OPEN DEMOCRACY BILL (B67-98)

Summary

The SACC strongly supports the Open Democracy Bill and urges its prompt adoption and implementation. However, we have serious reservations about the Bill in its current form. We have already identified our main concerns in an earlier submission, made jointly with eight other organs of civil society. In this submission, we expand upon our earlier arguments concerning what we see as the Bill's most glaring flaw: its failure to give full effect to the provisions of section 32(1)(b) of the Constitution concerning access to privately-held information vital to the protection or exercise of fundamental rights. We propose extensive revision of the Bill to address this omission and include suggested language in an appendix.

We also raise, more briefly, objections to the deletion of the Open Meetings provisions contained in early drafts of this legislation. We propose that this chapter be reincorporated into the Bill or, at the least, that the Bill be retitled to acknowledge its limited scope.

1.0 Access to government information is an essential component of open democracy

1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 25 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 The SACC strongly supports the adoption of legislation that promotes open and accountable government and gives full effect to the constitutional guarantees of freedom of political choice, access to information, and just administrative action. We believe that openness and accountability in both public and private institutions facilitates effective citizen participation in policy debates. Popular input is vital to the formulation and implementation of policies that enhance social and economic justice, promote sustainable and broad-based human development, and enable all people to realise Christ's promise of life abundant.

1.3 The apartheid state was erected on a foundation of secrecy and exclusion. In the name of state security, the government resorted to increasingly draconian measures to suppress information and obscure the devastating impact of its policies. One of the many challenges facing our democratic government is to cultivate a new attitude of openness and transparency in both the public and private sectors. Only then can all South Africans have access to the information necessary to assess policy options, to protect and execise their rights, to fulfill their responsibilities, and to build a better future.

1.4 In this context, we welcome the Open Democracy Bill (hereafter,"the Bill") as a milestone in the construction of a culture of accountability and transparency. We commend the Minister and Department of Justice for devising legislation that gives effect to the Constitutional right of access to government information in a comprehensive and efficient manner. We appreciate the dedication of the South African Law Commission, the South African Human Rights Commission, and the countless government officials and non-governmental representatives who have worked diligently to revise and refine the Bill.

2.0 Areas of concern and scope of submission

2.1 Although the SACC strongly supports the provisions of the Bill, we are concerned that the Bill's title promises more than it delivers. In order to lay a strong foundation for an open and rights-respecting democracy, legislation must also:

• give effect to the constitutional right of access to information held by private bodies that is needed to protect or exercise a right;
• establish a legal framework for public access to meetings of governmental bodies;
• cultivate a culture of openness by requiring government agencies to make certain categories of information available to the public as a matter of routine (the "right to know" principle);
• protect employees of private bodies who expose activities of their employers that wilfully violate fundamental rights;
• and create a "user-friendly" external review and appeal mechanism that enables ordinary citizens to be fairly heard even if they limited access to financial or legal resources.

2.2 We have already discussed many of these broad concerns--and several more specific matters--in a submission to the Select Committee on Security and Justice, dated 11 August 1998. This submission was made jointly with the Black Sash, the COSATU Parliamentary Office, the Environmental Justice Networking Forum, the Legal Resources Centre, the Human Rights Committee, IDASA, the Southern African Catholic Bishops' Conference, and the South African NGO Coalition. We reaffirm our support for the points raised in that document and commend it to the committee's attention.

2.3 At the same time, we recognise that it may be impractical for a single bill to address all of the issues associated with the establishment of open democracy. At a minimum, though, the Bill should give full effect to the right of access to information contained in Section 32(1) of the Constitution. We would also wish to see the Bill's open meeting provisions--present in early drafts but dropped from the tabled version--restored. If this is not done, then the Bill should be renamed the Freedom of Information Bill in accordance with its more limited aims.

3.0 Access to privately-held information needed to protect or enforce a right

3.1 Section 32(1) of the Constitution (Act No. 106 of 1996) states:

Everyone has the 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.

Section 32(2) of the Constitution, read with item 23(1) of Schedule 6, requires Parliament to enact national legislation to give effect to this right by 4 February 2000.

3.2 The memorandum accompanying the Bill indicates that the proposed legislation is intended:

to give effect to the right referred to in section 32(1)(a) of the Constitution, and to partially give effect to the right mentioned in section 32(1)(b) of the Constitution ...

