A summary of this committee meeting is not yet available.
JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
26 October 1999
DISCUSSION OF SUBMISSIONS
Documents handed out:
Expanded Summary of Submissions
The discussions this morning revolved around section 27 through 32 of the Bill. Chairperson de Lange told the Committee that they would be meeting: every day all day except for Thursday morning for the rest of the week.
Afternoon session During the morning session the committee had decided to relook at the sections already covered (1 to 32) in the light of the expanded summary of submissions prepared by Mr du Preez of the Department. The new submissions were as follows: 15(c) & (d), 16(b), 23(b), 26(a) & (b), 33(a), 36(a)-(c ), and everything from 41 on. By the end of the afternoon session sections 1 through to 32 had been reconsidered.
Section 27: Reports to the Human Rights Commission
The Chair wanted to add the words "including that" before subsections (a)-(k) to ensure that the list was not a closed list so that if future information becomes available it is also included. This is not covered by the "prescribed" language of subsection (k). There was agreement to make this change.
Section 30: Health of Requestor
The Chair asked why they had subsection (2) at all, because it is still the case where the person consents. He wodered if it is not a bit heavy to say that a person cannott get medical records because of a physical reason?
Ms van Schoor stated that this clause is important because there might be a mental health problem with a person.
The Chair understood the provision in terms of mental health but not for physical reasons. When would a physical condition hamper a person's ability to request their own medical records?
Ms Smuts (DP) asked if there was not already a Mental Health Act that would cover this issue? Why is this section here?
Ms van Schoor stated that the Committee should come back to this point, because she is waiting for a reply on this from the Department of Health.
[The Chair gave an example of when 29(2)( c) would be a problem: if a father who had raped his daughter would have access to those records under this provision, this could lead to cover-ups. He stated that they need to be careful that this is worded in a way that does not give abusers access to the information.
Mr Masutha (ANC) admitted that this was a tricky clause, and he wanted to know if it was a matter that had already been dealt with in other legislation. One needed to establish a set of procedures rather than as a preclusion as it is here, which is how it is done in the Child Care Act.]
Ms Jana (ANC) wanted to know if the Department could explain why they were using age of sixteen in 30 (3), and whether this age of sixteen here conforms with the age of capacity in other legislation.
Mr Jeffery (ANC) asked if this section was really needed/belonged here? Existing law needs to be looked at and then an informed decision made about it, so we really need to wait for the report which will audit already existing legislation in terms of access to information.
The Chair said that they would wait for the audit report, and they always need to keep in mind Clause 43. How does an exemption override Clause 43 or other legislation? Clause 43 assumes that other legislation exists to take care of these issues, but at the same time how can we be sure that other legislation will not be overridden by this one?
Mr Masutha (ANC) stated that it was also important to determine what "record" actually means. If you take adoption for example there are already procedures in place that determine what information can be disclosed. Is this clause going to be limited to pre-existing access procedures to certain information?
Ms van Schoor, in answer Ms Jana's question about the age of sixteen, said that they were looking at that. There had been another suggestion to make the age fourteen.
Ms Jana (ANC) made the suggestion to Ms van Schoor that she might want to look at the relevant document from the Law Commission.
Mr Masutha (ANC) questioned whether it was rational to have an age limitation at all? How will children under the age of sixteen be able to utilize their right to access information?
The Chair noted that the age restrictions apply only to this particular exemption regarding physical and mental health. There is no general age limitation for accessing information.
Mr Jeffery (ANC) reiterated that the committee should wait to continue these discussions until after they had received the audit report.
The Chair summarised that there was uncertainty whether or not there is a typical age relating to physical and mental health already dictated somewhere else. Therefore this issue would be flagged and the Committee would return to this issue and determine whether or not these subsections in Clauses 29 and 30 are even necessary once Ms van Schoor had received the requested reports.
Section 31:Mandatory protection of third party commercial information
The Chair is convinced that this does need to be mandatory.
