Category: Access to information

Section 76 | Notice to and representations by other interested persons

(1) If a relevant authority is considering an internal appeal against the refusal of a request for access to a record contemplated in section 34(1), 35(1), 36(1), 37(1) or 43(1), the authority must inform the third party to whom or which the record relates of the internal appeal, unless all necessary steps to locate the third party have been unsuccessful. 

(2) The relevant authority must inform a third party in terms of subsection (1) – 

(a) as soon as reasonably possible, but in any event within 30 days after the receipt of the internal appeal; and 

(b) by the fastest means reasonably possible. 

(3) When informing a third party in terms of subsection (1), the relevant authority must – 

(a) state that he or she is considering an internal appeal against the refusal of a request for access to 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 and the provisions of section 34(1), 35(1), 36(1), 37(1) or 43(1), as the case may be; 

(b) furnish the name of the appellant; 

(c) in any case where that authority 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 head might apply and state the reasons why he or she is of the opinion that section 46 might apply; and 

(d) state that the third party may, within 21 days after the third party is informed, make written representations to that authority why the request for access should not be granted. 

(4) If a third party is informed orally of an internal appeal in terms of subsection (1), the relevant authority must, on request, give a written notice stating the matters referred to in subsection (3) to the third party. 

(5) A third party that is informed of an internal appeal in terms of subsection (1), may within 21 days after the third party has been informed, make written representations to the relevant authority why the request for access should not be granted. 

(6) A third party that obtains knowledge about an internal appeal other than in terms of subsection (1) may – 

(a) make written or oral representations to the relevant authority why the request for access should be refused; or 

(b) give written consent for the disclosure of the record to the requester concerned. 

(7) If the relevant authority is considering an internal appeal against the granting of a request for access, the authority must give notice of the internal appeal to the requester concerned. 

(8) The relevant authority must – 

(a) notify the requester concerned in terms of subsection (7) as soon as reasonably possible, but in any event within 30 days after the receipt of the internal appeal; and 

(b) state in that notice that the third party may within 21 days after notice is given, make written representations to that authority why that request should be granted. 

(9) A requester to whom or which notice is given in terms of subsection (7) may within 21 days after that notice is given, make written representations to the relevant authority why the request for access should be granted. 

Section 77 | Decision on internal appeal and notice thereof

(1) The decision on an internal appeal must be made with due regard to – 

(a) the particulars stated in the internal appeal in terms of section 75(1)(c); 

(b) any reasons submitted by the information officer in terms of section 75(4)(a); 

(c) any representations made in terms of section 76(5), (6) or (9); and 

(d) if a third party cannot be located as contemplated in section 76(1), the fact that the third party did not have the opportunity to make representations in terms of section 76(5) why the internal appeal should be dismissed. 

(2) When deciding on the internal appeal the relevant authority may confirm the decision appealed against or substitute a new decision for it. 

(3) The relevant authority must decide on the internal appeal – 

(a) as soon as reasonably possible, but in any event within 30 days after the internal appeal is received by the information officer of the body; 

(b) if a third party is informed in terms of section 76(1), as soon as reasonably possible, but in any event within 30 days; or 

(c) if notice is given in terms of section 76(7) – 

(i) within five working days after the requester concerned has made written representations in terms of section 76(9); or 

(ii) in any other case within 30 days after notice is so given. 

(4) The relevant authority must, immediately after the decision on an internal appeal – 

(a) give notice of the decision to – 

(i) the appellant; 

(ii) every third party informed as required by section 76(1); and 

(iii) the requester notified as required by section 76(7); and 

(b) if reasonably possible, inform the appellant about the decision in any other manner stated in terms of section 75(1)(d). 

(5) The notice in terms of subsection (4)(a) must – 

(a) state adequate reasons for the decision, including the provision of this Act relied upon; 

(b) exclude, from such reasons, any reference to the content of the record; 

(c) state that the appellant, third party or requester, as the case may be, may lodge an application with a court against the decision on internal appeal – 

(i) within 180 days; or 

[Section 77(5)(c)(i) substituted by section 27 of Act 42 of 2013, with effect from 22 January 2014] 

(ii) if notice to a third party is required by subsection (4)(a)(ii), within 180 days, 

[Section 77(5)(c)(ii) substituted by section 27 of Act 42 of 2013, with effect from 22 January 2014]

after notice is given, and the procedure for lodging the application; and 

(d) if the relevant authority decides on internal appeal to grant a request for access and notice to a third party – 

(i) is not required by subsection (4)(a)(ii), that access to the record will forthwith be given; or 

(ii) is so required, that access to the record will be given after the expiry of the applicable period for lodging an application with a court against the decision on internal appeal referred to in paragraph (c), unless that application is lodged before the end of that applicable period. 

(6) If the relevant authority decides on internal appeal to grant a request for access and notice to a third party – 

(a) is not required by subsection (4)(a)(ii), the information officer of the body must forthwith give the requester concerned access to the record concerned; or 

(b) is so required, the information officer must, after the expiry of 30 days after the notice is given to every third party concerned, give the requester access to the record concerned, unless an

application with a court is lodged against the decision on internal appeal before the end of the period contemplated in subsection (5)(c)(ii) for lodging that application. 

(7) If the relevant authority fails to give notice of the decision on an internal appeal to the appellant within the period contemplated in subsection (3), that authority is, for the purposes of this Act, regarded as having dismissed the internal appeal. 

