Briefing

Meeting report

JOINT AD HOC COMMITTEE ON OPEN DEMOCRACY BILL
13 October 1999
BRIEFING ON THE OPEN DEMOCRACY BILL AND THE SAHRC OPEN AND ACCOUNTABLE DEMOCRACY WORKSHOP

Documents handed out:
Recommendations of Commissions from Workshop on Open and Accountable Democracy hosted by SAHRC (Appendix 1 below)
Briefing On Open Democracy Bill (Appendix 2 below)

MINUTES
SAHRC Open and Accountable Democracy Workshop
Commissioner Leon Wessels of the South African Human Rights Commission (SAHRC) said that the Commission had been mandated by the drafters to broaden input on the Bill, particularly with reference to horizontality. This was the purpose of the Open and Accountable Democracy Workshop in July 1999 which was attended by over 150 participants.

The next leg had been to submit the recommendations emerging from the workshop. These were not necessarily the views of SAHRC nor was consensus reached on certain issues. The SAHRC has submitted the documentation to the Committee. Mr Wessels briefly summarised what was contained in the workshop recommendations (see Appendix 1 below).

He briefed the committee on the SAHRC's standpoint on various issues:
Horizontality
The Bill needs to include horizontal application. [The current version of the Bill dealt only with information held by the State and personal information held by private bodies. This should be extended to any information held by private bodies which was required for the protection of any other right as stated in the suspended Section 32 in the Constitution].

There is consensus on this issue. However Mr Wessels disagreed with the committee chairperson, Mr J de Lange, as to whether Section 32 would fall away or merely the suspension of Section 32 would fall away if horizontality of application was omitted from this Bill

Natural Persons
It is problematic that the Bill must cater for corporate bodies as well as individuals. Dealing with an individual does require a special approach.

Information Officers
These officials need to be well trained.

Implementation
Once the Bill is enacted it would possibly need staggered implementation.

Exemptions
There should be no blanket exemptions. Rather than exempting Cabinet and the Courts, certain types of information should be exempted.

Drafting Style
The Commission believes there is more room for plain language. It would be helpful if the Bill follow the style of the Labour Relations Act and be simplified by means of a flow chart.

Appeal/Review
Proceedings in the High Court are extremely intimidating. From the SAHRC's perspective Adv Wessels said regulation is required on the Commission's role should, for an example, an individual whose request for information has been turned down by a private body approach the Commission.

Whistle Blowers
This section should be extended to the private sector as well.

Additional functions of the SAHRC
The SAHRC does not shy away from the duties as described in the Bill but it is worried about the costs. "If we are to train people a budget must be available otherwise we will not be able to deal with our mandate," Mr Wessels warned.

Mr Wessels pointed out that the SAHRC is of the opinion that enforcement mechanisms that are not costly have to be explored.

Questions and comments to Adv Wessels
Ms S Camerer (NNP) raised a concern that, since the SAHRC had for the past three years failed to deliver on its constitutional duty to report on socio-economic rights, whether they can now be charged with these additional duties.

Adv Wessels: For the first time this year we did report to the committee socio-economic rights. However we must get resources for meeting these additional duties.

Responding to Ms P Jana's (ANC) question on whether a written guide was suitable for the enormous task of the SAHRC for educating illiterate people especially in the rural areas, Mr Wessels said that this was a valid concern.
Section 5 of the Bill calls on the SAHRC to make a guide but this is not the only method we will use.

He finalised by stating that an alternative to the High Court is discussed in the workshop's recommendations.

Briefing on Open Democracy Bill
Advocate E van Schoor from the State Law Advisor's office gave a general overview of the Bill (see Appendix 2 at end of minutes).

Questions and comments to Adv van Schoor
Mr H Schmidt (DP) complained about the Cabinet being one of the bodies exempted to give information. He said there is no reason why it should not be included.
Ms van Schoor said it was a decision by Cabinet that they should be exempted in order to protect Cabinet information.

Ms F Chohan Khota (ANC) reasoned that she understands the exclusion of the courts but disagrees with the exclusion of court officials.
Ms van Schoor informed the members that any reference to a body includes its officials as well.

