Access to records of private sector

Meeting report

AD HOC JOINT COMMITTEE ON OPEN DEMOCRACY BILL
25 November 1999
ACCESS TO RECORDS OF PRIVATE BODIES: DISCUSSION

Documents handed out:
Access to Records of Private Bodies: First Draft (OPD 90) [attached to end of minutes]

SUMMARY
Morning session
The discussion focused on various exemptions under the proposed legislation to the duty of private bodies to provide access to records. As a preface to reviewing draft Clauses 17-22 the Chairman, Mr de Lange (ANC), noted that Clause 8 of the draft law establishes a "hurdle" which individuals seeking info must clear insofar as establishing a right to the requested records. Once that requirement has been satisfied the question then becomes one of balancing the interests of those seeking the info vs. those who might be affected by its disclosure. Dr Delport (DP) added that this "second stage" balancing is not so much between different kinds of interests, but of weighing the benefit of the exercise of the right to information against the harm caused by such exercise, and suggested that this concept be more clearly incorporated into Clause 25, which the Chair indicated would be considered further when that clause is discussed.

Afternoon session
The Committee discussed the rest of the draft on accessing information in the private sector, and Ms van Schoor was asked to redraft it taking into consideration all the discussions held this week. There was general agreement that Clauses 23 and 24 should be deleted. Further, there were many concerns raised with regard to the override provision in Clause 25, but the Committee agreed to discuss this Clause further once they had the new draft of the override provision relating to the public sector.

The committee will not be sitting again for the Open Democracy Bill until next Wednesday. They will be have oral hearings for the Administrative Justice Bill this Friday and Tuesday of next week.

MINUTES
Clause 17—Mandatory Protection of Third Party Commercial Info
The following points were made about the proposed text:
Dr Delport (DP) queried whether the exemption scheme (which Ms van Schoor noted was derived from various models, including the Canadian) overrides trade secrets and other noted protected categories, and the Chair confirmed that they do.

Mr Smith (IFP) then asked whether "tests" not indicating a public safety or environmental risk, as contemplated by subsection 2(c), should be disclosed, since trade secrets could be jeopardized. He suggested that if disclosure were required irrespective of such risks, trade secret protection could be circumvented without a public interest being served.

He also noted the danger of requiring information to be disclosed at the product development stage, thus compromising trade secrets.

Mr. Lever (DP) similarly suggested that the wording of subsection 2(b) regarding "safety of goods and services" could be used to obtain trade secrets unless there was some standard to test the legitimacy of the concerns about such matters.

Ms Chohan-Khotha (ANC) questioned the limitation of subsection 2(b) to "goods and services", noting that the concept of public safety extended beyond "commercial" activity, and also that it might be helpful to incorporate the concept of "the risk of imminent danger" into subsection 2(c).

Ms Taljaard (DP) suggested that a provision similar to Clause 20.1(d) protecting employee research from disclosure also be included in Clause 17. She also suggested expanding the test of "commercial competitive disadvantage" under the subsection 1(c) to limit the dissemination of potentially prejudicial info.

Ms Jana (ANC) noted that the text should clarify that government bodies can exercise the right to obtain info from a private body as a "third party", and her colleague, Mr Masutha, noted that government bodies could also be "third parties" whose information and records could be protected, per Clause 17, from disclosure. The Chair agreed with both points.

The Chair's summary response to the points raised in the discussion was:
- Subsection 2(c) could be limited to goods or services already on the market, which would protect items still in the product development phase.
- Subsections 2(b) and (c) could be combined with the effect of replacing the "better informed choices" test of the former with the "public safety or environmental risk" test of the latter.
- A provision similar to Clause 20.1(d) could be included as Clause 17.1(d) to protect employee research from disclosure (as Ms Taljaard had suggested) .

The Chair then indicated that Clause 20 would be considered next, and that the order of consideration would temporarily jump around, as appropriate.

Clause 20—Commercial Info of Private Body
The following points were made about the proposed text:
Mr Smith suggested deletion of the phrase "first publication" from subsection 1(d), but the Chair noted that this narrowly drawn provision served a purpose. However, upon consideration of Mr Smith's follow-up point that info could effectively be held private in perpetuity in anticipation of "first publication" (which Ms. Taljaard noted should be carefully defined in the new "cyber-age"), the Chair acknowledged the danger of this verbiage, and noted that the subsection's elimination should be considered [though its inclusion in Clause 17 was not considered at this juncture].

