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AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
10 November 1999
EXCLUSION OF PARTICULAR BODIES; FEES: DISCUSSION
The discussion centred on which bodies should be excluded from the Bill. Specifically, the Cabinet, the President, the South African Revenue Service (SARS), the Courts and the Public Protector were discussed. The opposition parties did not support the idea of a blanket exclusion of Cabinet from the ambit of the Bill, however, the ANC supports such an exclusion. Regarding SARS, there was general agreement that tax information should be excluded from the Bill, but information related to administration would be accessible. Finally, it was agreed that judicial information would be excluded but information related to administration would be accessible.
In their discussion on fees, there was agreement that they needed to adopt general principles related to a fee structure but that most of this issue would be addressed in the regulations.
Chairperson de Lange told the Committee that the new drafts were being written but were not yet ready for their review. The scheduled Thursday and Friday meetings have been cancelled. The committee will next meet on Tuesday morning, 16 November 1999.
Summary of discussion on External Review Mechanism
Adv de Lange summarized yesterday afternoon's discussions on the external review mechanism. There was a general feeling that they should create a mechanism which allows for mediation which would be directly linked to the adjudicative process. They had discussed the various options on how to do this, but nothing had been decided on. Much will depend on costs, but phasing in this provision is an option if costs are a problem. It was agreed that the courts would be the final arbitrator of these cases. Only 3% of the requests in Australia were actually adjudicated. The Chair said that there are problems with having the courts as a means of dealing with such cases. If you start in the Magistrates Courts, then the decisions would set no precedents. There is a myth that you are creating more access by starting in the Magistrates courts, but the truth is that the requestors are going to be at odds with the State or big organizations, which both have money to spend on appeals. The State would not stop in a Magistrate Court, but rather they would keep appealing the case, which would place a huge financial burden on the requester. He added, on the issue of creating a new tribunal, that decisions made in tribunals may be more final, but that he was not completely sure if the Constitution actually allows them to make final decisions or not. If their decisions are final, then that takes away a persons right to appeal. He said that he had tried to see the Minister of Justice to ask him about such issues, but he has been in Pretoria. He is hesitant about creating a tribunal if the decisions are final.
Mr Smith (IFP) said that with regard to the private sphere, the whole area needs to be developed more, which will have to be done in the courts. As the issues around the private sphere will have to be fleshed out in the courts, it is essential that there be an appeal mechanism in place.
The Chair said that was an excellent point. The law in relation to the private sphere would have to be developed in the courts and so they have to be sure that there is an appeal mechanism.
Ms Smuts (DP) pointed out that the original Bill had information courts attached to each division, which might be a solution.
The Chair said that if they create an Information Commission, then that might be the solution. He said that they need to go forward to their parties with this to see what they feel.
Exclusion of Particular Bodies
The Chair said there are a few ways to deal with the exclusions. One way would be to specifically exclude that body from the legislation as in the UK model. Another method would be to create a separate exemption for the body itself. The Australia model made a specific exemption for Cabinet. The final option would be to leave the exemptions as they already have them in the Bill with the idea that those exemptions protect the kind of information that the Cabinet would want to keep confidential. Every example that the Committee has seen shows that it is a world-wide practice to exclude Cabinet from this type of legislation. The Chair added that one or two provincial executives had asked to be excluded, but he wanted to hold off on this discussion until later.
Ms Smuts felt that excluding the municipalities would be a mistake, and it would open the door for other people wanting to be excluded. The Chair said that he did not want to open that discussion yet. He asked if anyone had any examples of any countries that did NOT exclude the Cabinet? The only examples that they have all exclude it.
Mr Smith pointed out that no matter which of the above three options they chose, it would produce the same result. He said it really comes down to a public relations decision - which one is going to look better in the eyes of the public? Would it not be better to avoid a blanket exclusion, which would make government look as if they were fostering secrecy within the Cabinet?
The Chair said that the first option, which the UK had adopted, is an absolute exclusion so the result is that no information would ever get through. The second option from the Australian model is so broadly drafted that almost nothing will get through, but there is potential for something to get through. The third option is the most flexible in that it is possible that some Cabinet information would get through.
Mr Smith said that he was really asking what the differences were between the options and also what was going to happen with South African Revenue Service (SARS).