Ms P Jana (ANC) asked whether is it appropriate for whistle blowers to be protected in this legislation. Should it not be a separate piece of legislation?

Ms van Schoor explained that they had started drafting the Bill in 1994 and the Constitution had come later. She suggested if it be so desired the clause dealing with whistle blowers could be taken out and made into a separate Act.

Mr M Masutha (ANC) wanted clarity on the accommodation of disabled people by the Bill
Ms van Schoor pointed out that clause 13(4) caters for this.

Appendix 1:
Recommendations of Commissions from Workshop on Open and Accountable Democracy hosted by SAHRC

EXECUTIVE SUMMARY
1. Commission 1 - Horizontality
· It was agreed that, should Section 32 not be enacted, then 32(2) falls away and the "suspended" clause in the Constitution will come into effect.
· One of the main functions of the Open Democracy Bill was to give some kind of shape and form to the horizontal application of this right to freedom of information.
· There was also the question of how the Bill will apply to natural persons because there's a question of having to provide information to single individuals who are information requesters.
· No consensus on whether implementation of the Bill should be phased in

2. Commission 2 - Implementation
· To address the issue of access to the mechanisms created in the bill by all citizens, it was recommended that the bill also provide for training and instruction to the Heads of Departments in the relevant agencies.
· Section 4 should be amended to include a provision relating to the suitability of a designated person as information officer.
· Licensing of broadcasters by the Independent Broadcasting Authority should contain a requirement that either the broadcaster partake in educational programmes concerning the Open Democracy Bill or should provide free air-time for publication of such programmes.
· Tertiary education institutions should be obliged to partake in street law programmes educating people about the Open Democracy Bill.
· No consensus on whether the Public Prosecutor should share some of the public duties assigned to the SAHRC by the bill.
· The wording of Section 4(2)(1) must be reconsidered so as not to provide "lost records" as a ground for refusal. Alternatively - the section be scrapped altogether.
· Archive legislation must be strengthened to create a positive duty to keep accurate records.
· The bill should include a penal sanction to be visited upon anybody who willfully destroys a record which has been requested.
· The definition of "record" in section 11(xxiii)) be refined to distinguish between information which must be requested in the prescribed form, and other types of information which can be requested in manners other that the prescribed form. The SAHRC should draft a preamble to the bill, which will highlight the history and the purpose of the legislation, in order to prevent a narrow interpretation that may stifle the free-flow of information. Hard-hit agencies such as the Police, Defence Force, Health & Welfare should be allowed to develop streamlined procedures and should not be obliged to follow the prescribed procedures of the bill for all requests for information.
· Different types of information should be classified in an attempt to prevent over the top bureaucracy. Information could be classified according to its nature into one of three classes.
1. Information for immediate publication without a request;
2. Automatic publication of information after a specified time delay;
3. Information to be made available upon request.
· Information officers should be given discretion to decide whether or not to charge a fee upon a request. The bill should stipulate the criteria applicable in exercising this discretion.
· Implementation of the bill requires a transitional period and a provision concerning transitional arrangements should be written into the bill allowing for a staggered implementation. An exemption provision (similar to section 6 (6)) should be made applicable to the entire bill, thereby allowing the SAHRC to decide when certain governmental bodies become bound by the provisions of the legislation.
· The bill must have full retrospective effect.
· The bill should be redrafted in plain legal language. If necessary, the legislation could be passed in its current language style and then reworked into plain legal text.

