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South Africa: Information Regulator issues PAIA compliance notices

13 October 2023
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Overview

  • A number of information officers and deputy information officers have recently received a ‘compliance notice’ from the Information Regulator of South Africa (Regulator), in terms of section 83(3)(d) of the Promotion of Access to Information Act (PAIA).
  • This article outlines the reason for the notice and explains whether private and public bodies are legally required to comply with its contents.

On 6 October 2023, the Information Regulator of South Africa (Regulator) circulated a ‘compliance notice’ in terms of section 83(3)(d) of the Promotion of Access to Information Act 2 of 2000 (PAIA).

We are aware of a number of organisations who have received such a notice, which is addressed generally to ‘Directors General of National Departments’, ‘Directors General of Provincial Governments’, ‘Heads of Provincial Governments’, ‘Municipal Managers’ and ‘Deputy Information Officers’.  It is not clear why the notice was not also addressed to information officers (as not all private bodies have deputy information officers).

What does the notice provide?

In terms of the notice, public and private bodies are requested to upload certain prescribed forms onto their websites, within 14 days of receipt or publication of the notice. These forms, which are available on the Regulator’s website, are the Request for Access to Record (form 2), which must be used by a requester when requesting access to a record of a private or public body, and the Outcome of Request and of Fees Payable (form 3), which is the form used by the public or private body to communicate its decision regarding the access request and the prescribed fees payable if the request is granted. Public bodies are also required to upload an additional form, being the Internal Appeal Form (form 4).

These forms are prescribed in terms of the Regulations Relating to the Promotion of Access to Information, 2021 (PAIA Regulations) and replace the older versions of the forms which were annexed to the previous regulations. From the notice, it appears that the Regulator is concerned that some private and public bodies still have the old forms on their websites and this practice ‘is hampering the right of access to information’.

Must private and public bodies comply with the notice?

The Regulator has issued the notice in terms of section 83(3)(d) of PAIA. In terms of this provision, the Regulator may recommend to a public or private body that the body make such changes in the manner in which it administers PAIA as the Regulator considers advisable.

We point out that failure to implement a recommendation made by the Regulator in terms of this section is not an offence under PAIA and no penalties are stipulated for non-compliance in this regard. That being said, these recommendations are intended to ensure compliance by public and private bodies with the Act and in our view, compliance would be advisable.

With respect to the particular recommendations in this notice, implementing the recommendations would assist in facilitating requests for access to records and would find favour with the Regulator if it were to conduct an assessment of a body’s general compliance with the provisions of PAIA in terms of section 77H.