Mr Smith also queried whether it was desirable to have a provision also covering "non-commercial information", with which the Chair concurred.
Ms Chohan-Khotha (ANC) suggested that this subsection also be limited to "work in progress", noting that completed work would be covered by proposed subsection 1(b). In response to a query from the Chair, Ms van Schoor quoted a model Ireland/Australia provision covering "work in progress", which the Chair endorsed.

In addition to considering the aforementioned changes, the Chair also indicated that:
1. The language of subsection 1(b) and (c) could be looked at viz a viz the probability of harm ("likely" vs. "reasonably expected to cause").
2. As in Clause 17, subsection 2(a) and (b) could be combined, with the "better informed choices" test being replaced by the "public safety or environmental risk" standard.

Clause 21—Frivolous or Vexatious Requests
The Chair suggested that this clause be eliminated, since a requester who cleared the initial Clause 8 hurdle could per se not make a "frivolous or vexatious" request. Mr Lever objected, stating that a provision to stop using the legislation for harassment was necessary, and while the Chair agreed in concept he maintained that this provision needed to at least be modified.

Clause 22—Records that Cannot Be Found or Do Not Exist
The Chair noted that a mechanism to address such situations was necessary, but not necessarily in this part of the legislation, since an "exemption" is not the appropriate way to handle the issue. Such a mechanism should cover both documents that existed but are gone, and those that never existed, but the Chair stressed that the key in both instances is to require the head of the private body to execute an affidavit as to non-existence, which would expose him to criminal sanctions should the statement be false.

Mr Smith noted the cost of gathering (existing) documents generally, and the Chair indicated that a private body should be able to charge reasonable costs for such efforts.

Clause 18—Safety of Individuals and Security of Structures and Systems
Regarding subsection (a), Dr Delport stated that access to records "must" be refused if the life or safety of an individual was to be endangered, and the Chair noted that it might be warranted to split such a mandatory provision from the discretionary one in subsection (b) concerning structures and systems.

Clause 19—Privileged from Production in Legal Proceedings
After limited discussion the consensus appeared to be to accept as written the provision requiring a refusal to release records which would be privileged from production in legal proceedings.

Afternoon session
Clause 19 & 18
Chairperson de Lange asked if there was any further discussion on Clause 19 relating to privileges.

Mr Solomon (ANC) said that Mr Smith (IFP) had raised a point earlier on the term "individual" in Clause 18. He was wondering if they should actually list categories or groups that Clause 18 would apply to. [Clause 18 is in reference to safety of individuals and security of structures and systems].

The Chair said that it would not be a good idea to broaden the clause to such an extent. If you broaden it, then there will be certain people that will fall out of it. The wider you make the provision the more you tilt the scale away from the requester actually getting the document. He said that they will, however, look at the "must" versus "may" language. Ms Jana (ANC) and Dr Delport (DP) support using the term "must," but he really thinks that the language should stay as it is and keep the term "may."

Mr Smith said that Clause 18(b) made no sense to him. What does "the maintenance or enforcement of methods for the security of a particular building . . ." mean exactly?

The Chair replied that it means maintaining the security systems that you already have. It should really be maintain rather than maintenance.

Clause 23
This clause 23 involves published records and records to be published. The Chair told the Committee that he did not like this clause very much, because by the time you get to this provision you have already proved that you are exercising or protecting a right by requesting the information so why would you then have to wait another 60 days to get that information? Having to wait another 60 days is unreasonable. He felt that Clause 23 should be scrapped.

Mr Smith said that he could see the problems with having fixed periods. He could not see what was the logic behind 23(1)(b) or whether the clause was justified.

The Chair asked if Clause 23 was not actually covered under Clause 24? He felt that there should not be a ground to refuse someone the information when they had already proved that they need the information in exercising or protecting a right. He felt that this clause was clearly drafted for governmental bodies only, and not for when an individual had already proved that they have a right to the information.

Mr Smith disagreed. He said that a person does have several hurdles to face, but just because you have proven that you have a right to the information should not be enough to trump this clause.

The Chair said that this clause puts a procedural hurdle in the requester's way that they should not have to face. Clause 23 in not a substantive exemption - it is not a right. All of the other exemptions have to do with balancing rights, but this is not.

Mr Smith said that the procedure in the clause makes sense. Why cannot people wait?

The Chair said this clause is not valid because it is not a right that is being protected. Here you are balancing the right to access information against nothing, but they can look at it further later.

Clause 24
Mr Smith said that just because a record is publicly available does not make it readily available.

The Chair said that was a good point.

A comment was made as to why the head should have the power to refuse a request when it is publicly available. Why cannot they just provide the information?

