The Information Regulator issued an enforcement notice to the State Security Agency (SSA) regarding a PAIA record request. The SSA had refused to provide the information to the requester. This refusal prompted the Regulator to investigate and issue the SSA enforcement notice ordering them to release the records on 4 August 2024.

Following the Information Regulator’s enforcement notice, the SSA has taken the decision on review in a court of law.

The requested records

Pieter-Louis Myburgh, an investigative journalist with Daily Maverick, submitted a PAIA request on 13 June 2022. He requested records of the SSA’s expenditure on services by the African News Agency (ANA) between 2015 and 2019. The request aimed to uncover the SSA’s spending with the ANA, including descriptions of goods and services and proof of deliverables. This request stemmed from the High-Level Review Panel Report on the SSA compiled after the State Capture Commission.

The basis for refusal relied upon by the SSA

The SSA denied access to the requested records, citing several grounds.

  • Mandatory protection of the safety of individuals. Section 38(1)(a) of PAIA mandates the protection of the safety of individuals. The SSA didn’t rely on this ground, but the investigating officer submitted it during the investigation. The investigator argued that any reasons for refusal advanced by the information officer must be tested against all the grounds of refusal.
  • Impeding a prosecution or resulting in a miscarriage of justice. Section 39(1)(b)(ii)  and (iii) of PAIA allows refusal if a record’s disclosure could impede an imminent prosecution or cause a miscarriage of justice.
  • Prejudice to the security of the republic. Section 41(1)(a)(ii) of PAIA permits refusal if the disclosure could be expected to cause prejudice to the security of the Republic. The SSA relied on this ground as the records were created in pursuance of intelligence activities aimed at countering foreign threats.

Regulator’s findings

The Regulator made the following findings on the grounds of refusal relied upon by the SSA.

  • The independence of the Regulator: The Regulator did not consider this refusal ground as the SSA did not rely on it. The investigator’s role is to remain objective and independent while investigating complaints. The investigator cannot raise grounds on behalf of a public body.
  • No investigation or prosecution: The Regulator found that section 39(1)(b)(ii) and (iii) grounds were inapplicable. The Regulator confirmed that no current investigation or prosecution involved these records or would be impeded by their release.
  • No prejudice to the security of the republic:  The Regulator concluded that the SSA failed to prove that disclosure could harm the Republic’s security. Section 41(1) protects the State’s security in legitimate constitutional activities. However, the requested records related to the SSA’s unlawful operations and were not protected by this section.

The outcome of the SSA enforcement action

The SSA enforcement action entails that there is no basis for their refusal to release the records. The SSA information officer had 30 days to comply with the enforcement notice and release the requested information. Subsequently, the SSA has refused to comply with the enforcement notice and is taking the matter on review in a court of law.

Insights for organisations receiving access requests

South Africa promotes access to information because it holds institutions accountable and promotes transparency in line with our Constitutional imperatives. That is why the Information Regulator will grant access to information when necessary. Organisations can prepare for access requests by learning from the SSA enforcement action:

  • Public bodies must provide well-founded, specific reasons when refusing access to information. An information officer bears the burden of justifying a limitation of a right of access to information.  If you are a public body and you plan to reject a requester’s access to records you hold, then you may refuse access on one of the grounds in Chapter 4 of PAIA.
  • If public bodies respond to an access to information request without understanding the PAIA provisions, they can land in hot water with the regulator.

Insights for individuals submitting PAIA requests

  • Empowerment through PAIA. The SSA enforcement action reinforces the rights of individuals to access information held by public bodies. It highlights the importance of challenging refusals and seeking transparency persistently.
  • Precedent for Accountability. The Regulator’s decision encourages people to exercise their rights under PAIA, promoting a culture of accountability and openness in government operations.

The Information Regulator’s decision against the SSA is a great step in reinforcing transparency and accountability principles in South Africa. It sets a precedent for handling PAIA requests, ensuring public bodies cannot rely on vague claims to deny access. Moving forward, the SSA enforcement action serves as a reminder of transparency’s power in strengthening democratic governance.

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