'Requester' Debate; Exemptions; Procedural Provisions

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Meeting report

JOINT ADHOC COMMITTEE ON THE OPEN DEMOCRACY BILL
18 January 2000
'REQUESTER' DEBATE; EXEMPTIONS; PROCEDURAL PROVISIONS

Documents handed out:
Revised Working Draft (11 January 2000) (OPD95)
Grounds of refusal of access to records of public and private bodies (17 January 2000) (OPD101)
Draft of 18 January 2000 (OPD 104) (see Appendix)

SUMMARY
Morning session
The Committee began the session with a debate between the Governing Party and Opposition Parties as to whether the definition of the term "requester" included giving the State a right of access to information from private bodies.

Thereafter the Committee completed deliberations on the exemption clauses in the draft dated 17 January 2000. They then discussed Right and Manner of Access to records of public bodies.

Afternoon session
The committee looked at the feedback from Mr Mahlangu’s working group, which worked on reaching consensus on the procedural aspects of the Bill. There were relatively few problems and most were ironed out during this discussion.

They then checked the final amendments to the Long title, Preamble, Table of contents, Clauses 1-16A, 49 and 92 as contained in OPD104. Most of the discussion involved the definitions of "information officer" and "person".

Evening session
The committee completed discussing the definition section and rest of Chapter 1 and 2. With regard to the definition of "requester", none of the listed options were suitable, so a new definition was drafted which made reference to 49(1). All members agreed that the new definition was acceptable.

MINUTES
Morning session
Debate over the meaning of "Requester" in relation to a private body
The Chair explained to the public gallery about the background to this debate. He said that the debate concerned horizontally, specifically the extent to which the State was entitled to horizontal rights. In this case, the question at issue was whether the State had a right of access to information from private bodies set down in s32 (1) (b) of the Constitution.

Submissions by Opposition Parties
Dr Delport (DP) began the debate by arguing that allowing the state such a right was both unconstitutional and undesirable. He argued that it was unconstitutional for inter alia the following reasons:
The term "everyone" in s32 refers only to human beings or to juristic persons to the extent they represent human beings. That State is not a human being
The Constitution gave rights to individuals to protect them from the power of state. If the State assumed these rights as well, it would undermine this protection. Bill of Rights internationally exclude

Dr Delport argued that it was undesirable for the following reasons:
- The State has other means of obtaining access to the information of private bodies (for example, legislation).
- Granting them rights in addition to the powers they already possess would simply make the state too powerful. It would make it too easy to intrude upon individual privacy.
- It was unfair that Cabinet should be able to have access to information pertaining to individuals but individuals could not have access to information held by the Cabinet

All opposition parties present supported to a greater or lesser extent the views espoused by the DP. Mr Smith (IFP) added that while he could support the idea of some state organs having a right to access to information, he did not see the State as whole being entitled to such a right.

Response by Governing Party

Mr J Cronin (ANC) led the response to the Opposition Parties’ arguments. The ANC argued that such a horizontal right was both constitutional and desirable for the following reasons:
- The Bill of Rights does not necessarily exclude the State from the horizontal rights it grants. Indeed the concept of juristic persons can be extended to embrace state bodies as well.
- The State’s right of access to information is to be subject to an additional limitation: Exercise of that right would have to be in the public interest. This limitation should curtail fears of government omnipotence.
- The South African situation was unique. Simply because Eurocentric Bills of Rights did not give the State horizontal rights did not mean South African law should follow their example.
- The idea of an all-powerful state intruding into the privacy of a helpless individual was not always accurate. Sometimes there are powerful individuals who have access to as many if not more resources than the State (e.g. Anglo-American)
- The mischief the Bill seeks to correct is the situation of huge numbers of impoverished, information-deprived, semi-illiterate people in South Africa. The public sector must be permitted to act in these people’s interest to alleviate their plight.
- If the State does not have a right of access to information, the State would be forced to pass legislation granting them such powers.
- The right of access to information is essential for good governance.

Conclusion of debate
The Chair concluded the debate by lamenting the fact that parties appeared to be talking past each other rather than to each other. He said that he would never agree to pass the Bill if sections of it could be shown to be unconstitutional as such an exercise would be futile. At the same time, he noted that horizontality was a new area of constitutional law and that no lawyer would be able to give a definite answer to the question of whether the state had horizontal rights. He also noted that parties needed to make a distinction between the state having power or authority to do something and the state having a right to do something. He suggest that the parties talk to one another on an informal basis so this matter may be dealt with before the vote is finally taken.

PART 2 PUBLIC BODIES
Chapter 4 Grounds of refusal for access to records
s42 Economic Interests of Republic and Commercial Activities of Public Bodies
The Chair recommended that the words "to any person which is not a public body" in s42(2B) Option 1 be removed. This should be done in light of the possibility that shares in one public body may be transferred to another public body. There is no reason why information about that share transaction should escape the provisions of this section.

Some members complained that Option 2 for paragraph (3)(d) was too vague. The chair disagreed and pointed that each of the options for its paragraph came from legislation in different countries.

Mr Jeffrey (ANC) criticised Option 2 for the introductory part of s42(4). Bills should not refer to specific cabinet posts as these may sometimes disappear depending on how the President decides to constitute his or her Cabinet. This was agreed.

s43 Operation of Public Bodies
The Chair recommended that s43(3) be redrafted to create a strong link between this section and the provisions of the Administrative Justice Bill (AJB). As this section concerned records containing reasons for decisions taken by public bodies, the Chair feared that the ODB would usurp the provisions of the AJB which also dealt with reasons for administrative decisions. The Chair thus argued that it must be made clear in the Bill that the records governed by the AJB would not be dealt with in terms of the ODB.

s44A Necessity of Harm
The Chair remarked that this section had been recommended by the DP as a catch-all override provision.

s45 Mandatory Disclosure in Public Interest
The Chair noted s45(1)(iA) had been rejected.

PART 3 PRIVATE BODIES
Chapter 4 Grounds of refusal for access to records
s65 Mandatory Protection of Privacy of third party
The Chair suggested s65(2)(a) be changed so that individuals must have given their "informed" consent in writing for the disclosure of the record. Adv Lever (DP) pointed out however that our common law had developed so that individuals would not be bound to any contract which they signed without unusual terms being pointed out to them. A term permitting the disclosure of a record would be an unusual term thus any valid consent is likely to be informed consent. The Chair accepted this reasoning.

s67 Mandatory Protection of commercial information of third party
The Chair suggested that this section be re-examined by Ms van Schoor (drafter) in order to make improvements in the language used.

s72 Mandatory Disclosure in public interest
The Chair recommended that a similar test to the one used with public bodies be adopted.

s72A Adverse Effects
The Chair indicated his intention to vote against the inclusion of this clause (Option 2). He said that this clause was contrary to the spirit of the bill as it might enable private bodies to easily avoid disclosing information that affects requesters.

Chapter 3: Right And Manner Of Access: "procedural provisions"
s16 Right of Access to Records of Governmental Bodies
The Committee decided that s16 was a substantive provision and did not belong with the procedural provisions of Chapter 3. It was decided that, for this reason, s16 should be moved out of chapter 3 to Chapter 4.

s18 Form of Requests
The Chair noted that the wording of s18(e) (Both options) excluded requesters for information from countries other than South Africa. The Chair said that it was extremely difficult to draft legislation with foreigners in mind. For this reason, he argued that the matter of foreign requesters should be dealt with separately in the form of an amendment or other new legislation once the ODB had been passed. This was agreed.

