2. Promotion of Access to Information Act Act 2 of 2002 Michael Silber 011 806 5906 msilber@deloitte.co.za Deloitte & Touche Legal January / February 2003

3. Introduction Background & objective Private Bodies vs Public Bodies Information Officer Manual (Section 14 / 51) Right of Access Notification to 3 rd parties Manner of Access Decisions and Response Periods Internal Appeals Reporting to Human Rights Commission

4. Background and Objective

5. 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 ­Proclaimed March 2001 ­Amended November 2002

6. 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.

7. 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 of S36 - 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

8. Public Bodies and Private Bodies

9. 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

10. 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)

11. 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

12. 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

13. Information Officer

14. 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 ­Publish Manual ­Co-ordinate by whom and how requests are dealt with ­Inform affected 3 rd parties of right to object ­Recieve and channel Internal Appeals to “relevant authority” ­Report to the SAHRC Recommendation: ­Confirm appointment and responsibilities of IO and deputy IOs in Conditions of Employment

15. 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)

16. The Manual

17. 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

18. 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

19. 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

20. Right of Access

21. 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.

22. Grounds for refusal (I) Must refuse if- ­unreasonable disclosure of personal information about 3 rd party who is a natural person (but various exclusions) ­trade secrets of 3 rd party ­financial, commercial, scientific or technical information (other than trade secrets) of a 3 rd party, the disclosure of which would be likely to cause harm to the commercial or financial interests of that 3 rd party ­information supplied in confidence by a 3 rd 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 3 rd party in commercial competition. ­disclosure of confidential information of 3 rd party would breach a duty of confidence owed to the 3 rd party in terms of an agreement ­research info of a 3 rd party which could cause disadvantage ­endanger safety of any individual ­legal privilege

23. 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

24. 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 ­(b) the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.

25. Notification to 3 rd Parties

26. 3 rd Party notification Requests for records that impact on 3 rd 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 3 rd party must comply with minimum requirements (s71) 3 rd 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.

27. Manner of Access

28. 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

29. 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.

30. Decisions and Response Periods

31. 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

32. 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.

33. 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.

34. 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.

35. 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

36. 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

37. SAHRC Reporting unlike Public Bodies not compulsory ­May report ­Only if requested by the SAHRC Consult on difficulties in implementing the Act Develop guide Circulate manuals Educate and advance the use of the Act

38. 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.

39. 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

40. Thank You