Country

South Africa

South Africa

Name of law : Promotion of Access to Information Act
First adopted : 2000

Section Max ScoreScore
Right of Access 6 6
Scope 30 25
Requesting procedures 30 19
Exceptions 30 25
Appeals 30 14
Sanctions 8 6
Promotional measures 16 14
TOTAL 150 109

Introduction:
South Africa's law is backed by a strong constitutional right. It also applies relatively broadly, and even contains a unique provision allowing requesters to access data that is not held in a public source if that information is necessary in order to exercise or protect one's rights. However, there are also damaging exceptions to law's scope for records of cabinet or individual Members of Parliament. The law's biggest weakness is the limited power of the human rights commission to impose binding solutions, forcing some requesters to rely on the courts. Nonetheless, the access regime is generally strong and is backed by a robust promotional regime.
Right of Access

Indicator

Description

Scoring instructions
MAX score
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1 The legal framework (including jurisprudence) recognises a fundamental right of access to information.Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information.2 YES Article 32 of the Constitution: "1)Everyone has the right of access to : a)any 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." Constitution s 32
2 The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions.No=0, Partially=1, Yes=22 YES 2: "(1) When interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects. (2) Section 12 must not be construed as excluding— (a) the Cabinet and its committees; or (b) an individual member of Parliament or of a provincial legislature, from the operation of the definition of ‘‘requester’’ in relation to a private body in section 1, section 49 and all other provisions of this Act related thereto. (3) For the purposes of this Act, the South African Revenue Service, established by section 2 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997), and referred to in section 35(1), is a public body."
3 3.1 The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law
3.2 The legal framework emphasises the benefits of the right to information?
3.1(Y/N - max 1 point)
3.2 (Y/N - max 1 point)
2 YES 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." 2: "(1) When interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects. (2) Section 12 must not be construed as excluding— (a) the Cabinet and its committees; or (b) an individual member of Parliament or of a provincial legislature, from the operation of the definition of ‘‘requester’’ in relation to a private body in section 1, section 49 and all other provisions of this Act related thereto. (3) For the purposes of this Act, the South African Revenue Service, established by section 2 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997), and referred to in section 35(1), is a public body." Statement of principles in the preamble, and s. 2 calls for broad interpretation.




Scope

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4 Everyone (including non-citizens and legal entities) has the right to file requests for information.Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. 2 YES 1: "<...> ‘‘person’’ means a natural person or a juristic person; <...>" See chapter 1 definition of “person.”
5 The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it.Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions.4 YES 1: "<...> ‘‘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 (c) whether or not it was created by that public or private body, respectively. <...>" See definition of “record” at line 30.
6 Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents).Score 1 point for only documents, 1 point for information2 YES 1: "<...> ‘‘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 (c) whether or not it was created by that public or private body, respectively. <...>" Law doesn’t explicitly allow requesters to ask questions, but the definition of record at line 30 seems sufficiently broad. Also, the right to ask questions or reasons is provided for in a "twin law" to PAIA called the "Promotion of Administrative Justice Act".
7 The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and adminsitration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above.Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc).8 Partially 1: "<...> ‘‘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; <...>" Definition of public body is broad and includes any department state or administration in the national or provincial sphere of government or any institution exercising a public or constititional power. Lost one point because records of Cabinet are excluded.
8 The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government4 Partially 12(c): "an individual member of Parliament or of a provincial legislature in that capacity." Applies to all levels of the legislative branch, but 12(c) excludes it from applying to the records of individual MP's.
9 The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government4 Partially 12(b): "the judicial functions of— (i) a court referred to in section 166 of the Constitution; (ii) a Special Tribunal established in terms of section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996); or (iii) a judicial officer of such court or Special Tribunal;"
10 The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). Score 1 point if some, 2 points if all2 YES 1: <...> "‘‘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;" See definition of “public bodies”.
11 The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). Score 1 point if some bodies, 2 points if all2 YES 1: <...> "‘‘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;" See definition of “public bodies”.
12 The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. 1 point for public functions, 1 point for public funding 2 YES 1: <...> "‘‘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;" See definition of “public bodies”.

Requesting Procedures

Indicator

Description

Scoring instructions
MAX score
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Article