Many committee members suggested that s18(e) Option 1 be amended to include electronic mail as well. This was agreed.

Some committee members were concerned that s18(e) required that requesters specify a postal address or fax number. This provision, they argued, could prejudice homeless, poor people who requested information. It was recommended that the clause be redrafted so as to indicate that stating any means of contacting the requester was sufficient for purposes of the form. This was agreed.

It was also decided that s18(2)(d) and s18(5) could both be deleted in light of the respective facts that option 2 for clause 22 was going to be used and that people other than those specified in s8(5) could be requesters.

s19 Duty to Assist Requesters
Some committee members were concerned that s19(1) (all options) would compel information officers to render an unreasonable amount of free assistance to requesters. For this reason, it was agreed that s19(1) should be amended to qualify the word "assistance" with the adjective "reasonable". It was agreed that the word "must" render assistance in s19(1) could be changed to "may" for the same reason.

Afternoon session
Report-back on problems with the procedural aspects of the Bill
The problems encountered with the procedural aspects which had been considered in a small working group headed by the Co-chair, Mr Mahlangu, were discussed:

Part 2 Access to records of Public Bodies (using OPD 96)
Chapter 3 Manner of Access
Clauses 17, 18 and 24
Adv H Schmidt (DP) was concerned with the drafting of these sections. There were several options which combined these sections in various ways and he found them confusing.

Ms van Schoor explained that the clauses in the original Bill were in fact 17, 18 and 24 – dealing with request, deposit and access fees. The different options started after "request fees". The clauses in brackets under "payment of request fee", were as they appeared in the original Bill. Three different options then followed. The first option keeps 17, 18 and 24 as three separate sections. The second option deals with them in one clause and the third option uses two clauses. The principle however did not change. She favoured Option 2.

Since all the options included the same principles, Adv De Lange said that Options 1 and 3 should be deleted.

Clauses 25 and 26
Mr Schmidt opposed the use of "head of the governmental body concerned" in 25(2)(c) but added that it was an option to delete it.

Adv De Lange was not even in favour of internal appeals. Thus this section would depend on whether the committee agreed to an internal appeal or not.

In 25(3)(b) and 26(3)(b) Mr Schmidt also had a problem with "justify".

Adv De Lange said that one could simply leave "to justify the refusal " out.
This solved the problem.

Clause 29
Mr Mahlangu reported that there was a lack of consensus around the use of the word "sensory" in 29(5). It was agreed that it had to be deleted.

Adv De Lange said that 29(a) had to be returned to at a later stage.

Clause 48
In 48 (3)(b) there was once again the problem with "to justify the refusal " which was also left out.

48 (3)(d) was also problematic in relation to the time period in which an internal appeal had to be lodged. Ms van Schoor said that the 30 days previously referred to, would apply.

Mr Jeffrey (ANC) said that this section had to be cross-referenced with 82 (2). Adv De Lange said that this would not solve the problem since it was not certain yet what 82(2) would in effect state. This concluded the problems with the procedural aspects in the public body section.

Part 3 Access to records of Public Bodies (using OPD 96)
Chapter 3 Manner of Access
Clause 57
Mr Mahlangu noted a spelling error in 57(1): "from" should be "form".

Clause 58
In 58(2) the reference to "government body" should be "private body".

With regard to fees in 58(9), Adv Schmidt said that the DP opposed most of the Minister’s powers in (b), (c), (d) and (f), such as determining what the fee limits for private bodies were.

Prof M Mabeta (UDM) could not understand Adv Schmidt’s point. He said that most of the people who needed access to documents held by private bodies (like big corporations) could not afford to pay for them, let alone have a lawyer enforce their rights to obtain such a document. Thus he felt that private bodies had to have limitations placed on the amount of fees which they could charge.

Adv De Lange said that in 58(9) there were 2 principles. Firstly the minister’s power to make regulations on certain matters regarding fees was enshrined. Secondly where he decided to exempt a person from having to pay certain fees, he had to publish this by notice in the Gazette.

Ms F Chohan Khota (ANC) was a bit worried about the information officers who would have to apply the applicable laws in relation to fees. They would have to look at the provisions of the Bill, the manuals as well as these regulations and finally the latest notices.

Adv De Lange said that the Bill was simply spelling out principles. These would have to be fleshed out in regulations.

Mr L Landers (ANC) asked how an information officer would know that the Minister has issued a particular notice in a particular gazette.

Adv De Lange said that private bodies affected by this Act would obtain any regulations which fit in with the Act. The Human Rights Commission would also have guides on which regulations would be applicable to which Acts.

Mr J Jeffrey suggested that it should be made obligatory for guides and manuals in terms of the Act, to have this information on fees.

Adv De Lange said that in 58(9) "by notice in the gazette" had to be replaced by "as prescribed". Where the Minister acted in terms of (a) and (e) then this had to be "published in the gazette".

Mr Mahlangu was concerned about the absence of a time frame in 58(7) in respect of repayment of the deposit. He said that there was the same problem in both the public and private sphere. Adv De Lange said that this issue could be dealt with in regulations.

Adv De Lange noted that the committee would have to come back to 63A.

Chapter 5 Third Party Notification
Mr Mahlangu said that the amendments made earlier in the public sphere would apply here and no other proposed amendments had been made.

Adv De Lange announced that the committee had now gone through the whole Bill once since coming back from recess and it had given its final drafting instructions to Ms van Schoor. Secondly, the final instructions on exemptions had been checked for correctness. The final instructions on the procedural aspects just completed and the enforcement mechanisms still had to be drafted. . The final instructions on the Long title, Preamble, Table of contents, Clauses 1-16A, 49 and 92 (as contained in OPD 104) would now be checked.

Preamble (using OPD 104)
Mr P Smith (IFP) said that "another person" should be replaced by "private bodies" in the fifth paragraph in Option 1.

Adv De Lange noted that they had to be very careful that the Preamble was clear since it was an interpretative mechanism. When it refers to the Constitution then the words in the Constitution had to be used very clearly. When one is interpreting the Act (as Mr Smith had picked up with "another person" and "private body") then clearly one would want to use exactly what is being used in the Bill. He said that what also had to be stated in the Preamble was that the task of the legislature was really to weigh up the right of information against all the other rights in the Constitution and create a balance.

Definitions
(using OPD 104)
In checking this section, the following definitions in the new draft engendered discussion:
"court"
Adv De Lange said that when the definition of "court" had been settled in terms of the Administrative Justice Bill, that definition would also apply here.

"head"
As there was no support for Option 2 of the definition of head, it was scrapped.

In (b) there seemed to be no support for its Option 2. According to Ms Van Schoor its deletion would have a bearing on "private body". Adv De Lange decided that once they had discussed the definition of "private body" they could assess whether there was any support for Option 2 for (b). If not, it would be deleted.

"individual’s next of kin"
As there was no support for (a) and (b) in Option 2, these were left out whilst (c) and (d) remain.

"information officer"
This definition was somewhat problematic. Adv De Lange stated that in relation to national and provincial departments all the definition had to refer to was the Director General or the equivalent. This would cover all problems such as the delegation of power to deputy Directors General and others.

Mr Smith suggested that "provincial departments" be changed to "provincial administration". Adv De Lange agreed and also suggested the removal of the reference to schedule 2 in the (a) part of the definition.

