Records 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 1 | Definitions

In this Act, unless the context otherwise indicates –

“access fee” means a fee prescribed for the purposes of section 22(6) or 54(6), as the case may be;

“application” means an application to a court in terms of section 78;

“biometrics” means a technique of personal identification that is based on physical, physiological or behavioural characterisation including blood typing, fingerprinting, DNA analysis, retinal scanning and voice recognition;

“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996);

“court” means –

a) the Constitutional Court acting in terms of section 167(6)(a) of the Constitution; or

i) a High Court or another court of similar status; or

ii) a Magistrate’s Court for any district or for any regional division established by the Minister for the purposes of adjudicating civil disputes in terms of section 2 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), either generally or in respect of a specified class of decisions in terms of this Act, designated by the Minister by notice in the Gazette and presided over by a magistrate, an additional magistrate or a magistrate of a regional division established for the purposes of adjudicating civil disputes, as the case may be, designated in terms of section 91A,

within whose area of jurisdiction –

aa) the decision of the information officer or relevant authority of the public body or the head of a private body has been taken;

bb) the public body or private body concerned has its principal place of administration or business; or

cc) the requester or third party concerned is domiciled or ordinarily resident;

“evaluative material” means an evaluation or opinion prepared for the purpose of determining –

a) the suitability, eligibility or qualifications of the person to whom or which the evaluation or opinion relates –

i) for employment or for appointment to office;

ii) for promotion in employment or office or for continuance in employment or office;

iii) for removal from employment or office; or

iv) for the awarding of a scholarship, award, bursary, honour or similar benefit; or

b) whether any scholarship, award, bursary, honour or similar benefit should be continued, modified, cancelled or renewed;

“head” of, or in relation to, a private body means—

a) in the case of a natural person, including a person referred to in paragraph (c) of the definition of “political party”, that natural person or any person duly authorised by that natural person;

b) in the case of a partnership, any partner of the partnership or any person duly authorised by the partnership;

c) in the case of a juristic person—

i) the chief executive officer or equivalent officer of the juristic person or any person duly authorised by that officer; or

ii) the person who is acting as such or any person duly authorised by such acting person; or

d) in the case of political party, the leader of the political party or any person duly authorised by that leader;

“health practitioner” means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals;

“individual’s next of kin” means –

a) an individual to whom the individual was married immediately before the individual’s death;

b) an individual with whom the individual lived as if they were married immediately before the individual’s death;

c) a parent, child, brother or sister of the individual; or

d) if –

i) there is no next of kin referred to in paragraphs (a), (b) and (c); or

ii) the requester concerned took all reasonable steps to locate such next of kin, but was unsuccessful, an individual who is related to the individual in the second degree of affinity or consanguinity;

“information officer” of, or in relation to, a public body –

a) in the case of a national department, provincial administration or organisational component –

i) mentioned in Column 1 of Schedule 1 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), means the officer who is the incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule 1 or 3 opposite the name of the relevant national department, provincial administration or organisational component or the person who is acting as such; or

ii) not so mentioned, means the Director-General, head, executive director or equivalent officer, respectively, of that national department, provincial administration or organisational component, respectively, or the person who is acting as such;
(Definition of “information officer” substituted by section 21 of Act 42 of 2001)

b) in the case of a municipality, means the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), or the person who is acting as such; or

c) in the case of any other public body, means the chief executive officer, or equivalent officer, of that public body or the person who is acting as such;

“Information Regulator” means the Information Regulator established in terms of section 39 of the Protection of Personal Information Act, 2013;

“internal appeal” means an internal appeal to the relevant authority in terms of section 74;

“international organisation” means an international organisation –

(a) of states; or

(b) established by the governments of states;

“Minister” means the Cabinet member responsible for the administration of justice;

“notice” means notice in writing, and “notify” and “notified” have corresponding meanings;

“objects of this Act” means the objects of this Act referred to in section 9;

“official”, in relation to a public or private body, means –

(a) any person in the employ (permanently or temporarily and full-time or part-time) of the public or private body, as the case may be, including the head of the body, in his or her capacity as such; or

(b) a member of the public or private body, in his or her capacity as such;

“person” means a natural person or a juristic person;

“personal information” means information relating to an identifiable natural person, including, but not
limited to—

(a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;

(b) information relating to the education or the medical, financial, criminal or employment history of the person;

(c) any identifying number, symbol, email address, physical address, telephone number, location information, online identifier or other particular assigned to the person;

(d) the biometric information of the person;

(e) the personal opinions, views or preferences of the person;

(f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;

(g) the views or opinions of another individual about the person; and

(h) the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person,

but excludes information about an individual who has been dead for more than 20 years;

