New rules in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) have been published and come into operation on 4 November 2019. The rules set out the procedure for application to court which must be followed in all applications relating to section 78 of PAIA.
Section 78 of PAIA pertains to applications regarding decisions of information officers or relevant authorities of public bodies or heads of private bodies. FSPs are considered as private bodies and therefore fall within the ambit of PAIA. FSPs are required to submit a PAIA manual in terms of section 51 which sets out how people can request information and/or documents from the private body (FSP).
The new rules set out the procedure for an application to court by a person who was requesting documents (the requester) in cases where a head of a private body as well as a public body and information officer refused a request for access to information. In terms of the new rules there is also an obligation on the head of the private body to provide a copy of the application, under cover of a written notice, to all other parties affected by the application but who have not been cited in the application.
The normal internal complaints procedure should be exhausted before an application is made to court.
How will this rule affect FSPs?
FSPs have a duty to notify their clients of the procedure to approach the court for appropriate relief should a client be unsuccessful in their requests to access information from the FSP after exhausting the normal internal complaints process. It would therefore be advisable that FSPs refer to this procedure in their PAIA manual.
A few important points and sections to consider when drafting a PAIA Manual in terms of Section 51
A PAIA Manual must contain:
- A short introduction of the entity;
- Address, phone and fax number, email address of the head of the body;
- A description of the guide referred to in section 10 of PAIA (Guide on how to use Act). Some examples of information to include in the guide are:
– a description of the objects of the Act;
– postal and street address, phone and fax number, and if available electronic mail address of the information officer of every public body and every deputy information officer of every public body appointed in terms of PAIA;
– particulars of every private body as are practicable;
– the manner and form of a request for access to a record of a public body and access to a record of a private body, etc.
- The latest notice regarding the categories of record of the body which are available without a person having to request access in terms of this Act;
- A description of the records of the body which are available in accordance with any other legislation;
- 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;
- Such other information as may be prescribed.
The head of a private body must on a regular basis update the manual and each manual must be made available as prescribed. FSPs are encouraged to publish the PAIA Manual on their website as soon as it has been compiled and submitted.
There is an exemption that is currently in place for private companies within the Finance and Business services sector regarding the deadline for submission of PAIA Manuals. The exemption states that the deadline is 31 December 2020 for all private bodies EXCEPT any company which:
a) is not a private company as defined in section 1 of the Companies Act, 2008
b) is a private company as defined in section 1 of the Companies Act, 2008 and –
(i) has 50 or more employees in their employment; or
(ii) has a total annual turnover that is equal to or more than R30 million.