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The Promotion of Access to Information Act

This Act gives effect to the constitutional right of access to information contained in the Bill of Rights. Everyone has the right to
access to any information held by the State and to information held
by another person, which is required for the exercise or protection of any rights. This Act applies to both private and public bodies. It is
aimed at fostering a culture of transparency and accountability.

Implications for Public Bodies and CCMA

The Act applies to a record of a public body whenever it came into
existence, which is under the control or in the possession of a public body or an official thereof. The Act applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record of a public body, which is materially inconsistent with the object or specific provision of the Act.

The Act cannot be used for access to records required for criminal
or civil proceedings where such proceedings have already commenced and where the records are obtainable / accessible in
terms of other legislation.

A requester must be given access to a record if he has complied
with the procedural requirements of the Act and where there are no
grounds of refusal applicable. A request includes a request for
access to a record, which contains personal information about the
requester. The reasons why the requester requires access to the
information or the information officer’s belief as to what the reasons are of the requester for such access are irrelevant.

Duties placed on Public Bodies

The body must compile a manual which contains a description of its structure and functions, contact details of the information officer,
lists of what records the body holds together with a list of categories of records, a list of categories of records automatically available and a list of services available to the public, to name a few. This manual must be made available to the public.

Each public body must designate an information officer and as many deputy information officers as necessary to render the public body as reasonably accessible to requesters as possible.
Information officers must assist a requester who requires assistance in completing the request form - reasonable assistance must be rendered free of charge.

Where records cannot be found or do not exist, the information
officer must state all steps taken to find the records on affidavit.
The public body has 30 days to decide whether the record will be
made available or not. An extension may be granted.

If the request is granted, the information officer must advise the
requester of the fee to be paid and in what form the access will be
made. If the request is refused, the information officer must notify the requester of the grounds of refusal and the right to lodge an internal appeal.

Grounds of refusal

The grounds of refusal fall into two main categories; mandatory
grounds of refusal and discretionary grounds of refusal.

Mandatory grounds of refusal

These are grounds where access must be refused. In other words,
there is an absolute refusal on these grounds and access cannot be given to the requester. The following are examples:
• Protection of the privacy of a third person that is a natural
person where disclosure would involve the unreasonable
disclosure of personal information of such person, including a
deceased person.
• Protection of commercial information of a third party e.g. trade
secrets, commercial information of a party used in contractual
negotiations or in commercial competition.
• Privileged records arising in legal proceedings - unless the
privilege is waived.
• Research information of a third party and of a public body.

Discretionary grounds of refusal

The information officer in these circumstances has discretion as to
whether or not to grant access. A few examples of such grounds of
refusal are the following:
• Access to records, which can reasonably be expected to cause
prejudice to the defence or the international relations of the
Republic of South Africa.
• Access to records, which may materially prejudice the economic
interests or financial welfare of the Republic of South Africa, and
impair the ability of the government to manage the country.

Frivolous and/or vexatious requests

The information officer may refuse access to any record if the
request is manifestly frivolous or vexatious in terms of section 45 .
The request may also be refused if the work involved in processing
the request would substantially and unreasonably divert the
resource of the public body.

Section 46: Over-Rider Clause

Despite the mandatory grounds of refusal, if the access would reveal a failure to comply with the law or an imminent danger, affect
the public safety, is an environmental risk, and such harm outweighs the harm contemplated in the mandatory section, then access must be given.

Relevant legislation:
The Promotion of Access to Information Act, Act 2 of 2000, as amended.