The Chair said to allow that to happen would defeat the effectiveness of issues such as the right to know.

The member continued by asking what happens when the information is publicly available, but it is available in another town that you do not have access to?

Ms Chohan (ANC) said that this whole discussion relates back to the discussion that they had on placing a duty to assist on governmental bodies. There should be something drafted here as well. If they have the information, then they should have a duty to assist the requester.

The Chair said that the question was whether these clauses should be in or out.

Mr Lever (DP) said that if you create a duty to assist, then it should apply to the public sector as well.

The Chair said that it would apply to the public sector. He pointed out that they had discussed this point a lot already, and there is an issue around putting obligations on private bodies. There are all kinds of ramifications in doing such a thing.

Mr Smith said that if you change the language to make it when records are publicly AND readily available, then that would be a solution to Ms Chohan's concern

The Chair said that was one possibility.

Ms Taljaard (DP) reminded them that they had to consider what the cost implications would be of placing a duty to assist on private bodies.

The Chair said that they would flag that point, because they have to come back to cost issues later. He felt, however, that the problem with imposing a duty to assist was more a legal problem than a cost problem.

Ms Jana (ANC) felt that if the record is available publicly, then no additional duties or obligations should be put onto the private sector. It is important to narrow the burden on the private sector as much as possible.

The Chair said that he could live with changing the language to what is publicly AND readily available, and that they would come back to the issue of creating a duty to assist later.

Mr Jeffery (ANC) said what does "readily" mean as it was such a vague term.

Ms Chohan asked what would happen practically if they kept this clause in? She said that the issue was whether or not theycompany has the document and NOT whether or not that document has been published.

The Chair said that if they have the document, then it would not fall under this exemption anyway. If the document is publicly available then you do not need to show that you need the information to exercise or protect your right. He really felt that Clause 24 was unnecessary. It does not make sense to have a clause relating to a person trying to get a hold of a document that is already available

Mr Smith suggested using this for guidance at the beginning of the Bill rather than as an exemption. It could be stated at the beginning, before Clause 14, that if the document is already publicly available, then the rest of the clauses do not apply.

The Chair said that the clause would be omitted.

Clause 25
This constitutes the override. The Chair said that he believed that they really needed to be looking at Clause 43 from the public sector draft at the same time. He said that they were still waiting on the Democratic Party to submit a draft of a necessity (of harm) test. There are others that say that the width of the current override should be narrowed. As far as the public sector override, there has been a lot of discussion, but nothing has been finalized. He believed that there should be grounds where refusal of access should be overridden such as when there has been corruption, dishonesty, or a risk to the environment or public safety. There are some things that you want to make public. The current draft includes all of the exemptions in the override, and he did not think that they wanted that kind of broad application of the override. He thought it would be better to pick a few specific instances where the override would apply. He said that they needed to look at which exemptions should be subjected to the override and what the test is going to be. Further, he recognized that there was issues around the use of the term "outweighs" in Clause 25.

Dr Delport (DP) pursued the issue of outweighing. He asked what are you going to compare when you apply Clause 25? You cannot even compare a right versus another right. You really need to create some kind of formula to use when looking at whether or not the override applies.

The Chair agreed. It is not about anything outweighing anything else but really comes down to a policy decision. He asked the Committee to think of instances where the right to refuse access could be overridden?

Mr Smith suggested that they wait to discuss this until they have the new public sector draft of Clause 43.

The Chair agreed. He asked Ms van Schoor to write two override provisions - one for the public and one for the private sector. He still felt that they needed to decide on a few crisp grounds where refusal to access could be overridden. He suggested that the override would apply to legality, corruption, and environment/public safety.

Mr Lever said that there was a danger in creating an override. They needed to look at the override very carefully and not just in terms of the public sector override. You are balancing on a fine line with the override because the override may end up infringing on another right - such as a person's right to remain silent.

The Chair said that was a good point. By overriding the refusal to access the information, you may end up infringing other rights. He said that they will have to look very carefully at that because they need to make sure that what they are drafting is constitutional.

Clause 8
There were no significant problems with this clause.

Clause 9
This relates to a decision on request. Ms van Schoor had drafted two options. The first option was more detailed while the second only required that the person refusing the request state the reasons for the refusal.

Mr Smith preferred the second easier option because he felt that in practice the person refusing the request would not do anything more than simply stating the grounds for the refusal.

Mr Mabeta (UDM) said that they should combine both options

The Chair said that there were no major problems with the clause either but that Ms van Schoor could look at shuffling around the wording a little. He said that they had run out of time, but that he felt that they had gone through the first draft sufficiently, and that they would wait for another draft from Ms van Schoor.

