Salient Features of the Promotion of Access to Information Act 2000

We have set out those sections of the Act that we believe are of interest to businesses when compiling their Manual. If you have any further questions, please address these to info@accesstoinfo.co.za

Definitions

1. In this Act, unless the context otherwise indicates—

‘‘head'' of, or in relation to, a private body means—

(a)      in the case of a natural person, that natural person or any person duly authorised by that natural person;

(b)      in the case of a partnership, any partner of the partnership or any person duly authorised by the partnership;

(c)      in the case of a juristic person—

(i)       the chief executive officer or equivalent officer of the juristic person or any person duly authorised by that officer; or

(ii)      the person who is acting as such or any person duly authorised by such acting person;

‘‘private body'' means—

(a)      a natural person who carries or has carried on any trade, business or profession, but only in such capacity;

(b)      a partnership which carries or has carried on any trade, business or profession; or

(c)      any former or existing juristic person,

but excludes a public body;

 ‘‘public body'' means—

(a)      any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or

(b)      any other functionary or institution when—

(i)       exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or

(ii)      exercising a public power or performing a public function in terms of any legislation;

‘‘record'' of, or in relation to, a public or private body, means any recorded information—

(a)      regardless of form or medium;

(b)      in the possession or under the control of that public or private body, respectively; and

(c)      whether or not it was created by that public or private body, respectively;

Section 50 - Right of access to records of private bodies

(1)      A requester must be given access to any record of a private body if—

(a)      that record is required for the exercise or protection of any rights;

(b)      that person complies with the procedural requirements in this Act relating to a request for access to that record; and

(c)      access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.

(2)      In addition to the requirements referred to in subsection (1), when a public body, referred to in paragraph (a) or (b)(i) of the definition of ‘‘public body'' in section 1, requests access to a record of a private body for the exercise or protection of any rights, other than its rights, it must be acting in the public interest.

(3)      A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made.

Section 51 – The Manual

(1)      Within six months after the commencement of this section or the coming into existence of the private body concerned, the head of a private body must compile a manual containing—

(a)      the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body;

(b)      a description of the guide referred to in section 10, if available, and how to obtain access to it;

(c)      the latest notice in terms of section 52(2), if any, regarding the categories of record of the body which are available without a person having to request access in terms of this Act;

(d)      a description of the records of the body which are available in accordance with any other legislation;

(e)      sufficient detail to facilitate a request for access to a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject; and

(f)      such other information as may be prescribed.

(2)      The head of a private body must on a regular basis update the manual referred to in subsection (1).

(3)      Each manual must be made available as prescribed.

(4)      For security, administrative or financial reasons, the Minister may, on request or of his or her own accord, by notice in the Gazette, exempt any private body or category of private bodies from any provision of this section for such period as the Minister thinks fit.

Section 52 - Voluntary disclosure and automatic availability of certain records

(1)      The head of a private body may, on a voluntary and periodic basis, submit to the Minister a description of—

(a)      the categories of records of the private body that are automatically available without a person having to request access in terms of this Act, including such categories available—

(i)       for inspection in terms of legislation other than this Act;

(ii)      for purchase or copying from the private body;

(iii)     from the private body free of charge; and

(b)      how to obtain access to such records.

(2)      If appropriate the Minister must, on a periodic basis and by notice in the Gazette—

(a)      publish any description so submitted; and

          (b)      update any description so published.

(3)      The only fee payable (if any) for access to a record described in a list so published is a prescribed fee for reproduction.

(4)      The head of a private body may delete any part of a record contemplated in subsection (1)(a) which, on a request for access, may or must be refused in terms of Chapter 4 of this Part.

(5)      Section 50 and any other provisions in this Act related to that section do not apply to any category of records included in a notice in terms of subsection (2).

Grounds for refusal of access to records

The mere fact that a business has established a Manual of the records maintained by the business does not automatically mean that any one may have access to those records. First and foremost the person who makes the request must be entitled to the records. Access must be granted to a record only if the following criteria are fulfilled:

• The record is required for the exercise or protection of any right; and
• The requestor complies with the procedural requirements set out in the Act relating to a request; and
• Access to the record is not refused in terms of any ground for refusal as contemplated in Part 3 Chapter 4 of the Act.

