Your right to ac­cess to in­for­ma­tion

When you think you have a claim but don’t have doc­u­men­tary ev­i­dence to sup­port it, can you use PAIA?

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - JANINE LEE

IN MANY in­stances, a party who has suf­fered some form of loss at the hands of an­other does not have ac­cess to the doc­u­ments, record­ings or data which would en­able them to en­force their rights against the per­pe­tra­tor of the harm.

In the past, the ag­grieved party would in­sti­tute ac­tion and would sub­se­quently seek ac­cess to these doc­u­ments, record­ings or data in the course of the dis­cov­ery pro­ce­dures pro­vided for in the court rules.

This may mean that the true grounds of the ac­tion for re­cov­ery are only dis­closed at a late stage once the dis­cov­ered doc­u­ments, record­ings or data have been con­sid­ered. Amend­ments to the plead­ings, re­sult­ing in ad­di­tional costs, may be nec­es­sary. At worst, the dis­cov­ery process may make it clear that the wrong party has been sued, and that the ag­grieved party ought to have looked else­where to make good its loss.

These doc­u­ments, record­ings or data are only avail­able once lit­i­ga­tion is at an ad­vanced stage. They may ex­pose solid grounds for li­a­bil­ity on the part of the de­fen­dant. Had ac­cess to these doc­u­ments, record­ings or data been avail­able at the out­set, there would have been a strong in­cen­tive for the de­fen­dant to set­tle the claim with­out com­pound­ing the harm by forc­ing the ag­grieved party to em­bark on an ex­pen­sive and time con­sum­ing process of en­forc­ing its rights.

Judge Cameron in his dis­sent­ing judge­ment in Uni­tas Hos­pi­tal v Van Wyk and an­other, said: “Lit­i­ga­tion in- volves mas­sive costs, time, per­son­nel, ef­fort and risks. Where ac­cess to a doc­u­ment can as­sist in avoid­ing the ini­ti­a­tion of lit­i­ga­tion, or op­po­si­tion to it, the ob­jects of the statute sug­gest that ac­cess should be granted.”

The statute to which Judge Cameron refers is the Pro­mo­tion of Ac­cess to In­for­ma­tion Act, 2000, (PAIA). This act is aimed at giv­ing ef­fect to ev­ery per­son’s right to ac­cess to in­for­ma­tion ex­pressed in sec­tion 32 of the con­sti­tu­tion. Sec­tion 32 pro­vides:

Ev­ery­one has the right of ac­cess to: (a) Any in­for­ma­tion held by the State; and (b) Any in­for­ma­tion that is held by an­other per­son and that is re­quired for the ex­er­cise or pro­tec­tion of any rights.

An ag­grieved party can there­fore utilise the mech­a­nism pro­vided for in PAIA with a view to ac­cess­ing doc­u­ments, com­puter files, tape or video record­ings, email mes­sages and the like.

A de­ci­sion re­gard­ing whether to em­ploy the pro­ce­dure em­bod­ied in the act must be made at an early stage of any dis­pute res­o­lu­tion process. Once legal pro­ceed­ings, in the form of an ac­tion or ap­pli­ca­tion launched in a court of law, have com­menced, the par­ties to that legal process are re­stricted to util­is­ing the ap­pli­ca­ble court pro­ce­dures and can­not then seek to ap­ply for ac­cess un­der PAIA.

An ap­pli­ca­tion for ac­cess to in­for­ma­tion un­der the act can be di­rected ei­ther at a pub­lic body such as a gov­ern­ment depart­ment or a state owned en­ter­prise, or at a pri­vate body such as a nat­u­ral per­son or com­mer­cial cor­po­rate en­tity. The re­quire­ments to be met by an ap­pli­cant when ap­ply­ing for ac­cess to in­for­ma­tion in the hands of a pri­vate body are more oner­ous, since in ad­di­tion to meet­ing the re­quire­ments of an ap­pli­ca­tion di­rected at a pub­lic body, the ap­pli­cant must show that the record in ques­tion is re­quired for the ex­er­cise or pro­tec­tion of a right. The ap­pli­cant need not dis­close the rea­son for its re­quest, where this is di­rected at a pub­lic body.

There are cer­tain lim­ited grounds on which ei­ther a pub­lic body or a pri­vate body may refuse to give ac­cess, and these in­clude that ac­cess would in­volve un­rea­son­able dis­clo­sure of per­sonal in­for­ma­tion about a third party, or if the record in ques­tion con­tains trade se­crets of a third party or in­for­ma­tion sup­plied in con­fi­dence by a third party which could rea­son­ably be ex­pected to put that third party at a dis­ad­van­tage in con­trac­tual ne­go­ti­a­tions or com­mer­cial competition. Other grounds re­late to the en­dan­ger­ment of the life or phys­i­cal safety of in­di­vid­u­als or of se­cu­rity of build­ings, trans­port sys­tems or other prop­erty. An ob­vi­ous ex­cep­tion is a record which is priv­i­leged in legal pro­ceed­ings since one can­not ac­cess records un­der PAIA which would be pro­tected from dis­cov­ery in terms of the nor­mal rules ap­pli­ca­ble in legal pro­ceed­ings.

The ob­vi­ous ad­van­tage of the PAIA process is that the ag­grieved party will ob­tain the doc­u­men­ta­tion much sooner and this fact has a num­ber of im­por­tant im­pli­ca­tions.

Very of­ten doc­u­ments, record­ings or com­puter data are lost or de­stroyed over time. Ob­tain­ing copies at an early stage will avoid any prej­u­dice aris­ing from this type of in­com­pe­tence.

If the ag­grieved party ob­tains all rel­e­vant records at an early stage it will be bet­ter placed, at the out­set, to as­sess the prospects of suc­cess of lit­i­ga­tion and to fo­cus on the ar­eas most likely to found a solid case at the trial, thereby sav­ing time and money.

The prospec­tive de­fen­dant will be in a po­si­tion, at an early stage, to more ac­cu­rately as­sess their prospects of suc­cess­fully de­feat­ing the claim. If the ev­i­dence is such that they must ac­cept that there is a high prob­a­bil­ity of a court find­ing against them, they are more likely to ac­cede to a rea­son­able set­tle­ment of the claims, know­ing that the ag­grieved party is also in pos­ses­sion of this ev­i­dence.

Our courts are con­cerned that the pro­vi­sions of PAIA not be used in cir­cum­stances where it is more ap­pro­pri­ate to utilise the court pro­ce­dures which have been in ex­is­tence far longer. The courts do not al­low what is termed as “a fish­ing ex­pe­di­tion”.

The ap­pli­cant would have to show that the records re­quested are re­quired be­cause they will pro­vide a sub­stan­tial ad­van­tage or that there is an el­e­ment of need. The fact that the records can be ob­tained from an­other source may be raised to sub­stan­ti­ate a re­fusal by a pri­vate body.

When an ag­grieved party con­sid­ers pro­ceed­ings aimed at the en­force­ment of its rights, it would be well ad­vised to first con­sider whether the mech­a­nism pro­vided for in PAIA can and ought to be em­ployed be­fore launch­ing into for­mal court pro­ceed­ings.

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