02 April 2015

Potential impact on PAIA of proposed UN Special Rapporteur on Privacy

Last week the United Nations (UN) Human Rights Council passed a proposal for the establishment of a UN Special Rapporteur on the right to privacy; this has been welcomed by civil society organisations as a step forward in addressing problematic aspects, such as mass surveillance, around the right to privacy.

SAHA’s work intersects with aspects of privacy in a number of ways and while SAHA in its archival capacity often has to consider when and how to take steps to protect the privacy of individuals, the Freedom of Information Programme (FOIP) often deals with public and private bodies overly broadly interpreting terms such as ‘privacy’ and ‘personal information’ as protected by sections 34 and 36 of the Promotion of Access to Information Act 2 of 2000 (PAIA).

The PAIA Civil Society Network (PAIA CSN), of which SAHA is a member, in its annual Shadow Report for the period 2013/14 notes that out of 206 requests made by the PAIA CSN to public bodies over that period, 134 were denied or deemed in terms of the provisions of PAIA to have been denied (this is due to a failure by the body to respond within statutory timeframes). Out of the 134 refusals, only 72 were active refusals and a staggering 11 of those (15%) were denied relying on the provisions of section 34 of PAIA. This points to an overly broad interpretation of the section and a failure by the bodies to properly apply the provisions of the act to the specific requested records. This is so specifically in light of the fact that PAIA creates a number of exceptions to the protection offered by sections 34 and 36 of PAIA, including the exclusion of information already in the public domain and information relating to an individual who has been deceased for more than 20 years.

Currently, the Protection of Personal Information Act 4 of 2013 outlines the parameters for the processing, storing and protecting of personal information. As SAHA has its origins in archival work, the Protection of Personal Information Act has very important implications for the way our archival team process, store and disseminate records containing personal information. One of the duties of the UN Special Rapporteur to privacy will include making recommendations on improving national and international legal and policy frameworks protecting the right to privacy. It is optimistically hoped that this will spur governments to re-evaluate their methods of data collection. This standardisation of international ‘best practice’ regarding the right to privacy will help ensure the protection of privacy while ensuring limitations are justifiable, as is undertaken in our own Preamble of the Protection of Personal Information Act

It will be interesting to see what comes out of the Special Rapporteur’s engagements around development of a common understanding of the ‘nature and scope’ of the right to privacy and to what extent this may impact on local understanding of the scope of the right. This is something SAHA will be watching closely.