Public Service Accountability Monitor and N Mkhize v Director General: Office of the Premier: Eastern Cape Provincial Government and Premier of the Eastern Cape Provincial Government

The first applicant, Public Service Accountability Monitor (PSAM), is a voluntary association based at Rhodes University that researches government management of public resources and service delivery. The second applicant, N Mkhize, is a researcher with PSAM bringing the application in her personal capacity. The applicants sought access to the full, unabridged 2006 Rapid Assessment Survey (RAS) conducted by the University of Fort Hare Institute for Socio-Economic Research. The survey involved approximately 12,200 households in the Eastern Cape Province regarding their perceptions of government performance and service delivery, conducted between November 2005 and June 2006. The applicants requested the survey on 5 March 2007 but were only provided an abridged version in May 2007. The respondents refused to provide the full version, citing that it was an internal planning document and incomplete without governmental responses from provincial departments and municipalities. The respondents indicated the full report would only be available after July 2008 when all planning documents were completed. The applicants exhausted the internal appeal process before approaching the High Court.

• Whether the respondents were entitled to refuse access to the full, unabridged RAS report under section 44 of the Promotion of Access to Information Act 2 of 2000
• Whether disclosure of the survey could reasonably be expected to frustrate the deliberative process in a public body by inhibiting candid consultation, discussion or deliberation
• Whether the applicants had locus standi to bring the application under section 38 of the Constitution
• Whether the refusal to provide the full report constituted a breach of section 32 of the Constitution guaranteeing the right of access to information held by the State
• The proper interpretation of section 44 of the Promotion of Access to Information Act in light of the constitutional right of access to information

The court ordered: (1) The respondents to provide the applicants with a copy of the full, unabridged 2006 Rapid Assessment Survey within 10 days of the order; (2) The respondents to pay the costs of the application, the one paying the other to be absolved.

Section 44 of the Promotion of Access to Information Act 2 of 2000, which permits refusal of access to records that could frustrate deliberative processes, must be restrictively interpreted because it curtails the fundamental constitutional right to access information held by the State under section 32 of the Constitution. Information should only be withheld in exceptional circumstances, and section 44 may not be invoked for convenience, to avoid criticism or embarrassment, or because a sanitized version would better serve perceived interests. The party refusing to provide information under section 44 bears the onus of proving entitlement to withhold it. A survey commissioned by government regarding citizens' perceptions of service delivery is information that, by its nature, belongs in the public domain and should be accessible to those citizens. Fear of media sensationalization does not constitute sufficient grounds for non-disclosure of information that belongs in the public domain. The interpretation of PAIA provisions must be consistent with transparency as a prerequisite for justification of administrative and executive decisions.

The court observed that suppression of people's views can be the very catalyst to inhibit candid debate on problems, referencing South Africa's history where non-disclosure of citizens' views destroyed candid debate on problems concerning all. The court noted that withholding the unabridged report could lead to perceptions of a cover-up being added to existing perceptions of service delivery. The court questioned how an objective monitoring body like PSAM could monitor government responses if these were obtained before release of the underlying survey document. The court expressed skepticism that July 2008 would also come and go without the full report being released, suggesting a pattern of delay. The court noted it was unclear how recommendations from an independent body based on empirical data would interfere with deliberative processes and policy formulation, as they do not foreshadow government policy.

This case is significant in South African jurisprudence as it establishes important principles regarding access to information held by the State. It reinforces the constitutional right under section 32 of the Constitution to access information and requires restrictive interpretation of exceptions to this right contained in the Promotion of Access to Information Act. The judgment emphasizes that transparency is fundamental to democratic governance and accountability, particularly regarding service delivery and government performance. It establishes that government cannot withhold information merely to avoid criticism, embarrassment, or because it wishes to present a sanitized version together with its responses. The case is important for civil society organizations monitoring government performance and for the principle that information gathered from citizens about government service delivery belongs in the public domain and should be accessible to those very citizens. It sets a precedent that fears of media sensationalization or desires to control the narrative around government performance are insufficient grounds to refuse access to information under PAIA.