Time is running out to publish your PAIA Manual

Time is running out for private bodies to prepare and publish their Promotion of Access to Information Act manuals. The exemption the Minister of Justice and Constitutional Development granted in August 2005 will expire in just a few weeks, on 31 December 2011. From 1 January 2012, the heads of those private bodies which haven't prepared and published their Promotion of Access to Information Act manuals may be subject to a fine and imprisonment.

What is the Promotion of Access to Information Act?

The Bill of Rights includes the right of access to information, largely as a response to the previously secretive and oppressive National Party regime (a little ironic considering the controversial Protection of State Information Bill). Section 32 of the Bill of Rights provides as follows:

32 Access to information

(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.

The Promotion of Access to Information Act was passed in 2000 to give effect to this right. It went into effect on 9 March 2001 and the Act's stated purpose is as follows:

To give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith.

One of Promotion of Access to Information Act's central requirements was that public and private bodies publish manuals disclosing the types of records in their possession and how so-called "requesters" may access those records. Before going further, its worth expanding a couple defined terms in the Act.

Defined terms

Promotion of Access to Information Act refers to the "head" of a privatee body being the responsible person for Promotion of Access to Information Act compliance. The Act defined the "head" as follows:

'head' of, or in relation to, a private body means-

(a) in the case of a natural person, that natural person or any person duly authorised by that natural person;
(b) in the case of a partnership, any partner of the partnership or any person duly authorised by the partnership;
(c) in the case of a juristic person-

(i) the chief executive officer or equivalent officer of the juristic person or any person duly authorised by that officer; or
(ii) the person who is acting as such or any person duly authorised by such acting person;

Given the Act's objectives, personal information held by public and private bodies becomes pretty important as this may be the sort of information a requester may require in order to "exercise or [protect] any rights". "Personal information" is defined as follows:

'personal information' means information about an identifiable individual, including, but not limited to-

(a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the individual;
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
(c) any identifying number, symbol or other particular assigned to the individual;
(d) the address, fingerprints or blood type of the individual;
(e) the personal opinions, views or preferences of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
(f) correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
(g) the views or opinions of another individual about the individual;
(h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,

but excludes information about an individual who has been dead for more than 20 years;

The personal information definition is pretty broad and one industry this potentially becomes very relevant to is the direct marketing industry which collects a lot of this personal information about people on its databases. Consumer facing businesses will also collect personal information about its customers over time and this Act is directly applicable to those businesses, particularly in light of the Consumer Protection Act.

Promotion of Access to Information Act refers to public and private bodies. I am focusing on "private bodies" for the purposes of this post and the Act defines "private bodies" as follows:

'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;

The "private bodies" definition covers virtually all aspects of commercial enterprise ranging from sole proprietors to partnerships to companies.

When it comes to "requesters" in the context of private bodies, the Act defines a "requester" as follows:

'requester' , in relation to-

(a) a public body, means-
…

(b) a private body, means-

(i) any person, including, but not limited to, a public body or an official thereof, making a request for access to a record of that private body; or
(ii) a person acting on behalf of the person contemplated in subparagraph (i);

A "person", in turn, is defined as both a natural person (legalese for human beings) or a juristic person like a close corporation or company.

Manuals and records disclosures

The Promotion of Access to Information Act requires private bodies to prepare and publish manuals which explain to the public what records they hold and how to access those records. The process of requesting and obtaining records is fairly clearly regulated and fees associated with requests are specified in the legislation. A substantial portion of the Act is dedicated to the manuals which public and private bodies must compile and when these must be published. The central section relating to private bodies' manuals is section 51 which provides as follows:

51 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) a 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.

Compiling a manual isn't a simple matter as it has to accommodate all "records" a private body has and which are subject to disclosure (not all records must be disclosed). The Act initially required these manuals to be prepared by early September 2001 but the Minister of Justice and Constitutional Development granted smaller private bodies a broad exemption from complying with the Act's requirement to publish a manual based on their turnover and industry. This exemption expires on 31 December 2011 and while an amendment to the Promotion of Access to Information Act limiting its application to private bodies above a certain size, this does not appear to have been passed so all private bodies will have to comply from 1 January 2012.

The South African Human Rights Commission was mandated to publish a guide to the Promotion of Access to Information Act as well as to assist with compliance with the Act or to assist persons wishing to invoke the Act's provisions. The Commission's Promotion of Access to Information Act help page contains a handy summary of section 51's requirements and what a manual should contain:

In terms of section 51 of PAIA, the head of a private body must:

• compile a section 51 manual which is a roadmap of the company
• submit the manual to the South African Human Rights Commission once 
• effect material changes if any each time these occur and resubmit to the SAHRC
• electronic submissions to the Commission are accepted, sent to dmalesa@sahrc.org.za thereafter followed by hard copy originals;
• manuals must be submitted to SAHRC head office at the address listed below
• update any material changes on the manual on a regular basis;
• make the manual available as prescribed by the Act at the company offices and on their website;
• must  annex a request form to the manual and  also make request form available on the    website and at the company premises access points;
• there are penalties for non compliance – please see section 90 of PAIA, the Commission has not imposed fines for non compliance to date but reserves the right to do.

The manual must among others contain the following information:

• details of the company's postal, email and street address, fax and phone of the company,
• the description of available records generated by the company stating those which are automatically available and those that are available on request.
• outline the request procedure in terms of PAIA;
• state who the head of the company is (CEO is usually the  Information Officer in terms of PAIA)
• stipulate the fees applicable as legislated by the Act which are chargeable to requesters
• remedies available to requesters if their request for information has been refused
• details facilitating request for access to a record etc.

