11 September 2012

Protection of Personal Information Bill to strengthen the right to information but cripple the archival sector

The National Assembly passed the Protection of Personal Information Bill on 11 September 2012. Widely heralded as an important step forward by politicians on both sides of the political divide, the bill represents a mixed bag for SAHA; it introduces positive changes to the Promotion of Access to Information Act (PAIA) which SAHA has been advocating for a number of years, while at the same time introducing requirements in respect of personal information that have enormous implications for the collection, processing and access of archive materials.

First tabled in parliament in 2009, the bill was referred to the Portfolio Committee on Justice and Constitutional Development, who extensively debated the bill through numerous iterations, before unanimously voting in favour of the bill on 5 September.

The bill was quickly slipped onto the agenda for the National Assembly and passed the house after minimal debate, with only members of the Inkatha Freedom Party voting against the bill.

The bill regulates the collection, processing and retention of personal information by both public and private bodies, ensuring increased protections for such information. Introducing debate on the bill in Parliament, Minister Jeffrey Radebe, reportedly said "Unprotected personal information may lead to identity theft, credit card fraud, stalking, the proliferation of unsolicited pornography, spam and market manipulation practices".

The bill has also been lauded for the important changes it makes to direct marketing practices. Under the bill, marketers will only be allowed to contact consumers once, requesting their consent for future contact. If the consumer denies the request, then no further contact is permitted, creating an ‘opt-in' system, in place of the current ‘opt-out' system, which allows marketers to contact consumers unless the consumer expressly prohibits the contact.

Creation of onerous burden for archives
While there is no doubt that greater protection of personal information by bodies collecting that information for its use in assessing the eligibility of the individual for certain benefits or the like, and restrictions on the use of such information for direct marketing will constitute welcome additions to the statute book, the effect of the bill on archival institutions such as SAHA is very concerning.

The bill requires personal information to be collected directly from the relevant individual, unless the collection falls within one of the stated exceptions. Archival institutions receive records from donors who will often have collected information about other individuals. Once the bill becomes law, SAHA will have to establish that the collection from the relevant donor constitutes a legitimate interest of SAHA. This will involve assessing any personal information contained in the entire collection of records being donated and applying the test to each of the records.

If SAHA determines the collection is lawful it may then only process the personal information (by arranging and storing it in an archival collection) if it has the consent of the individual or can establish that in doing so it will be pursuing a legitimate interest of SAHA, again requiring an assessment of each record containing personal information. The same test will also need to be applied each time anyone wishes to access a record containing personal information from SAHA's archive, including for non-commercial educational and research purposes.

The resource-intensive nature of these requirements is likely to be crippling on archival institutions in a sector that is already under-resourced and struggling to meet the demands of national heritage, serving another blow to the preservation of South Africa's heritage.

A further concern is that the bill requires institutions in possession of personal information to take steps to ensure that the personal information is complete, accurate, not misleading and updated where necessary. It is the nature of archive that the records contained therein represent views, opinions or perceptions fixed in a particular moment. It is not appropriate to amend archival records because the information contained therein is later found to be inaccurate or incomplete.

Introduction of Information Regulator a big step forward
Civil society has long been calling for the inclusion of an independent, informal, appeal mechanism with enforcement powers, such as an information commissioner, to consider appeals under PAIA. That call has finally been answered in this bill, which establishes an Information Regulator which will have powers under both the bill and PAIA.

The bill proposes amendments to PAIA which will allow requesters who have been refused access to information by public or private bodies to submit a complaint to the Information Regulator. The Information Regulator may investigate the complaint and serve a notice on the information officer of the body either confirming their decision or ordering them to release the information.

If the Information Regulator directs the information officer to release the information to the requester and they fail to do so, the information officer will be guilty of an offence and can be fined and/or imprisoned for up to 3 years.

While decisions of the Information Regulator will not be final, and may be appealed to court, the introduction of an independent, inexpensive and swift avenue for appeal is expected to have a substantial impact on the realisation of the right to information.

Currently PAIA provides very limited avenues for appeal - the right to appeal to the political head of a public body rarely results in a reversal of the original decision, while the high costs associated with court applications makes that avenue of appeal inaccessible to most individuals and civil society organisations. The introduction of the Information Regulator will therefore allow ordinary citizens and civil society organisations to hold public and private bodies accountable for the decisions they make under PAIA.

Next steps
The secretary of the National Assembly Portfolio Committee on Justice and Constitutional Development, Vhonani Ramaano, confirmed that the bill was immediately referred to the National Council of Provinces after its passage in the National Assembly. The NCOP will now refer the bill to the Select Committee on Security and Constitutional Development for its consideration before the bill is debated by the Council. If the bill is ratified by the NCOP it will be prepared for signature by the President.