Public Rights of Access to Official Records in South Africa

Home , Anton Lubowski, Civil Cooperation Bureau, Matthew Goniwe

680 American Archivist / Vol. 57 / Fall 1994

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Toward a Culture of Transparency: Public Rights of Access to Official Records in South Africa

VERNE HARRIS AND CHRISTOPHER MERRETT

Abstract: This essay's point of departure is that the public's right of access to official records and its right to place the processes of government under scrutiny are defining characteristics of democracy. An examination of official secrecy in apartheid South Africa establishes the context for an analysis of the country's restrictions on public access to official records at the dawn of a democratic era. While it is conceded that governments have a legitimate right to restrict access to certain information, it is argued that the restrictions in South Africa are weighted unreasonably against the public. At the same time, paradoxically, these restrictions do not provide adequate protection of certain legitimate interests—for instance, of individuals' personal privacy. Proposals are made for redefining the parameters of official secrecy.

About the author: Verne Harris is a deputy director in South Africa's State Archives Service, with responsibility for the Service's repositories and records management components in the Free State and Natal provinces. He has been a member of the South African Society of Archivists' National Committee since 1988. Christopher Merrett is deputy university librarian, University of Natal, Pietermaritzburg. In 1991 he was awarded the American Library Association's Immroth Memorial Prize for Intellectual Free- dom. His book A Culture of Censorship: Secrecy and Intellectual Repression in South Africa was published in November 1994. This article is derived from separate papers delivered by the joint authors: "Towards a Culture of Transparency,'' given by Verne Harris at the South African Society of Archivists (Transvaal Branch) seminar "Archives accessibility: a Limited Right?," Pretoria, 11 November 1993; and "What's Public is Propaganda, What's Secret is Serious: Official Secrecy and Freedom of Infor- mation in South Africa,'' presented by Christopher Merrett at the Annual General Meeting of the Western Cape branch of the Library and Information Workers' Organisation, Cape Town, 7 October 1993. The final draft text was prepared during the run-up to the April 1994 general election. It therefore reflects the position that obtained immediately before the introduction of South Africa's new interim constitution. The views expressed in this article are the personal views of the two authors and do not neces- sarily reflect the standpoint or policy of the institutions for which they work. Toward a Culture of Transparency 681

"Open government is a contradiction in Politicians and public servants are, un- terms. You can have openness. Or you can derstandably, not comfortable with the no- have government. You can't have both."1 tion of transparency, preferring to operate This was the opinion of the archetypal Brit- beyond the glare of public scrutiny. In

ish civil service mandarin, Sir Humphrey, apartheid South Africa this was especially Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 in the British Broadcasting Corporation apparent, with government and the opera- (BBC) TV comedy series "Yes Minis- tions of its bureaucracies being cloaked in ter."2 One of that series' many virtues was secrecy. Official secrecy (also known as the humor it created out of reality; and to statutory censorship) was framed in legis- show that it was well based in real events, lation that controlled vast areas of public one need go no further than a circular life and gravely inhibited the press from about greater openness distributed by Brit- comprehensive reporting of national af- ish Premier Margaret Thatcher's private fairs. This is not to say that the restrictions secretary in 1979—which is classified and on public access to official records were, embargoed until 2010. Secrecy is funda- and still are, exceptional. Indeed, in an in- mental to the British system of govern- ternational context, South Africa compares ment, providing a model we believe to be reasonably favorably. But it is to say that antithetical to South Africa's requirements. these restrictions were manipulated to secure an extraordinary degree of opacity in Background government and that South Africa's national information system became grossly If South Africa is ever to become a par- distorted to the benefit of government ticipative democracy it will require first, a propaganda in an attempt to preserve the large number of educated people, and sec- power of a white elite and its allies. And ond, information. Without background it is to say that as we move toward a de- knowledge about issues and the way gov- mocracy it is crucial to remember that the ernment has tackled and intends to tackle public's right of access to official records, them, the ability of the electorate to make and its right to place the processes of gov- informed and intelligent decisions, espe- ernment under scrutiny, are defining char- cially in an increasingly technologically acteristics of democracy. The more trans- based society, is limited. Knowledge does parent government is, the more vigorous is not equal power, as the cliche would have democracy. it, but power cannot be exercised without From the mid-1950s until the late 1980s, it. Information is essential to efficient and information on certain topics became dif- thereby effective democracy, which is why ficult, and even dangerous, to acquire. Real the concept of the right to know is recog- debate on vital issues was hampered by nized as fundamental in democratic socie- both a dearth of information and punitive ties. Informed judgments and choices are action by the government against dissent- attributes of a responsible citizenry. ing opinion.3 To varying degrees, information about the following was circum- scribed: • Business, foreign trade, and sanctions 'Quoted by Mark Fisher, Labour MP for Stoke Central, introducing the Second Reading of his Right to Know Bill to the British House of Commons, 19 February 1993. 3This was compounded by security and emergency 2"Yes Minister" was reputed to be Margaret legislation that restricted information on civil unrest Thatcher's favorite television program. If true, this and protest action, as well as by the views of the shows either that she has a well-developed sense of liberation movements and any organizations deemed humor or none whatsoever. to be "communist." 682 American Archivist / Fall 1994

