Quick Guide to Using PAIA
A Constitutional Right
Access to information is a fundamental right enshrined in our Constitution. The Promotion of Access to Information Act 2 of 2000 (PAIA) is a piece of legislation which gives effect to this Constitutional right and provides a procedure and set of rules which are supposed to make it easy and clear to everyone what information can be accessed and how it can be accessed.
In terms of PAIA, all state departments and private companies are required to publish a PAIA Manual. PAIA Manuals are very useful documents because they explain who you must submit your request for access to information to (i.e. who the “information officer” of the particular body is), and they provide the relevant contact details of that person.
The first thing which you should therefore do when looking for a particular record is to find the PAIA Manual for the relevant state or private body (this document should be on their website). We always recommend that you check the information in a PAIA Manual by phoning the particular body to confirm that the details are correct. If you cannot find a PAIA Manual for a particular body, then you should phone that body to find out who the correct person is to submit your request to. When dealing with public bodies, the information officer will generally be the Director General of that body, or the Head of Department or Municipal Manager (when dealing with a Municipality). There are, however, often junior officials within these departments who are responsible for various administrative aspects relating to PAIA requests, such as receiving payment, assigning reference numbers or referring the request to the right directorate. Submitting your requests to these officials (in addition to the designated information officer) is the fastest way to get your request on the right desk! When dealing with private bodies, the head of the private body is the information officer. With private bodies, it is often their legal department that will be responsible for administering the request, so it’s a good idea to first find out whether the private body has a legal department that you can speak to.
In the case where one needs to submit a PAIA request to either a public or private body, PAIA provides that any person can make a PAIA request to such a body requesting such access to information. Previously, there were different forms that were used for requests to public bodies and private bodies – now there is only one request form to be used for both. Sometimes the form will also be provided in the body’s PAIA Manual however it is also attached here Form 02 – Request for Access to Record (Regulation 7)
Usually there is a request fee that you will have to pay when you submit your PAIA request. The amount of this fee is usually stated in the body’s PAIA Manual. It is best to make this payment before submitting the request and to send the proof of payment along with the request form however payment may also be made once information officer has notified the requester that access to information has been granted. The new PAIA form also requires that you submit proof of identification with the request form.
By law, you are supposed to get a response to your request in a period of 30 days however the body can request or notify you of an extension once for maximum of another 30 days. The body must notify you of the information in format you asked and if they refuse your request, they must supply the reasons for refusal. There are instances where the bodies do not respond at all to the PAIA request and this is termed as a deemed refusal of the request and can be appealed.
It must be noted that certain records must be given to you by virtue of them being in the public interest however certain records cannot be given to you if they would be an unreasonable disclosure of personal information. Whether you can be granted access to certain records can be is decided by the Information Officer
Appeals are only for requests refused by public bodies of a certain category. There are two categories of public bodies, those that fall within the administration of the national, provincial, or local sphere of government; and those institutions and functionaries instituted in terms of law and exercising a public power or performing a duty in terms of legislation. You can only submit an internal appeal of a decision to refuse access to records to those public bodies that fall within administration of national, provincial and local sphere of government. However, where the appeal is against a public body that is an institution or functionary exercising a public power and performing a duty in terms of legislation or has been established by law (the Constitution or other legislation), then you can submit a complaint to the Information Regulator or go to court and submit a judicial review if you have been refused access to records.
The most common grounds of refusal are deemed refusal or commercially sensitive information contained in section 36 of PAIA. Where you believe that access to information you have requested has been unjustifiably refused, you can submit an internal appeal to the first category of public body stated above. This must be submitted within 60 days of refusal (or deemed refusal). This can be done by filling out Form 02 -Internal Appeal Form (Regulation 9) which is also available on Information Regulator’s website.
If your internal appeal is dismissed, you may then approach the information regulator or take the decision to court on judicial review. Similarly, if a public or private body has responded to your PAIA request in a way that you think does not comply with PAIA, or if they have not responded to your PAIA request at all, then you can submit a complaint to the Information Regulator via their Complaint Form on their website known as Form 05 (Regulation 10).
The Information Regulator
As of 31 June 2021, the Information Regulator has been established as the Regulatory body overseeing the PAIA objectives in terms of section 39 of the Act. Their mandate is to ensure the promotion and enhancement of the PAIA objectives, which are to give effect to that right of access to information in a manner which enables persons to obtain access to records of public and private bodies as swiftly and inexpensively as reasonably possible. For more information on the Information Regulator see their website here. The Information Regulator has also published a guide on PAIA which can be accessed here.
Automatically available documents
It may be the case that copies of the documents you require are automatically available to the public without requiring the submission of a PAIA request. Each state department’s PAIA Manual must contain a description of the records which are available without having to submit a PAIA request. The Department of Forestry, Fisheries and the Environment (DFFE) has, for example, committed to making a wide range of information automatically available, including copies of environmental authorisations, waste management licences, atmospheric emission licences, and Biodiversity Act permits. Similarly, the Department of Water and Sanitation has committed to making copies of water use licence applications, water use licences, and audit and compliance reports available to the public automatically
PAIA Request Form
Please complete Form 2 for requests to both public and private bodies:
- Form 02: Request for Access to Record (Regulation 7)
Other Promotion of Access to Information (PAIA) Forms
- Form 01: Request for a Guide from the Information Regulator [Regulation 2]
- Form 01: Request for a Copy of the Guide from an Information Officer [Regulation 3]
- Form 03: Outcome of request and of fees payable [Regulation 8]
- Form 04: Internal Appeal Form [Regulation 9]
- Form 05: Complaint Form [Regulation 10]
- Form 13: PAIA Request for Compliance Assessment Form [Regulation 14(1)]