Accessible Law, Author at PAIA

Section 40 | Mandatory protection of records privileged from production in legal proceedings

The information officer of a public 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 to the privilege has waived the privilege.

Section 41 | Defence, security and international relations of Republic

The information officer of a public body may refuse a request for access to a record of the body if its disclosure –
1. could reasonably be expected to cause prejudice to –
  1. the defence of the Republic;
  2. the security of the Republic; or
  3. subject to subsection (3), the international relations of the Republic; or
2. would reveal information –
  1. supplied in confidence by or on behalf of another state or an international organisation;
  2. supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement or international agreement, contemplated in section 231 of the Constitution, with that state or organisation which requires the information to be held in confidence; or
  3. required to be held in confidence by an international agreement or customary international law contemplated in section 231 or 232, respectively, of the Constitution.
A record contemplated in subsection (1), without limiting the generality of that subsection, includes a record containing information –
1. relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention, suppression or curtailment of subversive or hostile activities;
2. relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of –
  1. weapons or any other equipment used for the detection, prevention, suppression or curtailment of subversive or hostile activities; or
  2. anything being designed, developed, produced or considered for use as weapons or such other equipment;
3. relating to the characteristics, capabilities, vulnerabilities, performance, potential, deployment or functions of –
  1. any military force, unit or personnel; or
  2. any body or person responsible for the detection, prevention, suppression or curtailment of subversive or hostile activities;
4. held for the purpose of intelligence relating to –
  1. the defence of the Republic;
  2. the detection, prevention, suppression or curtailment of subversive or hostile activities; or
  3. another state or an international organisation used by or on behalf of the Republic in the process of deliberation and consultation in the conduct of international affairs;
5. on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph (d);
6. on the identity of a confidential source and any other source of information referred to in paragraph (d);
7. on the positions adopted or to be adopted by the Republic, another state or an international organisation for the purpose of present or future international negotiations; or
8. that constitutes diplomatic correspondence exchanged with another state or an international organisation or official correspondence exchanged with diplomatic missions or consular posts of the Republic.
A record may not be refused in terms of subsection (1)(a)(iii) if it came into existence more than 20 years before the request.
1. If a request for access to a record of a public body may be refused in terms of subsection (1), 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), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record.
2. 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 –
  1. state that fact;
  2. identify the provision of subsection (1) in terms of which access would have been refused if the record had existed;
  3. 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); and
  4. state that the requester 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).

Section 42 | Economic interests and financial welfare of Republic and commercial activities of public bodies

The information officer of a public body may refuse a request for access to a record of the body if its disclosure would be likely to materially jeopardise the economic interests or financial welfare of the Republic or the ability of the government to manage the economy of the Republic effectively in the best interests of the Republic.
The information referred to in subsection (1) includes, without limiting the generality of that subsection, information about –
1. a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment;
2. a contemplated change in or decision not to change –
  1. credit or interest rates;
  2. customs or excise duties, taxes or any other source of revenue;
  3. the regulation or supervision of financial institutions;
  4. government borrowing; or
  5. the regulation of prices of goods or services, rents or wages, salaries or other incomes; or
3. a contemplated –
  1. sale or acquisition of immovable or movable property; or
  2. international trade agreement.
Subject to subsection (5), the information officer of a public body may refuse a request for access to a record of the body if the record –
1. contains trade secrets of the State or a public body;
2. contains financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which would be likely to cause harm to the commercial or financial interests of the State or a public body;
3. contains information, the disclosure of which could reasonably be expected –
  1. to put a public body at a disadvantage in contractual or other negotiations; or
  2. to prejudice a public body in commercial competition; or
4. is a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the State or a public body, except insofar as it is required to give access to a record to which access is granted in terms of this Act.
The information referred to in subsection (2)(c)(i) includes, without limiting the generality of that subsection, information about an agreement, or contemplated agreement, to transfer any interest in or right to shares in the capital of a public body to any person which is not a public body referred to in paragraph (a) or (b)(i) of the definition of “public body” in section 1
A record may not be refused in terms of subsection (3) insofar as it consists of information –
1. already publicly available;
2. about or owned by a public body, other than the public body to which the request is made, which has consented 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 public body or the results of any such testing or investigation carried out by or on behalf of a public body, and its disclosure would reveal a serious public safety or environmental risk
For the purposes of subsection (5)(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.
If a request for access to a record contemplated in subsection (5)(c) is granted and the testing or other investigation was carried out by or on behalf of the public body from which the record is requested, the information officer must at the same time as access to the record is given, provide the requester with a written explanation of the methods used in conducting the testing or other investigation.

Section 43 | Mandatory protection of research information of third party, and protection of research information of public body

The information officer of a public 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 –
1. the third party;
2. a person that is or will be carrying out the research on behalf of the third party; or
3. the subject matter of the research,
  to serious disadvantage.
The information officer of a public body may 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 public body, the disclosure of which would be likely to expose –
1. the public body;
2. a person that is or will be carrying out the research on behalf of the public body; or
3. the subject matter of the research, to serious disadvantage.

