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

Abstract

In South Africa, freedom of information (FOI) is entrenched in section 32 of the Constitution, which guarantees every citizen the right of access to any information held by the state or 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, international trends have shown this does not automatically translate into fulfilment of people's right to information. This study utilised mixed method research through the explanatory sequential design to assess compliance with FOI legislation by public bodies in South Africa, with a view to develop a model for implementation of FOI. 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, 15, 16, 17 and 32 of the PAIA. Thereafter, a qualitative study through interviews with purposively chosen participants was conducted to substantiate the findings of a quantitative study. 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 the implementation of FOI legislation in most public bodies is assigned to legal departments that do not have knowledge of what records are created, and 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 and worst in municipalities. The study recommends the establishment of an information governance unit to implement FOI in public bodies. Failure to assign responsibility to a relevant unit would perpetuate the non-compliance with FOI legislation by public bodies in South Africa. A model for the implementation of PAIA within a public body is suggested.