A summary of this committee meeting is not yet available.
14 October 1999
OPEN DEMOCRACY BILL: HEARINGS
Documents handed out
Johannesburg Stock Exchange submission
Office of the Public Protector submission
Legal Resources' Centre submission
Law Society of South Africa's submission
The Johannesburg Stock Exchange supports the Bill's aims to increase transparency but is concerned about the strategic consequences it might have for the JSE. The submission requests clarity on whether it would be viewed as a 'governmental or private body by the Bill and the response of the committee was that it would probably be seen as a private body. The JSE stressed that it must be able to operate in the fiercely competitive international market but its ability to do this may be compromised by the Bill. This would have implications for the South African economy in which the JSE plays a pivotal role. The JSE feels that it already provides for transparency, as set out in the Stock Exchanges Control Act of 1985 and that it holds information in an established and accessible way. The JSE would prefer to be excluded from the legislation altogether but if included the JSE would desire to fall under the financial exclusion.
The Public Protector's Office addressed the potentially conflicting provisions of the Public Protector's Act and the Open Democracy Bill. Concern was expressed that the much needed confidentiality and privacy in relation to investigations would be eroded if the Bill did not grant some kind of exclusion to the Public Protector in relation to the public's access to information. The guarantee of confidentiality greatly assists investigations since both complainants and state officials alike are more frank. It is their view that the exclusions in the Bill were not helpful enough in this regard. Various committee members nevertheless felt that the suggestion that the Public Protector be totally excluded from the Bill would be unconstitutional since the right to access to information from the Public Protector would be completely erased. The committee chairperson directed Public Protector's Office to formulate a revised submission addressing the concerns and suggestions raised by members.
Legal Resources' Centre stated that the Bill was potentially unconstitutional in that certain provisions were limitations of the right of access to information, some were an infringement of the right to freedom of expression while others seemed to infringe the right to the environment. It was submitted that the Bill fails to make provision for 'open and accountable administration at all levels of government'. The LRC isolated a number of these provisions, summarised the ways in which they are problematic and suggested concrete amendments to be adopted by Parliament.
The Law Society of South Africa amongst other issues believes that the blanket exclusion of Cabinet and the judiciary from the ODB is a failure to give effect to the Constitution.
Johannesburg Stock Exchange
Ms Philippa Stratten, Assistant Legal Counsel: Johannesburg Stock Exchange (JSE), began by stating the JSE's concern of whether it could be considered a 'governmental body' by the Bill. As the only licenced Stock Exchange in South Africa they could be perceived as exercising a public power and for trading purposes they operate according to a public Act. The JSE therefore seeks clarity on whether it is a public or private body.
Because of the types of records and information the JSE holds it also requested that it should be excluded from the Bill. No other stock exchange faces such constraints as the ODB would put on the JSE. Further there are already systems in place to access the information the JSE holds - including a widely available news service - and application of the ODB would merely unnecessarily increase administrative burdens. The JSE holds information on behalf of third parties on a confidential basis, it would be inappropriate to release this. Some JSE held information is actually sold for much needed income. Finally, information received by the JSE is often inaccurate so is only made available when it has been verified and is then released in a set format. We believe that uncontrolled access to incorrect information could be extremely chaotic.
The JSE had some specific comments on the possible inclusion of the JSE.
- Clause 49 on disciplinary procedures needs clarity as the JSE has its own disciplinary procedures. Adv. J de Lange, committee co-chair (ANC), stated that if the JSE came under the Act it would be obliged to give up its information, self-regulatory bodies could not be included in a different way to other bodies.
- Clause 50 relates to how various other clauses affect governmental bodies but needs clarity on the extent it applies to private bodies.
Adv. de Lange opened the discussion by stating that it is unlikely that the JSE would be considered part of government. The ODB would only be applicable to the JSE in a horizontal nature as a private body.
Mr L Lever (DP): Chapter 2, section 32 1(b) of the Constitution specifically states that everyone has the right of access to information held by another person that is required for the protection of any rights. As confidential information held by the JSE is held on behalf of third parties it need not be accessed from the JSE. Are your fears over giving up confidential information real?
Response from Ms Stratten: We feel that the Bill is not stated in that manner. It is not as narrow as the Constitution. Further we already have a easily accessible information system so feel it is unnecessary for us to fall under the Bill.
