Access to Public Information
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The South African Supreme Court of Appeal set aside the decision of the South African Reserve Bank (SARB) to refuse a request for information related to individuals suspected of apartheid-era economic crime. After receiving the request, the SARB did not attempt to notify the individuals concerned and simply stated that as the information sought contained personal information of third parties it would not disclose the information. The Court held that, as the legislative framework requires the public body to take reasonable steps to notify any third party of requests concerning their information before making any decision whether or not to disclose the information and, as the SARB had not done so, the SARB was not empowered to refuse the request. The Court added that a public body must provide evidence for why a request is refused; it cannot merely cite the need to protect personal information of third parties.
On August 1, 2014 the South African History Archive (SAHA) – a non-governmental organization – filed a request with the South African Reserve Bank (SARB) under the Promotion of Access to Information Act, 2 of 2000 (PAIA). The PAIA request sought access to information related to various tax records of eight named individuals suspected of apartheid-era economic crime.
The SARB examined their records and found that there were no records related to five of the individuals mentioned by SAHA in their request, but that they did have information related to three individuals: Robert Hill, Vito Palazzolo and Brigadier Blaauw. The records related to investigations undertaken by the SARB: one investigation related to Palazzolo and resulted in one lever-arch file; another related to Blaauw and resulted in two standard and one small lever-arch files; and the last related to Hill and resulted in 43 archive boxes (each containing about five lever-arch files [para. 36]. Brigadier Blauuw had died and the SARB believed – incorrectly – that Hill was also deceased and that Palazzolo was in jail in Italy. As a result, the SARB did not notify Hill or Palazzolo of SAHA’s request, and neither of them made representations to the SARB about SAHA’s request.
The SARB refused SAHA’s request for the information, simply stating that the information sought by SAHA included personal information relating to third parties without providing any further details for the refusal.
PAIA sets out the process for a public body to follow when it receives a request for information which includes information related to a third party. First, there are a number of exceptions to the requirement that information be disclosed, and a number of these provisions relate to information about third parties. Section 34 requires that the information officer refuse a request if the disclosure “would involve the unreasonable disclosure of personal information about a third party”. Section 35 relates to the South African Revenue Service and requires requests be refused if the record “contains information which was obtained or is held by that Service for the purposes of enforcing legislation concerning the collection of revenue”. Section 36 requires refusal of disclosure of commercial and trade secrets. Section 37 obliges the information officer to refuse a request if the disclosure would amount to a breach of confidence and its disclosure could “reasonably be expected” to jeopardize similar supplies of information in the future when that sharing of information is in the public interest. Section 42 permits refusal if it would jeopardize the “economic interests or financial welfare” of the country. Section 43 addresses the requirement to refuse a request if the record contains information about research being carried out by a third party or a public body (or any person on their behalf) and disclosure would likely create a serious disadvantage to the third party, the person carrying out the research or the subject matter of the research.
Second, if an information officer (the official responsible for responding to PAIA requests) receives a request for information which may implicate a third party in terms of sections 34, 35, 36 or 37, section 47 requires that the officer take “all reasonable steps to inform a third party to whom or to which the record relates of the request”. In terms of section 48, the third party is entitled to either consent to the disclosure of the information or to make representations in support of a refusal of the request – whether they were notified of the request from the information officer or learnt about the PAIA request another way.
Third, section 49 addresses the responsibility of the information officer to take a decision whether or not to grant the request for access to information that relates to a third party. If the third party consents to the disclosure then the information officer must grant the request. If the third party made representations, the information officer is obliged to consider those representations and then decide whether or not to grant the request. If the decision is to disclose the information sought, the third party must be given an opportunity to appeal the decision. If reasonable steps have been taken to notify any implicated third party but the attempts were unsuccessful, the information officer is still obliged to make a decision on the request but must take into account that the third parties did not have the opportunity to make representations.
