SHADOW REPORT 2016 Corruption Watch

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ATI Network Shadow Report 2016, This Shadow Report 2016 was compiled using statistics derived from PAIA requests made by. members of the ATI Network during the period 1 August 2015 to 31 July 2016 The key findings. of this report include the following, Alarmingly 46 of information requests to public bodies were denied in full either actively. or as a result of the request being ignored deemed refusal. Only 34 of information requests to public bodies were granted in full. 10 of the 15 requests for information submitted to private bodies were denied in full. It is clear from these statistics that accessing information through PAIA can be challenging. However significant progress has been made in the extent to which certain public bodies. make records available automatically i e without the need to submit a PAIA request 2 The. appointment of the Information Regulator on 1 December 2016 also bodes well for improved. compliance with PAIA and increased transparency and openness. PAIA REQUEST STATISTICS, These statistics are derived from 369 PAIA requests made during the period 1 August 2015 to. 31 July 2016 by the following members of the ATI Network. South African History Archive SAHA,Centre for Environmental Rights CER. Centre for Applied Legal Studies CALS,Right2Know R2K.
Equal Education Law Centre EELC,amaBhungane Centre for Investigative Journalism. Public Service and Accountability Monitor PSAM,Wits Justice Project. REQUESTS SUBMITTED TO PUBLIC BODIES, Of the 369 requests submitted 354 96 were submitted to public bodies. Compliance with statutory time frames, 142 of the 354 public body requests 40 1 were responded to within the statutory time frame. Outcomes of PAIA requests, Of the 354 initial requests submitted one remained pending as at the close of this reporting.
period the statutory time frame for responding had not expired Of those requests to which a. response was received or deemed to have been received 3 121 34 2 were decisions to. release the requested information in full 43 12 1 were decisions to release the requested. information in part and 13 3 7 were decisions to transfer the request to other public bodies. 161 45 5 of these decisions were active or deemed decisions to deny the requests in full. In 67 41 6 of these refusals the requester was notified by the public body of the decision. 2 See the CER s media releases on this issue http cer org za news victory for environmental rights department of. environmental affairs makes environmental licences automatically available http cer org za news another victory for. environmental rights department of water sanitation makes water licences automatically available. 3 In cases where the requestee has failed to comply with various aspects of PAIA in the manner in which they have. responded to the request but the response is treated as a response despite these deficiencies 2. ATI Network Shadow Report 2016,REQUESTS TO PUBLIC BODIES. Active or deemed,34 Decisions to release information. in full 46 decisions to deny the,requests in full,of the refusals were. 12 Decisions to release information,in part 58 deemed refusals i e the. requests were ignored,4 Decisions to transfer the requests.
to other public bodies, that none of the requested records would be released 94 58 4 of the denied requests were. deemed refusals that is the information holder simply failed to communicate whether or not. a decision had been made within the statutory time frames of PAIA. Grounds for refusal public bodies, Public bodies are required in accordance with section 25 of PAIA to provide adequate reasons. for any refusal of a request for access to information These reasons must include the provisions. of PAIA relied on by the public body to justify the refusal There are only a limited number of. grounds on which a request for access to information may be denied Unfortunately members. of the ATI Network are seeing these grounds for refusal being deployed in many circumstances. in which they should not apply, Even though providing reasons for a refusal of a request is a statutory obligation public bodies. often do not comply with section 25 In circumstances where the provisions of PAIA relied on. for the refusal are not stated it is sometimes possible to deduce from the wording of the. decision which grounds have apparently been used to justify the refusal. The most common ground for refusal was that the records do not exist or cannot be found. section 23 This is concerning because it speaks either to poor record keeping and or to the. failure by public bodies to carry out duties which these bodies are required to undertake since. had these duties been carried out records thereof would be available. Grounds cited at initial Number of times relied on. of active refusals,request stage whether stated or implied. s36 13 11 8,ATI Network Shadow Report 2016,Internal appeals.
64 internal appeals4 were submitted in response to express or deemed refusals to release. records 64 1 of these appeals were deemed to have been dismissed i e the appellants. simply did not receive any decision by the appeal bodies This is a shocking dereliction of. statutory duties by public bodies Responses to 18 appeals 28 were received within statutory. time frames In the case of six 9 4 of the appeals decisions on appeal substituted refusals. at the initial requests stage with decisions to release the requested records in full Five of the. appeal decisions substituted refusals with decisions to release the requested information in. part 7 8 In six instances 9 4 the decisions on appeal were to deny access on the basis. of grounds provided for in PAIA,REQUESTS SUBMITTED TO PRIVATE BODIES. The remaining 15 requests were submitted to private bodies Responses to six of these. requests were received within the statutory time frames Two of these requests resulted in. a full release of records three resulted in a partial release of records and 10 requests were. refused two of these 10 refusals of records were deemed refusals i e the private body in. question failed to respond at all,15 REQUESTS SUBMITTED 10 out of the 15. TO PRIVATE BODIES were refused, Given the size of the sample it is not possible to derive meaningful statistics from the requests. to private bodies Again the most common ground for refusal is that the records do not exist. or cannot be found section 55, Grounds cited at initial request stage Number of times relied on. Private bodies whether stated or implied, 4 A requester may lodge an internal appeal against the decision of the information officer of a public body referred to in.
