The purpose of the Promotion of Access to Information Bill is to give meaning to the constitutional right (section 32) that gives everyone access to information held by the state, or by any other person. This provision includes access to information held by the private sector if the information is required to exercise or protection any right.

The Bill represents a landmark in South African history as it seeks to address the culture of secrecy surrounding information held by these institutions. Section 32 of the Constitution states that Parliament must enact national legislation to give effect to the right to access to any information held by the state and information held by another person to exercise or protect any rights by February 2000.

It is based on the premise that access to accurate and timely information will encourage public participation in policy-making and transparency in organs of state; and promote accountability in public administration.

The Bill also proposes the establishment of voluntary and mandatory mechanisms or procedures to enable the public to gain access to records of public and private bodies as quickly, inexpensively and effortlessly as reasonably possible.

In addition, the Bill acknowledges the need to educate everyone to enable broad and effective public participation in decision-making by public bodies that affects their rights; and mandates the Human Rights Commission to conduct public education programmes.

The objective of the Bill is to give effect to the right of access to any information held by the state, and private institutions that is required for the exercise or protection of any rights. The right of access to information held by the state or a private institution may be limited to the extent that the limitations are reasonable and justifiable; such as limitations aimed at effective, efficient and good governance, reasonable protection of privacy and commercial confidentiality.

The Bill provides for the right of access to records of public bodies, and private bodies. Private bodies are defined as 'natural people or partnerships involved in any trade, business or profession; as well as former and existing juristic persons'.

Access to the records of (1) the Cabinet and its committees; (2) specific Judicial functions; and (3) individual members of Parliament or provincial legislatures are excluded.

In terms of the Bill, public bodies, such as government departments, must designate information officers to ensure easy access to information. The duties and responsibilities of these information officers are also determined. These duties include the submission of an annual report to the Human Rights Commission; and the publication of a manual/guide with general and descriptive information relating to that particular public institution. The Human Rights Commission will submit a detailed annual report, stating, amongst others, the number of requests for information and how they were addressed., to the National Assembly.

The Bill makes provision for the mandatory protection of the privacy of third parties; tax records, other than the personal details of the requester; commercial and confidential information of third parties; bail dockets; and defence, security and international information. Research is also protected. 

Requests for information can refused if the operations of public institutions or the safety of people or the protection of property is jeopardised. Other grounds for refusal include if the economic interests of the government are threatened; or if the request is deemed to be of a frivolous nature. 

The Bill stipulates that citizens will be able to submit formal requests for information in the prescribed form to the information officer of the public institution concerned. (The Bill also provides for oral requests to be allowed where individuals are unable to make written requests because of illiteracy, poor literacy or physical disability.)

The information officer dealing with the request must, within 30 days after receiving the request, decide to grant or refuse access to the information requested. If the request is granted, a fee is payable upon access. If the request is refused, written reasons must be given for the refusal. The information officer dealing with the request may request an extension of the period to deal with the request. 

The requester may lodge an internal appeal against the decision of an information officer to refuse access to the records requested. An internal appeal must be lodged on the prescribed form within 60 days after the requester received notification of the information officer’s decision. The information officer must, within 10 days after the appeal is lodged, submit the reasons for his or her decision to the relevant authority. The decision to dismiss the internal appeal/set aside the decision of the information officer must be made within 30 days.

If the internal appeal was unsuccessful, the requester may make an application to the court to review the decision. The court will then hear the application and grant an appropriate order.

3.6 Payment of a fee

There is provision for the payment of a fee by the requester when requesting access to information.

In respect of rights contemplated in the Bill there is provision for enforcement mechanisms in the form of internal appeals and applications lodged with the High Court. If a request for access to, or correction of a public record is refused, a person may lodge an internal appeal with the head of governmental body within 60 days on a prescribed form.

Anyone who wishes to lodge an internal appeal, but because of illiteracy, poor literacy or physical disability is unable to do so, may request the Human Rights Commission to lodge the appeal. If urgent requests for access or urgent internal appeals are unsuccessful, a person may lodge an urgent motion application with the High Court.

The Bill determines that the Human Rights Commission must publish a guide to the Promotion of Access to Information Act, in each official language, in an easily comprehensible form and manner to inform the public of and assist them to exercise rights in terms of the Bill. This guide has to be completed within 18 months after the commencement of this section; and must, if necessary, be updated at intervals of no more than two years.

In addition, each governmental body, other than a public enterprise, must publish a manual in at least three official languages. These guides will have to contain the objects of the law, the postal and street address, telephone and fax numbers and, if available, the electronic mail address of the governmental body. The guide should also contain extensive information about the institution, such as, its role and functions, as well as the nature of the information held by the institution.