Adv. de Lange commented that all private institutes will say this!
Mr J Mashimbye (ANC): Regarding point 3.2.1 of your submission, I want to know what happens if confidential information held by the JSE must be accessed.
Response from Ms Stratten: All confidential information held by the JSE is held on behalf of third parties. This information is held by brokers or investors so we feel that the information should be accessed from them.
Ms Camerer (NNP): Regarding point 3.2.2 of your submission you suggested that application of the Bill to the JSE could lead to incorrect information being given out. Could you clarify what you meant?
Response from Ms Stratten: Information received by the JSE is often incorrect and incomplete. The Listings Division works on the information until it is correct, complete and standardized and so more accessible to traders and the public.
Adv. de Lange ended the discussion here as he felt the JSE submission was very clear. Firstly they did not want to be included within the Bill as a government body and he saw this as unlikely. Secondly if included as a private body they would desire to fall under the financial exclusion of the Bill.
Office of the Public Protector
Dr M Schutte from the Public Protector's Office (PPO) addressed the committee on the submission. He began by stating that the first concern with the Bill which went to the core of the way they work in the PPO was the conflict which apparently existed between section 7(2) of the Public Protector's Act (PPA) and section 2 of the Open Democracy Bill (ODB).
He explained that in terms of section 7(2) of the PPA:
"Notwithstanding any other legislation, no person shall disclose to any
other person the contents of any document in the possession of a member of
the PPO or the record of evidence given before the Public Protector or certain other persons unless the Public Protector determines otherwise."
He noted that section (2) of the ODB would clearly be in conflict with this section.
He said that the question was therefore which of these clauses would take precedence. He suggested that there was a strong argument to be made for the later act (the ODB) taking precedence and in any case pointed out that there was a provision in the ODB stating that in the event of any uncertainty arising, one should interpret in favour of the ODB.
Essentially therefore Dr Schutte contended that the Public Protector would be in the position where it did not know whether or not it still enjoyed confidentiality and privacy whilst investigating matters in its jurisdiction. He stressed that confidentiality had always been a strong and important feature of the work of the Public Protector since it encourages complainants to come forward and it encourages institutions under its jurisdiction to be quite frank and open in their approach when corresponding with the Public Protector.
He stated that this kind of confidentiality was recognised by Parliament - specifically by the Constitution - where it says in section 182(5) that the report of the Public Protector may be kept confidential under certain circumstances.
The Public Protector has also been given authority to, in its discretion, exclude certain persons from a hearing - section 7(2) was said to be an example of this. He also stated that the Public Protector and its staff were not compellable witnesses in a court of law.
Mr Schutte thus noted that it was clear that the legislature had intended the Public Protector (through the Public Protector Act which he said flowed from the Constitution) to enjoy a measure of confidentiality.
He agreed that section 63 of the ODB dealing with the protection of "whistle blowers" went some way in protecting the complainant to the Public Protector but did not go far enough. He had looked at whether section 31 of the ODB could help but was convinced that it could not.
He noted that another problem was that complainants often put defamatory material in their submissions to the Public Protector. He gave an example of an actual incident where the complainant had, in his submission, defamed a state official who subsequently received a copy of this material by other means. The official instituted an action based on the defamation but fortunately the Public Protector managed through recommendations to free the complainant of the defamation claim.
Another problem highlighted by Dr Schutte was that the privacy of the complainant in general was threatened since having to disclose information could expose various personal and private information as well, for example, tax details, mental conditions etc. He explained by an example that, if a complainant had a fight with a social worker or any person in the state's employ, then decided to expose some malpractice or irregularity which was encountered, including in such submission personal information necessary to expose the official, the Public Protector's Office would be powerless in respect of withholding the document on confidential grounds. It was pointed out that in terms of s44(1) of the ODB the Public Protector must grant a request for access if the disclosure reveals a substantial abuse of authority. According to Dr Schutte, section 29(1) of the ODB (regarding the mandatory protection of privacy) could not be invoked in this regard since s44(1) was an overriding provision.
This, he explained, could result in major problems where the media has published personal information obtained via s44(1) whilst the Public Protector was still investigating the complaint.
He was also concerned that even though s63 protected whistle blowers, the fact that the Public Protector may not be able to guarantee the absolute anonymity of their identities may as a result impede upon the accessibility of the Public Protector which the Constitution provides for. He was also concerned about the Bill operating retrospectively.
