COSATU Submission on the Open Democracy Bill

Presented to the Portfolio Committee: Justice

Annexures available on the COSATU website at www.cosatu.org.za

1. Executive Summary of Recommendations

  1. The bill should incorporate the right to know principle, which will facilitate greater proactive disclosure of information. There is a need for a multi-stakeholder process to analyse which records in the possession of the departments should be routinely made available. As part of this exercise the GCIS, in collaboration with the Human Rights Commission, should provide guidelines to departments, which records should be proactively disclosed, based on an evaluation of public information needs. The infrastructure of the Post Office and the Tele-Centres/Multipurpose Community Centres should be utilised to disseminate information to the public. Proactive disclosure of information should be extended to the private sector and the minister should be empowered to prescribe accordingly.
  2. Horizontal application: The bill should be substantially amended to comply with section 32(1)(b) of the Constitution, i.e. access to information held by private bodies required for the exercise or protection of rights.
  3. The Bill needs to clearly define use of the term (information required for) protection of rights
  4. The whistle-blower provisions should be extended to the private sector to protect whistle-blowers in the sector. Further, the body charged with enforcing this bill should be empowered to assist whistle blowers.
  5. The relationship between the bill and other information disclosure statutes should be such that there is no unintended restriction of disclosure. The law that favours disclosure should prevail in the event of a conflict between these laws.
  6. Ground for refusing access to records: The bill should define trade secrets/commercially confidential information. In addition, the overly broad language of the third party commercial information needs to be narrowed. The necessity of harm exemptions override should be reintroduced in the Bill. The exercise and protection of rights must be a component of the mandatory disclosure in the public interest.
  7. External Review: An intermediate body/mechanism should be established to adjudicate information disclosure disputes. COSATU proposes the establishment of the Open Democracy Appeals Board to settle disputes regarding information disclosure as such an intermediate body. More investigation is required regarding the mediation of information disclosure disputes. The High court will hear appeals regarding the interpretation of the law while the Appeals Board will hear appeals on decisions regarding denial of access to records by both the public and private sector.
  8. A phased/staggered implementation process should be considered: first to appoint information officers and secondly to educate the public on how to use the legislation. The Human Rights Commission should receive sufficient resources to enable it to perform the duties imposed by this law. In addition, the Commission should establish a specialised body to deal with the bill.
  9. To facilitate greater access, the information officer should be empowered to waive fees, where such waivers will allow for access to disadvantaged people.
  10. The bill should be redrafted in plain language to make it accessible and readable.

Proposed substantive and technical legal amendments are contained in Annexures appended to the submission.

2. Introduction

The apartheid system cultivated a culture of secrecy entrenched in the public and private sector. Remnants of this culture remain pervasive in the private sector and sections of the public sector. For an open democracy to thrive, this culture should be uprooted wherever it manifests itself. A new beginning for our society is codified in the Constitution, which is imbued with the vision of an open and participatory democracy.

People require accurate and accessible information for meaningful participation in decision making. In addition, they need information to make informed choices, exercise and protect their rights. Further, information is required to hold the state and private corporations accountable.

Against this background, we welcome the Open Democracy Bill (hereafter the ‘Bill’) as an important legislative intervention to secure the constitutional right to access information. Efforts to inculcate an open democracy will have to contend with a high rate of illiteracy in our society, an authoritarian and inward-looking culture in the public service and resistance to information disclosure in the private sector.

COSATU’s approach to the bill is twofold, i.e. to underline areas which we support and to draw attention to its shortcomings. 1 There are many positive elements of the bill that we support. However, despite the fact that the bill was developed over a long period of time, it has serious flaws and/or shortcomings in certain key areas.

This is a submission to the first stage of the parliamentary process. The bill needs to be redrafted to take into account the concerns raised regarding its shortcomings. We present legal formulations, which could assist the process of redrafting the bill. These proposals indicate possible legal drafting which could be used to capture our concerns. COSATU will participate in the second stage of the parliamentary process when the bill is redrafted and considered in the next session of parliament.

3. Incorporating the “Right to Know” (RTK) principle in the bill

Currently, the bill primarily deals with access to publicly held information upon request, commonly known as freedom of information. In the light of resource disparities, a requester-driven approach may place the bill beyond the reach of the disadvantaged.2Within a requester-driven approach the main beneficiaries will be the rich and powerful, thus deepening the uneven balance between commercial and noncommercial information seekers. Further, the advance in information technology has led to an exponential growth in the flow of information, but ironically, many people are shut out of the information superhighway. This underpins the need for a proactive approach to information disclosure, a key feature of RTK.

Information is power and if the state puts in place mechanisms to provide information to poor individuals and communities they will be empowered to participate in decision-making processes. In our view, information is not just a check and balance against