Amendment to the Promotion of Access to Information Act

On 24 January 2011 a call for public comment on a proposed amendment to the Promotion of Access to Information Act 2 of 2000 (PAIA) was published in the Government Gazette. The amendment chiefly deals with sections 6 and 86 of the Act, as well as their corresponding schedules.

Essentially, as the Act stood before, there was an obligation on the Department of Justice and Constitutional development to - twelve months after the Act was passed - amend the schedules of the Act to provide a comprehensive list of other laws which also have access to information provisions outside of PAIA. This was because the Act states that, if another law can be used to get a person access to a document which isn't as onerous as it would be through a PAIA request, then that person is entitled by law to go the easier route instead.

However, after extensive investigations by the Department of Justice and Constitutional Development to try and investigate these other laws, they discovered that, because the Act included consideration of subordinate legislation, the amount of law to go through and list in the schedule meant their task was not practicably possible. Instead, they have suggested amending PAIA to include a more general section that will simply allow for the use of less onerous laws wherever they might exist - the laws do not have to be scheduled to be utilised.

While the amendment is a promising reflection that the Department of Justice and Constitutional Development is taking its role as custodian of the Act seriously, it remains worrying to FOIP that the larger inadequacies in the Act which civil society has raised its voice about so many times continues to go unheeded. Until provision is made in PAIA for recourse to an independent regulator, rather than to the South African court system, the Act will continue to be under-utilised as the time and cost implications of court applications remain prohibitive to most individuals and organisations in South Africa.