Comments
13 Requesters are not required to provide reasons for their requests.Y/N answer 0 or 2 points2 YES 11(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."
14 Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery).Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc.2 YES 18: "(1) A request for access must be made in the prescribed form to the information officer of the public body concerned at his or her address or fax number or electronic mail address. (2) The form for a request of access prescribed for the purposes of subsection (1) must at least require the requester concerned— (a) to provide sufficient particulars to enable an official of the public body concerned to identify— (i) the record or records requested; and (ii) the requester; (b) to indicate which applicable form of access referred to in section 29(2) is required; (c) to state whether the record concerned is preferred in a particular language; (d) to specify a postal address or fax number of the requester in the Republic; (e) if, in addition to a written reply, the requester wishes to be informed of the decision on the request in any other manner, to state that manner and the necessary particulars to be so informed; and (f) if the request is made on behalf of a person, to submit proof of the capacity in which the requester is making the request, to the reasonable satisfaction of the information officer. (3) (a) An individual who because of illiteracy or a disability is unable to make a request for access to a record of a public body in accordance with subsection (1), may make that request orally. (b) The information officer of that body must reduce that oral request to writing in the prescribed form and provide a copy thereof to the requester." S. 18 – requesters must provide info for the officials to be able to identify the document and the requester, as well as a postal address or fax number in South Africa.
15 There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law.Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. 2 Partially 18: "(1) A request for access must be made in the prescribed form to the information officer of the public body concerned at his or her address or fax number or electronic mail address. (2) The form for a request of access prescribed for the purposes of subsection (1) must at least require the requester concerned— (a) to provide sufficient particulars to enable an official of the public body concerned to identify— (i) the record or records requested; and (ii) the requester; (b) to indicate which applicable form of access referred to in section 29(2) is required; (c) to state whether the record concerned is preferred in a particular language; (d) to specify a postal address or fax number of the requester in the Republic; (e) if, in addition to a written reply, the requester wishes to be informed of the decision on the request in any other manner, to state that manner and the necessary particulars to be so informed; and (f) if the request is made on behalf of a person, to submit proof of the capacity in which the requester is making the request, to the reasonable satisfaction of the information officer. (3) (a) An individual who because of illiteracy or a disability is unable to make a request for access to a record of a public body in accordance with subsection (1), may make that request orally. (b) The information officer of that body must reduce that oral request to writing in the prescribed form and provide a copy thereof to the requester." S. 18 - Requests can be made by fax, mail, or email, but are required to use the prescribed form.
16 Public officials are required provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. Score 1 point for help in formulation and 1 point for clarification procedures2 YES 19: "(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 section1) 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."
17     Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled.Score Yes=2 point, No=02 YES 18(3): "(a) An individual who because of illiteracy or a disability is unable to make a request for access to a record of a public body in accordance with subsection (1), may make that request orally. (b) The information officer of that body must reduce that oral request to writing in the prescribed form and provide a copy thereof to the requester."
18 Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working daysScore 1 point for receipt, 1 point for max 5 working days2 NO Not mentioned.
19 Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held.Score: 1 point for information not held, 1 for referrals or 2 for transfers2 Partially 20: "(1) If a request for access is made to the information officer of a public body in respect of which— (a) the record is not in the possession or under the control of that body but is in the possession of another public body; (b) the record’s subject matter is more closely connected with the functions of another public body than those of the public body of the information officer to whom the request is made; or (c) the record contains commercial information contemplated in section 42 in which any other public body has a greater commercial interest, the information officer to whom the request is made must as soon as reasonably possible, but in any event within 14 days after the request is received— (i) transfer the request to the information officer of the other public body or, if there is in the case of paragraph (c) more than one other public body having a commercial interest, the other public body with the greatest commercial interest; and (ii) if the public body of the information officer to whom the request is made is in possession of the record and considers it helpful to do so to enable the information officer of the other public body to deal with the request, send the record or a copy of the record to that information officer. (2) If a request for access is made to the information officer of a public body in respect of which— (a) the record is not in the possession or under the control of the public body of that information officer and the information officer does not know which public body has possession or control of the record; (b) the record’s subject matter is not closely connected to the functions of the public body of that information officer and the information officer does not know whether the record is more closely connected with the functions of another public body than those of the public body of the information officer to whom the request is made; and (c) the record— (i) was created by or for another public body; or (ii) was not so created by or for any public body, but was received first by another public body, the information officer to whom the request is made, must as soon as reasonably possible, but in any event within 14 days after the request is received, transfer the request to the information officer of the public body by or for which the record was created or which received it first, as the case may be. (3) Subject to subsection (4), the information officer to whom a request for access is transferred, must give priority to that request in relation to other requests as if it were received by him or her on the date it was received by the information officer who transferred the request. (4) If a request for access is transferred, any period referred to in section 25(1) must be computed from the date the request is received by the information officer to whom the request is transferred. (5) Upon the transfer of a request for access, the information officer making the transfer must immediately notify the requester of— (a) the transfer; (b) the reasons for the transfer; and (c) the period within which the request must be dealt with." S. 20 – The law allows for transfers in this case, but also allows transfers if the information is more closely associated with another body.
