One of the aims of the Constitution is to establish an open democracy, characterised by transparency and accountability. It includes rights of access to information as a basic human right. Section 32(1) of the Constitution guarantees "everyone ... the right of access to any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights".
National legislation was passed to give effect to this right and the Promotion of Access to Information Act 2000 (the Act) was born. It applies to public and private bodies and lays down the rules and principles that determine how people may access information, as well as the manner in which state and private bodies must deal with these requests. It specifies grounds upon which a body may refuse access to a record.
Has this ground-breaking law yielded fruit yet? "The Act is extremely comprehensive and detailed. Implementation has been slow, but awareness of the act is increasing," says Mallinicks Attorney Coriaan de Villiers. "Recently the Cape High Court ordered the government to make available certain records about the controversial arms deal that would never have been possible during apartheid." The manager of the Open Democracy Advice Centre (ODAC), Alison Tilley, said at a conference last year that 54% of bodies were unaware of the Act and only 30% were implementing it. She added that ODAC was disappointed in the levels of implementation in the private sector.
What sort of framework needs to be put in place for the Act to be given effect to? "The Act places a number of obligations on both public and private bodies. We are assisting a number of clients in compiling the manual required by the Act, which provides contact details of the body, information on the types of information held and the procedures to be followed. The Human Rights Commission (HRC) is compiling a guide, to be made available in all 11 official languages, to inform the public on how to go about access- ing information. It's expected to become available in August."
Just what sort of information is exempted from the Act? "There are a number of grounds listed on which a body may refuse a request such as trade secrets, privacy and legal privilege. The aim is to protect commercial and privacy interests. Certain government records are exempt from the Act, such as Cabinet records."
How can the public access information? "They must complete an official form and pay a minimal fee, set in terms of government regulations. The body must respond to the request within 30 days. If a request is refused, the person may appeal against the refusal. The procedure is described on the HRC website." Will the Act achieve much success in the future? "It is a significant piece of legislation that will contribute to fulfillment of the right of access to information and assist people to claim their rights."
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