Ms R Taljaard (DP) asked with regard to (c) whether it accommodated for the possible future growth in agencies as an adequate "catch-all". She was speaking about the reference to chief executive officer being a flexible term in this regard. Adv De Lange replied that the inclusion of "or equivalent officer" took care of this concern.

Mr J Jeffrey (ANC) said that before designating Directors General as information officers, the Public Finance Management Act had to be scrutinised to see whether there were any problems with this.

Adv De Lange said that making a Director General the information officer would not cause problems and this would simply be limited to the accessing of information. There would not be major consequences as a result of this. In any case most of the responsibilities would fall on the deputy Director General and others to whom powers had been delegated. The reason for having the Director General as the official information officer was to limit the entry points to a maximum of nine Directors General.

"person"
The definition 'an individual or juristic person' lead to some debate.
Ms P Jana was concerned that in other legislation "person" had often been defined as a natural or juristic person. Ms van Schoor said that in other places in the Bill, persons had been cited as individuals. If the definition was now changed then all those references would also need to be changed.

Adv De Lange considered using the more legal term "natural person".

Mr Smith thought that this was problematic since there were places in the Act where "individual" had deliberately been used as "natural" person had been viewed as clumsy and inappropriate.

Adv De Lange pointed out that this issue was not as simple as it seemed since if legislation usually used natural and juristic person and now person actually meant "individual and juristic person, the committee could be giving new meaning to "person".

Mr J Cronin suggested as a solution, that in the definitions they define 'individual' as a natural person.

Adv de Lange was simply worried about the legalities.

Mr Jeffrey complicated the matter by reading individual as an adjective.
Mr Cronin pointed out that "individual" had not been used as an adjective anywhere in the Bill.

There was no agreement reached on this issue. Adv De Lange suggested that the definition of person should be "natural or juristic person" and there would be no mention or definition of individual. When the Act wanted to refer to an individual. this would be left as individual leaving out the confusion and clumsiness of "natural person".

"private body"
Adv de Lange noted that in (a) in Option (2), "a natural person" had not been removed yet. As no members indicated support for Options 2 or 3, it was decided to delete both.

"public enterprise"
It was decided to delete this definition since it was not needed.

Evening session
"public safety or environmental risk"
It was agreed to add "including individuals in their workplace" into the definition.
Mr Smith (IFP) asked that (a) be changed to read "a product or service which is or may be made available to the public." The Chair asked that this be amended.
Ms Chohan-Khotha (ANC) asked if the term "food" was sufficiently descriptive in (c). Ms van Schoor stated that the problem is that two distinct definitions for "food" exist in the dictionary. One specifically includes liquids in its definition, while the other specifically excludes liquids. The Chair recommended using the term "food or beverage". It was decided that the following options would be added:
1) "substance" or "element"
2) "food" or "food and beverage" or "food and liquid"
3) omit (c) in its entirety

"public body"
The Chair reminded the committee that the definition had been changed from "governmental body" to make a more clear distinction between private and public body.

All members agreed that Option 1 was not useable.
Mr Smith (IFP) asked that both (i) and (ii) of (b) in Option 2 be changed to commence with "when". The change was made, and all agreed that Option 2 would be accepted.

"record"
Ms Chohan-Khotha (ANC) felt that "compiled" would be preferable to "recorded" in subsection (c). The Chair suggested that "created" better encapsulates what they are trying to express. All agreed to Option 2 with the change.

"relevant authority"
The Chair stated that this definition was only relevant to internal appeals. He noted that they should know in a day or so whether internal appeals would be incorporated into the Bill. He asked Ms van Schoor to flag the definition in case internal appeals were included.

"request fee"
Ms Chohan-Khotha (ANC) asked if saying "prescribed fee" was enough to precisely define what a request fee was. The Chair felt that the term was sufficient as it becomes quite clear when it is applied in 22(1) and 58(1).

"request for access"
Adv de Lange stated that this was an important definition. All agreed it was acceptable as stated.

"requester"
As was discussed in earlier committee meetings, it was decided that the definitions for "requester" were all problematic. All options listed were rejected. Adv de Lange stated a new definition be applied that incorporates the following criteria:
1) That the definition of "requester" include:
(a) a person excluding a governmental body
(b) a person including a governmental body
(c) a person including a governmental body,
but excluding (a) and (b)(i) from Option 2 of "public body" which state:
(a) "any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or",
and:
(b)(i) "exercising a power or retaining or performing a duty in terms of the Constitution or a provincial constitution; or"

The Chair also stated that when a person requests access to a record, it must comply with the following four requirements:
1) that record is required for the exercise or protection of any right(s).
2) that person complies with the procedural requirements in this Act relating to a request for access to that record
3) access to that record is not refused in terms of any ground for refusal [or exemption] contemplated in Chapter 4 of this Part.
The Chair specified that these three criteria were taken from the amended clause 49(1)(a-c), and then himself added a requirement to state:
4) if the requester is a public body, and they want to exercise a right, it must be done in the public interest.

There was general agreement between the members that this was a suitable definition.

"transfer"
Mr Smith (IFP) asked why "transfer" and "transferred" were each defined. Ms van Schoor stated that it was necessary to define both in reference to 20(1) and (2). Mr Jeffery (ANC) stated that it did make sense using the words "means transferred" in the definition of transfer. The Chair asked that it be changed to "to transfer".

Clause 2: "Interpretation of Act" (using OPD 104)
The Chair noted that 2(1) was the original wording in the Revised Draft. He stated that he was against including 2(2) in this section. He further stated that 2(3) was the submission of the members of the Democratic Party (DP).

Clause 4: Records held by official or independent contractor of public or private body
Ms van Schoor noted that this was a collapse of Clauses 8 and 50. Mr Smith asked why "independent" appears in 4(b). Ms van Schoor replied that "independent" connotes independent of that government body. The Chair said that 4 must be changed to read:
"For the purposes of this Act, but subject to section 12, a record of that public or
private body of - "

There were no problems or questions raised over Clauses 5, 6, or 7.

APPENDIX

"{PROMOTION OF} ACCESS TO {or FREEDOM} OF INFORMATION" BILL

Content:

1. Long title, preamble, table of content and clauses 1 to 16A.

2. Clause 49

3. Clause 92

EXPLANATORY NOTE:

# Proposed insertions or alternative wordings are underlined or in { } or [ ] but not in bold.

BILL

To give effect to the constitutional right of access to any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith.

Option 1 (revised)

Whereas the system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations;

And whereas section 32(1) of the Constitution provides that everyone has the right of access to any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights, and that national legislation must be enacted to give effect to this right;

And whereas Chapter 3 of the Constitution already requires all spheres of government to observe and adhere to the principles of co-operative government which, amongst others, mean co-operating with one another in mutual trust and good faith by informing one another of, and consulting one another on matters of common interest;

And whereas the Constitution places a duty on the state to respect, protect, promote and fulfil the rights in the Bill of Rights;

And whereas it is necessary to create a culture of transparency and accountability of all public and private bodies in order to promote a society in which the people of South Africa have access to information held by the state which will assist the public in understanding the powers, duties and operations of public bodies and access to information that is held by another person, and to raise awareness and understanding among the people of South Africa of their rights in their relationship towards public and private bodies;

And whereas national legislation may, in terms of section 32(2) of the Constitution, provide for reasonable measures to alleviate the administrative and financial burden on the State, good governance, privacy and commercial confidentiality should not be jeopardised in giving effect to the right of access to information;

And whereas the right of access to any information held by the state and of access to any information that is held by another person may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution:

