07 May 2013
Model Law and PAIA: A Comparison
The Model Law on Access to Information for Africa was drafted to assist states to the African Charter on Human and People's Rights (African Charter) to fulfill their obligation to adopt legislative or other measures to give effect to the rights, duties and freedoms enshrined in the Charter. The Model Law was created to guide the development of access to information, which is a fundamental right stated in Article 9 of the African Charter.
Model Law, apart from being a guide to assist countries on enacting legislations, can also be used as a benchmark for all countries that have Access to Information (ATI) Laws. Hence we can compare if these laws meet the regional standard of the basic content of an ATI law.
It should be noted however that, though the Model Law is framed as a ready-made law which state members can easily adopt in its entirety, a State may change its content to suit the particular legislation and judicial culture of such a State.
In light of this, we will be evaluating the South Africa's Promotion of Access to Information Act (PAIA), which is the legislature governing ATI, with the standard set out in the Model Law. It is worthy to note that PAIA is a very detailed Act. This may be due largely to the fact that the Act was modeled after freedom of information legislations of Australia, Canada, Ireland, New Zealand and the U.S.
PAIA is at par with the standards laid down in the Model Law except in some instances where the provisions laid down in PAIA is more commendable than those laid down in the Model Law and vice-versa.
PAIA- more commendable than the model law
- The first thing that is very visible is that, though the model law in Sec. 3 states that information can be accessed from a public body and a private body to assist in the exercise or protection of any right, it didn't lay down any procedure on how to access information from a private body. The PAIA, however laid down procedures to access information from a public body in Part 2 of the Act and from a private body in Part 3.
- PAIA in Sec. 30 stipulates procedures to access health and other related records while no such provisions exist in the Model Law.
- Sec 29(5) & (6) of PAIA and Sec. 21(6) of Model Law both provide for the form of access to information for people with disability. PAIA however has a more detailed provision as it request that records should be made available in a form which is capable of being read, viewed or heard by the person with disability without any extra charge to the him/her.
- PAIA provides that requesters who have exhausted all internal appeals can seek redress at the Human Right Commission and/ or the law court while the Model Law only focuses on seeking redress from an oversight body once all internal appeals are exhausted.
Model Law- more commendable than PAIA
- Though both legislations provides for Proactive/ disclosure in Sec 7 of the Model Law and Sec 15 of PAIA, the proactive disclosure in the Model law is more detailed. It obligates public bodies to publish information including but not limited to information on; whether meetings of the body are open to the public, contents of decisions reached at meetings, process of decision making, the design and execution of any subsidy programmes implemented with public funds, amounts allocated and expended, the criteria for accessing the subsidy and beneficiaries, all contracts, licenses, permits, authorizations and public-private partnership granted by the public body, reports containing the results of surveys, studies or test including scientific or technical reports and environmental assessment reports.
- The Model Law in Sec. 15 provides for instances where a request to information necessary to safeguard the life and liberty of the requester must be responded to within 48.
- Request for access according to the Model Law can be either made orally or in writing as stated in Sec 13 however in PAIA request can only be made orally by an illiterate or a disabled person according to Sec. 18
Instances where both Laws differ due to their unique qualities
- The time frames stipulated by both Laws are different. PAIA in Sec 25 gives the Information officer 30days to respond to a request, while the Model law stipulates 21 days. Bearing in mind that PAIA was drafted to suit the particular circumstance of South Africa, one cannot criticize the time frame as being extensive.
- The Model Law created an oversight body in Part V to help enforce the provisions of the law. Though PAIA does not specifically create an oversight body it charged the Human Right Commission with all the duties and powers of an oversight body stated in the Model Law.
For more information on PAIA contact the Freedom of Information Programme.