No, you're vexatious.

Posted in Blog

By Gabriella Razzano

A refusal ground lies buried in the Promotion of Access to Information Act (PAIA) that permits public bodies to refuse a request for information if they believe it to be “manifestly frivolous or vexatious”. In using this ground for refusal, I believe a public body often reveals its own gross failings, rather than those of the requester – and we have just been exposed to such a case in point by the City of Cape Town.

ODAC have been approached by the Delft Integrated Network, a community group focused on combating social issues in the Delft area, to assist with a PAIA request refused by the City of Cape Town at both the appeal and request stage on the basis they deemed it to be ‘vexatious’. The foundation for that refusal was as follows:

“We consulted with the relevant department to whom this request relates and they advised that the records which you requested have been provided to you. According to the department, you were part of the Project Steering Committee and had access to all the information which you were requesting”.

The request was sent by a Mr Louw on behalf of the Network – he had, in his individual capacity, been a member of the Project Steering Committee (though had declined to attend some sessions when the process degenerated). So how can we best unpack the City’s reasoning? The first thing to note is that there is an obvious difference to claiming someone has records (sentence one) and saying someone has access to records (sentence two). That I have access to buying ibruprofen, doesn’t mean I have ibruprofen in my purse. Further, there is an obvious difference to a single person having access to something – as opposed to a group of people. That Mr Louw may have had an opportunity to access documents before, doesn’t mean the community of Delft are excluded from access to those documents for the rest of time. More importantly perhaps, it should be obvious that ‘access’ does not equate to ‘possession’.

When I look at the nature of the first request it’s clear to me that the request was very broad – and I think this is probably what the City is actually responding to. However, its breadth reveals another flaw – can the City legitimately argue that the requester’s had access to every single document listed? Their blanket application of the refusal to the request sheds doubt on the level to which they applied their mind to the particulars of each record sought.

And why am I unpacking the facts so cautiously? Because I think we need to be very careful about allowing this kind of refusal ground to be readily used. A recent post on a United Kingdom-based blog on public administration noted that refusing access on the basis of a request being vexatious could be an evasive measure taken by public servants to write off their responsibilities to the public and avoid complaints. This is not to say vexatious refusals are never with a basis – there is obviously a need to prevent the abuse of a progressive law to harass public agencies.

But what does frivolous or vexatious mean in the South African Act? Klaaren and Currie (2002) note that its meaning in this context is “indicating a desire to prevent misuse of the Act, an abuse of the rights granted by the Act for purposes others than those that the Act seeks to achieve”. Looking at our case then, knowledge that a requester already holds the records could potentially be envisioned as an abuse of the Act (a dicta to this was seen in a decision by the Irish Information Commissioner Mr ABK and the Eastern Health Board, Case 9901). However, it is clear from their own refusal that they are not alleging possession – they merely claim an individual within the group of applicants potentially had ‘access’. When we consider that the main motivating impetus behind the Act is to make records accessible by the public in its entirety, attempts to obtain possession for public disclosure of the information would surely never be determined as ‘vexatious’? Certainly, attempts to demonstrate that the request was manifestly vexatious would immediately be rebutted by the blanket nature of the refusal, which failed to break down all the records requested, and precisely how the office can be sure the requester’s had access to each record in and of itself.

And for me there is an even more profound problem: I suspect the City have failed to meet their duty to assist requesters as demanded by section 19. The Delft Integrated Network is a community struggling to find answers. They attempted to articulate their questions as best they could; they paid their request fees; they went through the process of following up their requests and seeking outside extra assistance; and complied fully with the requirements when they submitted their internal appeal. And they were met with a blanket, and seemingly inappropriate, refusal that implies strongly that the sole reason for refusal was that the request was simply not ‘perfect’ enough.

If this is the attitude taken by public agencies, what hope is there ever that the broader public will be able to use PAIA to request information without legal assistance? Because we are most concerned with the needs of the community, I have taken a practical decision to assist in the resubmission of a request that is a bit more ‘refined’ in the hopes of getting the information needed.  Regardless, application of the Act by agencies in a manner that focuses on form over substance is a slap in the face of the original ambitions to empower all citizens that motivated the passage of PAIA. If vexatious means causing unnecessary frustration and worry, then I think I know who was vexatious in this story – and it wasn’t the Delft Integrated Network.

