Promotion of Access to Information Act

Link to law: http://www.gov.za/documents/promotion-access-information-act
Published: 2000-02-03

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Promotion of Access to Information Act [No. 2 of 2000]
REPUBI,IC OF SOUTH AFRICA
GOVERNMENT GAZETTE
Registered at the Post O&ce as a Nevvspaper
CAPE TOWN, 3 FEBRUARY 2000VOL. ~ 16 No. 20852
OFFICE OF THE PRESIDENCY
No. 95. 3 February 2000
It is hereby notified that the President has assented to the following Act which is hereby published for general informa- [ion:—
No. 2 of 2000: Promotion of Access to Information Act. 2000.
~ No. 20S52 GOVERNMENT GAZE~E. 3 FEBRUARY 20M
Act No. 2,2000 PRON1OTION OF ACCESS TO INFORhfATION ACT, 2000
(English text signed by the President.) (Assejlted to 2 Februaq 2000.)
ACT To give effect to the constitutional right of access to any information 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; and to provide for matters connected theretith.
PREAMBLE
RECOGNIZING THAT—
* the system of government in South Africa before 27 April 1994, amongst others, resuhed in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations;
* section 8 of the Constitution provides for the horizontal application of the rights in the Bill of Rights to juristic persons to the extent required by the nature of the rights and the nature of those juristic persons;
* section 32(1)(a) of the Constitution provides that everyone has the right of access to any information held by the State;
* section 32(1)(h) of the Constitution provides for the horizontal application of the right of access to information held by another person to everyone when that information is requked for the exercise or protection of any rights;
* and national legislation must be enacted to give effect to this right in section 32 of the Constitution:
AND BEARING IN MIND THAT—
* the State must respect, protect, promote and fulfil, at least, all the rights in the Bill of Rights which is the cornerstone of democracy in South Africa;
* 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;
AND IN ORDER TO—
* foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information;
* actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,as follows:—
GOVERNMENT GME~, 3 ~BRUARY 2000 No. 20852 3
PROMO~ON OF ACCESS TO I~O~ATtON Am, 2~ Act No. 2,2000
CONTENTS OF ACT
Section
PART 1 INTRODUCTORY PROVISIONS
1. 7-.
3. 4. 5. 6. 7.
8.
9. 10.
11, 12. 13.
14. 15. 16.
17. 18. 19. ~o, 21. 22. 23. 24. 25. 26. 27. 28 29,
CHAPTER 1 DEFINITIONS AND INTERPRETATION
Definitions Interpretation of Act
5
CHAPTER 2 GENERAL APPLICATION PROVISIONS 10
Act appiies to record whenever it came into existence Records held by official or independent contractor of public or private body Application of other legislation prohibiting or restricting disclosure Application of other legislation providing for access Act not applying to records required for criminal or civil proceedings after 15 commencement of proceedings Part applicable when performing functions as public or private body
CHAPTER 3 GENERAL INTRODUCTORY PROVISIONS
Objects of Act Guide on how to use Act
20
PART 2 ACCESS TO RECORDS OF PUBLIC BODIES
CHAPTER 1 RIGHT OF ACCESS, AND SPECIFIC APPUCATION PROVISIONS 25
Right of access to records of public bodies Act not applying to certain public bodies or officials thereof Body determined to be part of another public body
CHAPTER 2 PUBLICATION AND AVAItiBILITY OF CERTAIN RECORDS 30
Manual on functions of, and index of records held by, public body Voluntary disclosure and automatic availability of certain records Information in telephone directory
CHAPTER 3 lWANNER OF A CCESS
Desi&nation of deputy information officers, and delegation Form of requests Duty to assist requesters Transfer of requests Preservation of records until final decision on request Fees Records that cannot be found or do not exist Deferral of access Decision on request and notice thereof Extension of period to deal with request Deemed refusal of request Severability Access and forms of access
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4 so. 20s52 GOVERNhfENT G,4ZE~E. 3 =BRIIARY 20(K)
Act NO. ~, 2000 PRO\lOTION OF ACCESS TO 1NFORMATION ACT. 2000
30. 31. 32.
33. 34. 35. 36. 37.
38. 39.
40.
41. 42.
43.
44. 45.
46.
47. 48, 49.
50.
51. 52.
53. 54. 55. 56. 57. 58. 59. 60. 61.
62. 63.
Access to health or other records Language of access Reports to Human Rights Commission
CHAPTER 4 GROUNDS FOR REFUSAL OF ACCESS TO RECORDS 5
Interpretation Mandatory protection of privacy of third party who is natural person Mandatory protection of certain records of South African Revenue Service Mandatory protection of commercial information of third party Mandatory protection of certain confidential information, and protection of 10 certain other confidential information, of third party Mandatory protection of safety of individuals, and protection of property Mandatory protection of police dockets in bail proceedings, and protection of law enforcement and legal proceedings Mandatory protection of records privileged from production in legal proceed- 15 ings Defence, security and international relations of Republic Economic interests and financial welfare of Republic and commercial activities of public bodies Mandatory protection of research information of third party, and protection of 20 research information of public body Operations of public bodies Manifestly frivolous or vexatious requests, or substantial and unreasonable diversion of resources Mandatory disclosure in public interest
CHAPTER 5 THIRD PARTY NOTIFICATION AND INTERVENTION
Notice to third parties Representations and consent by third parties Decision on representations for refusal and notice thereof
PART 3 ACCESS TO RECORDS OF PRIVATE BODIES
CHAPTER 1 mGHT OF ACCESS
Right of access to records of private bodies
CHAPTER 2 PUBLICATION AND AVAItiBILITY OF CERTAIN RECORDS
Manual Voluntary disclosure and automatic availability of certain records
CHAPTER 3 MANNER OF ACCESS
Form of request Fees Records that cannot be found or do not exist Decision on request and notice thereof Extension of period to deal with request Deemed refusal of request Severability Form of access Access to health or other records
CHAPTER 4 GROUNDS FOR REFUSAL OF ACCESS TO RECORDS
Interpretation Mandatory protection of privacy of third party who is natural person
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30
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40
45
50
GOVERNME~ GME~, 3 ~BRUARY 2000 No. 20852 5
PROMOmON OF ACCESS TO INFOWA~ON ACT, 2000 Act No. 2,2000
64. Mandatory protection of commercial information of third party 65. Mandatory protection of certain confidential information of third party 66. Mandato~ protection of safety of individuals, and protection of property 67. Mandatory protection of records privileged from production in legal proceed-
i ngs 5. 68, Commercial information of private body 69. Mandatory protection of research information of third party, and protection of
research information of private body 70. Mandatory disclosure in public interest
CHAPTER 5 THIRD PARTY NOTIFICATION AND INTERVENTION
71. Notice to third parties 72. Representations and consent by third parties 73. Decision on representations for refusal and notice thereof
PART 4 APPEALS AGAINST DECISIONS
CHAPTER 1 [NTERNAL APPEALS AGAINST DECISIONS OF INFORMATION OFFICERS
OF CERTAIN PUBLIC BODIES
74. Right of internal appeal to relevant authority 75. Manner of internal appeal, and appeal fees 76. Notice to and representations by other interested parties 77. Decision on internal appeal and notice thereof
CHAPTER 2 APPLICATIONS TO COURT
78. Applications regarding decisions of information officers or relevant authorities of public bodies or heads of private bodies
79. Procedure 80. Disclosure of records to, and non-disclosure by, court 81. Proceedings are civil 82. Decision on application
PART j HUMAN RIGHTS COMMISSION
83. Additional functions of Human Rights Commission 84. Report to National Assembly by Human Rights Commission 85. Expenditure of Human Rights Commission in terms of Act
PART 6 TRANSITIONAL ARRANGEMENTS
86. Application of other legislation providing for access 87. Extended periods for dealing with requests during first two years 88. Correction of personal information
PART 7 GENERAL PROVISIONS
89. Liability 9 0 . Ofiences 91. Amendment of Public Protector Act 23 of 1994 92. Regulations 93. Short title and commencement
SCHEDULE
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6 No. 20852 GOVERNMENT GAZE~E. 3 FEBRUARY ?000
Act No. 2,2000 PRO\lOTION OF .4 CCESS TO INFORMATION ACT. 2000
PART 1 ~TRODUCTORY PROVISIONS
CHAPTER 1 DEFINITIONS AND INTERPRETATION
Definitions
1. In this Act, unless the context otherwise indicates— “access fee” means a fee prescribed for the purposes of section 22(6) or 54(6), as the case may be; “application” means an application to a court in terms of section 78; “constitution” means the Constitution of the Republic of South Africa, 1996 (Act No.1O8 of 1996); “court” means— (a) the Constitutional Court acting in terms of section 167(6)(a) of the
Constitution; or (b) (i) a High Court or another court of similar status; or
(ii) a Magistrate’s Court, either generally or in respect of a specified class of decisions in terms of this Act, designated by the Minister, by notice in the Gazette, and presided over by a magistrate designated in writing by the Minister, after consultation with the Magistrates Commission,