Option 2

RECOGNISING THAT—

* the system of Government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in State institutions which often led to an abuse of power and human rights violations;

* the Constitution of the Republic of South Africa, 1996, commits South Africa and its people to the values of human dignity, equality and freedom;

AND BEARING IN MIND THAT—

* the State must respect, protect, promote and fulfil the rights in the Bill of Rights which is the cornerstone of democracy in South Africa;

* in terms of section 32 of the Constitution national legislation must be enacted to give effect to the right of access to information;

* reasonable legislative measures may, in terms of section 32 of the Constitution, be provided to alleviate the administrative and financial burden on the State in giving effect to its obligation to promote and fulfil the right of access to information;

AND IN ORDER TO—

* address the secretive and unresponsive culture in State institutions of the past and to actively promote a society in which the people of South Africa have access to information held by the State;

* create a culture of transparency and accountability of all organs of State by giving effect to the right of access to information;

* provide the people of South Africa with access to information held by persons other than the State that is required for the exercise of any of their rights

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, asfollows:—

CONTENTS OF ACT

Section

PART 1

INTRODUCTORY PROVISIONS

CHAPTER 1

DEFINITIONS AND INTERPRETATION

1. Definitions

2. Interpretation of Act

CHAPTER 2

GENERAL APPLICATION PROVISIONS

3. Act applies to record whenever it came into existence

4. Records held by officials or independent contractor of public body

5. Application of other legislation prohibiting or restricting disclosure

6. Application of other legislation providing for access

7. Act not applying to records required for criminal or civil proceedings after commencement

8. Part applicable when performing functions as public or private body

CHAPTER 3

GENERAL {INTRODUCTORY} PROVISIONS

9. Objects of Act

10. Guide on how to use Act

PART 2

ACCESS TO RECORDS OF Public BODIES

CHAPTER 1

RIGHT OF ACCESS AND SPECIFIC APPLICATION PROVISIONS

 

11. Right of access to records of public bodies

12.. Act not applying to certain public bodies or officials thereof

13. Body deemed as part of another public body

14. Access in terms of Act by public body to records of other public body not provided for {OR not allowed OR prohibited}

CHAPTER 2

{PUBLICATION AND} AVAILABILITY OF CERTAIN RECORDS

15. Manuals on functions of, and index of records held by, public bodies

16. Voluntary disclosure of records

16A. Information in telephone directory

CHAPTER 3

MANNER OF ACCESS

17. Designation of deputy information officers and delegation

18. Form of requests

19. Duty to assist requesters

20. Transfer of requests

21. Preservation of records until final decision on request

22. Fees

23. Records that cannot be found or do not exist

24. Deferral of access

25. Decision on request and notice thereof

{25A. Urgent requests}

26. Extension of period to deal with request

27. Deemed refusal of request

28. Severability

29. Access and forms of access

{29A. Access to health records}

30. Language of access

31. Reports to Human Rights Commission

CHAPTER 4

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

32. Mandatory and discretionary grounds for refusal, and interpretation

33. Mandatory protection of privacy {of third party}

34. Tax related records

35. Mandatory protection of {third party} commercial information {of third party}

36. Records supplied in confidence {OR Confidential records}

37. {Mandatory protection of} (S)afety of individuals, and {protection of} security of structures and systems {OR property}

38. Law enforcement

39. Mandatory protection of records privileged from production in legal proceedings

40. Republic’s defence, security and international relations {Option 2}

{41. International relations}

42. Economic interests of Republic and commercial activities of public bodies

{42A. Records about research}

42B. Cabinet’s records}

43. Operations of public bodies

44. Frivolous or vexatious requests or diversion of resources

{44A. Necessity of harm}

45. Mandatory disclosure in public interest

CHAPTER 5

THIRD PARTY INTERVENTION

46. Notice to third parties

47. Representations by third parties

48. Decision on representations for refusal and notice thereof

PART 3

ACCESS TO RECORDS OF PRIVATE BODIES

CHAPTER 1

RIGHT OF ACCESS

49. Right of access to records of private bodies

CHAPTER 2

PUBLICATION AND AVAILABILITY OF CERTAIN RECORDS

54. Manual

55. Voluntary disclosure of certain records

CHAPTER 3

MANNER OF ACCESS

57. Form of request

58. Fees

59. Decision on request

60. Extension of period to deal with request

61. Records that cannot be found or do not exist

62. Severability

63. Form of access

{63A. Access to health records}

CHAPTER 4

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

64. Interpretation

65. Mandatory protection of privacy {of third party}

67. Mandatory protection of third party commercial information

68. Breach of confidence provided for by agreement

69. {Mandatory protection of} {S}afety of individuals and {protection of} security of structures and systems {OR property}

70. Mandatory protection of records privileged from production in legal proceedings

71. Commercial information of private body

71A. Records about research

72. Mandatory disclosure

72A. Adverse effects

CHAPTER 5

THIRD PARTY NOTIFICATION

73. Notice to third parties

74. Representations by third parties

75. Decision on representations for refusal and notice thereof

PART 4

APPEALS AGAINST DECISIONS

{CHAPTER 1

INTERNAL APPEALS

76. Right of internal appeal to relevant authority

77. Manner of internal appeal, and appeal fees

78. Notice to and representations by other interested parties

79. Decision on internal appeal and notice thereof }

CHAPTER 2

APPLICATIONS TO COURT

80. Non-exclusion of other remedies

81. Manner of applications to court

82. Applications regarding decisions of information officers of public bodies {or head of private bodies}

83. Jurisdiction of court

84. Assistance of Human Rights Commission

85. Production of records of public {and private} bodies to court

86. Burden of proof

87. Decision on application

88. Costs

PART 5

HUMAN RIGHTS COMMISSION

89. Additional functions of Human Rights Commission

90. Report to National Assembly by Human Rights Commission

91. Expenditure of Human Rights Commission in terms of Act

PART 6

TRANSITIONAL ARRANGEMENTS

92. Application of other legislation providing for access

93. Periods for dealing with requests

93A. Correction of personal information

PART 7

GENERAL PROVISIONS

{94. Liability}

95. Offences

96. Regulations

97. Short title and commencement

PART 1

INTRODUCTORY PROVISIONS

CHAPTER 1

DEFINITIONS AND INTERPRETATION

Definitions

1. In this Act, unless the context otherwise indicates—

"access fee" means a fee prescribed for the purposes of section 22 or 58;

"application" means an application to a court in terms of section 82;

"Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

"court" means—

(a) a High Court or another court of similar status; or

(b) a Magistrate's Court designated, by notice in the Gazette, {OR in writing} by the Minister, after consultation with the Magistrates Commission;

Option 1:

"evaluative material" means an evaluation or opinion prepared for the purpose of determining—

(a) the suitability, eligibility or qualifications of the person to whom or which the evaluation or opinion relates—

(i) for employment or for appointment to office;

(ii) for promotion in employment or office or for continuance in employment or office;

(iii) for removal from employment or office; or

(iv) for the awarding of a scholarship, award, bursary, honour or similar benefit; or

(b) whether any scholarship, award, bursary, honour or similar benefit should be continued, modified, cancelled or renewed;

Option 2:

# Omit def. if option 2 for cl 43(2)(b) is used.

Option 1 for def of "head":

"head" of, or in relation to, a private body means—

(a) in the case of a natural person, that natural person or any person duly authorised by that natural person;

Option 1 for (b) - see option 1: def of "private body":

