Dynamite disclosures in 20GB data dump exposes DOH disdain for public consultancy

Of 300,000 public responses to proposed regulations, Department of Health officials read just 132 – and completely ignored the fact that 97% of the submissions were against them. The regulations propose indefinitely imposing mask-wearing; the need to provide vaccination certificates for entrance into SA and large gatherings; and the capping of audiences in public facilities to 50% of capacity. In addition, now public emails by DDG Dr Nicholas Crisp confirm official disdain for the consultative cornerstone of the SA democratic process. In this interview with BizNews founder Alec Hogg, Sakeliga’s Russell Lamberti and Tian Alberts unpack disclosures laid bare after the court forced the DOH to hand over 20GB of data files to its court opponent.

Sakeliga’s Russell Lamberti on the effects of prolonged COVID regulations on businesses

We were very much against these hard, blanket lockdowns that shut down economic activity. Those chickens are coming home to roost very much now, in several ways. And the unemployment crisis, the chronic job losses are still with us just from that episode, let alone, you know, we really had a bit of an unemployment problem. We fought against onerous licensing requirements, you know, during lockdown, we won there. So, we are very much in favour of decentralised decision-making, letting businesses make wise choices for their circumstances. It’s a big country. Lots of different kinds of people, different kinds of businesses. Everyone’s facing different risk profiles. That’s been our approach. And I think what we see in these regulations is, I think quite clearly, the desire to make permanent what were really emergency powers-  I think abused and misused emergency powers, but nonetheless powers that needed to come to an end and essentially have come to an end, but now find expression in new and permanent laws.

So we’re very much opposed to this. We don’t think businesses need nannying, to have their hands held and told what to do and how to manage the risks that they face. They’re actually very capable of doing that at a local level. And when you try to centralise risk management like this, you create a tremendous amount of problems. The overarching issue here is, is allowing governments to instrumentalise business through the policy mechanism to enforce what it wants enforced and to kind of put very draconian rules on people.

Sakeliga’s Tian Alberts on the review applications process

So just for context, in a review application, when you review government decisions and you make certain assertions and you review certain decisions, they are obliged by the court rules to provide the record of decision-making. All the rationale beyond that is the government is in a unique position when they hold all the information. So it would be pretty futile going to court and not having the information that the government had before them when they made their decisions. So we obtained that through the court rules. 

So the government has to put all their cards on the table and say this is the decision that we took – or decisions in this case. And yeah, all the records of decision-making and there are reasons for that. And it’s also to be able to gauge whether the government took a rational decision, whether it was reasonable, etc. There are certain legal requirements when the government just takes decisions and the public needs to be able to gauge whether those decisions were made on a good basis. 

On the comments from the public and how many were submitted

We’ve counted about just over 300,000 submissions. The last two years have been emotional for a lot of people in all directions. So very strong participation. And what we’ve seen when we get those records is that we think the analysis of those records by the government has been woefully deficient. You know, 300,000 comments need to be taken seriously. They need to be analysed. And thankfully, we live in 2022 where the technology exists to really go through those comments, to analyse them, to do word searches, to kind of categorise them. And we don’t think this has been done even remotely appropriately.

So there’s several things that came up. The first is that it’s clear that the department didn’t have a methodology or the resources or capacity to process these comments. And that’s probably why the Health Act gives three months for the public to deliver comments. They shortcut this process unilaterally to one month.  So there’s several things that came up. The first is that it’s clear that the department didn’t have a methodology or the resources or capacity to process these comments. And that’s probably why the Health Act gives three months for the public to deliver comments. They cut this process unilaterally to one month.

On why the regulations are so important to the government

I think they confer the bureaucrats in government with considerable rulemaking power. They centralise decision-making. And we sit with the government, not just domestically, that lacks these kinds of bureaucratic powers. And so this is our big pushback. As I say, we need decentralised decision-making. So we saw, I think in the first instance, the comments process is now up for significant review. And that’s something that needs to be challenged. And then, of course, once you get into the actual comments data itself and look at how they’ve handled these 300,000 comments, it’s very problematic. It’s going to be just some of the details of what we find there.