• Capital punishment, especially racial industries? Who lost the country $30 mil- bias in sentencing lion in 1979 by paying twice for a stolen • Conscientious objection to military cargo of oil from the tanker Saleml Why service did the plane of the president of Mozam-

• Corruption and cases of fraud bique, Samora Machel, crash just inside Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 • Detention without trial and the treat- South Africa in October 1986? Was the ment of detainees South African Airways plane Helderberg • Liberation movements and their activ- carrying volatile material for Armscor, ities and policies South Africa's armaments corporation, in • Mental health institutions defiance of international air traffic regula- • Military incursions into Angola and tions, when it crashed off Mauritius in repression in Namibia 1987? Who was responsible for the deaths 4 • Nuclear power and the development of numerous anti-apartheid activists? of nuclear weapons These are all legitimate questions of public • Oil supplies and reserves interest to which we have a right to expect • Police involvement in repression in a comprehensive answer. In each case, our South Africa knowledge is deficient, hampered by offi- • Prisons and the treatment of prisoners cial secrecy. • Territorial consolidation of black homelands (bantustans) Official Secrecy and the "New" South • Weapons procurement and develop- Africa ment The situation has improved slightly since These are all topics about which voters 1990 without major changes to legislation. and taxpayers have a right to be well in- The exceptionally high level of secrecy be- formed. Current legislation restricting ac- gan to break down as government confi- cess to relevant information can be dence waned and investigative journalism classified very broadly as follows: flourished, reinforced by lessons learned by • Acts that control official information the democratic movement during the State (e.g., Archives Act, Protection of In- of Emergency, 1985-1990. The Weekly formation Act, Statistics Act) Mail, Vrye Weekblad, and New/Sunday Na- • Acts that restrict information from all tion, for instance, published exposes on sources on specific topics (e.g., Nu- certain aspects of prisons; psychiatric hos- clear Energy Act, Petroleum Products pitals; the activities of hit squads and "spe- Act) cial forces"; arms supplies to Rwanda, Iraq • Acts that regulate administrative and and Israel; oil supplies; and the Inkathagate legal functions (e.g., Criminal Proce- funding scandal.5 The authorities have dure Act, Disclosure of Foreign Fund- threatened legal action in some cases but ing Act, Inquests Act) seem less sure of themselves than they • Other acts extending government were a few years ago. From this, it is pos- power (e.g., Indemnity Act, Internal sible to draw the lesson that watertight con- Security Act, Publications Act) Did South Africa explode a nuclear de- "Some of the more notable assassinations involved vice in the southern Indian Ocean on 22 Richard Turner (Durban, 1978), Matthew Goniwe and September 1979, and if so, who else was three companions from Cradock (Eastern Cape, involved? Which countries have trans- 1985), and Anton Lubowski (Windhoek, 1989). 5 ferred technology to South Africa in the This involved the covert funding of Inkatha, the governing party in the KwaZulu homeland, through course of developing its arms and nuclear the security police. Toward a Culture of Transparency 683

