Access to information in South Africa (PAIA)

The legal basis

The preamble to PAIA records that section 32(1)(a) of the Constitution gives everyone the right of access to any information held by the State ¹. Section 32(1)(b) extends the right to information held by another person when it is required for the exercise or protection of any rights ¹. The Act has separate parts for public bodies and private bodies, with manual duties in section 14 for public bodies and section 51 for private bodies ¹.

The Information Regulator oversees the Act. It must update and publish a guide on how to use PAIA at intervals of not more than two years ¹. The information officer of each public body must submit an annual report to the Regulator under section 32 ¹.

What a public body must publish without a request

An information officer who wilfully or in a grossly negligent manner fails to comply with section 14 commits an offence, punishable by a fine or up to two years in prison ¹. The same penalty applies to the head of a private body who fails to comply with the section 51 manual duty ¹.

• A section 14 manual on its functions and an index of the records it holds, in at least three official languages ¹.
• An updated version of that manual, if necessary, at intervals of not more than one year ¹.
• Under section 15, a description of the categories of records that are automatically available without a request under the Act ¹.
• Under section 16, the postal and street address, phone and fax number and, if available, email address of every information officer, published in every telephone directory issued for general use ¹.

Making a request and the deadlines

When a record cannot be found

Section 23 deals with records that cannot be found or do not exist. It applies where all reasonable steps have been taken to find a record and there are reasonable grounds for believing the record is in the body's possession but cannot be found, or does not exist ¹. The information officer must then notify the requester by affidavit or affirmation that access is not possible ¹.

The affidavit or affirmation must give a full account of all steps taken to find the record or to decide whether it exists, including all communications with every person who did the search ¹. The notice is regarded as a decision to refuse the request, so the requester can challenge it like any other refusal ¹. Section 55 sets the same rule for private bodies ¹.

Appeals, complaints and court

• Internal appeal: lodged in the prescribed form within 60 days ¹.
• Decision on internal appeal: as soon as reasonably possible, and within 30 days after the appeal is received ¹.
• Complaint to the Information Regulator: within 180 days of the decision, alleging that it did not comply with the Act ¹.
• Court application: within 180 days, under section 78 ¹.
• An information officer who refuses to comply with an enforcement notice of the Regulator commits an offence, punishable by a fine or up to three years in prison ¹.

Offences for destroying or falsifying records

Section 90 makes it an offence to destroy, damage or alter a record, to conceal a record, or to falsify a record or make a false record, with intent to deny a right of access under the Act ¹. The penalty is a fine or imprisonment for up to two years ¹.

The archives law adds a second layer. The National Archives of South Africa Act 1996, as enacted, bars the transfer, destruction, erasure or other disposal of a public record under the control of a governmental body without the written authorisation of the National Archivist ². Wilful damage, or removal, destruction or erasure outside the Act, is an offence punishable by a fine or up to two years in prison ².

How PAIA compares