South Africa: SCA Takes Firm Approach To PAIA Request Refusals By Public Bodies

A recent South African Supreme Court of Appeal ("SCA") judgment is a reminder to public bodies to diligently apply themselves when considering Promotion of Access to Information Act, 2000 ("PAIA") requests and that they bear the onus of proving that these fall within one of the recognised grounds set out in PAIA for a refusal.

Background

In The South African History Archive Trust ("SAHAT") v The South African Reserve Bank ("SARB") and Another, SAHAT requested access to records in terms of PAIA pertaining to evidence obtained by SARB as part of its investigations into "any substantial contravention of, or failure to comply with, the law in terms of significant fraud... gold smuggling or smuggling of other precious metals from 1 January 1982 to 1 January 1995" in relation to a number of persons, including Brigadier Johan Blaauw (believed to be dead), Mr Robert Hill and Mr Vito Palazzolo.

The SARB responded to the request by stating that no records could be found for the bulk of the individuals, and refused the request in relation to Mr Blaauw, Mr Hill and Mr Palazzolo. Following the refusal, SAHAT launched an application in the Johannesburg High Court, seeking an order that the refusal was unlawful and in conflict with the provisions of PAIA and the Constitution and requested that the refusal be reviewed and set aside. The application was dismissed with costs in the High Court and SAHAT was subsequently granted leave to appeal to the SCA. The SARB opposed the appeal on, amongst others, the contention that its refusal to provide the records was justified.

Section 47 of PAIA triggered

The default position under PAIA is that access to records of public bodies must be granted unless one or more grounds of refusal in terms of chapter four are present. Sections 47 and 49 of PAIA make provision for requests that encompass third party information to give the affected third parties a right to be heard, thereby upholding the audi alteram partem rule. The SARB relied on sections 34(1), 36(1) and 37(1) of PAIA, which triggered the provisions of section 47, on the basis that the records concerned might contain:

• personal information whose disclosure would be unreasonable; or
• commercial information whose disclosure may cause harm; or
• information supplied in confidence, which might breach an agreed confidence or could prejudice the supply of similar information or information from the same source, where the public interest requires similar information or information from the same source to be supplied in the future.

Rights of the third party

Section 47 of PAIA requires the information officer ("IO") to take all reasonable steps to inform a third party, to which the record relates, of the request. The third party has election to make representations supporting the refusal or to provide their consent in writing. Where a third party provides their consent, the IO has no discretion to refuse the request.

Where access is granted despite representations to the contrary, the third party has a right to be notified of the outcome and of their right to an internal appeal, failing which they may approach a court in terms of section 78(3). In addition, if a third party is not notified of the request by the IO, they may nevertheless make representations or provide consent if they become aware of the request.

A decision in terms of section 49 of PAIA requires that the third party has been informed as required or that the third party, despite not being informed, has made representations. Where a third party has not been informed and if no representations have been received, the provisions of section 49(1) do not apply and the IO is not empowered to make any decision in terms of section 49. Where it is not possible, despite taking all reasonable steps, to inform a third party of the request, the IO may make a decision without the third party having made representations.

Mr Palazzolo and Mr Hill

It was common cause that neither Mr Palazzolo nor Mr Hill were informed of the request and did not make any representations. Therefore, the issue for the SCA to determine was whether the SARB took all reasonable steps to inform them. If the SARB did not, the refusal was an ultra vires decision. The SARB did not inform Mr Palazzolo and Mr Hill on the basis that it believed that both Mr Hill and Mr Blaauw were deceased and that Mr Palazzolo was incarcerated in Italy. The SARB was therefore under the impression that it was unreasonable for it to be expected to notify the individuals of the request and took no further steps.

The SCA held that the SARB had not taken all reasonable steps to notify the individuals and had acted ultra vires when refusing access to the record relating to Mr Palazzolo and Mr Hill. The SCA accordingly held that such refusal ought to be reviewed and set aside.

Mr Blaauw

In relation to Mr Blaauw, the SARB alleged that the records regarding the company, of which he was a director, comprised commercial information in terms of section 36(1)(b). The SCA held that the SARB had not placed any facts before the court to substantiate their contention that disclosure would result in commercial or financial harm. In addition, the SCA found that the SARB had failed to lead any or sufficient evidence in support of the grounds upon which it based its refusal of the records relating to all individuals.

The SCA ultimately ordered that the records concerning the late Mr Blaauw must be provided and that the refusals relating to Mr Palazzolo and Mr Hill were unlawful and in conflict with PAIA. Consequently, the refusals were reviewed and set aside.

In determining costs, the SCA admonished the SARB for its "blanket refusal" and said that this "bordered on the obstructive and is certainly not in keeping with the purpose of PAIA" or "the provisions of the Constitution to promote openness and transparency" and was reminiscent of "the dark days of apartheid, where secrecy was routinely weaponised against a defenceless population".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.