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BG754 Public Access to Information Act (PAIA)

Taxco Business Guide
 

Data Security and Document Imaging

Objective

The objective of this business guide is to summarise important considerations regarding the requirements of the Public Access to Information Act (PAIA) and the impact thereof on business and providing some answers to frequently asked questions in this regard.

Introduction

The Promotion of Access to Information Act, 2000, gives effect to section 32 of the Constitution, which provides that everyone has a right to information held by the State, as well as information held by another person (or private body, such as a business) when such privately-held information is required for the exercise and protection of rights.

More broadly, the Act aims to underline the importance of access to information in a democratic society by fostering a culture of transparency and accountability. The Act does this by requiring public (government) and private (non-government) bodies to create both a manual describing the type of records they hold, and procedures for others to access that information. The Act also sets limits on the types of information that can be accessed (e.g., information requested might not be granted when it infringes on a person's right to privacy).

Applicability of the Act

The Act applies to both public and private bodies. Private bodies include natural persons and partnerships who carry on trade, business or a profession, as well as to any former or existing juristic person. Additionally, though closely-related public bodies may submit one manual for both bodies, there is currently no such exemption for private bodies. As such, each entity or business or professional has to submit a manual.

Steps to Comply with the Act

1. Publish a Manual

Every private body must publish a simple manual in line with section 51 of the Act. For most small businesses, the deadline for publishing a manual is 31 December 2011, while unlisted companies in some sectors that have 50 or more employees or turnover greater than certain amounts had to submit a manual by 31 December 2005.

As an overview, the manual must contain the following information:

The organisation's contact details;
Reference to the guide to the Act prepared by the South African Human Rights Commission (SAHRC), and how to gain access to it;
The procedure for requesting information from the organisation, and
a description of what information is automatically available to the public.

This manual must be updated on a regular basis. For security, administrative or financial reasons, an exemption may be granted by the appropriate Minister.

As the Act requires, the South African Human Rights Commission (SAHRC) has published a guide on how to create a manual.

2. Make the manual available

Manuals must be submitted to:

The South African Human Rights Commission (SAHRC), and
The controlling body of which the private body is a member, if any.

Additionally, the head of a Private Body must make the manual available for public inspection during office hours and upon request, and place it on the entity’s website.

The SAHRC requests that, in order to save costs, the table of contents page, the forms and the fee structure be excluded from the manual when submitted. For the sake of convenience and accessibility, the forms and fee structure should be posted on the Private Body’s website. If the Private Body does not have a website, then the manual should include a link to either the SAHRC's website (www.sahrc.org.za) or the Department of Justice and Constitutional Development's website (www.doj.gov.za, under Legislation | Regulations), which will contain the forms and the fee structure.

Request for Information

Handling requests for information

Private bodies must respond to requests for information. It has been suggested that private bodies develop a procedure to handle the requests. Also, while the responsibilities for complying with the Act and for requests made in compliance with it are placed on the head of the private body, another person may be appointed to handle the responsibilities.

Because decisions regarding requested information involve a great degree of discretion, it has been suggested that any person appointed to handle the responsibility should comprehend the objectives of the Act and be able to make subtle legal distinctions.

Who can request information?

Under the PAIA, anyone can make requests for information. Unlike requests to public bodies, information held by private bodies can only be requested, however, when the record is required for the exercise or protection of any rights - that is, on a need-to-know basis. The person requesting the information must also comply with the procedural requirements for requesting information. Moreover, the access to the requested record cannot be prohibited on any ground provided in the Act (see below).

What records can be requested?

The Act applies to all 'records' - which means any recorded information, regardless of form or medium that is in the possession or under the control of the public or private body. It matters not whether the record was created by the body. However, a person may not use the PAIA to access records if court proceedings are planned or taking place.

General process of requests

The person requesting the record must comply with the procedures set forth by the Act and regulations. This person must use the form that is printed in the Government Gazette and the form can also be accessed on the Human Rights Commission website.