3. Commission 3 - Exemptions
· An external judicial body other than the High Court should decide disputes about access to information. The adversarial nature of proceedings, and the expense involved were factors that motivated this recommendation.
· No governmental body should automatically be excluded from the reach of the Open Democracy Bill. The majority also recognised the need for a proviso that would allow information relating to the Cabinet, Judiciaries, etc, to be excluded and thus kept secret in certain circumstances. In this regard, it was concluded that a consequences-based approach should be adopted. In other words, an evaluation should be made assessing the consequences or the results of a disclosure of information in a particular context, and decisions should be made on disclosure in that light, rather than just having a blanket time period.
· Use should be made of a consequences-based approach, where one looks at the consequences or the results of the release of particular information, rather than having a categories-based approach which decides disclosure on the basis of the category or type of document.
· The mandatory exemption should be removed. For example, in sections 29 and 31 the reference to "must" should be replaced by "may".
· The section 44 override should remain, but the section 44 (1) test is currently too strenuous. The two tests in 44(1) and 44(2) should be merged.
· The bill should not try to cater for privacy concerns. The reference to an invasion of privacy should be toughened.
The reference to "harm" in sections 31 and 38 should be qualified to refer to "unreasonable harm".
· Section 34 is appropriate, although there was a concern that there should be a free-flow of information between agencies.
· There was strong support to retain the provision in Section 40, although there was some support for a possible rewording along the lines of "an unreasonable diversion of resources". Alternatively - "frivolous and vexatious" is a term that does have a certain amount of meaning in legal contexts, and therefore the use of that term is sufficient.
· The majority recommendation was that shortness or conciseness in drafting style is preferable. The current bill is difficult to follow and is inaccessible to lay people and people without much education. It was therefore recommended that the Bill be made more accessible to non-lawyers.
· There was disagreement about whether more- specific wording was required on the framing of exemptions. There was generally support for a consequences-based approach

Commission 4 - Appeal and Review
· Either the Head of Department or his or her delegated authority should have the power to consider appeals.
· Regulations should stipulate that the individual hearing the appeal should be suitably qualified to hear matters relating to access to information, and also should not be in the same line function as the information officer who may have declined or granted the request for information which has been appealed against.
· The harm's test should be re-introduced into the section dealing with notification of third parties.
· There should be a strict duty imposed on all information officers to notify applicants of the role of the SAHRC in cases where access to information is denied.
· There was concern around the maximum time prescribed for providing access to information where an appeal has been successful. No recommendation made.
· Once a decision is made that information is available, information officers must immediately provide it, should it be easily accessible. The onus should be on the information officer to dispute that the information is not immediately accessible. Similarly, where the request is complied with after the maximum period for provision has expired, the information officer must justify why the extended time period was necessary.
· Information officers should be properly trained and part of this training must address the existing mind set, and set out to change attitudes.
· Basic guidelines regarding norms and standards for the procedure of internal appeals should be stipulated in the bill.
· Internal appeals should be done away with completely, as the applicant would still be dealing -with the same cultural mindset. This view was not shared by all delegates.
· External appeals should be located within a specialised section of the Magistrate's Court. The courts would be roying courts, with the same basic characteristics as the Magistrates Court. Each Magistrate Court would have a trained Information Clerk, and the Presiding Officers could be roving presiding officers on a regular basis. Appointments would be made from amongst individuals who satisfied basic criteria, such as expertise or experience in access-to-information issues, administration of justice or alternative dispute resolution. The powers of presiding officers would include the power to conciliate, arbitrate arid make orders. Orders would include punitive damages, in cases where the provision of the information is obstructed. These orders are final, and can be taken on review. The Magistrate Court rules would not apply, and rules and procedure would be more informal, within the context of the basic rules of natural justice. Legal representation would be permissible only where both parties agreed thereto.

Appendix 2:
Briefing On Open Democracy Bill [B67-98]: Briefing by Adv Empie van Schoor
1. BACKGROUND
2. STYLE
3. APPLICABLE CONSTITUTIONAL PROVISIONS
A. BILL OF RIGHTS
B. OTHER PROVISIONS
4. OB] ECTS OF BILL
5. SCOPE OF BILL
A. ACCESS TO STATE INFORMATION
B. PROTECTION OF PERSONAL INFORMATION
6. COMPONENTS OF BILL
7. ACCESS TO STATE RECORDS
A. MANNER OF ACCESS
B. GROUNDS FOR REFUSAL
C. THIRD PARTY INTERVENTION
8. PROTECTION OF PERSONAL INFORMATION
9. PROTECTION OF WHISTLE-BLOWERS
10. ENFORCEMENT MECHANISMS
11. HUMAN RIGHTS COMMISSION
12. GENERAL PROVISIONS
13. IMPLEMENTATION