Ms Smuts (DP) wanted to know about the position of the parastatals in this section. She raised the issue of public power as laid out in Section 239 of the Constitution. Clause 31 will have an impact on the definition of organ of the state in relation to this concept of public power.
The Chair pointed out that this will be dealt with in the Administrative Jusitce Bill.
Ms Smuts (DP) said that the draft Administrative Jusitce Bill does not address this point. The ODB does address this concept of public power, and it was re-raised by Telkom in their submission. People need to have an even playing field with the increasing amount of competition in the public sphere. Has the Committee thought through the implications of the public-private partnership - those areas where the State is playing a role in the private sector?
The Chair said that this is really a fact issue. When a dispute arises in determining whether a body is public or private, it will go before the courts to decide. This issue of determination has been flagged though. He questioned whether the full determination should be left up to the courts, because this would mean that people would have to go to the courts every time there was confusion over this issue, which would prove to be quite costly. The problem is that a policy decision needs to be made on what is a government body, and after that it becomes a legal issue. The point is that if the government controls something or if it is the majority shareholder, then the public should have greater access to that information than if it was a privately owned body. The policy decision does not depend on the exemptions, but rather on the definition of governmental body (as in Chapter 1).
Ms Taljaard (DP) said that this issue was very complicated and that the Chair was making it too simple, which was due in part to the complexity of the definition of shareholders. It is not entirely a policy decision, but also a legal one. Doesn't the ODB impact on the National Empowerment Fund Act (NEFA)?
The Chair said that the term 'shareholder' will need to be defined. The ODB does not impact on NEFA because the ODB only deals with access to information and not information about how bodies operate.
Mr Jeffery (ANC) wanted clarity on 31(2)(c ). In addressing Mr Jeffery's concern, the Chair said that all public safety and environmental documents must be available for access and not covered by any of the exemptions.
The Chair flagged the issue of how Clauses 8, 32, 33, and 44 all fit together and how these exemptions are going to work.
Ms Talijaard (DP) said that 32(1)( c) raises a commercial competition issue when government is collecting bids.
Mr Smith (IFP) asked what is a "trade secret" and who determines whether or not it is one?
The Chair replied that the information officer decides, and if you do not like what the information officer decides, then you can go to court. He did not have an answer as to what a trade secret is, but there is jurisprudence on that.
Ms van Schoor said that Mr Smith's concern is taken care of by the 3rd part notification procedure laid out in clause 39.
Ms Smuts (DP) pointed out that the connection between 31(10(b) and 32(1) was unclear.
The Chair admitted that there will be some overlap between the exemptions.
Ms van Schoor stated that she was working on the language of those sections to make them more clear.
The Chair asked Ms van Schoor how this clause worked, because what they have now are exemptions and exceptions to those exemptions, which are all subject to a public interest override. It seems clear that in every exclusion, you can exclude information relating to public safety and the environment. Do you really need the override on these issues, because they appear to be consistently excluded from the exemptions?
Ms van Schoor stated that they will look at the environment issue, and determine if there is to be an automatic exclusion or not. There is no general exemption of these issues now.
The Chair again raised the problem of how Clause 8 (Right to know) fits in with the exemptions from Chapter 3, and how both of those fit in with the additional exceptions and finally how all of that fits in with the override from Clause 44.
Mr Lever (DP) pointed out that the "and" in 31(2)( c) comes off as being more of an "or", and this is a technical point that needs to be cleaned up. Ms van Schoor said that she would do that.
Mr Masutha (ANC) asked if Clause 31(2)(a) was really needed?
The Chair said that you need to read 2(a) narrowly, but that perhaps they should look at putting something similar to what is in Clause 43 there instead.
Mr Lever (DP) pointed out that by adopting the same language as in Clause 43, you will raise an interpretation problem if the issue ever came to court. The courts would interpret the use of the language in clause 43 as meaning that it should have the same meaning or impact in clause 31.
Mr Smith (IFP) asked what 2(a) meant in practice. Does "already publicly available" mean information already available to the requestor in a reasonable form?