within whose area of junsdiction— (au) the decision of the information officer or relevant authority of a
public body or the head of a private body has been t~en; (bb) the public body or private body concerned has its principal place of
administration or business; or (cc) the requester or third party concerned is domiciled or ordinarily
resident; “evaluative material” means an evaluation or opinion prepared for the purpose of determining— (a) the suitability, eligibility or qualifications of the person to whom or which the
evaluation or opinion relates— (i) for employment or for appointment to office;
(ii) for promotion in employment’or office or for continuance in employment or office;
(iii) for removal from employment or office; or (iv) for the awarding of a scholarship, award, bursary, honour or similar
benefit; or (b) whether any scholarship, award, bursary, honour or similar benefit should be
continued, modified, cancelled or renewed; “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;
“health practitioner” means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals; “Human Rights Commission” means the South African Human Rights Commis- sion referred to in section 181(1)(b) of the Constitution; “individual’s next of tin” mearts— (u) art individual to whom the individual was married immediately before the
individual’s death; (b) an individual with whom the individual lived as if they were married
immediately before the individual’s death; (c) a parent, child, brother or sister of the individual; or (d) if—
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GOWRNMENT GUETTE, 3 FEBRUARY 2~ No. 20852 7
PROMO~ON OF ACCESS TO ~ORMA~ON ACT, 2000 Act No. 2,2000
(i) there is no next of kin referred to in paragraphs (a), (b) and (c); or (ii) the requester concerned took all reasonable steps to locate such next of
kin, but was unsuccessful, an individual who is related to the individual in the second degree of atini:y or consanguinity; 5.
“infortnation officer” of, or in relation to, a public body— (a) in the case of a national department, provincial administration or
organisational component— (i) mentioned in Column 1 of Schedule 1 or 3 to the Public Service Act,
1994 (Proclamation No. 103 of 1994), means the officer who is the 10 incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule 1 or 3 opposite the name of the relevant national department, provinci~ administration or organisational component or the person who is acting as such; or
(ii) not so mentioned, means the Director-General, head, executive director 15 or equivalent officer, respectively, of that national department. provincial administration or organisational component, respectively;
(b) in the case of a municipality, means the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), or the person who is acting as such; or 20
(c) in the case of any other public body, means the chief executive officer, or equivalent officer, of that public body or the person who is acting as such;
“internal appeal” means an internal appeal to the relevant authority in terms of section 74; “international organisation” mess an international organisation— 25 (a) of states; or (b) established by the governments of states; “Minister” means the Cabinet member responsible for the administration of justice; “notice” means notice in writing, and “notify” and “notified” have corresponding 30 meanings; “objects of this Act” means the objects of this Act referred to in section 9; “official”, in relation to a public or private body, means— (a) any person in the employ (permanently or temporarily and full-time or
part-time) of the public or private body, as the case may be, including the head 35 of the body, in his or her capacity as such; or
(b) a member of the public or private body, in his or her capacity as such; “person” means a natural person or a juristic person; “personal information” means information about an identifiable individual, including, but not limited t~ 40 (a) information relating to the race, gender, sex, pregnancy, marital status.
national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the individual;
(b) information relating to the education or the medical, criminal or employment 45 history of the individual or information relating to financial transactions in which the individual has been involved;
(c) any identifying number, symbol or other particular assigned to the individual; (d) the address, fingerprints or blood type of the individual; (e) the personal opinions. views or preferences of the individual, except where 50
they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
(~) comespondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; 55
(g) the views or opinions of another individual about the individual; (h) the views or opinions of another individual about a proposal for a grant, an
award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and 60
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
x N(I. 20852 GOVERNMENT GAZETTE. 3 FEBRLIARY 2000
Act No. 2, 2000 PRO> IOTION OF .4 CCESS TO INFORM,4TION ACT. 20M)
but excludes information about an individual who has been dead for more than 20 years; “personal requester” means a requester seeking access to a record containing personal information about the requesten “prescribed” means prescribed by regulation in terms of section 92; “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;
(c) Xy former or existing juristic person, but excludes a public body; “public safety or environmental risk” means harm or risk to the environment or the public (including individuals in their workplace) associated with— (a) a product or service which is available to the public; (b) a substance released into the environment, including, but not limited to, the
workplace; (c) a substance intended for human or animal consumption; (d) a means of public transport; or (e) an installation or manufacturing process or substance which is used in that
installation or process; “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; “relevant authority”, in relation t~ (a) a public body referred to in paragraph (a) of the definition of “public body”
in the national sphere of government, means— (i) in the case of the Office of the Presidency, the person designated in
writing by the President; or (ii) in any other case, the Minister responsible for that public body or the
person designated in writing by that Minister; (b) a public body referred to in paragraph (a) of the definition of “public body”
in the provincial sphere of government, means— (i) in the case of the Office of a Premier, the person designated in writing by
the Premier; or (ii) in any other case, the member of the Executive Council responsible for
that public body or the person designated in writing by that member, or (c) a municipality, means—
(i) the mayor; (ii) the speaker; or
(iii) any other person, designated in writing by the Municipal Council of that municipality;
“request for access”, in relation t~ (a) a public body, means a request for access to a record of a public body in terms
of section 11; or (b) a private body, means a request for access to a record of a private body in
terms of section 50; “requester”, in relation t~ (a) a public body, means—
(i) any person (other than a public bdy contemplated in paragraph (a) or (h)(i) of the definition of “public body”, or an official thereo~ making a request for access to a record of that public body; or
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GOVEW~ GWE~, 3 FEBRU~Y 2000 No. 20852 9
PROMOTION OF ACCESS TO ~FOWATtON ACT, 2000 Act No. 2,2000
(ii) a person acting on behrdf of the person referred to in subparagraph (i); (b) a private body, means—
(i) any person, including, but not limited to. a public body or an official thereof, m~~ng a request for access to a record of that private body; or
(ii) a person acting on behalf of the person contemplated in subparagraph (i); 5 “subversive or hostile activities” means— (~z) aggression against the Republic: (b) sabotage or terrorism aimed at the people of the Republic or a strategic asset
of the Republic, whether inside or outside the Republic; (c) an activity aimed at changing the constitutional order of the Republic by the 10
use of force or violence; or (d) a foreign or hostile intelligence operation; “third party “, in relation to a request for access t~ (a) a record of a public body, means any person (including, but not limited to, the
government of a foreign state, an international organisation or an organ of that 15 government or organisation) other than— (i) the requester concerned; and
(ii) a public body; or (b) a record of a private body, means any person (including, but not limited to, a
public body) other than the requester, 20 but, for the purposes of sections 34 and 63, the reference to “person” in paragraphs (u) and (b) must be construed as a reference to “natural person”; “this Act” includes any regulation made and in force in terms of section 92; “transfer “, in relation to a record, means transfer in terms of section 20(1) or (2), and’’transferred” has a corresponding meaning; 25 “working days” means any days other than Saturdays, Sundays or public holidays, as defined in section 1 of the Public Holidays Act, 1994 (Act No. 36 of 1994).