20 Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record).Score: 2 points for Yes, only 1 point if some limitations2 YES 29.1: "If a requester has been given notice in terms of section 25(1) that his or her request for access has been granted, that requester must, subject to subsections (3) and (9) and section 31— (a) if an access fee is payable, upon payment of that fee; or (b) if no access fee is payable, immediately, be given access in the applicable forms referred to in subsection (2) as the requester indicated in the request, and in the language contemplated in section 31." 29.3: "If a requester has requested access in a particular form, access must, subject to section 28, be given in that form, unless to do so would— (a) interfere unreasonably with the effective administration of the public body concerned; (b) be detrimental to the preservation of the record; or (c) amount to an infringement of copyright not owned by the State or the public body concerned." S. 29.1 (languages) and 29.3 (format).
21 Public authorities are required to respond to requests as soon as possible.Score: No=0, Yes=2 points 2 YES 25(1): "The information officer to whom a request for access is made or transferred, must, subject to section 26 and Chapter 5 of this Part, as soon as reasonably possible, but in any event within 30 days, after the request is received— (a) decide in accordance with this Act whether to grant the request; and (b) notify the requester of the decision and, if the requester stated, as contemplated in section 18(2)(e), that he or she wishes to be informed of the decision in any other manner, inform him or her in that manner if it is reasonably possible." S. 25(1) – ASAP and no later than 30 days.
22 There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication).Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less.2 Partially 25(1): "The information officer to whom a request for access is made or transferred, must, subject to section 26 and Chapter 5 of this Part, as soon as reasonably possible, but in any event within 30 days, after the request is received— (a) decide in accordance with this Act whether to grant the request; and (b) notify the requester of the decision and, if the requester stated, as contemplated in section 18(2)(e), that he or she wishes to be informed of the decision in any other manner, inform him or her in that manner if it is reasonably possible." S. 25(1) – ASAP and no later than 30 days.
23 There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension.---2 YES 27: "If an information officer fails to give the decision on a request for access to the requester concerned within the period contemplated in section 25(1), the information officer is, for the purposes of this Act, regarded as having refused the request." S. 27 – A 30 day-extension is allowed, there is a requirement for notification.
24 It is free to file requests.Score: No=0, Yes=2 points2 NO 22(1): "The information officer of a public body to whom a request for access is made, must by notice require the requester, other than a personal requester, to pay the prescribed request fee (if any), before further processing the request." S. 22(1) allows for some request fees. Setting these fees is at the discretion of the minister.
25 There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and a certain initial number of pages (at least 20) are provided for free. Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional2 NO 22: "(1) The information officer of a public body to whom a request for access is made, must by notice require the requester, other than a personal requester, to pay the prescribed request fee (if any), before further processing the request. (2) If— (a) the search for a record of a public body in respect of which a request for access by a requester, other than a personal requester, has been made; and (b) the preparation of the record for disclosure (including any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)), would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester, other than a personal requester, to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted. (3) The notice referred to in subsection (1) or (2) must state— (a) the amount of the deposit payable in terms of subsection (2), if applicable; (b) that the requester may lodge an internal appeal or an application with a court, as the case may be, against the tender or payment of the request fee in terms of subsection (1), or the tender or payment of a deposit in terms of subsection (2), as the case may be; and (c) the procedure (including the period) for lodging the internal appeal or application, as the case may be. (4) If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester. (5) The information officer of a public body must withhold a record until the requester concerned has paid the applicable fees (if any). (6) A requester whose request for access to a record of a public body has been granted must pay an access fee for reproduction and for search and preparation contemplated in subsection (7)(a) and (b), respectively, for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure. (7) Access fees prescribed for the purposes of subsection (6) must provide for a reasonable access fee for— (a) the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 29(2)(a) and (b)(i), (ii)(bb), (iii) and (v) and, if applicable, the postal fee; and (b) the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester. (8) The Minister may, by notice in the Gazette— (a) exempt any person or category of persons from paying any fee referred to in this section; (b) determine that any fee referred to in this section is not to exceed a certain maximum amount; (c) determine the manner in which any fee referred to in this section is to be calculated; (d) determine that any fee referred to in this section does not apply to a category of records; (e) exempt any person or record or category of persons or records for a stipulated period from any fee referred to in subsection (6); and (f) determine that where the cost of collecting any fee referred to in this section exceeds the amount charged, such fee does not apply." S. 22 – Fees aren’t centrally set, and bodies can charge a fee for location and collection.
26   There are fee waivers for impecunious requesters ---2 YES 22(8): "The Minister may, by notice in the Gazette— (a) exempt any person or category of persons from paying any fee referred to in this section; (b) determine that any fee referred to in this section is not to exceed a certain maximum amount; (c) determine the manner in which any fee referred to in this section is to be calculated; (d) determine that any fee referred to in this section does not apply to a category of records; (e) exempt any person or record or category of persons or records for a stipulated period from any fee referred to in subsection (6); and (f) determine that where the cost of collecting any fee referred to in this section exceeds the amount charged, such fee does not apply." S. 22(8) – the minister is free to waive fees for anyone they choose –and supplementary regulations target this towards impecunious requesters.
27 There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. Score: No=0, Yes=2 points2 NO Not mentioned.