1. BACKGROUND
Task Team appointed by then Deputy President Mbeki
Policy proposals in January '95
First submitted to Cabinet committee in June '95
July '95 - mid 1997 further consultations
Published for comment in Gazette in October '97
Cabinet approval in April '98
Tabled in Parliament in July '98

Foreign Legislation
USA
Canada
Australia
New Zealand
Draft Indian Legislation
UK Private Right to Know Bill

2. STYLE
- Constitutional Court - freedom of information legislation,
· detailed and complex, defining nature and limits of right & conditions for enforcement
- Accessibility acknowledge in Bill - guide and manual
- Guide in easily comprehensible form
- Detailed nature -
· Bill aims to give effect to constitutional right
· Insofar it limits right - comply with limitations requirements
· Exemptions not to be drafted in broad and vague terms

Plain Language
- Application of plain language principles,
· general
· legislative drafting authorities
- Pursuit of simplicity - not be at expense of clear & precise wording

3. APPLICABLE CONSTITUTIONAL PROVISIONS
A. BILL OF RIGHTS
- Legislation must be enacted before 4/2/2000 to give effect to the right of access to information --
(a) held by state; and
(b) held by another person and required for exercise or protection of any rights
(section 32(1) & item 23(1) of Schedule 6)

- Legislation may provide for reasonable measures to alleviate administrative and financial burden on State (section 32(2))

- Right to freedom of expression, including freedom to receive & impart information (section 16(1)(b))

- Right to privacy (section 14)

- Rights may be limited --
· in terms of law of general application
· to extent that limitation is reasonable & justifiable
· in open & democratic society
· based on human dignity, equality and freedom,
· taking into account relevant factors (section 36(1))

- When interpreting Bill of Rights, Courts --
(a) must promote values underlying open and democratic society based on human dignity, equality and freedom;
(b) must consider international law;
(c) may consider foreign law (section 39(1))

- Bill of Rights does not affect other rights or freedoms recognised or conferred by common or customary law or legislation to extent they are consistent with Bill of Rights (section 39(3))

B. OTHER CONSTITUTIONAL PROVISIONS
- National legislation must ensure promotion of --
(a) encouragement of public participation in policymaking
(b) accountable public administration;
(c) transparency by providing public with
· timely
· accessible
· accurate information
(section 195(1)(e), (f) and (g) and (3))

- Applies to --
· administration in national, provincial and local sphere of government
· organs of state
· public enterprises
(section 195(2))

- Where "organ of state" is used in Constitution it means:
(a) department of state or administration in any sphere of government;
(b) any other functionary or institution -
(i) exercising power or performing function i t o Constitution or provincial constitution;
(ii) exercising public power or performing public function in terms of legislation, but does not include court or judicial officer
(section 239)

4. OBJECTS OF BILL
- Principal objects of Bill are to --
(a) give effect to constitutional right of access to information held by state;

(b) partially give effect to constitutional right of access to information held by another person and which is required for exercising or protecting any right;

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

- To attain principal objects, Bill includes specific provision for --
(a) public access, on request, to information held by state, subject to exemptions necessary to protect good governance, personal privacy & commercial confidentiality;

(b) disclosure of information obtained in accordance with this Act;

(c) governmental bodies to make information available that will assist the public in understanding the functions of governmental bodies, their operation and the criteria employed in making decisions;

(d) access by persons to information about themselves held by private bodies, correction of personal information held by state or private persons as well as regulation of use & disclosure thereof;

(e) protection of persons disclosing evidence of contraventions of the law, serious maladministration or corruption in governmental bodies;

(f) enforcement mechanisms in respect of rights contemplated in the Bill in form of internal appeals & applications lodged with High Court.