Interpretation of Act
2. (1) When interpreting a provision of this Act. every court must prefer any 30 reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects.
(2) Section 12 must not be construed as excluding— (CZ) the Cabinet and its committees; or (b) an individual member of Parliament or of a provincial legislature, 35
from the operation of the definition of “requester” in relation to a private body in section 1, section 49 and all other provisions of this Act related thereto.
(3) For the purposes of this Act, the South African Revenue Service, established by section 2 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997). and referred to in section 35(1), is a public body. 40
CHAPTER 2 GENERAL APPLICATION PROVISIONS
Act applies to record whenever it came into existence
3. This Act applies t~ (cl ) a record of a public body; and (b) a record of a private body,
regardless of when the record came into existence.
45
Records held by official or independent contractor of public or private body
4. For the purposes of this Act, but subject to section 12. a record in the possession or under the control of— 50
(a) an official of a public body or private body in his or her capacity as such: or (b) an independent contractor engaged by a public body or private body in the
capacity as such contractor, is regarded as being a record of that public body or private body, respectively.
Application of other legislation prohibiting or restricting disclosure 55
5. This Act applies to the exclusion of any provision of other legislation that—
I (1 X(). 208s2 GOVERN\lENT GAZE~E. 3 FEBRU.\RY 200[)
Act NO. 2,2000 PROJ1OTION OF ACCESS TO INFORhlATION ACT, 2000
(a) prohibits or restricts the disclosure of a record of a public body or private body; and
(b) is materially inconsistent with an object. or a specific provision, of this Act.
Application of other legislation providing for access
6. Nothing in this Act prevents the giving of access to— 5 (a) a record of a public body in terms of any legislation referred to in Part 1 of the
Schedule; or (b) a record of a private body in terms of any legislation referred to in Part 2 of the
Schedule.
Act not applying to records required for criminal or civil proceedings after 10 commencement of proceedings
7. (1) This Act does not apply to a record of a public body or a private body if— (a) that record is requested for the purpose of criminal or civil proceedings; (b) so requested after the commencement of such criminal or civil proceedings, as
the case may be; and 15 (c) the production of or access to that record for the purpose referred to in
paragraph (a) is provided for in any other law. (2) Any record obtained in a manner that contravenes subsection(1) is not admissible
as evidence in the criminal or civil proceedings referred to in that subsection unless the exclusion of such record by the court in question would, in its opinion, be detrimental to 20 the interests of justice.
Pati applicable when performing functions as public or private body
8.( 1) For the purposes of this Act, a public body referred to in paragraph (b)(ii) of the definition of “public body” in section 1, or a private body—
(a) may be either a public body or a private body in relation to a record of that 25 body; and
(b) may in one instance be a public body and in another instance be a private body, depending on whether that record relates to the exercise of a power or performance of a function as a public body or as a private body.
(2) A request for access to a record held for the purpose or with regard to the exercise 30 of a power or the performance of a function—
(a) as a public body, must be made in terms of section 11; or (b) as a private body, must be made in terms of section 50.
(3) The provisions of Parts 1,2,4,5,6 and 7 apply to a request for access to a record that relates to a power or function exercised or performed as a public body. 35
(4) The provisions of Parts 1,3,4; 5,6 and 7 apply to a request for access to a record that relates to a power or function exercised or performed as a private body.
CHAPTER 3 GENERAL INTRODUCTORY PROVISIONS
Objects of Act 40
9. The objects of this Act are— (a) to give effect to the constitutional right of access t~
(i) any information held by the State; and (ii) any information that is held by another person and that is required for the
exercise or protection of any rights; 45 (b) to give effect to that nght—
(i) subject to justifiable limitations, including, but not limited to, limitations aimed at the reasonable protection of privacy, commercial confidentiality and effective, efficient and good governance; and
(ii) in a manner which balrmces that right with any other rights, including the 50 rights in the Bill of Rights in Chapter 2 of the Constitution;
(c) 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”, allowing them, amongst others, to access informa-
GOVE~MENT G=E~, 3 ~BRUARY 2000 No. 20852 11
(d)
(e)
PROMOTION OF ACCESS TO rNFORMA~ON Am, 2000 Act No. 2,2000
tion from private bodies upon compliance with the four requirements in this Act, including an additional obligation for certain public bodies in certain instances to act in the public interest; to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a manner which enables persons to obtain access to records of 5 public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible; and generally, to promote transparency, accountability and effective governance of all public and private bodies by, including, but not limited to, empowering and educating everyone— 10 (i) to understand their rights in terms of this Act in order to exercise their
fights in relation to public and private bodies; (ii) to understand the functions and operation of public bodies: and
(iii) to effectively scrutinise, and participate in, decision-making by public bodies that affects their rights. 15
Guide on how to use Act
10. (1) The Human Rights Commission must. within 18 months after the commencement of this section, compile in each official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act. 20
(2) The guide must, without limiting the generality of subsection ( 1), include a description of—
(i) (b]
(c) (d)
(e)
V)
(g)
(}1)
(i)
(j)
(k)
the objects of this Act; the postal and street address, phone and fax number and, if available, electronic mail address of— 25 (i) the information officer of every public body; and
(ii) every deputy information officer of every public body appointed in terms of section 17(1):
such particulars of every private body as are practicable; the manner and form of a request for— 30 (i) access to a record of a public body contemplated in section 11; and
(ii) access to a record of a private body contemplated in section 50: the assistance available from the information officer of a public body in terms of this Act; the assistance available from the Human Rights Commission in terms of this 35 Act; all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, including the manner of lodging— (i) an internal appeal; and 40
(ii) an application with a court against a decision by the information officer of a public body, a decision on internal appeal or a decision of the head of a private body;
the provisions of sections 14 and 51 requiring a public body and private body, respectively, to compile a manual, and how to obtain access to a manual; 45 the provisions of sections 15 and 52 providing for the voluntary disclosure of categories of records by a public body and private body, respectively; the notices issued in terms of sections 22 and 54 regarding fees to be paid in relation to requests for access; and the regulations made in terms of section 92. 50
(3) The Human Rights Commission must, if necessary, update and publish the guide at intervals of not more than two years.
