Transcript THE RIGHT TO INFORMATION -

THE RIGHT TO
INFORMATION
PROMOTION OF ACCESS TO INFORMATION
ACT (PAIA)
BY
Titus Moetsabi
Head-Access to Information Programme
MISCHIEF ACT ADDRESSES
Pre-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 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 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 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
Commission
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 PAIA
State 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 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 Centres
The 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 Centres
All offices of Dept of Justice & Const. Dev
All post offices
Gov. Gazette
Institutional website, where possible
Information 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 Bodies
South African Human Rights
Commission[SHRC]
Website if possible
Office of head of private body
Government Gazette
Information Manuals of Pvt
Bodies
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
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
Bodies
S 14 PAIA
3 Of the official languages
Should assist to access records of public
body
Information Manuals of Public
Bodies- 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
Bodies- 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 Manual
Every office of that public body
Website, if avaialble
SAHRC
Government Gazette in 3 official languages
Voluntary 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 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 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 Information
Sufficient 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 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
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 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
Body
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
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
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
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
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 Appeal
Requester 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
Must be paid
Decision on internal appeal may be deferred
until fee is paid
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 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 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 Refused
By 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 refused
Protection 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 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 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 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 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
Discussion
THANK YOU
Acknowledgement
SAHRC PAIA Guide
Know You Rights - FXI