Proposed amendments to the Promotion of Access to Information Act (PAIA), designed to strengthen the Information Regulator’s enforcement powers, are set to be submitted to the Department of Justice and Constitutional Development for further processing in the 2024/25 financial year.
In its 2023/24 annual report, the Regulator confirmed that the amendments have been drafted and will undergo the necessary approval processes.
At a press briefing in September, Advocate Pansy Tlakula, chairperson of the Regulator, voiced concerns about the current provisions of PAIA, saying they are too lenient.
“We postulate that this may contribute to the laxness in the public bodies’ compliance with the law,” Tlakula said.
Read: Regulator pushes for stronger PAIA enforcement amid low compliance by public bodies
The annual report echoed these concerns, emphasising that PAIA, now 24 years old, needs updates to align its enforcement powers with those of the Protection of Personal Information Act (POPIA).
“The proposed amendments are intended to ensure that the enforcement powers in terms of PAIA are equivalent to those provided for in terms of POPIA,” the report noted.
Among the key amendments being considered is a proposal that will classify a compliance assessment report as an enforcement notice, creating a more robust mechanism to ensure compliance. Additionally, the Regulator is pushing for the authority to make regulations and issue directives independently, allowing for quicker adaptations in enforcement.
The amendments also include granting the Regulator the ability to impose administrative fines on entities that fail to comply with enforcement notices, as is the case in other countries.
In addition, the Regulator is seeking the authority to issue information notices for compliance assessments, making non-compliance with these notices an offence. This would be accompanied by powers to summon individuals or records during assessments and to conduct search-and-seizure operations where necessary.
Widespread non-compliance with section 32
South Africa’s access to information law is unique because it applies not only to information held by public bodies but also to information held by private bodies when that information is required to exercise or protect other rights.
Additionally, the law includes political parties, setting another international benchmark.
To ensure public bodies uphold the constitutional right to access information, the Regulator is empowered under section 32 of PAIA to receive annual reports from public bodies regarding the statistics on how each public body has processed requests for access to any information held by the body.
During the 2023/24 year, the Regulator conducted assessments on 108 public and private bodies, including government departments, universities, political parties, and JSE-listed companies.
The Regulator reported widespread non-compliance with the section 32 reporting requirements, describing it as “inexplicable”, given that the process is “very simple and not time-consuming”, taking just 10 minutes to complete.
At September’s press briefing, Tlakula raised a particular concern over political parties’ non-compliance, noting that these entities are not only lawmakers but also bear responsibility for transparency, particularly in the post-election period.
In her foreword to the annual report, Tlakula noted: “The Regulator has found that none of the political parties represented in Parliament were fully compliant with PAIA, a deeply concerning state of affairs. This underscores the urgent need for political parties to improve their compliance, ensuring transparency and accountability in the democratic process.”
None of the Technical and Vocational Education and Training (TVET) colleges complied with the section 32 reporting requirement in the year under review.
According to the report, the Regulator has been in contact with the Department of Higher Education and Training to offer support and capacity-building initiatives to TVET colleges.
“The Regulator is scheduling stakeholder engagement sessions with the college principals to alert them to their compliance obligations and offer the officials training workshops,” the report read.
Under section 83(3) of PAIA, the Information Regulator has the authority to ask the Office of the Public Protector (OPP) to provide information for its annual report to the National Assembly. This includes details about how many complaints were made to the Public Protector related to rights or duties under PAIA, as well as the nature and outcome of those complaints.
The Regulator highlighted in its report that the OPP had once again failed to submit its required annual report.
“As a result, the Regulator is unable to report to Parliament in this regard,” the report noted.
The report outlined the Regulator’s response to the situation, noting that a meeting had been arranged with the OPP to ensure it fulfils its obligation to comply.
“The Regulator confirmed that there was a need to amend PAIA, particularly with regard to granting the Regulator enforcement powers to deal with instances where public and private bodies do not comply, or cooperate, with the Regulator’s assessment process,” the report stated.
Currently, the Regulator does not have the power under PAIA to issue a subpoena or institute a process of search and seizure. Those processes are only provided during the conduction of an investigation but not an assessment.
Read the full annual report here.
Most political parties are politically non compliant ,never mind PAIA non compliant.