Exceptions

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28 The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict.Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. 4 YES 5: "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."
29 The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. It is also permissible to refer requesters to information which is already publicly available, for example online or in published form.Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed10 Partially 37: "(1) Subject to subsection (2), the information officer of a public body— (a) must refuse a request for access to a record of the body if the disclosure of the record would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement; or (b) may refuse a request for access to a record of the body if the record consists of information that was supplied in confidence by a third party— (i) the disclosure of which could reasonably be expected to prejudice the future supply of similar information, or information from the same source; and (ii) if it is in the public interest that similar information, or information from the same source, should continue to be supplied. (2) A record may not be refused in terms of subsection (1) insofar as it consists of information— (a) already publicly available; or (b) about the third party concerned that has consented in terms of section 48 or otherwise in writing to its disclosure to the requester concerned." 43: "(1) The information officer of a public body must refuse a request for access to a record of the body if the record contains information about research being or to be carried out by or on behalf of a third party, the disclosure of which would be likely to expose— (a) the third party; (b) a person that is or will be carrying out the research on behalf of the third party; or (c) the subject matter of the research, to serious disadvantage. (2) The information officer of a public body may refuse a request for access to a record of the body if the record contains information about research being or to be carried out by or on behalf of a public body, the disclosure of which would be likely to expose— (a) the public body; (b) a person that is or will be carrying out the research on behalf of the public body; or (c) the subject matter of the research, to serious disadvantage." 37 - overly broad. 43 is overly broad.
30 A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. Score 4 points and then deduct 1 point for each exception which is not subject to the harm test 4 YES
31 There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity.Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory.4 Partially 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(1), 37(1)(a) or (b), 38(a) or (b), 39(1)(a) or (b), 40, 41(1)(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 (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." S. 46 – applies to most provisions but not all, and only works for certain categories of public interest (illegal acts, public safety or environmental issues).
32 Information must be released as soon as an exception ceases to apply (for example, for after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old.Score 1 point for each2 Partially 41(3): "A record may not be refused in terms of subsection (1)(a)(iii) if it came into existence more than 20 years before the request." 44: "(1) Subject to subsections (3) and (4), the information officer of a public body may refuse a request for access to a record of the body— (a) if the record contains— (i) an opinion, advice, report or recommendation obtained or prepared; or (ii) an account of a consultation, discussion or deliberation that has occurred, including, but not limited to, minutes of a meeting, for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; or (b) if— (i) the disclosure of the record could reasonably be expected to frustrate the deliberative process in a public body or between public bodies by inhibiting the candid— (aa) communication of an opinion, advice, report or recommendation; or (bb) conduct of a consultation, discussion or deliberation; or (ii) the disclosure of the record could, by premature disclosure of a policy or contemplated policy, reasonably be expected to frustrate the success of that policy. (2) Subject to subsection (4), the information officer of a public body may refuse a request for access to a record of the body if— (a) the disclosure of the record could reasonably be expected to jeopardise the effectiveness of a testing, examining or auditing procedure or method used by a public body; (b) the record contains evaluative material, whether or not the person who supplied it is identified in the record, and the disclosure of the material would breach an express or implied promise which was— (i) made to the person who supplied the material; and (ii) to the effect that the material or the identity of the person who supplied it, or both, would be held in confidence; or (c) the record contains a preliminary, working or other draft of an official of a public body. (3) A record may not be refused in terms of subsection (1) if the record came into existence more than 20 years before the request concerned. (4) A record may not be refused in terms of subsection (1) or (2) insofar as it consists of an account of, or a statement of reasons required to be given in accordance with section 5 of the Promotion of Administrative Justice Act, 2000." Sunset clause in s. 41(3) and 44, but it’s not universal.
33 Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information.Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals.2 YES 47: "(1) The information officer of a public body considering a request for access to a record that might be a record contemplated in section 34(1), 35(1), 36(1), 37(1) or 43(1) must take all reasonable steps to inform a third party to whom or which the record relates of the request. (2) The information officer must inform a third party in terms of subsection (1)— (a) as soon as reasonably possible, but in any event, within 21 days after that request is received or transferred; and (b) by the fastest means reasonably possible. (3) When informing a third party in terms of subsection (1), the information officer must— (a) state that he or she is considering a request for access to a record that might be a record contemplated in section 34(1), 35(1), 36(1), 37(1) or 43(1), as the case may be, and describe the content of the record; (b) furnish the name of the requester; (c) describe the provisions of section 34(1), 35(1), 36(1), 37(1) or 43(1), as the case may be; (d) in any case where the information officer believes that the provisions of section 46 might apply, describe those provisions, specify which of the circumstances referred to in section 46 (a) in the opinion of the information officer might apply and state the reasons why he or she is of the opinion that section 46 might apply; and (e) state that the third party may, within 21 days after the third party is informed— (i) make written or oral representations to the information officer why the request for access should be refused; or (ii) give written consent for the disclosure of the record to the requester. (4) If a third party is not informed orally of a request for access in terms of subsection (1), the information officer must give a written notice stating the matters referred to in subsection (3) to the third party." 48: "(1) A third party that is informed in terms of section 47(1) of a request for access, may, within 21 days after the third party has been informed— (a) make written or oral representations to the information officer concerned why the request should be refused; or (b) give written consent for the disclosure of the record to the requester concerned. (2) A third party that obtains knowledge about a request for access other than in terms of section 47(1) may— (a) make written or oral representations to the information officer concerned why the request should be refused; or (b) give written consent for the disclosure of the record to the requester concerned. 49: "(1) The information officer of a public body must, as soon as reasonably possible, but in any event within 30 days after every third party is informed as required by section 47— (a) decide, after giving due regard to any representations made by a third party in terms of section 48, whether to grant the request for access; and (b) notify the third party so informed and a third party not informed in terms of section 47(1), but that made representations in terms of section 48 or is located before the decision is taken, of the decision. (2) If, after all reasonable steps have been taken as required by section 47(1), a third party is not informed of the request in question and the third party did not make any representations in terms of section 48, any decision whether to grant the request for access must be made with due regard to the fact that the third party did not have the opportunity to make representations in terms of section 48 why the request should be refused. (3) If the request for access is granted, the notice in terms of subsection (1) (b) must state— (a) adequate reasons for granting the request, including the provisions of this Act relied upon; (b) that the third party may lodge an internal appeal or an application, as the case may be, against the decision within 30 days after notice is given, and the procedure for lodging the internal appeal or application, as the case may be; and (c) that the requester will be given access to the record after the expiry of the applicable period contemplated in paragraph (b), unless such internal appeal or application with a court is lodged within that period. (4) If the information officer of a public body decides in terms of subsection (1) to grant the request for access concerned, he or she must give the requester access to the record concerned after the expiry of 30 days after notice is given in terms of subsection (1) (b), unless an internal appeal or an application with a court, as the case may be, is lodged against the decision within that period."
34 There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted2 YES 28: "(1) If a request for access is made to a record of a public body containing information which may or must be refused in terms of any provision of Chapter 4 of this Part, every part of the record which— (a) does not contain; and (b) can reasonably be severed from any part that contains, any such information must, despite any other provision of this Act, be disclosed. (2) If a request for access to— (a) a part of a record is granted; and (b) the other part of the record is refused, as contemplated in subsection (1), the provisions of section 25(2), apply to paragraph (a) of this section and the provisions of section 25(3) to paragraph (b) of this section."
35 When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures.Score Y/N: 1 point for a and 1 point for b2 YES 25(3): "If the request for access is refused, the notice in terms of subsection (1)(b) must— (a) state adequate reasons for the refusal, including the provisions of this Act relied upon; (b) exclude, from such reasons, any reference to the content of the record; and (c) state that the requester may lodge an internal appeal or an application with a court, as the case may be, against the refusal of the request, and the procedure (including the period) for lodging the internal appeal or application, as the case may be."


