30 May 2014

PAIA gets FNB to respond to former Transnet employees

This month a number of former Transnet employees finally received records from First National Bank (FNB) after seeking help from SAHA to obtain their home loan records through the Promotion of Access to Information Act, 2000 (PAIA).

These FNB records are expected to contain key information which will help provide clarity as to why these former Transnet employees are being evicted from homes that were first sold to them by Transnet in the twilight of the apartheid era. It will help them to exercise and protect their right to housing, as well as other contractual rights.

In January 2014 former Transnet employees approached SAHA to assist them with obtaining their personal banking records as it appears these community members faced a range of challenges when attempting to gain access to information held by private bodies. These challenges included their own lack of resources and some language barriers. These barriers were apparently exacerbated when some private bodies were not prepared to provide all documents requested, and did not explain why that was the case. Additionally, some private bodies suggested they would charge fees that were not affordable to people that are already in severe financial difficulties.

Over recent years SAHA has not had cause to submit many PAIA requests to private bodies, and SAHA was eager to take up this request for assistance from these former Transnet employees, as an opportunity to test the understanding and compliance with PAIA by private bodies.

SAHA's experience with these FNB requests has revealed a number of potential issues in the application of PAIA by private bodies; potentially suggesting areas for further training and advocacy to ensure compliance with the legislation and spirit of PAIA.

Of note, FNB's first response to these PAIA requests was to suggest that SAHA's clients should approach the bank's branches in order to be assisted with obtaining such information outside the PAIA request process. However, SAHA was unwilling to encourage our clients to abandon their PAIA requests and lose the protection and remedies provided for in their submitted PAIA requests, especially given their past experiences. SAHA would only withdraw a PAIA request once all requested records had been provided more quickly and more cheaply outside of PAIA. Interestingly the information requested was finally provided by FNB under PAIA.

When notifying SAHA of their extension of time to respond to these requests, FNB indicated that they were sourcing legal advice from their legal counsel to advise them on the requests that SAHA had submitted on behalf of the requesters. FNB also suggested that while waiting for their counsel to respond to the requests, the 30 day PAIA response timeframe did not apply. This is clearly not the case under PAIA, and suggested a misunderstanding of PAIA by FNB, in that the 30 day time limit always applies, unless an extension of time notice can be issued under the Act. There are only limited reasons for the initial 30 day time limit to be extended by 30 days, and FNB needed to consider whether those reasons applied in the circumstances. In this case, SAHA ultimately understood from FNB that some of their reasons for the extension of time by an additional 30 days fell within valid reasons for an extension of time as set out in PAIA.

One of the more concerning issues that SAHA experienced was the overall delay in FNB providing records. SAHA submitted these requests for information to FNB at the beginning of February 2014. However, records were not released to SAHA until between 6 and 12 May 2014, meaning the responses were provided three months after the requests, and well out of the ordinary PAIA legislated timeframes.

However, on a positive note, at the conclusion of these requests FNB provided those materials that were requested and available. SAHA has asked for an affidavit seeking clarity as to what requested information was not found, under section 23 of PAIA. While obtaining this final response may have taken some time - it is anticipated that this will provide the cost effective and fulsome response that was sought by the former Transnet employees.

The released FNB records have now been handed over to the each of the former Transnet employees. However, contrary to SAHA's usual practice of openly sharing released materials on the PAIA Tracker, copies of the released information are embargoed because of the nature of the personal information contained in the records, noting release of that material could lead to identity fraud. The information contained in the records will hopefully shed light on how houses owned by former Transnet employees were transferred to FNB, and will inform ongoing struggle by the former Transnet employees in their fight for their homes.

If you are having difficulties in obtaining information from a private body and need assistance with making a PAIA request, contact foip@saha.org.za