Internal Structuring Procedure; External Review Mechanism

Meeting report

AD HOC JOINT COMMITTEE ON THE OPEN DEMOCRACY BILL
9 November 1999
INTERNAL STRUCTURING PROCEDURE; EXTERNAL REVIEW MECHANISMS

Relevant document
Open Democracy Bill [B68-98]

SUMMARY
Morning session
Generally, the Committee came to an agreement that they are going to abandon the current structuring whereby information officers within each department have original powers and instead the Director General will have the power to make decisions on access to information on behalf of the department as its information officer. The Director General will have the power to designate people below him as information officers as s/he sees fit. The internal review mechanism would then be eliminated. However, there are some issues outstanding such as whether to have an internal appeal process at the local level.

Afternoon session:
The Chairperson outlined the three main possibilities for external review mechanisms - courts, tribunals or Information Commissioners. In the discussion that followed there was much sympathy expressed for an Information Commissioner model.

The Committee will meet all day for the rest of the week except Thursday morning.

MINUTES
Morning session
The Chair wanted to get the Committee's views on structuring within governmental departments (rather than public enterprise.

He requested comment from the committee about whom should be given the official power to make decisions on behalf of a government department with regard to access to information. He admitted that a problem is that South Africa has a hierarchical civil service so to jump in and give someone original power over decision-making could be problematic. One solution to this problem would be to give that power to the Director General and they can delegate this power downwards. The result of this solution is that you really would not need a formal internal review structure. The idea would be that the information officer would be at a lower level than the Director General so if a requester had a problem with the information officer's decision, he/she would take it up with the Director General. The options would be to go with no internal appeal or to try and create an internal appeal within the department. Another option would be to let the appeal mechanism reside with the Minister or give the Minister the power to create an appeal mechanism within the Ministry.

Ms D Smuts (DP) said that her party supported the Director General option without the internal appeal, but that her party was still working on this.

Mr P Smith (IFP) still wondered how the basic structure was going to work. How is a person in a non-governmental centre going to have access to this information officer? He wanted clarity on how the application process was going to work

The Chair said the information officer could also be a deputy information officer. In rural areas you might have the information officer be in a hospital or school (headmaster). You would not have one person who deals with applications for information for all levels of government.

Mr Smith still had concerns about the application process. Are you going to have people who need copies of their birth certificates apply to the superintendent of schools, since the nearest information officer would be 200 kilometres away?

The Chair said that is how it would work

Mr M Masutha (ANC) said that South Africa is not an established culture so far as access to information, and this Bill goes one step toward making it so. This Bill contributes to that end by requiring government and others to create a proper infrastructure so that people do have access to information. They are not saying that the whole thing be centralized in one building in Pretoria. You want to create a structure were people have direct access in local government structures like schools, and that is where the emphasis of this Bill should be.

Mr Landers (ANC) said they were thinking too much in terms of formal structures. He said to think of it more in terms of how our communities are structured, because people are going to go to their local schools or clinics for the information. So the question around the Director General comes in if their request is not handled at the local level. He said that they needed to dispel the idea that people will need more money to fill the positions of the information officers. The idea is to take someone that is already there and just add to their duties, rather than creating a whole new position.

The Chair said that the cost is going to come from training and manuals. At least if the information officer, say the headmaster at a school, has a manual, then they can refer you to where you need to go to or call to get the information that you are requesting. He said that there is going to be more of a problem with implementation than with costs.

Ms Smuts asked if there had been any input from Government Communication and Information Services (GCIS).

The Chair said that he thought there was a submission, but if not then they would look into it.

Mr Lever (DP) said, in response to Mr Landers earlier comment, that he liked the idea of using the Director General, because then you would not be pulling in someone from outside of the department. You could use a person that was already there and who already knows the system.

The Chair and Mr Landers agreed with him

Mr Masutha said that the beauty of GCIS is that they provide documents for free to the public. He wanted the Committee to consider creating a framework that makes government do the same thing.

Mr Smith wanted to know why the information officer would not be a one-stop-shop? Is that not what they had intended originally (section 13)?

The Chair responded by saying that they were trying to create flexibility for the people requesting the information and for the information officer. You want the requester to go to one designated place to ask how to get the information, but you do not want that information officer to have the duty to also process all of those applications. To make a one-stop-shop, you would need to create an obligation on that level if the document gets lost or whatever. You do not want the headmaster having to worry about processing all of the requests or forwarding the requests to the proper place. You do not want to create that kind of absolute duty on people, because of the numerous consequences that would flow from it. What the Bill needs is a "feel good" clause that asks people to do their best in helping people when they come requesting information from the information officer. He is scared to create fixed obligations on the lowest level (e.g. school master). It would be different if the request was sent directly to the Department of Health, then they would have a duty to deal with the request for information. He does not have a problem creating a soft assistance clause.