According to an analysis we’ve done internally, at best 67% of submissions have actually been processed. That doesn’t even get to being read or being considered. So we’ve dug further and we found that of the 300,000 submissions, about 132. Comments were substantively considered.

On where they acquired this information

We’ve done an analysis of what they have so they have categorised comments into different spreadsheets, the first being obviously all of the comments that they’ve received, presumably. And then they have a separate spreadsheet where they put in the comments that they actually considered. So they’ve actually boxed these comments. They put it into different boxes or by or based on whether they actually consider these comments.

So this stuff, so they’ve been bit by court order, has to give us records of decision-making. This expresses in things like Excel spreadsheets where they are now processing and listing and commenting on the data themselves and kind of sorting through it. And we’re able to, as best we can ascertain and see that they are only seriously considering maybe 70 comments off to 130 after they’ve rejected some. So we’re really talking about, I think in many ways a bit of a farcical process. Yeah. Let’s also just say and this is very important that of the 300,000 comments, we’ve done a proper analysis of that. We’ve taken a random sample of 500 comments, which is a statistically significant sample of 300,000. 

We’ve replicated that analysis as well. Later with a sample of 1000, assign them random numbers and come up with a random sample of the comments. The comments are overwhelmingly against the regulations. We’re not talking 60/40, we’re talking 97% against these health regulations. And I think we can talk about what that number means and where it comes from. 

On conclusions to be presented before court

So what we’ve presented in the affidavit is first and foremost, the department doesn’t seem to have the knowledge, the know-how and the capacity to deal with that volume of comments. It shouldn’t be that difficult in 2020 with technology. We have to assess, you know, large volumes of text and submissions are actually imminently available. So in the first instance, it’s not equipped to do that. So incompetence clearly on display. In the second instance, we can see very clearly and this comes through also in comments and in various emails sent within the department that there is a kind of a disdain for the process and for people’s opinion on this. Comments are accepted if they’re kind of willing to go along with the narrative. And there are, you know, several organisations, whose comments have either not been read or fleetingly considered and just ignored Sakeliga, you know, being one. And we’ve put in very thoughtful commentary. 

On whether any other organisation has received the same treatment

In South Africa, we have one of the biggest public participation platforms. We had the likes of the South African Medical Council. They’ve been, they’ve had the same treatment as us, the South African Dental council, military council. So we picked up 21 significant organisations, legal experts and medical professionals who submitted comments and they were simply glossed over, not read, rejected. 

On Health Dept deputy director-general Nicholas Crisp’s approach

Well, his name did come up quite a few times when we analysed the record and we found that he harboured a particularly contemptuous attitude towards the public participants. There were a few emails between himself and members of that Board of Health, where, you know, submissions are treated very disdainfully. For instance, one submission was kind of rejected on the basis that the particular organisation who submitted it wanted to make the public sick with Covid again, you know, stuff like that coming up. And then there’s also a member of the task team who went through these comments, who alleged that organisations submitting comments and submissions on the regulations were instigating terrorism against the state. So these are the kind of things that we’ve picked up.

On how much of the data dump was worked through and how it was processed

It’s about 20 gigabytes. I think we’ve probably just scratched the surface. I mean, we’ve certainly on the comment side, we’ve done a thorough analysis of the comments. There’s more than just comments and more than just Excel files. These are records of emails that are legitimate, you know, public records. I think what we see from someone like Nicholas Crisp, again, I think this is a theme that goes back through the last two years is: is a government and government departments that are acting above the population, that is, getting advice only insofar as it goes along with their narrative.

The Ministerial Advisory Committee has been ignored in this process, whereas two years ago they were being listened to. But it seems as though the common thread through all this is that, if you tell the government what they want to hear on these decisions, that’s great, you’ll be listened to. But if you differ from them, they’re going to go against you. And I think, this is what this whole process just smacks of, going through the democratic motions, getting the submissions in to tick the box. But at the end of the day, doing what you want to do. But it’s hard to argue with 97% …

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