Compliance for Public Bodies
An Information Officer’s Understanding of PAIA
The Promotion of Access to Information Act 2 of 2000 must be seen against the backdrop of its origin. It’s an origin which all South African’s share, a painful past that has shaped the freedom and rights that we relish today. It is a well known fact that pre 94’, South Africa was ruled by a sovereign regime whose only check and balance was itself, policies and laws had been enacted to shield the elitist of that time and to control the majority and the marginalised. The way in which information was disseminated to the public was subject to a lot of control. The media was also muzzled and controlled to always push and promote the regime’s agenda. Enter the 94’ elections and taking centre stage thereafter is the 96’ Constitution which is revered around the world as a model constitution to all democratic states.
South Africa can be seen as setting the bar very high having adopted a Constitution which is generally accepted as the best around the world and then going further and giving effect to one of the most important human rights which is found in section 32 of the Constitution ,the right to access information. This right which is effectively seen to be the “Olympic Torch” of our Constitution states:
Section 32(1)(a) : “provides that everyone has a right of access to any information held by the state and any information held by another person that is required for the exercise or protection of any rights.”
The section goes on further to provide that in Section 32(2):
Section 32(2): “National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.”
The Promotion of Access to Information Act, No. 2 of 2000 (hereinafter referred to as “PAIA” or “the Act”) was enacted and enjoys the status of national legislation and gives effect to the constitutional right of access to information. PAIA was promulgated in 2000, and came into operation on 9 March 2001.
As a general rule this means that all people in South Africa including non nationals can request information from public bodies and from private bodies. However, information from private bodies or business can only be obtained if it is needed to protect other rights.
After the Constitution was certified, the PAIA was passed. Because the PAIA legislation gives effect to a constitutional right, it is regarded as a law of superior status and applies throughout the country to all sectors. This means that laws which contradict the provisions of the legislation have to be brought in line with it so that the right of every person to access information is not limited without just cause.
WHAT IS THE OBJECTIVE OF THIS ACT?
- To promote transparency, accountability and effective governance of all public and private bodies, by empowering and educating everyone to understand their rights in terms of PAIA so that they are able to exercise this right in relation to public and private bodies, to understand the functions and operation of national spheres/public bodies, and to
- Effectively scrutinize, and participate in decision making by public bodies that affects their rights.
- To ensure that the state takes part in promoting a human rights culture and social justice.
- To encourage openness and to establish voluntary and mandatory mechanisms or procedures which give effect to the right of access to information in a speedy, inexpensive and effortless manner as reasonable possible.
The legislation was promulgated to do away with secrecy and to ensure that people are able to obtain information which would allow them to participate in decisions made by the State which affect their lives. In this way the work of public and private bodies becomes more transparent and reduces corruption, and poor decision making. This also works towards an open democracy for all and shuns the doctrines and secrecy policy of the shameful period in our history and thereby giving more effect to our beloved constitution.
The PAIA gives people a right of access to all kinds of government information, providing very limited reasons why officials can refuse to give such information. This Act is a good tool to hold government accountable for decisions on spending, and service delivery.
1.1) The objectives of PAIA are (Section 9):
- To give effect to the constitutional right of access to any information held by the State and any information held by another person and that is required for the exercise or protection of any rights
- To give effect to this constitutional right subject to justifiable limitation in a manner which balance this right with any other rights.
To give effect to the constitutional obligations of the State of promoting a human rights culture and social justice by including public bodies in the definition of “requester” and hereby allowing them to request information from private bodies upon compliance with the requirements in PAIA
To establish voluntary and mandatory mechanisms or procedures which will allow people to obtain records from public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible
- To promote transparency, accountability and effective governance of all public and private bodies by empowering everyone to understand their rights in terms of PAIA, to understand the functions and operations of public bodies and to effectively scrutinise and participate in the decision-making by public bodies that affect their rights.
THE AIM OF THE ACT (PAIA)
PAIA relates to all information that is held by the state and any information that is held by another person and that is required for the exercise or protection of any rights.
