South Africa to Create Information Regulator

10 December 2012

A new “Information Regulator” to be created in South Africa will oversee the access to information law as well as a new data protection law, fulfilling a long-running goal of access to information activists.

The development comes in the context of data protection legislation approved by the Parliament and expected to be signed into law before Christmas.

Access to information campaigners that have been pushng for the creation on an information commissioner for about a decade.

The new Information Regulator will have the power to issue binding orders in all access to information matters, according to the provisions of the Protection of Personal Information legislation. The bulk of the bill is designed to protect personal information against unlawful collection, retention, dissemination and use.

 Member of Parliament Mudene Smuts said during debate on the bill in the Assembly Sept. 11:

The regulator, Speaker, and this is a big breakthrough, the information regulator, a new independent regulator that we herewith create, will have functions and dedicated regulators under the both the Protection of Personal Information Bill and the Promotion of Access to Information Act, Act 2 of 2000.

She also stated: “We hope that the failure of access to information to date in South Africa, despite the Promotion of Access to Information Act, may now be cured. This regulator will able to assess Promotion of Access to Information Act practices, take complaints for conciliation and also for action. Appeals against refusals for information under Promotion of Access to Information Act will be able to be taken to the regulator. This, finally, is the breakthrough that we suggested in the Chapter 9 review, and it is an enormous advance.”

Regulator to Be Independent  

The Information Regulator will have a structure headed by a chairperson, with two full-time and two full-time or part-time persons. The chairperson will be appointed by the president on the recommendation of the National Assembly. One of two persons working under the chairperson will handle access to information matters.

Member of Parliament Charlotte Chana Pilane-Majake explained during the debate:

For some time now, the need for a dedicated information commissioner to champion the challenge of access to information issues has been mooted. Clause 43 of the Bill expressly provides for a full-time member of the regulator dedicated to exercising his or her powers and performing his or her functions and duties in terms of the Promotion of Access to Information Act. Once the internal appeals process provided by the Promotion of Access to Information Act has been exhausted, an aggrieved person can elect to approach either a court for relief or the regulator who is empowered to deliver an enforcement notice.

 Clause 5 of the Bill gives effect to data subjects’ right to have responsible parties process their personal information in accordance with the conditions for lawful processing. This includes the right to be notified that their personal information is being processed.

In addition, the bill transfers from the South African Human Rights Commission to the information regulator certain powers and functions related to the 2000 Promotion of Access to Information Act. Training, monitoring and reporting on the freedom of information law will be done by the Information Regulator, not the Human Rights Commission.

Alison Tilley, the Executive Director of the Open Democracy Advice Centre (ODAC), commented to FreedomInfo.org: “We are very pleased. Implementation is the next phase, and will have its own challenges. Ironically, this is not part of the SA government’s OGP [Open Government Partnership] plan, but marks useful progress after some alarming reverses, including the Secrecy Bill as originally tabled.”

Mukelani Dimba, ODAC’s Deputy Executive Director, wrote: “This is a moment of great elation for advocates of freedom of information in South Africa. We congratulate parliament’s Justice Committee for the exemplary manner in which the bill was processed. The process of drafting this bill was inclusive and participatory. The committee heard from various stakeholders from all walks of life and worked very closely with civil society organisations and constitutional bodies to incorporate most of the proposals made by the public. I am proud of the leadership provided by the Open Democracy Advice Centre and its Executive Director, Alison Tilley, who has tirelessly worked with parliament and South African Law Reform Commission on this issue for over a decade.”

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