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.
