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Access to Information and Protection of Privacy Bill
November 30, 2001

Contents

PART X

Reviews by Commission

57. Right to request for a review.
58. Procedure for seeking review.
59. Notice of review.
60. Inquiry by Commission.
61. Onus of proof.
62. Commission’s orders.
63. Duty to comply with orders.
64. Appeal against a decision of the Commission.
65. Offences and penalties

 

57   Right to request for a review   TOP

(1) A person who makes a request to a head of a public body, other than the Commission, for access to a record or for correction of personal information may request the Commission to review any decision or act of the head of that public body that relates to that request.

(2) A third party notified of a decision to give access may request the Commission to review any decision made by the head of the public body.

58   Procedure for seeking review   TOP

(1) For the purposes of this section, the failure by a head of a public body to respond within the time limit to a request for access to a record shall be deemed to be a decision to refuse access to the record.

(2) A person requesting a review in terms of this Part shall make such request, in writing, to the Commission.

(3) A request for a review of a decision of the head of a public body in terms of subsection (1) shall be made within 30 days from the date of the decision:

Provided that the Commission may allow a longer period upon a request made to the Commission for the extension of the period.

59   Notice of review   TOP

The Commission shall, on receiving a request for a review, give a copy of the request to the head of the public body and any other person that the Commission considers appropriate.

60   Inquiry by Commission   TOP

(1) The Commission shall conduct an inquiry and may decide all questions of fact and law arising in the course of the inquiry.

(2) An inquiry in terms of subsection (1) may be conducted in camera.

(3) The Commission shall give the person who requested the review, the head of the public body concerned or any person given a copy of the request for a review or anyone who has an interest in the matter an opportunity to make representations during the inquiry.

(4) The Commission may decide—

(a) whether representations are to be made orally or in writing; and

(b) whether a person is entitled to be present during or to have access to or to comment on representations made to the Commission by another person.

(5) The person who requested the review, the head of the public body concerned or any person given a copy of the request for a review may be represented at the inquiry by a legal practitioner.

(6) An inquiry into a matter under review shall be completed within 90 days from the date of receiving the request for the review.

61   Onus of proof   TOP

(1) At an inquiry into a decision to refuse an applicant access to all or part of a record, the head of the public body shall bear the onus of proving that the applicant has no right of access to the record or part thereof.

(2) If the record or that part that the applicant is refused access to contains personal information about a third party, the applicant shall bear the onus of proving that disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy.

(3) At an inquiry into a decision to give an applicant access to all or part of a record containing information that relates to a third party, the third party shall bear the onus of proving that the applicant has no right of access to the record or part thereof.

62   Commission’s orders   TOP

(1) The Commission shall make an order as to its findings on completing an inquiry.

(2) If the inquiry relates to a decision of the head of a public body to give or to refuse to give access to all or part of a record, the Commission shall, by order, do any of the following—

(a) require the head to give the applicant access to all or part of the record;

(b) either confirm the decision of the head or require the head to reconsider the decision;

(c) require the head to refuse access to all or part of the record.

(3) If the inquiry relates to any other matter, the Commission may, by order, do any of the following—.

(a) require that a duty imposed by this Act or the regulations be performed;

(b) confirm or reduce the extension of a time limit;

(c) confirm, exempt or reduce a fee, or order a refund, in the appropriate circumstances, including if a time limit is not met;

(d) confirm a decision not to correct personal information or specify how personal information is to be corrected;

(e) require a public body to stop collecting, using or disclosing personal information in contravention of this Act;

(f) require the head of a public body to destroy personal information collected in contravention of this Act.

(4) The Commission may specify any terms or conditions in an order made in terms of this section.

(5) The Commission shall give a copy of an order made in terms of this section to the following persons—

(a) the person who requested the review;

(b) the head of the public body concerned;

(c) the Minister;

(d) any other interested party.

63   Duty to comply with orders   TOP

Not later than seven days after being given a copy of an order of the Commission, the head of the public body concerned shall comply with the order unless an appeal is lodged before that period ends.

64   Appeal against a decision of the Commission   TOP

(1) Subject to this section, any person aggrieved by any decision or action of the Commission may, within 28 days after being notified of that decision or action, appeal to the Administrative Court.

(2) An appeal in terms of subsection (1) shall be made in the form and manner prescribed and within the period prescribed in the rules of court.

(3) For the purpose of determining an appeal in terms of subsection (1) the President of the Administrative Court shall be assisted by two assessors.

(4) On an appeal in terms of subsection (1), the Administrative Court may, subject to subsection (5), confirm, vary or set aside the decision or action appealed against and may make such order, whether as to costs or otherwise, as the court thinks just.

(5) Any person whose appeal on a ground specified in paragraph (a) or (c) of subsection (1) is upheld shall not be entitled to receive a licence but shall be entitled to have his matter remitted to the Commission for re-determination in terms of this Act.

65   Offences and penalties   TOP

(1) Any person who wilfully—

(a) makes a false statement to, or misleads or attempts to mislead the Commission or any other person in the performance of their duties, powers or functions in terms of this Act;

(b) obstructs the Commission or any other person in the performance of their duties, powers or functions in terms of this Act;

(c) fails to comply with an order made by the Commission;

shall be guilty of an offence and liable to a fine not exceeding $20,000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

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