Promotion of Access to Information

Andrew Layman:  PCB CEO

The Promotion of Access to Information Act (PAIA) was launched several years ago amidst a fanfare of transparency.   This was the means whereby the constitutional right of the public to know would be delivered.     It appears to have been a damp squib.    Thousands of so-called “manuals” were drafted and gazetted.   I wonder how many of them have ever been accessed.     Now we have the Protection of Information Bill, tabled with vigorous intent, apparently, by the same governing party that enacted the PAIA so enthusiastically.    Even the name of the current Bill offends the constitution, let alone any of its contents.     The constitution reads: “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.”      

The real significance of this, and any other draft legislation, does not actually lie in its wording.    For the most part, words in legal documents are neutral in the sense that they convey literal meaning without emotive interpretation.     But they are the products of conscious intentions and since people are not generally attuned to receiving and processing neutral information, it is the intentions that are interpreted, sometimes correctly, but sometimes quite inaccurately.    We also ‘read between the lines’ finding all sorts of meanings that might or might not have been intended.    Precedence and pre-conception play a part in the meanings we find.    Thus, while the architects of the Bill are confident that it represents a positive means of protecting the state, which is to the advantage of its people, others see very sinister motives which are strengthened by the knowledge that frequently in history tyranny has appeared in the guise of democratic law.    It boils down to the manner in which the law is used, or abused.    This is not simply a question of enforcement.     Laws enable or prohibit within a framework, the precise boundaries of which are open to some individual’s or some group’s opinion.     

Among the most notable examples of the unintended consequences that might result from the absence of preciseness was the way in which many municipalities abused the Municipal Property Rates Act, thereby substantiating the political opposition’s suspicions of government’s motives.   The Act itself could not be faulted, in my view.    The objectives of achieving fairness and uniformity throughout the country were sincere and laudable.     Rates increases from year to year would be subject to controls that would prevent municipalities from unreasonable exploitation of rate-payers.  But the provisions for the transition to the new legislation were deficient and many municipalities saw an opportunity to impose outstandingly unreasonable increases.    

The reality of the proposed Protection of Information Bill is that it might be quite benign in the hands of some, but malignant in the hands of others.    It does not allow a cover-up of corruption or incompetence, but neither does it prevent a range of people, including those in executive positions in departments and entities that have little to do with state security, from classifying information that they believe to be too sensitive for public consumption.    Once information is classified, the process to gain access to it, however justified, will be complicated, and expensive no doubt.

There is pretty strong evidence that one of the objectives of the Bill is to exercise control over the media.    A free press is a cornerstone of democracy, but has the press always respected its freedom?    The recent article about the police commissioner and new premises for the SAPS reveals a nadir in journalistic integrity.    Neither the context nor the facts were investigated, it seems.    It’s not surprising that government has become touchy.   We have seen an increase in what I regard as ‘tip off’ journalism.    Many news stories are initiated by tip offs, but in the hands of a journalist with integrity these are investigated properly and not simply put out as untested facts to be believed by a gullible public.     Surely every tip off requires careful scrutiny and there is often scant evidence that this is applied.     I believe we need a great deal more integrity on the part of the media, but integrity is not imposed by law or regulation.          

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