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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