Dear Corruption Watch: In May, the deputy minister for constitutional development announced that an information regulator would soon be appointed in terms of the Protection of Personal Information Act.
What is the role of the information regulator? How does the appointment process work? Would there be recourse for interested parties if unsuitable candidates were to be selected?
Dear Privacy Proponent
The establishment and appointment of the information regulator is significant. The regulator will play a central role in protecting your personal information. In order to understand the nature of the regulator, it is necessary to know the basic features of the Protection of Personal Information Act.
The purpose of the act is in its name – it safeguards against the unlawful collection, retention, dissemination and use of personal information. In doing so, it protects and promotes the constitutional right to privacy.
However, the act recognises that the right to privacy must be balanced with other important rights and interests. Our constitution values openness and affords individuals the right of access to information. In addition, economic and social progress requires that unnecessary impediments to the free flow of information (including personal information) be removed.
To achieve this balance, the act sets out requirements for the processing of personal information. It also establishes the office of the information regulator, whose powers, functions and duties include:
- Monitoring and enforcing compliance of public and private bodies with the act;
- Researching and monitoring developments in information processing and computer technology to minimise adverse effects on the protection of personal information;
- Examining any proposed legislation or government policy that the regulator considers may affect the protection of personal information;
- Informing parliament when there is a need for legislative, administrative or other action to better protect the personal information of particular persons or groups; and
- Receiving and investigating complaints about violations of the protection of personal information of individuals.
In addition, the regulator will hear internal appeals under the Promotion of Access to Information Act. This is intended to ensure swift access to information and to justice by avoiding lengthy (and costly) litigation.
To effectively fulfil these functions, the regulator must act independently and be free from any political interference.
The legislation attempts to secure the institution’s independence in a number of ways. For example, the act requires that all political parties in Parliament be involved in the appointment of members to the regulator.
The appointment process is as follows: a multi-party committee of the National Assembly is required to nominate persons who are eligible for appointment as members of the regulator.
Thereafter, the National Assembly must approve the nominations with a majority vote. The president will appoint members on the basis of the assembly’s recommendation.
While the act does not explicitly provide for public participation in the appointment process, the nominations and recommendation made by the committee and parliament should be accessible to the public. As a consequence, these decisions are subject to scrutiny and debate.
Further, the regulator’s chairman and four members may not be members of Parliament, office-bearers in a political party or public servants. And they must have the appropriate qualifications, expertise and experience for the position.
The appointment of any person who does not satisfy these criteria would be unlawful. As such, it would be subject to challenge by members of the public.
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• This article was first published in Sunday Times: Business Times