Shortcomings of transfer mechanisms in PAIA - reflections from the FOIP intern

18 March 2016

The FOIP Intern reflects on shortcomings of transfer mechanisms in PAIA

The Freedom of Information Programme (FOIP) at the South African History Archive (SAHA) receives core funding from the Open Society Foundations and with this generosity are able to make PAIA requests throughout the year.

With a multitude of request submissions, SAHA is bound to run into a variety of issues. More often than not, the problem is created by the requestee bodies failing to comply with the provisions of the Promotion of Access to Information Act 2000 (PAIA).

There are, however times where the lack of clarity in PAIA itself creates issues with respect to the access to information. In particular, SAHA has experienced this when a public body decides to transfer requests. The PAIA CSN in its 2014 annual Shadow Report has noted a growing trend in the use of transfers in circumstances that often suggest transfers are a way of shifting the decision making responsibility to another body.

Further, it has been SAHA’s experience that transfers are at times inappropriate and should be appealable. By way of example, earlier this year, SAHA submitted two identical requests to two separate bodies, the National Archives of South Africa and the Department of State Security (DSS). The National Archives transferred their request, in accordance with PAIA to the Department of State Security prompting SAHA to open a third identical request despite having already submitted a request to the DSS. This becomes problematic because there is a potential for redundant requests, which may waste one’s resources or be viewed as being frivolous.

As the Act stands now, there is an unlimited amount of times a public body can transfer the same request. Although it is unlikely that a request will be transferred over 3 or 4 times, the possibility that it can be still exists. The number of transfers may delay the process of gaining access to records especially if they are improperly done. There is no statutory provision which limits the number of transfers to a reasonable amount. Although the purpose of section 20 is that public bodies are able to assist requesters by transferring their request to the right body who holds the records, this opens up the possibility for abuse by public bodies to avoid their responsibility in making proper decisions or transfers. Again, this speaks to a need for a provision which provides for an appeal mechanism in PAIA. It may be that the appeal mechanism be made available in only very specific situations where a requester is aware that the transfer was done incorrectly or arbitrarily, but the ability to appeal a transfer should nonetheless be available.

In light of this, SAHA is of the view that the present transfer procedure can only lead to further problems if the legislation remains the same. Currently, SAHA preparing submissions, alongside other civil society organisations, to the South African Human Rights Commission on recommended amendments to PAIA. SAHA hopes to see most of these recommendations taken up in the Commission’s recommendations to the Minister of Justice and ultimately that the Minister will ensure the necessary changes to PAIA are effected in order to ensure effective and efficient access to information.