the right of access to information

by Marianne Mokken | August 3, 2021

As of 30 June 2021, the Information Regulator of South Africa has taken over the regulation of the Promotion of Access to Information Act 2000 (PAIA). Since the inception of PAIA in 2001, most small private bodies were exempt from the provisions to compile a manual in terms of Section 51(1) of PAIA.

Awareness about the manual has come to the fore again with the advent of the Protection of Personal Information Act 2013 (POPIA). Regulations published in terms of POPIA require the appointed information officer to “ensure that a manual is developed, monitored, maintained and made available as prescribed by Section 14 and 51 of the Promotion of Access to Information Act, 2000”.1

The exemption from Section 51(1) of PAIA, which has been extended many times, is however set to come to an end on
31 December 2021. The Regulator has indicated that this will be a final extension of the exemption and that as of 1 January 2022, all public and private entities will have to comply with this requirement of PAIA.2

Who is exempted?

According to the exemption3private bodies are exempt from compiling a manual, except those that are:
  1. Not private companies as defined in the Companies Act 2008; and
  2. Private companies as defined in terms of the Companies Act 2008 and operates within one of the designated sectors and has 50 or more employees; or
  3. Private companies as defined in terms of the Companies Act 2008 and has a total annual turnover equal or more than the prescribed amount.
See Table A below for the designated sectors and prescribed amounts.

Table A

[dvmd_table_maker tbl_row_header_count=”0″ _builder_version=”4.16″ _module_preset=”default” global_colors_info=”{}”][dvmd_table_maker_item col_label=”Designated sectors” col_content=”Designated sectors4
Agriculture
Mining & Quarry
Manufacturing
Electricity, Gas and Water
Construction
Retail and Motor Trade and Repair Services
Wholesale Trade, Commercial Agents and Allied Services
Catering, Accommodation, and other Trade
Transport, Storage and Communications
Finance and Business Services
Community, Special and Personal Services” col_chead_cell_color=”#1ad9c6″ col_chead_cell_padding=”20px||20px||true|false” _builder_version=”4.16″ _module_preset=”default” global_colors_info=”{}”][/dvmd_table_maker_item][dvmd_table_maker_item col_label=”Total annual turnover” col_content=”Total annual turnover
R 6 million
R 22.5 million
R 30 million
R 30 million
R 15 million
R 45 million
R 75 million
R 15 million
R 30 million
R 30 million
R 15 million” col_chead_cell_color=”#1ad9c6″ col_chead_cell_padding=”20px||20px||true|false” _builder_version=”4.16″ _module_preset=”default” global_colors_info=”{}”][/dvmd_table_maker_item][/dvmd_table_maker]
This exemption however does not mean that these private entities are exempt from the rest of PAIA.

What are the requirements for private bodies in terms of PAIA?

Section 32 of the Constitution provides for the right of access to information. The aim of PAIA is to give effect to this right subject to justifiable limitations by fostering a culture of transparency and accountability and by actively promoting a society where South Africans have access to information to exercise and protect their rights.5

Keeping this in mind, Section 50 requires a private body to give access on request to a person to any record a private body holds to exercise their rights. Such request must be made in the required format and if they follow the prescribed process.
For private bodies the required format is currently Form C.6 The regulations prescribing this form have however been revised and we are waiting for the publication of the draft regulations.7 The draft regulations also contain a schedule of the fees payable to a private body by someone requesting information. The suggested fees are:8

