THE RIGHT TO THE RIGHT TO INFORMATIONINFORMATION

PROMOTION OF ACCESS TO INFORMATION ACT (PAIA)

BY

Titus MoetsabiHead-Access to Information Programme

MISCHIEF ACT ADDRESSESMISCHIEF ACT ADDRESSESPre-1994 environment of secrecy

Pre-1994 Culture of human rights violations

Act only FOI legislation permitting access

to records by private bodies

Keeps check power of multinatinational

companies’ negative impacts on human,

socio-economic rights

ENABLING LAWENABLING LAW

S 32(1) Constitution of RSA Act 108/1996

“ Everyone has the right of access to records or/and information held by the state ad any information held by another person and that is required for the exercise or protection of

any rights.”

S32(2) enables creation of PAIA

BENEFITS OF PAIABENEFITS OF PAIA

PAIA a fundamental right

Article 19 U.D.H.R.

Promotes transparency in system of govt

Promotes accountability in private and

public sector

Safeguards Bill of Rights

Empowers communities

GLOBAL TRENDGLOBAL TREND

Open, responsive, accountable governance

Civil & socio-economic rights

Participatory democracy:Public debt

Budget making & monitoring

Transparency in macro-economic decisions

IFIs, trade & its impact

Commercialisation of basic needs

South African Human Rights South African Human Rights CommissionCommission

Enabled by S10 PAIA to assist any person wishing to exercise the right in PAIA

Assisted in training & education by CSOs:FXI

SAHA

ODAC

Southern African Centre for Economic Justice

among others

Objectives of PAIAObjectives of PAIAState promotes human rights culture

State promotes social justice

To give effect to ATI in speedy,

inexpensive, effortless manner

Educating people to understand their rights

To help people scrutinise decision making by public & private bodies that affects people’s rights

Guide Distribution CentresGuide Distribution Centres

Government Communications

& Information Services

Library of Parliament, Cape Town

The South African Library, Cape Town

Natal Society Library, Pietermaritzburg

The State Library in Pretoria

City Library Services, Bloemfontein

Guide CentresGuide CentresThe National Film, Video & sound

Archives Pretoria

Min. of Justice prescribed institutions

Tertiary education institutions

Office of information officers of public bodies

All offices of public bodies

All magistrate offices

Guide CentresGuide Centres

All offices of Dept of Justice & Const. Dev

All post offices

Gov. Gazette

Institutional website, where possible

Information ManualsInformation Manuals

S 51 PAIA

All private bodies required to compile an access to information manual

Manuals [books/documents] required from both public & private bodies

Manuals of Private BodiesManuals of Private Bodies

South African Human Rights Commission[SHRC]

Website if possible

Office of head of private body

Government Gazette

Information Manuals of Pvt Information Manuals of Pvt BodiesBodies

Postal, street address, phone, fax numbers

Electronic mail address if available

Description of SAHRC guide & access to it

Categories of records of private body available

without person having to access it in terms of

PAIA, S52 notice[voluntary disclosure]

Records kept in terms of any other law

Enough info. to assist in making ATI request held by private body

Information Manuals Pvt Information Manuals Pvt Bodies contd…Bodies contd…

Description of subjects under which private body holds records

Categories of records on each subject

Min. may exempt private body from

compiling manual on following grounds:

Security

Administrative

financial

Information Manuals of Public Information Manuals of Public BodiesBodies

S 14 PAIA

3 Of the official languages

Should assist to access records of public body

Information Manuals of Public Information Manuals of Public Bodies- ContentsBodies- Contents

Structure & functions of public body

Postal, street, phone, fax numbers, email of information officer & every deputy

information officer of public body

Description of SAHRC guide & to access it

Subjects on which it holds records

Categories of records held on each subject

Information Manuals of Public Information Manuals of Public Bodies- ContentsBodies- Contents

Info readily available without using PAIA, S15

Services available to members of public from the public body & how to get access to those services

Description of any arrangement for person to consult, make representations or participate in or influence formulation of policy; or exercise of powers or performance of duties by the public body

Action to take if I.O. refuses to grant ATI

Access to Public Body ManualAccess to Public Body Manual

Every office of that public body

Website, if avaialble

SAHRC

Government Gazette in 3 official languages

Voluntary Disclosure NoticeVoluntary Disclosure Notice

S 15 public bodies

S 52 private bodies

Fee only for reproduction

Annual reports, publications in public domain

Automatically available

Info on how to get them important

Request for ATIRequest for ATI

Form A public bodies

Form C private bodies

Completed & sent to information officer [I.O.] of public body / head pvt. org.

I.O. should respond in 30 days

Manner of RequestManner of Request

Requester should comply with procedure:Request is on a request form

Request form is faxed, emailed, hand delivered

That access is not refused in terms of any of the grounds for refusal under PAIA

Request Form InformationRequest Form InformationSufficient info to identify requester by IO

Sufficient info to identify record/ Ref. No.