(4) The guide must be made available as prescribed.
PART 2 ACCESS TO RECORDS OF PUBLIC BODIES
CHAPTER 1 RIGHT OF ACCESS, AND SPECIFIC APPLICATION PROVISIONS
Right of access to records of public bodies
11. ( 1 ) A requester must be given access to a record of a public body if—
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12 No. 20852 GOVERNMENT G.AZEHE. 3 FEBRL;.(1 Johj: GOVERNN4EN7- GAZE~b. 3 I’tBRl .~R} 20(}()
Act N{). 2.2000 PROhfOTION OF ACCESS TO INFORN4ATION ACT. 2000”
(/7) exclude, from any such reasons, any reference to the content of the record; and (c) state that the requester may lod&e an application with a court against the
refusal of the request, and the procedure (including the period) for lodging the application.
Extension of period to deal with request 5
57. (1) The head of a private body to whom a request for access has been made, may extend the period of 30 days referred to in section 56(1) (in this section referred to as the “original period”) once for a further period of not more than 30 days, if—
(a) the request is for a large number of records or requires a search through a large number of records and compliance with the original period would unreason- 10 ably interfere with the activities of the private body concerned;
(b) the request requires a search for records in, or collection thereof from, an office of the private body not situated in the same town or city as the office of the head that cannot reasonably be completed within the original period;
(c) consultation among divisions of the private body or with another private body 15 is necessary or desirable to decide upon the request that cannot reasonably be completed within the original period;
(d) more than one of the circumstances contemplated in paragraphs (a), (b) and (c) exist in respect of the request mting compliance with the original period not reasonably possible; or 20
(e) the requester consents in writing to such extension. (2) If a period is extended in terms of subsection (1), the head of the private body
must, as soon as reasonably possible, but in any event within 30 days, after the request is received, notify the requester of that extension, the period of the extension and the reasons for the extension. 25
(3) The notice in terms of subsection (2) must state— (a) the period of the extension; (b) adequate reasons for the extension, including the provisions of this Act relied
upon; and (c) that the requester may lodge an application with a court against the extension, 30
and the procedure (including the period) for lodging the application.
Deemed refusal of request
58. If the head of a private body fails to give the decision on a request for access to the requester concerned within the period contemplated in section 56(1), the head of the private body is, for the purposes of this Act, regarded as having refused the request. 35
Severability
59. (1) If a request for access is made to a record of a private body containing information which may or must be refused in terms of any provision of Chapter 4 of this Part, every part of the record which—
(a) does not contain; and 40 (b) can reasonably be severed from any part that contains,
any such information must, despite arty other provision of this Act, be disclosed. (2) If a request for access te
(a) a part of a record is granted; and (b) the other part of the record is refused, 45
as contemplated in subsection (1), the provisions of section 56(2) apply to paragraph (a) of this section and the provisions of section 56(3) to paragraph (b) of this section.
Form of access
60. If access is granted to a record of a private body, the head of that body must, as soon as reasonably possible after notification in terms of section 56, but subject to 50 section 57, give access in—
(a) such form as the requester reasonably requires; or (b) if no specific form of access is required by the requester, such form as the head
reasonably determines.
GOWRNMENT G~~, 3 FEBRUARY 2000 No. 20852 33
PROMO~ON OF ACCESS TO mOWAmON ACT, 2000 Act No. 2, 2W
Access to health or other records
61. (1) If the head of a private body who grants, in terms of section 50, a request for access to a record provided by a health practitioner in his or her caFacity as such about the physical or mental health, or well-being—
(a) of the requester; or 5 (b) if the request has been made on behalf of the person to whom the record
relates, of that person, (in this section, the requester and person referred to paragraphs (a) and (b), respectively, are referred to as the “relevant person”), is of the opinion that the disclosure of the record to the relevant person might cause serious harm to his or her physical or mental 10 health, or well-being, the information officer may, before giving access in terms of section 60, consult with a health practitioner who, subject to subsection (2), has been nominated by the relevant person.
(2) If the relevant person is— (a) under the age of 16 years, a person having parental responsibilities for the 15
relevant person must make the nomination contempltiteti in subsection (1); or (b) incapable of managing his or her affairs, a person appointed by the court to
manage those affairs must make that nomination. (3)(a) If, after being given access to the record concerned, the health practitioner
consulted in terms of subsection (1) is of the opinion that the disclosure of the record to 20 the relevant person, would be likely to cause serious harm to his or her physical or mental health, or well-being, the head may only give access to the record if the requester proves to the satisfaction of the head that adequate provision is made for such counseling or arrangements as are reasonably practicable before, during or after the disclosure of the record to limit, alleviate or avoid such harm to the relevant person. 25
(b) Before access to the record is so given to the requester, the person responsible for such counseling or arrangements must be given access to the record.
CHAPTER 4 GROUNDS FOR REFUSAL OF ACCESS TO RECORDS
Interpretation 30
62. A provision of this Chapter in terms of which a request for access to a record must or may or may not be refused, must not be construed as—
(a) limited in its application in any way by any other provision of this Chapter in terms of which a request for access to a record must or may or may not be refused; and
(b) not applying to a particular record by reason that another provision of this Chapter in terms of which a request for access to a record must or may or may not be refused, also applies to that record.
35
Nlandatory protection of privacy of third party who is natural person
63. (1) Subject to subsection (2), the head of a private body must refuse a request for 40 access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.
(2) A record may not be refused in terms of subsection (1) insofar as it consists of information—
(a)
(b) (c)
(d)
(e)
about an inalvldual who has consented In terms of section 72 or otnerwlse In 43 writing to its disclosure to the requester concerned; already publicly available; that was given to the private body by the individual to whom it relates and the individual was informed by or on behalf of the private body, before it is given, that the information belongs to a class of information that would or might be 50 made available to the public; about an individual’s physical or mental health, or well-being, who is under the care of the requester and who is— (i) under the age of 18 years; or
(ii) incapable of understanding the nature of the request, 55 and if giving access would be in the individual’s best interests; about an individual who is deceased and the requester is—
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(f)
(i) the individuals next of kin; or (ii) making the request \vith the written consent of the individual’s next of
kin; or about an individual who is or was an official of a private body and which relates to the position or functions of the individual, including, but not limited 5 te (i) the fact that the individual is or was an official of that private body;
(ii) the title, work address, work phone number and other similar particulars of the individual;
(iii) the classification, salary scale or remuneration and responsibilities of the 10 position held or services performed by the individual; and
(iv) the name of the individual on a record prepared by the individual in the course of employment.
