P A I A: Using the Law

[Sieg]

Remember all the fuss about getting your manual to the Human Rights Commission and then being told you don't have to? Well, here's one company that forgot completely. This is from a letter sent to Macro today:

"23 July 2007

The Directors
Masstores (Pty) Ltd
t/a Makro
Private Bag X4
Sandton
2157

per fax: 011 807 10 49

Dear Sirs / Ladies

P A I A Manual: Masstores (Pty) Ltd

I refer you to the Promotion of Access to Information Act 2 of 2000 (as amended).

Your company is a “private body” as defined in the Act. In terms of Section 51(1) of the Act, you are obliged to “compile a manual”, commonly referred to as a P A I A Manual. Such manual must be made available as prescribed (Section 51(3) of the Act).

Item 9(1)(c) of the Regulations to the Act (as published in Government Notice No. R.187 dated 15th February 2002) provides that such manual must be made available on the website of the private body.

Your website is ostensibly at the domain name www.macro.co.za. This website does not have your manual nor does it have a link or reference to such manual.

Section 90 (3) of the Act makes it an offence for the head of a “private body” who fails to comply with Section 51 of the Act.

I require certain information from your company for the exercise or protection of my right(s) and your company is obliged to provide such information. (Section 50(1)).

I require you to:

1. Provide me with a copy of your P A I A Manual and the request for information form to my e mail address;

2. Advise me why your P A I A Manual is not available on your website;

3. Provide me with reasons why I should not report your contravention of the Act to the Human Rights Commission and / or any other applicable authorities;

Yours faithfully,"



Sieg

[Dave A]

Thanks for the reminder, Sieg. I never got to put ours up on my company's website. But I've just solved that now.

[leuce]

Item 9(1)(c) of the Regulations to the Act (as published in Government Notice No. R.187 dated 15th February 2002) provides that such manual must be made available on the website of the private body.

Are you sure it says that it *must* be available on the web site? If I remember correctly, it may be made available on the web site, but the main thing is that it must be available on request... whether it is a telephonic request or an electronic one.

[RKS Computer Solutions]

Allrighty then....

Can we confirm whether or not this is needed? Dave, can't see it on your site...

http://www.info.gov.za/gazette/acts/2000/a2-00.pdf

[leuce]

Can we confirm whether or not this is needed?

See also:

http://www.sahrc.org.za/sahrc_cms/publish/cat_index_70.shtml

A head of a private body must compile a manual in terms of section 51 of PAIA. The manual must be made available as prescribed in Regulation 9.

Although neither the Act itself nor section 51 of it contains a "regulation 9".

[RKS Computer Solutions]

Yup, also the following:

Broad Information

The Guide on how to use the Promotion of Access to Information Act (PAIA)- Act 2 of 2000

[Sieg]

P A I A

To clarify

To Dave: your company is probably exempt from having to have a PAIA manual. You will recall that just before the deadline, when we were all scurrying around trying to get our manuals to the Human Rights Commission (by e mail, by post, by registered post, by courier, etc) who never acknowledge receipt of any of the damm things, an exemption was announced?

Re the regulations: these are published in terms of the enabling Act, i.e. the Promotion of Access to Information Act. There have been a few regulations published, of which the most notable are the ones contained in Government Notice R.187 of 15th February 2002. Regulation 9(1)(c) is clear: "The head of a private body must ....(c) make available the manual on the website, if any, of the private body."

These regulations are available at http://www.doj.gov.za/2004dojsite/le...0to%20info.pdf

Public bodies have a similar obligation. (Reg 4(1)(c))

How many website developers are actually aware of their "obligations"?

Has anybody stopped to count how many public and private bodies are not complying with this requirement? Note the NHBRC's website, for example: http://www.nhbrc.org.za/index.htm - can you find any reference to a PAIA Manual?


Sieg

[Dave A]

Thanks Sieg. I did recall that there was an exemption, (or was that a 5 year extension for certain enterprise types - I forget the exact details) but seeing as I had gone to the trouble of making one, and it was published in the Government Gazette, I thought I may as well load it. For Riaan, it's in the downloads section.

[leuce]

Regulation 9(1)(c) is clear: "The head of a private body must ....(c) make available the manual on the website, if any, of the private body."

A little unclear, actually. It seems that whoever wrote that regulation thought that a private body will only ever have a single web site. And how would one determine which web site is the web site of a private body?

In the case that started this thread, the private body is Masstores (Pty) Ltd. They run several shops, and each shop has a web site, but these web sites are not the official web sites of the private body. In fact, it would appear that Masstores (Pty) Ltd doesn't have an official web site.

Mind you, when is a file "available" from a web site -- when it is linked to from one of its pages, or when it can be found by navigating from the home page (which is usually root/index.html or similar), or when it is hosted on the public_html section of the web server?

If the latter, then Masstores could well have a PAIA manual at, say, macro.co.za/paiapapaya.pdf, and if so, you could get it if you typed in the URL exactly right.

In any event, nothing stops Masstores from having the PAIA manual on their web site in Multimate or Wordstar format -- or is the implication of the regulation that it has to be a format that can generally be read in a browser (in which case, PDF and MS Word is out)?

[duncan drennan]

The general practice so far, as displayed by government departments and private companies, is to have the PAIA manual in a PDF format, and clearly link to it. e.g. http://www.telkom.co.za/ - look at the navigation at the bottom of the page.

I reckon in the extreme (and unlikely) case of a court case a judge would find that the whole concept of promotion of access to info would require a clear way to find the information, hence clear linking, versus a hidden (but actually there) manual.

[Dave A]

I'm wondering just how much legal action this PAIA legislation has actually produced. For example, has there been any legal action or official notices in respect of non-compliance as yet?

[RKS Computer Solutions]

For those interested, here is an html file, just open it in notepad or your favorite html editor and edit the contact information... Save and upload to your server/company...

Or make it a fancy pdf file, like mine will be posted here shortly: http://www.rkscomputersolutions.com/...op/privacy.php