* the right of access to any information held by a public or private body may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as Contemplated in section 36 of the Constitution;
* reasonable legislative measures may, in terms of section 32(2) of the Constitution, be provided to alleviate the administrative and financial burden on the State in giving effect to its obligation to promote and fulfil the right of access to information.
PAIA in the Global Context:
Freedom of Information law (FIO) is becoming widely adopted around the world with South Africa being seen as the model for the African Continent. Over 50 countries globally have enacted FIO laws over the past 15 years, understandably nations such as the United States of America and Canada have had this law for many years and have very good systems and tools in place for the implementation of these laws. It is important to keep in mind that South Africa’s FOI law were enacted by the country through its own free will which sets it apart from other nations that were pressurised into enacting such laws by organisations such as the World Bank, the EU and the IMF, that would not lend money to countries that had no freedom of information laws. This means that we as South Africans decided on our own that access to information would help ensure a more democratic South Africa and it is important that we recognise the full extent of this fundamental human right. Countries that have had FOI laws forced upon them do not see the laws for their citizens but for compliance purposes and it is because of this that there are poor systems in place to follow up on implementation levels in these countries.
The global reasons and standards of FOI laws:
- Promote transparency and openness
- Effective and efficient governance
- Foster a culture of accountability
- FOI as a vehicle to access other rights, especially socio-economic rights
- To ensure participative democracy
- Provision of information in swift, inexpensive and effortless manner
When PAIA was drafted the above points were used as the foundations for the Act.
However there are many challenges faced locally and globally with FOI laws such as:
- Relevance to people’s needs
- Poor in protecting the poor: fees and courts
- Legal framework not campaign-friendly, especially the timeframes
- Access to information is crucial for developing and sustaining a human rights regime.
What are my functions as an Information Officer or Deputy Information Officer:
3.1) Who is the Information Officer or Deputy Information Officer in terms of PAIA?
The Information Officer of a public body is the head of that public body. This means that for a national or provincial government department it is the Director-General or the equivalent official of that department. For a municipality the municipal manager is the Information Officer and in the case of any other public bodies the Chief Executive Officer (CEO) is the Information Officer. Because the Information Officer of a public body is the head of that public body they usually delegate their duties to a Deputy Information Officer to ensure that request for information made to their organisation will be dealt with in an effective and efficient manner.
The Deputy Information Officer of a public body is an employee of that public body upon who the Information Officer has delegated his powers and duties in terms of PAIA. This means that the Deputy Information Officer will receive requests for information, facilitate the request and provide the necessary assistance to requester where need be on behalf of the Information Officer. The Information Officer still maintains direction and control over the Deputy Information Officer. This delegation of powers must be done in writing for it to be valid.
One of the functions of an Information Officer or Deputy Information Officer is to ensure that their contact information is available to the public at all time. In order to be in line with established best practice the following sources can be used to display this information:
- The government Communications and Information Systems website (compulsory in terms of section 16 of PAIA)
- The website of the public body
- The guide produced by the South African Human Rights Commission
- The section 14 manual of the particular public body
3.2) What is a section 14 manual?
PAIA prescribes that every public body must have an information manual. Section 14 of PAIA prescribes what a public body’s manual must contain. This manual serves as a roadmap to assist when making a request for information. The contact details of the Information Officer and every Deputy Information Officer of the organisation must be included in this manual.
This manual will show how the organisation is structured and the services it provides, a list of all the records held by the organisation and the process you must follow to lodge a request with the particular organisation. This means that a person must be able to find out exactly to whom they must send a request FORM A when they want to make a request from a public body., The manual must also include the phone number, email address and postal address of the Information Officer and any Deputy Information Officers to allow requesters to easily send the request form to the Information Officer or Deputy Information Officer of the organisation.
The section 14 manual must also include a list of the categories of information held by the public and should enable the reader to determine exactly what information is available from the public body. These manuals must also include the contact information of the South African Human Rights Commission’s PAIA unit.
