Important changes to PAIA – the Promotion of Access to Information Act

Whilst a lot has been said about POPIA, its older but lesser known cousin, the Promotion of Access to Information Act (PAIA) has quietly entered the stage, left, almost as a postscript to the latest changes to POPIA requirements.

One could be forgiven for asking why two apparently conflicting Acts are now in the same stable. One promoting access to information, including that of a personal kind, and the other protecting personal information.

Alan Holton, a legal and compliance practitioner, explains the anomaly, and why you should not disregard the importance of PAIA which appears to finally becoming a reality after numerous postponements.

Loud warnings and headlines jump off many online news items, telling all and sundry that 1 July 2021 is when the Protection of Personal Information Act, 2013 (POPIA) comes into effect.

Little has been said about the requirements of the Promotion of Access to Information Act, 2002 (PAIA). In this regard, it seems that there may be some confusion about the specific requirements of these two statutes.

Readers who are concerned about POPIA compliance are encouraged to take advantage of the Moonstone Compliance and Risk Management DIY POPIA kit so as best to ensure compliance with their regullatory obligations.

PAIA no longer in the SKYA

The PAIA requirements are distinct from the POPIA requirements and must be dealt with seperately. The requirements of this statute also become effective on 1 July 2021.

S 51 of PAIA makes it compulsory for the head of every private body to compile and make available a manual that must comply with the requirements of S 51. This section has been significantly amended by POPIA and the required manual must, as from 30 June 2021, contain additional information relating to the processsing of personal information by the private body.

A private body is defined as, inter alia:

• a natural person who carries or has carried on any trade, business or profession, but only in such capacity;
• a partnership which carries or has carried on any trade, business or profession;
• any former or existing juristic person

The PAIA was promulgated in 2002 and, since that date, most private bodies have, by virtue of several consecutive exemptions, been exempted from having to compile and make available a manual. That last of these exemptions was issued on 18 December 2020 and allowed private bodies an exemption up to an including 30 June 2021.

The question now is whether or not a further exemption will be granted.

In this regard, two factors must be taken into account.

• Prior to the amendment of S 51, every private body was required to lodge a copy of their PAIA manual with the SA Human Rights Council, thus involving a state-appointed entity as party to the process. The amended S 51(3) now simply requires every private body to make the manual available on its website, if any, and at the principal place of business during normal business hours. No copy need be provided to any external body or organisation.
• Due to this significant simplification of the process and due too, to the fact that POPIA will also become effective on 30 June 2021, it is anticipated that the compilation and the making available of the manual will not be postponed and every private body will now be required to comply with the requirements of s 51.

Previously, the Minister of Justice has always extended the exemption, current at the time, at least several days or even weeks before the exemption expired. It is now the end of June 2021, just days away from the expiry of the current exemption and nothing further has been intimated.

If you require more information, or require assistance on the process of compiling a PAIA compliant manual, you can visit the Access to Info website. The author has been compiling manuals since 2011 and has updated the entire process in compliance with S 51 of PAIA.