(b) in the case of a partnership, any partner of the partnership or any person duly authorised by the partnership;

Option 2 for (b) - see option 2: def of "private body":

(b) in the case of a partner of a partnership, that partner or any person duly authorised by that partner;

(c) in the case of a juristic person—

(i) the chief executive officer or equivalent officer of the juristic person or any person duly authorised by that officer; or

(ii) the person who is acting as such or any person duly authorised by such acting person;

Option 2 for def of "head":

# Omit def. of "head" and refer to "private body" and not "head of a private body".

"health practitioner" means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals;

"Human Rights Commission" means the South African Human Rights Commission referred to in section 181(1)(b) of the Constitution;

"individual’s next of kin" means—

Option 1 for paragraphs (a) and (b):

(a) an individual to whom the individual was married, immediately before the individual’s death;

(b) an individual with whom the individual lived as if they were married, immediately before the individual’s death;

Option 2 for paragraphs (a) and (b):

(a) an individual to whom the individual was married;

(b) an individual with whom the individual lived as if they were married;

(c) a parent, child, brother or sister of the individual; or

(d) if—

(i) there is no next of kin referred to in paragraphs (a), (b) and (c); or

(ii) the requester concerned took all reasonable steps to locate such next of kin, but was unsuccessful,

an individual who is related to the individual in the second degree of affinity or consanguinity;

"information officer" of, or in relation to a public body—

(a) in the case of a national department, provincial department or organisational component—

(i) mentioned in Column 1 of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), means the officer who is the incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule 1 , 2 or 3 opposite the name of the relevant national department, provincial department or organisational component or the person who is acting as such; or

{(ii) not {yet} so mentioned, the Director-General, head or executive director of that national department, provincial department or organisational component, respectively;} # Covered by par (c)?

(b) in the case of a municipality, means the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No.117 of 1998), or the person who is acting as such;

(c) in the case of any other public body, means the chief executive officer, or equivalent officer, of that public body or the person who is acting as such;

{"internal appeal" means an internal appeal to the relevant authority in terms of section 76(1);}

"international organisation" means an international organisation—

(a) of states; or

(b) established by the governments of states;

"Minister" means the Cabinet member responsible for the administration of justice;

"notice" means notice in writing, and "notify" and "notified" have corresponding meanings;

"objects of this Act" means the objects of this Act referred to in section 3;

"official", in relation to a public or private body, means—

(a) any person in the employ (permanently or temporarily and full-time or part-time) of the public or private body, as the case may be, including the head of the body, in his or her capacity as such; or

(b) a member of the public or private body, in his or her capacity as such;

"person" means an individual or a juristic person;

"personal information" means information about an identifiable individual, including, but not limited to—

information relating to the race, {gender,} sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, {disability,} well-being, religion, conscience, belief, culture, language and birth of the individual;

information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;

any identifying number, symbol or other particular assigned to the individual;

the address, fingerprints or blood type of the individual;

the personal opinions, {or} views {or preferences} of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;

correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;

the views or opinions of another individual about the individual,

the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and

the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,

but excludes information about an individual who has been dead for more than 20 years;

{"personal requester" means a requester seeking access to a record containing personal information about the requester;}

"prescribed" means prescribed by regulation in terms of section 96;

Option 1:

"private body" means—

(a) a natural person who carries {or has carried} on any trade, business or profession, but only in such capacity;

(b) a partnership which carries {or has carried} on any trade, business or profession; or

(c) any former or existing juristic person,

but excludes a public body;

Option 2:

"private body" means—

(a) a natural person who carries {or has carried} on any trade, business or profession, the natural person, but only in such capacity;

(b) any person that is {or was} a partner of a partnership which carries {or has carried} on any trade, business or profession, but only in such capacity; or

(c) a juristic person,

but excludes a public body;

Option 3:

"private body" means—

(a) a natural person who carries on any trade, business or profession, but only in such capacity; or

(b) any former or existing juristic person,

but excludes a public body;

{"public enterprise" means any functionary or institution contemplated in paragraph (b)(ii) of the definition of "public body";}

"public safety or environmental risk" means the risk or potential risk to the environment or the public (including individuals in their workplace) associated with—

(a) a product or service which is available to the public;

(b) a substance which is released into the environment, including but not limited to, the workplace;

(c) a substance which is present in food {or drink OR or liquid} for human or animal consumption;

(d) a form of public transport; or

(e) an installation or manufacturing process or substance which is used in that installation or process;

Option 1:

"public body" means—

(a) any department of state or administration in the national, provincial or local sphere of government or any other functionary or institution exercising a power or performing a duty in terms of the Constitution or a provincial constitution or exercising a public power or performing a public function in terms of any legislation, and includes, without limiting the generality of the foregoing, any body—

(i) of which the accounts and financial statements which are required by legislation to be audited by the Auditor-General;

(ii) of which the majority of the members are appointed, whether alone or on the advice or recommendation of, or in or after consultation with some other person or body, by the President, the Deputy President, a Minister, the Premier of a province, a member of the executive council of a province or of the municipal council of a municipality, another public body, or more than one of those authorities;

(iii) in which the state, a province or a municipality is the majority or controlling shareholder;

(iv) of which more than 50 per cent of its expenditure is defrayed directly or indirectly from funds voted by Parliament, a provincial legislature or a municipal council;

(v) which is or was dependent for more than 50 per cent of its total permanent capital needs, including share capital, loans or other forms of permanent capital, on funds voted by Parliament, a provincial legislature or a municipal council, and in which permanent capital the state, a province or a municipality still holds a direct or indirect interest of more than 50 per cent;

(vi) which supplies products or services in terms of monopolistic rights conferred on it by legislation;

(vii) in respect of which the state, a province or a municipality creates the probability through contingent liability that funds voted by Parliament, a provincial legislature or a municipal council will have to be used in future to defray more than 50 per cent of the body’s expenditure or to provide more than 50 per cent of the body’s permanent capital;

(viii) of which the funds, assets or other property are administered by the state, a province or a municipality on a trust basis on behalf of the inhabitants of the Republic or of a particular interest group; or

(b) any other body which was a body contemplated in paragraph (a)(vi) and which exercises in a monopolistic manner substantially the same functions as it performed when it was a body contemplated in paragraph (a)(vi),}

but does not include the Cabinet, a judicial officer [or a body regarded as being part of another body as contemplated in subsection (2) or (3)]; # Omit reference to the Cabinet if cl 6 or 42B is included

Option 2 :

"public body" means—

(a) any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or

(b) any other functionary or institution—

(i) exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation;

Option 1 for "record":

"record" means any recorded information regardless of form or medium, and includes—

(a) a record which is capable of being produced by means of computer equipment (whether hardware or software or both) which is used for that purpose by a public or private body, as the case may be; or

(b) a part of a record,

and, of, or in relation to, a public or private body, means a record in the possession or under the control of that public body or private body, respectively, whether or not the record was created by the body;

Option 2 for "record":

"record" of, or in relation to, a public or private body, means any recorded information—

(a) regardless of form or medium;

(b) in the possession or under the control of that public or private body, respectively; and

(c) whether or not it was recorded by that public or private body, respectively;

{"relevant authority", in relation to—

(a) public body in the national sphere of government, means the Minister responsible for that public body;

(b) public body in the provincial sphere of government, means the member of the Executive Council responsible for that public body;

(c) a municipality, means the mayor of the municipality; } # Omit if provision is not made for internal appeal; # Public enterprises?