Mr Smith said Clauses 13 and 14 are "hard" clauses in that they impose more strict obligations on the information officer, which was his concern. Where are people supposed to lodge complaints? What about the situation where the department you need to get the information from is far away?

The Chair explained that you go to your local information officer, say the school master, and you tell him what information you are trying to get. He would then look in the manual for the contact telephone number and address you need to process your request . You would not have to go physically to the government department. You would merely need to call them or mail in your request. The information officer, say the school master, will also have access to request forms from the departments, and they should help assist you in filling those out as well if you need help with that. This is what he envisions the Bill doing in terms of information officers. He admitted that the Committee would not be able to anticipate every problem that may come up. They must realize that there will have to be adaptation later on to the realities of the implementation of the Bill on all levels of government. He felt that the number of applications that would fall under the ambit of the Bill were going to be small, because the majority of them would fall under the right-to-know category. If you could get the departments to figure out what information falls under the right-to-know category within a year, then that would be a great step in giving effect to this right to access information.

Mr Landers agreed with Mr Smith and said that the success or failure of the Bill depended on how it was implemented at the local level. He wanted Mr Smith to know that they were aware of the point he was making. Further, he agreed that it would be a bad idea to put a hard obligation clause in the Bill.

The Chair said that he thought that they all agreed that there is currently a problem with accessing information, and that this Bill must create a way for people to access information without having to travel really far to get it. Creating some legal obligation on the information officers would be problematic. You can spell out in the regulations that the information officers need to help those coming to request information, especially indigent people. However, that is different from creating an obligation on the information officer to process those applications. The point of the Bill is to empower people to get the information themselves, but you want the information officers there to help them out. The success of this Bill will be know if people say that this right means something to them, and that can only happen with a flexible system. He wanted everyone to keep in mind that they would not get it right the first time, and that is why the Bill provides that the South African Human Rights Commission (SAHRC) check up on the effectiveness of the Bill in practice.

Mr Smith (IFP) continued with the right-to-know issue. He stated that it is going to be difficult to educate people on what falls under the right to know and what information is more difficult to get access to. He was not sure if anyone knew the difference now. How would the information officer know the difference? Would not all of this make the right-to-know information MORE difficult to access?

The Chair said that the Act still guides the right-to-know issue. All that the right-to-know means is that you do not have to wait 30 days or whatever to get your information. You have access to the information right away, but you have to pay for it. You would not have to go through the whole application process to get the information, but he admitted that the system would take a while to work that systematically.

Ms Chohan (ANC) raised two points. First, she focused on section 13 and how it creates a duty to assist. This issue comes into play when you discuss the manual. There could be logistical problems. Perhaps it would be a good idea to consolidate all of the manuals into one. Each government body needs to provide the SAHRC with the information that needs to go into the manual. Her second point was about local government. Local government is the first access point to government for most people. The Bill should be able to deal with local government much more actively than the national government. Where the information officer resides is important to the whole process. She was not convinced that it was a good idea to remove the internal appeal process at the local level.

The Chair asked if it was true that people go to the local government level first for information? They would not for medical records and such.

Ms Chohan said that there was a many things that people would access at the local level on a daily basis. She felt that they should talk about how to build in a mechanism to foster and support this interaction. It is in the appeal mechanism that you allow for greater flexibility.

The Chair said that he would take that as a further suggestion if the Committee did in fact choose the town council to be the designated information officer.

Mr Masutha (ANC) asked how they were going to deal with the issue of record keeping? He had a concern that the Bill would end up being a disincentive for departments and suchlike to keep good records.

The Chair asked where that suggestion was going to take the committee? He said that the committee would consider that issue when Mr Masutha came to them with a solution as well. It would scare the Committee to look at that issue now because they have no solution. He knows that they will have to look at the Archives Act at some point.

Ms Smuts said that if the Committee decides to use the Australian model for the right-to-know portion of the Bill, then they would have to also look at a system of record-keeping. She suggested bringing back the old section 10, which required that each department provide binding guidelines/rules. The idea is that you cannot expect people to follow rules if they do not know what the rules are. You could have the departments put them into a manual or you could have a system as in the Australian model. There should be a direct obligation on the department and governmental bodies to let people know the rules and guidelines.

