Revised Bill: discussion

Meeting report

AD HOC JOINT COMMITTEE ON OPEN DEMOCRACY BILL
12 January 2000
REVIEW OF REVISED BILL

Documents Handed Out:
Revised Working Draft "Open Democracy" Bill, dated 11 January 2000 (OPD 96)

SUMMARY
The committee went through the changes from the beginning of the revised Bill up to the end of Section 7.

MINUTES
Adv E van Schoor, the drafter, opened the session by noting that the draft distributed today reflects the discussions of the last several committee meetings held in December. She also noted that the Bill had been restructured, as seen in the Contents of Act section.

After noting the need to move with dispatch to finalise the Bill, and requesting that deliberations be kept succinct and relevant, the Chair commenced the substantive discussion by focusing on the Preamble.

Preamble
The Chair noted that Option 2 for the Preamble now reflects that the legislation covers the private as well as the public spheres, and also refers to the reasonable limitations on the right of access of information that the Bill creates. He also suggested inclusion of a recitation that the Bill facilitates "efficient governance."

Mr J Cronin (ANC) indicated that the import of the legislation's effect on the private sphere was insufficiently stressed in the Preamble, but the Chair stated that since there are differences in the tests applied to each of the public and private spheres, distinctions in the Preamble's tone are appropriate. Cronin also stated that the reference to "the regulated society of the past" is awkward, and that "regulation" itself is not problematic, but that its manner was.

Concerning the text of the Preamble, Mr Smith (IFP) noted that he is not fond of the term "bearing in mind", but Ms van Schoor suggested that the phrase is commonly used in legislative preambles.

Mr K Durr (ACDP) requested that the Preamble include more elaborate reference to specific constitutional privacy protections, and a statement that this Bill is not in derogation of those. The Chair noted that that point was generally covered, but allowed that a reference to the need to "balance" the rights provided under this legislation and the Bill of Rights might be beneficial. Ms Taljaard (DP) noted that a privacy act distinct from this legislation is needed, and that a reference to such future legislation in this Preamble might be instructive.

Section 1: Definitions
The Chair noted that this section was a critical part of the Bill, and must be correct. In order to facilitate discussion the Chair then asked the drafters to prepare a reference index indicating which sections of the Bill each defined term appears in.

Discussion concerning the defined terms was as follows:
"Access fee"
Ms van Schoor noted that this definition cannot be finalised until the text of Section 22 is finalised.

"Court"
An issue was raised concerning the use of magistrate's courts for purposes of the Bill, for as the Chair noted some magistrates are not trained to discharge the duties required under the legislation. Also, the Chair stated that designation by the Minister of certain magistrate's courts via the government Gazette might be preferable to simple written designation.

"Evaluative Material"
Ms Taljaard (DP) noted that in other legislation the term applies to policy matters rather than to those pertaining to employment relationships, and that the definition proposed in the Bill, which deals with the latter category, does not fit the concept of the Section 43(2)(b) exemption. The Chair invited the DP to submit an alternative definition of the term, but Mr Cronin (ANC) stated that using another term in the text of the aforementioned exemption might be a simpler solution.

"Government Body" or "Governmental or Public Body"
The Chair noted that in deciding between these two terms, and the proposed textual options, the latter is preferable, as it clearly encompasses not only the commonly recognised arms of government, but distinctly refers to those bodies which are "mixed" and occasionally exercise governmental powers. He added that while it might be possible simply to rely on and reference the "organ of state" definition found in Section 239 of the Constitution in lieu of another definition, the treatment of courts by that constitutional section is not consistent with the text of the proposed Bill, and thus a separate definition is required.

"Head (of a Private Body)"
After discussion initiated by Mr Lever (DP) and Ms Chohan-Khotha (ANC), the Chair concluded that the first proposed sub-section (b) in Option 1, with the deletion of the final phrase "by that partner", would clarify who the "head" of a partnership is for purposes of this Bill.