Casting glaring sunshine to land rights issues in Zambia

Posted in Blog

By Mukelani Dimba

Mrs X** is a dejected woman. She spends a large part of her income each month on rent. For years she has been trying to find a plot of land from her local municipal council, so that she can build a house for herself and her children. Up until now she has not been successful. The process of land allocations for Zambians remains opaque to ordinary Zambians such as Mrs X and only those truly in the know, who have connections within local government structures and are willing to grease the palms of local government officials are able to benefit from the Zambian government's land ownership scheme. Those that manage to get a little information on how to apply are not always guaranteed an allocation. Mrs X knows this very well because after finally managing to put in her application she was told she does not qualify for an allocation, without further details regarding why she did not qualify for an allocation. The final devastating blow for her.

Even when a person is lucky enough to get an allocation that does not mean the end to their troubles. Y**, X's landlady, is one such unlucky lucky person because even though she has been allocated a plot of land upon which she has built housing structures for rental, she does not have a title deed for her piece of land and she knows all too well the risks that entails. Without a title deed all it would take for her to lose it all is for some official in the department of mines to authorise an expansion of a neighbouring mine. Or, as has happened recently, when an official in the land department sells the land to a multinational company. Whole communities have had to be moved from their communal lands following secretive land sale agreements between various agencies of the state and multinational companies. Obtaining a title deed is a slow and grinding process that takes years to complete, unless a person is willing to facilitate the process with a couple of thousand Kwacha, in which case it can be as quick as a week.

There's a scramble for land in Zambia and the poor are bearing the brunt of it.This is why ODAC has teamed with up with the Zambia Land Alliance (ZLA) to bring transparency to the issue of land rights, land use, and land management in Zambia.

Information is power, information is currency and it is clear that the lack of transparency regarding land allocation decisions is adversely affecting the poor thus further marginalizing them and trapping them in a cycle of poverty.

The ODAC-ZLA project is aimed at empowering ordinary Zambians with information needed to protect their land rights. The project firstly seeks to conscientise targeted, mostly rural, communities about their right of access to information and then how to use their information rights to better understand procedures for acquiring land for their own socio-economic advancement.  

The first part of this project entailed simplifying the Lands Act and translating it into three indigenous languages.

ODAC and ZLA are finishing production of a video on the issue of accent information and land rights. The video will be launched at the end of April 2015.

*Dimba is the Executive Director at ODAC-Transparency in Action

** Not her real name, name withheld so as not to jeopardize her further dealings with the relevant government agencies

Smoke and mirrors - does open data consensus stand up to scrutiny

Posted in Blog

By Alison Tilley

Open data is like motherhood and apple pie. Everybody thinks it’s a good idea. I am suspicious when everyone is in favour of something. Especially when they have conflicting views of how the world works, there is something going on there which needs consideration.

So when governments, and business, and social justice advocates are all in favour of open data, what is going on? Well, allegedly, a revolution. The information that exists in the world is growing exponentially, and with it the possibilities of profound change. We all want change, we say – to change is to improve, and to perfect is to change often.

But what do we all want? Are our goals the same? If they are, that seems so unlikely as to be incredible. Business usually argues for stability. You can make money in any situation, they say, provided you can predict what will happen. Yet here business is apparently in favour of big data, the internet of things, disruption. Governments don’t generally want change. They want voters to vote for them, and tweak systems to try and get votes, but the only way governments change profoundly is when they are overthrown, and even then the new state often looks strangely like the old. And yet many seem to be in  the same corner as social justice advocates, arguing for open data.

Classical neo liberals thinks open data delivers information symmetry, and thus better functioning markets. A function of the explosion in computer processing power is the information that is available and that we think we can see patterns in. That’s money right there – information asymmetry, which companies can exploit. So open data gives us both symmetry and asymmetry?

If it gives us symmetry, then that theoretically gives us more equal power. That is the classical ‘information is power’ argument. If I know what you know, we are equal in that respect, and if you are the state and I am a citizen then I am more powerful than I was, and I can hold you accountable. Or so the theory goes. So good governance advocates are in favor of open data. Governments are also in favour of open data, because they say it helps deliver better services for less money.

Politics makes for strange bedfellows, they say, and it may be indeed that we are all in favor of open data.  But perhaps before we conclude that too quickly, let us consider a little more closely.