Nature of record in which record should be provided

Preferred language in which record should be provided

Postal address/fax number of requester in RSA

Manner in which requester wants notification on outcome of request

Request Form InformationRequest Form Information

If request on behalf of another person, proof of capacity in which requester makes the request

In case of private body, requester should state right to be exercised or protected & why record requested is required for protection or exercise of such right

Who can request for access to Who can request for access to a record?a record?

A person or public body

Public body may request record of private body acting in public interest

Oral requests by requesters who cannot read or write allowed – IO of public body must fill in request for requester

Cost of RequestCost of Request

IO informs of cost/request fee

In case of personal requester request fee not payable

Personal requester must pay fees for access & reproduction

Prescribed fees – Regulation 187 Part II/III

Assistance from IO of Public Assistance from IO of Public BodyBody

Reasonable assistance for requester to complete form

To make request in form where there would not be refusal

Avail any other information relevant to request

Afford requester opportunity to confirm or alter request so it complies with form formalities

Assistance from IO of Public Assistance from IO of Public Body contd…Body contd…

Transfer request to another public body where necessary

Notify requester of transfer to more appropriate body

Respond to request in 30 days

Extend for 30 days only and inform requester because of:

Volume of records, inter-department consultations or with consent of requester

Assistance from IO of Public Assistance from IO of Public Body contd…Body contd…

Decide to grant the request of access & give notice to requester of this decision

If request granted, requester should be given notice stating access fee upon access, & form in which access will be given

Notice should state requester may lodge internal appeal or application with a court against access fee or form of access granted/procedure & period for lodging appeal

Assistance from IO of Public Assistance from IO of Public Body contd…Body contd…

Where request refused notice must state adequate reasons for refusal, PAIA provisions relied upon

Notice should also state right of requester to appeal internally or through court and procedures thereof

Internal APPEAL Procedure Internal APPEAL Procedure

Must be exhausted before court procedure

Applicable to national, provincial departments & municipalities only

All other public bodies do not have an internal appeal structure and/ or procedure

Form B – for appeal by requester or third party

Grounds for AppealGrounds for AppealRequester not satisfied with fees required to be

paid in respect of request

Requester not satisfied with period of extension to deal with request

If form of access in which records are provided are not in line with particular form in which requester preferred & requester is satisfied preferred format can be provided without undue interference or detriment or infringement of copyright not owned by state or public body

Internal Appeal Fees Internal Appeal Fees

Must be paid

Decision on internal appeal may be deferred until fee is paid

Court Application Court Application Against decision of IO

To disallow late lodging of an appeal

To refuse request for accesss

To want certain fees paid, S22 -S54 pvt bodies

To extend, S 26(1) – S57(1) pvt bodies

To access and forms of accesss, S 29(3)-S60 pvt bodies,

Requester may within 30 days apply to court for appropriate relief

Magistrate CourtMagistrate Court

Is court of first instance, S 79 PAIA

Decisions on application to court:Confirm, amend, set aside decision applied

Require IO to take such action or refrain from action as court considers necessary

Grant interdict, interim or specific relief, declaratory order or compensation

Grant order to costs

When ATI may be refusedWhen ATI may be refused

If granting info would harm the public or private body

Public Body Refusal, Part 2, Chapter 4, PAIA:

•Unreasonable disclosure of personal information about a third party, including a deceased individual

Record May Not Be RefusedRecord May Not Be RefusedBy public body if:

Individual has consented to disclosure in writing

Information belongs to class of info that may be publicly available about an individual

Giving of info would be in the best interest of the individual eg., under 18 physical, mental well-being under care of requester

Info has consent of next of keen of deceased

Info relates to position or functions of public body official

When ATI may be refusedWhen ATI may be refusedProtection of certain records of SARS ;

unless record consists of info about the requester or person on whose behalf request is being made, in which case record may not be refused

Trade secrets of a third party

Financial, commercial, scientific, technical information of a third party where disclosure would cause harm

When ATI may be refusedWhen ATI may be refused

Info on commercial info may not be refused if:

Its already publicly available

Third party has consented to disclosure

Where disclosure would reveal a serious public safety or environmental risk

When ATI may be refusedWhen ATI may be refused

Protection of certain confidential info

Protection of other confidential info of a third party

Breach of duty of confidence

Prevention of supply of similar info in future

Protection of safety of individuals and property

Including witness on protection scheme

When ATI may be refusedWhen ATI may be refused

Protection of police dockets in bail proceedings, protection of law enforcement and legal proceedings

Protection of record privileged in legal proceedings

Defence, security, international relations of RSA

Economic interests and financial welfare of RSA and commercial activities of public bodies

When ATI may be refusedWhen ATI may be refused

Protection of research information of a third party, and protection of research information of a public body, if this leads to serious disadvantage

Frustrate operation of public body

Manifestly frivolous or vexatious request, or substantial and unreasonable diversion of resources

There is mandatory disclosure in the public interest where public interest outweighs contemplated harm

DiscussionDiscussion

THANK YOU

Acknowledgement

SAHRC PAIA Guide

Know You Rights - FXI