"Private Body"
The Chair noted that Option 3 should be deleted, and that of the first two options, Option 1 (recognising a partnership itself as such an entity, rather than an individual partner) is preferable, with "juristic person" to be addressed by a separate sub-section (c), as in Option 2.

Mr Durr (ACDP) queried whether nominees and trustees would be treated as "private bodies", but Dr J Delport (DP) noted that confidentiality concerns would be covered by the Bill's exemptions. In response to Ms Chohan-Kotha's point, the Chair noted that professional confidentiality issues are also covered in the exemptions.

Mr Smith (IFP) raised a question about retrospectivity of the Bill by use of the clause "has carried on business", but the Chair noted that the Bill is to be retrospective, and would apply whether a business was currently being conducted or not, so that the usage "has carried" is correct.

Dr Delport then noted that the effect of the Bill on partnerships and juristic persons not designed to "carry on business" at any point (for example, private real estate partnerships and close corporations formed for the same purpose) should be limited. While the Chair agreed that this was a serious and extremely important point, he expressed reservations about putting any juristic persons outside the ambit of the legislation, though he concurred that such "limited and private" partnerships should be treated differently.

"Individual's Next of Kin"
After a lengthy discussion with Ms Chohan-Kotha and others, the Chair concluded that Option 1 is preferable so that former spouses and the like are not unreasonably empowered. Option 1 incorporates the concept of the next of kin's relationship with a decedent immediately before such individual's death (being married or tantamount to being married, the latter concept being preferred to the now deleted "cohabitation" concept). The Chair also noted that the "married" or "lived as if they were married" concepts should be split into separate subsections, and that use of "indivdual" is less likely to cause confusion than "person" in interpreting this provision and the rest of the Bill.

"Information Officer"
Mr Lever (DP) noted that the viability of Schedule 3 of the Public Service Act of 1994, as referenced, should be confirmed.

"Official"
The Chair noted that "or" should be inserted between sub-sections (a) and (b) for clarity.

"Personal Information"
The Chair pointed out that in sub-section (a) gender information has been excluded from the category of protected personal information, and disability information has been included. Ms Chohan-Khotha raised the question about the difficulty of obtaining protected information in criminal situations, but Ms van Schoor noted that the limited definition of "requester" properly limits the protection in such instances. She further suggested that a recitation would be helpful to clarify that the Bill does not deal with intra-governmental exchanges of information, which as Ms Chohan-Khotha noted is governed by other legislation which should be alluded to.

The Chair again noted the point previously raised by Ms Taljaard (DP) that this sort of privacy provision is in lieu of the separate legislation which is anticipated (and needed), and would presumably be superceded by its enactment.

The Chair also agreed with the points raised by Ms Chohan Kotha (ANC) and Mr Smith (IFP) that sub-section (f) should read "....or confidential nature, and any further correspondence that would reveal..."

"Personal Requester"
The Chair requested Ms van Schoor to confirm whether this definition is necessary.

"Public Enterprise"
The Chair said that these entities fall under the definition of "public body", but suggested that it may be necessary to maintain the separate distinction in certain contexts, and in response to Ms Taljaard's point indicated that "regulated bodies" are covered by the definition of "government body". Mr Cronin, however, queried the accuracy of the proposed definition of "public enterprise", and the Chair agreed to review it further, along with whether it is in fact necessary at all.

"Public Safety or Environmental Risk"
The Chair noted that this is a vital term in the Bill's override provisions and tests. Mr Smith said that, as such, use of the word "includes" in the definition rather than "means" would be better, but the Chair stated that in the context of the override provisions the term needs to be narrowly construed. The Chair agreed with Mr Masutha (ANC) that the wording of sub-section (b) should be "...into the environment, including the workplace". This would maintain the emphasis on safety in the workplace despite its possible characterisation as "private property" rather than a "public place", but not leave out other areas of emphasis, for example, schools.

"Records"
The Chair said that this another vital term, and that an expansive definition is necessary. Mr Cronin noted that the proposed definition confuses the concept of what a record is with "control and possession of the record", and Mr Smith (IFP) indicated that subsections (a) and (b) were actually redundant. The Chair then agreed with that point, and with the suggestion of Ms Jana (ANC) that the definition be split into two subsections, the first being the simple definition without (a) and (b), the second being Option 1, concerning the holding of the record regardless of who created it.

