It’s been over two years since the enactment of the Protection of Personal Information Act, 2013 (POPIA), which makes provision for the establishment of a long awaited independent, informal, appeal mechanism with enforcement powers, in the form of an Information Regulator, to consider appeals under both the Promotion of Access to Information Act, 2000 (PAIA) and POPIA. But 8 months after the call for nominations for suitable persons to be appointed as members of the Information Regulator closed, and despite the Deputy Minister of Justice indicating in September last year that it was hoped that the Regulator would be set-up by this financial year, there are no members appointed and there is still no indication of when the office of the Information Regulator will be up and running.
A watchdog over PAIA compliance
Over the years, the South African Human Rights Commission (SAHRC), in terms of its broader constitutional mandate to promote the protection, development and attainment of human rights, received, and resolved, as far as its powers enabled, complaints about non-compliance with PAIA. Additionally, the SAHRC has certain statutory duties under PAIA, for instance, compiling and submitting to Parliament an annual report on the state of compliance with PAIA. The SAHRC has therefore over the years maintained a stand-alone PAIA Unit to perform the various PAIA related constitutional and legislative functions of the SAHRC, as well as certain additional duties, such as the organisation of a National Information Officers Forum (NIOF). POPIA however makes provision for the duties of the SAHRC, under PAIA, to be taken over by the Information Regulator.
PAIA CSN meets with the SAHRC
In a briefing meeting earlier this month with the PAIA Civil Society Network (PAIA CSN), the SAHRC shared what they know about the setting up of the office of the Information Regulator and provided an update on PAIA related developments within the SAHRC.
With respect to the setting up of the office of the Information Regulator, the SAHRC indicated that it has very little information about the various processes that are underway in respect of the establishment of the Information Regulator (or the progress thereof). It has however noted that National Treasury has set aside a budget for the Information Regulator for the next 3 financial years, commencing 2016/17. The Chairperson of the SAHRC has written to the Minister of Justice requesting information about time lines and other details in relation to the transfer of responsibility from the SAHRC to the Information Regulator, on which it is awaiting a response.
With respect to PAIA related developments within the SAHRC, the Commission noted that it has taken a strategic decision to dissolve its stand-alone PAIA unit as of the end of the 2015/16 financial year, absorbing staff from this unit into other operational units.
While legislative duties under PAIA remain with the SAHRC until the Information Regulator is properly set-up and functional, these duties will be carried out by the SAHRC’s other operational units. Additional duties undertaken in the past by the PAIA unit, including the organisation of the NIOF, will however fall away. The SAHRC therefore plans, with respect to its PAIA related work, to focus this financial year on compliance with mandatory duties and key stakeholder engagements related to the handover of its powers to the Information Regulator, this will include the development of a handover strategy.
A call for the fast-tracking of the setting up of the office of the Information Regulator
It is clear that the SAHRC is poised to hand over to the Information Regulator and there is no doubt that the Information Regulator has an important role to play. But aside from some recent movement toward the appointment of the five members of the Information Regulator, the setting up of this office still seems to be far off. It has been well over two years since the enactment of POPIA so the lack of progress is both disheartening and frustrating. We call on both Parliament and the Department of Justice take steps to expedite the setting up of the office of the Information Regulator, so that users of PAIA that see their access to information rights frustrated on a daily basis will have affordable, accessible redress.