Participants at an FXI conference held in October 1994 objected to the composition of the government task group on the basis that it was dominated by lawyers. The Conference called for the Task Group to be broadened to include civil society representatives. The manner of appointment of the government task group was also criticised in that there were no public nominations called for or hearings held to appoint the members.
In subsequent meetings with the Task Group, the FXI proposed that either the task group be broadened to include civil society representatives or that civil society establish its own forum to complement the work of the task group. The latter is in fact what happened but with the addition that the forum would include representatives from government departments as well. Support from the civil service and the implementation of effective information systems by the Government is crucial to the success of the Bill. An Executive Committee of ten people was elected from a range of civil society and Government bodies to represent the forum. Their brief included a wide range of tasks regarding the Bill, including monitoring, liaising with Government and education on its contents, and, importantly, campaigning for the speedy adoption of the Bill.
By mid-August, a month after its establishment, the executive had met three times. This included a seminar at which a member of the Government-appointed task group, Prof. Etienne Mureinik, outlined important substantive features of the proposed Bill. Issues of concern raised by the ODAF executive included:
Prof Mureinik, the head of the Wits Law School, says this is not so and that South Africa will have some of the speediest procedures in the world. In brief, all government bodies will have to employ an information officer whose dedicated task will be to deal with requests for information.
Requests have to be in writing, and where persons are unable to comply, the information officer will be obliged to reduce the request to writing. The information officer also has to ensure that the request is clear enough so that Government cannot refuse to comply on the basis of vagueness. This will be the only country in the world where such obligations are imposed on the information officer. From this point the information officer has 30 days to furnish the information (21 days if the information is personal).
Some information, however, will be exempted from disclosure. Should the information officer believe that the information requested is exempted, then the request has to be referred to the head of the relevant body. The head will have another 30 days to reach a decision. However, urgent requests for information can be made. In this instance the information officer has to deal with the request immediately, but may not take longer than 5 days. If the request is referred to the head of the body, the head must also deal with it immediately, and also not take longer than 5 days. This effectively cuts down a 30 - 60 day waiting period to 5 - 10 days, or even less if information is released immediately.
Prof Mureinik says the appeal procedures are part of the mechanisms for enforcement of the public's right to information. In brief, this is how the appeal procedures work. If the information is denied by the information officer, then an appeal can be lodged with the head of the government body. S/he then has to hold an appeal hearing. If the information is again refused, the matter can be referred to the Information Court. This has to happen within 30 days of the appeal being refused, and the Court has another 15-25 days to produce a ruling. The Information Court will be a division of the Supreme Court and will have the same powers. It will however, be able to broaden its scope beyond reviewing administrative procedures only. Should this fail, the person requesting information can then refer the matter to the Supreme Court and ultimately to the Constitutional Court.
Parallel to the entire process (both requesting information and appealing against refusals), a member of the public can appeal for assistance to the Public Protector. The Public Protector can represent the person requesting the information to the information officer and the head of the government body. This can take place either during the initial phases or at any time when disputes arise, including during the appeal hearing, and the Information Court hearing.
A third mechanism also exists in that the Bill provides for an Open Democracy Commission to monitor the implementation of the Bill and to recommend improvements. The Commission can also represent a person making a request in the Information Court.
A nother unique feature of the proposed Bill is that whenever information is refused, and at whatever stage, the information officer and/or the head of the government body, are obliged to inform the person making the request of the next phase of the appeal process and the requester's rights under the law. All refusals have to be in writing, stating the full reasons for the refusal.
U pdate will in future editions report on more features of and issues arising out of the proposed Open Democracy Bill: anyone who is interested in contributing to the work of ODAF is urged to contact the FXI at (+27 11) 403-8403/4.