The memorandum also recommends that the Human Rights Commission undertake a comprehensive investigation and consultation process in order to develop recommendations regarding legislation that would give full effect to section 32(1)(b).

3.3 We appreciate the government's frank acknowledgement that the Bill fails to give full effect to the limited right of access to privately-held information set forth in section 32(1)(b) of the Constitution. We agree that additional parliamentary action would be required to fulfill the mandate contained in section 32(2) and Schedule 6 of the Constitution. However, we believe that attempting to implement these rights in separate stages would be invite confusion, frustration, and litigation and would ultimately thwart the objectives of openness and the protection of rights.

3.4 In terms of item 23(2) of Schedule 6 of the Constitution, the right of access to information is currently defined by a corresponding clause from the interim Constitution (Constitution of the Republic of South Africa, Act No. 200 of 1993):

Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.

Once parliament enacts national legislation that gives effect to section 32(1) of the Constitution, this interim clause will fall away and the right of access to information will be defined solely in terms of section 32(1).

3.5 Given that the government acknowledges that the Bill:

the constitutional impact of the Bill's enactment is unclear. Two possibilities exist:

3.5.1 Due to its inability to give full effect to the rights contained in section 32(1), the Bill fails the test contained in section 32(2). The interim constitutional provision would then remain operative until parliament enacts legislation to give full effect to section 32(1)(b) or until section 32(2) automatically lapses, in terms of item 23(3) of Schedule 6, on 4 February 2000.

3.5.2 Due to its capacity to give substantial effect to the rights contained in section 32(1), the Bill will pass the test contained in section 32(2), triggering the activation of section 32(1) and the replacement of the interim provision.

3.5.3 A third possibility--that the enactment of the Bill would activate some portion of section 32(1) in lieu of the interim provision--seems untenable. Section 32(2) contains no test for partial effect and it makes no provision for separating the rights to public and private information or enacting them at different times. Moreover, the Bill gives partial effect to section 32(1)(b), making it impossible to segregate "active" provisions from "inactive" ones. [Even if the latter objection were to be addressed by the removal of measures providing access to the records of private bodies, the former objection would still hold. We are highly concerned that any attempt to separate the activation of clause 32(1)(a) and 32(1)(b) would not only be legally dubious, it would permit parliament to postpone indefinitely further action to give effect to 32(1)(b).]

3.6 Neither of the consequences envisioned in 3.5.1 or 3.5.2 are desirable. In the first case, the right of access to government information remains intact in terms of the interim provision, without any effective legislation to regulate the application and exercise of that right. This has already created some difficulty for instance in the case of ABBM Printing & Publishing v.Transnet where the applicant was granted access to tender documents under Section 32 of the Constitution (read with section 23(2)(a) of Schedule 6), an outcome which may well have been excluded by the Bill's exemption on the disclosure of certain commercial information. In the second case, a constitutionally-protected right of access to information would be extended to privately-held information required to protect any right, again without any legal framework to regulate that scope or method of access. This threatens to unleash a barrage of information requests to private bodies, many of which might ultimately require adjudication by the courts.

3.7 Apart from the practical arguments against the partial realisation of the rights contained in section 32(1), there is a strong moral argument to be made for the adoption of legislation that would facilitate full recognition of these rights. The current political trend is to minimise state intervention in the private sector and to permit markets, rather than legislation, to regulate commercial activity. Although deregulation can, in some instances, prompt greater efficiency and economic growth through increased competition and innovation, it also diminishes the accountability of private enterprises to elected officials. Furthermore, some private firms may use their considerable economic resources to evade government efforts to regulate their activities in the public interest, as, for example, in the cases of environmental or consumer protection.

3.8 It is therefore essential to offset this general relaxation of accountability by enabling greater public scrutiny of the private sector. No private body whether profit-making or not-for-profit should be permitted to violate the constitutionally-protected social and political rights of South African citizens. While the government can and should adopt laws to reduce the danger of such violations, the prompt implementation of legislation that ensures access to a clearly defined range of privately held information will encourage citizen vigilance and will form the most effective and durable bulwark against abuses by individuals whose power is not otherwise subject to popular control.

