Category: Access to information

Section 77I | Information Notice

  1. For the purposes of the investigation of a complaint the Information Regulator may serve the information officer or head of a private body with an information notice requiring said party to furnish the Information Regulator, within a specified period, in a form specified in the notice, with the information specified in the notice.
  2. An information notice in terms of sub-section (1) must be accompanied by –
    1. reasons for the issuing of the notice; and
    2. particulars of the right to appeal conferred by section 78(4).
  3. Section 90(3) to (9) of the Protection of Personal Information Act, 2013, applies to the serving of an information notice in terms of this Chapter.

Section 77J | Enforcement Notice

  1. The Information Regulator, after having considered the recommendation of the Enforcement Committee, may serve the information officer of a public body or the head of a private body with an enforcement notice –
    1. confirming, amending or setting aside the decision which is the subject of the complaint; or
    2. requiring the said officer or head to take such action or to refrain from taking such action as the Information Regulator has specified in the notice.
  2. A notice in terms of subsection (1) must be accompanied by –
    1. reasons for the notice; and
    2. particulars of the right to make an application to court conferred by Chapter 2 of this Part.
  3. Section 95(3) to (5) of the Protection of Personal Information Act, 2013, applies, with the necessary changes, to the serving of an enforcement notice in terms of this Chapter.
  4. A copy of the notice referred to in subsection (1) that has been certified by the Information Regulator is, for purposes of the application referred to in section 78, conclusive proof of the contents of the enforcement notice that has been served by the Regulator.

Section 77K | Non-compliance with Enforcement Notice

An information officer of a public body or head of a private body who refuses to comply with an enforcement notice referred to in section 77J, is guilty of an offence and liable upon conviction to fine or to imprisonment for a period not exceeding three years or to both such a fine and such imprisonment.

Section 78 | Applications RE decisions of relevant authorities or Regulator

  1. A requester or third party may only apply to a court for appropriate relief in terms of section 82 in the following circumstances:
    1. After that requester or third party has exhausted the internal appeal procedure referred to in section 74; or
    2. after that requester or third party has exhausted the complaints procedure referred to in section 77A.
  2. A requester—
    1. that has been unsuccessful in an internal appeal to the relevant authority of a public body;
    2. 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);
    3. 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—
      1. to refuse a request for access; or
      2. taken in terms of section 22, 26(1) or 29(3);
    4. aggrieved by a decision of the head of a private body—
      1. to refuse a request for access; or
      2. taken in terms of section 54, 57(1) or 60; or
    5. that is aggrieved by any decision of the Information Regulator, may, by way of an application, within 180 days apply to a court for appropriate relief in terms of section 82.
  3. A third party—
    1. that has been unsuccessful in an internal appeal to the relevant authority of a public body;
    2. 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;
    3. aggrieved by a decision of the head of a private body in relation to a request for access to a record of that body; or
    4. that is aggrieved by any decision of the Information Regulator,
      may, by way of an application, within 180 days apply to a court for appropriate relief in terms of section 82.
  4. An information officer or relevant authority of a public body or the head of a private body, as the case may be, aggrieved by a decision of the Information Regulator in terms of section 77E(2)(b) or (c) may, by way of an application, within 180 days apply to a court for appropriate relief in terms of section 82.
    [Section 78 amended by section 28 of Act 42 of 2013]
    [Section 78 substituted by section 110 (Schedule) of Act 4 of 2013]

[Full name of section 78: Applications RE decisions of information officers or relevant authorities of public bodies or heads of private bodies or Regulator]

Section 79 | Procedure

  1. The Rules Board for Courts of Law, established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), must, before 28 February 2009, subject to the approval of the Minister, make rules of procedure for –
    1. a court in respect of applications in terms of section 78; and
    2. a court to receive representations ex parte referred to in section 80(3)(a).
      (Section 79(1) substituted by section 23(a) of Act 55 of 2003)
      (Section 79(1) substituted by section 27 of Act 66 of 2008)
  2. Until the rules of procedure in terms of subsection (1)(a) come into operation, an application in terms of section 78 must be lodged with a High Court or another court having jurisdiction.
    (Section 79(2) substituted by section 23(b) of Act 55 of 2003)
  3. Any rule made in terms of subsection (1) must, before publication in the Gazette, be approved by Parliament.