We probably agree on a definition of open data.

The question of what open data delivers is perhaps something we do not agree on. That is because what open data delivers in theory is quite different to what it delivers in practice. What data is open to whom? Open data evangelists would say, default open – that is information is made automatically available, as a matter of law, policy and practice, as open data. Only very limited categories of information are not available.

Well yes, but whose information? Government’s? Or big business? Does Google have to make its data open by default? Or Apple? No, wait, says business. Trade secrets, copyright, research information, that is our business model. We can’t operate if we don’t keep secrets.

Government information? Well yes, says government. But not national security data, or data which relates to international relations, or tax or, even in the case of the Chinese, budgets. Those should not be open data. We need those secrets.

Even data evangelists are a bit more wary of open data now. In a post Snowden era, the notion of a state which can collect data on you anywhere at any time, and apparently does, is suddenly not so attractive. So there are the privacy concerns, and the issues around confidentiality. Ontario’s privacy commissioner discovered last year that the mental-health information of some Canadians is accessible to the FBI and U.S. Customs and Border Patrol.

Some Ontario police services routinely uploaded attempted suicide calls to the Canadian Police Information Centre (CPIC), to which U.S. border guards and the FBI have access. Not so keen on open data now, are we? We all need secrets.

So the devil is in the detail. My open data is your classified data – your private data is my business model. So, like applehood and mother pie, we agree. Until we get down to what is available to who and when.

Release crime data, by police station, every month, says the Khayelitsha Commission of Enquiry in Cape Town, in South Africa. That will help build trust in the police. Once a year, says the South African Police Service, and never at police station level, only in aggregated form. Otherwise criminals will use the information for intelligence purposes. Yes, that is really their argument.

We want land audits of who owns what land, say land activists. No, says the state – we aren’t going to give you the information that would trigger land invasions. Information about the nuclear power framework agreements South Africa has entered into with Russia? Hell, no, says the Department of Energy. The release of the framework agreement would compromise “sensitive negotiations”. The framework agreement was found to be available in Russian on a web. So whose sensitivities are we compromising?

So what can you have? The budget, says the government. What about the bids put in by different departments to Treasury, so you can compare what a department asked for, and what was allocated? Well, no. Not that.

Can I have the right to be forgotten? Can I require that search engines delete my data? Yes, in some jurisdictions. In others, that’s a violation of the right to a free press, and freedom of speech.

Suddenly the practice as to who will give what to whom and when looks very different from the words that we all agree on. That does not begin to deal with the questions of what we understand all this data to mean in the first place.

The phrase, ‘there is no such thing as raw data, but only cooked data’, is apposite. You can, as Code4SA did, map all the marriages in South Africa, and find some very interesting patterns. You could potentially even draw legislative, policy, business and advocacy decisions from that. But that’s only marriages between men and women, registered, and conducted by a marriage officer. No civil unions, customary marriages, domestic partnerships, Muslim marriages, Hindu marriages, or a myriad of other relationships that don’t tick that box. So we have a fundamental agreement about what constitutes a marriage? Clearly not. So when we have data that tells us about marriage, we must understand that it ‘cooked’ data, not ‘raw’ data. It assumes a range of parameters about what marriage is, which are not parameters that are even legally sound. Let alone culturally agreed.

So what does open data really mean? Whose data? When? How? These are some of the issues that we need to get to grips with if we are to do more than agree on generalities. A false consensus may give an appearance of accord, but a false accord is not a basis for a revolution.

OGP Midterm Self Assessment

Posted in Blog

 

The Department of Public Services and Administration have kindly distributed their draft mid-term self assessment report for comment. The assessment seeks to reflect on progress made in relation to the South African government's commitments. The Department have noted their interest in receiving feedback on the draft assessment.

Comments can be distributed directly to the Department of Public Services and Administration's Mabaeng Dlamini at This email address is being protected from spambots. You need JavaScript enabled to view it. as soon as possible.

Background on the Open Government Partnership
The Open Government Partnership (OGP) is a global effort for improving governance. South Africa was a founding member of the OGP, joining the partnership in 2011. It is a multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. In the spirit of multi-stakeholder collaboration, OGP is overseen by a steering committee of governments and civil society organisations. You can visit their website, with access to all the main resources, here.