The Chair said that the differences were as he had just explained them. The options become less of an absolute exclusion as you go down the list. He also said that they have not completely excluded SARS yet, and that they would discuss that soon. For now, he feels that personal information related to tax information should be excluded, but that administrative information should not be.
Ms Smuts shared a "spirit of the Constitution" argument for why Cabinet should not be completely excluded. The Cabinet of all bodies should be fostering openness, which is spelled out in the founding provisions of the Constitution through words like "reasonable government". It is very wrong to have a primary governmental body close its doors and it would go against the heart of the Constitution.
The Chair said that it was practice all over the world to exclude the Cabinet, because the Cabinet deals with such confidential issues. The Cabinet relies on that confidentiality in its administration. So far as international practice, it would be less attractive to other countries if South Africa did not also keep Cabinet matters confidential. Why is it that no other democracies exclude the Cabinet? It was his personal view that the provincial level would not need to be excluded, because they do not deal internationally.
Ms Chohan (ANC) said that one of the primary considerations of a democracy is making sure that the Cabinet is totally accountable and transparent, which is why Parliament was given the role of overseeing the actions of the executive. However she shared concern about excluding the provinces. She questioned what kind of provincial matters would warrant such an exclusion. She also questioned how the "spirit of the Constitution" argument was going to assist them in these discussions. The focus of the discussions should really be on whether or not excluding the Cabinet would in any way debilitate government.
Mr Mushwana (ANC) said for South Africa to try something that no one else in the world had done would be problematic. He felt that the Cabinet should be excluded.
Mr Nel (ANC) said that there would be a risk of Cabinet being subjected to a protracted series of litigation if they were not subject to an absolute exclusion but rather to an exemption. People could try and use the system to embarrass the Cabinet or for some political reason. He also felt that the Cabinet should be completely excluded.
Ms Camerer (NP) said an absolute exclusion was just a way for the ANC to protect their government. She found the ANC' s argument for complete exclusion of Parliament amusing since it is so against their position of government back in 1996. She agreed that there was merit in excluding the Cabinet because they deal with confidential issues, but she is not convinced that a blanket exclusion is the answer. She liked the Australian model and thought it would be the better model for them to use in terms of practice and in terms of public relations. Finally, she said that she did not want to extend the exclusion to the local levels because SA really needed transparency there.
The Chair maintained that the ANC position on absolute exclusion was in line with the rest of the world He reminded her that the effect of the Australian model would be an exclusion, even though it would be in the form of an exemption.
Ms Taljaard (DP) asked if they could look at what is done at the Council of Ministers at the EU level?
The Chair said that they would look at that. He did not feel that the powers of the provinces constitutionally merit them being excluded. He felt that they really needed to stand or fall by the exemptions already laid out in the Bill. The position on the provinces was based solely on their functions as laid out in the Constitution and in practice.
Mr Smith said that all of this was still an open matter. He pointed out that most of what Cabinet deals with ends up becoming accessible in some department at some point in time.
The Chair said that the problem is that you want to avoid having Cabinet in court all of the time, because that would take away from their ability to function as an executive body. He pointed out that the situation in Cabinet was different than from any other level.
Mr Durr (ACDP) said that if they go the route of excluding Cabinet, then they should also consider excluding the Deputy Ministers as well. He agreed with Mr Smith that most documents do flow out of Cabinet at some point, but there are some documents that never flow out such as the minutes of Cabinet meetings. The problem is that the documents in Cabinet are really time sensitive, and that is what typically makes it important to keep the document secret or confidential. His suggestion was to establish a time frame within which Cabinet would have to release the documents.
The Chair said that they have that type of law now; it is 20 years as in the United States.
Mr Durr followed up by saying that they should consider making that time frame shorter.
The Chair said that they would think about Mr Durr's suggestion regarding the Deputy Minister but he was not convinced that such person really needed to be excluded. He asked Ms van Schoor to look into it.
Mr Solomon (ANC) felt that Cabinet should be excluded. He pointed out that excluding Cabinet did not mean that they were going to change into a secretive body. The basic objective of the Bill is to give ordinary people not politicians access as there are means for parliamentarians to get information as they already do now. He said that they should dispel the myth that Cabinet would turn into something sinister.
The Chair said that Mr Solomon had raised a good point. Parliament can typically get access to information when they request it.