{"request fee" means a fee prescribed for the purposes of section 22(1) or 58(1);}

"request for access", in relation to—

(a) a public body, means a request for access to a record of a public body in terms of section 11;

(b) a private body, means a request for access to a record of a private body in terms of section 49;

OPTION 1 FOR DEF. OF "REQUESTER":

"requester", in relation to—

Option 1 for par (a):

(a) a public body, means—

(i) any person other than a public body or an official thereof, making a request for access to a record of that public body; or

(ii) a person acting on behalf of the person referred to in subparagraph (i);

Option 2 for par (a):

(a) a public body, means—

(i) any person other than a public body or an official thereof, but including a public enterprise {OR a public body contemplated in paragraph (b)(ii) of the definition of public body} {or an official thereof}, making a request for access to a record of that public body; or

(ii) a person acting on behalf of the person referred to in subparagraph (i);

Option 1 for par (b):

(b) a private body, means—

(i) any person (other than a public body {or an official thereof}) making a request for access to a record of that private body; or

(ii) a person acting on behalf of the person contemplated in subparagraph (i);

Option 2 for par (b):

(b) a private body, means—

(i) any person, including, but not limited to a public body, making a request for access to a record of that private body, but in the case of that public body only if the request is made for the purpose of—

(aa) exercising or protecting any right of that public body; or

(bb) advancing the public interest; or

(ii) a person acting on behalf of the person contemplated in subparagraph (i);

Option 2A for par (b):

(b) a private body, means—

(i) any person, including, but not limited to a public body, making a request for access to a record of that private body, but in the case of a public body referred to in paragraph (a) of the definition of "public body" only if the request is made for the purpose of—

(aa) exercising or protecting any right of that public body; or

(bb) advancing the public interest; or

(ii) a person acting on behalf of the person contemplated in subparagraph (i);

Option 3 for par (b):

(b) a private body, means—

(i) any person including, but not limited to, a public body (other than a public body contemplated in paragraph (a) or (b)(i) of the definition of "public body" {or an official thereof}) making a request for access to a record of that private body; or

(ii) a person acting on behalf of the person contemplated in subparagraph (i);

Option 4 for par (b):

(b) a private body, means—

(i) any person including, but not limited to, a public body (other than a public body contemplated in paragraph (a) or (b)(i) of the definition of "public body"{or an official thereof}) making a request for access to a record of that private body, but in the case of that public body only if the request is made for the purpose of—

(aa) exercising or protecting any right of that public body; or

(bb) advancing the public interest;

(ii) a person acting on behalf of the person contemplated in subparagraph (i);

OPTION 2 FOR DEF. OF "REQUESTER" - READ WITH CLAUSES 11 AND 49

"requester" , in relation to—

(a) a public body—

(i) any person making a request for access to a record of a public body in terms of section 11; or

(ii) a person acting on behalf of the person contemplated in subparagraph (i);

(b) a private body—

(i) any person making a request for access to a record of a private body in terms of section 49; or

(ii) a person acting on behalf of the person contemplated in subparagraph (i);

OPTION 3 FOR DEF. OF "REQUESTER":

Add at end of def. of "request for access" above:

"and "requester", in relation to that request, means a person making that request or a person acting on behalf of that person;"

{"subversive or hostile activities" means—

(a) aggression against the Republic;

(b) sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic;

(c) an activity aimed at changing the constitutional order of the Republic by the use of force or violence; or

(d) a foreign or hostile intelligence operation;} # Include if options 2 or 3 for cl 40 is used.

"third party", in relation to a request for access to—

(a) a record of a public body, means any person (including, but not limited to, the government of a foreign state, an international organisation or an organ of that government or organisation) other than—

(i) the requester concerned;

{(ii) a person contemplated in section 18(5);} or # Omit if par’s (a)(ii) and (b)(ii) of the def. of "requester" are included

(iii) a public body;

(b) a record of a private body, means any person (including , but not limited to, a public body), other than the requester;

"this Act" includes any regulation made and in force in terms of section 96;

"transfer", in relation to a record, means transferred in terms of section 20(1) or (2), and "transferred" has a corresponding meaning.

Interpretation of Act CL 4A IN OPD 96

2. (1)When interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects.

{(2) When exercising a discretion to refuse or grant a request for access, the information officer of a public body {,the relevant authority on internal appeal} and the head of a private body must have regard to the possible {OR likely} adverse effects that the refusal or granting of access may have on any right of any person.}

{(3) Such information officer {, relevant authority} and head, must grant a request for access only if the adverse effects of refusal may have for {any right of} any person {OR the requester concerned}, outweighs the adverse effects of disclosure for {any right of} any other person.}

{(4) In weighing up the adverse effects the granting or refusal of a request for access may have for {any right of} any person—

(a) the nature of the relevant right or rights;

(b) the importance of the record for the exercise or protection of the relevant rights or rights; and

(c) the nature, extent and permanence of the adverse effects,

must be taken into account.}

CHAPTER 2

GENERAL APPLICATION {PROVISIONS}

Act applies to record whenever it came into existence CLS 5 & 49 IN OPD 96

3. This Act applies to—

(a) a record of a public body; and

(b) a record of a private body,

regardless of when the record came into existence.

Records held by official or independent contractor of public or private body

CLS 8 & 50 IN OPD 96

4. For the purposes of this Act, but subject to section 12, a record in the possession or under the control of—

(a) an official of a public body or private body in his or her capacity as such; or

(b) an independent contractor engaged by a public body or private body in the capacity as such contractor,

is regarded as being in the possession or under the control of that public body or private body, respectively.

Application of other legislation prohibiting or restricting disclosure CLS 9 & 51 IN OPD 96

5.(1) Subject to section 7, this Act applies to the exclusion of any provision of other legislation that—

(a) prohibits or restricts the disclosure of a record of a public body or private body; and

(b) is materially inconsistent with an object, or a specific provision, of this Act.

Application of other legislation providing for access CLS 10 & 52 IN OPD 96

6. Subject to section 92 {OR state in cl 92: "Despite section 6 ..."}, nothing in this Act prevents the giving of access to—

(a) a record of a public body in terms of any other legislation referred to in Schedule 1; or

(b) a record of a private body in terms of any other legislation referred to in Schedule 2.

Act not applying to records required for criminal or civil proceedings after proceedings’ commencement CLS 11 & 53 IN OPD 96

7. (1) This Act does not apply to a record of a public body or a private body if—

(a) that record is requested for the purpose of {criminal or civil discovery in respect of) criminal or civil proceedings;

(b) so requested after the commencement of such criminal or civil proceedings, as the case may be {OR such criminal or civil proceedings, as the case may be, have commenced}; and

(c) the production of {OR access to} that record for that purpose {OR the purpose referred to in paragraph (a) is provided for in any other law.

(2) Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in the criminal or civil proceedings referred to in that subsection unless the exclusion of such record by the court in question would, in its opinion, be detrimental to the interests of justice.

Part applicable when performing functions as public or private body CL 4 IN OPD 96

Option 1:

8. (1) The provisions of Part 2 and other related provisions of this Act apply to a request for access to a record that relates to a power or function exercised or performed as a public body; or

(2) The provisions of Part 3 and other related provisions of this Act apply to a request for access to a record that relates to a power or function exercised or performed as a private body.

Option 2:

A request for access to a record held with regard to {OR relating to OR held for the purpose or with regard to} the exercise of a power or the performance of a function—

(a) as a public body, must be made in terms of section 11; or

(b) as a private body, a request for access must made in terms of section 49.

