Deadline for manuals of private bodies in terms of the Promotion of Access to Information Act
The Promotion of Access to Information Act (PAIA) facilitates the right to access information in section 32 of the Constitution, with the purpose of promoting transparency and accountability in both the private and public sectors. Practically, it allows any person who requires information held by a state institution or private sector body in order to enforce his or her rights, to obtain the information via that bodys information officer.
Up to 31st December private bodies with a turnover of less than R5 million (i.e. most businesses and non-profit organisations in South Africa) have been exempted from complying with PAIAs requirements, but now every private body in South Africa is obliged to ensure full compliance.
1. What is a private body in terms of the definition in PAIA The Act states:
private body means
(a) a natural person who carries or has carried on any trade, business or profession, but only in such capacity;
(b) a partnership which carries or has carried on any trade, business or profession; or
(c) any former or existing juristic person,
but excludes a public body.
2. What is required of private bodies in terms of PAIA Section 51 of the Act states:
Manual.(1) Within six months after the commencement of this section or the coming into existence of the private body concerned, the head of a private body must compile a manual containing
(a) the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body;
(b) description of the guide referred to in section 10, if available, and how to obtain access to it;
(c) the latest notice in terms of section 52(2), if any, regarding the categories of record of the body which are available without a person having to request access in terms of this Act;
(d) a description of the records of the body which are available in accordance with any other legislation;
(e) 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; and
( f ) such other information as may be prescribed.
(2) The head of a private body must on a regular basis update the manual referred to in subsection (1).
(3) Each manual must be made available as prescribed.
There is also some guidance on how to compile a manual on the Human Rights Commissions website- see http://www.sahrc.org.za/home/index.php?ipkContentID=70&ipkMenuID=51.
The manual must contain the private bodys addresses, fax and phone numbers, a list of the available records indicating which of those are automatically available and which are available on request, the request procedure in terms of PAIA, the name of the information officer, the fees which must be paid along with a request for information, the procedure if a request for information has been refused, etc.
3. How must the manual be made available Regulation 9 to PAIA sets out the procedure as follows:
(a) the head of a private body
(i) must make available a copy of the manual to
(aa) the Human Rights Commission; and
(bb) the controlling body of which that private body is a member, if applicable;
(ii) must make available the manual on the web site, if any, of the private body; and
(b) the head of a private body may publish the manual in the Gazette.
(2) The head of a private body
(a) must, during office hours and upon request, make available for public inspection a copy of the manual;
(b) may not charge a fee for a public inspection referred to in paragraph (a); and
(c) may, in respect of a copy of the manual or part thereof made available in a manner other than that contemplated in paragraph (a), charge the fee prescribed.
A copy of the manual can be emailed to the Human Rights Commission at email@example.com if the originals are also posted to the Commission at Private Bag X2700, Houghton, 2041. The manual need not be published in the Government Gazette, unless the head of the body wishes to do so. The manual, along with a request form, must also be made available at the company offices and at any company access points.
The manual must be updated each time there is a material change and resubmitted to the Commission each time.
4. By when does this manual need to be compiled?
The drafting of PAIA, read with the exemption notice, can be interpreted in two ways- it could either be by 31 December 2011, or within 6 months of that date, i.e. by 30 June 2012.
The Minister may also still by notice in the Government Gazette, exempt any private body or category of private bodies from compliance with section 51 for such period as the Minister thinks fit. However, no such exemption has been granted to date, and on a conservative interpretation, one must assume that your manual needs to be compiled by 31 December 2011.
5. What are the penalties if my private body does not comply?
If any private body does not comply with section 51 of the Act, the head of that private body, if he / she was acting willfully or in a grossly negligent way (e.g. if he /she knew about the obligation and did not comply), is committing a criminal offence and can be sentenced to a maximum of two years in prison or a fine. The Commission has not imposed fines for non compliance to date, but has reserved the right to do so.