Section 77A | Complaints

(1) A requester or third party referred to in section 74 may only submit a complaint to the Information Regulator in terms of this section after that requester or third party has exhausted the internal appeal procedure against a decision of the information officer of a public body provided for in section 74. 

(2) A requester— 

(a) that has been unsuccessful in an internal appeal to the relevant authority of a public body; 

(b) aggrieved by a decision of the relevant authority of a public body to disallow the late lodging of an internal appeal in terms of section 75(2); 

(c) aggrieved by a decision of the information officer of a public body referred to in paragraph (b) of the definition of ‘public body’ in section 1— 

(i) to refuse a request for access; or 

(ii) taken in terms of section 22, 26(1) or 29(3); or 

(d) aggrieved by a decision of the head of a private body – 

(i) to refuse a request for access; or 

(ii) taken in terms of section 54, 57(1) or 60, 

may within 180 days of the decision, submit a complaint, alleging that the decision was not in compliance with this Act, to the Information Regulator in the prescribed manner and form for appropriate relief. 

(3) A third party – 

(a) that has been unsuccessful in an internal appeal to the relevant authority of a public body;

(b) aggrieved by a decision of the information officer of a public body referred to in paragraph (b) of the definition of ‘public body’ in section 1 to grant a request for access; or 

(c) aggrieved by a decision of the head of a private body in relation to a request for access to a record of that body, 

may within 180 days of the decision, submit a complaint, alleging that the decision was not in compliance with this Act, to the Information Regulator in the prescribed manner and form for appropriate relief. 

Section 77C | Action on receipt of complaint

(1) The Information Regulator, after receipt of a complaint made in terms of section 77A, must – 

(a) investigate the complaint in the prescribed manner; 

(b) refer the complaint to the Enforcement Committee established in terms of section 50 of the Protection of Personal Information Act, 2013; or 

(c) decide, in accordance with section 77D, to take no action on the complaint or, as the case may be, require no further action in respect of the complaint. 

(2) During the investigation the Information Regulator may – 

(a) act, where appropriate, as conciliator in relation to such complaint in the prescribed manner; or 

(b) take such further action as is contemplated by this Chapter. 

(3) The Information Regulator must, as soon as is reasonably practicable, after receipt of a complaint, advise the complainant and the information officer or head of a private body, as the case may be, to whom the complaint relates of the course of action that the Information Regulator proposes to adopt under subsection (1). 

Section 77D | Regulator may decide to take no action on complaint

(1) The Information Regulator, after investigating a complaint received in terms of section 77A, may decide to take no action or, as the case may be, require no further action in respect of the complaint if, in the Information Regulator’s opinion – 

(a) the complaint has not been submitted within the period referred to in section 77A(2) and there are no reasonable grounds to condone the late submission; 

(b) the complaint is frivolous or vexatious or is not made in good faith; or 

(c) it appears to the Information Regulator that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate. 

(2) In any case where the Information Regulator decides to take no action, or no further action, on a complaint, the Information Regulator must inform the complainant of that decision and the reasons for it. 

Section 77E | Pre-investigation proceedings of Regulator

Before proceeding to investigate any matter in terms of this Chapter, the Information Regulator must, in the prescribed manner, inform – 

(a) the complainant of the Information Regulator’s intention to conduct the investigation; and 

(b) the information officer of the public body or the head of the private body, as the case may be, to whom the complaint relates of the – 

(i) details of the complaint; and 

(ii) right of the information officer or the head to submit to the Information Regulator, within a reasonable period, a written response in relation to the complaint. 

Section 77F | Settlement of complaints

If it appears from a complaint, or any written response made in relation to a complaint under section 77E(b)(ii), that it may be possible to secure a settlement between the parties concerned, the Information Regulator may, without investigating the complaint or, as the case may be, investigating the complaint further, in the prescribed manner, use its best endeavours to secure such a settlement. 

Section 77G | Investigation proceedings of Regulator

(1) For the purposes of the investigation of a complaint the Information Regulator has powers similar to those of the High Court in terms of section 80 relating to the disclosure of records to it and non-disclosure of records by it. 

(2) Section 81 of the Protection of Personal Information Act, 2013, applies to the investigation of complaints in terms of this Chapter. 

Section 77H | Assessment

  1. The Information Regulator, on its own initiative, or at the request by or on behalf of an information officer or head of a private body or any other person may make an assessment in the manner prescribed of whether a public or private body generally complies with the provisions of this Act insofar as its policies and implementation procedures are concerned.
  2. The Information Regulator must make the assessment if it appears to be appropriate, unless, where the assessment is made on request, the Information Regulator has not been supplied with such information as it may reasonably require in order to –
    1. satisfy itself as to the identity of the person making the request; and
    2. enable it to identify the private or public body concerned.
  3. The matters to which the Information Regulator may have regard in determining whether it is appropriate to make an assessment include –
    1. the extent to which the request appears to it to raise a matter of substance;
    2. determining that the request is not frivolous or vexatious; and
    3. whether or not the person making the request is entitled to make an application in terms of this Act in respect of the information in question.
  4. If the Information Regulator has received a request under this section it must notify the person referred to in subsection (1) –
    1. whether it has made an assessment as a result of the request; and
    2. of any view formed or action taken as a result of the request.