3.9 The SACC therefore recommends that the Bill be amended to incorporate a new Part, equivalent to the current Part 3 (Access to Records of Government Bodies) that gives full effect to section 32(1)(b) by providing a parallel right and manner of access to records of private bodies: a) that contain personal information about the requester, or b) are necessary to exercise or protect a right. We annex to this submission proposed language to that effect. This would:

• establish an application process similar to the one for government records (but with the important condition that, in the case of requests for access related to the protection or exercise of any right, the applicant must include a statement of the right that he or she is seeking to exercise or protect and how the requested record would promote that objective);
• streamline the application process by eliminating urgent requests and abandoning the variable treatment of applicants based on their commercial status;
• define a reduced set of grounds for refusal of requests (but with additional grounds to protect the private body's own commercial information and to permit the refusal of requests that do not make a convincing connection between the requested information and the protection or exercise of a right) and restore the "necessity of harm" override which appeared in earlier versions of the bill;
• provide for notification of and intervention by third parties affected by a request; assign review functions to the High Courts (in the absence of a more accessible and appropriate review structure); [1]
• eliminate reference to personal information banks in the Bill's definition of a private body;
• make appropriate changes to the current Part 4 (Access to, Correction of and Control over Personal Information Held by Private and Governmental Bodies) to avoid duplication or contradictions;
• and make other technical changes necessary to the integration of the above changes.

4.0 Open meetings

4.1 Section 195(1) of the Constitution states, in part:

Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

... (e) People's needs must be responded to, and the public must be encouraged to participate in policy-making.
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with timely, accessible and accurate information.

Section 195(2) of the Constitution requires national legislation be enacted to promote these principles.

4.2 Section 41(1)(c) of the Constitution further requires that:

All spheres of government and all organs of state within each sphere must--
...
(c) provide effective, transparent, accountable and coherent government for the Republic as a whole;

4.3 One of the most obvious methods of ensuring the transparency and accountability of organs of state and the timeliness and accuracy of information about their deliberations is to guarantee public access to meetings of these bodies. Currently, the Constitution only explicitly provides for public access to meetings of the National Assembly, the National Council of Provinces, provincial legislatures, and municipal councils (sections 59(1), 72(1), 118(1) and 160(7), respectively). However, more comprehensive legislation, comparable to the "government in the sunshine" laws in other jurisdictions, is essential to ensure that the provisions of sections 41 and 195 are applied consistently and comprehensively to all state policy-making bodies. In addition, such legislation should provide for the regulation of access to meetings, including the establishment of more detailed criteria for the closure of meetings and notice of meetings.

4.4 Early drafts of the Bill included an "open meetings" chapter that guaranteed public access to all meetings of state policy-making bodies (except the Cabinet) and governed the related matters such as notification of meetings, the publication of agendas and minutes. and the grounds for closure of meetings. This section was deleted from the Bill during Cabinet consideration. We understand that the omission of this section was prompted, in part, by concerns about its complexity and workability.

4.5 We share the government's eagerness to ensure that the implementation of the Bill does not impose unnecessary burdens on state officials. However, we believe that the right of public access to meetings of state policy-making bodies is not only consistent with the spirit and letter of the Constitution, but also an essential component of open democracy. We believe further that the protection of this right need not place onerous responsibilities on government officials. We urge the simplification and reincorporation of this chapter in a manner that establishes, in principle, the right of access and leaves many of the details of implementation to regulations. We are prepared to make specific proposals to this effect if asked to do so. Should the committee decide not to reincorporate this material into the current bill, we would strongly recommend that the title of the legislation be changed to the "Freedom of Information Bill", thereby more accurately reflecting the scope of its effect.

1. Clearly, decision bodies concerning the disclosure of records by private bodies must be subject to external review. In the absence of some dedicated information tribunal or review board, we have adopted the approach used elsewhere in the Bill and have proposed that the High Court undertake this role. However, we do not consider this a satisfactory long-term solution as the cost and complexity of bring an application before a High Court would prevent many applicants from pursuing claims. We would prefer that a simpler, specialised review mechanism be established, but we recognise that this might more appropriately be done under the auspices of the administrative justice legislation required by section 33(2) of the Constitution. Meanwhile, we would suggest that the High Court be used as an interim review mechanism.