Access to information Archives

ACT summary and preamble

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; to provide that the Information Regulator, established in terms of the Protection of Personal Information Act, 2013, must exercise certain powers and perform certain duties and functions in terms of this Act; and to provide for matters connected therewith.

PREAMBLE

RECOGNISING THAT—

the system of government in South Africa before 27 April 1994, amongst others, resulted 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)(b) 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 required 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,

Section 1 | Definitions

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;

“biometrics” means a technique of personal identification that is based on physical, physiological or behavioural characterisation including blood typing, fingerprinting, DNA analysis, retinal scanning and voice recognition;

“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996);

“court” means –

a) the Constitutional Court acting in terms of section 167(6)(a) of the Constitution; or

i) a High Court or another court of similar status; or

ii) a Magistrate’s Court for any district or for any regional division established by the Minister for the purposes of adjudicating civil disputes in terms of section 2 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), 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, an additional magistrate or a magistrate of a regional division established for the purposes of adjudicating civil disputes, as the case may be, designated in terms of section 91A,

within whose area of jurisdiction –

aa) the decision of the information officer or relevant authority of the public body or the head of a private body has been taken;

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, including a person referred to in paragraph (c) of the definition of “political party”, 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; or

d) in the case of political party, the leader of the political party or any person duly authorised by that leader;

“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;

“individual’s next of kin” means –

a) an 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 –

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 affinity or consanguinity;

“information 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 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, provincial administration or organisational component or the person who is acting as such; or

ii) not so mentioned, means the Director-General, head, executive director or equivalent officer, respectively, of that national department, provincial administration or organisational component, respectively, or the person who is acting as such;
(Definition of “information officer” substituted by section 21 of Act 42 of 2001)

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

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;

“Information Regulator” means the Information Regulator established in terms of section 39 of the Protection of Personal Information Act, 2013;

“internal appeal” means an internal appeal to the relevant authority in terms of section 74;

“international organisation” means an international organisation –

(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 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 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 relating to an identifiable natural person, including, but not
limited to—

(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 person;

(b) information relating to the education or the medical, financial, criminal or employment history of the person;

(c) any identifying number, symbol, email address, physical address, telephone number, location information, online identifier or other particular assigned to the person;

(d) the biometric information of the person;

(e) the personal opinions, views or preferences of the person;

(f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;

(g) the views or opinions of another individual about the person; and

(h) the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person,

but excludes information about an individual who has been dead for more than 20 years;

“political party” means—

(a) any entity that accepts donations principally to support or oppose any registered political party or its candidates, in an election as defined in section 1 of the Electoral Act, 1998 (Act No. 73 of 1998);

(b) any registered political party as defined in the Electoral Act, 1998; or

“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;

(d) a political party,

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;

(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

“relevant authority”, in relation to –

(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 or 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

(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 to –

(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 to –

(a) a public body, means –

(i) any person (other than a public body contemplated in paragraph (a) or (b)(i) of the definition of “public body”, or an official thereof) making a request for access to a record of that public body; or

(ii) a person acting on behalf 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, making 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);

“subversive or hostile activities” means –

(a) 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;

(d) a foreign or hostile intelligence operation;

“third party”, in relation to a request for access to –

(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 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,
but, for the purposes of sections 34 and 63, the reference to “person” in paragraphs (a) 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;

“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).

Section 2 | Interpretation of Act

When interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects.
Section 12 must not be construed as excluding –
1. the Cabinet and its committees; or
2. an individual member of Parliament or of a provincial legislature,
  from the operation of the definition of “requester” in relation to a private body in section 1, section 50 and all other provisions of this Act related thereto.
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.

Section 3 | Act applies to record whenever it came into existence

This Act applies to –

a) a record of a public body; and

b) a record of a private body,

regardless of when the record came into existence.

Section 4 | Records held by official or independent contractor of public or private body

For the purposes of this Act, but subject to section 12, a record in the possession or under the control of –

(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.

Section 5 | Application of other legislation prohibiting or restricting disclosure

This Act applies to the exclusion of any provision of other legislation that –

(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.

Section 6 | Application of other legislation providing for access

Nothing in this Act prevents the giving of access to –

(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.

Section 7 | Act not applying to records requested for criminal or civil proceedings after commencement of proceedings

(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
(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 the interests of justice.

Section 8 | Part applicable when performing functions as public or private body

(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 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 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.

(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.

Section 9 | Objects of Act

The objects of this Act are –

(a) to give effect to the constitutional right of access to –

(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;

(b) to give effect to that right –

(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 balances that right with any other rights, including the 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 information 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;

(d) 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 public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible; and

(e) generally, to promote transparency, accountability and effective governance of all public and private bodies by, including, but not limited to, empowering and educating everyone –

(i) to understand their rights in terms of this Act in order to exercise their rights 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.