“political party” means—

(a) any entity that accepts donations principally to support or oppose any registered political party or its candidates, in an election as defined in section 1 of the Electoral Act, 1998 (Act No. 73 of 1998);

(b) any registered political party as defined in the Electoral Act, 1998; or

“prescribed” means prescribed by regulation in terms of section 92;

“private body” means –

(a) a natural person who carries or has carried on any trade, business or profession, but only in such capacity;

(b) a partnership which carries or has carried on any trade, business or profession;

(d) a political party,

but excludes a public body;

“public safety or environmental risk” means harm or risk to the environment or the public (including individuals in their workplace) associated with –

(a) a product or service which is available to the public;

(b) a substance released into the environment, including, but not limited to, the workplace;

(d) a means of public transport; or

(e) an installation or manufacturing process or substance which is used in that installation or process;

“public body” means –

(a) any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or

(b) any other functionary or institution when –

(i) exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation;

“record” of, or in relation to, a public or private body, means any recorded information –

(a) regardless of form or medium;

(b) in the possession or under the control of that public or private body, respectively; and

“relevant authority”, in relation to –

(a) a public body referred to in paragraph (a) of the definition of “public body” in the national sphere of government, means –

(i) in the case of the Office of the Presidency, the person designated in writing by the President; or

(ii) in any other case, the Minister responsible for that public body or the person designated in writing by that Minister;

(b) a public body referred to in paragraph (a) of the definition of “public body” in the provincial sphere or government, means –

(i) in the case of the Office of a Premier, the person designated in writing by the Premier; or

(ii) in any other case, the member of the Executive Council responsible for that public body or the person designated in writing by that member; or

(i) the mayor;

(ii) the speaker; or

(iii) any other person,

designated in writing by the Municipal Council of that municipality;

“request for access”, in relation to –

(a) a public body, means a request for access to a record of a public body in terms of section 11; or

(b) a private body, means a request for access to a record of a private body in terms of section 50;

“requester” in relation to –

(a) a public body, means –

(i) any person (other than a public body contemplated in paragraph (a) or (b)(i) of the definition of “public body”, or an official thereof) making a request for access to a record of that public body; or

(ii) a person acting on behalf of the person referred to in subparagraph (i);

(b) a private body, means –

(i) any person, including, but not limited to, a public body or an official thereof, making a request for access to a record of that private body; or

(ii) a person acting on behalf of the person contemplated in subparagraph (i);

“subversive or hostile activities” means –

(a) aggression against the Republic;

(b) sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic;

(d) a foreign or hostile intelligence operation;

“third party”, in relation to a request for access to –

(a) a record of a public body, means any person (including, but not limited to, the government of a foreign state, an international organisation or an organ of that government or organisation) other than –

(i) the requester concerned; and
(ii) a public body; or

(b) a record of a private body, means any person (including, but not limited to, a public body) other than the requester,
but, for the purposes of sections 34 and 63, the reference to “person” in paragraphs (a) and (b) must be construed as a reference to “natural person”;

“this Act” includes any regulation made and in force in terms of section 92;

“transfer”, in relation to a record, means transfer in terms of section 20(1) or (2), and “transferred” has a corresponding meaning;

“working days” means any days other than Saturdays, Sundays or public holidays, as defined in section 1 of the Public Holidays Act, 1994 (Act No. 36 of 1994).

Section 4 | Records held by official or independent contractor of public or private body

For the purposes of this Act, but subject to section 12, a record in the possession or under the control of –

(a) an official of a public body or private body in his or her capacity as such; or
(b) an independent contractor engaged by a public body or private body in the capacity as such contractor,

is regarded as being a record of that public body or private body, respectively.

Section 5 | Application of other legislation prohibiting or restricting disclosure

This Act applies to the exclusion of any provision of other legislation that –

(a) prohibits or restricts the disclosure of a record of a public body or private body; and
(b) is materially inconsistent with an object, or a specific provision, of this Act.

Section 6 | Application of other legislation providing for access

Nothing in this Act prevents the giving of access to –

(a) a record of a public body in terms of any legislation referred to in Part 1 of the Schedule; or
(b) a record of a private body in terms of any legislation referred to in Part 2 of the Schedule.

Section 7 | Act not applying to records requested for criminal or civil proceedings after commencement of proceedings

(1) This Act does not apply to a record of a public body or a private body if

(a) that record is requested for the purpose of criminal or civil proceedings;
(b) so requested after the commencement of such criminal or civil proceedings, as the case may be; and
(c) the production of or access to that record for the purpose referred to in paragraph (a) is provided for in any other law.

