Bregman Moodley Attorneys Blog

PAIA and a banks’ refusal to say why it declined vehicle finance.

A client asked me to advise if she had any recourse against a bank for refusing to provide reasons why it declined her application for vehicle finance.

I told her that in terms of the Promotion of Access to Information Act (PAIA), the bank could withhold that information and that her only recourse would be to apply to court, to challenge the decision.

What follows is a very brief summary of PAIA. For a more detailed summary, in plain language, see http://www.mpumalanga.gov.za/paia/plainlanguagePAIA.pdf.

The purpose of PAIA is:

·        to give effect to the constitutional right of access to any information held by the state, as well as information held by another person that is required for the exercise or protection of any right;

·        to foster a culture of transparency and accountability both in public and private bodies and to promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all their rights.

Who does the Act apply to?

·        The Act applies to all records held by public (i.e. State) or private bodies (or their contractors).

·        The Act does not apply to records that are being used in criminal or civil proceedings.

·        The Act does not apply to Cabinet Ministers and committees, members of parliament or of the provincial legislature, courts (in their judicial capacity) and certain investigative tribunals.

What are public and private bodies?

Public bodies are generally government departments, bodies created by Constitutions such as Parliament or the Gender Commission, or institutions set up by law which perform services for the public such as universities or Telkom. Private bodies are those that have no connection with the government and which are privately owned and controlled, i.e. any person who runs a business, or trade or profession, or a partnership or any juristic person, like a company or a CC. It doesn’t mean a person as a private individual, but only their records as they relate to their business, trade, profession, etc.

Who can ask for records?

Anyone can ask for records from a private body, but the record must be needed for the exercise or protection of a right. A requester must use the form that has been printed in the Government Gazette. It must contain enough so that it is clear what records are wanted and who the requester is. The form must explain how the requester wants to get access to the record (by post, fax, email, by hand, telephone, etc.). The requester must identify the right that he or she wishes to exercise or protect and explain why the record is needed for the exercise or protection of that right.

When can a request be refused?

·        If a requester asks for information that would disclose personal information about a third party, the request must be refused (to protect the privacy rights of other people and to make sure that these rights are not infringed upon by requests under the Act). This may not apply if the third party whose privacy is affected consents, or if the information has been made publicly available, when it may be disclosed.

·        If someone asks for information that would disclose certain commercial information about a third party, the request must be refused. Commercial information includes trade secrets, financial, technical or scientific information. It also includes information which has been supplied in confidence by the third party and which may place them at a disadvantage in negotiations or commercial competition.

·        A private body must refuse a request for information if disclosing it could threaten the life or physical safety of other people, safety and security of buildings, equipment or any other property. It may also be refused if its disclosure would prejudice or impair a system or plan for the protection of individuals, the public or property.

·        A request for a record that can’t normally be used as evidence in a court case, because it is privileged, must be refused. An example of this would a letter written by a lawyer to the private body during a court case, discussing a settlement of the case.

·        If someone asks a private body for information that would disclose certain commercial information about that body, the request may be refused. Commercial information includes trade secrets, financial, technical or scientific information, which, if disclosed, could harm that body’s financial interests. It also includes information which, if disclosed, could place the private body at a disadvantage in negotiations or commercial competition.

What steps must a requester take if the information he seeks is refused?

If a private body makes a decision to refuse a request, the requester may go to court to challenge this decision. The application to court must be made within 30 days of being informed of the decision. There is no system of internal appeal with respect to the decisions of private bodies.