Appeals

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
36 The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less).Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals.2 YES 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 section 1— (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 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." 75: "(1) An internal appeal— (a) must be lodged in the prescribed form— (i) within 60 days; (ii) if notice to a third party is required by section 49(1) (b), within 30 days after notice is given to the appellant of the decision appealed against or, if notice to the appellant is not required, after the decision was taken; (b) must be delivered or sent to the information officer of the public body concerned at his or her address, fax number or electronic mail address; (c) must identify the subject of the internal appeal and state the reasons for the internal appeal and may include any other relevant information known to the appellant; (d) if, in addition to a written reply, the appellant wishes to be informed of the decision on the internal appeal in any other manner, must state that manner and provide the necessary particulars to be so informed; (e) if applicable, must be accompanied by the prescribed appeal fee referred to in subsection (3); and (f) must specify a postal address or fax number. (2)(a) If an internal appeal is lodged after the expiry of the period referred to in subsection (1)(a), the relevant authority must, upon good cause shown, allow the late lodging of the internal appeal. (b) If that relevant authority disallows the late lodging of the internal appeal, he or she must give notice of that decision to the person that lodged the internal appeal. (3)(a) A requester lodging an internal appeal against the refusal of his or her request for access must pay the prescribed appeal fee (if any). (b) If the prescribed appeal fee is payable in respect of an internal appeal, the decision on the internal appeal may be deferred until the fee is paid. (4) As soon as reasonably possible, but in any event within 10 working days after receipt of an internal appeal in accordance with subsection (1), the information officer of the public body concerned must submit to the relevant authority— (a) the internal appeal together with his or her reasons for the decision concerned; and (b) if the internal appeal is against the refusal or granting of a request for access, the name, postal address, phone and fax number and electronic mail address, whichever is available, of any third party that must be notified in terms of section 47(1) of the request."
37 Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). 1 for partial, 2 for yes2 NO No – HR Commission monitors implementation, but cannot hear appeals.
38 The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so they are protected against arbitrary dismissal (procedurally/substantively) once appointed.Score: 1 point for appointment procedure, 1 point for security of tenure2 NO HR Commission members have some protections according to 3(1)(b) of the SAHRCA, but I don’t think this qualifies for a point.
39 The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence.Score 1 point for reports to parliament, 1 point for budget approved by parliament2 NO No mention of this in the SAHRCA or the ATI law.
40 There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise.Score 1 point for not politically connected, 1 point for professional expertise2 NO Not mentioned.
41 The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies.Score 1 point for reviewing classified documents, 1 point for inspection powers2 Partially SAHRCA gives the HR Commission the power to search.
42 The decisions of the independent oversight body are binding. Score N=0, Y=2 points2 Partially 83: "(1) The Human Rights Commission must— (a) compile and make available a guide on how to use this Act as contemplated in section 10; and (b) submit reports to the National Assembly as contemplated in section 84. (2) The Human Rights Commission must, to the extent that financial and other resources are available— (a) develop and conduct educational programmes to advance the understanding of the public, in particular of disadvantaged communities, of this Act and of how to exercise the rights contemplated in this Act; (b) encourage public and private bodies to participate in the development and conduct of programmes referred to in paragraph (a) and to undertake such programmes themselves; and (c) promote timely and effective dissemination of accurate information by public bodies about their activities. (3) The Human Rights Commission may— (a) make recommendations for— (i) the development, improvement, modernisation, reform or amendment of this Act or other legislation or common law having a bearing on access to information held by public and private bodies, respectively; and (ii) procedures in terms of which public and private bodies make information electronically available; (b) monitor the implementation of this Act; (c) if reasonably possible, on request, assist any person wishing to exercise a right contemplated in this Act; (d) recommend to a public or private body that the body make such changes in the manner in which it administers this Act as the Commission considers advisable; (e) train information officers of public bodies; (f) consult with and receive reports from public and private bodies on the problems encountered in complying with this Act; (g) obtain advice from, consult with, or receive and consider proposals or recommendations from, any public or private body, official of such a body or member of the public in connection with the Commission’s functions in terms of this Act; (h) for the purposes of section 84(b)(x), request the Public Protector to submit to the Commission information with respect to— (i) the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act; (ii) the nature and outcome of those complaints; and (i)generally, inquire into any matter, including any legislation, the common law and any practice and procedure, connected with the objects of this Act. (4) For the purpose of the annual report referred to in section 84 and if so requested by the Human Rights Commission, the head of a private body may furnish to that Commission information about requests for access to records of the body. (5) If appropriate, and if financial and other resources are available, an official of a public body must afford the Human Rights Commission reasonable assistance for the effective performance of its functions in terms of this Act." HR Commission may make recommendations, not orders (s. 83).
