Why do our legislators and lawyers not consider costs of compliance?

Compliance with the Right to Information (RTI) Act causes costs.Defending one’s organisation in a fundamental-rights application before the Court of Appeals causes costs.But the experts who drafted the RTI Law paid no heed to costs of compliance and denied requests for small changes that would have allowed the Right to Information Commission to make rules to reduce burdens of compliance for small organisations.The legislators approved what the experts proposed.

Displaying the same disregard for costs of compliance, the Subcommittee on Fundamental Rights in the proposed new Constitution has proposed that “every person” shall be entitled to apply to the Court of Appeal “in respect of the infringement or the imminent infringement by State action or non-state action of a fundamental right to which such person is entitled to.”

In the South African RTI legislation, which was referred to as a model worth emulating, a distinction was made between State and non-state entities.Government organisations were defined as “public bodies” subject to the full range of obligations under the law.Non-state entities that met defined criteria such as receiving government funds were defined as “private bodies” subject toless onerous obligations.When it came to costs of compliance, our experts paid no heed to the South African model.

The duties imposed upon an entity that falls within the definition of a “public authority” by our law are quite extensive:

S7(1) It shall be the duty of every public authority to maintain all its records duly catalogued and indexed in such form as is consistent with its operational requirements which would facilitate the right of access to information . . . .

S7(3) All records being maintained by every public authority shall be preserved–    

in the case of those records already in existence on the date of the coming into operation of this Act, for a period of not less than ten years from the date of the coming into operation of this Act.

in the case of new records which are created after the coming into operation of this Act, for a period of not less than twelve years from the date on which such record is created. 

S7(5) Notwithstanding the provisions of subsection (2), every public authority shall endeavour to preserve all its records in electronic format within a reasonable time, subject to the availability of resources.

S10. Every public authority shall submit annual reports to the Commission before the thirty first day of December immediately succeeding the year to which the report relates which shall be made available to the public in its office and on its official website, furnishing information such as-

(a) the total number of requests received during the year and information provided and rejected;

(b) the amount of fees collected during the year;

(c) the number of requests rejected under section 5;

(d) the number of times information was provided at the direction of the Commission;

(e) any suggestions for improving the effectiveness of the regime of transparency;

(f) the number of appeals from refusal to communicate information;

(g) practices relating to the maintenance, management and destruction of records; and

(h) its activities under section 8.

S23(1)(a) Every public authority shall for the purpose of giving effect to the provisions of this Act, appoint, within three months of the coming into operation of this Act, one or more officers as Information Officers of such public authority and an officer designated to hear appeals :

S26(1) Every public authority shall display in a conspicuous place within the official premises a notice specifying– 

(a)contact details of the Commission and the members of the Commission; 

(b)contact details of the information officer; 

(c)contact details of the designated officer; 

(d)fees to be charged for obtaining any information from such public Authority.

It is evident that the above duties have been defined with a large government organisation in mind.However, not all “public authorities” are government organisations and not all are large.The costs of compliance can be very high, especially for small organisations which are brought within the scope of the law by the following elements of the definition of “public authority” (S.43):

(g) a private entity or organisation which is carrying out a statutory or public function or service, under a contract, a partnership, an agreement or a license from the government or its agencies or from a local body, but only to the extent of activities covered by that statutory or public function or service;

(i) non-governmental organisations that are substantially funded by the government or any department or other authority established or created by a Provincial Council or by a foreign government or international organisation, rendering a service to the public in so far as the information sought relates to the service that is rendered to the public;

An “organisation” as small as a person who undertakes translation work for the government would fall within the scope.Such a person would have to designate herself as the Information Officer and also as the officer designated to hear appeals from her own decisions (there being no one else).She would have to find a conspicuous place within her home to display the various required notices.Whether or not she received any information requests or not, she would be obliged by the law to submit an annual report with the required details to the Commission every December.To comply with the law, she would also have to maintain a website to display the report.She would have to rent extra space to preserve duly indexed and catalogued records for 10-12 years.

Most “mom and pop operations” that fall within the scope of the RTI Act are likely to ignore these utterly unreasonable requirements.The alternative would beto avoid becoming “public authorities,” by declining government work.Hopefully, the Commission will figure out some workaround for the mess created by the drafters.

The RTI Law was bad, but the Constitutional proposals are worse.

Undefined non-state actors (who would not be limited to legally incorporated entities, if the RTI Act is a guide) are to be made liable to fundamental-rights enforcement.Should a disgruntled employee or customer, or even a rejected applicant for a job file a case alleging that his or her fundamental rights (a much longer list than the rights set out in the 1978 Constitution) have been violated, the non-state actor would have to drop everything and retain counsel to defend himself in the Court of Appeals.

Large organisations would be able to build these expenses into their costs of doing business and get their customers to pay for it.But small businesses and organisations would be seriously damaged and would most probably be driven out of business by a case or two.The decision would be immaterial.Being hauled up before the Court of Appeal would be the punishment.

It is said that small and medium enterprises generate most jobs.One wonders whether the people who propose to subject non-state actors to justiciable fundamental rights believe that what are needed are jobs for their ilk, i.e., lawyers, even at the cost of destroying productive small businesses.