The Chair said that subsection 2 is an exclusion of an exemption. So subsection 2 is something that would be used by a requestor when they have been refused access to the information that they want because of this particular exemption. This is not a practice point. He agreed with Mr Lever, but this really acts as a reason for the requestor to get the information even when they have been refused the information under this exemption.
Mr Masutha (ANC) again asked if 2(a) was necessary, because section 43 was intended to protect the PROVIDER of information, which would not work in the instance of 2(a), because 2(a) works to protect the requestor.
Chair: said that there is a difference between "record" and the information contain in that record. He thanked Mr Masutha for raising a good point.
Ms Taljaard (DP) asked if this discussion did not revolve around the severibility clause and its implementation.
The Chair did not think that this was an issue here although Ms Taljaard does raise an issue that they will have to address. The point here is that it is about a record that consists of information already available to the public. This act only deals with the record itself and not the information contained in that record.
After the tea break, the committee decided to relook at the sections already covered in the light of the expanded summary of submissions prepared by Mr du Preez of the Department. The new submissions were as follows: 15(c) & (d), 16(b), 23(b), 26(a) & (b), 33(a), 36(a)-(c ), and everything from 41 on.
Section 1: Interpretation
The Chair referred to the submission from the SAHRC which referenced a change to the definition of "record." He admitted that one of the cornerstones of the legislation was this definition, but he asked that they flag this and return to this issue later.
The next submission related to the definition of government body. The question was whether or not the definition included schools. He asked to flag this issue as well until they had looked at whom the information officer would be as the information officer would be used to head all such bodies under him.
Ms Chohan-Kota (ANC) asked if the information officer was the head of the department, then how would there be an internal appeal?
The Chair said that the internal appeal would fall away, if the information officer was the Director General.
Ms Smuts (DP) said that this might not be the ideal situation in terms of the type of transparency that they are looking for from the Bill. The Director General might play a seriously biased role in making determinations on access to information.
Mr Masutha (ANC) got back to the point raised about schools. We must establish whether or not you are dealing with an entity that has its own separate identity from the government. You could have the school principal and the CEO over-seeing the school, which would mean that you could maintain the internal appeal.
Chair: It looks as if there are several options that we could take:
- the concept of having a higher level for the info officer with an internal appeal built in
- a higher level info officer with no internal appeal
- a fragmented model like the way the Bill has it now.
Mr Smith (IFP) felt that it really is not obvious by the definition of "governmental body" whether or not schools are included. Maybe we should provide specific examples of what the term "governmental body" includes.
The Chair replied that uou could always improve a definition, but he cannot see what is really missing from the definition of "governmental body" as it stands now. Schools are obviously included.
Moving on to the next submission from the Law Society of South Africa, he said that they would come back to the issues of horizontality and open meetings that were raised in the submission.
Ms Smuts (DP) pointed out that the Law Society's point regarding duty of the judiciary should also be flagged.
The Johannesburg Stock Exchange submission was flagged also on the point of distinguishing between a public and private body. The Chair said that this issue really needs to be left to the courts, because they cannot make that clear distinction here in the legislation. There will be a law relating to private bodies, but it will be subject to regulation so that the courts will not have to make decisions without any guidance. The Committee still has a lot of work ahead of it in terms of making this area of the legislation more clear.
The Chair said to Ms van Schoor that a preamble to the legislation would be needed and that she should start drafting one.
The next submission raised the point that 1(1)(xxiv) and 1(1)(xxvi) are confusing because both define "requestor". The Chair noted this as a technical point that Ms van Schoor should look at and perhaps change.
The South African Revenue Service stated that they should be excluded from the provisions of the Bill due to the fact that the information that they hold is of a confidential nature. International practice is for such a body to be excluded.
Ms van Schoor stated that clause 32(3) covers their point.
Ms Smuts (DP) said that SARS must be excluded because you cannot run a country if tax information is not kept confidential
Mr Smith (IFP) asked how could they exclude them? Indirectly or generally?
