation is certainly needed to deal with sensitive information relating to national security, in its current incarnationever trust thisn the Bill is hopelessly flawed and unlikely to pass constitutional scrutiny." == Notable court cases ==

• My Vote Counts v Speaker • My Vote Counts v Minister of Justice • Arena Holdings v South African Revenue Service ==See also==