trol in the sphere of information requires tee on Land Reform (ACLA)8 has been es- confidence on the part of the authorities. pecially critical of the secrecy involved. A During 1992, laws about the police and particularly worrying current issue is that prisons were relaxed; and Reg Rumney, concerning South Africa's nuclear weap- writing in the Weekly Mail about oil sup- ons. In 1991 South Africa signed the Nu- Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 plies, remarked that he was able to work, clear Non-Proliferation Treaty, which for the first time in years, without the fear opened up its stockpile to inspection by the of "the Special Branch paying visits to re- International Atomic Energy Authority searchers who asked too many questions (IAEA). The IAEA fears that because the about the ... industry."6 nuclear program was secret and unmoni- However, Max du Preez, editor of Vrye tored for so long, weapons-grade material Weekblad, was convicted and fined under is undocumented. U.S. government sources the Protection of Information Act in 1990 suggest that the South African authorities for publishing news that an institute at- have shredded documents concerning the tached to Stellenbosch University acted as nuclear program and may have fabricated a conduit for information to the National records showing how much enriched ura- Intelligence Service. The same act was in- nium it produced. There is a major worry voked in a fraud case, which revealed the that material unaccounted for may fall into fact that the Civil Cooperation Bureau the wrong hands. Hidden from the public (CCB, a covert operations unit of the South was the fact that South Africa had devel- African Defence Force) was interfering in oped battlefield nuclear weapons that could the affairs of another state. No further ev- be launched from Armscor's G5 and G6 idence about this interference was allowed guns, capable of projecting a 2 kiloton war- in court. In November 1990, the trial of a head 42 kilometers. Another fact that was conscientious objector, Michael Graaf, was carefully concealed was the amount of in- hurriedly adjourned when he revealed de- ternational assistance given to this country. tails about security force actions in Na- The image of a robust, defiant economy be- mibia as part of his evidence, thus coming self-sufficient in armaments was infringing the Defence Act. As Mathew largely propaganda; enormous amounts of Blatchford remarked, "The armed forces assistance were provided by Germany, the operate in secret, a secrecy protected by a United States, France, Canada, and Israel.9 huge number of interlocking statutes. . . . Perhaps the most blatant potential use of Without this concealment the South Afri- secrecy is found in the Further Indemnity can public might have been revolted by Act of 1992, which provides for a National what the armed forces have done."7 Indemnity Council to meet in secret to de- Secrecy has been a worrying and prom- inent feature of the "new" South Africa. Commentary on the Conference for a Dem- 8An editorial in Farmer's Weekly complained that ocratic South Africa (CODESA) in 1992 membership of ACLA was based on political appoint- and on the work of the Advisory Commit- ments and that ACLA's recommendations were secret. It argued that the judicial process should be used to settle land claims in open courts so that justice could be seen to be done. 'S. Coll and P. Taylor, "Is Pretoria Being Honest on Nuclear Weapons?" Guardian Weekly 148 (13), 26 March 1993, 18; S. Laufer and A. Gavshon, "The Real Reasons for SA's Nukes." Weekly Mail 9 (12), 6R. Rumney, "A Little Light on the Oil Industry" 26 March 1993, 3; P. Van Niekerk, "Whose Infor- Weekly Mail 9 (23), 11 June 1993, 21. mation is It Anyway?" Weekly Mail 9 (12), 26 March ''Democracy in Action October-November 1990, 1993, 4; Guardian Weekly 148 (14), 2 April 1993; 15. Southscan 8 (13), 14 May 1993, 138. 684 American Archivist / Fall 1994

cide who should receive indemnity for po- turning the legal opinion. All the parties litical crimes. Evidence and documentation involved agreed that classified records are strictly confidential (Section 10 of the qualify as archives in terms of the Archives Act). This measure was rejected even by Act and that their destruction can be au- South Africa's unrepresentative, pre-April thorized only by the director of archives. Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 1994 parliament and forced through via the The long-term survival of security police appointed President's Council. Enforced files is an issue that has been addressed fre- amnesia about the past is no beginning for quently. At the Library and Information a society requiring openness.10 Hilda Bern- Workers (LIWO) Conference held in Cape stein writes evocatively in a recent essay Town in 1992, Albie Sachs,—lawyer, for- on South Africa's history as one of "torn mer political detainee, and adviser to the and missing pages."11 We need to com- African National Congress—pointed out plete some of those pages by finding out that these files constitute the most compre- who did what to whom and why: reconcil- hensive biographical dictionary in South iation requires truth and justice. South Af- Africa. Some would say, knowing the rican journalist Philip van Niekerk argues amount of inaccurate information they con- persuasively that "there are matters of hon- tain and something about the experience of our, of setting the record straight, of mak- revealing police files in East Germany,13 ing sense of the sad history of our country that their continued confidentiality is per- that still require the truth."12 haps a good thing. There is also the fear Another tool (and, ultimately, the most that documents seized from anti-apartheid effective) in securing enforced amnesia is organizations by the security police over the deliberate destruction of official re- the years have been destroyed. cords. Numerous cases of such action have There are thus two main reasons why been documented and many more alleged South Africans should be concerned about since the late 1980s. They point to a wide- freedom of information and its relation to spread and systematic endeavor to elimi- a future democratic society. First, South nate incriminating material. Perhaps the Africans must reclaim their history. Any most blatant example surfaced in 1993 nation that has an incomplete understand- when the National Intelligence Service ing of its past rests on shaky foundations (NIS) advised central government depart- and there are parallels here with the ments to destroy certain classified records, German experience after the Second World especially those concerning the work of the War. Second, government must be made National Security Management System accountable, especially in the light of the (NSMS). The action rested on a state-gen- historically repressive role of the South Af- erated legal opinion that exempted classi- rican state. In view of this, South Africa fied records from the operation of the needs to develop freedom of information Archives Act. Lawyers for Human Rights rights, law, and practice concentrating not contested the validity of the action in a Su- just on the relation between government preme Court application, which resulted in an out-of-court settlement effectively over- l3People discovered that their spouses or children informed on them, information they might have been better without. In South Africa there is also the dis- 10C. E. Merrett, "Amnesia by Decree," Index on tinct possibility that false information supplied to the Censorship 22 (5-6) 1993, 21-22. police out of malice or ignorance is now accepted as "H. Bernstein, "Discovering Exiles," Southern Af- truth and that the reputations of honorable people will rican Review of Books 5(4) (July/August 1993): 12. be sullied forever. The irony of freedom of informa- I2P. Van Niekerk, "The Riddle of the Red Her- tion achieving the ends of a now disgraced and dis- rings," Weekly Mail 9 (34), 27 August 1993, 27. banded security police would be complete. Toward a Culture of Transparency 685