Furthermore he explained that the institutions falling under the jurisdiction of the Public Protector generally play open cards with them and come with a full account. Together with that the officials normally request reassurance that the information will not get into the hands of the complainant or be used in litigation against them. He states that s7(2) of the their Act allows them with discretion to guarantee confidentiality.
He finally suggested two solutions:
1. Allow the information officer to refuse a request for access to a record if it was supplied in confidence by a third party or another governmental body.
He suggested, however, that there are so many people who come to the Public Protector that some will not know to claim the privilege. Therefore he gave a second solution:
2. The Public Protector should be totally excluded from the application of section 2 of the OBD.
Ms Smuts (DP) asked what guarantees citizens would have, (should the Public Protector be completely anaesthetised) that the Public Protector's Office (PPO) was acting entirely fairly and scrupulously.
Mr Schutte's answer was that the principles of administrative justice would guard against an abuse of its powers and procedure. Further the Public Protector is accountable to Parliament.
Secondly she asked how open the procedures were and how much of the findings were published.
He replied by setting out the functions and procedures of the Public Protector. He said that essentially it was an ombudsman office. It deals extensively with speedy alternative dispute resolutions as well as a more formal hearing procedure. Only if a formal hearing is held can the public attend. However the results of informal discussions can be reported to an ad hoc committee or in the Public Protector's annual report to Parliament.
Mr A Leon (DP) stated that clause two of the ODB ('this Act applies despite the provisions of any other legislation') was inserted to give effect to s32 of the Constitution. He accepted that clause 39 was problematic for the PPO but pointed out that the Bill did cover a large number of situations, which would cover the PPO in not having to disclose information. He remarked that the information officer would only have to disclose when the need for disclosure clearly outweighed the need for non-disclosure. He felt that the exclusions in the Bill plus the proposed amendment would cover the PPO adequately and rejected the blanket exclusion proposed by Dr Schutte as unconstitutional.
Dr Schutte disagreed that the PPO was adequately protected against disclosure. Clause 32 only protected the PPO from access demanded from third parties and not from other governmental bodies. Clause 42 is also problematic as although the test outlined in 42(2) gives satisfaction, 42(1) does not fall under this test. He added that it was at least debatable whether the other exclusions would actually cover the PPO. The PPO must be able to give total guarantees to people who contact it but the ODB does not allow for this and litigation against complainants would sooner or later be inevitable. The PPO is not really expecting a blanket exclusion from the Bill but is requesting legislation that fits the entire Constitution. Focus should not be on section 32 alone, the limitation clause of section 36 must be recognised. Parliament should not forget that by s7(2) of the Public Protector Act it has already set out the need to give certain powers to the PPO that allow it to do its job. If the Public Protector was excluded from the operation of the ODB it would be nothing new since policy in relation to the Public Protector was clear from its Act.
An ANC member asked Dr Schutte for comparative studies with regard to the problems raised.
He stated that due to time constraints they were not able to come up with any comparative studies but undertook to do so in due course.
Mr Lever (DP) suggested a third solution to the problem: that correspondence of the Public Protector could be legally privileged.
Dr Schutte responded that this was worthy of serious consideration since it would assist in having frank and transparent communication with complainants as well as with state officials.
Mr Solomon (ANC) was of the opinion that the PPO deserves protection because of the value of the information they receive and the job they do.
Mr Jeffrey (ANC) stated that the PPO had only raised concerns in its submission. He wanted to know whether the PPO had any document, where they discuss the implications of how the ODB is going to impact on the Public Protector.
Dr Schutte said that there had been insufficient time to produce such a document.
Mr Jeffrey (ANC) also asked whether there had already been attempts under section 32 of the Constitution to gain access to PPO documents.
Dr Schutte said that there had been a few circumstances where s32 was invoked. He also said that staff from the PPO had at least thrice received subpoenas to appear as witnesses in court. Some of the requests for documents had also involved requests for information on the source that made the complaint This reflects the very real concern of the PPO that if they are forced to reveal their sources the volume of information they receive will dry up.
Ms Taljaard (DP) asked whether other state investigative bodies or tribunals would have the same problems as the Public Protector.