43 In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. 1 for partial, 2 for fully2 Partially 83: "(1) The Human Rights Commission must— (a) compile and make available a guide on how to use this Act as contemplated in section 10; and (b) submit reports to the National Assembly as contemplated in section 84. (2) The Human Rights Commission must, to the extent that financial and other resources are available— (a) develop and conduct educational programmes to advance the understanding of the public, in particular of disadvantaged communities, of this Act and of how to exercise the rights contemplated in this Act; (b) encourage public and private bodies to participate in the development and conduct of programmes referred to in paragraph (a) and to undertake such programmes themselves; and (c) promote timely and effective dissemination of accurate information by public bodies about their activities. (3) The Human Rights Commission may— (a) make recommendations for— (i) the development, improvement, modernisation, reform or amendment of this Act or other legislation or common law having a bearing on access to information held by public and private bodies, respectively; and (ii) procedures in terms of which public and private bodies make information electronically available; (b) monitor the implementation of this Act; (c) if reasonably possible, on request, assist any person wishing to exercise a right contemplated in this Act; (d) recommend to a public or private body that the body make such changes in the manner in which it administers this Act as the Commission considers advisable; (e) train information officers of public bodies; (f) consult with and receive reports from public and private bodies on the problems encountered in complying with this Act; (g) obtain advice from, consult with, or receive and consider proposals or recommendations from, any public or private body, official of such a body or member of the public in connection with the Commission’s functions in terms of this Act; (h) for the purposes of section 84(b)(x), request the Public Protector to submit to the Commission information with respect to— (i) the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act; (ii) the nature and outcome of those complaints; and (i)generally, inquire into any matter, including any legislation, the common law and any practice and procedure, connected with the objects of this Act. (4) For the purpose of the annual report referred to in section 84 and if so requested by the Human Rights Commission, the head of a private body may furnish to that Commission information about requests for access to records of the body. (5) If appropriate, and if financial and other resources are available, an official of a public body must afford the Human Rights Commission reasonable assistance for the effective performance of its functions in terms of this Act." HR Commission may make recommendations, not orders (s. 83).
44 Requesters have the right to lodge a judicial appeal.1 for partially, 2 for fully.2 YES 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. (2) A requester— (a) that has been unsuccessful in an internal appeal to the relevant authority of a public body; (b) aggrieved by a decision of the relevant authority of a public body to disallow the late lodging of an internal appeal in terms of section 75(2); (c) aggrieved by a decision of the information officer of a public body referred to in paragraph (b) of the definition of ‘‘public body’’ in section 1— (i) to refuse a request for access; or (ii) taken in terms of section 22, 26(1) or 29(3); or (d) aggrieved by a decision of the head of a private body— (i) to refuse a request for access; or (ii) taken in terms of section 54, 57(1) or 60, may, by way of an application, within 30 days apply to a court for appropriate relief in terms of section 82. (3) A third party— (a) that has been unsuccessful in an internal appeal to the relevant authority of a public body; (b) aggrieved by a decision of the information officer of a public body referred to in paragraph (b) of the definition of ‘‘public body’’ in section 1 to grant a request for access; or (c) aggrieved by a decision of the head of a private body in relation to a request for access to a record of that body, may, by way of an application, within 30 days apply to a court for appropriate relief in terms of section 82." 79: "(1) The Rules Board for Courts of Law, established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), must within 12 months after the commencement of this section, make and implement rules of procedure for— (a) a court in respect of applications in terms of section 78; and (b) a court to receive representations ex parte referred to in section 80(3) (a). (2) Before the implementation of the rules of procedure in terms of subsection (1)(a), an application in terms of section 78 may only be lodged with a High Court or another court of similar status. (3) Any rule made in terms of subsection (1) must, before publication in the Gazette, be approved by Parliament." 80: "(1) Despite this Act and any other law, any court hearing an application, or an appeal against a decision on that application, may examine any record of a public or private body to which this Act applies, and no such record may be withheld from the court on any grounds. (2) Any court contemplated in subsection (1) may not disclose to any person, including the parties to the proceedings concerned, other than the public or private body referred to in subsection (1)— (a) any record of a public or private body which, on a request for access, may or must be refused in terms of this Act; or (b) if the information officer of a public body, or the relevant authority of that body on internal appeal, in refusing to grant access to a record in terms of section 39(3) or 41(4), refuses to confirm or deny the existence or non-existence of the record, any information as to whether the record exists. (3) Any court contemplated in subsection (1) may— (a) receive representations ex parte; (b) conduct hearings in camera; and (c) prohibit the publication of such information in relation to the proceedings as the court determines, including information in relation to the parties to the proceedings and the contents of orders made by the court in the proceedings." 