and individual, as in some countries,14 but questioning. One of the speakers in the on redressing socioeconomic inequities as freedom of information debate in the Brit- well. ish House of Commons in February 1993 described secrecy as a "corrosive dis- ease." Philip van Niekerk has made the

Transparent Government: Principles, Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 Methods and an Archival Perspective15 telling point that the litmus test of any political movement's commitment to society It is widely accepted that governments is its policy on freedom of speech and in- have a legitimate right on behalf of the cit- formation;16 and Tony Heard (a former ed- izenry as a whole to restrict access to cer- itor of the Cape Times) quite correctly tain information. The parameters of this argues that "deceit, secrecy and obfusca- right need not be, however, as wide as tion have been the norms for four decades" most governments would like us to believe. and points to the danger of' 'trip switching Certainly the South African government's from one sterile era of conformity to an- systematic use of secrecy laws in the apart- other."17 heid era is insupportable—a use meant to Official secrecy will not be reduced to confuse the security of the state with the reasonable proportions by legislative re- protection of party political and other sec- form alone: for instance, by repealing stat- tional interests, and to cover up human utory censorship clauses embedded in a rights abuses, corruption, and maladminis- multiplicity of laws and loosening the Pro- tration. In a real sense the state became tection of Information Act. The right to in- dedicated to secrecy, and dissent was formation must be entrenched in a consti- equated with treason. Transforming official tution or Bill of Rights guaranteed by an secrecy by both defining its legitimate par- independent judiciary. A climate of greater ameters in a democracy and providing the openness can be assured in the long term instruments for testing its validity in spe- only by changes in the attitudes of individ- cific instances will be one of the major uals and groups and by a radical alteration challenges facing postapartheid South Af- of the national ethos. South Africans must rica. become less deferential to those with po- The health of a nation is dependent upon litical and economic power, more cynical a good measure of dissent and unfettered about their motives, and more ready to challenge them, if necessary, in imagina- tive ways. "In Australia, 28,247 freedom of information (FOI) This is embodied in calls for a strong requests were received in 1991—92, at a cost of SA12.7 million. Full-time equivalent staff employed and resilient civil society independent of on FOI matters were 203. Most of the requests (92%) government, in which trade unions, the concerned veterans' affairs, social security, taxation, churches, the press, universities, the pro- immigration, and local government, and ethnic affairs. Other issues (about 6%) included education, housing, fessions, and librarians and information defense, police, and foreign affairs. Only 4 percent of workers act as society's watchdogs in such requests were refused entirely, and 19 percent in part matters. Certainly there can be no such (Australia. Attorney-General's Department. Freedom of Information Act, 1982. Annual report, 1991-1992. freedom without a vigorous, pluralistic, Canberra: Australian Government Publishing Service, free press with high standards of journal- 1992). 15Little has been written on the topic of freedom of information in South Africa. See, however, M. Rob- ertson, (ed.). Human Rights for South Africans (Cape 16P. Van Niekerk, "Banging the Rights Drum (But Town: OUP, 1991), 131-7; A. Sachs, Protecting Hu- the Sound Jars)." Weekly Mail 9 (9), 5 March 1993, man Rights in a New South Africa (Cape Town: OUP, 6. 1990), 52, 145; A. Sachs, Advancing Human Rights "A. Heard, "Honesty Will Be the Government's in South Africa (Cape Town: OUP, 1992), 37, 213. Best Policy" Weekly Mail 9 (31), 6 August 1993, 36. 686 American Archivist / Fall 1994

