A Brief Guide to Manuals under section 51 of the Promotion of Access to Information Act (PROATIA or PAIA Manuals)
What is a PROATIA Manual?
A PROATIA Manual is essentially a list of the information which a company or closed corporation holds and which it is required to make available to any person ("person" includes the government and other companies and corporations) who requests it under the Promotion of Access to Information Act ("the Act").
Think of the information that your business holds. Obviously this will vary according to size and industry, but it will generally include information on employees (e.g. employment contracts), financial matters (e.g. tax) and commercial dealings. Your PROATIA Manual would need to list what information is held, not the information itself (unless you choose to make it freely available).
Who needs to have one?
In short, everyone. The Act is directly applicable to all public and private bodies in South Africa. The definition of private bodies in the Act makes it clear that these include all business forms, from the sole proprietor through to the largest public company.
And if I don't?
The Act does not lay down any specific punishment such as a fine. But -
- Businesses that do not have a Manual or otherwise comply with the Act are highly unlikely to win any government tender work
- It is highly likely that requests for access to the employment records of disciplined or dismissed employees will become a feature of CCMA proceedings - dismissed employees will have access to a variety of information which will have to be provided in accordance with the procedures laid down in the Act.
- The Human Rights Commission is required to publish a list of non-compliant companies
When do I have to have one by?
Regulations published under the Act specify 28 February 2003 as the date by which businesses will need to be compliant with the Act. While it appears likely that a Manual can be completed after this date, we believe it is advisable to undertake the process sooner rather than later.
What kind of information has to be made available?
The Act requires that business compile a listing of all the information which they hold. This will obviously require considerably less effort from SMMEs than it will from larger businesses.
Examples of the classes of information which would be listed would include:
- Contact information: addresses, contact numbers and e-mail address
- Incorporation documentation: e.g. CC registration documents, member's or shareholder's agreements
- Basic information: names of members or directors, employees, salaries
- Information in terms of other laws such as the Employment Equity Act and Skills Development Levies Act.
Who does it need to be made available to?
The Act states that a requester (i.e. a person making a request under the Act) must be given access to a record if
- the record is required for the exercise or protection of his or her rights; and
- the requester follows the formal procedures laid out in the Act; and
- there is no legal "ground for refusal" under which access can be denied.
The Act lists the following grounds of refusal:
- where the record which has been requested contains confidential information about an unrelated party
- where the record contains trade secrets or information about the business which, if released, would be likely to cause financial or commercial loss or otherwise disadvantage the business
- where the record contains trade secrets or information about an unrelated party which, if released, would be likely to cause financial or commercial loss or otherwise disadvantage the unrelated party
- where the record is the subject of a non-disclosure or similar agreement
- where allowing access to the record would endanger the safety and security of individuals and property
- where the record contains information about research being carried on by or for another person
These grounds for refusal are compulsory, i.e. if a request is made for access to a record the person responsible for handling the request must make a decision that the Act does not prohibit the release of the record for one of the reasons listed above.
What must be done with the manual?
Once completed the Manual, which must be regularly updated, must be:
- freely available at the head office
- available on the web site of the business - this will allow requesters to simply download information and minimise administration costs.
Can I charge for photocopying, postage etc?
Business's can choose to make certain information freely available or to charge the fees which have been set out in regulations made under the Act.
22 Mar 2003
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - firstname.lastname@example.org