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Promotion of Access to Information Act, 2 of 2000

- Featured article by LAWYERS-ONLINE.CO.ZA

A summary of the act (PAIA)

Section 32 of the Constitution enshrines the right of access to certain information, and the Promotion of Access to Information Act (PAIA) gives effect to that right.

The Act maintains and protects South Africans' right to access any information held by the State and/or information held by another person that is needed to protect or exercise any rights.

Access to information will be granted once certain requirements have been met. The Act also recognises that the right of access to information may be limited if the limitations are reasonable in an open and democratic society.

This Act applies to all records held by public (i.e. State) or private bodies (or their contractors).

The Act does not apply to records that are being use d in criminal or civil proceedings. The Act also does not apply to Cabinet Ministers and committees, members of parliament or of the provincial legislature, courts (in their judicial capacity) and certain investigative tribunals.

All public bodies have a duty to appoint staff (called information officers) to handle requests for access to information. As long as a request for information does not conflict with another law, access to most information held by a public body must be granted, regardless of the reason for the request.

A public body is defined in the Act as any State institution or administration in the national or provincial sphere and any municipality in the local sphere.

Information officers must, however, withhold records if relevant fees have not been paid by the requester.

All public bodies must also compile and make available a manual (in at least three official languages) that includes information on its structure, functions and contact details as well as the following: instructions on how to request access to records; a description of the services offered; and the remedies available if the public body does not fulfil its functions.

All public bodies are required to submit information to the Minister of Justice on the categories of records available to the public, and whether they are free of charge or not.

The information submitted to the State must be published in the Government Gazette, and the contact details of all public bodies must be published in telephone directories used by the public.

A request for access must be made on a prescribed form, giving precise details on which records are required and the identity, language preference and contact details of the person requesting access to them.

If there is a fee for the record, this will have to be paid before the request is processed. Requests can also be made orally.

Information officers must respond within 30 days of the request being made, but can extend the period to 60 days if there is a large number of applications or the request requires a search for records in another city.

Subject to availability, information must be made available in the form (e.g. written and audio - visual transcripts) and language of the requester's choice.

It is permissible to make copies as long as it does not damage the record or interfere with the public body's administration.

Information officers have a duty to respond to these requests and to also transfer any requests to other public bodies that hold relevant information. Priority must be given to transferred requests.

The information officer must inform the requester (in writing) if the record cannot be found , and must also give a full account of the steps taken to try to access the record. If the record is subsequently recovered, then access must be granted.

If information requested is due to published within 90 days of the request, the information officer can defer giving access to it, but must notify the person in writing of the period for which access is to be deferred.

However, if the deferral will result in the requester suffering substantial prejudice, then access must be granted.

Every year, all public bodies must submit a detailed report to the Human Rights Commission on all requests for access to information.

There are a number of instances in which requests for access to information may be refused.

These include the following: when a person's privacy should be protected; when commercial information about a third party should be protected; when the information is protected by the South African Revenue Service Act of 1997; when information is deemed confidential ; when disclosure of information might endanger a third party or their property; when information is involved in enforcing the law; when information is being used in legal proceedings; information whose disclosure might damage the security and international relations of the Republic; information that protects the economic interests of South Africa; research information; and certain information about public bodies.

If a request for information relates to a third party, the information officer must take all reasonable steps to inform the person concerned as soon as possible (within 21 days if possible).

They may reveal the name of the person asking for information to the third party. If the information officer believes that the information might be protected in terms of this Act, he or she must tell the third party and explain the law to them.

If the third party does not consent to the request for access to information about them, they may ask that it remain undisclosed, but they must do so within 21 days of being informed of the request.

The information officer will consider the request for access to information in light of the third party's representation. If they decide to disclose the information, the third party must be informed in writing of the reasons why.

The third party may lodge an internal appeal or make an application in court (but must do so within 30 days of receiving notice of the information officer's decision).

If there is no internal appeal or court application, the information must be disclosed to the requester.

As with information held by public bodies, sometimes requests for access to information held by private bodies may be refused.

These include the following instances: when a person's privacy should be protected; when commercial information about a third party should be protected; when information is deemed confidential; when disclosure of information might endanger a third party or their property; when information is being used in legal proceedings; and research information .

Date: 25th April 2014
Legislation: Promotion of Access to Information Act, 2 of 2000
The Constitution of 1996
South African Revenue Service Act of 1997

Promotion of Access to Information Act - Legal Information South Africa