Transcript Bankseta & FASSET Proatia Presentation

Promotion of Access to
Information Act
Act 2 of 2000
Michael Silber
011 806 5906
[email protected]
Deloitte & Touche Legal
February 2003
Introduction
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Background & objective
Private Bodies vs Public Bodies
Core Issues
Information Officer
The Manual (Section 14 / 51)
Categorisation and Classification
Right of Access / Grounds for Refusal
Notification to 3rd parties
Manner of Access / Form of Request
Decisions and Response Periods
Reporting to Human Rights Commission
General & Liability
Background and Objective
Background
• Gives effect to right of access to information as
mandated by s32 of Constitution
• Drafting Process began in 1994
• Open Democracy Bill (1998)
- Rights of Access & Protection
- Split into
• Right of access to information
- Proatia (PAIA)
• Protection of personal information
- Law Commission Privacy and Data Protection Project
• Date of operation
- Promulgated February 2000
- Information Access Effective March 2001
- Amended November 2002
Background
• Modelled on a number of foreign jurisdictions, notably
Australia and Canada and, to a lesser extent, USA,
Ireland and New Zealand
• unusual as - mandated by a specific constitutional right of
access to information
- the right (and therefore the Act) not confined to
public-sector information and includes access to
private-sector information.
Objective
• To give effect to Constitutional right of access to
information held by the State or any other person that
is required for the exercise or protection of any right
(S32)
• Subject to limitations as prescribed by S36 - can be
limited only in terms of law of general application to the extent
that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and
freedom, taking into account all relevant factors, including- the nature of the right;
- the importance of the purpose of the limitation;
- the nature and extent of the limitation;
- the relation between the limitation and its purpose; and
- less restrictive means to achieve the purpose
Public Bodies and Private Bodies
Public Bodies vs Private Bodies (I)
• Public Body - any department of state or administration in the national or
provincial sphere;
- of government or any municipality in the local sphere of
government; or
- any other functionary or institution when—
• exercising a power or performing a duty in terms of the
Constitution or a provincial constitution; or
• exercising a public power or performing a public function in terms
of any legislation;
• SETAs = Public Bodies
• “functionary or institution …. exercising a public power or
performing a public function in terms of any legislation”
- Skills Development Act
- PFMA
Public Bodies vs Private Bodies (II)
• Private Body –
- a natural person (ie a human being) who carries or
has carried on any trade, business or profession,
but only in such capacity;
- a partnership which carries or has carried on any
trade, business or profession; or
- any former or existing juristic person,
but excludes a public body;
• Examples
- An accounting firm (sole practitioner or partnership) but not
the practitioner/partners in their personal capacities
- Any company, cc, trust etc (which is not a public body)
Public Bodies vs Private Bodies (III)
• Public Bodies –
- Sections 11 to 49
- Sections 74 to 77 – internal appeals
• Private Bodies –
- Sections 50 to 73
• Common
- Sections 1 to 10
- Sections 78 to 93
• General principles overlap with some differences in
detail
• Focus on PRIVATE BODIES
Core issues
• Administrative issues
- Appoint Information Officer
• Tasked with dealing with requests and reporting to the
SAHRC (see later)
- Finalise Manual (S14 – Public, S51 – Private)
• Before 28 February 2003 (see later)
• Functional issues
- Prepare to receive and administer requests
- Understand procedures to be followed
- Understand rights and obligations
Information Officer
The Information Officer (I)
• The “head” being –
- Individual - individual him/herself or authorised person
- Partnership - designated partner or authorised person
- Juristic entity - CEO / equivalent officer / authorised person
• Responsibilities
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Publish Manual
Co-ordinate by whom and how requests are dealt with
Inform affected 3rd parties of right to object
Report to the SAHRC
• Recommendation:
- Confirm appointment and responsibilities of IO and deputy IOs
in Conditions of Employment
The Information Officer (II)
• Unlike the Public Body IO –
- Authorisation of person to act as the “head” of the
Private Body is a delegation of responsibility and
possibly liability
- Public Body IO may appoint “deputy” IOs (may
delegate but remains liable and responsible)
• Need for deputy IOs depend on size of Public Body and
frequency of requests
• Delegation MUST be in writing
- No need to assist requestors (compared to s19)
The Manual
Manual
• The IO must publish a manual in the Gazette –
- within 6 months of the creation of the Private Body; OR
- before 28 February 2003 and send a copy to the HRC
that must contain, amongst others :
- Full contact details of the details of the IO (physical, postal,
telephonic and electronic);
- description of the subjects on which the Private Body holds
records and the categories of records held on each subject, with
sufficient detail to facilitate a request for access to a record
- description of the records of the body, which are
• available without formal request
• available in accordance with any other legislation;
• Regular updates
Do all Private Bodies require their own
Manual?
