PAIA Made Practical – A Guide to Access to Information Requests (Part 1)

PAIA Made Practical – A Guide to Access to Information Requests (Part 1)

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(Part 1 of 4: The Access to Information Request)

By Arno Roodt

Have you ever wondered where public interest organisations, journalists, and social activists get access to the crucial information necessary to uncover corruption, flaunt miscarriages of justice, or expose administrative wrongdoings?

Although it is certainly more entertaining to think of secret rendezvous with undercover informants, the most likely (and certainly more practical) answer is that they obtain access to this information through a request for access to information. 

The South African Constitution guarantees the right to access information.1 Specifically, Section 32 of the Constitution provides that:

32. (1) Everyone has the right of access to—
  1. (a) any information held by the state; and
  2. (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.

Accordingly, the Promotion of Access to Information Act 2 of 2000 (often referred to simply as PAIA), was enacted to give effect to this right. In doing so the Legislature made a stark departure from the previous legal position where the often secretive and unresponsive culture which was entrenched in both public and private bodies, resulted in instances of abuse of power and human rights violations.2

PAIA goes beyond merely acknowledging our right to of access to information but recognises the crucial role that access to information has on the integrity of our democratic dispensation. Pursuantly, PAIA aims to foster a culture of transparency and accountability, whilst actively promoting a society in which the people of South Africa have effective access to information to enable them to exercise and protect their rights more fully.3

Now, more than ever, the need for access to information is highlighted in our country’s never-ending battle against corruption, state capture, loadshedding, and inequality. Luckily for us, we have an effective tool to break open the casks of secrecy and corruption, and shine an exposing light on the truth – but how exactly do you use it? 

This article, in conjunction with part two to four will provide you with a step-by-step guide to using PAIA to obtain access to information held by both public and private bodies. 

The Access to Information Request 

Step 1: Preliminary questions – 

Before you start the process of lodging a PAIA application, there are some preliminary questions to consider in order to determine whether a PAIA application is the right tool for you. The preliminary questions are listed below:

  1. What type of institution do you want information from?

There are two types of institutions or “bodies” described by PAIA, each requiring a slightly different approach. The first institution is known as a public body. Section 1 of PAIA defines a Public Body as:

“(a) any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or 

(b) any other functionary or institution when— 

  • (i) exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or 
  • (ii) exercising a public power or performing a public function in terms of any legislation.

This essentially boils down to the idea that public bodies are any institution which is related to the state, such as National Departments, Government Agencies, Municipalities, and State-Owned Enterprises. 

The second institution described in PAIA is a private body – which is essentially any person or institution not falling under the definition of a public body. The process relating to private bodies will be discussed in Part 4.  

  1. What type of information do you require?

Although PAIA is a very effective tool to obtain information, it is not a catch-all solution to gain access to any type of information.  Section 2 of PAIA prescribes that it applies specifically to records held by public and private bodies. Thus, the information requested must relate to a record held by these bodies. PAIA defines a record as: 

any recorded information— 

(a) regardless of form or medium; 

(b) in the possession or under the control of that public or private body, respectively; and 

(c) whether or not it was created by that public or private body, respectively;

Thus, the information that is requested must already exist and be under the control of the body (whether directly, or via a contractor or official). A few good examples of such records are correspondence, minutes of meetings, expense reports, tender documents, or board resolutions.

Once you have answered the above questions, and you have determined that PAIA is the right tool for your situation, you can get started with the next step. 

Step 2: Drafting the application – 

When drafting the application for access to information one must first consult the specific body’s PAIA manual to determine whether they require a unique application form or specific procedural steps4. Generally the Information Regulator Form 2 can be used. You can access this form here.

