Freedom of Information (FOI) Clinic in conjunction with the University of the Western Cape   

 Clinical legal education:

Venue: University of the Western Cape

Lecture Lesson Plans:

Access to Information Lecture Lesson Plan 1

Access to Information Lecture Lesson Plan 2

 Two lectures were given in relation to the promotion of access to information action.

BACKGROUND INFO on FOI Clinics

Freedom of Information (FOI) Clinic South Africa
Ten years after the enactment of the Promotion of Access to Information Act (PAIA) in South Africa, it is an unfortunate reality that the level of usage and awareness of this Act is dismal. In comparison to similar open democracy legislation, the Promotion of Administrative Justice Act (PAJA), where heavy jurisprudence is in abundance, litigation in the area of access to information is scant. The use of PAIA in the courts is however bound to increase.  This is particularly likely since, in an important recent development, the courts in which PAIA may be used have been significantly expanded.  A sigh of relief went up from access to information advocates across South Africa when, on 9 October 2009, rules of procedure were promulgated that set down the standards by which PAIA requests could be enforced in the Magistrates’ Courts.  

These rules fulfilled the last of the conditions necessary to enable enforcement of PAIA in the courts far more accessible to the majority of the national population than the High Courts.   The rules came into operation on 16 November 2009.  
While the operation of these rules is laudable, a vital question needs to be posed. To what extent can PAIA be used to fulfill its mandate of assisting the people of South Africa to realize their socio-economic rights? Writing not in respect of access to information generally but rather in respect of its utility in the achievement of socio-economic justice, Mukelani Dimba has discussed the role of PAIA litigation.   Drawing on the argument of Saras Jagwanth that access to information primarily plays an instrumental role in the achievement of socio-economic rights; Dimba sees access to information as a necessary aid for either social mobilisation or for litigation in order to enforce socio-economic rights.  

Aside from litigation however, there is the need to first educate and promote awareness of the Act among the citizenry and such platform needs to be extended from civil society alone to include universities and the legal profession. There is no better place to target the legal profession other than through aspiring lawyers who can assist people in realizing that they can enforce their rights through the use of PAIA without any or minimal assistance. It is high time we collectively responded to the question posed to freedom of information stakeholders that given the continued state reliance upon and rolling out of the judicial enforcement model, how can stakeholders interested to effectively implement the right of access to information most effectively complement and supplement enforcement through the courts? One of the answers to this question would be to widen the pool of information champions who can assist people in making information requests and educate people on how to use this Act independently.

In a bid to expand the pool of champions of freedom of information in South Africa and increase the level of education and awareness of the legislation, the Open Democracy Advice Centre wishes to set up a Freedom of Information Clinic in an existing Law Clinic in a University.
 

OVERVIEW

ODAC has undertaken a number of interventions in terms of our parliamentary work in South Africa this year. As the custodian of Information laws in South Africa, we devote our resources to engaging with parliament as a resource center in their work in either amending Statutory Acts or passing Bills into law. In the past year, ODAC engaged with Parliament on the Promotion of Access to Information Act (PAIA), The Protection of Personal Information Bill and the Protection of Information Bill.

A. PROMOTION OF ACCESS INFORMATION ACT (PAIA)

November 2009, ODAC organized a successful study trip for members of parliament in the Portfolio Committee on Justice and Constitutional Development to the UK Information Commission regarding the Protection of Personal Information Bill.

The trip was a learning experience on how the Information Regulator to be established in terms of the Bill can exercise the dual mandate of protecting personal data and exercising enforcement powers over the Promotion of Access to Information Act. 
Flowing from this successful study trip, the Chairperson of the Ad hoc Committee on the Protection of Personal Information Bill, Mr. John Jeffrey, met the management of ODAC on a number of occasions to discuss our proposal that Parliament should extend the powers of the Information Regulator in terms of the Bill to cover PAIA matters.

The result of this meeting culminated in a request by the Ad hoc Committee that we should make a submission on the re-allocation of the institutional mandate of the South African Human Rights Commission with regards to PAIA.

ODAC’s position in this submission is that PAIA can only be effective if an independent information commission has enforcement powers to adjudicate on disputes relating to the release or non-release of information. This position is based on the current judicial enforcement model of PAIA that makes the disputes on access to information expensive and time consuming.

B. PROTECTION OF INFORMATION BILL

ODAC was the first to appear before the Ad hoc Committee on the Protection of Information Bill to elaborate on our submission on the proposed changes we advocated before the Bill is passed into law. ODAC’s position in the Submission is based on 3 main factors:

1. We want a re-definition of certain phrases in the Bill, most significantly, “national interest” and “commercial information”
2. We favour the inclusion of a public interest override in the classification of information
3. We want an independent oversight body to deal with the Bill.

• ODAC’s Submission on the Protection of Information Bill 2010
• Supplementary Submission on POI Bill

C. PROTECTION OF PERSONAL INFORMATION BILL (PPI)

Aside from the submission made to Parliament on PAIA amendment and the Protection of Personal Information Bill, ODAC has also worked extensively and closely with Parliament on the Protection of Information Bill.

ODAC has also made subsequent submissions to Parliament on the Protection of Information Bill regarding the tagging of the Bill in its presentation to Parliament as a S75 Bill in terms of the Constitution rather than a S 76 Bill.

• Submission to parliament on PPI Bill
• Supplementary submission October on POI

ODAC remains steadfast in our commitment to achieve a truly open and transparent South Africa.