Aside from the statutory obligation on all businesses to publish manuals, this legislation will be of particular interest to businesses which tend to collect a fair amount of information about other people. As I mentioned above, these businesses include direct marketing businesses (already under a spotlight with the Consumer Protection Act's marketing restrictions and the upcoming Protection of Personal Information Bill which specifically targets direct marketing activities) and consumer facing businesses, generally. That said, because requesters can be individuals and businesses and because the Promotion of Access to Information Act doesn't limit itself to consumer facing private bodies, all businesses should be working on their manuals and having them submitted before the deadline, if possible, or as close to it as they can.

It is also worth noting that, in the case of private bodies, the person responsible for Promotion of Access to Information Act compliance is generally the business' head and that is the same person who could find him or herself fined and imprisoned for non-compliance with the Act.

Once a business has published its manual, it should develop an effective procedure to handle requests for records. This procedure should include a process of assessing requests' validity, identify and locating the requested records and making those records available to the requester on payment of the prescribed fees. Ideally this procedure should be well thought out and responsible persons within the business identified to facilitate the procedure and trained on the relevant requirements.

Assistance with manual preparation and publication

Given the amount of information available about the Promotion of Access to Information Act and manuals in particular, it is possible for businesses to prepare and publish their manuals internally. It does require familiarity with the Act and its requirements and its a good idea to obtain a copy of the Commission's guide and work through that. Alternatively we are available to assist businesses with their manual's preparation, submission and publication (bear in mind the manual should be published through your website too) over the coming weeks. Contact us for more information if you require assistance.

The Johannesburg High Court administration embarrassment

I just returned from yet another trip to the High Court to follow up on a few default judgment requests which I filed in April and June 2010. I thought I would share my experiences and try give people not involved in court processes an idea what is or isn't going on behind the scenes at court. Its nothing short of frustrating and an embarrassment.

For the most part administration at the Johannesburg High Court, probably the busiest in South Africa, is paper based. The files are all paper based and are moved from room to room as a case moves through the various processes that make up court proceedings. The common default judgment application process was intended to be an expedited process where litigants could "request" default judgment on certain matters by submitting a request to the default judgments registrar. The registrar could then grant judgments on paper without the need to bring a formal application to court. That, at least, is the idea. In practice this aspect of court administration has just become arduous, frustrating and anything but efficient.

Below is a memo from the Chief Registrar regarding the procedures for default judgment requests and follow-ups.

Memo From Chief Registrar Regarding Default Judgments

The initial process focuses on a register book with handwritten entries on each line with a reference number the case number and an indication of when the request was actioned and what the action was (granted, queried and so on). If you didn't keep a record of the reference number when you first became aware of it, you have to page through the book to find it each time. There also seems to be one book and I would hate to think what happens if that book disappears. This process could easily be computerized with a fairly simple database application. Instead, it is manual and the computer on this registrar's desk serves as an impromptu shelf.

Querying the status of a default judgment request is frustrating to say the least. I went to court last week Wednesday and all I could find was a pile of files on a table. Some court official mentioned in passing that they were a collection of files in respect of which default judgments had been requested. They weren't in any particular order and there was no indication why these ones had been singled out.

The default judgment registrar's office (the place you would expect to find some clarity about default judgments) was closed on the day and a typist next door told me he would be in his office on Mondays.

I returned to court this morning in the hope I could speak to this registrar about my files when I walked into his office I didn't find him. I did find this mess (one of the images in this slideshow is the photo of the table above - the table was just outside his office):

The process, once you arrive in this office, is to search through the loosely organized files and the "mixed" files in the hope that you find your file. I searched through about half a dozen piles of files and didn't find a single one of my files. One messenger who walked in found a file which contained a default judgment request from September 2009. The registrar never arrived and the typist from two offices away mentioned that he had been reassigned to "Finance" and she didn't know who would replace him. For now it fell to her to try keep an eye on the office and still do her work.

I asked her if anything was computerized and she said that the only time file information enters what passes for the court's computer network is when a judgment is typed. A lot happens before that occurs and if the rest of a court's administration is anything like default judgments (and I believe it is just as bad), the system is barely functioning.

To make matters worse, I have read that a degree of corruption has set in too. A Sandton attorney wrote to the attorneys' magazine, De Rebus, about this issue. It appeared in the current issue on page 9. In his letter the attorney said the following:

... Not only has the physical structure been deteriorating over the years (though something is being done about this at present), but the whole administrative system seems to falling into disrepair. If there is still a filing system, it is in a state of chaos. Corruption is apparently rife. I understand that the Registrar's staff regularly ask for, and expect, some form of reward for doing their job, whether it be in the form of a soft drink, 'Nandos', or even cash.

I understand that it is currently taking eight weeks for court orders to be typed. On a million rand judgment, at 15,5% interest, the interest that accrues simply because of a delay in typing of a judgment is over R25 000.

The letter goes on and is worth reading in its entirety. The result is an administrative process which is hampering what is an already expensive and time consuming litigation process. Fortunately I don't handle a lot of litigation anymore and I am seriously thinking about recommending more expensive, although usually more efficient, arbitration procedures for disputes than court proceedings.

In the meantime I have clients who need to take further steps and I left the court empty handed, again.