Mandatory protection of commercial information of third party
64. (1) Subject to subsection (2), the head of a private body must refuse a request for 15 access to a record of the body if the record contains—
(a) (b)
(c)
trade secrets of a third party; financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which would be likely to cause harm to the commercial or financial interests of that third party; or 20 information supplied in confidence by a third party, the disclosure of which could reasonably be expected— (i) to put that third party at a disadvantage in contractual or other
negotiations; or (ii) to prejudice that third party in commercial competition. 25
(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about—
(a) a third party who has consented in terms of section 72 or otherwise in writing to its disclosure to the requester concerned;
(b) the results of any product or environmental testing or other investigation 30 supplied by, carried out by or on behalf of a third party and its disclosure would reveal a serious public safety or environmental risk.
(3) For the purposes of subsection (2)(b), the results of any product or environmental testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other 35 investigation.
Mandatory protection of certain confidential information of third party
65. The head of a private body must refuse a request for access to a record of the 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. 40
Mandatory protection of safety of individuals, and protection of property
66. The head of a private bodY— (a)
(b)
must refus~ a request For access to a record of the body if its disclosure could reasonably be expected to endanger the life or physical safety of an individual; or 45 may refuse a request for access to a record of the body if its disclosure would be likely to prejudice or impair— (i)
(ii)
the security of— -
(au) a building, structure or system, including, but not limited to, a computer or communication system; 50
(bb) a means of transport; or (cc) any other property; or methods, systems, plans or procedures for the protection of— (au) an individual in accordance with a witness protection scheme; (bb) the safety of the public, or any part of the public; or 55
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PROMOTtON OF ACCESS TO INFORMATION ACT, 2000 Act No. 2,2000
(cc) the security of property contemplated in subparagraph (i)(aa), (bb) or (cc).
Mandatory protection of records privileged from production in legal proceedings
67. The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings unless the person entitled 5 to the privilege has waived the privilege.
Commercial information of private body
68. (1) Subject to subsection (2), the head of a private body may refuse a request for access to a record of the body if the record—
(a) contains trade secrets of the private body; 10 (b) contains financial, commercial, scientific or technical information, other than
trade secrets, of the private body, the disclosure of which would be likely to cause harm to the commercial or tinancial interests of the body;
(c) contains information, the disclosure of which could reasonably be expected— (i) to put the private body at a disadvantage in contractual or other 15
negotiations; or (ii) to prejudice the body in commercial competition; or
(d) is a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the private body, except insofar as it is required to give access to a record to which access is granted in terms of this 20 Act.
(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about the results of any product or environmental testing or other investigation supplied by, carried out by or on behalf of the private body and its disclosure would reveal a serious public safety or environmental risk. 25
(3) For the purposes of subsection (2), the results of any product or environmental testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
Mandatory protection of research information of third party, and protection of 30 research information of private body
69. (1) The head of a private body must refuse a request for access to a record of the body if the record contains information about research being or to be carried out by or on behalf of a third party, the disclosure of which would be likely to expose—
(u) the third party; 3j (b) a person that is or will be carrying out the research on behalf of the third party;
or (c) the subject matter of the research,
to serious disadvantage. (~) The head of a private body may refuse a request for access to a record of the body 40
if the record contains information about research being or to be carried out by or on behalf of the private body, the disclosure of which would be likely to expose—
(a) the private body; (b) a person that is or will be carrying out the research on behalf of the private
body; or 45 (c) the subject matter of the research,
to serious disadvantage.
Mandatory disclosure in public interest
70. Despite any other provision of this Chapter, the head of a private body must grant a request for access to a record of the body contemplated in section 63(1), 64(1), 65, 50 66(a) or (b), 67, 68(1) or 69(1) or (2) if—
(a) the disclosure of the record would reveal evidence of— (i) a substantial contravention of, or failure to comply with, the law; or
(ii) imminent and serious public safety or environmental risk; and (b) the public interest in the disclosure of the record clearly outweighs the harm 55
contemplated in the provision in question.
~ (, No. 20852 GOVERN%fENT G,4ZETTE. 3 FEBRUARY 2000”
Act N(). 2, 2000 PRONIOTIOX OF ,4 CCESS TO INFORhlATION ACT. 20M)
CHAPTER 5 THIRD PARTY NOTIFICATION AND INTERVENTION
Notice to third parties
71. (1) The head of a private body considering a request for access to a record that might be a record contemplated in section 63(1), 64(1), 65 or 69(1), must take all reasonable steps to inform a third party to whom or which the record relates of the request.
(2) The head must inform a third party in terms of subsection (1 )— (a) as soon as reasonably possible, but in any event within 21 days after that
request is received; and (b) by the fastest means reasonably possible.
(3) When informing a third party in terms of subsection (l), the head must— (a)
(b) (c)
(d)
(e)
state that he or she is considering a request for access to a record that might be a record contemplated in section 63(1), 64(1), 65 or 69(1), as the case may be, and describe the content of the record; furnish the name of the requester; describe the provisions of section 63(1), 64(1), 65 or 69(1), as the case may be; in any case where the head believes that the provisions of section 70 might apply, describe those provisions, specify which of the circumstances referred to in section 70(a) in the opinion of the head might apply and state the reasons why he or she is of the opinion that section 70 might apply; and state that the third party may, within 21 days after the third party is inforrned— (i) make written or oral representations to the head why the request for
access should be refused; or (ii) give written consent for the disclosure of the record to the requester.
(4) If a third party is informed orally of a request for access in terms of subsection (l), the head must give a written notice stating the matters referred to in subsection (3) to the third party.
Representations and consent by third parties
72. (1) A third party that is informed in terms of section 71(1) of a request for access, may, within 21 days after being so informed—
(a) make written or oral representations to the head concerned why the request should be refused; or
(b) give written consent for the disclosure of the record to the requester concerned.
(2) A third party that obtains knowledge about a request for access other than in terms of section 71(1) may—
(a) make written or oral representations to the head concerned why the request should be refused; or
(b) give written consent for the disclosure of the record to the requester concerned.
Decision on representations for refusal and notice thereof
73. (1) The head of a private body must, as soon as reasonably possible, but in any event within 30 days after every third party is informed as required by section 7 l—
(a) decide, after giving due regard to any representations made by a third party in terms of section 72, whether to grant the request for access; and
(b) notify the third party so informed and a third party not informed in terms of section 71, but that made representations in terms of section 72 or is located before the decision is taken, of the decision.
(2) If, after all reasonable steps have been taken as required by section 71, a third party is not informed of a request, any decision whether to grant the request for access must be made with due regard to the fact that the third party did not have the opportunity to make representations in terms of section 72 why the request should be refused.
(3) If the request is granted, the notice in terms of subsection (1)(b) must state—
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PROMO~ON OF ACCESS TO ~ORMA~ON ACT, 20M Act No. 2,2000
(a) adequate reasons for granting the request, including the provisions of this Act relied upon to justify the granting;
(b) that the third p~y may lodge an application with a court against the decision of the head within 30 days afte~ n~tice is given, and the procedure for lodging the application; and 5
(c) that the requester will be given access to the record after the expiry of the applicable period contemplated in paragraph (b), unless an application with a court is lodged within that period.
(4) If the head of the private body decides in terms of subsection (1) to grant the request for access concerned, he or she must give the requester access to the record 10 concerned after the expiry of 30 days after notice is given in terms of subsection (l)(b), unless an application with a court is lodged against the decision within that period.
