Access request 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 29 | Access and forms of access

1) If a requester has been given notice in terms of section 25(1) that his or her request for access has been granted, that requester must, subject to subsections (3) and (9) and section 31 –

a) if an access fee is payable, upon payment of that fee; or

b) if no access fee is payable, immediately,

be given access in the applicable forms referred to in subsection (2) as the requester indicated in the request, and in the language contemplated in section 31.

2) The forms of access to a record in respect of which a request of access has been granted, are the following:

a) If the record is in written or printed form, by supplying a copy of the record or by making arrangements for the inspection of the record;

b) if the record is not in written or printed form –

i) in the case of a record from which visual images or printed transcriptions of those images are capable of being reproduced by means of equipment which is ordinarily available to the public body concerned, by making arrangements to view those images or be supplied with copies or transcriptions of them;

ii) in the case of a record in which words or information are recorded in such manner that they are capable of being reproduced in the form of sound by equipment which is ordinarily available to the public body concerned –

aa) by making arrangements to hear those sounds; or

bb) if the public body is capable of producing a written or printed transcription of those sounds by the use of equipment which is ordinarily available to it, by supplying such a transcription;

iii) in the case of a record which is held on computer, or in electronic or machine-readable form, and from which the public body concerned is capable of producing a printed copy of –

aa) the record, or a part of it; or

bb) information derived from the record,

by using computer equipment and expertise ordinarily available to the public body, by supplying such a copy;

iv) in the case of a record available or capable of being made available in computer readable form, by supplying a copy in that form; or

v) in any other case, by supplying a copy of the record.

3) If a requester has requested access in a particular form, access must, subject to section 28, be given in that form, unless to do so would –

a) interfere unreasonably with the effective administration of the public body concerned;

b) be detrimental to the preservation of the record; or

c) amount to an infringement of copyright not owned by the State or the public body concerned.

4) If a requester has requested access in a particular form and for a reason referred to in subsection (3) access in that form is refused but access is given in another form, the fee charged may not exceed what would have been charged if that requester had been given access in the form requested.

5) If a requester with a disability is prevented by that disability from reading, viewing or listening to the record concerned in the form in which it is held by the public body concerned, the information officer of the body must, if that requester so requests, take reasonable steps to make the record available in a form in which it is capable of being read, viewed or heard by the requester.

6) If a record is made available in accordance with subsection (5), the requester may not be required to pay an access fee which is more than the fee which he or she would have been required to pay but for the disability.

7) If a record is made available in terms of this section to a requester for inspection, viewing or hearing, the requester may make copies of or transcribe the record using the requester’s equipment, unless to do so would –

a) interfere unreasonably with the effective administration of the public body concerned;

b) be detrimental to the preservation of the record; or

c) amount to an infringement of copyright not owned by the State or the public body concerned.

8) If the supply to a requester of a copy of a record is required by this section, the copy must, if so requested, be supplied by posting it to him or her.

9) If an internal appeal, complaint to the Information Regulator or an application to a court, as the case may be, is lodged against the granting of a request for access to a record, access to the record may be given only when the decision to grant the request is finally confirmed.

Section 30 | Access to health or other records

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

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.
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 36 | Mandatory protection of commercial information of third party

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.
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.
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 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]