Dr Schutte said that they would have less problems because of their formal investigative processes. Most act like courts, something that the Public Protector cannot do if it is to find speedy remedies.
Ms Jana (ANC) and Mr Gaum (NNP) both expressed concern with the granting of total exemption to the Public Protector. They contended that the right to access to information could not be completely taken away as this would be unconstitutional.
Dr Schutte reiterated that although total exemption would be welcomed what they were really asking for were the provisions made in s7(2) of their Act. Confidential documents in the Public Protector 's possession must remain confidential.
The Chairperson was not satisfied with this because it would effectively lead to total exclusion. Further he highlighted the number of cases where people had requested confidentially yet had then released information to the media themselves. Why should their names be protected?
Dr Schutte said that information received by the media was usually from those anxious for publicity and who had not requested confidentiality. What the PPO is really saying is that they have the mechanisms to make information available and the discretion to do this is built in to s7(2) of the PPA.
The Chairperson then inquired how clause 32 of the ODB did not apply to the Public Protector.
Dr Schutte said that clause 32 only applied to information given by non-governmental people or bodies. This is problematic as 50 per cent of the Public Protector 's work comes from the state. An amendment to the clause would help but problems would still exist especially as the clause would still contradict elements of the Public Protector Act especially subsection 7(4)(b).
The Chairperson received the undertaking of Dr Schutte that a revised submission would be compiled and made available, incorporating various concerns of members including:-
- Clarification on the problems surrounding clause 32
- The making of comparative studies.
- The problem of the granting of total exemption.
- The possibility of the PPO being considered a 'private body' under the Bill.
Legal Resources' Centre
The presentation was made by Advocate Paul Farlam, instructed by Angela Andrews of the Legal Resources' Centre.
The LRC had two general points to make. Firstly, does the Bill provide the rights that are demanded by the Constitution? Secondly, is the Bill practical? It was submitted that the Bill was potentially unconstitutional in a number of ways but that it could be remedied by a few small amendments.
Advocate Farlam identified what the LRC considered were the problematic sections and their suggested amendments. Some of these relate to what was discussed at the Human Rights Commission workshop on the Bill and have already been recognised by the sub-committee dealing with exemptions. The LRC is also amplifying submissions already made regarding the National Environmental Management Act.
Section 29(1) and 31(1), read with section 44
It was noted that both these sections contain mandatory non-disclosure requirements. Thus, if the conditions in those sections are complied with, there must be a refusal of a request for disclosure.
It was the LRC's proposal that, in order to remedy this, the word 'must' had to be replaced by 'may'. This would have the effect of greater flexibility which is desirable for more constitutional balance. Thus, it was envisaged, that the right to freedom of information, which can be limited by another right, be balanced against the right to privacy. Advocate Farlam added that to use the term 'must' instead of 'may' would result in an unconstitutional balance. He indicated that this was an unsatisfactory override.
Further, reference was made to the Australian and American information acts. Here Farlam indicated that these acts were phrased in such a way that they referred not only to invasion of privacy, but rather to an unacceptable or unreasonable invasion of privacy. This would mean that privacy alone is not a protectable interest but the particular privacy in question must be reasonably important to warrant non-disclosure of information. It was suggested that an unreasonable invasion of privacy would relate to the degree of the invasion, which would also have to be unreasonable. It was further stated that this was a sensible approach which was followed in other jurisdictions.
Advocate Farlam continued that the legislation should be drafted so that there would be a discretion not to refuse the right to access; so that the right to privacy was less intrusive on the right to freedom of information.
It was at this point that the chairperson criticised the submission of the LRC for attaching too much weight to one factor where many other factors were also listed. The committee however, seemed to agree that although one of many, it was an important factor which would have a big effect on the meaning of the section.
This section refers to the interest of the State. Farlam submitted that this section prejudiced the right of access to information to an unreasonable degree. Specific reference was made to S38(b) which provides for the right of non-disclosure where, inter alia, there will be harm to the financial interests of the State or a governmental body. He indicated that 'harm to financial interest' was too weak a test and accordingly proposed that the infringement should be to an 'unreasonable degree'.
It was further noted that in light of South Africa's previous history and injustices it would be a better approach for us to follow the American model. This model does away with a catch-all category but provides for various categories of information to be classified and so rendered immune from disclosure.
