Category: Records

Section 19 | Duty to assist requesters

(1) If a requester informs the information officer of – 

(a) a public body that he or she wishes to make a request for access to a record of that public body; or 

(b) a public body (other than a public body referred to in paragraph (a) or (b)(i) of the definition of “public body” in section 1) that he or she wishes to make a request for access to a record of another public body, 

the information officer must render such reasonable assistance, free of charge, as is necessary to enable that requester to comply with section 18(1). 

(2) If a requester has made a request for access that does not comply with section 18(1), the information officer concerned may not refuse the request because of that non-compliance unless the information officer has – 

(a) notified that requester of an intention to refuse the request and stated in the notice – 

(i) the reasons for the contemplated refusal; and 

(ii) that the information officer or another official identified by the information officer would assist that requester in order to make the request in a form that would remove the grounds for refusal; 

(b) given the requester a reasonable opportunity to seek such assistance; 

(c) as far as reasonably possible, furnished the requester with any information (including information about the records, other than information on the basis of which a request for access may or must be refused in terms of any provision of Chapter 4 of this Part, held by the body which are relevant to the request) that would assist the making of the request in that form; and 

(d) given the requester a reasonable opportunity to confirm the request or alter it to comply with section 18(1). 

(3) When computing any period referred to in section 25(1), the period commencing on the date on which notice is given in terms of subsection (2) and ending on the date on which the person confirms or alters the request for access concerned must be disregarded. 

(4) If it is apparent on receipt of a request for access that it should have been made to another public body, the information officer of the public body concerned must – 

(a) render such assistance as is necessary to enable the person to make the request, to the information officer of the appropriate public body; or 

(b) transfer the request in accordance with section 20 to the last-mentioned information officer, 

whichever will result in the request being dealt with earlier. 

Section 21 | Preservation of records until final decision on request

If the information officer of a public body has received a request for access to a record of the body, that information officer must take the steps that are reasonably necessary to preserve the record, without deleting any information contained in it, until the information officer has notified the requester concerned of his or her decision in terms of section 25 and – 

(a) the periods for lodging an internal appeal, a complaint to the Information Regulator, an application with a court or an appeal against a decision of that court have expired; or 

(b) that internal appeal, complaint to the Information Regulator, application or appeal against a decision of that court or other legal proceedings in connection with the request has been finally determined, whichever is the later. 

Section 23 | Records that cannot be found or do not exist

  1. If –
    1. all reasonable steps have been taken to find a record requested; and
    2. there are reasonable grounds for believing that the record –
      1. is in the public body’s possession but cannot be found; or
      2. does not exist,
        the information officer of a public 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 information officer.
  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.
  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.

Section 24 | Deferral of access

  1. If the information officer of a public body decides to grant a request for access to a record, but that record –
    1. is to be published within 90 days after the receipt or transfer of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it;
    2. is required by law to be published but is yet to be published; or
    3. has been prepared for submission to any legislature or a particular person but is yet to be submitted,
      the information officer may defer giving access to the record for a reasonable period.
  2. If access to a record is deferred in terms of subsection (1), the information officer must notify the requester concerned –
    1. that the requester may, within 30 days after that notice is given, make representations to the information officer why the record is required before such publication or submission; and
    2. of the likely period for which access is to be deferred.
  3.  If a requester makes representations in terms of subsection (2)(a), the information officer must, after due consideration of those representations, grant the request for access only if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the record is deferred for the likely period referred to in subsection (2)(b).

Section 35 | Protection of certain SARS records

  1. Subject to subsection (2), the information officer of the South African Revenue Service, referred to in section 2(3), must refuse a request for access to a record of that Service if it contains information which was obtained or is held by that Service for the purposes of enforcing legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997(Act No. 34 of 1997).
  2. A record may not be refused in terms of subsection (1) insofar as it consists of information about the requester or the person on whose behalf the request is made.

[Full name of section 35: Mandatory protection of certain records of South African Revenue Service]

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 38 | Mandatory protection of safety of individuals, and protection of property

The information officer of a public body –

a) must refuse a request for access to a record of the body if its disclosure could reasonably be expected to endanger the life or physical safety of an individual; or

b) may refuse a request for access to a record of the body if its disclosure would be likely to prejudice or impair –

i) the security of –

aa) a building, structure or system, including, but not limited to, a computer or communication system;

bb) a means of transport; or

cc) any other property; or

ii) methods, systems, plans or procedures for the protection of –

aa) an individual in accordance with a witness protection scheme;

bb) the safety of the public, or any part of the public; or

cc) the security of property contemplated in subparagraph (i)(aa), (bb) or (cc).