81: "(1) For the purposes of this Chapter proceedings on application in terms of section 78 are civil proceedings. (2) The rules of evidence applicable in civil proceedings apply to proceedings on application in terms of section 78. (3) The burden of establishing that— (a) the refusal of a request for access; or (b) any decision taken in terms of section 22, 26(1), 29(3), 54, 57(1) or 60, complies with the provisions of this Act rests on the party claiming that it so complies." 82: "The court hearing an application may grant any order that is just and equitable, including orders— (a) confirming, amending or setting aside the decision which is the subject of the application concerned; (b) requiring from the information officer or relevant authority of a public body or the head of a private body to take such action or to refrain from taking such action as the court considers necessary within a period mentioned in the order; (c) granting an interdict, interim or specific relief, a declaratory order or compensation; or (d) as to costs."
45 Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance.1 for free, 1 for no lawyer required. 2 NO 75(3)(a): "A requester lodging an internal appeal against the refusal of his or her request for access must pay the prescribed appeal fee (if any)." Not free - 75(3)(a). Internal appeal does not appeal to require a lawyer, but the judicial (external) appeal certainly would.
46 The grounds for appeal to the oversight body (where applicable, or to the judiciary if no such body exists) are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.).Score 1 point for appealing refusals, additional points for appealing other violations.4 YES No external appeal, but grounds for internal appeal are somewhat broad, and the courts can hear appeals for any type of violation.
47 Clear procedures, including timelines, are in place for dealing with external appeals (oversight/judicial).Score 1 point for clear procedures, 1 point for timelines. 2 NO Not mentioned.
48 In the appeal process (oversight/judicial/) the government bears the burden of demonstrating that it did not operate in breach of the rules.Score Y/N and award 2 points for yes. 2 YES 81: "(1) For the purposes of this Chapter proceedings on application in terms of section 78 are civil proceedings. (2) The rules of evidence applicable in civil proceedings apply to proceedings on application in terms of section 78. (3) The burden of establishing that— (a) the refusal of a request for access; or (b) any decision taken in terms of section 22, 26(1), 29(3), 54, 57(1) or 60, complies with the provisions of this Act rests on the party claiming that it so complies." The gov’t bears the burden in a judicial appeal (s. 81), as well as in administrative appeals.
49 The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better record management)1 for partial, 2 for fully. 2 Partially 83: "(1) The Human Rights Commission must— (a) compile and make available a guide on how to use this Act as contemplated in section 10; and (b) submit reports to the National Assembly as contemplated in section 84. (2) The Human Rights Commission must, to the extent that financial and other resources are available— (a) develop and conduct educational programmes to advance the understanding of the public, in particular of disadvantaged communities, of this Act and of how to exercise the rights contemplated in this Act; (b) encourage public and private bodies to participate in the development and conduct of programmes referred to in paragraph (a) and to undertake such programmes themselves; and (c) promote timely and effective dissemination of accurate information by public bodies about their activities. (3) The Human Rights Commission may— (a) make recommendations for— (i) the development, improvement, modernisation, reform or amendment of this Act or other legislation or common law having a bearing on access to information held by public and private bodies, respectively; and (ii) procedures in terms of which public and private bodies make information electronically available; (b) monitor the implementation of this Act; (c) if reasonably possible, on request, assist any person wishing to exercise a right contemplated in this Act; (d) recommend to a public or private body that the body make such changes in the manner in which it administers this Act as the Commission considers advisable; (e) train information officers of public bodies; (f) consult with and receive reports from public and private bodies on the problems encountered in complying with this Act; (g) obtain advice from, consult with, or receive and consider proposals or recommendations from, any public or private body, official of such a body or member of the public in connection with the Commission’s functions in terms of this Act; (h) for the purposes of section 84(b)(x), request the Public Protector to submit to the Commission information with respect to— (i) the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act; (ii) the nature and outcome of those complaints; and (i)generally, inquire into any matter, including any legislation, the common law and any practice and procedure, connected with the objects of this Act. (4) For the purpose of the annual report referred to in section 84 and if so requested by the Human Rights Commission, the head of a private body may furnish to that Commission information about requests for access to records of the body. (5) If appropriate, and if financial and other resources are available, an official of a public body must afford the Human Rights Commission reasonable assistance for the effective performance of its functions in terms of this Act." HR Commission may make recommendations, not orders (s. 83).