PART 4 APPEALS AGAWST DECISIONS
CHAPTER 1 15 INTERNAL APPEALS AGAINST DECISIONS OF INFORMATION OFFICERS
OF CERTAIN PUBLIC BODIES
Right of internal appeal to relevant authority
74. (1) A requester may lodge an internal appeal against a decision of the information officer of a public body referred to in paragraph (a) of the definition of “public body” in 20 section l—
(a) to refuse a request for access; or (b) t&en in terms of section 22, 26(1) or 29(3),
in relation to that requester with the relevant authority. (2) A third party may lodge an internal appeal against a decision of the information 25
officer of a public body referred to in paragraph (a) of the definition of “public body” in section 1 to grant a request for access.
Manner of internal appeal, and appeal fees
30 75. (1) An internal apped—
(a) must be lodged in the prescribed form— (i) within 60 days;
(ii) if notice to a third party is required by section 49(l)(b), within 30 days after notice is given to the appellant of the decision appealed against or, if notice to the appellant is not required, after the decision was t~en;
(b) must be delivered or sent to the information officer of the public body 35 concerned at his or her address, fax number or electronic mail address;
(c) must identify the subject of the internal appeal and state the reasons for the internal appeal and may include any other relevant information kown to the appellant;
(~ if, in addition to a written reply, the appellant wishes to be informed of the 40 decision on the internal appeal in any other manner, must state that manner and provide the necessary particulars to be so informed;
(e) if applicable, must be accompanied by the prescribed appeal fee referred to in subsection (3); and
(~) must specify a postal address or fax number. 45 (2)(a) If an internal appeal is lodged after the expiry of the period referred to in
subsection (1)(a), the relevant authority must, upon good cause shown, allow the late lodging of the internal appeal.
(b) If that relevant authority disallows the late lodging of the internal appeti, he or she must give notice of that decision to the person that lodged the internal appeal. 50
(3)(a) A requester lodging an internal appeal against the refusal of his or her request for access must pay the prescribed appeal fee (if any).
(b) If the prescribed appeal fee is payable in respect of an internal appeal, the decision on the internal appeal may be deferred until the fee is paid.
(4) As soon as reasonably possible, but in any event within 10 worting days after 55 receipt of an internal appeal in accordance with subsection(1), the information officer of the public body concerned must submit to the relevant authority—
3X X() 20s52 GO\~ERNMENT GAZETTE. 3 FEBRL.+R}’ 2000
Act No. 2, 2000 PROMOTIOS OF ACCESS TO INFORMATION ACT, 2000
(a)
(b)
the internal appeal together with his or her reasons for the decision concerned: and if the internal appeal is against the refusal or granting of a request for access, the name, postal address, phone and fax number and electronic mail address, whichever is available, of any third party that must be notified in terms of section 47( 1 ) of the request.
Notice to and representations by other interested persons
76. (1) If a relevant authority is considering an internal appeal against the refusal of a request for access to a record contemplated in section 34(1), 35(1), 36(1), 37(1) or 43( 1), the authority must inform the third party to whom or which the record relates of the internal appeal, unless all necessary steps to locate the third party have been unsuccessful.
(2) The relevant authority must inform a third party in terms of subsection ( 1 )— (a) as soon as reasonably possible, but in any event within 30 days after the
receipt of the internal appeal; and (b) by the fastest means reasonably possible.
(3) When informing a third party in terms of subsection (1), the relevant authority must—
(a)
(b) (c)
(d)
state that he or she is considering an internal appeal against the refusal of a request for access to a record contemplated in section 34(1), 35(1), 36(1), 37( 1) or 43( 1), as the case may be, and describe the content of the record and the provisions of section 34(l), 35(l), 36(l), 37(1) or 43(l), as the case may be; furnish the name of the appellant; in any case where that authority believes that the provisions of section 46 might apply, describe those provisions, specify which of the circumstances referred to in section 46(a) in the opinion of the head might apply and state the reasons why he or she is of the opinion that section 46 might apply; and state that the third party may, within 21 days after the third party is informed, make written representations to that authority why the request for access should not be granted.
(4) If a third party is informed orally of an internal appeal in terms of subsection (1 ), the relevant authority must, on request, give a written notice stating the matters referred to in subsection (3) to the third party.
(5) A third party that is informed of an internal appeal in terms of subsection(1), may within 21 days after the third party has been informed, make written representations to the relevant authority why the request for access should not be granted.
(6) A third party that obtains knowledge about an internal appeal other than in terms of subsection (1) may—
(a) make written or oral representations to the relevant authority why the request for access should be refused; or
(b) give written consent for the disclosure of the record to the requester concerned.
(7) If the relevant authority is considering an internal appeal against the granting of a request for access, the authority must give notice of the internal appeal to the requester concerned.
(8) The relevant authority must— (a) notify the requester concerned in terms of subsection (7) as soon as reasonably
possible, but in any event within 30 days after the receipt of the internal appeal; and
(b) state in that notice that the third party may within21 days after notice is given, make written representations to that authority why that request should be granted.
(9) A requester to whom or which notice is given in terms of subsection (7) may within 21 days after that notice is given, make written representations to the relevant authority why the request for access should be granted.
Decision on internal appeal and notice thereof
77. (1) The decision on an internal appeal must be made with due regard t~ (a) the particulars stated in the internal appeal in terms of section 75(1)(c);
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GOWRNMENT G=~, 3 ~BRUARY 2000 No. 20852 39
(b) (c) (d)
PROMOTtON OF ACCESS TO INFORMAnON ACT, 2000 Act No. 2,2000
any reasons submitted by the information officer in terms of section 75(4)(a); any representations made in terms of section 76(5), (6) or (9); and if a third party cannot be located as contemplated in section 76(1), the fact that the third party did not have the opportunity to make representations in telms of section 76(5) why the internal appeal should be dismissed.
(2) When deciding on the internal appeal the relevant authority may confirm the decision appealed against or substitute a new decision for it.
(3) The relevant authority must decide on the internal appeal— (a) as soon as reasonably possible, but in any event within 30 days after the
internal appeal is received by the information officer of the body; (b) if a third party is informed in terms of section 76(1), as soon as reasonably
possible, but in any event within 30 days; or (c) if notice is given in terms of section 76(7)—
(i) within five working days after the requester concerned has made written representations in terms of section 76(9); or
(ii) in any other case within 30 days after notice is so given. (4) The relevant authority must, immediately after the decision on an internal
appeal— (a) give notice of the decision t~
(i) the appellant; (ii) every third party informed as required by section 76(1); and
(iii) the requester notified as required by section 76(7); and (b) if reasonably possible, inform the appellant about the decision in any other
manner stated in terms of section 75(1)(d). (5) The notice in terms of subsection (4)(a) must—
‘(a) state adequate reasons for the decision, including the provision of this Act
(b) (c)
(d)
relied upon; exclude, from such reasons, any reference to the content of the record: state that the appellant, third party or requester, as the case may be, may lodge an application with a court against ~he decision on internal appeal— (i) within 60 days; or
(ii) if notice to a third party is required by subsection (4)(a)(ii), within 30 days,
after notice is given, and the procedure for lodging the application; and if the relevant authority decides on internal appeal to grant a request for access and notice to a third party— (i) is not required by subsection (4)(a) (ii), that access to the record will
forthwith be given; or (ii) is so required, that access to the record will be given after the expiry of
the applicable period for lodging an application with a court against the decision on internal appeal referred to in paragraph (c), unless that application is lodged before the end of that applicable period.
