Welcome to National Campaign for People's Right to Information (NCPRI), India

The Right of Access to Information is a Constitutionally guaranteed right in South Africa. This right is provided on information held by both the government and private parties. The South African government has legislated the Promotion of Access to Information Act. The legislation is a substantial one and aims to provide a comprehensive coverage of the procedural and substantial aspects of the Constitutional right. The Act overrides any other law not consistent with its objectives and provisions.

The objectives of the Act include promotion of culture of human rights culture and social justice; provision of an expeditious mechanism to functionalism the Act; impart accountability and good governance and to enable participation of the public in decision making by public bodies that affects their rights.

The Act contains two separate parts, each dealing with the right of access to records of public bodies and private bodies respectively. “Record” has been defined in very wide terms and means any recorded information regardless of form or medium but in the possession or under the control of the public or private body. It does not matter if the record was made by that body or not. Public and private bodies are also defined in wide terms.

It is the responsibility of the information officer of a pubic body to accept the request and process it. For a private body, the duty lies with the head of the body. A request for information to a private body has to be for a record required for the exercise or protection of any right. The information officer has a duty to assist the requestor in making a request, but no such duty exists for the head of a private body.

Prescribed fees has to be paid before the request can be processed by the information officer or the head of the private body. The requestor also has to pay reasonable access fees after the request has been granted for reproduction, search and preparation for any time in excess of the prescribed hours to search and prepare. The power to exempt any person from payment of fees, to stipulate a ceiling for the prescribed fees, the manner of calculating the fees, etc., lies with the Minister administering the Act.

Notice of the decision on the request has to be provided within thirty (30) days of the day of the request. This limit is extendable under certain circumstances. There is no provision to provide for an urgent access to information related to cases of life and liberty. Presently, the time limit for compliance with a request has been extended as a transitional measure. For the first year from the commencement of the Act it is ninety (90) days and for the second year it is sixty (60) days.

The exemptions are contained separately in the two part of the Act as mentioned before. But for simplicity the exemptions can be put in two groups;- one set being applicable to both public and private bodies and the other applicable to public bodies only. The first category includes, trade or commercial information about third parties; safety of life and physical well being of an individual; information release of which would constitute breach of confidence, violation of legal privilege etc.

The second category includes standard exemptions related to the information about the state’s activities like security, defense, international relationships, economic interest of the state, records of deliberations prior to policy formulation etc. Certain information held by the Revenue Service and information made inaccessible under the Criminal Procedure Act are exempted. Additionally, there are exclusionary provisions which have the effect of rendering information inaccessible. The Act does not apply to the records required for criminal or civil proceedings after commencement of proceedings; nor does it apply to records of Cabinet and its committees or the judicial function of a court or Special Tribunal.

Notwithstanding the exemptions, there is a mandatory duty on person responsible to grant request where the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of information clearly outweighs the harm contemplated in the provision in question.

Appeal procedures are different for decisions of the information officer of a public body and decisions of the head of the private body. From decisions of the information officer internal appeal lies to the relevant authority (defined in the Act), who is a part of the executive. An aggrieved third party also has the right to internal appeal. Appeal from the internal appeal lies to the courts. In case of an appeal from decision of the head of a private body, the appeal lies straight to the courts. The burden of proof lies with the public body or private body which refuses a request or which decides as to the extension of time limit, fees, form of access etc.

In keeping with the objective of furthering the culture of human rights and social justice, a role provided for the Human Rights Commission in the Act. Duties of the HRC include making of a guide about the use of the Act, submit reports to the National Assembly, promote understanding amongst the public etc. HRC can monitor the working of the Act and recommend amendments to develop and improve the Act. Training of information officers is also included within the mandate of the HRC in the Act.

Protection is provided to anyone acting in good faith in the exercise or performance of any power or duty from any civil and criminal liability. The Act also makes it a penal offence (punishable with imprisonment) to deny the right of access intentionally by destroying, damaging, altering, concealing or falsifying records. Interestingly different provisions of this Act can come into effect from different dates by proclamation.