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JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
28 October 1999
DISCUSSION OF SUBMISSIONS
Sections 45, 46 and 47 were discussed. Section 45 led to a protracted discussion on the disclosure of requesters' names to third parties. The exclusions under section 47 raised confusion over how they related to the mandatory refusals of requests under sections 29(1) and 31(1). Adv de Lange said that sections 29, 31, 45, 46 and 47 must be redrafted so that they are much clearer then they are presently and that the issues raised with regard to them must be flagged. As Part Four deals with the issue of privacy, Adv de Lange felt it could be more effectively discussed at a later date once its place in the legislation was clear. Part Five, the protection of whistle blowers, was discussed with the possibility of fast-tracking separate legislation on this. Adv de Lange then opened the floor to comments on whether the legislation to be completed by the 4 February should be open democracy legislation or merely right to information legislation.
As hearings on the Administrative Justice Bill must begin by 3 December, Adv de Lange outlined the following schedule for the committee. By Friday 5 November the clause-by-clause discussion of submissions will be complete. The committee will have also given further discussion to the big issues. This will hopefully narrow down the possible options on each clause so that Ms van Schoor need only draft one or two alternatives. Parties must then be consulted so that the suggestions being drafted have support. The committee will then have time to look over the possible drafts so that detail, as well as principle, is considered.
Section 45 Notice to third parties
A submission has been made by the Legal Resource Centre that the identity of the requester should be kept secret in certain circumstances. Another submission by the Freedom of Expression Institute requests that divulging the name of the requester not be made.
Mr P Smith (IFP) agreed with the submission made by the Freedom of Expression Institute, in that there is no need for the third party to know who is making the request. He went on to say that should the third party know who the requester is, this opens the possibility for consent for release only to be given to some people.
The Chairperson, Mr J De Lange (ANC), expressed the opinion that if the name of requester is not known, a third party will be very reluctant to give out information, but if a requester is made known there will be less reluctance. Usually a third party can and will refuse access to information. The idea behind this clause is that they may want to make the information available through knowing who the requester is. The fact that a request is made for information, in the exercise of the principle of openness, and then for the requester to turn around and not to disclose his identity was questioned by the Chairperson. A compelling argument was made that should information be disclosed, so too should the identity of the requester. He suggested that there were only two options regarding the clause, it could be kept as it is or deleted.
Ms F Chohan-Khotha (ANC) proposed that the possibility of the requester to provide information of the whereabouts of the third party should also be considered, since it will make it easier to locate the third party. The Chairperson supported this proposal and requested the drafters to look into it.
Mr Smith (IFP) drew the committee's attention to clause 45(4), which provides for a situation where a third party was not informed of a request. According to Mr Smith, this is a situation that should not be arrived at, since information should not be made available until such time as consent had been given. Emphasis was placed on Sub-clause one, which provides that "the information officer must inform a third party".
The Chairperson agreed that this does not make sense and requested the drafters to look into redrafting the whole of clause 45 to be clear and certain. The idea is to avoid a situation where discretion is given to the information officer to give out information, without making a real effort to inform the third party, therefore denying them the chance to decide if information is made available.
Mr M Masutha (ANC) indicated that sub-clause one also provides for `unless all necessary steps to locate third party have been unsuccessful'. He went on to say that problems are foreseen as to what `necessary steps' are. Further he felt that this put unnecessary emphasis on protracted investigations.
The Chairperson said 'all necessary steps' was the "highest legal test", an information officer must be able to defend himself fully in such a situation, all possible necessary steps must have been taken. A request was made to drafters to look into this uncertainty.
Ms Jana (ANC) wanted to know what would happen if a third party did not consent to information being made available.
Adv de Lange said that the opinion of the third party is not absolute, especially as sections 29 and 31 - allowing disclosure according to specific guidelines - are mandatory.
Mr Smith wondered what would happen if the information requested was problematic. Could the information officer refuse access even if the third party had consented? Mr Smith proposed that a discretion of information officer clause be written in to sections 29 and 31.
Adv de Lange said that this would be made a possibility but felt that it was unlikely information requested through these channels would be problematic.
A discussion occurred about the procedures outlined by 29(1), 31(1) and 45. Adv de Lange felt these were problematic because 29(1) and 31(1) are mandatory exemptions but within these exemptions is the exclusion of third party consent. Mr Smith felt it was unclear what differences would occur if consent was or was not given. Adv de Lange felt that the procedure outlined in section 45 must be protected and so flagged this issue for further discussion.
The Department of Minerals and Energy Affairs (OPD 63) was again concerned that this was another clause that made important information inaccessible. Difficulty in obtaining geological and prospecting information would make South Africa unattractive to foreign investors. However Adv de Lange felt that this concern could be dealt with by the 'right to know' clause. The Department could make all important information available in this.