Ms Jana (ANC) said her point was covered by what Mr Durr said. She suggested that they adopt either a time frame approach or a consequence test. She also said that the Bill does not cover documents in Cabinet that are available in other departments. Essentially, you could not get a Cabinet document even if it was available from a department. In the Australian model those documents are also exempted, because it specifically says any documents given or used in Cabinet are excluded. In truth, the Australian model goes even further that the absolute exemption from the UK model.
The Chair said that they would look at that.
Mr Swart (ACDP) asked about creating a necessity-of-harm clause. This clause would weigh the nature of the record versus the source of the document (where it came from). When you are excluding Cabinet, then this type of clause would never apply. He wanted to know if this type of clause would act as an override if Cabinet was excluded by means of an exemption.
The Chair asked if he knew of any examples of where they have necessity-of-harm test in the override? Mr Swart did not. The Chair felt that almost every document would be overridden if this type of clause was created. You would always get access to the document because the override would shut down all of the exemptions.
Mr Swart said that he would look into the clause more and come back to the Chair with it, but he pointed out that the necessity-of-harm clause had been deleted from the previous draft.
The Chair wanted him to consider how such a clause would impact on their foreign relations, but he said that they would look at it later.
Mr Landers (ANC) asked the DP if they had considered the implications of what they were proposing. Are they serious about not excluding the Cabinet? If they are serious, then does it not go against their policy on the South African economy? If you take out the exclusion, then what kind of message will that send to the international community? He asked the DP if they really believed that other countries would feel secure that information they exchanged with the Cabinet would remain confidential based on the exemptions in the Bill? They are not going to trust us unless we exclude the Cabinet. He supported providing Cabinet with the discretion to choose what documents they wanted to make available.
Ms Smuts responded by saying that there was no reason to have a blanket exclusion for the Cabinet, because the exemptions already protect that information.
The Chair asked her if that was true, then why do all other countries specifically exclude Cabinet AND keep other exemptions as well?
Ms Smuts said they do not because they do not have the word "open" in their Constitution.
The Chair said that there seemed to be two positions on this issue of excluding Cabinet. They are to make an absolute exclusion or to say that the exemptions apply as they are. He wanted to open discussion on whether or not the provinces should be excluded as well.
Mr Smith asked since the President is not the Cabinet if they should deal with his position as a separate exclusion. Should there be a joint exclusion? How do you exclude the Cabinet without also excluding the President?
The Chair asked for Ms van Schoor's view
Ms van Schoor said that they would not want to exclude all of the President's documents
Ms Smuts said that the President was like a governmental body and it should not be exempted.
Mr Durr pointed to the Constitution and said that the Cabinet consists of the President. He is a part of the Cabinet, because he is the head of it.
Mr Smith pointed out that the Office of the President was different from his role as head of state.
The Chair said that the Office of the President is seen as a department, and what he does falls under the exemptions as they are, but he will think on it more.
Ms Smuts said that there is no way that his department can be excluded. She said it might be helpful if they look at the Administrative Justice Bill.
The Chair said that they would look at this issue again when they look at the United States model for excluding the Cabinet, because in the U.S. they exclude both the president and the vice president. He admitted that the separation of powers in the U.S. was much different to that in South Africa.
Mr Smith returned to a prior point. He said that if Cabinet is excluded then there will be a large volume of documents not available to the public. He was not convinced that there would be a great deal of litigation down the road for the executive if there was no blanket exclusion. He was worried about creating a perception in the minds of other countries that they would be vulnerable in their foreign relations with South Africa, because the democracy was too open. He raised the same public relations arguments from earlier in the day. He asked what was the distinction between the provinces and the Cabinet? You should standardize the exemption if you choose do go that route. Again, he said that in the interest of transparency that the Committee should make the Cabinet and whomever else fall under the current exemptions rather than creating blanket exclusions.
The Chair told him he was not of that position, but that Mr Smith's position was noted. Ms Smuts said agreed with Mr Smith's conclusion even though she did not support his argument in full.
Mr Masutha (ANC) pointed out that Section 83 of the Constitution stated that the President had to function in two capacities. Section 84 laid out the powers and the functions of the president as the head of state, and Section 85 established the President's power as related to the Cabinet. You do not want to exclude the functions of the President while he is acting in terms of the head of state when working on a more administrative level. He recommended that only the information related to when the President is functioning as a member of Cabinet should be excluded. He also said that those instances where a document has not been finalised by the Cabinet should also be excluded.