The Chair said that the problem with excluding them entirely is that SARS does a lot of other things other that tax (e.g. employment practices). If you have a blanket exclusion, will all of that other information (information not related to taxes) also be excluded? He asked Ms van Schoor to point this fact out to SARS and see what they say.
Ms Camerer (NNP) suggested that SARS look at what the other countries did to see if they were completely excluded.
The Chair said that the Committee was sympathetic to the position of SARS, but that Ms van Schoor should look into the questions he had raised.
Mr Durr (ACDP) made the suggestion that a lot of the confusion relating to the division between public and private bodies would be alleviated if they just dealt with private bodies in a separate piece of legislation. If they separated them, then they could call this Bill the "Public Access to Information Bill", which is what it really is. They could then fast track the other legislation on private bodies along with that one to meet the requirements in section 32 of the Constitution. Doing this, would put South Africa in alignment with what other countries have done with regards to this issue of the right to access information. He said that this decision needs to be made soon
The Chair agreed that this was a possibility, but he said that the Committee could wait to make a decision on it until they got to the horizontality section of the Bill. He admitted it was one of the most important questions that needed to be answered by the Committee.
Section 1 Interpretation [CONTINUED]
The South African Society of Archivists (OPD 65) have submitted that archival collections in the control of a governmental body (a university or a library) but remaining the property of another person or organisation should not be treated as records of a governmental body under section 1(1)(xxiii)(i). Adv de Lange accepted that libraries hold the assets of others and that there might be confusion over whether you make a request to the library or to the owner. However he felt that if collections had been donated to a library's keeping and use there was no reason why they needed to be exempted or why their owner would wish them exempted.
Mr Smith suggested that collections are often donated for academic use and not for public use.
Adv de Lange accepted this point and said the submission would be looked in to. There must be more clarification because this concerned records that are neither government records nor records owned by the library or university, but private information held by a government body.
Adv de Lange accepted that there were a large number of possible exemptions from the Bill but said that this was not a reason to decrease exemptions. Consideration should be whether something should or should not be exempt and not whether the number of exemptions is too large or small.
Section 2 Application of Act
A possible amendment to this section is being drafted by Ms van Schoor. It will be looked at more closely with section 43 but it will take up the COSATU (OPD33) proposal that if access to a record is already legislated for then the more 'favourable' legislation will prevail.
Adv de Lange did not agree that this was the best way to amend the section. Use of the word 'favourable' leaves decisions completely in the hands of the courts.
Mr Smith agreed this was problematic because would favourable relate to more favourable access or to more favourable process involved in finding the information or to more favourable content of what you can access. He also wondered how this would combine with and affect future Acts.
Adv de Lange stated that under the Constitution all future Acts are equal. However this is a question of convenience and not of the Constitution.
Mr Smith suggested that both previous and future Acts could be run according to this Act by having a changeable schedule.
Adv de Lange said that this had been proposed but not a single department has responded to the request to work out which Acts might be affected. This would be the best solution as both the current options are cop-outs. The Labour Relations Act deals with this issue [of which Act applies] by forcing new Acts to amend the schedule of the Labour Relations Act and then it simply complies with it on duplicated issues. He proposed that section 2 should be looked at again once the proposed amendment has been drafted. He suspected it would not solve the problem - then various other options must be looked into. He proposed that section 2 stand over for a fuller discussion on principle.
Section 3 Objects of Act
Adv de Lange agreed that section 3(2) might be better provided for under its own heading as proposed by the Minister of Health (OPD 46).
Section 4 Designation of Information Officers
Many of the new submissions reflected views expressed previously and relate to issues that will be covered under discussions on structures; will every body have an information officer or several information officers; should the Director-General of each department act as an information officer; can there be one information office for all of government; or could one information officer delegate to deputies within each department.
Section 5 Guide on how to use Act
The concern raised by the Department of Land Affairs (OPD 42) about the voluminous nature of the guide should be solved by the discussions over structures and how information officers and deputies will be defined and designated.