Appendix 1:
OPD 90: First draft of proposed new part to provide for access to records of private bodies
18 November 1999

Long title:
On page 2, in the second line, to insert:
and any information held by another person and that is required for the exercise or protection any rights

Clause 1 (Definitions):
On page 10, in lines 52 and 53, to omit the definition of "private body" and to substitute:
"private body" means any natural or juristic person other than a governmental body;

Clause 3 (Objects):
On page 14, in lines 8 and 9, to omit paragraph (c) and to substitute:
(c) to give effect to the constitutional right of access to information held by another person that is required for the exercise or protection of any rights subject to justifiable limitations;

Clause 5 (Guide):
On page 16, in line 14, to omit "containing personal information".

New clauses (to be renumbered when included in the Bill):

CHAPTER 1
GENERAL PROVISIONS

Right of access to records of private bodies
1. Any person must, on request, but subject to this Act, be given access to any record of a private body that the person requires for the exercise or protection of any rights.

Part applies to record whenever it came into existence
2. This Part applies to a record of a private body regardless of when the record came into existence.

Application of other legislation prohibiting disclosure
Option 1
3. This Part applies to the exclusion of any provision of other legislation that prohibits the disclosure of a record of a private body.
Option 2
3. If any conflict arises between any provision of this Part and any provision of other legislation that prohibits the disclosure of a record of a private body, this Part prevails.

Application of other legislation providing for access
Option 1
4. (1) Section 1 does not apply to a record of a private body—
     (a) subject to subsection (2), which is available in accordance with—
(i) any other legislation; or
(ii) arrangements made by that private body,
whether or not such access is subject to a fee;
  (b) described in a list published by notice in the Gazette in terms of section 6(2).
(2) The Minister must—
(a) on a periodic basis not less frequently than once each two years; and
(b) in accordance with the prescribed criteria,
review the legislation and arrangements contemplated in subsection (1)(a) in order to determine whether the manner in which access may be obtained to a record or, category of records, of a private body in terms of any legislation or arrangement is more onerous than access to that record would have been in terms of this Part.
(3) If the Minister has determined in terms of subsection (2) that the manner in which access may be obtained to a record or, category of records, of a private body in terms of such legislation or arrangement is more onerous than access to that record would have been in terms of this Act, the Minister must, by notice in Gazette, determine that this Act applies to such record or category of records.
Option 2:
4. (1) This Part does not apply to any record of a private body described in a list published by notice in the Gazette in terms of section 6(2).
(2) Nothing in this Part prevents a private body from giving access to a record of that body in accordance with any other law.

Use of Part for criminal or civil discovery of private bodies' records excluded
5. A person may not request access to a record of a private body in terms of section 1 for the purpose of criminal or civil proceedings if the production of that record for that purpose is regulated by any other law.
Note: This provision may be circumvented if another person obtained access in terms of the Act and furnished the information to person to use it in criminal or civil proceedings. Proposal: "any person that contravenes section 5 [above] is guilty of an offence ...".

Availability of certain records
6.(1) The head of a private body may on a periodic basis submit to the Minister a list which describes—
(a) the kinds of records of the private body that are available without a person having to request access in terms of this Part; and
(b) how to obtain access to such records.
(2) The Minister may, if appropriate, publish by notice in the Gazette any list so submitted.
(3) The only fee payable for access to a record described in a list so published is a reasonable fee for reproduction (if applicable).
Note: "Right to know" clause for privately held information inappropriate in view of the qualification of the constitutional right, ie "... that is required for the exercise or protection of any rights"?

Manual
7.(1) This section does not apply to private bodies which are natural persons.
(2) Within 12 months after the commencement of this section or the coming into existence of the private body concerned, the head of a private body, which is a juristic person, must publish a manual containing—
(a) the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body;
  (b) a description of the guide referred to in section 5 and how to obtain access to it;
(c) the latest list published in terms of section 6(2);
(d) a description of the records of the body which are available in accordance with—
(i) any other legislation; or
(ii) arrangements made by that private body;
(e) in sufficient detail to facilitate a request for access to, and for correction of personal information in, a record of the body, a description of—
             (i) the subjects on which the body holds records and the categories of records held on each subject;
             [(ii) every personal information bank held by the body, including, in respect of each bank—
     (aa) the identification of the bank and a description of the categories of persons to whom or which the bank relates; and
    (bb) a statement of the purposes for which the information in the bank was obtained or the bank was compiled and a statement of the purposes consistent with those purposes for which the information in the bank is used or disclosed.]
        (f) such other information as may be prescribed.
(3) The head of a private body must on a regular basis update its manual referred to in subsection (2).
(4) Each manual must—
     (a) if reasonably possible, be made available on the Internet by the head of the private body concerned; and
     (b) otherwise be made available as prescribed.
(5) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of private bodies from any provision of this section for such period as the Minister thinks fit.