Section 46 Representations by third parties
In response to the submission by Minister of Health the Chairperson proposed that 10 days should be put in brackets.
In relation to further discretion given to the information officer, the Chairperson requested the drafters to change all of it.
Section 47 Decision on representations for refusal and notice thereof
Concern has been expressed by the South African Council of Churches regarding how their proposed 47(c) might clash with the current 50(2). However as the concerns related to the issue of horizontality, discussions were held over until a fuller discussion on this.
Adv de Lange stated that section 47 will not apply to section 44. Section 44 is a mandatory override and if complied with then all other sections become irrelevant.
The committee expressed confusion over the need for further consideration by the information officer once requests have been refused under the mandatory sections 29(1) and 31(1). It was felt that no need for further discussion under 46(b) or 47(3) was needed.
Adv de Lange stated that although 29(1) and 31(1) were blanket exemptions, exclusions had been created under 47(3)(a), (b), (c) and (d), (b) being the only sub-section where a third party can change decisions made under 29(1) or 31(1). Adv de Lange said that sections 29, 31, 45, 46 and 47 must be redrafted so that they are much clearer then they are presently and that the issues raised with regard to them would be flagged.
Part 4 Access to, correction of and control over personal information by private and governmental bodies
Adv de Lange felt that Part Four was problematic as it covers the privacy issue that needs to be discussed at greater length. He felt there was a case for some, if not all, of the information Part Four deals with to fall under the issue of privacy and not the right to information. He stressed that the constitution demanded only that the right to access information be dealt with by 4 February 2000 and not the right to privacy. Considering the amount of work the committee has to do he felt it would be prudent to be clear on exactly what the constitution demands and if possible legislate for privacy at a later date. Adv de Lange therefore felt that part four could be more effectively discussed at a later date once its place in the legislation was clear.
Part 5 Protection of Whistle-Blowers
The Chairperson said that serious consideration must be taken of whether whistle blowing should be in separate legislation as it was not clearly a right to information issue. Further as all parties supported the need for legislation on this perhaps separate whistle-blowing legislation could be fast-tracked.
The Committee's attention was drawn to British legislation on whistle blowing, which is said to be very effective. The Chairperson informed the meeting that in British legislation three steps for whistle blowing are provided for. Firstly, for whistle blowing within the department or public enterprise. This leads to internal procedures that force senior officials within the department or public enterprise to deal and confront the issue. Secondly, whistle blowers can report to a designated body with a specific interest in the area of their department or public enterprise. For instance, financial mismanagement must be reported to the Auditor General. Thirdly, whistle-blowing can be reported to the highest level of bodies, including the media. The idea behind this structure is that the whistle-blower does not turn to the media giving crooks a warning that may allow them to avoid capture.
Adv de Lange said that if a strong approach to whistle-blowing was desired it must be legislated for outside the ODB. His personal view was that whistle-blowing was not a right to information issue and should be removed from the ODB and legislation passed on it by the end of the year.
Ms Smuts (DP) disagreed that whistle-blowing was not a right to information issue as it is part of keeping the state accountable.
Adv de Lange stated that there are several rights to make government accountable. This legislation is about one of them - the right to information - whilst whistle-blowing is another separate means to ensure accountability.
Ms Smuts said that could not agree with Adv de Lange on this but said that the DP would accept separate legislation on whistle-blowing if it was fast and covered all aspects of whistle-blowing.
Comments on what should be in the ODB
Following the discussion on whistle-blowing Adv de Lange opened up the meeting for comments on what exactly should be included in the legislation. He stated that it was crucial to quickly decide what must be legislated on by 4 February 1999 and whether this was to be open democracy legislation or merely right to information legislation. The right to information is merely a sub-category of open democracy. Although this Bill is called the Open Democracy Bill it fails to cover all open democracy issues and is focused on the right to information sub-category, clearly shown by being structured around information officers. As a result other issues included in the Bill do not receive the justice they deserve because they are drafted to fit in to a right to information Bill. Adv de Lange said he had given Monday (1 November) over to parties so that committee members could raise fundamental issues like this with them.
Ms Camerer (NNP) agreed that the Bill drafted was effectively a right to information Bill with other issues tacked on. She felt that there was a clear basis for an information Act, a privacy Act and whistle-blowing legislation. However as it was the right to information that needed to be dealt with by 4 February this is what should be focused on.
Adv de Lange stressed that an information Bill would still have to deal with private information held by government bodies. Only private information held by the private sphere could be delayed and dealt with in a privacy Act.
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