The Promotion of Access to Information Act makes it compulsory for all public bodies and Companies to SUBMIT a MANUAL on accessing company information before 28 February 2003.
How do you manage information in your organisation? Do you even know what the requirements are in terms of this Act? Do you know that what is put into your Manual reflects what may be requested? Are you aware of the specific Format this Manual MUST TAKE? How do you defend yourself against your information getting into the "Wrong Hands???"

ACCESS TO INFORMATION ACT. OVERVIEW

1. INTRODUCTION.

1.1 WHAT IT IS FOR -According to the "definition"

To give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith.

1.2 WHAT THIS ACTUALLY MEANS

It means that any citizen has the RIGHT to access specific information held either by a Government Department, a Statutory body such as the CCMA or a Bargaining Council or a PRIVATE COMPANY - Proprietary Limited, Close Corporations etc. Hence the wording "information that is held by another person". So YOU out there, the owner and manager of a business, you need to get "your Act Together" and fast and.... in such a way that it does not prejudice your business.

1.3 PREAMBLE (taken from the Act itself)Note the wording we have underlined.

RECOGNISING THAT- That the system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations; Section 8 of the Constitution provides for the horizontal application of the rights in the Bill of Rights to juristic persons to the extent required by the nature of the rights and the nature of those juristic persons; Section 32(1)(a) of the Constitution provides that everyone has the right of access to any information held by the State; Section 32(1)(b) of the Constitution provides for the horizontal application of the right of access to information held by another person to everyone whenthat information is required for the exercise or protection of any rights; and national legislation must be enacted to give effect to this right in section 32 of the Constitution;

AND BEARING IN MIND THAT- the State must respect, protect, promote and fulfill, at least, all the rights in the Bill of Rights, which is the cornerstone of democracy in South Africa; the right of access to any information held by a public or private body may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution; reasonable legislative measures may, in terms of section 32(2) of the Constitution, be provided to alleviate the administrative and financial burden on the State in giving effect to its obligation to promote and fulfill the right of access to information;

AND IN ORDER TO- foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information; actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights,

2. DEFINITIONS IN TERMS OF PART 1 CHAPTER 1 OF THE ACT.

While we do not intend to establish word for word what the Act says, we will highlight certain VITAL components in order to assist in educating you the reader. A comprehensive guide on the Full Act plus explanations are available on request. Please email us at info@labourjustice.com

2.1 The wording ''personal requester'' means a requester seeking access to a record containing personal information about the requester;

2.2 ''private body'' refers in reality to PRIVATE COMPANIES, business persons, sole traders and the like who either are presently in business or WHO WERE IN BUSINESS and the Act defines the following: -

a) a natural person who carries or has carried on any trade, business or
profession, but only in such capacity (and this would include Lawyers, Dentists, Doctors, Nurses teachers, private contractors sole proprietors etc);
b) a partnership which carries or has carried on any trade, business or profession;
c) any former or existing juristic person, but excludes a public body;

So we now know that the Act includes all persons in business as well as those that WERE in business IN THE PAST. So the wording " private body" refers to YOU, the businessperson, employer and manager and no matter what business you are in

2.3 ''record'' by definition in the Act refers to all information in relation to a public or private body, and it means any recorded information, regardless of form or medium; in the possession or under the control of that public or private body, and whether or not it was created by that public or private body, respectively; So, whatever you have in your possession, in your files, in your back room, can be accessed by staff and by outsiders.

2.4 ''request for access'', in relation to a BUSINESS (private body), means a request for access to a record of that private body in terms of section 50 (and we will cover that section later on). And provided the "requester" uses the correct format, any person has the right to "REQUEST ACCESS TO YOUR INTERNAL BOOKS AND DOCUMENTS";

2.5 ''requester'', means Any person making a Request in the prescribed manner for access to a record or records of any or a specific business, enterprise, trader, practitioner etc.

2.6 "Records in possession" refers to all your records whether they are kept in your filing cabinet in the offices or at home. It also refers to documents kept on your behalf that relate to you and your business by your Attorney, Your accountant, your Tax Consultant, and even your Doctor and Dentist. They would include but not be limited to your internal employment contracts and Codes of Conduct, documents maintained by your SETA; your payroll, your tax documentation, your financials and management accounts ETC,
This is covered by the Act where it refers to your documents being held by a Private Contractor;

3. PART 3 ACCESS TO RECORDS OF PRIVATE BODIES

3.1 CHAPTER 1 RIGHT OF ACCESS (Clause 50)
You now know what a Requestor means but probably have not been able to identify where this could pose a problem
Lets take a look at some areas for you, which hopefully will bring home the truth of the matter: -