Part 3 Chapter 4 of the Act

Part 3 Chapter 4 of the Act (Sections 33 to 46) deals in detail with the grounds on which a public body may refuse access to certain records. The Human Rights Commission in its Section 10 Manual confirms that these grounds apply equally to private bodies.

Here follows a summary of the provisions of the sections referred to above. The list is not exhaustive.

1. The head of a private body must refuse a request for access to a record of that body if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.

However, a record may not be refused if:

§         The record consists of information about an individual who has consented in writing to the disclosure of the information;

§         The record consists of information that is already publicly available;

§         The record consists of information that was given to the private body by the individual to whom it relates, and that individual was informed by the private body before it is disclosed that the information belongs to a class of information that may already be publicly available;

§         The record consists of information concerning an individual's physical or mental health, or well-being, who is under the care of the requester, and who is under the age of 18 years or incapable of understanding the nature of the request, and further if the disclosure would be in the individual's best interests;

§         The record consists of information about a deceased individual and the requester is the individual's next of kin, or is making the request with the written consent of the individual's next of kin;

§         The record consists of information about an individual who is or was an official of a private body, and the information relates to the position or functions of the individual.

2. The head of a private body must refuse a request for access to a record of that private body if:

§         The record consists of trade secrets of a third party;

§         The record consists of financial, commercial, scientific or technical information of a third party, other than trade secrets, where the disclosure thereof would be likely to cause harm to the commercial or financial interests of that third party;

§         The record consists of information supplied to the third party in confidence, and if disclosed would place the third party at a disadvantage in contractual or other negotiations, or prejudice the third party in commercial competition.

However, a record may not be refused if:

§         The record consists of information about a third party who has already consented in writing, to its disclosure to the requester;

§         The record consists of information about the results of any product or environmental testing or other investigation supplied by the private body or the results of any such testing or investigation carried out on by or on behalf of the private body and its disclosure would reveal a serious public safety or environmental risk.

3. The head of a private body must refuse a request for access to a record of that body, if its disclosure would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement.
4. The head of a private body must refuse a request for access to a record of that body, if its disclosure could reasonably be expected to endanger the life or physical safety of an individual.
5. The head of a private body may refuse a request for access to a record of that body if:

§         The disclosure would be likely to prejudice or impair the security of a building, structure, or system, including a computer or communication system; a means of transport or any other property;

§         The disclosure would be likely to prejudice or impair the methods, systems, plans or procedures for the protection of an individual in accordance with a witness protection scheme;

§         The disclosure would be likely to prejudice or impair the safety of the public or part of the public or the security of a building, structure, or system, including a computer or communication system, a means of transport or any other property.

6. The head of a private body must refuse a request for access to a record of that body, if the record is privileged from production in legal proceedings unless the person entitled to the privilege has waived such privilege.
7. The head of a private body may refuse a request for access to a record of that body if:

§         The record contains trade secrets of the private body;

§         The record contains financial, commercial, scientific or technical information, other than trade secrets of the private body, and the disclosure thereof would likely cause harm to the commercial or financial interests of that body;

§         The record contains information, the disclosure of which could reasonably be expected to put the private body at a disadvantage in contractual or other negotiations; or prejudice the body in commercial competition;

§         The record is a computer programme as defined in the Copyright Act, No. 98 of 1978, which is owned by the private body, unless it is required to give access to a record in terms of the Act. However, a record may not be refused if it consists of information:

8. The head of a private body must refuse a request for access to a record of that body, if the record contains information about research being carried out or to be carried out, by or on behalf of a third party, and if this were to be disclosed, it would be likely to expose the third party or the person carrying out the research or will be carrying out the research on behalf of the third party, or the subject matter of the research, to a serious disadvantage.
9. The head of a private body may refuse a request for access to a record of that body, if the record contains information about research being carried out or about to be carried out, by or on behalf of the private body, and if this were to be disclosed, it would likely expose the private body or the person carrying out the research or will be carrying out the research on behalf of the private body, or the subject matter of the research to a serious disadvantage.
10. Despite the various grounds for refusal listed in the Act and summarised above, the head of a private body must grant a request for access to a record of that body if:

§         The disclosure thereof would reveal evidence of a substantial contravention of, or failure to comply with any law; or

§         The disclosure thereof would reveal evidence of an imminent and serious public safety or environmental risk and the public interest in the disclosure of the record outweighs the harm contemplated under the ground for refusal.