National Environmental Management Act (NEMA)
NEMA was enacted to give effect to the constitutional commitment in terms of the environment; one of the crucial clauses in this regard being S31(1) relating to access to information. However, this section was expressly said to endure only until the promulgation of the ODB. It was anticipated that the ODB would make provisions on environmental information that would be at least as generous as the NEMA. This is not the case. Accordingly, it was stated that at the very least the ODB should include a clause expressly stating that NEMA continues to govern in respect of environmental information.
This relates to the right that the public has to be timeously informed about serious public safety and environmental risks. It was submitted that provision should be made for an override in matters of urgency.
Mr L Lever commented on section one of the LRC submission agreeing that privacy and third parties were unduly protected. He expressed concern that much commercial information would remain inaccessible to the public.
To this Mr. Farlam responded that he agreed with Mr. Lever. The LRC submission provides four remedies regarding the generous protection of privacy and third parties. S29 and S31 are widely phrased and unprecedented world wide in the protection they give third parties at the expense of freedom to information. Further S44 does not help access to information as it requires a person to prove they are entitled to access. These sections must be re-looked at if abuses are not to go unchecked.
Here the chairperson indicated that substituting 'must' for 'may' would not make that big a difference as that portion of the section referred only to the information officer. He further indicated that the true problem lay in the possibility that subsection 31(1)(b) of that section was drafted too widely.
Farlam conceded that the impact of the proposed amendment would not be dramatic but noted that it would result in more constitutional balance. Rights defined within the Bill of Rights could not now be overrided by other issues.
The second question was posed by Ms D Smuts. She agreed with many of the proposals made by Farlam. She asked whether he had any better drafting in mind to replace the language that was reminiscent of the past apartheid statutes especially regarding S36 (1) of the Bill.
He responded that S36 of the Bill was discussed in paragraph seven of the submission. The language used needs to be reconsidered and footnote eight contains equivalent US legislation language and categories which would be useful to consider.
Ms S Camerer (NNP) stated that many submissions have expressed grave concern on S44 yet the LRC has attached only limited concern to this section and she wanted to know the reason for this.
Farlam responded that S44 was problematic and indicated that he thought the mandatory reference should be removed. However if the 'must' is removed from S29 and S31 then S44 could be combined in to one clause. This small change would result in the section being less tough and accordingly result in partial alleviation.
Mr J Jeffery (ANC) referred to the final concern raised by the LRC. S86 (c) of the ODB allows the Minister of Justice to make regulations regarding 'the classification of records of governmental bodies'. Classification could dictate whether information is diclosed giving the minister undue control. However as there is room for Parliament to verify the regulations made, S86 (c) need not be a concern. Farlam accepted this point but stated that with such an important Act a small clause on classification would be helpful. These small changes would alleviate abuses and possibly prevent future abuses.
The final question was posed by the chairperson of the meeting. Advocate de Lange's question related to point five of the LRC submission regarding S8 of the Bill. The LRC believes a person's 'right to know' is been subordinated to the privacy concerns of third parties. There needs to be greater flexibility of the time periods and procedures where there is a serious risk of serious danger to the public. However Adv. de Lange wondered that if the time frame were allowed to be abbreviated, then who would have this power of abbreviation? The only specific party mentioned in this section was the information officer and he already had the power to change timeframes from 21 to 10 days.
Farlam stated that the information officer could only abbreviate time frames for the benefit of third parties and that timeframes could only be changed from 21 to 10 days, no further abbreviation is possible.
De Lange continued that Parliament has a duty to protect third parties and if the information officer was given the power to abbreviate the time period then third parties could be prejudiced. De Lange's primary concern was who will decide who has 21 days, who has 10 days and who has less than 10?
Farlam responded that the third party's right to administrative justice could be limited by the administrative officer; thus, in exceptional circumstances the administrative officer should be allowed to abbreviate the time period. He noted particularly that in the case of grievances the administrative officer's decision could be taken on review.
De Lange said that is was possible to give the information officer or the administrative officer more discretion but the defining of the 'circumstances' required for abbreviation remained vague.
Farlam responded that the vagueness was needed to protect third parties. However the Bill already stated that timeframes could be abbreviated from 21 to 10 days in cases of 'urgency' so it follows that it should give power to abbreviate 10 days to less in cases of 'extreme urgency'.