(See clause 3)

5. SCOPE (APPLICATION) OF BILL
- General override that stipulates that the Bill (when it becomes law & takes effect) prevail over other conflicting legislation (See clause 2 of the BilI)

A. ACCESS TO STATE INFORMATION
- departments of state
- administrations on national, provincial and local level
- functionaries and institutions exercising powers and performing duties in terms of Constitution and provincial constitutions
- functionaries and institutions exercising public powers and performing public duties in terms of legislation
- certain type of bodies listed, e.g. --
· in which State is controlling shareholder
· of which more than 50⁰/o of expenses is paid from funds voted by legislature
· which supplies products or services under monopolistic rights conferred by legislation

- Exclusions: Cabinet and courts and judicial officers

- Access on request is provided in respect of recorded information regardless of form or medium. Thus, a request to compile information is not provided for
(See definition of "governmental body" and "record" in clause 1 of the Bill)

B. PROTECTION OF PERSONAL INFORMATION
- Applies to information about individual or juristic person (personal information) in records held by governmental and private bodies

- Collection and retention requirements apply to governmental bodies only

(See definitions of "person" & "personal information" in clause 1)

6. COMPONENTS OF BILL
- 3 Main components:
· access to state records
· (i) access to, (ii) correction of, and (iii) regulation of use & disclosure, of personal information held by private/governmental body
· protection of whistle-blowers

7. ACCESS TO STATE RECORDS
A. MANNER OF ACCESS
- Information officer for each governmental body to --
· receive and decide on requests
· assist requesters
(See clauses 4, 13 & 14)

- Human Rights Commission must publish guide in plain language (in all official languages) to inform public of and assist them to exercise rights in terms of Bill
(See clause 5)

- Each governmental body (other than a public enterprise) must publish manual in at least 2 official languages on --
· their functions; and
· information held by body
(See clause 6)

- Guide and manuals must be distributed as prescribed by regulation
(See clauses 5(4) & 6(4))

- Phone directory must contain particulars of all information officers (but not name) (See clause 7)

- Governmental bodies must announce serious public safety risks (See clause 8)

- Form and manner of request for access to records held by governmental bodies (See clause 13)

- Oral requests allowed where individual unable to make written request because of illiteracy, poor literacy or physical disability (See clause 13(4))

- Time within which requests should be dealt with
- Generally: request to be attended to within 30 days
- Urgent requests: 5 working days;
- Extension once, or where third parties are involved, for 30 days
(See clauses 19, 20 & 21)

- Fees to be paid:
· Classification of requesters --
(a) Non-commercial requester (news purposes and education and
research purposes by educational and non-profit bodies)
(b) Personal requester (seeking information about him/herself)
(c) Commercial requester (other than (a) and (b))
(See definitions in clause 1)

· Type of fees--
(a) Request fees to be paid by commercial requesters
(b) Deposit to be paid by commercial and noncommercial requesters if
search and preparation more than prescribed hours
(c) Access fees:
- Personal requesters - reproduction only
- Commercial and non-commercial requesters - reproduction and search and preparation, non-commercial - only in access of prescribed hours

(See clauses 17, 18 and 24)

- Amount of different fees to be prescribed by regulation

B. GROUNDS FOR REFUSAL OF ACCESS
- Mandatory & discretionary grounds for refusal (clause 28)
- Mandatory protection of personal privacy:
* disclosure would constitute an invasion of the privacy
of an identifiable person, subject to exemptions (clause 29)

- Health of requester
* disclosure would cause harm to physical or mental health, or well-being
after consulting with a health practitioner
(clause 30)

- Mandatory protection of third party commercial information
* trade secrets
* financial, commercial, scientific or technical information -- disclosure could
reasonably be expected to cause harm to commercial/financial interests of a
third party
* disclosure would be likely to put third party at disadvantage in
contractual/other negotiations
(clause 32)

- Records supplied in confidence
* Information supplied in confidence &
(a) disclosure would be likely to prejudice future supply of similar records/records from the same source &
(b) no right to demand information &
(c) in public interest that similar records/records from the same source
to be supplied
(clause 32)

- Safety of individuals & security of structures & systems (Clause 33)

