Background

Section 32 of the Constitution provides for the right of access to information. This is an important clause and is part of the democratic countries worldwide. The drafting of legislation to give effect to this clause started in 1994. The Act itself was accepted by Parliament on 2 February 2000 and came to operation on 9 March 2001.

Purpose of the Act

The motivation for giving effect to the right of access to information is clearly stated in the preamble of the Act and, inter alia, it fosters a culture of transparency and accountability in public and private bodies. However, the Act in section 9 recognises that the right of access to information cannot be unlimited and should be subject to justifiable limitations, including limitations aimed at the reasonable protection of privacy, commercial confidentiality and effective, efficient and good governance in such a manner that balances that right with any other right.

In order to enable persons to obtain access to records of public or private bodies as swiftly, inexpensively and effortlessly as reasonably possible, it is imperative that public and private bodies should have a system of classification good enough to provide for the identification, arrangement, storage and retrieval of records. This will ensure easier compliance with the Act.

Interpretation of the Act

Section 2 provides that the courts mus prefer any reasonable interpretation of the provision that is consistent with the objects of this Act. In order to ensure that the objects of the Act are met, it is necessary that the Act is interpreted in a contextual or purposive manner and not by means of a textual or literal method of interpretation.

In interpreting the Act, that starting point should be the fact that the person needing the information has the right to access that information, and the right to request any record, and the extent to which such a request can be accommodated, and not the idea that the requests should be refused.

Application to Records

The Act applies to all records of public and private bodies, that includes any recorded information, in any form or medium, that is in the possession or under the control of that public or private body, regardless of who created the record and regardless of when the record came into existence.

Any record in the possession or under the control of an official of a public or private body or an independent contractor engaged by a public or private body, is regarded as the record of that public or private body.

Application to Bodies

The Act distinguishes between public and private bodies, with different procedures and grounds of refusal that apply to each type of body.

For the purpose of the Act a public body is defined as follows :

• any department or state in the national, provincial or a local sphere of government or • any functionary or institution when it is exercising a power of performing a duty in terms of the Constitution, or a provincial Constitution or • any functionary or institution when it is exercising a public power or function in terms of any other legislation.

A private body for the purpose of the Act is defined as any natural person who or profession that carries or has carried on any trade, business or profession or any former or existing juristic person (that is not included under the definition of a public body). This will include all types of businesses, companies, professionals and similar service providers.

Relationship Between the Act and Other Legislation

According to Section 5, the Act applies to the exclusion of any provision of any other legislation that prohibits and restricts the disclosure of a record of a public or private body and which is materially inconsistent with an object or a provision in the Act.

Grounds for the Refusal of Access to Records

Public bodies' requests for access to records can only be refused on the grounds provided for by sections 33 to 46 of the Act. Grounds for refusal to private bodies to access their records are contained in sections 63 to 70 of the Act. Requests for access to records of public and private bodies can therefore only be refused on these grounds only and not in terms of the provisions of any other legislation.

Closing Remarks

The Promotion of Access to Information Act provides for a number of other responsibilities, for example that of information officers, manuals containing details of the body, its functions and records, reports to the Human Rights Commission, procedures regarding requests for records, fees payable, time frames to comply with requests to provide access to records, appeals against decisions and many more.

The implementation of the Act will have far reaching implications for every public and private body. 

With acknowledgement to Salvo - Armscor's Corporate Journal.