• Each company (subsidiary, associate etc) is a separate
Private Body
- In principle, each one should have own Manual
• S14(4) does not apply - If the functions of two or more public bodies are closely
connected, the Minister may determine that the two or more
bodies compile one manual only.
- The public bodies in question must share the cost of the
compilation and making available of such manual as the Minister
determines.
• Nor does: the Minister may - (a) determine that a public body is to be regarded as part of
another public body;
- (b) determine that a category of public bodies is to be regarded as
one public body
Do all Private Bodies require their own
Manual?
• Options
- Publish separate manuals for each group entity
• Inconvenience
• Expense
- Publish one manual
• May not comply with the Act
- Publish a single manual BUT indicate information
that is not uniform through the group, by way of
annexures etc
• Group can appoint a single IO
• Centralised request function vs devolved
Categorisation and Classification
Is it important?
Why is it necessary?
• Need to find information quickly and efficiently
when a request is received (30 days to
comply)
• Need to know the sensitivity of the information
• Need to notify 3rd parties where necessary
• Need to ensure that the information is the most
relevant and up-to-date version
Getting it right the first time
• Standard categories throughout the
business, not one for the Manual and
another for the day to day operations
• Reduced rework and modification (avoid
publishing the manual each time there is a change)
• Eliminate failure to respond to requests
A possible action plan
• Review document management procedures and
practices
• Map all records (at a high level)
• Categorise the types of records and the subjects
covered
• Develop clear policies regarding which records will be
automatically available to the public
• Develop procedures and standard forms to deal with
requests (Appoint, educate and empower your people
to deal with requests)
• Develop clear policies for the ongoing categorization
and storage of records
• Ensure that your people are trained on the procedures
and policies
Right of Access
and
Grounds for Refusal
Right of Access
• Unlike a Public Body, a request to a Private Body must
be based on “the exercise or protection of any rights”
• A requester must be given access to a record if- Request is in the public interest
- The request complies with procedural requirements; and
- Access to that record is not refused in terms of any ground for
refusal ito Act.
• Otherwise no obligation to grant access, based on
reasons
• Right of access is affected by - Any reasons the requester gives for requesting access; or
- The IO’s belief as to what the requester’s reasons are for
requesting access.
Grounds for refusal (I)
• Must refuse if- unreasonable disclosure of personal information about 3rd party
who is a natural person (but various exclusions)
- trade secrets of 3rd party
- financial, commercial, scientific or technical information (other than
trade secrets) of a 3rd party, the disclosure of which would be likely to
cause harm to the commercial or financial interests of that 3rd party
- information supplied in confidence by a 3rd party, the disclosure of
which could reasonably be expected • to put that third party at a disadvantage in contractual or other
negotiations; or
• to prejudice that 3rd party in commercial competition.
- disclosure of confidential information of 3rd party would breach a
duty of confidence owed to the 3rd party in terms of an agreement
- research info of a 3rd party which could cause disadvantage
- endanger safety of any individual
- legal privilege
Grounds for refusal (II)
• May refuse- Security of property or method of protecting an individual
- Commercial information of that Private Body including –
• Trade secrets
• financial, commercial, scientific or technical information (other than
trade secrets) of the body, the disclosure of which would be likely to
cause harm to the commercial or financial interests of the body
• information, the disclosure of which could reasonably be
expected
- to put the body at a disadvantage in contractual or other
negotiations; or
- to prejudice the body in commercial competition.