Adv de Lange said that the drafting suggestion made by the Minister of Health (two subsections not four) would be considered by the department.
Adv de Lange dismissed the personnel implications of being obliged to keep SAHRC updated with new information, raised by the Department of Agriculture (OPD 51), stating that some one must do this.
Section 6 Manual on functions of governmental body
Clause 6(6) provides for SAHRC to exempt governmental bodies from producing the functions manual and SAHRC (OPD 41) would like to have a role in exempting governmental bodies from all areas of the Bill. Adv de Lange stated that such a role would be provided for within the implementation but did not support the proposal. Making 6(6) application to the whole Act would allow for blanket exclusions form the entire Act by decree. Further he did not support the role given to SAHRC in 6(6). He believes that this is a role for a government minister because they are accountable to the electorate whilst the SAHRC is not.
Mr Smith pointed out that 6(6) enables SAHRC to exempt categories of governmental bodies and not singular bodies.
Adv de Lange took note of what Mr Smith had pointed out and said that this would be useful to stop the cost implications for public institutions yet he said that some bodies that fall within some categories should have manuals if they could easily afford them. He proposed that either there should be no exemptions or that there should be exemptions for certain bodies as identified by the minister.
Ms van Schoor directed Adv de Lange to 6(1) which provides a broad exemption for public enterprises that operate a separate financial administration system.
Adv de Lange said that this exemption should be looked at further. Public enterprises who could easily carry the cost of publishing manuals should perhaps be made to do so.
Adv de Lange said that the Department of Land Affairs' (OPD 42) concerns that too much detail was required by the manual will be looked at when the Bill is scrutinised further.
Adv de Lange said that the drafting suggestion made by the Minister of Health (two subsections not six) would be considered by the department.
As the Administrative Justice Bill requires every organ of state to have a register, the Public Service Commission (OPD 50) suggests that this might be combined with the manual. However Ms Smuts pointed out that this would be difficult if not impossible. The register will contain binding decision guidelines so should be separate. The only possible overlap would be through the ODB section on guidelines of access that had now been deleted.
Adv de Lange directed Ms van Schoor to look in to possible links with the Administrative Justice Bill and Labour Relations Act but agreed with Ms Smuts that such links were unlikely.
Section 7 Information in telephone directory
Both the Department of Land Affairs (OPD 42) and the Department of Public Works (OPD 43) have expressed concern on the cost burden this places on the Department of Communications.
Ms Smuts suggested that the information should be made available at the cost of GCIS.
Adv de Lange agreed that GCIS must provide the information if it was beyond the Department of Communications control as costs would still boil down to government. This would be dealt with in the regulations.
Section 8 Announcement of public safety or environmental risk
Adv de Lange said that the applicability of section 8 within this Act was a huge issue and referred back to Mr Durr's (ACDP) comments from the morning session.
(Mr Durr had made the suggestion that a lot of the confusion relating to the division between public and private bodies would be alleviated if private bodies were dealt with in a separate piece of legislation. This Bill could then be called the "Public Access to Information Bill", which is what it really is. Legislation on private bodies could then be fast tracked to meet the requirements in section 32 of the Constitution. This would put South Africa in alignment with other countries on the issue of the right to access information. Adv de Lange had agreed this was a possibility but had deferred a decision on this until the committee had discussed the horizontality section of the Bill.)
Adv de Lange was very puzzled as to where section 8 had come from, it bares limited relation to the rest of the Bill and although an open democracy issue is not really a right to information issue. The Bill will include a right to know clause but Adv de Lange directed Ms van Schoor to investigate how other nations dealt with information that can never be excluded from public access. Adv de Lange stated the need for a fundamental policy discussion on section 8 issues when submissions would be considered.
Section 9 Right of access to records of governmental bodies
Ms van Schoor accepted that it was not the intention of section 9 to allow one government body to request information from another, a possibility pointed out in the Mpumulanga Provincial Government (OPD52) submission. The whole purpose of the Bill is allow people outside government to gain access to information. Further in an atmosphere of cooperative government a governmental body should not need to use the Bill to gain information from other governmental bodies.