(2) Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in the criminal or civil proceedings referred to in that subsection unless the exclusion of such record by the court in question would, in its opinion, be detrimental to the interests of justice.

Section 10 | Guide on how to use Act

(1) The Information Regulator must update and make available the existing guide that has been compiled by the South African Human Rights Commission containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act and the Protection of Personal Information Act, 2013.

(2) The guide must, without limiting the generality of subsection (1), include a description of—

(a) the objects of this Act and the Protection of Personal Information Act, 2013;

(b) the manner and form of a request for—

(i) access to a record of a public body contemplated in section 11; and
(ii) access to a record of a private body contemplated in section 50;

(c) the assistance available from the information officer of a public body in terms of this Act and the Protection of Personal Information Act, 2013;

(d) the assistance available from the Information Regulator in terms of this Act and the Protection of Personal Information Act, 2013;

(e) all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act and the Protection of Personal Information Act, 2013, including the manner of lodging—

(i) an internal appeal;
(ii) a complaint to the Information Regulator; and
(iii) an application with a court against a decision by the information officer of a public body, a decision on internal appeal, a decision by the Information Regulator or a decision of the head of a private body;

(f) the provisions of sections 14 and 51 requiring a public body and private body, respectively, to compile a manual, and how to obtain access to a manual;

(g) the provisions of sections 15 and 52 providing for the voluntary disclosure of categories of records by a public body and private body, respectively;

(h) the notices issued in terms of sections 22 and 54 regarding fees to be paid in relation to requests for access; and

(i) the regulations made in terms of section 92.

(3) The Information Regulator must, if necessary, update and publish the guide at intervals of not more than two years.

(4) The guide must be made available as prescribed.

Section 11 | Right of access to records of public bodies

(1) A requester must be given access to a record of a public body if –

(a) that requester complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.

(2) A request contemplated in subsection (1) excludes a request for access to a record containing personal information about the requester.

(3) A requester’s right of access contemplated in subsection (1) is, subject to this Act, not affected by –

(a) any reasons the requester gives for requesting access; or
(b) the information officer’s belief as to what the requester’s reasons are for requesting access.

Section 14 | Manual on functions of, and index of records held by, public body

(1) The information officer of a public body must in at least three official languages make available, as referred to in subsection (3), a manual containing—

(a) in general

(i) a description of its structure and functions;

(ii) the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of the body and of every deputy information officer of the body designated in terms of section 17(1);

(iii) a description of all remedies available in respect of an act or a failure to act by the body; and

(iv) such other information as may be prescribed;

(b) insofar as this Act is concerned—

(i) a description of the guide referred to in section 10, if available, and how to obtain access to it;

(ii) 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;

(iii) the latest notice, in terms of section 15(2), if any, regarding the categories of records of the body which are available without a person having to request access in terms of this Act;

(iv) a description of the services available to members of the public from the body and how to gain access to those services; and

(v) a description of any arrangement or provision for a person (other than a public body referred to in paragraph (a) or (b)(i) of the definition of ‘‘public body’’ in section 1) by consultation, making representations or otherwise, to participate in or influence—

(aa) the formulation of policy; or

(bb) the exercise of powers or performance of duties,

by the body;

(i) the purpose of the processing;

(ii) a description of the categories of data subjects and of the information or categories of information relating thereto;

(iii) the recipients or categories of recipients to whom the personal information may be supplied;

(iv) planned transborder flows of personal information; and

(v) 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.

(2) A public body must, if necessary, update and publish its manual referred to in subsection (1) at intervals of not more than one year.

(3) The manual referred to in subsection (1), or the updated version thereof as referred to in subsection (2) must be made available—

(a) on the web site, if any, of the public body;

(b) at the head office of the public body for public inspection during normal business hours;

(d) to the Information Regulator upon request.

(4)

(a) If the functions of two or more public bodies are closely connected, the Minister may on request or of his or her own accord determine that the two or more bodies compile one manual only.

(b) The public bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.

(5) 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 public body or category of public bodies from any provision of this section for such period as the Minister thinks fit.

Section 15 | Voluntary disclosure and automatic availability of certain records

(1) The information officer of a public body, referred to in paragraph (a) or (b)(i) of the definition of ‘public body’ in section 1, must make available in the prescribed manner a description of—

(a) the categories of records of the public body that are automatically available without a person having to request access in terms of this Act, including such categories available–

(i) for inspection in terms of legislation other than this Act;

(ii) for purchase or copying from the body; and

(iii) from the body free of charge; and

(b) how to obtain access to such records.

(2) ………..

(3) The only fee payable (if any) for access to a record referred to in subsection (1) is a prescribed fee for reproduction.

(4) The information officer of a public 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.

(5) Section 11 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).