Understanding the Promotion of Access to Information Act (PAIA)

1. APPLICATION FOR ACCESS (PAIA) Mandatory protection (which must be refused in terms of Chap 4 subject to S46) Discrectionary Access (which may be refused in terms of chapter 4 Right of access to records of public body (s11) of PAIA DENIAL OF ACCESS (PAIA) Provision of Information Review DECLASSIFY Either cont classify Internal Appeal to relevant Minister clause 26 of PIB in terms of PAIA available only to Public Bodies s74(1) Appeal to Court

2. Mandatory disclosure in public interestSection 46 • Mandatory disclosure in public interest • Section 46. 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(l), 37(l)(a) or (b), 38(a) or (b), 39(l)(a) or (b), 40, 41(l)(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 35 (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.

3. Mandatory disclosure in the public interest Despite the above listed grounds of refusal, the information officer of a public body must grant a request for access to a record of a public body if, the disclosure thereof would reveal evidence of: • A substantial contravention of, or failure to comply with, the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record, outweighs the harm contemplated under the grounds for refusal.

4. Public interest override • Section 46 provides a limited public interest override (of the mandatory protection of information) in that the information officer is obliged to grant a request for access to a record only in the instances listed in the section. • It is important to note that this is not a blanket or wide-ranging public interest override.

5. discretionary disclosure • 33. (1) The information officer of a public body— • (b) may refuse a request for access to a record contemplated in section 37(1)(b),38(b), 39( l)(b), 41(l)(a) or (b), 42(1) or (3), 43(2), 44(1) or (2) or 45, • unless the provisions of section 46 apply.

6. Grounds for Refusal to a request for access to information from a public body • The information contained in this section is a summary of the grounds upon which a public body is entitled to raise, as a ground for the refusal of access to its records. The information is intended to provide a person with clarity as to the reasons why a request may be refused by the public body. The list is a summary of the grounds contained in Part 2, Chapter 4 of PAIA, and is by no means exhaustive or complete.

7. MANDATORY PROTECTION (PAIA) • 33. (1) The information officer of a public body— • (a) must refuse a request for access to a record contemplated in section 34(1). • 35( 1), 36( 1), 37(l)(a), 38(a), 39(1)(u), 40 or 43( l);

8. MANDATORY PROTECTION CONTINUED • Mandatory protection of privacy of third party who is natural person • Mandatory protection of certain records of South African Revenue Service • Mandatory protection of commercial information of third party • Mandatory protection of certain confidential information, and protection of certain other confidential information, of third party • Mandatory protection of safety of individuals, and protection of property • Mandatory protection of police dockets in bail proceedings, and protection of • law enforcement and legal proceedings • Mandatory protection of records privileged from production in legal proceedings • Mandatory protection of research information of third party, and protection of research information of public body

9. APPEAL (PAIA) • PART 4 APPEALS AGAINST DECISIONS • CHAPTER 1 • INTERNAL APPEALS AGAINST DECISIONS OF INFORMATION OFFICERS OF CERTAIN PUBLIC BODIES • Right of internal appeal to relevant authority • 74. (1) A requester may lodge an internal appeal against a decision of the information • officer of a public body referred to in paragraph (a) of the definition of “public body” in 20 • section l— • (a) to refuse a request for access; or • (b) taken in terms of section 22, 26(1) or 29(3), • in relation to that requester with the relevant authority. • (2) A third party may lodge an internal appeal against a decision of the information 25 • officer of a public body referred to in paragraph (a) of the definition of “public body” in • section 1 to grant a request for access

10. CHAPTER 2APPLICATIONS TO COURT PROMOTION OF ACCESS TO INFORMATION ACT, 2000 • Applications regarding decisions of information officers or relevant authorities of public bodies or heads of private bodies • 78. (1) A requester or third party referred to in section 74 may only apply to a court for appropriate relief in terms of section 82 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.

11. CHAPTER 2APPLICATIONS TO COURT CONTINUED Protection of State information before courts • 46. (1) Classified information that is placed before a court may not be disclosed to persons not authorised to receive such information unless a court, in the interests of justice, and upon considering issues of national security, national interest of the Republic as referred to in section 11 and any other law, orders full or limited disclosure, with or without conditions.

12. PROTECTION OFINFORMATION BILL • Status review procedure • 24. (1) A request for a review of the classified status of information must describe the document or materials containing the information or describe the category or subject matter of information with sufficient clarity to enable the head of an organ of state to locate it with ease. • (2) The head of an organ of state receiving a request in the prescribed manner for a review of the status of classified information must make a determination and in the case of a refusal provide reasons within 90 days of the date of receipt of such request.

13. PROTECTION OFINFORMATION BILL CONTINUED Appeal procedure 25. (1) If the head of an organ of state denies a request for declassification or the lifting of the status of information to a member of the public or a non-governmental organisation or entity, such person or body may appeal such decision to the Minister of the organ of state in question. (2) Any appeal referred to in subsection (1) must be lodged within 30 days of receipt of the decision and reasons therefor. (3) Upon receipt of an appeal, the Minister of an organ of state must make a finding and in the case of refusal provide reasons within 90 days of the date of receipt of such request.

14. PROTECTION OFINFORMATION BILL Request for classified information in terms of Promotion of Access to Information Act 28. (1) A request for access to a classified record that is made in terms of the Promotion of Access to Information Act must be dealt with in terms of that Act. • (2) A head of an organ of state considering a request for a record which contains classified information must consider the classification and may declassify such information. • (3) If the head of an organ of state decides to grant access to the requested record, he or she must declassify the classified information before releasing the information. • (4) If the refusal to grant access to a classified record is taken on appeal in terms of the Promotion of Access to Information Act, the relevant appeal authority must consider the classification and may declassify such information.