Draft PAIA Regulations published ahead of POPIA commencement

By Nozipho Mngomezulu, Wendy Tembedza, Karl Blom & Peter Grealy from Webber Wentzel

Draft PAIA Regulations have been published, setting out the transition of functions from the South African Human Rights Commission to the Information Regulator, and some additional obligations of information officers.

The Department of Justice and Constitutional Development has released draft Regulations relating to the Promotion of Access to Information, 2021 (Draft PAIA Regulations).  This release follows various amendments to bring the Promotion of Access to Information Act, 2000 (PAIA) in line with the Protection of Personal Information Act, 2013 (POPIA).  Accordingly, the purpose of the Draft PAIA Regulations is to align previous PAIA regulations with POPIA, while they also repeal the PAIA regulations published in 2002.

One of the most notable provisions of the Draft PAIA Regulations is the transfer of functions from the South African Human Rights Commission to the Information Regulator.  This transfer is contemplated in section 114(4) of POPIA, and becomes effective on 30 June 2021. The Draft PAIA Guidelines impose various obligations on the Information Regulator, including:

  • publishing a guide on how to use PAIA;
  • the procedure which the Information Regulator must follow if it receives a complaint from a person requesting access to an organisation’s record;
  • the Information Regulator’s role as a conciliator in relation to a complaint; and
  • the procedure the Information Regulator must follow in assessing an organisation’s policies and procedures to determine whether it complies with PAIA.

In addition, the Draft PAIA Regulations contain further responsibilities for information officers, including the obligation to ensure that the abovementioned PAIA guide is published. They are also required to compile a description of the organisation’s records which are automatically available to persons requesting access.

Written comments on the Draft PAIA Regulations are due on 17 May 2021.

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