ACCESS TO INFORMATION IN PRIVATE HANDS

Monday, May 15, 2006
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ACCESS TO INFORMATION IN PRIVATE HANDS
By Saskia Price
Section 50 of the Promotion of Access to Information Act 2 of 2000 (“PAIA”) provides that a person must be given access to any record of a private body if that record is required for the exercise or protection of any rights.  In the recent decision of Unitas Hospital v Van Wyk [2006] SCA 32 (RSA), the Supreme Court of Appeal considered a request for access to a record under the provisions of PAIA and commented on the interpretation of “required” in section 50.
Mrs Van Wyk’s husband had died while a patient at Unitas, a private hospital. Mrs Van Wyk contended that her husband’s death had resulted from the negligence of nursing staff at Unitas. A report on the general nursing conditions in the ICU and high care units at Unitas had been prepared by a doctor employed by Unitas. The report did not mention Mr Van Wyk at all.
Mrs Van Wyk had requested various documents including the report from Unitas under the provisions of PAIA as she intended to claim damages from Unitas. Unitas refused her request in respect of the report and she then applied to the Pretoria High Court for relief. In her papers she did not state that she required the report to exercise any right, only that without it her right to claim damages would be affected. She alleged that the report was a result of an investigation into nursing conditions at Unitas undertaken specifically as a result of her husband’s death. Unitas stated that this was incorrect and the report was contemplated before Mr Van Wyk’s death. Unitas argued that Mrs Van Wyk did not require the report for the exercise or protection of any right as she was assisted by medical experts and had received a complete set of her husband’s medical records. Unitas contended that Mrs Van Wyk already had available all the information needed for her to bring her claim. The Pretoria High Court found that Mrs Van Wyk was entitled to a copy of the report. Unitas then appealed this decision.
In the majority judgment of the Supreme Court of Appeal it was noted that in general the question of whether a particular record is “required” for the exercise or protection of a particular right is inextricably bound up with the facts of the matter. The court found that the threshold requirement is that the requestor must show that the information will be of assistance although assistance alone is not sufficient. The information must be reasonably required in the circumstances and the requestor must demonstrate an element of need or substantial advantage. The majority held that Mrs Van Wyk did not require the report in order to bring her claim for damages against Unitas as she could institute action on the information already available to her.
The court noted that once action was instituted Mrs Van Wyk may well be entitled to access the report under the ordinary rules for pre-trial disclosure of documents. However this did not mean that access to documents should be allowed under PAIA before action was instituted. Although reliance on the provisions of the PAIA was not automatically precluded merely because the information sought would become accessible under the rules of discovery, access to documents under PAIA before litigation has commenced should only be allowed where a requestor has demonstrated that the documents are required. PAIA may be used to identify the correct defendant before instituting litigation but one is not entitled to all the information which would assist in evaluating one’s prospects of success against the only potential defendant.
Judge Cameron disagreed with the findings of the majority. He found that the report would allow Mrs Van Wyk not only to particularize her claim but to assess its ambit and viability and this satisfied the element of need. He relied on the fact that the purpose of the PAIA is to promote “transparency, accountability and effective governance” in private bodies and that it was important to differentiate between private bodies in this respect. As Unitas was a hospital offering essential services to the public it was a “rather public private body” and hence it would give effect to the intention of the statute to provide access to the report. His third point was that the report would assist Mrs Van Wyk in deciding whether to bring her claim at all. This would potentially promote an early settlement of the dispute and avoidance of speculative litigation.
In upholding the appeal the Supreme Court of Appeal has provided direction on the interpretation that is to be placed on “required” in section 50 of the PAIA. In order to satisfy the requirements of the section a requestor must show that the record is reasonably required in the circumstances by demonstrating an element of need or substantial advantage.