CHAPTER 3

GENERAL {INTRODUCTORY} PROVISIONS

Objects of Act CL 2 IN OPD 96

Option 1:

9. The objects of this Act are—

(a) to give effect to the constitutional right of access to any information held by the state by providing public access, as swiftly, inexpensively and effortlessly as reasonably possible, to that information [without jeopardising good governance, privacy and commercial confidentiality] subject to justifiable limitations;

(b) to require public bodies to make information available that will assist the public in understanding the powers, duties and operation of public bodies;

(c) to [provide persons with access to their personal information held by private bodies] give effect to the constitutional right of access to any information that is held by a private body and that is required for the exercise or protection of any rights subject to justifiable limitations;

[(e) to regulate the use and disclosure of personal information held by public or private bodies;

(f) to protect persons disclosing evidence of contraventions of the law, maladministration or corruption in public bodies;] and

(g) generally, to promote transparency and accountability of all organs of state by providing the public with timely, accessible and accurate information and by empowering the public to effectively scrutinise, and participate in, public decision making that affect them.

Option 2:

The objects of this Act are—

(a) to give effect to the constitutional right of access to—

(i) any information held by the state; and

(ii) any information that is held by another person and that is required for the exercise or protection of any rights;

(b) to give effect to that right—

(i) subject to justifiable limitations including, but not limited to, limitations aimed at the reasonable protection of privacy, commercial confidentiality and efficient governance; and

(ii) in a manner which balances that right with any other rights in the Bill of Rights in Chapter 2 of the Constitution;

(c) to establish voluntary and mandatory mechanisms {OR procedures} to give effect to that right in a manner which enables persons to obtain access to records of public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible;

(d) to provide for access to records of bodies which exercises powers and performs functions as public bodies and as private bodies; and

(e) generally, to promote transparency and accountability of all public and private bodies by empowering persons—

(i) to understand their rights in terms of this Act and the functions and operation of public and private bodies; and

(ii) to effectively scrutinise acts and omissions of public and private bodies that affect them.

Guide {by Human Rights Commission} on how to use Act CL 3 IN OPD 96

Option 1 for subsection (1):

10. (1) The Human Rights Commission must, within 18 months after the commencement of this section {OR this Act}, compile in each official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act.

Option 2 for subsection (1):

(1) The Human Rights Commission must compile in each official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act.

(2) The guide must, without limiting the generality of subsection (1), include a description of—

(a) the objects of this Act;

(b) the postal and street address, phone and fax number and, if available, electronic mail address of—

(i) the information officer of every public body; and

(ii) every deputy information officer of every public body appointed in terms of section17(1);

(c) such particulars of every private body as are practicable;

(d) the manner and form of a request for—

(i) access to a record of a public body {contemplated in section 11}; and

(ii) access to a record of a private body {contemplated in section 49},

(e) the assistance available from the information officer of a public body in terms of this Act;

(f) the assistance available from the Human Rights Commission in terms of this Act;

(g) all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, including the manner of lodging—

{(i) an internal appeal with the relevant authority; and

(ii) an application with a court against a decision by the information officer of a public body or the head of a private body;

(h) the manual to be compiled by every public body and private body in terms of sections 13 and 54, respectively, the information contained therein and how to obtain access to the manual {OR sections 15 and 54 requiring a public body and private body, respectively, to compile a manual, and how to obtain access to a manual}; and

(i) the voluntary disclosure of categories of records in terms of sections 16 and 55 {OR sections 16 and 55 providing for the voluntary disclosure of categories of records by a public body and private body, respectively}.

(3) The Human Rights Commission must, if necessary, update and publish the guide at intervals of not more than two years.

(4) The guide must be made available as prescribed.

PART 2

ACCESS TO RECORDS OF PUBLIC BODIES

CHAPTER 1

RIGHT OF ACCESS, AND {SPECIFIC} APPLICATION {PROVISIONS}

 

Right of access to records of public bodies CL 16 IN OPD 96

Option 1 for introductory part:

11.(1) Any person (other than a public body or an official thereof ) must be given access to a record of a public body if—

Option 2 for introductory part:

(1) Any person (other than a public body or an official thereof , but including a public body contemplated in paragraph (b)(ii) of the definition of public body) must be given access to a record of a public body if—

(a) that person complies with all the procedural requirements in this Act relating to a request for access to that record; and

(b) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.

(2) A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester.

(3) A person’s right of access contemplated in subsection (1) is, subject to this Act, not affected by—

(a) any reasons the person gives for requesting access; or

(b) the information officer’s belief as to what are the person’s reasons for requesting access

Act not applying to certain public bodies or officials thereof CL 6 IN OPD 96

12. This Act {OR Part 2}does not apply to—

Option 1 for (a):

(a) the Cabinet;

Option 2 for (a):

(a) the Cabinet and the Executive Council of a province;

# Omit par (a) in respect of Cabinet if cl 42B is included

(b) the judicial functions of—

(i) a court referred to in section 166 of the Constitution;

(ii) a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996); or

(iii) a judicial officer of such court or Special Tribunal; or

(c) a member of Parliament or of a provincial legislature.

Body deemed as part of another public body CL 7 IN OPD 96

13. {(1) For the purposes of this Act, but subject to section 6, a board, council, committee, commission or other body—

{(a) which is not a juristic person;}

(b) which is—

(i) established or constituted in terms of legislation; or

(ii) wholly or partly constituted by [appointment made by the President, the Deputy President, a Minister, the Premier of a province, a member of the Executive Council of a province or of the Municipal Council of a municipality, a public body, or more than one of those authorities] one or more organs of state; and

(c) which is so established or constituted for the purpose of managing or administering any activity of, exercising any power of, to performing any duty of, or advising or assisting, [a] one or more public body,

is [not a separate public body, but is] regarded as being part of such public body, or as having such information officer, as the Minister determines by notice in the Gazette.}

# Omit (1) in view of new (2)(c).

Option 1 for subsection (2):

(2) For the purposes of this Act, the Minister may, {on his or her own accord or on the request of the relevant public bodies}, in the prescribed manner {OR by notice in the Gazette}—

(a) determine that a public body is to be regarded as part of another public body;

(b) determine that a category of public bodies is to be regarded as one public body with such information officer as the Minister designates; and

(c) if there is doubt as to whether a body is a separate public body or forms part of a public body, determine that the body—

(i) is a separate public body; or

(ii) forms part of a public body.

Option 2 for subsection (2):

(2) For the purposes of this Act, the Minister may, in the prescribed manner {OR by notice in the Gazette}, determine that two or more public bodies are to be regarded as one public body with such information officer as the Minister, after consultation with the public bodies concerned, designates.

Access in terms of Act by public body to records of other public body not provided for {OR not allowed OR prohibited} NEW CLAUSE

Option 1:

14. The provisions of this Act may not be construed as giving a right to {OR entitling} a public body {(other than a public body contemplated in paragraph (b)(ii) of the definition of public body)}, or any person acting on its behalf, to make a request for access in terms of section 11 to a record of another public body.

Option 2:

A public body, or any person acting on its behalf, may not make a request for access in terms of section 11 to record of another public body.

