The Freedom of Information Act (FOIA) was gazetted in July 2020 to repeal the Access to Information and Protection of Privacy Act (AIPPA) and to also give effect to the right to access to information as provided for by the Constitution.
The objectives:
•to give effect to the right of access to information under the Constitution; and
•to establish voluntary and mandatory mechanisms or procedures to give effect to the right of access to information to facilitate swift, inexpensive and simple access to information; and
•to promote transparency, accountability and effective governance by taking any steps necessary to—
(i) educate or inform the public of their rights in terms of this Act; and
(ii) ensure that appropriate assistance is afforded to members of the public seeking to exercise their right of access to information to facilitate the exercise of the right.
Who has a right to do requests for access to information?
• Any person who wishes to request access to information from any public entity, public commercial entity or the holder of a statutory office under the rights granted under this Act may apply in writing in a prescribed manner to an information officer of the public entity, public commercial entity or holder of a statutory office concerned.
•On receipt of a request, an information officer must immediately provide a written acknowledgement of the request to the applicant.
•If an information officer is able to provide an immediate response to an applicant that is to the satisfaction of the applicant, the information officer shall make the response.
Responses to requests for access to information:
•an information officer to whom a request is made shall, as soon as is reasonably possible, but in any event within twenty-one days of the date of the request—
(a) determine whether to grant the request; and
(b) notify the applicant of the decision whether to grant the request, in writing;
and
(c) if the request is granted, give the applicant access to the information.
•Where a request relates to information which reasonably appears to be necessary to safeguard the life or liberty of a person, the responsible person or holder of a statutory office shall, within forty-eight hours of the submission of the request—
(a) determine whether or not the request may be granted; and
(b) notify the applicant of the decision whether to grant the request, in writing;
and
If a request is granted, the entity should specify:
•(a) the form in which access to the information will be given; and
•(b) the fees due, including any reproduction, translation or transcription fees,
if any, payable before the further processing of the request.
What happens when there is a refusal to provide information?
If a request is refused, the notification shall—
•(a) state adequate reasons for the refusal, based on the contents and substance of the request and the information considered by the information officer; and
•(b) contain a reference to specific provisions of this Act upon which the refusal is based; and
•(c) inform the applicant of the right to appeal against the decision in terms of section 35 of the FOIA.
When can an information officer seek an extension of time to provide the requested information?
An information officer to whom a request is made may, within the initial twenty-one days, seek the consent of the applicant for an extension of time for a period not exceeding fourteen days if—
•the request is for a large amount of information or requires a search through a large amount of information, and meeting the original time limit would unduly interfere with the operations of the entity concerned; or
•consultations that cannot reasonably be completed within twenty-one days are necessary to comply with the request.
NB– The applicant or information officer can appeal with the Commission if there is some misunderstanding on the timeframe given.
The Act further provides for the right to appeal against the decision of an information officer or a third party who refuses to consent to access information. An applicant who has been denied access to information can appeal to ZMC.
A report by the Media Institute of Southern Africa (MISA) Zimbabwe explains the regulations for appeal as follows:
On the filing of an appeal, the Regulations provide for the establishment of the Public Information Appeals Committee, which shall have at least three and not more than five members, one of whom must be a Commissioner.
The Commissioner shall be the Chairperson of the Committee, and where there are two Commissioners, one of them shall be responsible for chairing the Appeals Committee.
The other members of the committee shall be drawn from the Secretariat or from a list of adjudicators approved by the Commission for their experience and competence in adjudicating disputes.
Of note, is the fact that the regulations, provide discretion to ZMC to establish or not to establish the afore-mentioned Committee, hence, in the absence of such a Committee, the Commission itself, will be responsible for hearing appeals.
Further, the Secretary of the Commission also has specific roles to play with regard to the handling of appeals by the Commission, which include the following:
- register established for that purpose and assign an individual case number to the record request the information officer whose decision is appealed against to submit to the Commission, within ten days, the application for access to information together with the officer’s reasons for refusing access notify any third parties of the appeal, if the appeal affects any third party, and request them to make written representations within seven days as to why the request for access should not be granted prepare a record of the matter and transmit the record to the Commission or the Appeals Committee established by the Commission.