3.1.1 Salary Increases and Bonus payments.
Where you are unwilling to give an employee or a collective number of employees an Increase or bonus, the employee may claim that in protecting his/her rights they must have access to your accounting figures in order to ascertain turnover and profit etc;

3.1.2 Retrenchments.
If the need were to arise to terminate the employment of employees based upon operational requirements, the employees, their representative Trade Unions and/or their legal representatives may have the right to access all company documentation in order to assess for themselves inter alia : -
a) the necessity to retrench, and armed with YOUR documentation a solid argument can be forwarded to halt Retrenchments completely;
b) The necessity to alter the timings of the retrenchment - ie make them happen much later thus causing significant financial prejudice to the employer;
c) where severance packages should be increased and to be able to obtain these;
d) How to alter or change the selection criteria;
e) If an outside Facilitator should be selected;

3.1.3 Disputes concerning internal policies and procedures.
Where disputes erupt over your internal policies and procedures,, the employees, their representative Trade Unions and/or their legal representatives WILL have the right to access all company documentation including Employment Contracts and all Codes of Conduct such as those for Discipline, Grievance, Sexual Harassment, Smoking, Retrenchment, HIV /AIDS etc. This could bring about serious prejudice to YOU the employer.
a) If your company is not in possession of these required books and documents they can be demanded and in so doing, the procedures so introduced in that manner would not be drafted by management and would clearly favour employees. A SITUATION TO BE AVOIDED AT ALL COSTS.
b) Alternatively, Inspectors could be brought in to evaluate your company resulting in the inevitable service on the Employer of a Compliance Order and/or heavy fines;
c) Your Employment Contracts in particular can be either amended and /or redrafted in a manner that favours the employee;

3.1.4 Settlements.
When you are in a settlement negotiation or at Conciliation, and you are claiming that you do not have the money to pay a demanded sum, the employee has the right to access ALL information relating thereto. And woe betides you if you have been "misinforming" them;

3.1.5 Dismissals
With clever access to your documentation, most dismissals can be construed as Unfair Dismissals;

3.1.6 Pre-employment and Employment Issues.
A job seeker who was unsuccessful at obtaining a job at your company has the right to access all relevant information such as who was chosen ahead of him/her; why was that person chosen; What are the credentials of that person; who made the choice and why. This will have far reaching implications for any company if not handled correctly.The same is true for promotions and demotions, transfers and similar.Conversely, a job seeker may access required information PRIOR to an interview in order to have that "edge"

3.1.7 Can access be denied?
In "certain" instances, YES. But you need to understand when you may deny access and HOW.

3.2 WHO CAN REQUEST INFO
By definition just about anyone may have access to your records including past and existing employees, job seekers, competitors, outsiders and State bodies.
If a request is received in the prescribed manner and (in theory anyway) "for the exercise or protection of any rights" then they must have access.

4. CHAPTER 2 PUBLICATION AND AVAILABILITY OF CERTAIN RECORDS

This Act makes it a requirement for ALL COMPANIES and BUSINESSES to draft what is referred to as a Manual and this must be submitted on or before 28 FEBRUARY 2003.

The Law requires that this Manual be presented in a specific manner, with specific components and that it is updated at regular intervals by the Owner, MD or CEO of the Company.

Failure to comply is a serious irregularity and defaulters will pay a HEAVY price.

Aside from having drafted a Unique Template (which is available for business persons, owners and managers) we are naturally available to assist all companies with:-

4.1 POSTPONING DATE OF SERVICE OF MANUAL
We have the available expertise to attempt a stall on the service date of the manual and "buy you time"

4.2 DRAFTING A MANUAL THAT IS IN YOUR INTERESTS.
We have the expertise and know how to draft for you the required Manual, including the initial investigation to establish what is in your interests to publish and what is not, and to draft the Manual in such a manner as to protect you from all areas of problems and disputes. This does take time but it is well worth it.
Once the Manual has been drafted in your best interests, we will continue to assist you with updates at the required time;

4.3 TRAINING
We offer specific training on this Act which as follows:-
a) INTERNAL TRAINING - at your premises to Tutor Senior management.
We have found that because of the subject matter it is often best to conduct this 2 day 12 hour training after hours. On conclusion, the company receives a master CD and each delegate a very comprehensive study and procedures guide enclosing a basic manual template;
b) PUBLIC TRAINING - one day seminars in Cape Town, Johannesburg and Durban which will include a basic take home study and procedures guide;
c) TRAINING MANUAL - we offer a unique study and procedures guide /training manual incorporating a basic Manual Template for the DIY types;

IF YOU ARE INTERESTED IN ANY OF THESE PLEASE EMAIL US AT info@labourjustice.com or 0721768309.

Or, complete the following form.

There is no obligation in completing and sending
the following information requests. 1AIA