The Chair said that there is exemption that covers that last example that Mr Masutha raised, and it is in the Administrative Justice Bill
Mr Masutha wanted to say that in those instances when the president signs or looks at a special document should also be excluded, and he couldn't see how the Administrative Justice Bill could provide otherwise.
Ms Smuts said that Mr Masutha's argument made the president above the law. She felt that he should look at the Administrative Justice Bill.
The Chair said that the Administrative Justice law should not apply to the president when he acts as head of state, which was said to clarify Mr Masutha's argument. He said that they would leave this debate open.
Ms Camerer said that the problem was that that the President has certain functions via certain statutes as well. It is impossible to exclude those functions from transparency. She could agree with Mr Masutha's point about when the President acts as head of state over the Cabinet. The Bill should stay as it is, because the President has other functions than being a part of the Cabinet
Mr Masutha said it is important to distinguish between the President's role as the head of state and his role as a part of the Cabinet.
The Chair said again that they would come back to this issue after he had given it more thought. To summarize he said that they had the two positions on whether or not the Cabinet should be excluded, there was a general agreement that the municipal councils should not be excluded, and that they needed clarity on what the U.S. model was and if they could apply it.
Mr Smith asked if the rules apply when Members of Parliament ask the Cabinet for a document
The Chair said that the exclusion would still apply. The documents in Cabinet are confidential unless they choose to make it public. This means that even the MPs do not have access to such documents. However, documents from Cabinet have been obtained by MPs before. The same rules are going to apply as is already in practice in South Africa.
The Chair then moved onto ask the Committee what they felt about excluding the Courts. In Australia they have a complete exclusion aside from that which is considered purely administrative in scope. The U.S. has a complete exclusion on the federal level as well as the UK. The New Zealand model goes even further in excluding the courts. The Administrative Justice Bill says that judicial functions of a judicial officer are excluded, but it does not exclude administrative functions.
Ms Chohan thought that they should follow the New Zealand model, because it seemed to be in line with their own definition of courts. She wanted to know if the special authorities that they created (tribunals) would also be excluded.
The Chair said it was up to the Constitutional Court to decide whether or not the tribunals would be considered courts as laid out in section 166(e) of the Constitution
Ms Chohan wanted to remind the Committee that they had to consider what impact the Bill would have on the external review mechanism that they created to deal with access to information requests.
The Chair said that was a good point, because it would be problematic if that body was not excluded as well. He flagged this issue, and asked Ms van Schoor to check to see what other countries do. He said that he does not have a problem leaving the administrative functions open for access.
Mr Smith did not see why pure judicial functions could not be excluded and administrative functions included for tribunals as well as the regular courts.
The Chair said that they would get final mandates on this later. He said that the court were not originally excluded from the Bill, and that had made the judges very upset. The world practice is to exclude judicial practice.
Ms Jana felt that 166(e) was referring to courts and not tribunals.
The Chair said that it is up to the Constitutional Court to decide.
Exclusion of Particular Bodies (continued)
The Chair said that he wanted to discuss whether or not the Public Protector should be excluded. There are some that say that legislation has already been passed saying that such documents are confidential and are excluded so that there in no need to address it in this legislation. There is no other country where the Public Protector is excluded. He felt that the Public Protector was wrong to think they were protected, and that they should not be completely excluded. He agreed that there is a small part of the information that they work with that should be excluded, but that not all of it should be, especially the information relating to administration.
Ms Chohan said that the Public Protector had also raised issues concerning whistle-blowing, but she said those discussions could wait until they got the new draft of the whistle-blowing act.
The Chair said that they would make sure that there were no conflicts in the new whistle-blower act.
Mr Surty (ANC, NCOP) said that the Public Protector falls under the definition of governmental body and that sections 32 and 33 protect then enough. There is no need to give them a blanket exclusion
Mr Jeffery (ANC) asked about access to police dockets.
The Chair said that this was a separate issue, but that Clause 34 dealt with it.
Mr Surty said that clause 34 is the right place to look at this issue, but that it may be useful to note that when you are talking about police dockets and such that you should do so in relation to clause 34.
The Chair said that they would not discuss that now, but that he would have Ms van Schoor look into it. The Chair asked if there was anyone that felt that the Public Protector should be completely excluded? No one felt that way. There was general agreement that only that small section of confidential information should be excluded.