After the SARB informed SAHA that their request for access to the records had been refused, SAHA approached the Johannesburg High Court. SAHA sought an order declaring that refusal was unlawful and contrary to PAIA and the Constitution, setting aside the refusal and directing the SARB to provide the records of the three individuals that were in their possession. The High Court dismissed SAHA’s application and issued a costs order against the organization.
SAHA then appealed the decision to the Supreme Court of Appeal.
Acting Judge of Appeal Gorvern delivered the unanimous decision of the five-judge bench. The central issue before the Court was whether the SARB was entitled to refuse SAHA’s request for information related to Palazzolo, Hill and Blaauw.
The SARB maintained that it was obligated to refuse SAHA’s request because the records to which SAHA wanted access contained information about third parties. In particular, the SARB submitted that sections 34, 36 and 37 of PAIA applied to the SAHA request. The SARB had also relied on section 45(b) which permits a refusal if “the work involved in processing the request would substantially and unreasonably divert the resources of the public body”. The SARB had stated that an expert would be needed to evaluate the records relating to Hill and that this would take 131 days.
The Court discussed in detail the nature and purpose of PAIA. It emphasized that the legislation was enacted to give effect to section 32 of the Constitution which states that “everyone has the right of access to … any information held by the state” [para. 6]. With reference to the South African Constitutional Court case, President of the RSA v. M&G Media Ltd. 2012 (2) SA 50 (CC), the Court added that because this right promotes transparency, “[t]he default position is that access to records must be granted” unless the exceptions set out in PAIA apply [para. 6]. The Court noted that a refusal to provide information sought under PAIA is a limit to the right of access to information, and so it must be justified.
The Court recognized that public records may contain information about third parties but emphasized that this is why section 47 requires that, once a request for those records has been made, the third party is notified and given an opportunity to respond to the request. The Court noted that PAIA stipulates that even if a third party has not been informed by the information officer that there is a request that relates to them, that third party can make representations if they learn of the request in another manner. Accordingly, the Court stressed that “PAIA is thus astute to afford third parties the right to audi alteram partem [‘to hear both sides’] at every point of the process” [para. 13]. However, the Court noted that PAIA recognizes that in some instances “it may well not be possible to inform all third parties, despite taking reasonable steps to do so” but that a decision must still be taken in that case [para. 19]. It described that as “the one exception to the requirements in PAIA which provide for audi alteram partem” and noted that this exception “must be narrowly construed” [para. 19]. The Court stressed that the exception will only apply if it has not been reasonably possible to notify the third party. However, the Court noted that the information officer is required only to consider the third party’s representations and that there is no veto power given to third parties to refuse the request.
Throughout their discussion of the notification regime in PAIA the Court stressed that an information officer can only take a decision on a request for information that implicates a third party – in terms of section 49 – once that officer has complied with the notification requirements under section 47. The Court noted that as neither Palazzolo nor Hill were informed of the request, the Court’s question was whether the SARB had taken all reasonable steps to inform both Palazzolo and Hill. If the SARB did not take those steps, its decision to refuse SAHA’s request would have been “ultra vires PAIA” [para. 21].
The Court criticized the SARB, noting that, on their version, the Bank had not taken any steps at all to notify the individuals concerned: the SARB made its decision on the basis that it would be unreasonable to expect it to notify the two men on an “impression” that Hill had died and Palazzolo was in prison [para. 22]. The Court stated “[b]y no stretch of the imagination can it be said that, without evidence of any steps taken at all, all reasonable steps were taken to inform them” and held that the SARB had simply not complied with section 47 [para. 22]. The Court pointed out that the SARB was, however, easily able to contact Palazzolo and Hill and serve them with notice of the legal action initiated by SAHA and described this conduct as a “cynical disregard of its obligations” [para. 26].
Accordingly, the Court held that, as it was clear that the SARB had not taken all reasonable steps to inform the individuals concerned, the SARB simply was not empowered to make a decision under section 49 to refuse SAHA’s request. The Court stated that the High Court should have reviewed and set aside the decision by the SARB and should have ordered that the SARB notify all the relevant individuals.