(6) If the relevant authority decides on internal appeal to grant a request for access and notice to a third party—
(a) is not required by subsection (4)(a)(ii), the information officer of the body must forthwith give the requester concerned access to the record concerned; or
(b) is so required. the information officer must, after the expiry of 30 days after the notice is given to every third party concerned, give the requester access to the record concerned, unless an application with a court is lodged against the decision on internal appeal before the end of the period contemplated in subsection (5)(c)(ii) for lodging that application.
(7) If the relevant authority fails to give notice of the decision on an internal appeal to the appellant within the period contemplated in subsection (3), that authority is, for the purposes of this Act, regarded as having dismissed the internal appeal.
CHAPTER 2 APPLICATIONS TO COURT
Applications regarding decisions of information officers or relevant authorities of public bodies or heads of private bodies
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40 N(). 20s52 GOVERNMENT GAZEnE. 3 FEBRUARY 2000
Act No. 2,2000 PROh!OTION OF ACCESS TO INFORMATION ACT. 20W
exhausted the internal appeal procedure against a decision of the information officer of a public body provided for in section 74.
(2) A requester— (a) that has been unsuccessful in an internal appeal to the relevant authority of a
public body; 5 (b) a&gneved by a decision of the relevant authority of a public body to disallow
the late lodging of an internal appeal in terms of section 75(2); (c) aggrieved by a decision of the information officer of a public body referred to
in paragraph (b) of the definition of “public body” in section l— (i) to refuse a request for access; or 10
(ii) t~en in terms of section 22, 26(1) or 29(3); or (d) aggrieved by a decision of the head of a private body—
(i) to refuse a request for access; or (ii) t~en in terms of section 54, 57(1) or 60,
may, by way of an application, within 30 days apply to a court for appropriate relief in 15 terms of section 82.
(3) A third party— (a) that has been unsuccessful in an internal appeal to the relevant authority of a
public body; (b) aggrieved by a decision of the information officer of a public body referred to 20
in paragraph (b) of the definition of “public body” in section 1 to grant a request for access; or
(c) aggrieved by a decision of the head of a private body in relation to a request for access to a record of that body,
may, by way of an application, within 30 days apply to a court for appropriate relief in 25 terms of section 82.
Procedure
79. (1) The Rules Board for Courts of Law, established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), must within 12 months after the commencement of this section, m&e and implement rules of procedure for— 30
(a) a court in respect of applications in terms of section 78; and (b) a court to receive representations ex parte referred to in section 80(3)(a).
(2) Before the implementation of the rules of procedure in terms of subsection (1)(a), an application in terms of section 78 may only be lodged with a High Court or another court of similar status. 35
(3) Any rule made in terms of subsection (1) must, before publication in the Gazette, be approved by Parliament.
Disclosure of records to, and non-disclosure by, court
80. (1) Despite this Act and any other law, any court hearing an application, or an appeal against a decision on that application, may examine any record of a public or 40 private body to which this Act applies, and no such record may be withheld from the court on any grounds.
(2) Any court contemplated in subsection (1) may not disclose to any person, including the parties to the proceedings concerned, other than the public or private body referred to in subsection (1 )— 45
(a) any record of a public or private body which, on a request for access, may or must be refused in terms of this Act; or
(b) if the information officer of a public body, or tie relevant authority of that body on intemd appeal, in refusing to grant access to a record in terms of section 39(3) or 41(4), refuses to confirm or deny the existence or 50 non-existence of the record, any information as to whether the record exists.
(3) Any court contemplated in subsection (1) may— (a) receive representations ex pane; (b) conduct hearings in camera; and (c) prohibit the publication of such information in relation to the proceedings as 55
the court determines, including information in relation to the parties to the proceedings and the contents of orders made by the court in the proceedings.
GOWRNMENT GAZE~, 3 =BRUARY 2000 No. 20852 41
PROMOTION OF ACCESS TO tNFORMA~ON ACT, 2000 Act No. 2,2000
Proceedings are civil
81. (1) For the purposes of this Chapter proceedings on application in terms of section 78 are civil proceedings.
(2) The roles of evidence applicable in civil proceedings apply to proceedin&s, on application in terms of section 78.
(3) The burden of establishing that— (a) the refusal of a request for access; or (b) any decision taken in terms of section 22, 26(1), 29(3), 54, 57(1) or 60,
complies with the provisions of this Act rests on the party claiming that it so complies.
5
Decision on application 10
82. The court hearing an application may grant any order that is just and equitable. inchtding orders—
(a) confirming, amending or setting aside the decision which is the subject of the application concerned;
(b) requiring from the information officer or relevant authority of a public body or 15 the head of a private body to take such action or to refrain from taking such action as the court considers necessary within a period mentioned in the order:
(c) granting an interdict, interim or specific relief, a declaratory order or compensation; or
(d) as to costs. ~~
PART 5 HUMAN RIGHTS COMMISSION
Additional functions of Human Rights Commission
83. (1) The Human Rights Commission must— (a) compile and make available a guide on how to use this Act as contemplated in 2j
section 10; and (b) submit reports to the National Assembly as contemplated in section 84.
(2) The Human Rights Commission must, to the extent that financial and other resources are available—
(a) develop and conduct educational programmed to advance the understanding 30 of the public, in particular of disadvantaged communities, of this Act and of how to exercise the rights contemplated in this Act;
(b) encourage public and private bodies to participate in the development and conduct of programmed referred to in paragraph (a) and to undertake such programmed themselves; and 3j
(c) promote timely and effective dissemination of accurate information by public bodies about their activities.
(3) The Human Rights Commission may— (CZ) make recommendations for—
(i) the development, improvement, modernisation. reform or amendment of 40 this Act or other legislation or common law having a bearing on access to information held by public and private bodies, respectively; and
(ii) procedures in terms of which public and private bodies make information electronically available;
(b) monitor the implementation of this Act; 45 (c) if reasonably possible, on request, assist ~ny person wishing to exercise J right
contemplated in this Act; (d) recommend to a public or private body that the body make such changes in the
manner in which it administers this Act as the Commission considers advisable; 50
(e) train information officers of public bodies; (~) consult with and receive reports from public and private bodies on the
problems encountered in complying with this Act; (g) obtain advice from, consult with, or receive and consider proposals or
recommendations from, any public or private body, official of such a body or 5j member of the public in connection with the Commission’s functions in terms of this Act;
* 42 No. 20852 GOVERNMENT GAZE~, 3 FEBRUARY 2000
Act No. 2,2000 PROMOTION OF ACWS TO INFOWATION ACT, 2000
(h) for the purposes of section 84(b)(x), request the Public Protector to submit to the Commission information with respect t~ (i) the number of complaints lodged with the Public Protector in respect of
a right conferred or duty imposed by this Act; (ii) the nature and outcome of those complaints; and
(i) generally, inquire into any matter, including any legislation, the common law and any practice and procedure, connected with the objects of this Act.
(4) For the purpose of the annual report referred to in section 84 and if so ruluested by the Human Rights Commission, the head of a private body may furnish to that Commission information about requests for access to records of the body.