The Chair then moved on to ask if SARS should be completely excluded. He said he thought the feeling was that they should not be completely excluded, but that information related to a person's tax information should be.
Mr Smith said that the Bill right now does apply to private bodies.
Ms van Schoor said that that part relating to tax information was probably drafted wrongly and that they could change it to apply to private bodies.
Mr Jeffery asked if section 32 is passed as it is would it not overrule part of the prevention of Organised Crime Act?
Mr Smith said that you could change that clause to be subject to other legislation. If you want this to be a SARS exemption only, then why not just say that it effects SARS only?
The Chair agreed that they should have something specific. He wanted to know what other countries do. They would look at the SARS submission again and look at the Australian model as well. He did not want the Bill to mess up the tax system, but he also did not want a blanket exclusion of SARS. They will continue this discussion when they get the new draft of this section.
The Chair pointed out that currently there are three categories of fees: personal, commercial, and non-commercial. The questions that they needed to answer were: Do they want all three categories? Do they want exemptions? Capping? Further, they need to talk about how to deal with MP requests and indigent people who cannot afford to pay the fees.
Ms Camerer said that the House of Commons had a position against having access fees in general. What do other countries do in terms of access fees? She felt as though access fees would decrease access thus defeating the purpose of the Bill. She said currently every governmental department charges a different amount, and that all of them should be brought in line. She though it might be a good idea to scrap access fees all together. The requester should be charged for time spent not for access itself. Her point was that the requester should get charged after the work to get the information was not and not before. Access fees serve as a barrier to accessing information.
The Chair summarized her points as being that she wanted to scrap access fees and replace it with a time-spent model. He pointed out that other countries vary on fee structure, but that most do use the time spent model if the requester is not indigent.
Mr Smith said that you cannot decide on the number of categories until you decide on the fee structure. He pointed out the infrequency of requests once the right-to-know requests are out of the way. He made the suggestion that if there are so few requests that they might not need fees at all. They should create a fee structure in the regulations that is dependent on the number or requests or that if there are few requests then the fee structure can be abandoned at a later time. He warned that the time-spent method could bankrupt you so they would have to work out specific qualifications for this.
The Chair said that hey would put most of the fees in the regulations, but that they could not leave the fee category completely open in the legislation. Broad principles need to be adopted and put in the legislation that will serve as a guide when the regulations get drafted.
Ms Smuts said that the administration of a fee structure was something to consider, but she believed most of it should be dealt with in the regulations. She felt that the Canadian model was a sensible approach, because it leaves the technical details to the regulations.
Ms Chohan said that requests that can be filled in a certain amount of time should be free. She pointed out that not all right-to-know information would be free. The main costs will be in the searching. The solution for the right-to-know information is only to charge for copying or downloading, and all of that can be done in the regulations. Perhaps the two categories of fees should be the right-to-know and those requiring research. In the second group, you can talk about things like capping (e.g. if they find the document in less than one hour then it is free). In the regulations you make special provisions for the indigent.
The Chair agreed that all of the specifics should be left to the regulations. You have the choice there of exempting certain people from fees or certain categories. The other issue is capping. For example, the poor would get the first two hours of searching free whereas the media would only get the first hour of searching free. If you find out later that the fee structure is more costly to run than the fees that you are generating, then you can scrap it.
Mr Surty was surprised that the Committee was spending so much time on this issue, because they should just keep it for the regulations with some broad principles laid out in the legislation. He felt that access fees should be left to discretion to allow the government flexibility to assess the size of the request and the impact on that governmental body in furnishing the request. He warned them about relying too much on models from other countries, because South Africa is not at the same level of sophistication as most of them, and that could have an economic impact on the government.
Ms Taljaard read to the committee the UK model regarding capping, and she suggested that they use that as their model in the legislation.
The Chair agreed that the UK model was what they were looking for so far as broad principles. It even addressed the issue of the indigent in that it read "any category of people can be excluded from paying fees." He felt that it laid out the principles for which the regulations could be drafted from. There was broad consensus that the fee structure should be as basic as possible in the legislation and that all of the technical aspects should be left to the regulations. The legislation will spell out the general principles regarding the fee structure and leave most of it open ended to be further clarified in the regulations.
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