Option 3:

# Include in cl 11

CHAPTER 2

PUBLICATION AND AVAILABILITY OF CERTAIN RECORDS

Manual on functions of, and index of records held by, public body CL 13 IN OPD 96

15. (1) Within six months after the commencement of this section or the coming into existence of a public body, the information officer of the public body concerned must compile in at least two official languages a manual containing—

(a) a description of its structure and functions;

(b) the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of the body and of every deputy information officer of the body appointed in terms of section 17(1);

(c) a description of the guide referred to in section 3, if available, and how to obtain access to it;

(d) in sufficient detail to facilitate a request for access to a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject;

(e) the latest notice, in terms of section 14(2), if any, regarding the categories of records of the body which are available without a person having to request access in terms of this Act;

(f) a description of the services available to members of the public from the body and how to gain access to those services;

(g) a description of any arrangement or provision for a person (other than a public body) by consultation, making representations or otherwise, to participate in or influence—

(i) the formulation of policy; or

(ii) the exercise of powers or performance of duties,

by the body;

(h) a description of all remedies available in respect of an act or a failure to act by the body; and

(i) such other information as may be prescribed.

(3) A public body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year.

(4) Each manual must be made available as prescribed.

(5)(a) If the functions of two or more public bodies are closely connected, the Minister may on request or of its own accord determine that the two or more bodies compile one manual only.

(b) The public bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.

(6) For security, administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any {public body or} category of public bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available} CL 4 IN OPD 96

16.(1) The information officer of a public body must, on a periodic basis not less frequently than once each year, submit to the Minister a description of—

(a) the categories of records of the public body that are available without a person having to request access in terms of this Act—

(i) for inspection in terms of legislation other than this Act;

(ii) for purchase or copying from the body; and

(iii) from the body free of charge; and

(b) how to obtain access to such records.

(2) On a periodic basis not less frequently than once each year and at the cost of the relevant public body, the Minister must, by notice in the Gazette—

(a) publish every description submitted in terms of subsection (1); or

(b) update every description so published,

as the case may be.

(3) The only fee payable (if any) for access to a record included in a notice in terms of subsection (2) is a prescribed fee for reproduction.

(4) The information officer of a public body may delete any part of a record contemplated in subsection (1)(a) which, on a request for access, may or must be refused in terms of Chapter 4 of this Part.

(5) Chapters 3, 4 and 5 of this Part does not apply to any category of records included in a notice in terms of subsection (2). # OR subs (5) in existing or separate application clause

Information in telephone directory CL 15 IN OPD 96

Option 1 for subsection (1):

16A. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every public body in every telephone directory issued for general use by the public.

Option 2 for subsection (1):

(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such public bodies in such telephone directories, issued for general use by the public, as are prescribed.

(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

PART 3

ACCESS TO RECORDS OF PRIVATE BODIES

CHAPTER 1

RIGHT OF ACCESS

# Cls 49 to 53 in OPD 96 now in cls 3 to 8

Right of access to records of private bodies CL 56 IN OPD 96

OPTION 1 FOR (1):

49.(1) Any person must be given access to any record of a private body if—

Option 1 for (a):

(a) that record is required for the exercise or protection of any right{s};

Option 2 for (a):

(a) that record is required for the exercise or protection of any right of that person;

Option 3 for (a):

(a) that record could reasonably be required for the exercise or protection a right {of that person};

Option 4 for (a):

(a) that record is likely to be required for the exercise or protection a right {of that person};

Option 5 for (a):

(a) that record could reasonably be expected to advance the exercise or protection a right {of that person};

Option 6 for (a):

(a) that record is, in the opinion of the head of the private body, required for the exercise or protection of a right {of that person};

(b) that person complies with the procedural requirements in this Act relating to a request for access to that record; and

(c) access to that record is not refused in terms of any ground for refusal [OR exemption] contemplated in Chapter 4 of this Part.

OPTION 2 FOR (1) - USES OPTION 1 FOR PAR (a) ABOVE:

49.(1) Any person must be given access to any record of a private body if—

(a) that record is required for the exercise or protection of any right{s};

(b) that person complies with the procedural requirements in this Act relating to a request for access to that record; and

(c) access to that record is not refused in terms of any ground for refusal [OR exemption] contemplated in Chapter 4 of this Part.

Option 1 - see option 1 for def. of "requester":

# Insert after "Any person" in subsection (1): "(other than a public body or an official thereof)"

Option 2 - see option 2 for def of "requester":

# Insert after "Any person" in subsection (1): "(including, but not limited to, a public body)" and insert following:

(1A) A public body that seeks to exercise or protect a right other than a right of that public body, may only make a request in terms of subsection (1) for the purpose of advancing the public interest.

Option 3 - see option 2A for def of "requester":

# Insert after "Any person" in subsection (1): "(including, but not limited to, a public body)" and insert following:

(1A) A public body referred to in paragraph (a) of the definition of "public body" that seeks to exercise or protect a right other than a right of that public body, may only make a request in terms of subsection (1) for the purpose of advancing the public interest.

Option 4 - see option 3 for def of "requester":

# Insert after "Any person" in subsection (1): "(other than a public body contemplated in paragraph (a) or (b)(i) of the definition of "public body" {or an official thereof})"

Option 5 - see option 4 for def of "requester":

# Insert after "Any person" in subsection (1): "(other than a public body contemplated in paragraph (a) or (b)(i) of the definition of "public body" {or an official thereof})" and insert following:

(1A) A public body referred to in paragraph (b)(ii) of the definition of "public body" that seeks to exercise or protect a right other than a right of that public body, may only make a request in terms of subsection (1) for the purpose of advancing the public interest.

(2) A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made.

Application of other legislation providing for access

92.(1) The Minister must, within 12 months after the commencement of section 6, introduce a Bill in Parliament proposing the amendment of —

(a) Schedule 1 to include {all} legislation which provides for access to a record of a public body in a manner which, including, but not limited to, the payment of fees, is not substantially more onerous than {OR is materially {OR substantially} similar to, or more favourable than} the manner in which access may be obtained in terms of Part 2; and

(b) Schedule 2 to include {all} legislation which provides for access to a record of a private body, in a manner which, including, but not limited to, the payment of fees, is not substantially more onerous than {OR is materially {OR substantially} similar to, or more favourable than} the manner in which access may be obtained in terms of Part 3.

Option 1 for (2):

(2) Until the amendment of this Act contemplated in subsection (1) takes effect—

(a) in the case of Schedule 1, any other legislation which provides for access to a record of a public body in a manner which, including, but not limited to, the payment of fees, is not materially {OR substantially} more onerous than {OR is materially {OR substantially} similar to, or more favourable than} the manner in which access may be obtained in terms of Part 2, access may be given in terms of that legislation {OR nothing in this Act prevents the giving of access in terms of that legislation}; and

(b) in the case of Schedule 2, any legislation which provides for access to a record of a private body, in a manner which, including, but not limited to, the payment of fees, is not materially {OR substantially} more onerous than {OR is materially {OR substantially} similar to, or more favourable than} the manner in which access may be obtained in terms of Part 3, access may be given in terms of that legislation {OR nothing in this Act prevents the giving of access in terms of that legislation}.

Option 2 for (2):

(2) Until the amendment of this Act contemplated in subsection (1) takes effect any other legislation which provides for access to a record of a public body or a private body in a manner which, including, but not limited to, the payment of fees, is not materially {OR substantially} more onerous than {OR is materially {OR substantially} similar to, or more favourable than} the manner in which access may be obtained in terms of Part 2 or 3, respectively, access may be given in terms of that legislation {OR nothing in this Act prevents the giving of access in terms of that legislation}.

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