Reference Acts and/or documents
Promotion of Access to Information Act, 2000
Gazette 45057 dated 27 August 2021 – Regulations relating to the Promotion of Access to Information, 2021
Most commonly used forms:
Form 1 – Request for a copy of the PAIA Guide (from the company you are requesting information from; if necessary)
Form 2 – Request for access to a record
Form 5 – Complaint Form
Form 6 – Acknowledgement of Receipt of Complaint
Form 7 – Notification to Information Officer (the affected company) from the Information Regulator
Form 8 – Development and Outcome of the Investigation
Form 9 – Settlement Meeting
Form 10 – Settlement Certificate
Form 11 – Conciliation of Matter
Form 12 – Conciliation Certificate
Electronic Communications and Transactions Act, 2002
The Minister of Justice and Correctional Services signed a regulation dated 29 July 2021 effective from 27 August 2021 when Gazette 45057 was published. This Regulation provides further information related to use of the PAIA Act and associated documents.
What is the purpose of the Act?
The purpose of the Promotion of Access to Information Act, 2000 is to give effect to section 32 of the Constitution. Section 32 provides for “the right of access to information” and states that “everyone has the right of access to any information held by the State and to information held by another person that is required for the exercise or protection of any rights.”
The motivation for giving effect to the right of access to information is to foster a culture of transparency and accountability both in Public and Private Bodies; and to promote a society in which the people of South Africa have effective access to information, to enable them to more fully exercise and protect all their rights.
Examples of “Public Bodies” include National and Provincial Government Departments, Municipalities and Parastatals (e.g. Eskom, Telkom, Transnet).
Examples of “Private Bodies” include a natural person or partnership that carries on trade, business or profession; and a former or existing juristic person.
Access to records & Procedure for requesting access to information
Records held by a public or private body may be accessed on request only once the requirements for request for access have been met by use of Form 2 as defined in the Act.
A requester in terms of the Act means any person making a request to access the record of that public body; or a person acting on behalf of the person.
The prescribed form must be filled in with sufficient detail to at least enable the information officer to identify:
The record or records requested;
The identity of the requester;
What form of access is required; and
The postal, electronic mail address or fax number of the requester.
A requester must state that he or she requires the information in order to exercise or protect the right, and clearly state what the nature of the right to be exercised or protected is. The requester must also provide an explanation as to why the requested record is required to exercise or protect that right.
The requester will be informed in writing whether access has been granted or denied. If, in addition, the requester requires reasons for the decision in any other manner, he or she must state in writing the manner and the particulars required.
If a request is made on behalf of another person, the requester must then submit proof of the capacity in which the requester is making the request to the satisfaction of the Information Officer or Deputy.
Upon receipt of the request, where applicable, the Information Officer or her Deputy will inform any third party affected by the request within 21 days of receipt of the request. The third party must inform the Information Officer or Deputy why such information should not be made available to the requester within a specified period of time.
Within 30 days of receipt of a request, the Information Office or Deputy, must decide whether to grant or decline a request and give notice with reasons (if required) to that effect. The 30-day period within which the affected company must decide whether to grant or refuse a request, may be extended for a further period of not more than 30 days if the request is for a large quantity of information, or the request requires a search for information held at another office (other than the Head Office) and the information cannot reasonably be obtained within the original 30-day period. The Information Officer will notify the requester in writing should an extension be necessary.
The Act provides for two types of fees:
- a request fee, which will be a standard fee, and an
- access fee, which must be calculated by considering reproduction costs, search and preparation time and cost, as well as postal costs where applicable.
Grounds for refusal to supply information
The Information Officer or Deputy may refuse a request for information for the following reasons:
(a) Where the disclosure would amount to an unreasonable disclosure of personal information;
(b) Where the disclosure would amount to disclosure of the trade secrets of a third party;
(c) Where the disclosure would lead to a revelation of financial, commercial, scientific or technical information of a third party;
(d) Where such information was supplied in confidence by a third party;
(e) Where the disclosure would breach the duty of confidence owed to a third party;
(f) Where the disclosure would endanger the life or physical safety of an individual;
(g) If the disclosure is prohibited under the Criminal Procedure Act;
(h) If the disclosure is privileged under legal proceedings or research conducted by or on behalf of a third party; and
(i) Where the disclosure would compromise the investigation where proceedings are pending.
Section 77A of the PAIA Act allows for complaints to be submitted to the Information Regulator. Form 5 as defined in the PAIA Act is used for this purpose.
This form is designed to assist the Requester or Third Party (“the Complainant”) in requesting a review of a Public or Private Body’s response or non-response to a request for access to records under the Promotion of Access to Information Act.
The PAIA Act gives a member of the public a right to file a complaint with the Information Regulator about any of the nature of complaints detailed in part F of complaint Form 5.
It is the policy of the Information Regulator to defer investigating or to reject a complaint if the Complainant has not first given the public or private body an opportunity to respond to and attempt to resolve the issue. To help the affected company address your concerns prior to approaching the Information Regulator, you are required to complete the prescribed PAIA Form 2 and submit it to the company.
A copy of Form 2 will be provided to the affected company that is the subject of your complaint. The information you provide on this form, attached to this form or that you supply later, will only be used to attempt to resolve your dispute, unless otherwise stated.
The Information Regulator will only accept your complaint once you confirm having complied with the prerequisites below.
You are required to attach copies of the following documents, if you have them, when submitting your complaint:
a. Copy of the form to the Body requesting access to records;
b. The Body’s response to your complaint or access request;
c. Any other correspondence between you and the Body regarding your request;
d. Copy of the appeal form, if your compliant relates to a public body;
e. The Body’s response to your appeal;
f. Any other correspondence between you and the Body regarding your appeal;
g. Documentation authorizing you to act on behalf of another person (if applicable);
h. Court Order or Court documents relevant to your complaint, if any.
Note that the complaint form requires that the complainant provide truthful and accurate information; the Regulator may also access information related to the complainant (with approval on the applicable form too).
The Information Regulator will acknowledge receipt of your complaint by use of their internal Form 6 – Acknowledgement of Receipt of Complaint.
Within 20 days of receipt of the complaint and that the Information Regulator has agreed to investigate the matter, the Regulator will inform the affected company of the complaint via Form 7 – Notification to Information Officer.
During this process and if deemed necessary, the Information Regulator may request that the parties have a settlement meeting (in person, virtual or in writing) to resolve the matter and secure a settlement agreement. In this case the Regulator will act as a facilitator.
If an agreement is reached the Information Regulator will issue a Settlement Certificate.
The Regulator may also act as a conciliator too.
Persons aware of typical CCMA procedures will recognise the similarity of these resolution processes.
If no settlement is reached, the Information Regulator will invoke section 77C(1) of the Act and determine an outcome binding on both parties.
In closing, it is hoped that members of the public and private and bodies properly apply their minds when submitting requests for access to information. From the established complaints procedure it appears that this process is a time-consuming and paper-driven exercise. The Information Officer/Deputy and the Regulator’s time should not be wasted on frivolous requests for information.
Author Craig Tonkin