The Chair said that they would look at the Australian model, but his view was that clause 10 had been cut from the Bill, because it was going to be dealt with in the Administrative Justice Bill.

Mr Landers said he knew that they could not address record-keeping in this Bill, but perhaps they could do so in their resolution to the executive. He suggested that the Committee apply their minds as to what they would want to see in that resolution. If the records do not have integrity, then they will have serious problems.

The Chair asked Ms van Schoor if the Law Commission was doing a report on current record-keeping practices?

Ms van Schoor said that the Law Commission was only looking at the Freedom to Information Act.

The Chair agreed with Mr Lander's point. He said that some people feel that the Archives Act is not bad, but that does not mean that it has been implemented properly. How does the law work in practice? He admitted that an audit of governmental departments would have to be done so that they know what is happing in practice. It may be that the Committee needs to pass a resolution addressing record-keeping.

Mr Mgidi (ANC) asked, separate from the discussion on government departments, how the Chief Executive Officer in public enterprises was going to execute the job of the information officer?

The Chair however summarized what had been discussed as far as government departments were concerned. He said that the overwhelming feeling seemed to be that they were going to move away from the current structure of the Act, and move to a structure where the Directors General were the information officers. There is broad agreement that if this is the new structure that there would be no internal appeal mechanism, because the aim would be to put the responsibility onto the departments. The departments will have to set up structures to deal with access to information. The cost is really going to be in the training and in the creation of the manuals. He believed the cost was going to be minimal and really only be, in effect, at the beginning. The Committee is not of the opinion that people will have to appoint someone new to be the information officer. They should use someone already in the department - someone who already knows the system. At the local level, there is broad agreement that the information officer should be the town clerk. There is still a question as to whether or not there should be an internal appeal process at the local level, given that the local level lacks the sophistication of the higher levels of government. There is still the issue of how to rephrase clause 13. It is important to have a flexible assistance clause where, if municipalities have the resources, they can create a facility where the public can access information, but also where they do not have to if they do not have the resources. They will also look at the issue of record-keeping and whether or not they should draft a resolution on that issue. Further, something should be put into the regulations about the right-to-know and how to classify information that falls into that category.

Ms Camerer (NNP) was not sure if the appeal mechanism at the local level was really necessary.

The Chair was worried that accessing information at the local level could become very political, because it would be dependent on who was on the council. He said that they would flag this as an issue that they have to look at again later. He said that the cost of bringing outsiders in would be too great. How much information at the local level will fall into the exemptions? He stated that it seemed as if very little will.

Ms Smuts reminded him about out-sourcing.

The Chair agreed that out-sourcing would increase the volume of information at the local level that could be subject to the exemptions. He took note that there was no consensus on the issue.

Mr Smith said that if you did away with the appeal mechanism all together then you would have to go straight to the legal process. The Committee needs to ensure that this will be a smooth transition. He also wanted to know what kind of information would NOT be the right-to-know kind? He believed that almost everything at the local level is right-to-know information. He also wanted the Committee to look at flexibility in terms of the time frames in the Bill.

The Chair said that if the time frames apply, then the material does not fall under the right-to-know. He would have Ms van Schoor look into this issue. She should also look at the municipalities that cover the same geographical area, because that could be problematic in terms of appeals.

Ms Smuts raised the issue of Chief Executive Officers in the public sector. Perhaps these enterprises already have existing regulations that would be useful to use. These regulations could play a big role, especially in terms of appeal at the local level. She recognized that the local level was difficult, because most of the information would fall under the right-to-know and the information that did not will probably be information relating to the private sector.

Ms Chohan said this is exactly why having an appeal at the local level would be important.

The Chair said legally he has a problem with having an appeal at the local level. He recognised Ms Smuts' point about the regulations, and said that they would probably be helpful in the creation of the manual but not in terms of the appeal issue. There would be some 300 municipalities after the re-structuring is complete, which would mean a ton of manuals.

Mr Durr (ACDP) raised an unrelated point. He suggested that there be a national standardized sign designating the location of information officers. He made the analogy of the sign for the Post Office. Everyone knows what it looks like, and they know that they can go and buy stamps there. To do this for information officers, would encourage the same kind of use and recognition.

The Chair was not averse to that idea. In fact, he requested Ms van Schoor to look into that.

Ms Taljaard (DP) wanted to flag the issue involving the 'town clerk' level. Do we really want the town clerk making decisions about commercial information and contractual information? This might be a problem. Further, there is nothing stopping a Director General from delegating the information officer role to the head of a governmental agency , which could be a conflict. There would be an arms-length relationship with the department or Director General as a consequence.