- Law enforcement
e.g.
* prosecution of alleged offender is being prepared or about to commence or pending & disclosure would be likely to impede that prosecution
* disclosure would be likely --
(a) to prejudice investigation of an offence
(b) to reveal identity of a confidential source of information
(c) to result in intimidation of a witness
(Clause 34)

- Privileged from production in legal proceedings (Clause 35)

- Defence & security of Republic (Clause 36)

- International relations
* Disclosure would be --
(a) contrary to international obligation; or
(b) likely to cause substantial harm to conduct of international relations
(only records in existence 20 years or less)
(Clause 37)

- Economic interests of Republic & commercial activities of governmental bodies
E.g.
* Disclosure would be likely substantially to jeopardise financial welfare of
Republic or ability to manage economy in the Republic's best interests by
prematurely disclosing -
e.g.
(a) contemplated change in policy substantially affecting the currency,
exchange rates, etc
(b) contemplated change in credit or interests rates, Etc
* Protects commercial information of state (similar to clause 31)
(Clause 38)

- Operations of governmental bodies (deliberative process) (Clause 3Q)

- Frivolous or vexatious requests (Clause 40)

- Records that cannot be found or do not exist
* Must conduct thorough search - full detail of steps taken to determine
whether record exists or to find record
(Clause 41)

- Published records and records to be published (e.g. if record is available at library/to be tabled in Parliament)
(Clause 42)

- Records already open to public (in terms of other legislation) (e.g. Legal Deposit Act, 1997 (Act No.54 of 1997))
(Clause 43)

- Mandatory disclosure in public interest:
* Despite exemptions access must, with regard to certain records, be granted if, giving due weight to importance of open, accountable and participatory administration, public interest in disclosure clearly outweighs need for non-disclosure (as embodied in the relevant ground for refusal)
(Clause 44)

C. THIRD PARTY INTERVENTION
- Notice to persons when request for record pertaining to them is received
- Opportunity to make representations as to non-disclosure

(See Chapter 3 of Part 3 -- clauses 45 to 47)

8. ACCESS TO, CORRECTION OF AND CONTROL OVER PERSONAL INFORMATION
- Provision for access to personal information held by private bodies (clause 50)

- Correction of inaccurate information about personal information held by private/governmental body (clauses 51 & 52)

- Use & disclosure of personal information held by private/governmental body (clauses 53 to 59)

- Distinction drawn between information obtained before and after commencement of Bill (clause 59)

- Collection, retention, accuracy & disposal of personal information (only governmental bodies) (clauses 61 & 62)

(See Part 4 - clauses 48 - 62)

9. PROTECTION OF WHISTLEBLOWERS
- Officials who blow whistle on --
· contraventions of law
· corruption
· maladministration
· abuses of power
are protected

- Disclosures may be made to --
· specified bodies, e.g. Public Protector, parliamentary committee
· in certain circumstances, media
(See Part 5 - clauses 63 - 66)

10. ENFORCEMENT MECHANISMS
- If request for access or correction of government record is refused, may lodge internal appeal with head of governmental body

- If --
· urgent request for access or urgent internal appeal or internal appeal is
unsuccessful; or
· contravention of whistle-blower provisions is alleged, may lodge urgent motion application with High Court

(See Part 6 - clauses 67 - 81)

11. ROLE OF HUMAN RIGHTS COMMISSION
- Human Rights Commission must annually --
· review operation of Bill and make recommendations to Parliament
· report to Parliament, e.g. on number requests received, granted and refused

- Commission must also assist persons who wish to exercise rights contemplated In Bill
(See clauses 82 to 84)

12. GENERAL PROVISIONS
- Provision is made for offences in clause 85

- Minister of Justice empowered to make regulations regarding inter alia --
(a) matters that must or may be prescribed (e.g. form of requests, fees
payable);
(b) notices in terms of Bill;
(c) classification of records (see offence-provision in clause 85(c))

(See clause 86)

- Provisions of the Bill, when it becomes law, can be brought into operation on different dates (See clause 87(2))

13. IMPLEMENTATION
Guide on how to use Act
Manuals of government bodies
Regulations
Information officers