PARLIAMENT, ACCESS TO INFORMATION & THE CONSTITUTION
Updated: Sep 17
The Protection of Personal Information Act does not make consent a prerequisite to sharing a document containing personal information. That information can simply be redacted/obscured. This is the gist of input from a legal consultant well versed in the Act, who provided it in the context of Parliament’s constitutional obligations to facilitate access to written submissions received during a public participation process and ensuing virtual parliamentary hearings. There has been a tendency for some committee administration staff to withhold access to the more substantive submissions they have received – and to share with journalists only summaries presented during subsequent hearings.
Recently, after public hearings on certain sections of the controversial Copyright Amendment Bill, it took the National Assembly’s Trade & Industry Committee more than two weeks to publish the written submissions on which oral presentations had been made – effectively stymying any attempts by journalists covering the hearings to make the documents more widely available. Yet committee support staff must have received them at least a month beforehand, the deadline having been set at 9 July. Hearings were held on 11 and 12 of August.
Given that the Protection of Personal Information Act has been in force since July 2020, it is far from unreasonable to have expected Parliament’s committee support staff to factor its requirements into the process of facilitating access to all documents received during public participation processes on new Bills. Written consent not being necessary for any of these documents to be made available to journalists attending virtual hearings, parliamentary staff presumably have the equipment to redact any personal information in them ... That some support staff probably work from home under Covid-19 disaster management lockdown restrictions is no excuse for reneging on constitutional obligations – or those imposed by the Protection of Personal Information Act.
The officials in charge of committee services simply need to issue an instruction that personal information in any of the submissions received during public participation processes is obscured – well in advance of the ensuing hearings. If it was possible, before Covid-19, to arrange for piles of hard copies of these documents to be available during parliamentary hearings on the precinct, preparing them to ensure that personal information is protected must also be possible. All suitably 'doctored' documents can then be put in a zip file and emailed to the committee secretary responsible. That way, submissions can be sent to Parliamentary Communications Services before a public hearing and circulated to journalists immediately.
According to sub-section 195(1)(e) of the Constitution (basic values and principles governing public administration) ‘the people’s needs must be responded to, and the public must be encouraged to participate in policy-making’. In terms of sub-section 59(1), the National Assembly is mandated to ‘facilitate public involvement in the legislative and other processes of the Assembly and its committees; and conduct its business in an open manner, and hold its sittings, and those of its committees, in public’. Committee administration staff undermining Parliament in its associated obligations (for whatever reason) need to be held to account.
This version of the article was published on 16 September in Legalbrief Today, under Policy Watch. Juta Law owns the copyright. It is made available here with Juta's permission.
National Treasury’s decision to post the 2000 Promotion of Access to Information Act, the 2013 Protection of Personal Information Act and the 2018 protection of personal information regulations on its website yesterday has drawn attention to their significance for government institutions. That said, what prompted the decision is not clear. An accompanying media statement would have been helpful. Meanwhile, ordinary South Africans have yet to be notified how Parliament intends fulfilling its obligations under sub-section 59(1) of the Constitution now that the Protection of Personal Information Act is largely in force, notes Legalbrief's Pam Saxby.
In terms of this sub-section, among other things the National Assembly is mandated to ‘facilitate public involvement in the legislative and other processes of the ... (House) and its committees; and conduct its business in an open manner’. Yet, ever since Covid-19 disaster management regulations forced National Assembly and NCOP committees to hold their meetings virtually, some secretaries have stubbornly denied observers access to the written submissions underpinning oral representations during parliamentary hearings.
Surely, by now, the institution has come to an understanding of what is required to balance its obligations under the Protection of Personal Information Act with those under sub-section 59(1) of the Constitution? This is especially given that sub-section 195(1)(e) (basic values and principles governing public administration) makes it abundantly clear that ‘the people’s needs must be responded to, and the public must be encouraged to participate in policy-making’. If ordinary South Africans are to participate meaningfully, they need to be informed – a process that can only benefit from access to all submissions received during parliamentary hearings on new Bills.
Apparently, the Protection of Personal Information Act does not make consent a prerequisite to sharing a document containing personal information. That information can simply be redacted. Before Covid-19, piles of hard copies of written submissions and PowerPoint presentations were available during parliamentary hearings on the precinct. The deadlines set for accepting submissions on new Bills mean that they are usually with committee support staff well before parliamentary hearings take place. There is ample time for the redaction of any personal information included – which is usually in the cover note.