Notwithstanding that the Court held that the SARB was not empowered to make a decision whether or not to grant SAHA’s request, the Court did examine the SARB’s arguments on why they refused SAHA’s request on the merits. The Court rejected the SARB’s explanation that the request had been refused in terms of section 34 because the records sought contained personal information and highlighted that it is not all personal information that can be excluded from disclosure but that the exclusion in PAIA only prohibits disclosure if that would be unreasonable. It noted that if an information officer believes that disclosure of personal information would be unreasonable they must assert that, and then provide facts explaining why. The Court held that the SARB had done neither, and so held that the decision to refuse SAHA’s request was reviewable [para. 37].
The Court also rejected the SARB’s argument that it had refused the request for information related to Blaauw in terms of section 36 because the information contained commercial information. It described the SARB’s assertion that it was unreasonable to expect it to trace the company of which Blaauw was a director as an “astonishing averment when officials records which can easily be accessed contain that information” [para. 38]. Accordingly, the Court held that the records related to Blaauw did not fall within the ambit of PAIA’s exclusions and that the SARB’s decision to refuse access was reviewable.
In assessing section 37 of PAIA – the provision exempting the disclosure of information which may prejudice future sharing of information with the public body – the Court noted that it does create a discretionary (rather than mandatory) refusal. But the Court stressed that this discretion must be exercised on the basis of facts: that the record held by the public body was in fact shared in confidence; that the disclosure of the record “could reasonably be expected to prejudice the future supply of similar information or information from the same source”; and that it is “in the public interest that such information, or information from the same source, should continue to be supplied” [para. 40]. The Court examined whether these conditions had been met in the present case. As the SARB had only said it was “likely” that the information had been shared in confidence and that it had provided no evidence for this assertion, the Court held that “its refusal simply arose from speculation without enjoying any factual basis” [para. 41]. The Court noted that the SARB had not asserted that a disclosure of this information could threaten future sharing of information and that future sharing would be in the public interest and had provided no evidence of this or of the public interest in ensuring that similar information should continue to be shared. Accordingly, the Court held that the SARB could not rely on section 37(1)(b).
In evaluating the SARB’s alternative argument that their refusal was permitted by section 42(1), the Court again pointed out that the SARB had simply not made any assertion that a disclosure would jeopardize the financial welfare of the country nor had it provided any evidence for such a situation.
The Court examined the SARB’s argument that section 46 also empowered it to refuse SAHA’s request. The Court noted that this provision is referred to as “the public interest override”. Section 46 states that an information officer must grant a request if “(a) the disclosure of the record would reveal evidence of – (i) a substantial contravention of, or failure to comply with, the law; or (ii) an imminent and serious public safety or environmental risk; and (b) the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question”. The Court noted that because sections 34(1), 36(1)(b), 37(1), 42(1) and 45(b) did not apply then section 46 does not apply.
The Court set aside the decision to refuse access to the records and declared it unlawful and inconsistent with PAIA. It ordered the SARB to provide SAHA with access to the records related to Blaauw and to notify Palazzolo and Hill of SAHA’s request.
The Court ordered that the SARB pay the costs of the appeal, and described the SARB’s response as “border[ing] on the obstructive and is certainly not in keeping with the purpose of PAIA in its outworking of the provisions of the Constitution to promote openness and transparency” [para. 48]. The Court noted SAHA’s characterization of the SARB’s conduct as being “redolent of the dark days of apartheid, where secrecy was routinely weaponised against a defenceless population” [para. 48].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In confirming that the legislation requires a public body to take reasonable steps to inform a third party about information sought concerning them and that a public body cannot merely refuse a request for information because it includes information about a third party, the Supreme Court of Appeal strengthened the principle that access to information is the default position in South African law. The Court recognized that there is a right for third parties to make representations before a decision is taken to disclose information about them but stressed that a third party does not have a veto power to prevent a public body from releasing information.
This judgment also overturned the costs order the High Court had imposed on SAHA which had threatened to create a chilling effect on the ability of non-governmental organizations to approach courts to vindicate constitutional rights.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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