ism, especially in the field of investigative uation can illustrate. A student researching reporting. This is a unifying issue, which the social history of Soweto requests per- should appeal also to conservative ele- mission to consult a hundred files. Half of ments in society as it has potential for more these files fall within the "closed period" efficient government, greater accountabil- as defined by the Archives Act, and they Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 ity, and a higher quality of decision mak- have to be withheld until the director of ing. archives has cleared them for access on the It is the authors' contention that archival basis of a thorough examination of their law and practice hold the key to some of contents. Guidelines are applied, and three the issues raised above. The Archives Act, of the files, coincidentally all dated 1977, after all, lays down the legal framework for present difficulties. One is a South African public rights of access to official records. Police file containing names and addresses Until recently, South African archivists, in of police informers: providing access to it both professional debate and practice, could reasonably be expected to endanger tended to identify the making available of the lives or physical safety of these people. records as just one of many archival func- The second file is that of a government tions.18At last, however, there appears to be Commission of Inquiry into violence, consensus among archivists in South Af- which contains evidence submitted to it by rica that the use of archives is the goal of residents of Soweto on condition that their all their endeavor. In its 1993 Professional names not be made public. Would making Code, the South African Society of Archi- the file available to the student constitute a vists, for example, begins a definition of breach of confidence and/or endanger the the archival mission as follows: "The ar- witnesses' physical safety? The third file chivist is responsible for ensuring the documents Department of Manpower serv- availability and use of permanently valua- ices to persons with disabilities in Soweto, ble archives by identification, acquisition, and it contains intelligence tests, psycho- description and preservation."19 This im- logical profiles, and other confidential mat- plies a powerful imperative to provide op- ter relating to individuals. Providing access timum access to archives, something to it would involve an infringement of elaborated elsewhere in the Professional these people's right to privacy. The rec- Code.20 However, in striving to meet this ommendation, a hard but straightforward imperative, archivists are constrained by a one, is that access to all three files be de- range of often conflicting rights and inter- nied. But what if another researcher re- ests: as the Professional Code goes on to quests access to these files in twenty years' warn in the remainder of its mission state- time, when they no longer fall within the ment, ' 'Accountability to the archives cre- closed period? Legally there will be no ator, employer and user should shape the constraint on access, but, we would submit, performance of these tasks." it is unclear whether by then the balance Archivists clearly do not operate in a of rights and interests will in reality have professional vacuum, as a hypothetical sit- shifted in favor of the researcher. Archivists have a professional obligation to ensure optimum access to the archives T8V. Harris, "Community Resource or Scholars' in their custody. This is especially true of Domain? Archival Public Programming and the User as a Factor in Shaping Archival Theory and Prac- public archivists, for most of their holdings tice," SA Archives Journal 35 (1993): Introduction, are public records. As already suggested, 5. one of the critical gauges of democracy is "South African Society of Archivists. Professional Code for South African Archivists 1993, par. 2. the degree to which the public's right of 20Ibid., paras 4.4 to 4.6. access to such records is recognized. Nev- Toward a Culture of Transparency 687

ertheless, there are legitimate limitations on senior administrative officials. Moreover, this right. The remainder of this article ex- the power to grant this privilege is circum- plores the current parameters of this right scribed by a range of legislation containing and ways in which those parameters might secrecy clauses, notably the Protection of be revised. Information Act (mentioned earlier). On Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 the other hand, there is legislation that se- Right of Access to Official Records in cures the right of access to specific cate- South Africa: The Parameters gories of record in state offices—for instance, to deceased estate files in the cus- Excluded from this discussion are South tody of Masters of the Supreme Court— Africa's various "independent" and "self- but the number of record categories cov- governing" homelands, whose relevant ered by such legislation is insignificant. legislation and administrative practice war- Before turning to the position in State rant a study of their own. Also excluded Archives Service repositories, two classes are the numerous public services that have of state office deserve special mention. been privatized in recent years. Suffice it First, the so-called offices of record are de- to say that, while they are free to determine fined as offices ' 'responsible for documents access provisions for records postdating which require special treatment in order to privatization, their preprivatisation records ensure that the authenticity and legality of are subject to the measures described be- the contents cannot be questioned."22 low. These documents are exempt from the Ar- Official records are kept either in the chives Act and are in the custody of insti- state office that has generated or inherited tutions such as Parliament, the Registrar of them or in a State Archives Service repos- Deeds, and the Registrar of Births, Mar- itory. The fundamental guideline for public riages, and Deaths. Some of them are gov- access to records in state offices is laid erned by legislation providing for public down in the Archives Act: access to their records, but others are not. A second atypical class of state office is Subject to provisions of any other the South African Defence Force (SADF). law no person shall have access to Many countries recognize the particularly any archives in a government office sensitive nature of military records and a or an office of a local authority: pro- need for longer-term confidentiality. In vided that the head of such office South Africa, the Archives Act allows for may, in his discretion and on such a separate SADF-controlled archives re- conditions as he may determine, but pository and makes access to SADF ar- subject to the directions of the Min- chives dependent upon approval from the ister [of National Education] and the minister of national education acting in provisions of this Act and any other consultation with the minister of defence.23 law, authorize any person to have ac- 21 In effect, the public enjoys no right of access to such archives. cess whatever to military archives, no mat- ter what their age. A person wishing to Public access to the vast majority of of- consult records related to the First World ficial records in state offices, whatever the War is as dependent upon the discretionary age of the records, is a privilege granted by

