Access to information

The importance of access to information

As South Africans, we live in a democratic society and we take access to information for granted. While we may sometimes experience frustration with government obfuscation, most people agree that we have the right to be informed and we have the means to access that information, such as our national media. Access to information refers to the ability of the general public to obtain, receive, and disseminate knowledge or data, particularly from government bodies, public institutions, or other sources of public interest. It encompasses the right to be informed as well as the right to seek and receive information freely, without restrictions or censorship. The “right to know” ensures transparency and enables the public to hold authorities to account by understanding how government operates and how public funds are spent. It supports the realisation of other rights, such as freedom of expression. 

The consequences of restricted access to information

Not all countries allow their citizens the access to information we enjoy. North Korea is probably the most extreme example, as North Koreans are unable to browse the internet or view foreign news sources. But other countries also monitor or censor internet access and block certain media outlets. Where censorship exists you usually find suppressed civil liberties and lack of political freedom. Human rights violations tend to be rife in these societies, and with no publicity abuses are not challenged or contained. Unsurprisingly, countries with restricted access to information tend not to thrive economically, as foreign investors are reluctant to invest, although there are exceptions. Governments restrict access to information for political control or to preserve cultural or religious beliefs.

Legal framework

Fortunately, South Africa is not one of those countries! We are seen as progressive in terms of transparency and information access. We have legal frameworks in place to protect our right to know, and we have a robust media, with some publications campaigning fervently and relentlessly for justice and truth. Journalists use the legal framework to uncover corruption, expose wrongdoing, and report on issues of public interest.

Our right of access to information held by the state and private bodies is guaranteed by Section 32 of the Constitution. To implement this right, the Promotion of Access to Information Act (PAIA) was introduced. While PAIA is the primary law governing access to information, Section 32 can still be invoked if PAIA does not cover the requested information.

PAIA outlines procedures for requesting information from public and private bodies, with different requirements for each.

• Public bodies: government departments, municipalities, and institutions performing public functions. When requesting information from public bodies, you don’t need to justify why you want it. The burden is on the public body to prove why access should be denied.
• Private bodies: individuals, partnerships, and companies. To access information from private bodies, you must show that the information is needed to protect or exercise a specific right.

Grounds for refusal

PAIA allows public and private bodies to refuse access to information under specific conditions, such as the protection of:

• Privacy of a third party (e.g., personal information)
• Commercial information (e.g., trade secrets)
• Information given in confidence
• National security or public safety
• Internal operations of public bodies

Public interest override

If the public interest in disclosing the information outweighs the harm caused, the request must be granted even if there is a valid reason to refuse it. For example, if disclosure would reveal serious misconduct or a threat to public safety, it must be released.

Other legislation

Various other laws, such as the Companies Act, Labour Relations Act, Higher Education Act, and National Water Act, provide for access to specific types of information. Each has its own rules and procedures for accessing records.

Seek professional legal advice

Access to information is a fundamental right in South Africa and is crucial for transparency and accountability. While PAIA is the primary law governing this right, other laws also provide mechanisms for accessing different types of information based on the specific context.

At Simon Dippenaar and Associates Inc., we will ensure your right of access to information is upheld. If you think you have been unjustifiably denied information you have requested, or you have any questions about PAIA, contact Simon today on 086 099 5146 or email sdippenaar@sdlaw.co.za. 

Further reading:

• Understanding the right to privacy
• Bribery and corruption in South Africa

SD Law

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