Balancing Paia and Popia

Ahmore Burger-Smidt

Werksmans

The rightof access to informationis a unique rightin the constitution as it places an obligationonboth publicandprivate bodies to allow access to records held by them.

To this end, the Promotion of Accessto Information of 2000 (Paia) was enacted to give effectto theright of access toinformation and foster a culture of transparency andaccountability in public and private bodies.

However,Paia cannotbe considered in isolation.

TheProtection ofPersonal Information Act 4 of 2013 (Popia), on theother hand, is long inform, broadin scope andpowerfulinitseffect so much so thatwhen requests for access torecords are made in terms of Paia, Popia must beconsidered aswell, especially when the record in question containspersonal information of third parties.

Thehigh courtrecently had the occasionto deal with thesituationof howtodeal witha Paiarequestwhich contains personal information of thirdparties in Smuts

NO and Othersv Member of the ExecutiveCouncil: Eastern CapeDepartment of Economic Development Environmental Affairs and Tourism and Others (1199/2021) [2022]

ZAECMKHC 42(July 26 2022) (Smuts case).

In thiscase, arequest was made tothe information officerof theEasternCape department of economic development, environmental affairs &tourism to provide access toall applications received andpermits issued bythedepartmenttotrap,kill, hunt ortranslocate anyleopards inor fromthe Eastern Cape from 2017 to 2019.

The informationrequest was refusedby thedepartment on theground that it would entailthe unreasonable disclosureof personal information ofthird parties and in terms ofsection 34 of Paia,which providesforthe mandatory protectionof the personal informationof third parties wheresuch disclosure wouldinvolve the unreasonable disclosure of personal informationabout that third party.

The personalinformation sought includednames, identity numbers,residential andpostal addressesofthe applicants and theidentity of the partyfrom wherethe leopards are to be captured directly linked tothe cultivationof anaccountable, responsiveand opensociety, and this wasrecognised by the court.

Also recognised by the court was that privacy is not an absoluteright andaccess to information canbe limited in instances where the limitation is aimed at the reasonable protection of privacy.

Thecourt heldthatan information officer must determinewhether thedisclosureof theinformation involves the “unreasonable” disclosureof personalinformation about a third party.

Ifso,the requestmustbe refused. It was held that this interpretationgives effectto the careful balance to be struckbetween therightof access to information and the right to privacy.

Restricted Activity

orcontrolled. However,in opposition, it was argued that there can beno reasonable expectation of privacyon the part of thethird parties concernedwhen consideringthe natureof theinformation requested. Therefore,disclosure on thisbasis would not be unreasonable.

Thecrux ofthedispute came down to a proper interpretationof themeaning of “unreasonable disclosure ofpersonal information” as contemplatedin section34of Paia.

The importance of the rightto accessinformationis

In relation tothe possible application ofPopia, thecourt found thatthe relevantprovisionsofPopia maybeinterpreted to accordwith or supplement section 34 of Paia. If thiswasnotthecase,thenthe word “unreasonable” would not beincluded insection 34 of Paia. However,this does notmeanthat wemustoverlook the importance of Popia. Personal information must neverthelessbe lawfullyprocessed in terms of Popia.

Thecourtultimatelyfound that therewas noreasonable expectationof privacyin relation to the request for a permittoperformarestricted activityas theapplication process inand ofitself “acquireda socialdimension outside the private domain”

In coming to this decision, thecourt importantlynoted thatthe refusalofaccess must itself be reasonable. The mere say-so ofthe informa- tion officer or rectification of the words of Paia to justify refusalis insufficient.Therefore,sufficient evidencejustifyinga refusalof accessmust be put forward.

Accordingly,it washeld thatthe disclosureofthe informationin questiondoes notinvolve theunreasonable disclosureof personalinformation about athird party and is notunlawful in terms of Popia.To this end,it was heldthat “the personal informationcontained inthe applicationsand permitsfalls outside the legal realm of privacy,does notenjoy constitutional protection from disclosure and may be reasonablydisclosed tothe applicantsin thecircumstances.

“That also puts paid to any suggestionthat theinformationshould bedisclosed ina redacted fashion.

“Putdifferently, theobjectionagainstdisclosurecannot be said tobe on reasonable groundsgiven thelegitimate pursuitof informationlinked toconservation andmanagementof avulnerablespecies and theconstitutional rightto a healthy environment.”

The Smuts case is importantasit shedslightonhow information officers, particularly of publicbodies, should processrequests foraccess to records.

Accessrequests mustbe properlyconsidered andbal- anced in terms of Paia and Popia. Even thoughPaia and Popia are related,they cover different areasof thelaw; therefore,a delicatebalance mustbe struckto giveeffect totheright ofaccesstoinformation and right to privacy.

Thejudgment isalso important forrequesters, whomust appreciatethat when requestsfor accessare madeto publicbodies,such requestsenjoy lesserprotection of privacy given the nature of publicbodies in the public realm.

Information officers are urged to take note. An informationofficer maybe heldpersonallyliable forthe failuretoadequately perform his or her responsibilities and/or duties in terms ofPaia and/orPopia.The penalties that can be levied in this regard couldbe a fine and/or imprisonment.