The Chair did not agree that all public enterprise would be under the governmental departments. They have separate information officers, which would be the Chief Executive Officers.

Ms Chohan (ANC) said if they do have an arms-length relationship, then are they not going to considered governmental bodies.

The Chair disagreed saying that is dependent on whether or not they fall into the category. The definition would need to be drafted properly.

In conclusion the Chairperson said he was happy with the discussion on structure with the note that local government was still an open issue.
He reminded the Committee that Ms van Schoor was working on drafts of the private sector and the right-to-know, and that she was waiting for Ms Lala Camerer to complete the draft on the whistle-blower section.

Afternoon session
Part Six of the Bill deals with appeals against decisions made by information officers of a governmental body. Prior to the discussions of the morning session the Bill had legislated for an internal appeal to the head of a governmental body and an external review of decisions through the High Court. With the agreement that Director Generals are to be Information Officers and that there is to be no internal review mechanism, the external review process increases in importance. It has been generally accepted by the committee in previous discussions that an external review procedure using the High Court, would be costly, time-consuming, inflexible and inaccessible to many requesters. However this is an area where solid positions are yet to be developed by committee members.

The Chair, Adv de Lange, explained to the committee the three main models, each with various mutations, that seem to be possible external review options:

Courts
Many older information systems world-wide use the courts as the means to appeal against request refusal. However such systems - most noticeably that of Queensland, Australia - have proved problematic and have fallen in to disuse because they are inaccessible. Adv de Lange felt there were four different ways to use courts:
· A requester could appeal to the Supreme Court.
· A requester could appeal to a Magistrate Court. Adv de Lange accepted this would be more accessible but felt it might be problematic as the decision of one magistrate court does not bind another. This could lead to appeals still being referred to the Supreme Court for a final decision.
· The requester could have the choice of using either the Supreme Court or a Magistrate Court.
· The procedures of magistrate courts could be rewritten to provide for a more flexible, even mediatory, role in dealing with appeals. However Adv de Lange thought this might prove a difficult option.

Tribunals
Adv de Lange outlined two options:
· A tribunal of the Australian Federal level could be set up. This is a flexible tribunal without an inquisitorial process and although similar to a court is more specialised and less heavy. However Adv de Lange pointed out that it had proved equally inaccessible.
· A tribunal as proposed by the Open Democracy Campaign Group (OPD 64) could be set up. Adv de Lange interpreted that their proposal would lead to magistrate courts being designated as more flexible bodies so that they acted as tribunals. He believed this would be constitutionally problematic.

Information Commissioners
Adv de Lange explained that this was an option used by more recent worldwide information legislation, citing the recent Irish legislation and the proposed legislation in Britain and Japan. This system would entail an information commissioner acting out a mediatory role between Departments and the ultimate review procedure of courts. Judgments would lead to the development of precedent and the creation of a body of norm on access to information. Once set up Adv de Lange felt that this system would be very cheap and easy but he accepted that there would have to be considerable financial output to set up such a system. Due to this cost he referred to suggestions made that the role of information commissioner could be linked to established structures, most obviously the Public Protector. He felt that such links would be problematic, for example, by linking the role to the Public Protector you would change its character and therefore its constitutional position. A further problem would be that all similar systems currently in operation are federal or decentralised. This is not planned for the South African system and yet without it an Information Commissioner may prove inaccessible.

Mr Lever (DP) pointed out that the proposal made by the Open Democracy Campaign Group (OPD64) was to use only the physical facilities of magistrate courts so need not be problematic. However Adv de Lange retained the view than even this might have constitutional implications.

Ms Camerer (NNP) felt that it would be possible to attach a system of Information Commissioners to the Public Protector's Office, pointing out that the British model accepts that the two need not be totally separate. Such a role for the Public Protector could easily be written in to the Constitution and this would save the replication of infrastructure.

Adv de Lange retained the view that use of the Public Protector would be problematic. He pointed out that the South African situation was different to the British because South Africa has both a written constitution and a Bill of Rights, both of which legislate for the role of the Public Protector. That an information commissioner would have the power of adjudication would definitely not sit easily with the constitutional role of the Public Protector. Finally Adv de Lange felt that use of the Public Protector would still require financial input to develop the existing infrastructure.

Mr Smith (IFP) accepted that the use of courts alone was undesirable but thought that the practical issues behind the other options seemed problematic. He enquired as to how much and when finance would be available to set up possible systems.