"Archives Act (no. 6 of 1962, as amended) Section 22State Archives Service, Handbook (Pretoria: State 9(6). The act's definition of archives embraces all re- Archives Service, 1991), 15:35. cords, both current and noncurrent. 21'Archives Act, Section 9(7). 688 American Archivist / Fall 1994

power of the two ministers' delegated of- and to close access to the post-1910 re- ficials as someone researching the 1975 in- cords of a further four (Executive Council, vasion of Angola. Access to classified Prime Minister, Foreign Affairs, and Infor- records is dependent on the successful ne- mation). These restrictions were lifted in gotiation of a security clearance process, 1991, and in practice constituted only a mi- Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 which can take anything between six nor infringement of public access to the re- weeks and six months.24 cords concerned. Between 1980 and 1990, The Archives Act requires that offices requests for permission to consult 2,381 subject to it transfer their permanently val- items in the archives of these offices were uable records to a repository of the State received, and access was denied to only 9 Archives Service when the records reach items. Moreover, it should be noted that thirty years of age, unless the minister of this case was exceptional: extended closure national education authorizes extended re- is applied rarely and, as far as can be as- tention.25 Such extended retention has been certained, in all other cases with due regard authorized in numerous cases, always on for the interests of all parties concerned. the grounds that the records concerned Nevertheless, it does illustrate that it is im- have longer-term (sometimes indefinite) perative for the grounds on which public administrative value to the state office that policy restrictions can be applied to be es- has custody of them. Examples of this type tablished in law. of record are contracts, agreements, maps, Not all records in repositories of the and plans. While there is little doubt that State Archives Service are older than thirty the extended retention arrangement is ap- years. Offices subject to the Archives Act propriate in these cases, it does mean that, may place records in repositories before the for as long as the records remain outside obligatory transfer point is reached. Public the custody of the State Archives Service, access to such records is restricted by the no right of access to them is enjoyed by thirty-year closed period applicable to all the public. official records in Archives Service repos- Public access to records older than thirty itories.27 Access to them can be secured years in an Archives Service repository is only with the special permission of the di- unrestricted, unless the minister of national rector of archives. As with the public pol- education withdraws access on the grounds icy restrictions mentioned above, in of "public policy."26 Given that the Ar- practice this restriction is far from severe: chives Act does not define what is meant in the period 1980-1990 special permis- by "public policy" in this context, this sion was granted for access to 6,750 items, provision affords the minister authority to while permission was refused in the case restrict access arbitrarily. For example, in of only 159 items, this despite the fact that the 1980s it was used without public ex- before 1991 special access was denied to planation to close access to records items loosely defined as "sensitive." Since younger than fifty years of six offices 1991 the director has applied a comprehen- (Governor-General, State President, Public sive set of guidelines for closed period ap- Service Commission, Commissioner of Po- plications that identify information cate- lice, Inland Revenue, and Home Affairs) gories widely accepted as requiring prolonged confidentiality.28 This is a sig-

24Discussion with Commandant C.M.L. Pretorius, SADF Documentation Service, October 1993. ^Archives Act, Section 6 read in conjunction with 21 Archives Act, Section 9(2). Section 3(2)(b). 28These guidelines were modeled on Australian ar- ^Archives Act, Section 9(2)(i). chival legislation. Toward a Culture of Transparency 689

nificant improvement, but it still falls short right. With the exception of the few record of the need for publicly debated legislation categories for which legislation provides that lays down the grounds on which access, the public, whether academics, "closed period" applications can be re- journalists, or casual researchers, are de- fused. pendent on the discretionary powers of

