BY Era Gunning AND Jessica Steele
Draft PAIA Regulations: impracticalities to be faced by foreign entities
In terms of section 51 of the Promotion of Access to Information Act, 2000 ("PAIA") (as amended by the Protection of Personal Information Act, 2013 ("POPIA"), all private bodies must have a PAIA manual. A PAIA manual describes how individuals may exercise their constitutional right of access to information.
The POPIA Regulations oblige the information officer of a responsible party to ensure that a PAIA manual is developed, monitored, maintained and made available as prescribed in section 51 of PAIA.
Section 3 of POPIA makes it clear that the Act applies to the processing of personal information by responsible parties domiciled in South Africa, or in certain instances, not domiciled in South Africa. As such, South African and foreign entities must (in certain circumstances) compile a PAIA manual and publish on its website.
The Minister of Justice and Correctional Services may, on request or of his or her own accord, by notice in the Gazette, exempt any private body or category of private bodies from compiling and/or publishing a PAIA manual. However, there is no exemption for foreign entities meaning that, as bizarre as it might seem, every foreign entity that is subject to POPIA must have a PAIA manual available on its website. The minister has exempted certain private bodies “from compiling the Manual contemplated in section 51(1) of PAIA…”. This exemption comes to an end on 30 June 2021 (presumably because POPIA becomes fully effective on 1 July 2021).
On 23 April 2021, the Department of Justice and Constitutional Development published the draft regulations under PAIA for public comment. The notice is available here.
We are concerned about some of the obligations that would be imposed in terms of the Draft Regulations on responsible parties, including those not domiciled in South Africa but who process personal information in South Africa.
For example, regulation 5 of the Draft Regulations speaks to the requirements regarding records that are automatically available and provides that the head of a private body “must” compile and keep a description of the categories of records that are automatically available without the requester having to request access thereto. Section 52 of PAIA, in contrast, provides a private body “may on a voluntary basis” have a list of categories of information which is automatically available.
Comments on the Draft Regulations must be received on or before 17 May 2021.
If you would like us to assist you with commenting on the Draft Regulations, or would otherwise like our assistance in preparing or updating your PAIA manual, please contact our expert team at ENSafrica.
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