1. Access to Information:
Using the law
By Gabriella Razzano
Middelburg: 19-20 October

2. ODAC is a specialist law
centre working in the areas of
access to information, open
data and whistle blowing.
We provide legal advice and
We also provide training on
support to access public and
effective implementation of
private information through
PAIA, the PDA and open data
the Promotion of Access to
issues.
Information Act (PAIA).
We support and provide legal
advice to bona fide
whistleblowers using the
Protected Disclosures Act
(PDA).

3. The Law
1993 Interim Constitution
„Every person has the right of access to all
information held by the state or any of its
organs in any sphere of government in so
far as that information is required for the
exercise or protection of any of their
rights.‟

4. Section 32 of the Constitution
Broader
(1) Everyone has the right of access to
(a)information held by the state; and
(b) Any information that is held by another person
and that is required for the exercise or protection
of any rights.
(2) National legislation must be enacted to give
effect to this right, and may provide for reasonable
measures to alleviate the administrative and
financial burden on the state.

5. Promotion of Access to Information
• Objects
Act
-To give effect to the Constitutional Right to access
information
-To give effect to that right subject to justifiable
limitations
-To give effect to the constitutional obligations of the
State in promoting a human rights culture
-To establish voluntary and mandatory mechanisms
to give effect to that right
-To promote transparency, accountability and
effective governance of all public and private
bodies

6. • Transition from Apartheid-
era secrecy
Constitutional
Democracy
• Post-1994 saw
progressive legal
paradigm, in many ways
leading continent on
governance
• Recent developments:
– Protection of State Info
Bill (backlash)
– Protection of Personal
Info Bill (Info Commission)
SA context
By United Nations Photo on Flickr

7. “Government documents: they hold the truth.
And the truth always matters. And the truth
really does set us free”.
- Martha Mendoza
“Every thing secret degenerates, even the
administration of justice; nothing is safe that
does not show it can bear discussion and
publicity”.
- Lord Acton
Value of Access to
Information

8. • Access to information is a human right
• Need information for proper public
participation
• Need information to be an active citizen
and hold government to account
• Need information to facilitate all your
human rights e.g. can not access your
right to housing without information
Value of Access to
Information

9. Problems with the law
1. PAIA manuals
• Low compliance – a guide
2. Proactive disclosure
• Use PAIA for all requests
3. Requesting process
• Cumbersome e.g. India
4. Timeframes
5. Exemptions
6. Independent oversight body
• POPI
7. Costs.

10. Benefits of the law
1. The extension of the law to private
bodies;
2. The legal framework provides for a
presumption in favour of release;
3. The law provides that, if after 30 days
no response is received, this
constitutes a deemed refusal which
can be reviewed; and
4. The law provides for a full
explanation, and evidentiary
standards, for utilising an exemption
ground.
5. Allows for legal recourse

11. Media and FOI
ttp://youtu.be/KzDE7D52zlA

12. Expenses Scandal
• Ben Leapman 2009
• Member of Parliament Expenses
• Leak
• “The Duck House”
• Slow release and profit (open data)
• Role of wobbing? Pressure tool.

13. Compare: M&G
• M&G LOC
– Awarded in High Court
– Story in the response
– “Private” even though 8 Ministers dealt
with public money
• M&G Kampepe-Moseneke
– Zimbabwe violence
– HC – SC – CC – HC…

14. What can you do?
• Supply and demand
• Use PAIA!
• The Act applies to:
– Public Bodies (all three levels of
government, government departments, official
institutions, statutory bodies and, parastatals)
– Private Bodies (businesses and other juristic
persons)

15. Record has a BROAD meaning: it means
any recorded information – (a) regardless
of form or medium; (b) in the possession
or under the control of that public or
private body; and ( c) whether or not that
entity created it.
Meaning of record

16. The Requester:
Public Body Anyone
Anyone who needs
Private Body the record to protect or
exercise a human right.

17. The Process:
How to request a record

18. • For public bodies, a record is requested
the following way:
• The requester must use the form printed
in the government gazette
– A for a public body
– C for a private body
– B for an appeal
• The form must be sent to the information
officer of the public body....

19. Who is the Information Officer?
• The administrative head (generally)
– National: Director-General
– Provincial: Head of Executive Council
– Municipal: Municipal Manager

20. Their job
• Assist people to access information
• Facilitate automatic accessibility of records
• Decide on:
1. the granting of access to records,
2. transfer of requests
3. Refusal of requests
• Inform requesters, in writing, of the decision
• Forwarding to the requester an affidavit explaining
steps
taken to locate a record which cannot be found
• Assist the requester in filling in the forms
• Deputy Information Officers Forum

21. By Eva Blue on Flickr
• The form can be faxed, posted or emailed.
– Contacts can be problematic
• A requester must give enough detail in the form so that
the official knows what record the requester wants and
who he or she is. What? When? Who? Where?

22. • The form must explain how the requester
wants to get access to the record.
– Machine readable?
• The information officer can fill in forms on
behalf of illiterates.
• NOTE: You do not have to provide a
reason for requesting information from a
public body

23. Exemption types
• NOTE: these are the limits for refusal
• Information which may be given to you:
Information given to a public body in confidence by 3rd party (s37)
Information that prejudices the safety of others (s38 & 66)
Information on defence, security and international relations(s41)
Methods of Law enforcement (s 39)
Information about the economic or financial interests of the Republic (s 42)
Trade secrets of private bodies ( s 68)
Information about operations of Public Bodies (s 44)

24. • Information which must not be given to you:
Private information about someone else (unless they agree)
(s34&63)
Certain records of SARS (s35)
Confidential information of third party (s37 & 65)
Commercial information about a third party (s 36 & 64)
Information that will endanger the life of another (s38 & 66)
Police dockets in bail proceedings (s39)
Privileged legal records (s40 & 67)
Information about someone else‟s research (s43 & 69)

25. Public Interest Override
• Disclosure is required if the information
shows a serious contravention or failure to
comply with the law or an imminent and
serious public safety or environmental
risk, or where the public interest clearly
outweighs the harm contemplated in the
provision in request. (S46 & 70)

26. Appeals
• If a government department refuses to give
access to a record, there is first an internal appeal
process. After this, the requester can take the
matter to court.
• The appeal lies with the „relevant authority‟, most
often the political head.
• If a private body refuses a request, the requester
can take the matter straight to court.
• If a request is refused, the person making the
decision has to give reasons and tell the requester
which part of the Act allows them to refuse – M &
G
• Protection of Personal Information Bill

27. Appeals Cont.
• The requester can lodge an appeal about
a decision not to grant access to a record,
the fee charged, and a decision to extend
the time period to deal with the request
and the form in which the record is made
available.
• Deemed refusal

28. Fees
PUBLIC BODIES:
Request Fee - R35,00
Various other reproduction fees, ranging from R0,60 - R17,00
Search Fees - R15,00 per hour
PRIVATE BODIES:
Request Fee - R50,00
Various other reproduction fees, ranging from R1,10 - R30,00
Search Fees - R30,00 per hour
* The Minister has exempted people earning less than R14 700 p.a.
from payment of fees.

29. Snapshot of PAIA Process

30. PAIA Request
Let‟s select a wobbing topic!