Our interest in the Bill is based on the belief that access to information is one of the basic human rights that promotes dignity and well-being. It is envisaged that open access to information will encourage effectivity and efficiency, as the users of health care services will be afforded an opportunity to scrutinise the treatment they receive and the practices of health care practitioners.

Informed patients can make objective decisions about the appropriateness of treatment, procedures and practises. It would promote a more interactive relationship between patients and health care practitioners, who will have to describe the nature of treatment in plain language. Patients that have a clearer understanding of their condition/treatment are more likely to take responsibility for their own well-being.

A request for access to records of a health care practitioner may be denied if the information officer is of the opinion that disclosure of the record to the relevant person, might cause serious harm to the physical or mental health, or well-being of the person. In such a case, the information officers are then required to determine the likelihood that the information requested may cause serious harm to the patient; and provide for mechanisms to alleviate possible suffering.

The information officer may consult with a health care practitioner to determine the likelihood that disclosure of the information may be harmful to the relevant person.

After access to the records concerned has been granted, and the health care practitioner is of the opinion that disclosure to the relevant person is likely to cause serious harm, the information officer may only give access to the record(s) if adequate provision is made for counselling; or arrangements are reasonably practical, before, during and after disclosure of the record, to limit, alleviate or avoid such harm to the person.

Before access to the record(s) is granted to the requester/relevant person, the person responsible for such counselling must be give a copy of the record(s).

In summary, these provisions provide for the protection of the patient, and mechanisms to alleviate suffering, if disclosure of the information may cause serious harm to the patient. In addition, health care service providers cannot withhold information, even if disclosure is not in their best interest.

5. Issues for consideration

Our major concern relates to the implementation of the Bill. The Bill states that information officers have to be appointed in every public body. It is not clear whether this relates to all statutory bodies. These information officers also have to be trained. The Bill does not provide guidelines with regard to the curriculum content, accreditation/standardisation process, monitoring and evaluation of the training programme. It is also not clear who should be responsible for training. The training programme has to be considered in line with the general provisions for human resource development expressed in HRD plans of government institutions; e.g., it is expected that the national Department of Health will release a National Human Resource Plan for the department by the end of this year. Another concern is that the Bill does not identify who would qualify as an information officer within the governmental bodies. Further clarity on this matter will be needed in order for governmental bodies to know whether they need to hire additional staff and the costs thereof.

There is extensive provision for the monitoring of its implementation, but it will add to a great extent to the duties of government and the Human Rights Commission. The appointment of information officers, the publication of information manuals and the implementation of an education programme raise a few issues: 

The Human Rights Commission is located in Gauteng. We need the assurance that any programmes implemented will not have an urban/regional bias. There has to be sensitivity for the needs of the people in the rural areas, especially in relation to the education- and awareness-programme, and the mechanisms for transferring information. 

The Human Rights Commission is mandated to oversee and enforce the Bill. In order to do this mammoth task effectively and efficiently, government should ensure that the Commission has adequate capacity and the necessary financial resources to fulfil this mandate.

The settlement of disputes through the High Court will be costly and very slow and the proceedings are adversarial in nature and this can serve to intimidate people from lodging appeals against disclosure of information. An inexpensive external judicial body should be explored. As a result of the historical role of the High Court the public may perceive the High Court as threatening.

On internal appeals, the regulations do not stipulate that the individual hearing the appeal should be suitably qualified to hear matters relating to access to information. Furthermore, it should be regulated that the person hearing the appeal should not be in the same line function as the information officer who may have declined or granted the request for information which has been appealed against.

A controversial aspect of the Bill is the continued omission of earlier versions allowing for access to Cabinet meetings. This is clearly not an expression of government's commitment to democracy, as the call of civil society organisations to include this provision in the Bill is ignored. Despite the many references to transparency and accountability, planning and policy-making meetings will not be conducted in public.

It is envisaged that this Bill will effect meaningful change in the attitude of public and private bodies towards their clients by promoting a culture of transparency and accountability.

Footnote:

1. The ‘relevant person’ may be the requester, or person who made the request on behalf of the relevant person. If the relevant person is under the age of 16, a person having parental responsibility for the relevant person must make the request on behalf of the relevant person. If the relevant person is older than 16, but incapable of managing his/her own affairs, a person appointed by the court must make the request.

For further information on the Promotion of Access to Information Bill, 2000 please contact Phyllis Orner at 021 448 8702, or by fax at 021 447 0624, or by Email: phyllis@philaw.co.za 

• Would you like to subscribe to a bi-monthly Electronic Alert on new health and/or welfare policy and legislative developments? The Policy and Legislation Update is a joint initiative of the Child Health Policy Institute, Contact Trust and the Human Rights Committee. To subscribe, please contact Paula Proudlock at 021 685 1583, or by Email: paula@rmh.uct.ac.za 

The PHILA Programme is supported by a grant from the Henry J Kaiser Family Foundation

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