Sanctions & Proteccions

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
50 Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information.Score 1 point for sanctions for underming right, 1 point for destruction of documents 2 YES 90: "A person who with intent to deny a right of access in terms of this Act— (a) destroys, damages or alters a record; (b) conceals a record; or (c) falsifies a record or makes a false record, commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years."
51 There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them).Score 1 point for either remedial action or sanctions, 2 points for both 2 NO Not mentioned.
52 The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law.Score 1 for oversight body, 1 for immunity for others2 YES 89: "No person is criminally or civilly liable for anything done in good faith in the exercise or performance or purported exercise or performance of any power or duty in terms of this Act."
53 There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers).Score 2 for strong protections, 1 for moderate protections2 YES


Promotional measures

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
54 Public authorities are required to appoint dedicated officials (information officers) or units with a responsibility for ensuring that they comply with their information disclosure obligations.Score Y/N, Y=2 points2 YES 17: "(1) For the purposes of this Act, each public body must, subject to legislation governing the employment of personnel of the public body concerned, designate such number of persons as deputy information officers as are necessary to render the public body as accessible as reasonably possible for requesters of its records. (2) The information officer of a public body has direction and control over every deputy information officer of that body. (3) The information officer of a public body may delegate a power or duty conferred or imposed on that information officer by this Act to a deputy information officer of that public body. (4) In deciding whether to delegate a power or duty in terms of subsection (3), the information officer must give due consideration to the need to render the public body as accessible as reasonably possible for requesters of its records. (5) Any power or duty delegated in terms of subsection (3) must be exercised or performed subject to such conditions as the person who made the delegation considers necessary. (6) Any delegation in terms of subsection (3)— (a) must be in writing; (b) does not prohibit the person who made the delegation from exercising the power concerned or performing the duty concerned himself or herself; and (c) may at any time be withdrawn or amended in writing by that person. (7) Any right or privilege acquired, or any obligation or liability incurred, as a result of a decision in terms of a delegation in terms of subsection (3) is not affected by any subsequent withdrawal or amendment of that decision."
55 A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. Score Y/N, Y=2 points2 YES 83(3)(b): "monitor the implementation of this Act;"
56 Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. Score Y/N, Y=2 points2 YES 10: "(1) The Human Rights Commission must, within 18 months after the commencement of this section, compile in each official language a guide 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. (2) The guide must, without limiting the generality of subsection (1), include a description of— (a) the objects of this Act; (b) the postal and street address, phone and fax number and, if available, electronic mail address of— (i) the information officer of every public body; and (ii) every deputy information officer of every public body appointed in terms of section 17(1); (c) such particulars of every private body as are practicable; (d) 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; (e) the assistance available from the information officer of a public body in terms of this Act; (f) the assistance available from the Human Rights Commission in terms of this Act; (g) 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, including the manner of lodging— (i) an internal appeal; and (ii) an application with a court against a decision by the information officer of a public body, a decision on internal appeal or a decision of the head of a private body; (h) 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; (i) the provisions of sections 15 and 52 providing for the voluntary disclosure of categories of records by a public body and private body, respectively; (j) the notices issued in terms of sections 22 and 54 regarding fees to be paid in relation to requests for access; and (k) the regulations made in terms of section 92. (3) The Human Rights Commission 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."
57 A system is in place whereby minimum standards regarding the management of records are set and applied. Score Y/N, Y=2 points2 NO Not mentioned.
58 Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. Score Y/N, Y=2 points2 YES 14(1)(d): "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;"
59 Training programs for officials are required Score Y/N, Y=2 points2 YES 83(3)(e): "train information officers of public bodies;"
60 Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. Score Y/N, Y=2 points2 YES 32: "The information officer of each public body must annually submit to the Human Rights Commission a report stating in relation to the public body— (a) the number of requests for access received; (b) the number of requests for access granted in full; (c) the number of requests for access granted in terms of section 46; (d) the number of requests for access refused in full and refused partially and the number of times each provision of this Act was relied on to refuse access in full or partial; (e) the number of cases in which the periods stipulated in section 25(1) were extended in terms of section 26(1); (g) the number of internal appeals lodged with the relevant authority and the number of cases in which, as a result of an internal appeal, access was given to a record; (h) the number of internal appeals which were lodged on the ground that a request for access was regarded as having been refused in terms of section 27; (i) the number of applications to a court which were lodged on the ground that an internal appeal was regarded as having been dismissed in terms of section 77(7); and (j) such other matters as may be prescribed."
61 A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. Score Y/N, Y=2 points2 YES 84: "The Human Rights Commission must include in its annual report to the National Assembly referred to in section 181(5) of the Constitution— (a) any recommendation in terms of section 83(3)(a); and (b) in relation to each public body, particulars of— (i) the number of requests for access received; (ii) the number of requests for access granted in full; (iii) the number of requests for access granted in terms of section 46; (iv) the number of requests for access refused in full and refused partially and the number of times each provision of this Act was relied on to refuse access in full or partially; (v) the number of cases in which the periods stipulated in section 25(1) were extended in terms of section 26(1); (vi) the number of internal appeals lodged with the relevant authority and the number of cases in which, as a result of an internal appeal, access was given to a record or a part thereof; (vii) the number of internal appeals which were lodged on the ground that a request for access was regarded as having been refused in terms of section 27; (viii) the number of applications made to every court and the outcome thereof and the number of decisions of every court appealed against and the outcome thereof; (ix) the number of applications to every court which were lodged on the ground that an internal appeal was regarded as having been dismissed in terms of section 77(7); (x) the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act and the nature and outcome thereof; and (xi) such other matters as may be prescribed."