Category: Access to information

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 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 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]

Section 41 | Defence, security and international relations of Republic

  1. 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.
  2. 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.
  3. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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
  5. 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
  6. 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.
  7. 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

  1. 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.
  2. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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).