Originial letter in PDF format

2002-01-31

The Auditor-General
Office of the Auditor-General
P.O. Box 446
Pretoria
0001

Attention : S.A. Fakie

Dear Sir

Internal Appeal against Decision of the Information Officer in terms of Section 74 of the Promotion of Access to Information
Act No. 2 of 2000

We refer to your letter dated 18th January and received by us on the 21st January 2002 whereby you informed us of your decision to refuse our request for access to information.

We take cognisance of your recommendation that we should make an application to the High Court should we have sufficient grounds to disagree with your decision.

However, we advise that Section 78 (1) of the Promotion of Access to Information Act No. 2 of 2000 (the Act) stipulates that an applicant may only seek relief from a court after the internal appeal procedure provided for in Section 74 of the Act has been exhausted.

In the circumstances, please be advised that we do indeed have sufficient grounds to disagree with your decision and that we hereby lodge such an internal appeal in terms of Section 74 of the Act.

Our grounds for appeal are set out as required in the prescribed form which is attached hereto.

1. Refusal in terms of Section 45 (b) of the Act

We note, but do not accept, your statement that you "do not have the resources to go through the contents of documents". There cannot possibly be so many documents in the AG's audit files specific to CCII Systems's allegations and complaints regarding the SDPs such that the resources of the Office of the Auditor-General of the Republic of South Africa are insufficient for this unchallenging task.

Furthermore and specifically, this reason cannot possibly be justified in the case of the drafts of the Joint Investigation Team's (JIT) Report into the Strategic Defence Packages (SDPs) as there can only have been a finite number of drafts of finite length.

In any case, we do not hold the view that when the Legislature of the Republic promulgated the Promotion of Access to Information Act, that its provisions would be allowed to be frustrated on these grounds, as indeed is borne out by Section 46 (b) of the Act. Therefore, in order to remove this as a ground of refusal, we hereby tender the salary of a responsible employee from one of the big 5 firms of auditors to attend to this task.

2. Refusal in terms of Section 37 of the Act

In relation to the exemption in Section 37 of the Act which you cite, we refer you to the following provisions :

2.1     Section 37 (2) (b) stipulates that a record may not be refused if the third party concerned has consented in terms of Section 48 to its disclosure.

2.2     Sections 47 and 48, read in conjunction, require that the Information Officer considering a request for access to a record contemplated in terms of Section 37 (1), must take all reasonable steps to inform the third party of that request and to obtain the consent of that third party for disclosure.

We therefore ask you the question, did the Office of the Auditor-General take all reasonable steps as required by Section 47 (1) of the Act to seek the consent of the relevant third parties?

2.3     Section 46 (b) stipulates that despite any other provision contained in the Act, the Information Officer of a public body must grant access to a record of a body contemplated in Sections 37(1) (a) or (b) if the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question. It is our contention that, in relation to the draft reports, the public interest override provision favours the disclosure of these documents, especially in light of the repeated public utterances by yourself that no substantive changes were made to the Report of the Joint Investigation Team.

2.4     Section 28 of the Act stipulates that if a request for access is made to a public body which may or must be refused in terms of any provision of the Act, that every part of the record which does not contain any such information and that can reasonably be severed, despite any provisions of this Act, must be disclosed.

We advise that the request for the draft versions of the Joint Investigative Team Report can be reasonably severed from the request for the audit files and other correspondence. By allowing for the severability of information, it is clear that the legislature favours the prioritising of access to information.

2.5     We advise further that in terms of Section 89 of the Act, no criminal or civil liability can be attached to you for anything done in good faith in the exercise or performance of your duties.

3. Refusal in terms of Section 41(a) (sic) of the Act

In relation to your refusal in terms of Section 41(a) (sic), we refer you to the following provisions thereof :

3.1     Section 41 (1) states that the public body may refuse a request for access to a record of the body if it threatens the defence of the Republic. Firstly, we would like to point out that the wording of the section is such that the Information Officer "may" and not "must" refuse the documents.

Secondly, we contend that the request for the draft reports will not prejudice the defence of the Republic and thirdly, we note that there can be no defence-related secrets between the Office of the Auditor-General and the Office of the Public Protector.

3.2     Section 46 (b) of the Act also stipulates that, despite any other provision contained in the Act, that the Information Office of a public body must grant access to a record of a body contemplated in Sections 41 (1) (a) or (b) if the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question. It is our contention that the public interest override provision clearly favours the disclosure, at the very least, of the draft reports.

3.3     With reference to Paragraph 3.1 hereinabove, it is clear that in refusing our request for access in terms of Section 41, that no consideration was given to Section 28 which would permit the severability of documents. We re-iterate that we are not seeking documents that threaten the threaten the security of the Republic and should there be any such documents attached to the requested documents or correspondence, then we advise that we do not require such documents.

3.4     The provision in Section 89 in which no criminal or civil liability would be attached to you for anything done in good faith in the exercise or performance of your duties is also applicable here.

We find that in narrowly interpreting the aforementioned exemptions of the Promotion of Access to Information Act that were cited by you and upon which you rely, it is clear that you failed to apply your mind and/or that you exercised your discretion incorrectly as the provisions contained in and prioritised by Sections 28, 45, 46, 47 and 48 of the Act indeed favours the disclosure of information in order to foster a culture of transparency, good governance and accountability in public bodies.

In summary, we repeat our request for access to the following information held by the Office of the Auditor-General :

• Copies of each and every draft of the Joint Investigation Team's Report into the Strategic Defence Packages (SDPs).
• Copies of all documents in the audit files specific to CCII Systems's allegations and complaints, except those documents, parts of documents or annexures to documents that are relevant to the security of the Republic of South Africa.
• Copies of all documents in the audit files specific to CCII Systems's allegations and complaints, except those documents, parts of documents or annexures to documents that have been provided to the JIT under legally valid confidentiality provisions and where no authorisation has been granted by the sources of such information for its disclosure to us in terms of this request, after having made the necessary request for such disclosure to the applicable sources.

Kindly be advised that we tender the appeal fee in the amount of R50,00.

If our appeal is not successful, kindly :

• state adequate reasons for your decision
• set out the procedure for lodging an application against your decision of the relevant authority.
• the identity of the relevant authority for such an appeal

Yours faithfully

Marlene Abreu
Legal Officer

Copy :

Chairman of SCOPA, Dr Gavin Woods 
Chairman of Audit Commission, Dr Pallo Jordan 
Speaker of SA Parliament, Dr Frene Ginwala