Mr Smith agreed that the sharing of information within the state was not an issue of this Bill and the section should be rephrased to exclude this possibility. He pointed out that should cooperative government fail, the Constitution provides powers for local and provincial government to access information.
Adv de Lange pointed out that exclusion would be difficult because a blanket exclusion of governmental bodies would mean public enterprises would be excluded and so unable to access information from government. However he accepted that section 9 should not provide for national, provincial and local government to request information from other governmental bodies. The requester must be defined as a person, other than a governmental body, apart from governmental bodies that are public enterprises. It was not an intention of the Bill to stop public enterprises accessing information, it was merely an accident of defining a governmental body in such broad terms.
Ms Smuts pointed out that section 195 of the Constitution defines a public enterprise as not being an organ of state.
Mr Smith disagreed that public enterprises should have the right to access information from government bodies.
Ms Chohan-Khota (ANC) also disagreed and suggested that one of the reasons for drafting such a broad definition of governmental bodies was so that bodies falling under the definition should be subject to the same rigid guidelines. However she also pointed out that it might be easier for a small local government level requester to access information via the Bill than through the principle of cooperative government. Maybe a door that only opened access to information should not be closed at this stage.
Adv de Lange said that at this stage section 9 was an open door but directed Ms van Schoor to draft an amendment that would close the door to governmental bodies requesting information form other governmental bodies. Once drafted the committee will discuss section 9 further.
Section 10 Use of Act for criminal and civil discovery of governmental bodies' records excluded
Ms van Schoor has already been directed to look at section 10 with regards to sections 35 and 49. Adv de Lange stressed the need for the fine-tuning of these sections.
Ms Smuts said that there is difficulty determining why requesters are asking for information. She proposed that section 10 could be deleted as section 35 would be sufficient.
Adv de Lange disagreed with this solution because whilst section 10 is perhaps too general, section 35 is too limited. He suggested that section 49, dealing with criminal and civil discovery and private records might be deleted.
Section 11 Right of disclosure
Both ESKOM (OPD 25) and the Department of Minerals and Energy Affairs (OPD 63) have suggested the need for guidelines and explicit reference to relevant sections of the common law, on a recipient's rights to publish information. Ms van Schoor is already researching this and the committee will discuss section 11 further once her research is complete.
Section 13 Form of requests
The issues raised by the Department of Public Works (OPD43), the Minister of Health (OPD46) and the Department of Minerals and Energy Affairs (OPD63) all relate to matters that will be dealt with in regulations. Adv de Lange said that the Department of Minerals and Energy Affairs proposal to have different forms for different departments and organisations would probably be accepted. He suggested all forms to be used by requestors could be attached to the regulations as in the Domestic Violence Bill. Further, if there is a right to know clause in the Bill each department will have to provide a list of information automatically available and a different form would be needed to request this.
The Financial Services Board (OPD 69) proposed that the purpose of the request should be given on the form. Adv de Lange disagreed with this because your purpose of requesting information should not define whether you are entitled to it.
Mr Smith pointed out that the definition of non-commercial requester defines a purpose for requesting the information.
Adv de Lange accepted this and said that this would be looked at further when the requester categories are reconsidered.
Sections 17, 18 and 24 Payment of request fee, deposit and access fee
A lengthy discussion on fees occurred on 19 October and further discussion is planned for the future as there was limited consensus between committee members. This discussion will be further influenced by decisions made on categories of requesters.
Adv de Lange commented that the issue of fees further complicated the Open Democracy Campaign proposal that the most 'favourable' route for the requester must be followed. It is possible that one route is cheaper but what if this route was less favourable procedurally.
Section 19 Decision on request and notice thereof
The Department of Land Affairs (OPD 42) has expressed concern that the thirty days period to go from the request for information to preparation of information or refusal to request is insufficient. Adv de Lange said that decisions on this will be taken later.