"Requester" in relation to a private body
Dr Delport (DP) and Ms Taljaard (DP) took issue with the provisions of Option 2 for paragraph (b) of this definition. They did not agree that a "governmental body" should fall into the definition of "requester". They believed that this provision vitiated the separation between horizontal and vertical rights in that it would give the Government the horizontal rights that normally only existed between individuals. This, they argued, was unconstitutional and would give the Government too much power to interfere in an individual's private affairs. They requested that time be allocated to debate this section in more detail at a later date.

Acknowledging the ideological divide existing between the Government and Opposition parties on this issue, the Chair agreed to allocate 30-45 minutes on the morning of Tuesday 18 January 2000 for debate on this matter.

The Chair also took issue with the Option 2 definition but for an entirely different reason. He believed that the clause imposed too great a limit on the rights of the Government. He argued that the qualifying words "when acting in the public interest" would prevent the Government from exercising its rights of access to information when acting in its own interest. It was agreed that Ms Van Schoor (the drafter) would redraft this option to remove this limitation. The debate on Tuesday morning would concern the amended option.

"Requester" in relation to a governmental body
The Chair requested further clarity on the meaning of a governmental body. Option 2 for paragraph (a) of this definition appeared to exclude public enterprises from the definition of governmental bodies. The Chair commented that governmental body seemed capable of having two meanings: defined narrowly it referred only to organs of government but defined more broadly it could refer even to private bodies exercising public functions. It was agreed that sections could be redrafted to remove this ambiguity.

"Third party" in relation to a request for access to "a record of a governmental body"
The Chair commented that "third party" would include international non-governmental organisations.

S3 Guide on how to use Act
The Chair commented that the time period allocated to the South African Human Rights Commission to draw up the guide had been extended because six months was deemed insufficient time. It was recommended however that a clause be inserted that would require the SAHRC to submit progress reports on a regular basis (as had been done in the Administrative Justice Bill). The reason for this would be to prevent procrastination and ensure that regular work was done on the guide. This was agreed.

S4 Part applicable when performing functions as governmental or private body
Many members complained that the wording of this section was confusing. Members suggested that this section would be unnecessary if the s1 definitions of public and private bodies were clarified. The Chair indicated that he liked the idea of having these definitions redrafted for the sake of clarity but he asked Ms Van Schoor to canvas a variety of options concerning this section for the committee to debate at a later date.

S6 Act not applying to certain governmental bodies or officials thereof ("Exclusions Clause")
Mr Smith (IFP) asked that the Bill should also not apply to provincial executive committees and that this clause should be amended accordingly. This was agreed.

The Chair noted that s42B of the Bill, which had been lifted from Australian legislation, went far further than s6(a) of this clause. S42B allowed the Cabinet to refuse access to any record that had ever passed through the hands of Cabinet. Many members indicated that this exclusion might go too far. The Chair also queried the meaning of "Cabinet" and asked that this should be defined and clarified.

s7 Body deemed as part of another governmental body
Many members questioned the need to include "which is not a juristic person" in s7(1)(a). Some argued that whether or not a body was juristic, it could still form part of a governmental body. Many called for a new clause to be drafted that would be based on provision of the Local Government Act or Public Administration Act. Ms Van Schoor agreed to look into this.

The Chair informed the members that s7 was intended as a "catchall provision". It was designed to prevent officials of governmental bodies circumventing the provision of the Bill. Without s7, they could do this by forming informal associations that had covertly public functions and then arguing that the Act did not apply to them as they were not a governmental body. Any new clause would have to reflect this intention

The Chair also informed the Committee that the intention behind s7(2) was to empower the Minister to be the final arbiter in deciding whether a governmental body formed part of another governmental body in cases of uncertainty. The option that better reflected this intention in s7(2) would be the one that would be chosen for inclusion.