According to section 7(1) of the Promotion of Access to Information Act, the act does not apply to a record requested for the purpose of civil proceedings which have already commenced.
Where a potential claimant requests information from the other party to pursue the claim, the rule of thumb is whether the records requested are reasonably required to formulate the claim. If the claim can be formulated without the information, the documents can be obtained later in the course of the action instituted.
In Mahaeeane v Anglogold, the applicant sought detailed information from the respondent mine for which they had worked before being boarded on the ground of having contracted silicosis. The claimants were represented by the same attorney who had instituted a class action against the mine for employees as a class seeking damages for work-related silicosis.
The applicants submitted that they were not part of the class action although they were of a class of persons who would be included as beneficiaries of a successful class action. There was some suggestion that the applicants had been deliberately kept out of the class action in order to pursue the request for information.
Whether information is ‘required’ is an accommodating standard which is flexible and fact-bound. The applicant must show how the information will assist in protecting their right.
The certification of the class action was the ‘bringing or commencement of suit’.
Because a class action had already been instituted, there was no evidence that the information was required to exercise the right of action. The information required did not relate to the exercise of the right to claim damages but to the evaluation of whether the applicant should do so or not. This did not meet the test of the records being required to ‘exercise or protect’ the right relied on. The cause of action and the ability to institute a class action were already established.
The machinery of discovery in the class action or any action instituted by these applicants would make the records requested available in order to decide whether to continue the claim. The certification of the class action was the ‘bringing or commencement of suit’ and the request for information was therefore prohibited by section 7(1) of PAIA.