3.3) Duties of the Deputy Information Officer:
When a person is requesting information from a public body the DIO of that public body must:
- Provide the requester with the request FORM A
- Help the requester complete the form by explaining what the form requires
- Receive the form and provide acknowledgment of reciept
- Help clarify exactly what records are being requested should it be unclear from the form
- Help the requester address the form to the correct body holding the requested information or transfer the request, if necessary, within 14 days of receiving it to the appropriate public body which have the records requested. The DIO must inform the requester of this transfer
- Advise the requester if there are any fees payable
- Provide the requester with an affidavit which must include the steps taken to find the information requested if the information requested no longer exists or could not be found
- Inform the requester of the decision on whether or not to grant access to the information requested in writing.
- Provide reasons for the refusal which must be more than a mere restatement of the grounds for non disclosure
- Provide the information in the form requested
- Inform the requester in writing, with valid reasons, should they require an extension of the 30 day period which is provided in which to provide a response
- Advise the requester of their right to appeal if their request is denied.
- Advice the requester of their right of recourse in a court of law should your appeal be refused or if you request was refused.
WHAT IS REQUIRED FOR COMPLIANCE IN TERMS OF PROMOTION OF ACCESS TO INFORMATION (“PAIA”)
Compliance with the Act requires an organisation to implement clear policies and procedures, understood and complied with by all in the organisation. Every public body and some private bodies (business entities) in South Africa are obliged to prepare an information manual, which sets out the categorisation of information, and the procedures required to apply for access to the information of that body/entity.
The Act prescribes that the manual should set out, in sufficient detail a description of the categories of records held by the organisation and the contact details of the Information and Deputy Information Officer(s).
PUBLICATIONS THAT MUST BE PREPARED IN TERMS OF THE ACT
Section 32 Compliance
The PAIA provisions carry a mandatory obligation for all levels of public bodies to comply with section 32 of PAIA. The required section 32 report seeks to inform the monitoring duty of the South African Human Rights Commission in respect of transparency and accountability in the public sector. The Commission is charged with the receipt of section 32 reports in terms of PAIA from all public bodies annually. The reporting period for the section 32 report in terms of PAIA is from 1 April to 31 March every year. This means that public bodies must submit their section 32 reports within the first week of April each year.
Deputy Information Officers must submit the statistics required in terms of section 32 in the table format provided by the Commission. Special emphasis must to be accorded to the recommendations/observations and comments to be included by the Deputy Information Officer where this is applicable.
The section 32 report must clearly state:
- the name of the public entity;
- the name of the deputy information officer and information officer
- and the period for which the report is submitted.
Please also note that the names of public bodies not complying with PAIA will be submitted to the National Assembly of Parliament in terms of section 84 of PAIA.
PROCESS OF SUBMITTING TO THE SAHRC SECTION 14, 51 MANUALS AND S32 REPORTS
The DIO of a public body (section 14) or the head of a private body (section 51) must compile a manual and send it by post to:
South African Human Rights Commission
33 Hoofd Street
Braampark Forum 3
OR alternatively attach it and send it via electronic email at email@example.com.
The received manuals will be recorded on the SAHRC’s compliance database. Acknowledgement of receipt will be sent to the respective department or private entity. The actual manual will not be posted on the website but the public body or private body’s name will be cited on the website and also on the SAHRC’s annual report
The section 32 report must be posted or emailed to the SAHRC offices by end of March with a grace period of first week of April. Non complying public offenders will be cited into the annual report and the public body’s name submitted to the National Assembly and cited as either non compliant or repeat offender.
OFFENCES FOR NON COMPLIANCE WITH SECTION 14 AND 51:
Section 14 and 51 of PAIA place mandatory obligations on public and private bodies to compile information manuals. Noting that compliance with these provisions is mandatory, the Act further places the following offences for non compliance:
Section 90(2) “an information officer who willfully or in a grossly negligent manner fails to comply with the provisions of section 14 commits an offence and is liable on conviction to a fine, or to imprisonment for a period not exceeding two years.
Section 90(3) A head of a private body who willfully or in a grossly negligent manner fails to comply with the provisions of section 51 commits an offence as is liable on conviction to a fine or to imprisonment for a period not exceeding two years..
PENALTIES FOR NON COMPLIANCE OF SECTION 14
The information officer of a public body or a delegated information officer who fails to comply with the provisions of section 14 would be liable for non-compliance and the sanctions would be:
- imprisonment for a period not exceeding two years.