The Minister of Health (OPD 46) has raised the very valid point that there is no mechanism for the information officer to approach the requester to clarify the exact nature of the information requested. Adv de Lange recognised the importance of this submission but said that it will be dependent on the enforcement mechanism agreed. However provision for further particulars form requesters must be made.
Section 22 Deemed refusal of request
Concern was raised that by not dealing with requests within 30 days an information officer has an easy way to effectively refuse requests. However Mr Smith pointed out that extensions to 60 days were almost automatic under section 21.
Chapter 2 (Sections 28-44) Grounds for refusal of access to records
The Open Democracy Campaign Group (OPD 64) had made a general submission on this chapter. However Adv de Lange felt this submission related more to section 72 as it covers enforcement mechanisms, so it will be discussed later.
Section 29 Mandatory protection of privacy
Section 29 provides for a mandatory protection of privacy that can only be overcome by the mandatory public interest override of section 44. The Legal Resources Centre (OPD 26A) believes that the mandatory protection of privacy is too weak a test to refuse information and that the test to gain a mandatory override in the public interest is too high. Adv de Lange said that although the ANC accepts the point being made, without a privacy Act, this Act must err on the side of caution and give an absolute right to privacy. If a privacy Act existed it would be possible for conflicting interests to be weighed up and for a line to be drawn. Most nations drafted information and privacy Acts to fit together so that this was possible. The only option open to us is to redraft the exemptions. Further whilst the LRC suggestion might help courts, it would not solve an information officer's dilemmas.
Ms Smuts wondered whether the dilemmas of an information officer were ever avoidable and stated that the DP was inclined to give further consideration to the LRC proposals as they provided a persuasive argument.
Mr Durr (ACDP) said that the committee should contemplate the need for a privacy Act. Access to private information and access to public information are diametric issues. Whilst all public information should be available with a few exceptions, private information should be protected from access with specific exceptions.
Adv de Lange pointed out that there were two different kinds of public information, public information and private information held by a public body. Whilst it would be possible to legislate for private information within the private sphere outside this Bill, private information in public hands cannot be excluded form this Bill.
Mr Masutha wished to know how exemptions might be redrafted.
Adv de Lange said that this would mean looking through each exemption and seeing how they relate to laws that already exist and that might legislate for the invading of privacy to a greater extent than this Bill. Pieces of other Acts would overrule this Act. He proposed that the Department look in to this possibility.
Mr Smith suggested that the Bill contain a transitional clause or a clause similar to section 43.
Ms Smuts made reference to the device in the Administrative Justice Bill that relates to other legislation that is compliable.
Adv de Lange accepted these as possibilities but said they would not solve all the problems, especially not the more favourable versus less favourable argument.
Mr Masutha proposed that the SAHRC could provide a deadlock-breaking mechanism as it does in section 43 and that a formal system to publish findings should be set up.
Adv de Lange strongly disagreed with this as a non-governmental organisation should not have to make controversial decisions. Instead an electable and therefore accountable body, ie. government, should do this.
Adv de Lange proposed that the LRC submission be an option the committee might follow and suggested that the privacy clauses from other nations be looked at although he suspected these would all relate to privacy legislation.
Section 31 Mandatory protection of third party commercial information
Section 31(2) sets out the exemptions to the mandatory protection 32(1) gives. If a record is 'already publicly available', subsection 31(2)(a), then access to the information cannot be refused. Mr Smith wondered how this exemption related to section 43 where a request to access a record already open to the public can be denied.
Adv de Lange pointed out that as section 43 was still to be discussed this issue would be looked at further. He asked Ms van Schoor whether 'already publicly available' might mean something different to 'open to public access'. She was unable to give a clear answer so is to look again at both sections.
Section 32 Records supplied in confidence
Section 32 as it stands relates to governmental bodies. However the committee is to consider whether state-owned public enterprises should fall under the section, especially with regards to SABC.
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