Author: Accessible Law

Section 30 | Access to health or other records

  1. If the information officer who grants, in terms of section 11, a request for access to a record provided by a health practitioner in his or her capacity as such about the physical or mental health, or well-being –
    1. of the requester; or
    2. 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 health, or well-being, the information officer may, before giving access in terms of section 29, consult with a health practitioner who, subject to subsection (2), has been nominated by the relevant person.
  2. If the relevant person is –
    1. under the age of 16 years, a person having parental responsibilities for the relevant person must make the nomination contemplated in subsection (1); or
    2. incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination.
    1. 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 the relevant person would be likely to cause serious harm to his or her physical or mental health, or well-being, the information officer may only give access to the record if the requester proves to the satisfaction of the information officer that adequate provision is made for such counselling 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.
    2. Before access to the record is so given to the requester, the person responsible for such counselling or arrangements must be given access to the record.

Section 31 | Language of access

A requester whose request for access to a record of a public body has been granted must, if the record –

a) exists in the language that the requester prefers, be given access in that language; or

b) does not exist in the language so preferred or the requester has no preference or has not indicated a preference, be given access in any language the record exists in.

Section 32 | Reports to Information Regulation

The information officer of each public body must annually submit to the Information Regulation a report stating in relation to the public body –

a) the number of requests for access received;

b) the number of requests for access granted in full;

c) the number of requests for access granted in terms of section 46;

d) 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 partial;

e) the number of cases in which the periods stipulated in section 25(1) were extended in terms of section 26(1);

f) the number of internal appeals lodged with the relevant authority and the number of cases in which, as a result of an internal appeal, access was given to a record;

g) the number of internal appeals which were lodged on the ground that a request for access was regarded as having been refused in terms of section 27;

h) the number of applications to a court which were lodged on the ground that an internal appeal was regarded as having been dismissed in terms of section 77(7); and

i) such other matters as may be prescribed.

Note: Michalsons can help you to submit the public body PAIA annual report to the information regulator. You can also be empowered to comply with PAIA by joining the Michalsons access to information programme.

Section 33 | Interpretation

  1. The information officer of a public body –
    1. must refuse a request for access to a record contemplated in section 34(1), 35(1), 36(1), 37(1)(a), 38(a), 39(1)(a), 40 or 43(1); or
    2. may refuse a request for access to a record contemplated in section 37(1)(b), 38(b), 39(1)(b), 41(1)(a) or (b), 42(1) or (3), 43(2), 44(1) or (2) or 45,
      unless the provisions of section 46 apply.
  2. A provision of this Chapter in terms of which a request for access to a record must or may or may not be refused, may not be construed as –
    1. 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
    2. 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.

Section 34 | Mandatory protection of privacy of third party who is natural person

  1. Subject to subsection (2), the information officer of a public body must refuse a request for 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 –
    1. about an individual who has consented in terms of section 48 or otherwise in writing to its disclosure to the requester concerned;
    2. that was given to the public body by the individual to whom it relates and the individual was informed by or on behalf of the public body, before it is given, that the information belongs to a class of information that would or might be made available to the public;
    3. already publicly available;
    4. about an individual’s physical or mental health, or well-being, who is under the care of the requester and who is –
      1. under the age of 18 years; or
      2. incapable of understanding the nature of the request,
        and if giving access would be in the individual’s best interests;
    5. about an individual who is deceased and the requester is –
      1. the individual’s next of kin; or
      2. making the request with the written consent of the individual’s next of kin; or
    6. about an individual who is or was an official of a public body and which relates to the position or functions of the individual, including, but not limited to –
      1. the fact that the individual is or was an official of that public body;
      2. the title, work address, work phone number and other similar particulars of the individual;
      3. the classification, salary scale, remuneration and responsibilities of the position held or services performed by the individual; and
      4. the name of the individual on a record prepared by the individual in the course of employment.

Section 35 | Protection of certain SARS records

  1. Subject to subsection (2), the information officer of the South African Revenue Service, referred to in section 2(3), must refuse a request for access to a record of that Service if it contains information which was obtained or is held by that Service for the purposes of enforcing legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997(Act No. 34 of 1997).
  2. A record may not be refused in terms of subsection (1) insofar as it consists of information about the requester or the person on whose behalf the request is made.

