Cover of Legal Obligations manual

 

Parliamentary Office
Legal Obligations Handbook:
PROMOTION OF ACCESS TO INFORMATION ACT

Contents

Introduction
Applicability of the Act
Churchesí Obligations under the Act
Requests for information



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 church) 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). [For more information on PAIA, see ODAC's "The Plain Language Version of the PAIA" and the PAIA section of the South African Human Rights Commission web site.]


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 profession, as well as to any former or existing juristic person. As such, the provisions of the Act directed toward private bodies would be applicable to churches, church schools, etc. 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 local congregation or diocese, etc. has to submit a manual. It is suggested that the national denominations modify the template in Appendix 14 to make it church-specific and then distribute it to local congregations to complete.


CHURCHES' OBLIGATIONS UNDER THE ACT

Publish a manual

Every private body must publish a simple manual in line with section 51 of the Act. For most faith-based organisations, the deadline for publishing a manual is now 31 December 2011. [Unlisted companies in some sectors that have 50 or more employees or turnover greater than certain amounts must submit a manual by 31 December 2005. See Government Gazette No. 27988 (31 August 2005) for more details.]

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 SAHRC has published a guide on how to create a manual. The SACC has prepared a summary of the guide in MS-Word format that can be used as a template for a manual. (Internet Explorer users should right-click on the link and select "Save target as...".)

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.

Additionally, the head of a church must make the manual available for public inspection during office hours and upon request, and place it on the church's website (if any).

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 church's website. If a church 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.


REQUESTS FOR INFORMATION

Handling requests for information

Churches must respond to requests for information. It has been suggested that private bodies, like churches, 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. [See further the Plain Language Version of PAIA, p. 35.] 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. (This form can be found in Appendix 15 of this manual, and 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 s. 71).

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 in Appendix 16 of this manual or 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.

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 personís 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.

14 July 2004

 

 
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