- Research of the Private Body disclosure of which would
cause serious disadvantage
Grounds for refusal (III)
• Must disclose:
- Records which would reveal evidence of –
• substantial contravention of, or failure to comply with, the law; or
• imminent and serious public safety or environmental risk;
and
- the public interest in the disclosure of the record clearly
outweighs the harm contemplated in the provision in question.
Notification to 3rd Parties
3rd Party notification
• Requests for records that impact on 3rd parties
(mandatory protections) - IO must inform a third party to whom or which the record
relates of the request.
- Within 21 days by fastest means possible
• Notice to 3rd party must comply with minimum
requirements (s71)
• 3rd party may within 21 days- make written or oral representations to the information officer
concerned why the request should be refused; or
- give written consent for the disclosure.
Manner of Access
Form of request (I)
• A request for access must be made –
- in the prescribed form to the IO at his or her
address or fax number or electronic mail address.
• No provisions for illiteracy or disability BUT the
requestor can specify form of access required
• Right seeking to exercise or protect and
reason record required
• May include prescribed REQUEST fee. If not –
- IO need not process request until received
Form of request (II)
• The form for a request of access must at least require
the requester concerned to indicate—
- sufficient particulars to enable an official of the public body to
identify—
• the records requested; and
• the requester;
- postal address or fax number;
- if, in addition to a written reply, the requester wishes to be
informed of the decision on the request in any other manner,
to state that manner and the necessary particulars to be so
informed; and
- if the request is made on behalf of a person, to submit proof of
the capacity in which the requester is making the request, to
the reasonable satisfaction of the information officer.
Decisions and Response Periods
Decision and Response periods (I)
• Notice of decision within 30 days of receiving
request
• If request granted, above notice must state- access fee (if any) to be paid;
- the form in which access will be given; and
- that the requester may lodge 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 application
• May extend once for up to a further 30 days for
specified reasons
Decision and Response periods (II)
• If the request for access is refused, the notice
must—
- state adequate reasons for the refusal, including the
provisions of this Act relied upon;
- exclude, from such reasons, any reference to the
content of the record; and
- state that the requester may lodge an application
with a court against the refusal of the request, and
the procedure (including the period) for lodging the
application.
Extension of response periods
• May extend for additional 30 days if- 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 concerned;
- the request requires a search for records in, or collection
thereof from, an office of the private body not situated in the
same town or city as the office of the information officer 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; or …
- the requester consents in writing to such extension.
Failure to respond in time
• Deemed refusal
- If an information officer fails to give the decision on
a request for access to the requester concerned
within the period contemplated in section 56(1), the
information officer is, for the purposes of this Act,
regarded as having refused the request.
Records cannot be found
• If—
- all reasonable steps have been taken to find a record
requested; and
- there are reasonable grounds for believing that the record—
• is in the private body’s possession but cannot be found; or
• does not exist,
- the IO must, by way of affidavit or affirmation, notify the
requester that it is not possible to give access to that record.
• The affidavit or affirmation must give a full account of
all steps taken to find the record in question or to
determine whether the record exists, as the case may
be, including all communications with every person
who conducted the search on behalf of the IO
General
Health or other Records
• Health related record of the requestor or
principle if requestor is a representative
• IO is of the opinion that disclosure might
seriously harm the subject –
- IO MAY consult with health practitioner appointed
by requestor / subject of record
• Give access to nominated health practitioner
• If health practitioner agrees may cause serious
harm, access only allowed if counselling or
other arrangements in place
SAHRC
• Reporting unlike Public Bodies not compulsory
- May report
- Only if requested by the SAHRC
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Consult on difficulties in implementing the Act
Develop guide
Circulate manuals
Educate and advance the use of the Act
General
• Correction of Personal Information
- If no provision for the correction of personal information in a record of
a public or private body exists, that public or private body must take
reasonable steps to establish adequate and appropriate internal
measures providing for such correction until legislation providing for
such correction takes effect.
• Offences A person who with intent to deny a right of access in
terms of this Act –
- destroys, damages or alters a record;
- conceals a record; or
- falsifies a record or makes a false record,
commits an offence and is liable on conviction to a fine or to
imprisonment for a period not exceeding two years.
Liability
• Limitation of Liability
No person is criminally or civilly liable for anything
done in good faith in the exercise or performance or
purported exercise or performance of any power or
duty in terms of this Act
Thank You