The Department of Basic Education has lodged an application to set aside the enforcement notice issued by the Information Regulator regarding the publication of matric results in newspapers.
"The Information Regulator on or about November 6, decided to serve the Department of Basic Education with an enforcement notice," the department said in a statement on Saturday.
"The tenor of the enforcement notice is to prevent the annual publication of the matric examination results in the local newspapers."
The papers were filed by the department at the High Court in Pretoria on Friday, December 13.
The appeal from the department means that the enforcement notice has been suspended and that they can continue to release the results to media houses who will publish them, in terms of the established practice in which only exam numbers are used.
In the papers from the department, they argue that the publication of the matric examination results in its current format (only the examination number and the results) in local newspapers is not information that relates to an identifiable learner.
Below the Department of Education has outlined their grounds for appeal:
Firstly, an enforcement notice under section 95(1) of the POPI Act can only be issued and served in respect of a past or present interference with the protection of the personal information of a data subject.
Therefore it is reactive in nature so that the proactive enforcement notice served by the Information Regulator on the Department of Basic Education, with regard to the future publication of the matric examination results, is null and void;
Secondly, the Information Regulator is bound by a court order which already settled the lawfulness of the release and publication of the matric examination results in the present format in newspapers;
Thirdly the release and publication of the matric examination results in the present format in newspapers is not the publication of information that relates to an identifiable person which means that the department is not in contravention of section 11 of the POPI Act.
Fourthly the release by the Department of Basic Education for publication of the matric examination results in the present format in newspapers is in any event compliant with the processing limitations contained in either section 11(1)(b), (c), (d), (e) or (f) of the POPI Act.
For the Information Regulator to sit back and merely state a conclusion on the basis that the Department of Basic Education has "failed to demonstrate" a compliance with any one of the conditions in section 11(1) of the POPI Act is therefore insufficient.
The department said that it is for the Information Regulator to positively demonstrate non-compliance with the relevant provisions of the POPI Act in respect of a past or present interference with the protection of the personal information of a data subject before an enforcement notice can be served.
"Therefore, the decision to serve the Department with the enforcement notice is not in accordance with the law and/or involves an exercise of discretion by the Information Regulator that ought to have been exercised differently," the department said.
IOL