Access to information Archives - Page 5 of 10

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 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]

Section 50 | Right of access to records of private bodies

A requester must be given access to any record of a private body if –
1. that record is required for the exercise or protection of any rights;
2. that person complies with the procedural requirements in this Act relating to a request for access to that record; and
3. access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.
In addition to the requirements referred to in subsection (1), when a public body, referred to in paragraph (a) or (b)(i) of the definition of “public body” in section 1, requests access to a record of a private body for the exercise or protection of any rights, other than its rights, it must be acting in the public interest.
A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made

Section 51 | Manual

The head of a private body must make a manual available in terms of subsection (3) containing—
1. in general—
  1. the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body; and
  2. such other information as may be prescribed;
2. insofar as this Act is concerned—
  1. a description of the guide referred to in section 10, if available, and how to obtain access to it;
  2. the latest notice in terms of section 52(2), if any, regarding the categories of record of the body which are available without a person having to request access in terms of this Act;
  3. a description of the records of the body which are available in accordance with any other legislation; and
  4. sufficient detail to facilitate a request for access to a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject;
3. insofar as the Protection of Personal Information Act, 2013, is concerned—
  1. the purpose of the processing;
  2. a description of the categories of data subjects and of the information or categories of information relating thereto;
  3. the recipients or categories of recipients to whom the personal information may be supplied;
  4. planned transborder flows of personal information; and
  5. a general description allowing a preliminary assessment of the suitability of the information security measures to be implemented by the responsible party to ensure the confidentiality, integrity and availability of the information which is to be processed.
The head of a private body must on a regular basis update the manual referred to in subsection (1).
The manual referred to in subsection (1), or the updated version thereof as referred to in subsection (2) must be made available—
1. on the web site, if any, of the private body;
2. at the principal place of business of the private body for public inspection during normal business hours;
3. to any person upon request and upon the payment of a reasonable amount; and
4. to the Information Regulator upon request.
For security, administrative or financial reasons, the Minister may, on request or of his or her own accord, by notice in the Gazette, exempt any private body or category of private bodies from any provision of this section for such period as the Minister thinks fit.

Section 52 | Voluntary disclosure and automatic availability of certain records

The head of a private body may, on a voluntary basis, make available in the prescribed manner a description of—
1. the categories of records of the private body that are automatically available without a person having to request access in terms of this Act, including such categories available –
  1. for inspection in terms of legislation other than this Act;
  2. for purchase or copying from the private body; and
  3. from the private body free of charge; and
2. how to obtain access to such records.
The only fee (if any) for access to a record referred to in subsection (1) is a prescribed fee for reproduction
The head of a private body may delete any part of a record contemplated in subsection (1)(a) which, on a request for access, may or must be refused in terms of Chapter 4 of this Part.
Section 50 and any other provisions in this Act related to that section do not apply to any category of records included in a notice in terms of subsection (2).

Section 53 | Form of request

(1) A request for access to a record of a private body must be made in the prescribed form to the private body concerned at its address, fax number or electronic mail address.

(2) The form for a request for access prescribed for the purposes of subsection (1) must at least require the requester concerned –

(a) to provide sufficient particulars to enable the head of the private body concerned to identify –

(i) the record or records requested; and

(ii) the requester;

(b) to indicate which form of access is required;

(d) to identify the right the requester is seeking to exercise or protect and provide an explanation of why the requested record is required for the exercise or protection of that right;

(e) if, in addition to a written reply, the requester wishes to be informed of the decision on the request in any other manner, to state that manner and the necessary particulars to be so informed; and

(f) if the request is made on behalf of a person, to submit proof of the capacity in which the requester is making the request, to the reasonable satisfaction of the head.

Section 54 | Fees

(1) The head of a private body to whom a request for access is made must by notice require the requester to pay the prescribed request fee (if any), before further processing the request.

(2) If—

(a) the search for a record of a private body in respect of which a request for access by a requester has been made; and

(b) the preparation of the record for disclosure (including any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)),

would, in the opinion of the head of the private body concerned, require more than the hours prescribed for this purpose for requesters, the head must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.

(3) The notice referred to in subsection (1) or (2) must state –

(a) the amount of the deposit payable in terms of subsection (2), if applicable;

(b) that the requester may lodge a complaint to the Information Regulator or an application with a court against the tender or payment of the request fee in terms of subsection (1), or the tender or payment of a deposit in terms of subsection (2), as the case may be; and

(4) If a deposit has been paid in respect of a request for access which is refused, the head of the private body concerned must repay the deposit to the requester.

(5) The head of a private body may withhold a record until the requester concerned has paid the applicable fees (if any).

(6) A requester whose request for access to a record of a private body has been granted must pay an access fee for reproduction and for search and preparation contemplated in subsection (7)(a) and (b), respectively, for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.

(7) Access fees prescribed for the purposes of subsection (6) must provide for a reasonable access fee for –

(a) the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 29(2)(a) and (b)(i), (ii)(bb), (iii) and (v) and, if applicable, the postal fee; and

(b) the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester.

(8) The Minister may, by notice in the Gazette –

(a) exempt any person or category of persons from paying any fee referred to in this section;

(b) determine that any fee referred to in this section is not to exceed a certain maximum amount;

(d) determine that any fee referred to in this section does not apply to a category of records;

(e) exempt any person or record or category of persons or records for a stipulated period from any fee referred to in subsection (6); and

(f) determine that where the cost of collecting any fee referred to in this section exceeds the amount charged, such fee does not apply.

Section 55 | Records that cannot be found or do not exist

(1) If –

(a) all reasonable steps have been taken to find a record requested; and

(b) there are reasonable grounds for believing that the record –

(i) is in the private body’s possession but cannot be found; or

(ii) does not exist,

the head of a private body must, by way of affidavit or affirmation, notify the requester that it is not possible to give access to that record.

(2) The affidavit or affirmation referred to in subsection (1) must give a full account of all steps taken to find the record in question or to determine whether the record exists, as the case may be, including all communications with every person who conducted the search on behalf of the head.

(3) For the purposes of this Act, the notice in terms of subsection (1) is to be regarded as a decision to refuse a request for access to the record concerned.

(4) If, after notice is given in terms of subsection (1), the record in question is found, the requester concerned must be given access to the record unless access is refused on a ground for refusal contemplated in Chapter 4 of this Part.