Section 80 | Disclosure of records to, and non-disclosure by, court

  1. Despite this Act and any other law, any court hearing an application, or an appeal against a decision on that application, may examine any record of a public or private body to which this Act applies, and no such record may be withheld from the court on any grounds.
  2. Any court contemplated in subsection (1) may not disclose to any person, including the parties to the proceedings concerned, other than the public or private body referred to in subsection (1) –
    1. any record of a public or private body which, on a request for access, may or must be refused in terms of this Act; or
    2. if the information officer of a public body, or the relevant authority of that body on internal appeal, in refusing to grant access to a record in terms of section 39(3) or 41(4), refuses to confirm or deny the existence or non-existence of the record, any information as to whether the record exists.
  3. Any court contemplated in subsection (1) may –
    1. receive representations ex parte;
    2. conduct hearings in camera; and
    3. prohibit the publication of such information in relation to the proceedings as the court determines, including information in relation to the parties to the proceedings and the contents of orders made by the court in the proceedings.

Section 81 | Proceedings are civil

  1. For the purposes of this Chapter proceedings on application in terms of section 78 are civil proceedings.
  2. The rules of evidence applicable in civil proceedings apply to proceedings on application in terms of section 78.
  3. The burden of establishing that –
    1. the refusal of a request for access; or
    2. any decision taken in terms of section 22, 26(1), 29(3), 54, 57(1) or 60, complies with the provisions of this Act rests on the party claiming that it so complies.

Section 82 | Decision on application

The court hearing an application may grant any order that is just and equitable, including orders –

a) confirming, amending or setting aside the decision which is the subject of the application concerned;

b) requiring from the information officer or relevant authority of a public body or the head of a private body to take such action or to refrain from taking such action as the court considers necessary within a period mentioned in the order;

c) granting an interdict, interim or specific relief, a declaratory order or compensation;

d) as to costs; or

e) condoning non-compliance with the 180 day period within which to bring an application, where the interests of justice so require.

Section 83 | Additional functions of Information Regulator

  1. The Information Regulator must –
    1. compile and make available a guide on how to use this Act as contemplated in section 10; and
    2. submit reports to the National Assembly as contemplated in section 84.
  2. The Information Regulator must, to the extent that financial and other resources are available-
    1. develop and conduct educational programmes to advance the understanding of the public, in particular of disadvantaged communities, of this Act and of how to exercise the rights contemplated in this Act;
    2. encourage public and private bodies to participate in the development and conduct of programmes referred to in paragraph (a) and to undertake such programmes themselves; and
    3. promote timely and effective dissemination of accurate information by public bodies about their activities.
  3. The Information Regulator may –
    1. make recommendations for –
      1. the development, improvement, modernisation, reform or amendment of this Act or other legislation or common law having a bearing on access to information held by public and private bodies, respectively; and
      2. procedures in terms of which public and private bodies make information electronically available;
    2. monitor the implementation of this Act;
    3. if reasonably possible, on request, assist any person wishing to exercise a right contemplated in this Act;
    4. recommend to a public or private body that the body make such changes in the manner in which it administers this Act as the Commission considers advisable;
    5. train information officers and deputy information officers of public bodies;
      (Section 83(3)(e) substituted by section 45 of Act 42 of 2001)
    6. consult with and receive reports from public and private bodies on the problems encountered in complying with this Act;
    7. obtain advice from, consult with, or receive and consider proposals or recommendations from, any public or private body, official of such a body or member of the public in connection with the Commission’s functions in terms of this Act;
    8. for the purposes of section 84(b)(x), request the Public Protector to submit to the Commission information with respect to –
      1. the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act;
      2. the nature and outcome of those complaints; and
    9. generally, inquire into any matter, including any legislation, the common law and any practice and procedure, connected with the objects of this Act.
  4. For the purpose of the annual report referred to in section 84 and if so requested by the Information Regulator, the head of a private body may furnish to that Commission information about requests for access to records of the body.
  5. If appropriate, and if financial and other resources are available, an official of a public body must afford the Information Regulator reasonable assistance for the effective performance of its functions in terms of this Act.

[Section 83 amended by section 110 (Schedule) of Act 4 of 2013]

Note: Michalsons can help you to submit the private body PAIA report to the information regulator. You can also be empowered to comply with PAIA by joining the Michalsons access to information programme.

Section 84 | Report to National Assembly by Information Regulator

The Information Regulator must include in its annual report to the National Assembly referred to in section 181(5) of the Constitution –

a) any recommendation in terms of section 83(3)(a); and

b) in relation to each public body, particulars of –

i) the number of requests for access received;

ii) the number of requests for access granted in full;

iii) the number of requests for access granted in terms of section 46;

iv) 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 partially;

v) the number of cases in which the periods stipulated in section 25(1) were extended in terms of section 26(1);

vi) 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 or a part thereof;

vio) 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;

viii) the number of applications made to every court and the outcome thereof and the number of decisions of every court appealed against and the outcome thereof;

ix) the number of applications to every court which were lodged on the ground that an internal appeal was regarded as having been dismissed in terms of section 77(7);

x) the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act and the nature and outcome thereof; and

xi) such other matters as may be prescribed.