paragraph a of the definition of public body This appeal gets decided by a higher official within the same public body. What this means is that for certain public bodies there is an opportunity to have the initial decision reviewed This. internal appeal procedure must first be exhausted before a requester can approach the courts for relief 4. ATI Network Shadow Report 2016,TRENDS AND CASE STUDIES. Automatic access to records, Section 15 of PAIA imposes a duty on the information officer of a public body to make certain. declarations in respect of records which it must or is able to grant automatic access to in. other words access without requiring the submission of a request in terms of PAIA. It is in the State s interests to make information widely publicly and automatically available. Making information available automatically would not only significantly decrease the number. of PAIA requests submitted but also has the potential to increase public trust in and cooperation. with public bodies, The ATI Network has seen a general trend whereby public bodies are increasing the number. of records which they undertake to make automatically available In April 2016 the Department. of Environmental Affairs DEA announced that it would make environmental licences including. environmental authorisations waste management licences and atmospheric emission licences. available to the public automatically without requiring the submission of a PAIA request 5. Shortly thereafter the Department of Water and Sanitation DWS committed to making copies. of water use licence applications water use licences and audit and compliance reports. available to the public automatically 6 Environmental licences and permits set out the conditions. under which environmentally harmful operations may be conducted and access to these. documents is crucial in enabling the public to monitor the activities of these operations The. decisions taken to make these records automatically available are significant and long awaited. victories for transparency in environmental governance. Environmental licences and permits set out the conditions under which. environmentally harmful operations may be conducted and access to. these documents is crucial in enabling the public to monitor the activities. of these operations,Teething problems, While automatic access in terms of section 15 of PAIA is intended to facilitate speedy access. the fact that all of this information is not readily available on publicly accessible platforms. means that members of the public still need to request the documents from the relevant. departments even though this request does not need to be in the form of a PAIA request As. a result there are still administrative delays in processing requests for these documents This. has certainly been the experience of ATI Network members PSAM and the CER. As the DEA s section 15 notice included licences issued in terms of the Waste Act PSAM. requested on 12 May 2016 a copy of a licence pertaining to a waste management facility in. the Eastern Cape In doing so PSAM furnished the relevant contact person at the DEA with the. licence reference number and date of issue the name of the licence holder a description of. the licence and a brief background as to why it was required even though such an explanation. 5 http cer org za news victory for environmental rights department of environmental affairs makes environmental. licences automatically available, 6 http cer org za news another victory for environmental rights department of water sanitation makes water.
licences automatically available 5,ATI Network Shadow Report 2016. is not required On 13 May PSAM received acknowledgement of receipt of its request and. an indication that it would be forwarded to the relevant branch for further processing By. 29 May the record had still not been received PSAM forwarded an enquiry to the contact. person which elicited a response from another official on 31 May indicating that the record. would be forwarded on 7 June since this official was still waiting for a responsible manager. to sign the record off, In the end the licence was received on 6 June 2016 meaning that the Department took just. shy of a month to provide PSAM with this automatically available record. This has also been the experience of the CER automatically available records have been. provided but they have not been provided automatically Instead it is taking about the same. amount of time for public bodies to process requests for automatically available records as. it does to process PAIA requests It is hoped that this is merely a teething problem and that. internal procedures will be put in place to ensure speedy access to these documents The. obvious way to reduce the burden on the departments and to speed up access is to make. these documents publicly available online 7, Despite the fact that automatic access to records may not be working as well in practice. as hoped the ATI Network encourages public bodies to declare more records automatically. available without the need to submit PAIA requests Taking this step not only reduces the. administrative burden of access to information requests but also promotes a culture of. openness and transparency and removes any doubt as to whether access to these records. should be granted,Department of Mineral Resources resists trend. The Department of Mineral Resources DMR makes very little information available automatically. and also limits the categories of persons to whom it makes this information available ATI. Network members CALS and the CER wrote to the DMR on 28 September 2016 calling on it. to make copies of key mining and environmental records available automatically to the public. Access to these records is fundamental for the realisation of the rights of mining affected. communities and the promotion of transparency in the mining sector The CER and CALS. also called on the information officer of the DMR to remove all limitations relating to the. categories of persons to whom the DMR makes records automatically available and to ensure. that the following records are included without restrictions in the DMR s section 15 declaration. 1 mining and prospecting rights including mine and prospecting works programmes. 2 environmental authorisations,3 social and labour plans.
4 environmental management programmes and environmental management plans. 5 the full applications for all the rights and licences listed above and. 6 compliance inspection reports audit reports and monitoring data in respect of compliance. with the conditions of these licences, 7 The Department of Environmental Affairs has in fact created an online platform to facilitate access to all waste. management licences This platform the South African Waste Info. SHADOW REPORT 2016 Access to Information Network 369 PAIA requests were made http cer org za news victory for environmental rights department of

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