Adv de Lange accepted this concern but pointed out that the only way to have a flexible and mediatory system would be to set up a structure involving information commissioners, even if this system would involve the greatest costs. The issue of whether the finances would be available is relevant but not the best way to approach the problem. He felt it should be generally accepted that any process of external review would have to be phased in due to finances but also due to the fact that this legislation was dealing with the unknown.

Mr Smith wondered whether the phasing in of an external review system meant that only a small-scale system would kick in on 4 February and an entire system would kick in at a later date.

Adv de Lange said that there would be no way for a national system to be anything less than 'national' and it would require time before this could be operational. A transitional clause could spell out what would occur until then. It is likely that during this period appeals would proceed straight from internal reviews to the courts. Arrangements for any other system would still have to be laid out within this Act so that finance could be made available.

The discussion turned to exactly how Information Commissioners would fit between the process of internal review and the ultimate adjudicatory power of a high court.

Adv de Lange felt that the main role for Information Commissioners would be one of mediation. They would have powers of adjudication but their decisions could then be questioned in court. Over time precedents would develop meaning that decisions made by an Information Commissioner would be binding in practice.

Ms Jana (ANC) felt that although Information Commissioners would have the power of adjudication this should not mean that they acted as a court. Instead of hearing the evidence of the requester and the governmental body they should instead look at the document requested and see if it falls within the exemptions.

Mr Lever felt that any elaborate structure of external review must be avoided and that the system used by the Commission for Conciliation, Mediation and Arbitration (CCMA) could be utilised. This would see a national Information Commissioner, nine provincial Information commissioners and a panel of investigation within each town. It would be this panel who performed the mediation before the provincial commissioner adjudicated.

Adv de Lange believed this proposal would be problematic. The adjudication system set up to deal with legal aid has proved both unpopular and expensive and links to such a system would decrease the development of specialisation by Information Commissioners. A full-time and completely separate system of information commissioners would allow the development of capacity, expertise and rapport with communities. Plus, the more stream-lined the system, the less problematic it would be to ensure confidentiality of records.

Mr Smith accepted the need for any external review mechanism to stand alone, pointing out:
· the burden of Chapter Nine and other institutions - already under-funded - should not be added to;
· the role of an Information Commissioner must be very clear allowing for clear allocation of budget and avoidance of public confusion, similarly;
· the public perception of institutions like the Public Protector should not be confused;
As it might be problematic for one body to both mediate and adjudicate, he wondered how this could be dealt with.

Adv de Lange accepted that this last issue was a point that needed discussion. It might be easier if an Information Commissioner dealt with mediation alone. However systems in Australia worked well because mediation and adjudication were linked to one body. Separate parties can be called in for a clear and quick mediation procedure through which adjudication becomes clear.

Ms Jana wished to know the relationship between a national commissioner and provincial commissioners and also between the provincial commissioners.

Adv de Lange explained that provincial commissioners would have powers of adjudication and with the development of precedent would not need to consult with a national commissioner before taking decisions. He accepted that there might be disagreement among provincial commissioners but said this was unlikely as he imagined there would be much discussion of precedent and procedure amongst commissioners.

Adv de Lange went on to stress the need for the committee to look in to how other worldwide systems using information commissioners work. Most important was what the 'review' procedure would entail. Generally external review procedures try to apply the exemptions contained in the legislation and not review the procedure followed by the requestor and the governmental body applied to. The relationship between this adjudication and further review and adjudication by courts must also be clear.

Mr Smith said that two levels of external review might be problematic. If an Information Commissioner chooses to make a record available then what benefit would further appeal have?

Adv de Lange said that decisions made by Information Commissioners would be valid pending a time period - probably 14 days - in which appeals to a high court could be lodged. A greater problem would be abuse of the system by those with money if any issue or case could be re-opened by an appeal to the high court. This would be a particular concern when done by Departments who would appeal using taxpayers' money. However Adv de Lange accepted there must be an ultimate right of appeal to the high court.

Adv de Lange stressed the following points before concluding the meeting:
· Information Commissioners would review a request by deciding if an exemption was valid. They would not review evidence or the process followed by a requester or a governmental body in dealing with a request.
· The reviewing of exemptions would place an emphasis on the value judgements and tests written in to the Bill , e.g. 'harm' or 'substantial harm', and this meant the drafting of exemptions would be very important.
· The key to developing an external review mechanism for South Africa would be to look at existing systems worldwide. How do other system operate? How are other systems linked to courts? Is it a review or an appeal that occurs?