The Promotion of Access to Information Act, No. 2 of 2000 (“PAIA”) gives effect to section 32 of the Constitution of the Republic of South Africa, 1996 (“Constitution”). More specifically, PAIA provides for the enforceability of “the right of access to information” and “the right of access to any information held by the State and to information held by another person that is required for the exercise or protection of any rights”.
Section 26(7) of the Companies Act, No. 71 of 2008 (“the Companies Act”) provides that the rights of access to information set out in the Act are in addition to, and not substitution for, any rights that a person may have in terms of the Constitution or PAIA. Does this mean that persons can make a request for company records and information of private bodies in terms of PAIA in order to obtain information which such a person is not entitled to in terms of the Companies Act?
The reference to “information held by any other person” in section 32 of the Constitution includes private bodies such as natural persons or partnerships that carries on trade, businesses or professions. PAIA requires that all private bodies must disclose their records if (i) the procedural requirements have been met
PAIA overrules the Companies Act and any other legislation that may prohibit or restrict access to information, in an attempt to develop a culture of transparency and accountability. However, just like many other rights contained in the Constitution, the right of access to information can be limited in certain circumstances. PAIA provides for this limitation and sets out grounds upon which a request for information must or may be refused.
One of the specified limitations is that a private body must refuse access to the following information if there is sufficient evidence that the release of such information has the potential to harm to the commercial and/or financial interests of the business –
- Trade secrets;
- Financial, commercial, scientific, research or technical information about a third party which, if released, would cause harm to the third party; or
- Information which has been supplied in confidence by the third party.
The fear of companies having to “throw open their books” upon receipt of a PAIA request for information is misguided and is sufficiently curtailed by the mandatory grounds of refusal and the various grounds upon which a request for information can be refused.