Internet Service Providers' Association

Advisory 11: Promotion of Access to Information Act (""PAIA")

Updated June 2007
Disclaimer: This advisory is produced for informational purposes only to familiarize ISPA members with the main provisions of the above law. It is not a complete analysis of the relevant law or its implications and in no way should be interpreted as legal advice offered by ISPA. ISPA, its members, and its advisors cannot be held liable for any reliance by readers on this document, its accuracy or interpretation of the law.

This Advisory consists of:

• An introduction to the Promotion of Access to Information Act
• A guide to the practical requirements of the Act
• Useful general information on how the Act works in practice
• A guide to drafting the required Section 51 Manual (Annexure A)
• A template Section 51 Manual (Annexure B)
• Request For Access To Record Of Private Body in terms of Section 53(1) of PAIA (Annexure C)
• Fees In Respect Of Public Bodies (Annexure D)

Introduction to the Act

The Promotion of Access of Information Act ("PAIA" / the Act) gives effect to section 32 of the Constitution, which provides that everyone has the right to access any information held by the State or any information that is held by another person, where such information is required for the exercise or the protection of any rights¹.

The Act creates mechanisms to facilitate access to records² held by public³ and private bodies⁴ irrespective of their size and the nature of their business.

To facilitate this access, the Act sets out various procedures to be followed by persons requesting information (called requesters) and the "head"/delegated Information Officer of private bodies (referred to for convenience as “Information Officer"). Any person may request access, including an employee, the public, government or competitors.

The Act requires that a person requesting information ("the requester") must be allowed access to that information if

1. the information is needed for that person to protect or exercise any rights;
2. the requester has followed all the procedures laid down in the Act; and
3. there is no “ground for refusal” (see below) which means that the request can or must be refused.

Immediate Requirements:

Appointment of an Information Officer

In a private body, the person responsible for dealing with requests for information and facilitating such requests on behalf of that private body is the head of the private body, but such responsibility may be delegated to an Information Officer.

The Act defines the head of a private body to include the Chief Executive Officer of a juristic person or any other person "duly authorised" by that person.

For individuals and sole traders the head will be the individual or sole trader or any person authorised by them.
For partnerships the head will be any partner or other person authorised by the partnership to act as such.
For corporations it will be the CEO or equivalent (e.g. Managing Member) or any person authorised by the CEO or equivalent.

Publication of a Manual

The Information Officer must publish a manual in the Gazette before

• 31 December 2005 where the Member employs more than 50 people or has an annual turnover of R10 million or more
• otherwise 31 December 2011

and send a copy to the Human Rights Commission that must contain, amongst other requirements:

• details about the public or private body and Information Officer;
• a description of the subjects on which the private body holds records and the categories of records held on each subject, with sufficient detail to facilitate a request for access to a record; and
• a description of the records of the body, which are available in accordance with any other legislation.

Publication also includes placing a copy of the manual on your website.

General Information

Access to Records

A Request for access to records must be made by a requester in the prescribed form. Access must be granted if:

• the procedural requirements of the Act have been fulfilled by the requester; and
• the records are required for the protection of or exercise of any rights; and
• the public or private body is not entitled to refuse access on the grounds set out in the Act.

Grounds for Refusal

Grounds on which access to a record must be refused are:

• where it would amount to an unreasonable disclosure of personal information;
• where it is likely to harm the commercial interests of a third party;
• where the private body has entered into an agreement with a third party and disclosure would result in a breach of duty of confidence owed to the third party in terms of that agreement;
• if it would endanger the safety of an individual or the security of a building or a system;
• where it is a record which is privileged from production in legal proceedings;
• where it constitutes research information of a third party or a private body.

The Act provides for notifying third parties of the request and allows such third parties to intervene.

Access to a record may be refused where the information is confidential and such disclosure is likely to cause harm.

Notwithstanding the above grounds of refusal, the Act provides that if the information is of such a nature that it would be in the public interest that the information be disclosed and access to the information outweighs the harm that would arise as a result of granting access to the information it must be disclosed.

Once a requester has exhausted all avenues of internal remedy within the organization it may approach the Courts for an order to compel disclosure.

Non-compliance with the Act

No criminal or civil liability exists for anything done in good faith in the exercise or the performance of any power or duty in terms of the Act. However, the Act contains penal provisions for the intentional and fraudulent concealment or falsification of records and provides that a person acting in such a manner is guilty of an offence and liable for a fine or imprisonment for a period not exceeding two years.

Challenges facing Private Bodies

It is foreseeable that the Act may be utilised to obtain information in respect of inter alia the following:

• discrimination, which may involve specific information in respect of political and other affiliations, race and gender inequality and specifically relating to salary disparity, employee benefits, recruitment, promotion and procurement;
• health and safety, specifically to obtain information relating to injuries or deaths of employees and other third parties, inquests or investigation into non-compliance with local and, inter alia, International Labour Organization conventions;
• land claims, including obtaining documentation pertinent to land ownership, acquisition of mineral rights and mineral leases;
• environmental issues, including pollution, irreparable harm or damage to soil and the environment, rehabilitation of mined areas and the impact of mining on communities;
• unfair competition pertaining to dominant market position, research and development and pricing; and
• financial and commercial information, which may include possible mergers and acquisitions as well as liquidity and management issues.

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IF YOU DO RECEIVE A REQUEST AND ARE UNSURE AS TO HOW TO RESPOND OR UNCOMFORTABLE ABOUT RELEASING A RECORD THEN YOU ARE ADVISED TO OBTAIN SPECIFIC LEGAL ADVICE.

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Footnotes

1. Rights are not defined and may include rights founded in the constitution, contract, delict or statute.
2. A "record" includes all records held by a private body irrespective of how or when the record came into existence and regardless of the form of the record. Records also include records which are in the possession of an official of a body or a contractor employed by the body.
3. State departments and organs of state.
4. Defined as a natural person, which carries or has carried on any trade, business or profession but only in such capacity, a partnership which carries or has carried on any trade, business or profession or any former or existing juristic person, but excludes a public body.