You must fill in the relevant application form, however, you can also add a cover letter to the application to further elaborate on any of the points discussed below. In either case, you must follow the steps as set out below: 

  1. Fill in the relevant Information Officer’s details: Title, Name, Surname, Address, Email Address, and Fax. 
  2. Fill in your personal information.
  3. If you are making an application on behalf of an organisation, or someone else, fill in their information. 
  4. Describe the records that you are requesting, be as specific as possible. 
  5. Provide a reference number (if possible). 
  6. Specify in what form the record is e.g. Written record, photos or images, voice recordings etc. 
  7. Specify in which form you wish to receive the record e.g. Written record, photos or images, voice recordings etc. 
  8. Specify the manner in which you wish to receive the record e.g. Through email, post, or personal inspection.
  9. Specify the preferred language that you would like to receive the record in. 
  10. Provide an overview of the rights you wish to exercise and/or protect by accessing the requested Information. As a general rule, you can state the following: 
    “By sending this request for access to information I rely on my right to access to information. I further rely on my right to just administrative action, equality, and human dignity. Moreover, I rely on my rights to transparency and accountability by public bodies such as the (insert relevant body). I further submit that providing the requested information is in the public interest.”
  11. Explain why the requested information would aid in the exercise and protection of the above-mentioned rights. This would be dependent on your unique circumstances. 
  12. You may have to pay a fee in relation to your request. However, you may be exempted if: 
    • the information requested relates to your personal information;
    • You earn less than R14 712 per year (if unmarried) or R27 192 (if married). 
  13. Finaly, sign, and date the application in the space provided. If you are submitting the application on behalf of someone else, they must also sign in the space provided.  

Step 3: Submitting the application – 

Now that you have finalised the application for access to information, you must submit it to the Information Officer of the relevant body. As a general rule, sending an email to the Information Officer (at the email address listed in their PAIA manual) would be sufficient. However, it would be diligent to serve the application by hand as well, as emails to public bodies often go unanswered. If you are serving the application by hand, ensure that you bring two copies along, and that your copy is dated and stamped on the front page to prove service on the body.  

When drafting an email to the Information Officer, the following would be sufficient:

RE: PAIA APPLICATION: (YOUR NAME)//(BODY’S NAME)

To whom it may concern, 

Kindly find an application for access to information in terms of PAIA attached hereto for the attention of the Information Officer. 

Please take note as per the prescribed timelines, I expectantly await your response by not later than 30 (thirty) days from the date of receipt hereof. 

Kindly confirm receipt of this message and the attached application. 

Kind regards,

… 

Step 4: Waiting for the response – 

Once you have submitted the application the relevant body may take up to 30 days to respond to your request. 

The body is likely to respond in one of three ways: 

    1. They will grant your request and arrange delivery of the requested records. 
    2. They may refuse your request. 
    3. They may request an extension of up to 30 additional days to make a decision. 

Should the body refuse your request you are entitled to lodge an internal appeal against their decision. This process will be discussed further in Part 2. 

Equally so, should the body not provide you with an answer after the lapse of 30 days since the submission of your claim, your application shall be deemed to have been refused5. You are also entitled to lodge an internal appeal against a deemed refusal. 

This guide should assist you in submitting your own request for access to information. However, since this is merely a practical guide and does not constitute legal advice, your unique circumstances may require further assistance or expert guidance. Kindly contact our offices to arrange a consultation.  

Look out for the rest of the series:

  • PAIA Made Practical – A Guide to Access to Information Requests 
    (Part 2 of 4: The Internal Appeal)
  • PAIA Made Practical – A Guide to Access to Information Requests 
    (Part 3 of 4: The Information Regulator Complaint)
  • PAIA Made Practical – A Guide to Access to Information Requests 
    (Part 4 of 4: Private Bodies)

1The Constitution of South Africa of 1996.
2Preamble of the Promotion of Access to Information Act 2 of 2000.
3Preamble of the Promotion of Access to Information Act 2 of 2000.
4For instance, the South African Police Service requires that the SAPS512n form be used when requesting access to information. You can access this form here.
5Section 27 of the Promotion of Access to Information Act 2 of 2000.