Access to information held by the Financial Intelligence Centre

Abstract

The Financial Intelligence Centre Act 38 of 2001 (“FICA” or the “Act”) established both the Financial Intelligence Centre (“FIC” also known as the “Centre”) and the Money Laundering Advisory Council. The purpose for these two formations was mainly to fight money laundering activities and related terrorist activities. The Act further imposes certain duties on institutions that might be used for money laundering purposes and related terrorist activities. FICA’s main objectives are to identify the unlawful activities relating to money laundering. The duty of the FIC is to interpret, process and analyse the information disclosed to it and to further monitor and give directive to accountable institutions and supervisory bodies regarding their duties under the Act. The focus of the dissertation is mainly on access to information in terms of section 40 of FICA. Section 40 deals with access to information held by the FIC and further provides for which relevant persons are entitled to information held by the FIC. The relevant persons are the investigating authorities, the South African Revenue Services (“SARS”) and the intelligence services, who will all be provided with information regarding suspicious transactions, on request or at the initiative of the Centre. Furthermore, section 40 makes provision for the sharing of information with foreign entities who perform the same or similar function as the FIC. The sharing of information with foreign entities is only possible through a formal written agreement between the Centre and the entity. The Centre at its own discretion may furthermore decide to provide information to accountable or reporting institutions or persons regarding steps taken by its analysts in connection with transactions that these parties reported to the Centre, unless it would be deemed inappropriate to disclose such information. The study in principal is about access to information in terms of FICA and further compares it with other instruments pertaining to access to information, such as the Constitution of the Republic of South Africa, 1996, the Protection of Personal Information Act 4 of 2013 and the Promotion of Access to Information Act 2 of 2000. It will be seen that different considerations apply in the different contexts, which largely justify the differences in approach.