Lone voices in South Africa's archival public servants. Academics and journalists Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 profession have questioned the need for a have frequently expressed the view that closed period at all. They point to the ex- this state of affairs (1) curtails access to amples of the United States and Canada, official information unreasonably and (2) where a closed period has been dispensed affords the state an inordinate degree of with and rights to confidentiality are pro- protection. More recently, support for this tected by statute, court decision and, in the view has been expressed in other quarters. case of the United States, by presidential A South African Society of Archivists po- executive order.29 It must be conceded that sition paper, for example, argues that "ac- good government requires some measure cess to information is a right rather than a of extended confidentiality and that a privilege" and that "there should be free closed period is an easily administered access to public information and any re- means of affording it at the same time as strictions on this right should be defined in providing effective protection of the range law." The architects of the country's new of rights to confidentiality, which archivists interim constitution have recognized free- must respect. Provision for a closed period dom of information as one of the docu- is common practice internationally, with ment's fundamental "constitutional prin- most countries opting for a period of thirty ciples": "Provision shall be made for years. A 1979 amendment to the Archives freedom of information so that there can Act reduced the period in South Africa be open and accountable administration at from fifty to thirty years, although the five- all levels of government."30 However, in yearly opening of archives means that ef- its statement of "fundamental rights," the fectively the period fluctuates between interim constitution severely circumscribes thirty and thirty-five years. However, even the scope of this freedom: "Every person if the need for a closed period is accepted shall have the right of access to all infor- in principle, the question of what consti- mation held by the state or any of its or- tutes a reasonable period must be ad- gans at any level of government in so far dressed. It is worth noting in this regard as such information is required for the pro- that one southern African country, Zambia, tection or exercise of any of his or her applies a twenty-year closed period. rights."31 Further legislation is required to provide a finer definition of the limits to the right of access. Revising the Parameters: Proposals Clearly, archivists who take seriously In South Africa, as in most countries, the the imperative to provide optimum access state's point of departure is that public ac- to information need to look closely at the cess to official records in state offices and possibilities provided by freedom of infor- to records less than thirty years old in ar- mation legislation. In particular, they need chives repositories is a privilege, not a to examine the implementation of such legislation in Sweden, the United States, Can-

29National Archives of Canada Act, 1987; P. Car- ucci, "The National or Federal Archives: Systems, Problems and Perspectives," Archivum 26 (1991): mInterim Constitution, Schedule 4, Section 9. 210-11. "Interim Constitution, Chapter 3, Section 23. 690 American Archivist / Fall 1994

ada, Australia, and France. In Sweden, for Act, running to ninety pages of text, de- example, freedom of information is rec- fines in great detail what is meant by each. ognized as a public right in the country's Implementation of such legislation can Freedom of the Press Act: "To further free be costly and problematic. The U.S. Free- interchange of opinions and enlightenment dom of Information Act initially spawned of the public every Swedish national shall a huge body of litigation around such mat- Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 have free access to official documents."32 ters as its interpretation; requests for either Interestingly, Sweden first legislated free- access to or destruction of records, and re- dom of information in 1766, and the free- quests for either the prevention of access dom has been in place continuously since or the prevention of destruction. In addi- 1809.33 However, the right is not an abso- tion, there were fears that it inhibited both lute one, its limits being set as follows: the documentation of decision making by officials and the submission of information The right to have access to official doc- to federal agencies by private individuals 35 uments may be restricted only if restric- and organisations. Equivalent legislation tions are necessary considering for South Africa should pay heed to lessons learned elsewhere. 1. the security of the Realm or its relations Six other aspects of public access to of- to a foreign state or to an international ficial records seem to demand attention. All organisation of them could be addressed by freedom of 2. the central financial policy, the mone- information legislation, but they are not tary policy, or the foreign exchange pol- conceptually bound to it: icy of the Realm 1. Public rights of access to records in 3. the activities of a public authority for the custody of all "offices of record" the purpose of inspection, control, or should be defined in legislation. other supervision 2. Public rights of access to SADF re- 4. the interest of prevention or prosecution cords should be established in law. of crime Obviously, due regard would have to be 5. the economic interests of the State or paid to the longer-term confidentiality the communities required to protect the nation's defense 6. the protection of the personal integrity and security interests. or the economic conditions of individ- 3. If a closed period is to be retained, uals the question of what constitutes a rea- 7. the interests of preserving animal or sonable period should be debated vig- plant species.34 orously. The five-yearly opening of archives, a clumsy and unwarranted These limits may seem imprecise for procedure, should be dropped in favor practical purposes, but a separate Secrecy of annual opening, which is common practice internationally. 4. Access to closed-period records in State Archives Service repositories 32Sweden. Riksdag, Constitutional Documents of Sweden: Amendments to the Instrument of Govern- should be provided for in legislation ment, the Riksdag Act and the Freedom of the Press Act, Stockholm, 1978, 18. "N. Nilsson, "Archives in Sweden Since the Sec- ond World War," Archief—en Bibliotheekwezen in 35T. H. Peterson, "After Five Years: An Assess- Belgie l^ (1984): 33. ment of the Amended U.S. Freedom of Information "Sweden. Riksdag. Constitutional Documents, 18. Act," American Archivist 43 (Spring 1980): 161-68. Toward a Culture of Transparency 691

