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.
The aims of the clinic are:
- To promote increased, effective use of FOI laws by obtaining information of public interest;
- To build the capacity and interest of young lawyers to file and pursue FOI requests;
- To attract university resources to support FOI work and encourage law professors to attrach and write about FOI
- To encourage professors to supervise student research on FOI implementation, as a form of FOI monitoring;
- Generate a stronger body of FOI impact litigation that can lead to further national and supra-national standard-setting.
Each clinic is to be supervised by a clinic professor, who may or may not be knowledgeable about FOI; and students are also supervised by an experienced lawyer who works with them to develop requests for information that will be useful for ODAC, and may also enlist them to help with FOI related research. Also, law professors have found that their understanding of FOI in practice is enriched by hearing real-world experiences from their students and some have been stimulated to consider research projects that they could supervise and publish.
It is proposed that the clinic should be run in the second semester of the 2010 session. Upon agreement with the University Authority to establish the clinic, it is proposed that the following itemised plans should be executed:
Pilot stage
- Establish a committee consisting of ODAC and University representatives on the implementation of the FOI Clinic.
- Syllabus and curriculum should be developed by the committee which will define the area of focus of the FOI Clinic, number of students that will be registered for the clinic etc.
- Promotional materials which will be developed by the committee. The materials should include a description of the clinic, information on access to information, a brochure about the program, etc
Implementation stage
- Execute one semester of the clinic: a target should be established in terms of how many information requests should be generated and the number of people that the clinic aims to have assisted with PAIA by the end of the semester.
- List of information requested and charts on the follow-up should be developed and updated continually.
- Evaluation of the teachers, students and participating NGOs.
- Publish a report: With the information obtained from the process mentioned above, the committee should publish a report of the experience of the set up and implementation of the clinic so that is could serve as the basis for replicating the clinic in other universities.
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