The request must:

  • Be addressed to the private body concerned at its address, fax number or e-mail address;
  • Provide sufficient particulars to enable the head of the private body concerned to identify the record(s) requested and the person requesting the information;
  • Indicate in what form the requesting person wants the information;
  • Specify the requester's phone or fax number in South Africa;
  • Identify the right the requester is seeking to protect and provide an explanation of why the requested record is required for the exercise or protection of that right;
  • If the requester wants to be informed, in addition to a written reply, of the response to the request, this must be specified.
  • If the requester is asking for the information on behalf of somebody else, he or she must show in what capacity the request is being made

A written reply must be given to the requester as soon as reasonably possible, but at least within 30 days. The written reply can either:

1) grant access;
2) deny access; or
3) inform the requester that an extension of time is needed.

If a third party is affected by the request, the private body must take all reasonable steps to notify that person in order to give them a right to intervene (see section 71 of the Act).

If the request is granted, access must be given in the form requested (though if no specific form was requested, it is left to the discretion of the private body). The written response approving access to the information should include:

The access fee (if any) to be paid upon access (the fees prescribed by government regulation can be found on the Human Rights Commission website; The form in which access will be given, and that the requester may lodge an internal appeal or an application with a court against the access fee to be paid or the form of access granted, and the procedure (including the period) for lodging the internal appeal or application.

Extension to provide access to Information

An extension of up to 30 days can be obtained in certain circumstances. When notifying the requester of the extension, one must include the reasons for the extension, the duration of the extension, and explain that the extension can be appealed in court.

The accepted grounds for an extension are when:

  • The request is for a large number of records or requires a search through a large number of records and compliance with the original period would unreasonably interfere with the activities of the private body;
     
  • The request requires a search for records in an office of the private body not situated in the same locale as the head office, that cannot reasonably be completed within the original period;
     
  • Consultation among divisions of the private body or with another private body is necessary or desirable to decide upon the request, that cannot reasonably be completed within the original period;
     
  • The requester consents in writing to such extension.

When can a request be denied?

In certain circumstances requests must be refused, while in others that they may be refused. Some of the applicable provisions are outlined below. However, despite these protections on the information, if the information could potentially show that there is a serious violation of the law or a threat to public safety or the environment, then the request cannot be refused.

The following requests must be refused:

Information that would disclose personal information about a third party, unless:

  • The third party consents;
  • The information is about the health of a person under the age of 18 who is unable to understand the nature of the request, but the request is in that person’s best interests;
  • The information is about an official of a private body which relates to the official functions or position of that person.

Information that would disclose certain commercial information about a third party (subject to certain exceptions, such as consent);

  • Confidential information about third parties;
  • Information which, if disclosed, could threaten the life or physical safety of other people;
  • Information that cannot normally be used as evidence in a court case because it is privileged;
  • Information on research by a third party if it would expose the private body or subject matter of the research to serious disadvantage.

The following requests may, but need not, be refused:

Commercial information about a private body (including trade secrets, financial, technical or scientific information) which, if disclosed, could harm that body's financial interests.

Information on research by a private body if it would expose the private body or subject matter of the research to serious disadvantage.
If the requester still wants access to the record that was refused, they may go to court within 30 days to challenge the decision.

What if the record cannot be found?

If all reasonable steps have been taken to locate the record and the requested record cannot be found, and if it is reasonable to believe that either the private body lost the record or that the record does not exist, the head of the private body must explain this in an affidavit to the person requesting the record. Such an affidavit must include all steps taken to locate the record. If the record is found after the affidavit has been sent, it should be given to the requesting party.

How can Taxco help?

Our services include the provision of an editable generic template with instructions on how to compile and submit the manual, right up to the designing and compilation of the private body’s own customised, entity specific manual and the submission thereof.

Taxco has assisted many of our clients to compile and submit their section 51 Manuals as required by the Act. The updating of the manual is just as important and should not be overlooked. We further assist our clients to assess the impact the Act may have on their business and combined with our scanning technology and years of experience offer the following added value services to its clients:

  • Uniquely designed Needs Assessment / Analysis Process
  • Formulating a access to Information policy and strategy
  • Imaging and Digital storage of paper files
  • Research on newest trends and technologies on Document Imaging and Management
  • Customer confidence and satisfaction because of our expertise

We are committed to constantly evaluating and improving our product and service range.

For more details of how Taxco can assist you with your Information Management and compliance to the PAIA Contact us now or Request a Free Quote.

This Guide is subject to the Terms and Conditions of Use of Taxco Services and their Website.

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