Compliance with freedom of information legislation by public bodies in South Africa

Abstract

In South Africa, freedom of information (FOI) or the right of access to information (ATI) is entrenched in section 32 of the Constitution. Section 32 guarantees every citizen the right of access to any information held by the state or held by any other person that is to be used for the protection or exercise of any right. The Promotion of Access to Information Act (PAIA) is the law that gives effect to section 32 of the Constitution. Regardless of a remarkable trend towards the adoption of FOI laws globally, international trends have shown this does not automatically translate into fulfilment of people’s right to information, as access to information by citizens remains a challenging factor. This study utilised mixed method research through the explanatory sequential design to assess compliance with FOI legislation by public bodies in South Africa with the view to ensure transparency, accountability and good governance. In this regard, the study first conducted a quantitative study by analysing the reports of the South African Human Rights Commission from the reporting years 2006/07 to 2016/07 to assess compliance with sections 14, 17 and 32 of the PAIA. The compliance trends were identified and thereafter a qualitative study was conducted to answer the question why the situation was the way it was. In this regard, interviews were conducted with a purposively chosen sample from complying and non-complying public bodies. The targeted participants were records managers, deputy information officers or officials responsible for PAIA in each chosen public body. The mixing strategy for the current study was at the data analysis, presentation and reporting level. Key results suggest that over the years, there were problems in the implementation of the FOI legislation in South Africa and its use was limited. Where implementation has taken place, it has been partial and inconsistent. The responsibility for implementation of FOI legislation in most public bodies is assigned to legal departments that do not have knowledge of what records are created, where and how they are kept. With regard to compliance, in terms of the degree of comparison, the situation was better in national departments, worse in provincial departments (with full compliance from the Free State, Limpopo, Western Cape and, to some extent, KwaZulu-Natal) and worst in municipalities. The study recommends the establishment of an information governance unit to implement FOI in public bodies. This unit will also be responsible for other information functions such as records management and information technology. Failure to assign responsibility to a relevant unit would perpetuate the non-compliance with FOI legislation in South Africa. As a result, accountability, transparency and good governance preached by the public sector to advance democracy in South Africa would be a mirage. A model for the implementation of PAIA within a public body is suggested.