Section 44 | Operations of public bodies

Subject to subsections (3) and (4), the information officer of a public body may refuse a request for access to a record of the body –
1. if the record contains –
  1. an opinion, advice, report or recommendation obtained or prepared; or
  2. an account of a consultation, discussion or deliberation that has occurred, including, but not limited to, minutes of a meeting,
    for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; or
2. if –
  1. the disclosure of the record could reasonably be expected to frustrate the deliberative process in a public body or between public bodies by inhibiting the candid –
    1. communication of an opinion, advice, report or recommendation; or
    2. conduct of a consultation, discussion or deliberation; or
  2. the disclosure of the record could, by premature disclosure of a policy or contemplated policy, reasonably be expected to frustrate the success of that policy.
Subject to subsection (4), the information officer of a public body may refuse a request for access to a record of the body if –
1. the disclosure of the record could reasonably be expected to jeopardise the effectiveness of a testing, examining or auditing procedure or method used by a public body;
2. the record contains evaluative material, whether or not the person who supplied it is identified in the record, and the disclosure of the material would breach an express or implied promise which was –
  1. made to the person who supplied the material; and
  2. to the effect that the material or the identity of the person who supplied it, or both, would be held in confidence; or
3. the record contains a preliminary, working or other draft of an official of a public body.
A record may not be refused in terms of subsection (1) if the record came into existence more than 20 years before the request concerned.
A record may not be refused in terms of subsection (1) or (2) insofar as it consists of an account or a statement of reasons required to be given in accordance with section 5 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

Section 45 | Frivolous or vexatious requests

The information officer of a public body may refuse a request for access to a record of the body if-

a) the request is manifestly frivolous or vexatious; or

b) the work involved in processing the request would substantially and unreasonably divert the resources of the public body.

[Full name of section 45: Manifestly frivolous or vexatious requests, or substantial and unreasonable diversion of resources]

Section 46 | Mandatory disclosure in public interest

Despite any other provision of this Chapter, the information officer of a public body must grant a request for access to a record of the body contemplated in section 34(1), 36(1), 37(1)(a) or (b), 38(a) or (b), 39(1)(a) or (b), 40, 41(1)(a) or (b), 42(1) or (3), 43(1) or (2), 44(1) or (2) or 45, 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) an imminent and serious public safety or environmental risk; and

b) the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.

Section 47 | Notice to third parties

The information officer of a public body considering a request for access to a record that might be a record contemplated in section 34(1), 35(1), 36(1), 37(1) or 43(1) must take all reasonable steps to inform a third party to whom or which the record relates of the request.
The information officer must inform a third party in terms of subsection (1) –
1. as soon as reasonably possible, but in any event, within 21 days after that request is received or transferred; and
2. by the fastest means reasonably possible.
When informing a third party in terms of subsection (1), the information officer must –
1. state that he or she is considering a request for access to a record that might be 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;
2. furnish the name of the requester;
3. describe the provisions of section 34(1), 35(1), 36(1), 37(1) or 43(1), as the case may be;
4. in any case where the information officer 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 information officer might apply and state the reasons why he or she is of the opinion that section 46 might apply; and
5. state that the third party may, within 21 days after the third party is informed –
  1. make written or oral representations to the information officer why the request for access should be refused; or
  2. give written consent for the disclosure of the record to the requester.
If a third party is not informed orally of a request for access in terms of subsection (1), the information officer must give a written notice stating the matters referred to in subsection (3) to the third party.

Section 49 | Decision on representations for refusal and notice thereof

The information officer of a public body must, as soon as reasonably possible, but in any event within 30 days after every third party is informed as required by section 47 –
1. decide, after giving due regard to any representations made by a third party in terms of section 48, whether to grant the request for access;
2. notify the third party so informed and a third party not informed in terms of section 47(1), but that made representations in terms of section 48 or is located before the decision is taken, of the decision; and
3. notify the requester of the decision and, if the requester stated, as contemplated in section 18(2)(e), that he or she wishes to be informed of the decision in any other manner, inform him or her in that manner if it is reasonably possible, and if the request is-
  1. granted, notify the requester in accordance with section 25(2); or
  2. refused, notify the requester in accordance with section 25(3).
    [Section 49(1) substituted by section 37 of Act 42 of 2001]
If, after all reasonable steps have been taken as required by section 47(1), a third party is not informed of the request in question and the third party did not make any representations in terms of section 48, 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 48 why the request should be refused.
If the request for access is granted, the notice in terms of subsection (1)(b) must state –
1. adequate reasons for granting the request, including the provisions of this Act relied upon;
2. that the third party may lodge an internal appeal, complaint to the Information Regulator or an application, as the case may be, against the decision within 30 days after notice is given, and the procedure for lodging the internal appeal, complaint to the Information Regulator or application, as the case may be; and
  [Section 49(3)(b) substituted by section 110 (Schedule) of Act 4 of 2013]
3. that the requester will be given access to the record after the expiry of the applicable period contemplated in paragraph (b), unless such internal appeal, complaint to the Information Regulator or application with a court is lodged within that period.
  [Section 49(3)(c) substituted by section 110 (Schedule) of Act 4 of 2013]
If the information officer of a public 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 concerned after the expiry of 30 days after notice is given in terms of subsection (1)(b), unless an internal appeal, complaint to the Information Regulator or an application with a court, as the case may be, is lodged against the decision within that period.
[Section 49(4) substituted by section 110 (Schedule) of Act 4 of 2013]