The chairperson disagreed but noted that he understood the point.
Law Society of South Africa
Mr D Burman of LSSA presented their submission. (See submission)
Ms D Smuts (DP) questioned Mr Burman on the sixth point of the LSSA submission regarding the application of the Bill to private persons. Ms Smuts was unclear how changing the definition of 'private body' would assist the right to access information given in s32(1)(b) of the Constitution.
Mr Burman said the point the LSSA is making is that by s32(1)(b) we all have a right to access information, a right that is already horizontal between private and government bodies. The Bill currently fails to give the full extent of this right meaning that information could be requested and yet access refused. You must then approach the high court in terms of s73 of the ODB or use clause 82, part 7 and rely on your constitutional rights if you are to access the information. The LSSA believes that this is unnecessary and that the Bill itself should give provide the controls to access information.
Adv. de Lange warned that the constitutional right to access information was not so unqualified as Mr Burman was suggesting because of the s36 limitation clause.
Ms D Smuts (DP) referred further to the issue of horizontality and whether the bill fails to give full effect to the Constitution. She wanted to know if Mr Burman was proposing that we duplicate the provisions made for the public sphere and use them for the private sphere?
Mr Burman responded that the LSSA is concerned that the Bill was not giving full effect to the Constitution and that its provisions are limiting the right to information. He accept that this right is not unqualified but if the Bill does not define it better, it will become an unfettered right.
Ms F Chohan-Khota (ANC) wanted clarification on differentiating between when a judicial officer is exercising a judicial function (and would be independent of the Bill) and when a judicial officer is exercising an administrative action (and would have to comply to the Administrative Justice Bill and the ODB).
Mr Burman referred Ms Chohan-Khota to section 33 of the Constitution which must be read with the Administrative Justice Bill. Administrative action is defined as a public action without a judicial function. For example judicial officers are performing administrative actions when they issue warrants or authorise telephone taps. The ODB must use the definition set out in the Administrative Justice Bill.
Mr Jeffery (ANC): You stated that the administrative acts of the judiciary are to be included in the Bill as they are in the Administrative Justice Bill. However this Bill is about supplying information. Would it be advisable to release such administrative information, for example, should judicial officers release court dockets?
Mr Burman replied that the judiciary does not always function within a court and must therefore be subject to the same duties as any other government body performing administrative functions.
Ms Chohan-Khota (ANC) inquired about clause 35 which applies to government and not to private bodies. Should this clause include the Law Society?
Mr Burman replied that the new version of the Law Society will be bound. (Currently it is only an association of four existing statutory bodies. However it will fall within the definition of 'governmental body' as defined in 1(1)(v) of the Bill, and will therefore be subject to this.)
Ms Chohan-Khota said that she was really asking how clause 35 will apply to individual lawyers and whether they and their clients could claim their information should be excluded by clause 35.
The chairperson quizzed Mr Burman on section four of the submission regarding civil and criminal discovery. Clause 35 provides for a governmental body to refuse to reveal information on the grounds that the information is 'privileged from production in legal proceedings'. If the LSSA scrap this government right then surely it is giving unfair advantage to non-state litigants?
Mr Burman agreed that the right should be scrapped with regard to both private and governmental bodies and that clause 35 was merely being used as an example. The aim of point four, especially paragraph 4.2 was to state that professional privilege is well rooted and established in the legal system. The Bill's formulation says that when legal proceedings are determined, the information can be revealed. Paragraph 4.2 of submission says that there is no possibility of revealing privileged information after determination of the legal proceedings to which it relates and that the Bill's inclusion of this duty will inhibit the work of legal professionals.
Mr Mzizi (IFP) Should this act work retrospectively, and how far retrospectively? Mr D Burman said that retrospectively had not really been considered but that considering South Africa's past, it was probably not a good idea - there would be too much to undo. However the Constitution sets no limit on the rights it has given people so perhaps one will have to consider retrospective application.
Imam G Solomons (ANC) asked whether alternatives - such as tribunals - had been considered to the costly process applications to the High Court or Human Rights Commission.
Mr Burman said that as the Constitution gives the right to information there must be ways to deal with this. As the Bill stands the LSSA is concerned that it will lead to applications being made to the High Court and Human Rights Commission. There are many alternatives to these but they could only be used if the Bill is changed.
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