[Full name of section 35: Mandatory protection of certain records of South African Revenue Service]

Section 36 | Mandatory protection of commercial information of third party

  1. Subject to subsection (2), the information officer of a public body must refuse a request for access to a record of the body if the record contains –
    1. trade secrets of a third party;
    2. 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
    3. information supplied in confidence by a third party the disclosure of which could reasonably be expected –
      1. to put that third party at a disadvantage in contractual or other negotiations; or
      2. to prejudice that third party in commercial competition.
  2. A record may not be refused in terms of subsection (1) insofar as it consists of information –
    1. already publicly available;
    2. about a third party who has consented in terms of section 48 or otherwise in writing to its disclosure to the requester concerned; or
    3. about the results of any product or environmental testing or other investigation supplied by a third party or the result of any such testing or investigation 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)(c), 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.

Section 37 | Mandatory protection of certain confidential information, and protection of certain other confidential information, of third party

  1. Subject to subsection (2), the information officer of a public body –
    1. must refuse a request for access to a record of the body if the disclosure of the record would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement; or
    2. may refuse a request for access to a record of the body if the record consists of information that was supplied in confidence by a third party –
      1. the disclosure of which could reasonably be expected to prejudice the future supply of similar information, or information from the same source; and
      2.  if it is in the public interest that similar information, or information from the same source, should continue to be supplied.
  2. A record may not be refused in terms of subsection (1) insofar as it consists of information –
    1. already publicly available; or
    2. about the third party concerned that has consented in terms of section 48 or otherwise in writing to its disclosure to the requester concerned

Section 38 | Mandatory protection of safety of individuals, and protection of property

The information officer of a public body –

a) must refuse 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

b) may refuse a request for access to a record of the body if its disclosure would be likely to prejudice or impair –

i) the security of –

aa) a building, structure or system, including, but not limited to, a computer or communication system;

bb) a means of transport; or

cc) any other property; or

ii) methods, systems, plans or procedures for the protection of –

aa) an individual in accordance with a witness protection scheme;

bb) the safety of the public, or any part of the public; or

cc) the security of property contemplated in subparagraph (i)(aa), (bb) or (cc).

Section 39 | Protection of police dockets in bail proceedings

1) The information officer of a public body –

a) must refuse a request for access to a record of the body if access to that record is prohibited in terms of section 60(14) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977); or

b) may refuse a request for access to a record of the body if –

i) the record contains methods, techniques, procedures or guidelines for –

aa) the prevention, detection, curtailment or investigation of a contravention or possible contravention of the law; or

bb) the prosecution of alleged offenders,

and the disclosure of those methods, techniques, procedures or guidelines could reasonably be expected to prejudice the effectiveness of those methods, techniques, procedures or guidelines or lead to the circumvention of the law or facilitate the commission of an offence;

ii) the prosecution of an alleged offender is being prepared or about to commence or pending and the disclosure of the record could reasonably be expected –

aa) to impede that prosecution; or

bb) to result in a miscarriage of justice in that prosecution; or

iii) the disclosure of the record could reasonably be expected –

aa) to prejudice the investigation of a contravention or possible contravention of the law which is about to commence or is in progress or, if it has been suspended or terminated, is likely to be resumed;

bb) to reveal, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law;

cc) to result in the intimidation or coercion of a witness, or a person who might be or has been called as a witness, in criminal proceedings or other proceedings to enforce the law;

dd) to facilitate the commission of a contravention of the law, including, but not limited to, subject to subsection (2), escape from lawful detention; or

ee) to prejudice or impair the fairness of a trial or the impartiality of an adjudication.

2) A record may not be refused in terms of subsection (1)(b)(iii)(dd) insofar as it consists of information about the general conditions of detention of persons in custody.

3)

a) If a request for access to a record of a public body must or may be refused in terms of subsection (1)(a) or (b), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in subsection (1)(a) or (b), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record.

b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3) must –

i) state that fact;

ii) identify the provision of subsection (1)(a) or (b) in terms of which access would have been refused if the record had existed;

iii) state adequate reasons for the refusal, as required by section 25(3), in so far as they can be given without causing the harm contemplated in subsection (1)(a) or (b); and

iv) state that the requester concerned may lodge an internal appeal or an application with a court, as the case may be, against the refusal as required by section 25(3).

[Full name of section 39: Mandatory protection of police dockets in bail proceedings, and protection of law enforcement and legal proceedings]