PAIA requests and Home Affairs

If the requester decides that discretion is the better part of valour and to await an eventual outcome, the problems increase if there is a negative decision because the requester may well be out of time to exercise his or her other rights against the Department. The reality in dealing with Home Affairs is that one can easily wait for three or four months, if that, to get the eventual decision and access from the Department to the sought-after information...

Ultimately, one of the purposes of the access to information which is held by the state, as provided by the Promotion of Access to Information Act, 2 of 2001, [“PAIA”], is to obviate unnecessary litigation and the accompanying waste of State and other resources. Section 25(1) of PAIA provides that “the information officer to whom the request is made must …” provide the required information “as soon as reasonably possible but, in any event, within 30 days after the request is received.”

PAIA Requests and Home Affairs

Chris Watters Attorneys, Immigration Law Committee of the Law Society of Northern Provinces

Ultimately, one of the purposes of the access to information which is held by the state, as provided by the Promotion of Access to Information Act, 2 of 2001, [“PAIA”], is to obviate unnecessary litigation and the accompanying waste of State and other resources. Section 25(1) of PAIA provides that “the information officer to whom the request is made must …” provide the required information “as soon as reasonably possible but, in any event, within 30 days after the request is received.”

Unfortunately, it is notorious that the Department of Home Affairs simply does not comply with such requests in a timely manner. Evidence suggests instead that the Department is not however refusing or failing unreasonably to provide the information. The position appears to be that the Department and/or its information officer do not have the capacity to process these applications or inquiries within the time frames provided for in PAIA. In terms of PAIA, as read with the Public Service Act, the Information Officer of the Department is the Director General. However, the Department’s officials just cannot get the PAIA requests/applications out of the Director General’s office and onto the correct section in the rest of the Department in anything like the time provided for in PAIA. It appears too that in some, if not all, instances the Department’s legal section is required to furnish an opinion to the relevant section as to what is to be disclosed.

Section 26 of PAIA provides that if the 30 days provided for in Section 25 are insufficient to comply with the request, then the information officer may only extend that period if the reason for the period she or he really needs is one as set out in Section 26(1)(a) – (d) of PAIA. These reasons are that a large number of records, divisions, offices and/or public bodies are involved in responding to the inquiry. In all such cases the justification for the needed extension has to be reasonable. In addition, the requester has to consent in writing to the extension [Section 26(1)(e)]. To obtain that consent the Information Officer must notify the requester in writing before the first 30 days expire [Section 26(2)] of the reasons for the needed extension, how long the needed extension will be – but which cannot be for more than a further 30 day period – and that the requester can appeal that extension [Section 26(3)].

In terms of Section 27 of PAIA, if the information is however not provided within 30 days and no extension is obtained, the Department is “regarded as having refused the request” which then compels the requester to appeal such refusal.

Section 74(1)(a) of PAIA provides that a requester has a right of “internal appeal” where the Information Officer has refused a request for access. In terms of Section 75(1)(a)(i) of that Act, the appeal must be lodged “within 60 days” of the effective refusal – which period can be extended but only if there is “good cause.”  But of course one cannot appeal (meaningfully) unless the requester knows why access has been refused. And if the request has not been refused by the Information Officer but is rather making its way through the Department’s corridors albeit somewhat slowly, can one appeal the purported “refusal.”  So one has less than 60 days to get reasons. And if one then uses Section 5(1) of the Promotion of Administrative Justice Act, 3 of 2000, [‘PAJA’] to demand the reasons for the “refusal,” the Department is given 90 days to respond quite aside from the Department because the requester is now asking for reasons for refusing a request that has not been refused, in reality

Of course, under Section 6(2)(g) of PAJA, the failure to take a decision is reviewable by the High Court. But before that right arises Section 7(2) of PAJA prescribes that no Court shall review administrative action unless “any internal remedy …has first been exhausted.” This ouster clause can only be got around if there are “exceptional circumstances” [Section 7(2)(c) of PAJA].

If the requester decides that discretion is the better part of valour and to await an eventual outcome, the problems increase if there is a negative decision because the requester may well be out of time to exercise his or her other rights against the Department. The reality in dealing with Home Affairs is that one can easily wait for three or four months, if that, to get the eventual decision and access from the Department to the sought-after information.

Ironically the problems posed by the PAIA-process for requesters are compounded when regard is had to the time frames dictated to requesters in the Immigration Act, for example, to review or appeal a decision by the Department which affects them [Section 8 of the Immigration Act, 2002, as amended]. All too often, the requester first needs the information held by the Department in order to prepare an informed appeal or review. The time periods provided for in Section 8 within which to seek an internal appeal or review of a decision vary between the time it takes for your plane to leave South Africa again (a matter of hours) and 10 working days [Section 8(1), 8(4) and 8(6) of the Immigration Act] – none of which interfaces comfortably with the requirements of PAIA and PAJA.

It is hoped that the Information Officer’s obligations in terms of Section 195(1)(g) of the Constitution coupled with the requester’s rights to dignity and associated basic rights, may help to unravel the conundrum of how a requester gets access to information from the Department of Home Affairs in a timely manner.

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