Overview
- The Constitution guarantees the right of access to information held by the state to uphold the principle of accountability, which forms a foundation of our democracy. The Promotion of Access to Information Act 2 of 2022 (the PAIA) imposes 'reasonable and justifiable' limitations on this right by exempting certain information from disclosure, as outlined in Chapter 4 of the PAIA.
- Public bodies can sometimes refuse access to information to protect their commercial interests or those of third parties. However, disclosure may still be required if it serves the public interest. This article explores how, when there is a conflict between the commercial interests of public bodies and the public interest, the judiciary generally favours transparency and disclosure of information in line with the underlying provisions of the PAIA and the Constitution.
Transparency within the state is necessary considering the right of access to information in section 32 of the Constitution of the Republic of South Africa, 1996 (the Constitution), and the basic values and principles governing public administration, which emphasise transparency and accountability (the Constitution, section 195).
In South Africa, access to information from public bodies is governed by the PAIA. The preamble of the PAIA affirms its role in giving effect to the constitutional right to access information held by the state and any information necessary for the exercise or protection of rights.
Adequate reasons are required to justify refusing a request for access to information
Section 42(3)(b) of the PAIA prohibits the disclosure of certain information where such disclosure would, among other things, cause material harm to the economic interests and commercial activities of public bodies. The PAIA strikes a balance between the right to access information with the need to protect confidential information that is crucial to the economic stability of public bodies. This is because not all information held by public bodies is necessarily in the public interest.
It is important to note that the harm that is alleged by Section 42(3)(b) must relate to the public body to which the request for information is made. In M & G Media Ltd v 2010 FIFA World Cup Organising Committee South Africa Ltd 2010 JDR 0697 (GSJ) the FIFA World Cup Organising Committee relied on section 42(3)(b) as grounds to refuse requested records, stating that the records constitute commercial information relating to its business and operations, and that their disclosure would likely harm its commercial interests. However, the court held that the Committee had failed to show substantial grounds that the alleged harm related to the Committee itself and not FIFA which is a separate entity. In the same breath, the court also held that the harm incurred would be far less than the harm done to the public's right of access to information.
In terms of section 25(3)(a) of the PAIA, a public body is required to furnish adequate reasons for refusing access to information. There is a burden placed on public bodies to prove adequately that a refusal of a request for information was justified, as found in section 81(2) of the PAIA. This evidentiary burden must be discharged on a balance of probabilities and the public body in question must provide sufficient evidence for a court to conclude that the information withheld falls within the exemption for disclosure (Ericsson South Africa Proprietary Limited v City of Johannesburg Metropolitan Municipality and Two Others [2022] ZAGPJHC 1046 para 31). Section 28(1) of the PAIA, also stipulates that if a record contains partly confidential information, the public body must still provide access to the remainder of the record if the latter can be reasonably severed from the confidential record.
What about confidentiality clauses?
Public bodies conducting commercial activities are bound by their constitutional obligations of transparency and accountability. Therefore, there is a level of transparency required in their commercial affairs, and they cannot simply rely on contractual confidentiality or non-disclosure clauses to hide information.
The mere presence of a confidentiality clause in an agreement does not justify withholding information/records requested in terms of the PAIA. The courts have emphasised that relying on a confidentiality clause alone would undermine the spirit and purpose of the PAIA (Organisation Undoing Tax Abuse NPC v South African National Roads Agency Ltd and Others [2023] ZAGPPHC 1903 para 40.
In Health Justice Initiative v Minister of Health [2023] 10009-22 (GP) the court reviewed a request for access to the records related to the Department of Health's agreements for the supply of Covid19 vaccines, because vaccination plans are of public interest and require disclosure. The respondents argued that disclosure would constitute a breach of the agreements. The court held that it is not permissible for the state to conclude agreements that include a confidentiality clause and then rely on that clause to circumvent their obligations of accountability and transparency.
Balancing commercial and public interests
The PAIA provides that an information officer must still grant a request for access to information if the public interest in disclosing the information outweighs the potential harm of the disclosure.
Section 46 of the PAIA provides for mandatory disclosure in the public interest and states that, despite any other provision of Chapter 4, the information officer of a public body must grant a request for access to a record if the disclosure of the record would reveal evidence of a substantial contravention of the law or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.
In such cases, the onus is on the requester to show on a balance of probabilities, that the disclosure would reveal evidence of a substantial contravention of the law or failure to comply with it. In these circumstances, a requestor must show that the disclosure would reveal evidence of the required contravention or failure, and not that the disclosure would, as a fact, show such contravention or failure.
Conclusion
PAIA provides mechanisms to protect confidential commercial information and imposes stringent requirements on public bodies to justify refusing access to information. This approach maintains a balance between safeguarding commercial interests and upholding the public's right to access information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
