The new PAIA Regulations were published in the Government Gazette on 27 August 2021.
Because of the interaction between PAIA and POPIA, the PAIA Regulations needed to be amended to bring it in line with POPIA. Now the new Regulations creates new obligations for both private and public bodies, as well as additional obligations and offences for the Information Officer.
What you should know:
- The Information Regulator must make a guide available in each of the official languages. In the past such a guide was made available by the Human Rights Commission. Now the responsibility for the management and administration of PAIA lies with the Information Regulator, and it is required to develop a new guide, which is in line with POPIA and will advise private and public bodies, as well as individuals, on how to make use of PAIA, detailing the processes and prescribed forms that is required as part of the PAIA prescribed processes. This guide will be published in the Government Gazette and be available on request from the Information Regulator, as well as on their webpage. The guide may be requested from the Information Regulator by making use of a prescribed form. All the prescribed forms included in the new Regulations is also available on the webpage of the Information Regulator. This guide has not yet been published.
- Every Information Officer must have a copy of the guide, in at least two of the official languages, at his or her registered head office, for public inspection during normal office hours. The Information Officer must make this guide available upon the written request of any person, in the language as requested, without charging a fee. The request must be done on a prescribed form, as per the Regulations. Therefore, once the Information Regulator published the new guide, every Information Officer must be sure to obtain the guide and make it available as prescribed.
- Provision is made for the voluntary availability and disclosure of certain information by both public and private bodies. The Information Officer of a public body MUST, and the Head of a private body MAY compile and keep a description of the categories of records that are voluntary disclosed or automatically available without a requester having to request access thereto. Relating to private bodies, the Regulations stipulate that IF a description of such automatically available information is compiled and kept, it must be updated regularly and made available to the Information Regulator, be displayed on the website of the private body and be available for inspection at the registered offices of a private body during normal working hours.
- A request for Access to Information in terms of PAIA must be made on a form which corresponds substantially with Form 2 in Annexure A of the Regulations. This is a new form which replaces the previous Form C in the old PAIA Regulations. The request must be addressed to the Information Officer and he or she has to consider the request and either provide the information as requested or if the request is denied, advise the reasons therefor.
- When a request is approved, the information requested will be made available at a fee, as prescribed in the Regulations. It is very important to know exactly what these prescribed fees are and when and how the fees may be charged by the Information Officer, as a new offence is created in the Regulations, stating that an information officer who wilfully or in a grossly negligent manner charges a fee other than the fee prescribed in terms of the Regulations, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.
The Information Regulator must still develop and publish the relevant guides, in the various official languages. Once it has done so, you (the Information Officer) must ensure that you obtain the guides and have it available as prescribed.
We recommend that you stay up to date with developments by visiting the website of the Information Regulator on a regular basis.
As detailed in one of our previous articles, we advised that the exemption for certain entities / businesses from the requirement to have a PAIA Manual, will lapse end of December this year. As of January 2022, all businesses will be required to have a PAIA Manual available, which makes adequate provision for both PAIA and POPIA. POPIA and PAIA are interconnected and various responsibilities flow from this legislation, which is not to be ignored due to the various offences and penalties created by both Acts.
If you have not yet taken the necessary steps to implement POPIA in your business, we would advise you to do so. Should you require assistance or have any queries pertaining to PAIA and / or POPIA, please contact Adv Lorraine Oosthuysen on email@example.com.