2. THE RIGHT TO INFORMATION PROMOTION OF ACCESS TO INFORMATION ACT (PAIA) BY Titus Moetsabi Head-Access to Information Programme

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. Guide Centres All offices of Dept of Justice & Const. Dev All post offices Gov. Gazette Institutional website, where possible

12. 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

13. Manuals of Private Bodies South African Human Rights Commission[SHRC] Website if possible Office of head of private body Government Gazette

14. 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

15. 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

16. Information Manuals of Public Bodies S 14 PAIA 3 Of the official languages Should assist to access records of public body

17. 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

18. 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

19. Access to Public Body Manual Every office of that public body Website, if avaialble SAHRC Government Gazette in 3 official languages

20. 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

21. 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

22. 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

23. 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 shouldbe provided Postal address/fax number of requester inRSA Manner in which requester wants notification on outcome of request

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. Internal Appeal Fees Must be paid Decision on internal appeal may be deferred until fee is paid

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. Discussion THANK YOU Acknowledgement SAHRC PAIA Guide Know You Rights - FXI