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Namibia: The right of access to information vs the right to privacy – Considering the impending promulgation of the Access to Information Act

8 September 2023
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Overview

  • The Access to Information Act 8 of 2022 (Act), was passed by Parliament and signed by the President of the Republic of Namibia on 29 November 2022, but has however, not yet been brought into force.
  • The Act was fashioned to promote the right of access to information held by both public and private entities in a manner that facilitates transparency, accountability and good governance.
  • This article highlights the more imminent implications of the Act against the backdrop of information held by public entities.

The Access to Information Act 8 of 2022 (Act), was passed by Parliament and signed by the President of the Republic of Namibia on 29 November 2022, but has however, not yet been brought into force.

Although not having taken effect in Namibia, the concept of ‘access to information held by public entities’ has become undeniably prevalent, particularly after the South African Constitutional Court Judgment of Arene Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Services and Others handed down on 30 May 2023.

However, unlike the South African Promotion of Access to Information Act (PAIA) having its roots in the South African Constitution, the Namibian version is arguably premised on the right to freedom of expression enshrined in Article 21 of the Namibian Constitution.

This article highlights the more imminent implications of the Act against the backdrop of information held by public entities.

The Access to Information Act

The Act was fashioned to promote the right of access to information held by both public and private entities in a manner that facilitates transparency, accountability and good governance. In pursuit of this ultimate endeavour, the legislature stipulates in section 3 of the Act that when a conflict arises between the Act and any other statute, that statute containing provisions more favourable than that of the Act will prevail.

As aptly described by Roberts in Betekenis en Grondslae van die Reg op Toegang tot Inligting, the rationale behind the right of access to information can be considered as follows: ‘The right of access to information is crucial in preventing or reducing arbitrary conduct and in promoting administrative justice. It comprises, inter alia, that an individual will be informed in advance about policy and procedures and that all fact and issues affecting a party are made available so that the party may explain his or her point of view… One of the most important consequences of providing information on the public’s rights, freedoms and interests, is that it increases confidence in the administrative process and reduces negative perceptions of the public sector.’ [writer’s translation].

The Act therefore requires that the President of Namibia appoint an independent and impartial Information Commissioner subject, of course, to the qualifications and disqualifications set out in sections 7 and 8, respectively.

After such an appointment, the Information Commissioner shall have the appropriate powers and functions as contained in section 9 of the Act, which include, but are not limited to, the entering and searching of any premises; demanding the production of information; and instituting proceedings in his or her own name in a competent court to enforce these powers if deemed necessary.

Public entity obligations

When taking effect, the Act would require each public entity to appoint, within its organisation, a designated information officer that shall be an independent and competent individual who shall be bestowed the powers and functions to, amongst others, consider and grant or refuse requests for access to information, producing, keeping, organising and managing of information, proactively disclose information and any other function contained in part 5 of the Act.

Additionally, public entities would further be required to submit to the Information Commissioner an implementation plan within 12 months of the commencement of the Act. This plan must set out its intended operational strategy to give effect to the obligations of the public entity under the Act and the processes, mechanisms, and policies to facilitate and enhance the implementation of the Act.

Request for and access to information and the consideration thereof

The Act grants any person an enforceable right to access information held by a public body.

Furthermore, the Act expressly stipulates that nothing contained in the Act shall prevent a public entity from publishing or granting access to information, including such information that may be exempt from disclosure under part 9 of the Act, subject to it doing so without infringing on any rights of the persons to whom the information relates to, or if it is required, to disclose such information under the Act or any other law.

In terms of section 35(4) of the Act, if the information so requested is readily available, the designated information officer is obligated to immediately provide such information to the requester and to keep a record of such request and the information officer’s response.

When a person requests access to information, they are required to provide their reasons(s) for such a request. Information officers to whom a request has been submitted, are required to consider the request and, within 21 days from the day on which the request was received, produce a response in either granting or refusing the request. If the request was made in relation to safeguarding the life or liberty of a person, the information officer is required to respond to the request within 48 hours of receiving the request.

When a request for access to information relating to a third party is requested, such a third party has the right to be notified of the request and can either consent thereto or refuse it. The information officer must, within seven days from the date of receipt of the request, take reasonable measures to notify such third party accordingly.

Public interest and information exempted

In terms of section 64 of the Act, an information officer is obligated to grant access to requested information if the disclosure thereof would reveal evidence of:

  • corrupt activities or any serious contravention of law;
  • an imminent and serious public health and safety risk; and/or
  • an imminent and serious environmental risk.

This is of course subject to the fact that the interest of the public associated therewith, undeniably, outweighs the resulting harm to the interest protected under the relevant exemption, should the disclosure of the information be granted. An information officer is precluded from granting access to information that would:

  • involve the disclosure of personal information about a natural third party, including a deceased individual;
  • constitute a breach of duty of confidence owed to a third party in terms of an agreement; and/or
  • contain information that was supplied in confidence by a third party, the disclosure of which could reasonably be expected to prejudice the future supply of similar information or any information from the same source, and it is in the public interest that similar information or information from the same source should continue to be supplied.

Based on the above exposition, a reasonable deduction may be made that the right to privacy may only be infringed on the premise that the disclosure of personal information falls within protected public interest. Additionally, in respect of commercial and economic information of third parties, the information officer shall disclose the information if:

  • the information would:
    • facilitate accountability and transparency of decisions taken by the information holder; or
    • reveal misconduct or deception.
  • the information relates to the expenditure of public funds; and/or
  • the information falls within the public domain.

The inescapable, ever-present factor associated with the disclosure of personal, commercial and/or economic information, is public interest, which means, the right to privacy may, for purposes of this Act, only be disregarded on the premise that it would benefit the public as a whole and not only a particular individual or group of individuals.

Shortcomings

One of the shortcomings of the Act is the fact that it bestows a discretionary power upon the information officer to either grant or refuse a request for access to information without a predetermined guideline against which the officer is required to measure their discretion and determination. This creates the possibility of an abuse of such discretionary power on the premises of objectivity, ultimately delaying the exercise of justice.

The Act merely stipulates general circumstances that must be taken into consideration in the exercise of the information officer’s duties. Additionally, the Act does not provide for circumstances that justify urgent requests that may be made directly to the Information Commissioner.

Instead, a somewhat lengthy procedure must be followed. Moreover, a judicial review application regarding a refused request would only be permitted once all internal review and appeal processes has been exhausted. (For example, an application for internal review may take up to five days before a decision is required to be made; an appeal of the decision taken on internal review may take up to 14 days before a decision is required to be made; and only after a decision in the appeal has been made, may a person apply to the High Court of Namibia for judicial review).