A primer on how to use South Africa’s Promotion of Access to Information Act
In a former life, as a young law graduate and information activist, I spent a lot of time using South Africa’s Promotion of Access to Information Law to access records. I still believe it to be an under-utilised tool in the Active Citizen’s toolbox and so, I thought a short primer on using the law could be useful. Your right to access information is a constitutional right, so let's get to actioning it.
PAIA allows you to ask for records from public bodies without reason, or to request records from a private body if you need it for the exercise or protection of any other right (in other words, they’re preventing you from saying: “I want the records to exercise my right of access to information". So for instance, you might ask for pollution records from a local industry to exercise your right to a safe environment.
The Information Regulator of South Africa oversees PAIA, and is now fully operational.
What can I ask for and Who can I ask?
Step One: Define your request
What records are you looking for? Try and define your request concisely with any relevant links, and by doing a little bit of mental gymnastics: think about your problem, and then try and think what data and information could be used to either shed light on the problem, or posit a solution.
Step Two: Identify the entity
As I mentioned, there is a difference in the process for requesting records from a public body versus a private body. A public body performs a public function, so Eskom - even though it is a state-owned enterprise and not a department - is still considered a public body. You can use the form the Information Regulator has provided here, but remember that you only need to complete the block describing what right you are exercising through your request if your request is to a private body!
Step Three: Find your relevant Information and Deputy Information Officer
Try and find the organisational Information Officer and Deputy Information Officer’s contact details. You might start by going on to the entity’s website and looking for their PAIA manual, which provides basic details about an organisation’s PAIA process. The Information Officer is the administrative head of a public entity (so for instance at National the Director-General, Provincial the Head of Executive Council, or Municipal the Municipal Manager), or the CEO of a private body. They might delegate these powers, but these are the people PAIA presumes to be responsible.
In late 2019 and early 2020 I consolidated a fairly substantial list of contact details of Information Officers and Deputy Information Officers of National, Provincial and Local Government, and Chapter 9 and other public bodies, Information and Deputy Information Officers. The contacts were verified either through a phone call or through the entities relevant PAIA manual, but these details are of course now out of date. They might however be a starting point if you can’t source a PAIA manual. Also, keep an eye on the Information Regulator's platform as they are busy consolidating all the contact for Information Officers and may soon provide more accurate contacts.
Step Four: Complete the form and submit it
Complete the form the Information Regulator has provided here with all the relevant details and submit. I’d suggest submitting by email, so that you have an automated paper trail (you would be very, very surprised how many Departments still have fax numbers available).
Step Five: Pay any fees
This is my greatest bugbear with the current law - PAIA allows both public and private bodies to charge a fee for making a request. And some entities will delay dealing with your request until this is done (although not all all ask for the fee). There are two fees in fact that could be requested: a request fee (these fees are capped in Regulations) and an access fee. The access fee is charged for copies etc. as applicable if your request is successful. You might not have to pay the fee if you earn below a certain amount, etc., but you can read the Information Regulator’s Guidelines for more details.
What can they say?
Step Six: Wait for 30 days (and maybe 30 more)
An Information Officer has to respond to your request for information within 30 days. However, the law allows them to request permission for a single extension of 30 days if certain grounds exist, i.e. the request is for a large number of records or requires that a large number of records are searched and, without an extension, this search would interfere with the normal activities of the body concerned; the request requires a search through records in an office of that body not
situated in the same city or town and could thus not be completed within the 30 days; and/or it requires a level of consultation in order to act on the request, which cannot reasonably be completed within just 30 days. You can actually appeal a request for extension - but given the time periods in the appeal process, I wouldn’t advise it.
Step Seven: Receive their response
PAIA provides an exhaustive list of grounds why your request might be refused by an Information Officer. In practice, the courts interpret these grounds in a very limited way, but key ones are for instance that they contain confidential commercial information, or information that might interfere with an on-going law enforcement investigation.
It is important to note though that the PAIA does create a power to the Information Regulator to sever any information from a record, if it is possible to do so, that might otherwise mean you don’t get the record. So, if you ask for a 1000 page document with a commercial secret only on page 6, the Information Officer should sever that secret and give you access to the rest of the document.
Step Eight: Appeal, or enjoy
You can appeal against the decision of a public body if you don’t agree with the grounds provided (go read your copy of PAIA to think about why a refusal might not be appropriate). You need to do this within 60 days of the refusal (or the deemed refusal). Importantly too, you can also appeal against a deemed refusal - in other words, if they have simply ignored your request - this is grounds to appeal. To appeal, you have to submit a new form. This form however goes to the relevant authority (and not back to the Information Officer, though attach them in) who is generally the political head of the organisation, like the Minister. I have often heard people complain that the internal appeal process is useless, because you are applying in the same entity - however, I have received many records under an appeal process and so would advise it whenever appropriate. Again, they must send you the result of your appeal within 30 days.
Note, there is no internal appeal process for a private body.
If you are still unhappy after the appeal with the public body, or after a refusal from a private body, your next avenue for recourse is as a complaint to the Information Regulator’s Office. Note, you first must have exhausted the internal appeal process if it was a request to a public body and you have 180 days in which to submit your complaint after the decision on appeal.
Hints and nudges
- Call and confirm the details of an organisation's Information Officer and Deputy Information Officer (if they have a Deputy). It is very worthwhile confirming this way, as the details (and assignments) tend to change very frequently.
- Keep a record of your communications in a simple log or spreadsheet. Include details like who you spoke to or communicated with, and when. These details are useful in appeal and complaint processes.
- Keep track of relevant dates and cut offs as well.
- The Information Regulator has drafted a Guide to using PAIA. It's long and detailed should you feel you need more details.
You can get a copy of PAIA itself here.