which (a) lays down the procedures bound by the Archives Act to protect for securing such access and (b) de- private information in their custody, had fines record categories that cannot be the closed period and extended closure consulted. The State Archives Service's option at their disposal. Ultimately, present guidelines for closed-period ap- however, the protection afforded was plications could be used as a basis for haphazard and partial. One result of pri- Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 such a definition, although a compara- vacy legislation will be to extend indi- tive study of freedom of information re- viduals' rights of access to information strictions in Sweden, the United States, about themselves in the custody of the Canada, Australia, and France would be state, but another result will be a major invaluable. limitation on freedom of information. 5. Record categories requiring closure The relative values of the right to pri- periods longer than the closed period vacy and the right to information have should be defined in legislation. It is been the subject of intense debate, notably in courts of law, in countries that common practice internationally for ex- have established both rights.38 The po- tended closure to be used as a means of sition appears less complex when access protecting the reasonable defense, se- to information is sought specifically for curity, and foreign policy interests of research purposes—as Eric Ketelaar has the state, and the right of individual cit- argued compellingly: "In a conflict be- izens to privacy.36 As argued earlier, the tween the protected freedom for some— current reliance on public policy deci- the freedom of research—and the sions to secure such protection invites protected freedom for all—the right of abuse. Moreover, it fails to provide pub- privacy—the former has to yield."39 lic servants with adequate reassurance that their legitimate interests will be protected. In part, this explains the deep Conclusion mistrust that surfaced during the debate Apartheid South Africa was secretive to on the status of classified official re- an abnormal degree, and its very survival cords (discussed earlier): officials sim- was to a large extent based on such se- ply do not trust the Archives Act to crecy. Under these conditions, the press secure them a reasonable measure of was unable to discharge its responsibility protection. Extended closure legislation to keep the populace adequately informed. would go some way toward reassuring In a democracy, the public should enjoy officials that it is not necessary to de- the right of access to official information. stroy sensitive records. However, this does not translate into a de- 6. There is an urgent need for compre- mand for the indiscriminate opening of all hensive legislation that defines the full official records. On the contrary, there are scope of the right to personal privacy. numerous legitimate restrictions on this Until the new interim constitution rec- democratic right. The great American ar- ognized the protection of privacy as a chivist T. R. Schellenberg captured the leit- fundamental right,37 it was recognized in a variety of contexts and laws. State Archives Service employees, while not 38See, for example, H. MacNeil, Without Consent: the Ethics of Disclosing Personal Information in Pub- lic Archives (Metuchen: Society of American Archi- vists, 1992), 61-102. 36See, for example, Carucci, "The National or Fed- 39E. Ketelaar, "Archives of the People, by the Peo- eral Archives," 207-211. ple, for the People," SA Archives Journal 34 (1992): ^Interim Constitution, Chapter 3, Section 13. 9. 692 American Archivist / Fall 1994

motiv that should inform our thinking on words, broad-based public debate should access when he said: "Records should be be a vital element. As Eric Ketelaar has open for use to the maximum extent that is stated so eloquently: consistent with the public interest."40 A society that realizes this goal in any great In a democracy the debate about se- measure will surely also enjoy in its public lection and access should be a public Downloaded from http://meridian.allenpress.com/american-archivist/article-pdf/57/4/680/2748719/aarc_57_4_62476v2610630817.pdf by guest on 27 September 2021 life the transparency that both demonstrates debate, subject to verification and and fosters democracy. In striving for this control by the public. If one cannot goal, it is vital that the process itself should discuss publicly the moral arguments promote a culture of transparency; in other for secrecy, society runs the risk of creating Stasi and KGB archives— archives not for the people, but against the people.41 40T. R. Schellenberg, T.R. Modern Archives: Prin- ciples and Techniques (Melbourne: Cheshire, 1956), 226. "'Ketelaar, "Archives of the People," 9.