(5) If appropriate, and if financial and other resources are available, an official of a public body must afford the Human Rights Commission reasonable assistance for the effective performance of its functions in terms of this Act.
Report to National Assembly by Human Rights Commjssjon
84. The Human Rights Commission must include in its annual report to the National Assembly referred to in section 181(5) of the Constitution—
(a) any recommendation in terms of section 83(3)(a); and (h) in relation to each public body, particulars of—
(i) (ii)
(iii) (iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
Xe number of requests for access received; the number of requests for access granted in full; the number of requests for access granted in terms of section 46; the number of requests for access refused in full and refused partially and the number of times each provision of this Act was relied on to refuse access in full or parttily; the number of cases in which the periods stipulated in section 25(l) were extendd in terms of secti~ 26( 1); the number of internal appeals lodged with the relevant authority and he number of cases in which, qs a result of an intemd appeal, access was given to a.recclrd or a p@, ~qre~~ the number of internal appeals which were lodged on the grQuad that a request for access was regarded aa having been refused ,in terms of section 27; the number of applications made to every court and the outcome ,tierwf and the number of decisions of ,eve~ QQurt appealed. against md the outcome th@eofi ,.,, !. the number of applications to CVQW court wtich were lodged Pn the ground that an intemd appeal ,was+regarded as,havkg been distised in terms of wtion 77(7); ~, , : , the number of complaints lodged with the Public Protec~r,in respect of a right confemed or duty -seal by this Act d the natumand outcome thereofl and ,! such other matters as may be pmweibeA ,
Expe@jture of Human M@ta CO@@On jn tew,of 4ct.
85. Any expenditure, iq, c{)nnectiop wi~ de’ ~~o~~ce pf the ,,
Commission’s functions ,m ter~s of us, Act i +qft ~,, @efrayed appropriated by Parliament to tiat Commission for that E~se+
PA~T6 ,,. ,.!
TRANSITIONAL PRO~I~N$
Appljcatjon of o t h e r Iegfdatjon prodding for ~t~ ‘‘ : ~ .! !.,,
Human Rights from moneys
86. (1) The Minister must, within 12 months after the commencement of section 6, introduce a Bill in Parliament proposing the amendme~ 0%, ,
(a) Part 1 of the Schedule to include the provisions.@ld@& which provide for or promote access to a record of a publio body; d.
(b) Part 2 of the Schedule to include the provisi-of~stiohwhich provide for or promote acces!; to a record of a private body.
(2) Until the amendment of this Act contemplated in subsection (1) ti~t, any other legislation not referred to in the Schedule which provides for ac~~ ta &wcord of
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GOWRNMENT G~m, 3 ~BRUARY 2000 No. 20852 43
PROMOTtON OF ACCESS TO NOWA~ON ACT, 2~ Act No. 2,2000
a public body or a private body in a manner which, including, but not limited to, the payment of fees, is not materially more onerous than the manner in which access maybe obtained in terms of Part 2 or 3 of this Act, respectively, access may be given in terms of that legislation.
Extended periods for dealing with requests during first two years
87. (1) For— (a) 12 months from the date that Part 2 takes effect in respect of a public body, the
reference te (i) 30 days in section 25(1) and any other reference to that period in other
provisions of this Act; (ii) 30 days in section 49(1) and any other reference to that period in other
provisions of this Act, must be construed as a reference to 90 days in respect of that public body; and
(b) 12 months following the 12 months referred to in paragraph (a), the reference t* (i) 30 days in section 25(1) and any other reference to that period in other
provisions of this Act; (ii) 30 days in section 49(1) and any other reference to that period in other
provisions of this Act, must be construed as a reference to 60 days in respect of the public body concerned.
(2) The periods of 90 days and 60 days referred to in subsection (1)(a) and (b), respectively, may not be extended in terms of section 26.
(3) Parliament must, after a period of 12 months, but within a period of 18 months. after the commencement of this section, review the operation of this section.
Correction of personal information
88. If no provision for the correction of personal information in a record of a public or private body exists, that public or private body must take reasonable steps to establish adequate and appropriate internal measures providing for such correction until legislation providing for such correction takes effect.
PART 7 GENERAL PROVISIONS
Liability
89. No person is criminally or civilly liable for anything done in good faith in the exercise or performance or purported exercise or performance of any power or duty in terms of this Act.
Offences
90. A person who with intent to deny a right of access in terms of this Act— (a) destroys, damages or alters a record; (b) conceals a record; or (c) falsifies a record or makes a false record,
commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years.
Amendment of Public Protector Act 23 of 1994
91. Section 6 of the Public Protector Act, 1994 (Act No. 23 of 1994), is hereby amended—
(a) by the substitution in paragraph (c) of subsection (4) for the expression “authority.” of the expression “authority; and”; and
(b) by the addition to subsection (4) of the following paragraph: “(d) on his or her own initiative, on receipt of a complaint or on request
relating to the operation or administration of the Promotion of Access to Information Act, 2000, endeavour, in his or her sole discretion. to resolve any dispute by—
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4 No, 20852 GOVERNMENT GA~~E, 3 ~BRUARY 2000
Act No, 2,2000 PROMOTION OF ACCESS TO ~FOWA~ON Am, 2000
(j) mediation, conciliation or negotiation; (ii) advising, where necessary, any complainant regarding appropriate
remedies; or (iii) any other means that may be expedient in the circumstances.
Regulations 5
92. (1) The Minister may, by notice in the Gazette, m~e regulations regarding— (a) any matter which is required or permitted by this Act to be prescribed; , (b) any matter relating to the fees contemplated in sections 22 and 54; (c) any notice required by this Act; (d) uniform criteria to be applied by the information officer of a public body when 10
decidhg which categories of records are to be made available in terms of section 15; md
(e) my administrative or prwedurd matter necessary to give effect to the provisions of this Act.
(2) Any regulation in terms of subsection (1) must, before publication in the Gazette, 15 be submitted to Parliament.
(3) Any regulation in te[ms of subsection (1) which— (a) relates to f~s; or (b) may result in finnncial expenditure for the State,
must be made by the Minister acting in consultation with the Minister of Finance, 20
Shoti tide and commencement
93. (1) This Act is the Promotion of Access to bformation Act, 2000, and ties effect on a date determined by the President by proclamation in the Gazette.
(2) Different dates may be so determined in respect of— (a) different provisions of this Act; 25 (b) different categories of public bodies, including, but not limited to, different
public bodies conkmplatd in— ( i ) p a r a g r a p h ( a ) ;
(ii) paragraph (b)(i); ad (iii) paragraph (b)(ii), 30 ‘ of the definition of “public body” in section 1; and
(c) different categories of private bodios, , .$
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GOVERNMENT GAZETTE, 3 ~BRUARY 2W No. 20852 45
PROMO~ON OF ACCESS TO mORMAmON ACT, 2000 Act No. 2,2000
SCHEDULE
Part 1
(Section 6(a))
, Number and year of law Short title
— Section
Act 107 of 1998 National Environmental Section 31( 1 ) Management Act, 1998
Part 2
(Section 6(b))
Number and year of law Short title Section Act 107 of 1998 National Environmental Section 3 1(2)
Management Act, 1998