[dvmd_table_maker tbl_row_header_count=”0″ _builder_version=”4.16″ _module_preset=”default” global_colors_info=”{}”][dvmd_table_maker_item col_label=”Numbers” col_content=”
1
2
3
4
5
6
7
8
9
10″ col_column_max_width=”0.1fr” col_tcell_cell_align_horz=”center” col_chead_cell_color=”#1ad9c6″ col_chead_cell_padding=”20px||20px||true|false” _builder_version=”4.16″ _module_preset=”default” global_colors_info=”{}”][/dvmd_table_maker_item][dvmd_table_maker_item col_label=”Description” col_content=”Description
Copy of Guide per A4-size page
Photocopy of A4-size page
Printed copy of A4-size page
For a copy in a computer-readable form on:
a) Flash drive
b) Compact disc
For a transcription of visual images per A4-size page
Copy of visual images
Transcription of an audio record, per A4-size page
Copy of an audio record
Deposit: If search exceeds 6 hours
Postage” col_chead_cell_color=”#1ad9c6″ col_chead_cell_padding=”20px||20px||true|false” _builder_version=”4.16″ _module_preset=”default” global_colors_info=”{}”][/dvmd_table_maker_item][dvmd_table_maker_item col_label=”Amount” col_content=”Amount
R3.90 per page
R3.90 per page or part thereof
R4.80 per page or part thereof

a) R0
b) R56.00
Service to be outsourced. Will depend on quotation from service provider
Service to be outsourced. Will depend on quotation from service provider
Service to be outsourced. Will depend on quotation from service provider
R56.00
One third of the amount per request calculated in terms of items 2 to 8.
Actual expense” col_chead_cell_color=”#1ad9c6″ col_chead_cell_padding=”20px||20px||true|false” _builder_version=”4.16″ _module_preset=”default” global_colors_info=”{}”][/dvmd_table_maker_item][/dvmd_table_maker]

On receipt of a request for information, the information officer of a private body must inform the person who requested the information within 30 days whether access will be granted to the information and the fee payable. Where access is denied, the private body must provide adequate reasons for the decision and inform the requester of their right to submit a complaint to the Information Regulator or approach a court for relief.9

PAIA makes provision for circumstances in which requests for information may be refused. These include, for example, if it involves the unreasonable disclosure of personal information of a third party10, if the information contains trade secrets11,
if disclosure would breach a duty of confidence12, if disclosure could reasonably be expected to endanger the life or physical safety of an individual13, etc.

The information officer of a private body should also make sure that, when a request for information relates to a third party, reasonable steps are taken to inform the third party of such a request. This will give the third party a chance to respond and give reasons why their information should not be disclosed or give consent for disclosure.

Keep an eye out for…

The Information Regulator has indicated that it will publish templates as guidance for entities to draw up their manuals.14
If you already have a PAIA manual, you will have to ensure that it is updated to comply with POPIA. It is also important to note that amendments brought about by POPIA has removed the requirement to submit your PAIA manual to the Information Regulator.

If you need any further assistance relating to the subject of this article or any other compliance related matters, please connect with us.

References:

  1. Section 4 of the Regulations Relating to the Protection of Personal Information
    https://justice.gov.za/inforeg/legal/20181214-gg42110-rg10897-gon1383-POPIregister.pdf
  2. https://justice.gov.za/inforeg/docs/ms/ms-20210629-PAIA-SAHRC.pdf
  3. To view the current extension of the exemption, follow this link:
    https://justice.gov.za/inforeg/legal/20210629-gg-PAIA-Exemption.pdf
  4. If you are unsure whether your entity falls within one of these sectors, you can follow the guidance provided by the Standard Industrial Classification Coding System. The latest version is available on the website of Stats SA:
    http://www.statssa.gov.za/?page_id=377
  5. Preamble to PAIA.
  6. For a copy of Form C follow this link:
    https://www.justice.gov.za/forms/paia/J752_paia_Form%20C.pdf
  7. To view the draft regulations, follow this link: https://justice.gov.za/inforeg/legal/20210423-PAIA-Regulations-Draft-April2021.pdf. Form C will be replaced by Form 2 of the draft regulations.
  8. Annexure B to the draft regulations.
  9. Section 56 of PAIA
  10. Section 63 of PAIA
  11. Section 64 of PAIA
  12. Section 65 of PAIA
  13. Section 66 of PAIA
  14. https://justice.gov.za/inforeg/docs/ms/ms-20210629-PAIA-SAHRC.pdf

0 Comments

Submit a Comment

Your email address will not be published. Required fields are marked *