Form of request
8.(1) A request for access to a record of a private body in terms of section 1 must—
     (a) be made in writing to the head of the private body concerned at his or her address, fax number or electronic mail address;
     (b) provide sufficient particulars to enable the head of the private body to identify the record requested;
     (c) specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester; and
(d) identify the right the requester is seeking to exercise or protect and provide a reasonable explanation of why the requested record is required for the exercise or protection of that right.

Decision on request
9. (1) The head of the private body to whom the request is made must, as soon as reasonably possible, but in any event, within 30 days, after the request has been received
(a) decide in accordance with this Part whether to grant the request; and
(b) notify the requester of the decision.
(2) If the request for access is granted, the notice in terms of subsection (1)(b) must state—
     (a) the access fee (if any) to be paid upon access; and
     (b) the form in which access will be given.
Option 1 for (3):
    (3) If the request for access is refused, the notice in terms of subsection (1)(b) must state—
     (a) the findings on all material questions of fact, referring to the material on which those findings were based;
     (b) the reasons for the refusal (including the provisions of this Part relied upon to justify the refusal) in such manner as to enable the requester—
             (i) to understand the justification for the refusal; and
             (ii) to make an informed decision about whether to utilise any remedy in law available to the requester.
Option 2 for (3):
(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state the reasons for the refusal.
(4) If the head of a private body fails to give his or decision on a request for access to a record of the body within the period contemplated in subsection (1), the head is, for the purposes of this Act, regarded as having refused the request.

Extension of period to deal with request
10. (1) The head of a private body to whom a request for access has been made, may extend the period of 30 days referred to in section 9(1) (in this section referred to as the "original period") once for a further period of not more than 30 days, if—
Option 1:
     (a) the request is for a large number of records or requires a search through a large number of records and compliance with the original period would unreasonably interfere with the activities of the private body concerned;
     (b) the request requires a search for records in, or collection thereof from, an office of the private body not situated in the same town or city as the office of the head that cannot reasonably be completed within the original period;
(c) the record relates to a third party as contemplated in section 15(4) or 17(3);
     (d) more than one of the circumstances contemplated in paragraphs (a), (b) and (c) exist in respect of the request making compliance with the original period not reasonably possible.
Option 2:
If there exists reasonable grounds for such extension.

(2) If a period is extended in terms of subsection (1), the head of the private body must, as soon as reasonably possible, but in any event, within 30 days, after the request is received, notify the requester of that extension, the period of the extension and the reasons for the extension.

Severability
11. (1) If a request for access to a record of a private body containing information which is required or permitted by Chapter 2 [Exemptions - set out below], to be refused, is made, every part of the record which—
     (a) does not contain; and
     (b) can reasonably be severed from any part that contains,
any such information must, despite any other provision of this Part, be disclosed.
(2) If a request for access to—
     (a) a part of a record is granted; and
     (b) the other part of the record is refused,
as contemplated in subsection (1), the provisions of section 9(2), apply to paragraph (a) of this section and the provisions of section 9(3) to paragraph (b) of this section.

Form of access and access fee
12. (1) If access is granted to a record of a private body, the head of that body must, as soon as reasonably possible after notification in terms of section 9, give access in—
(a) such form as the requester reasonably requires; or
(b) if no specific form of access is required by the requester, such form as the head reasonably determines.
(2) The head of a private body may determine a reasonable access fee for reproduction, and for search and preparation of a record of the body, not exceeding the prescribed amounts.
(3) The head of the private body may defer access to a record of the body until the applicable access fee is paid by the requester concerned.

CHAPTER 2
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

No right exercised or protected

14. The head of a private body may refuse a request for access to a record of the body if—
(a) the requester fails to identify a right he or she seeks to exercise or protect; or
Option 1 for (b):
(b) the requested record could not reasonably be required for the exercise or protection of a right.
Option 2 for (b):
(b) the requested record is not likely to be required for the exercise or protection of a right.
Option 3 for (b):
(b) the requested record is, in the opinion of that head, not required for the exercise or protection of a right.
Option 4 for (b):
(b) the requested record could not reasonably be expected to advance the exercise or protection of a right.

Mandatory protection of privacy
15. (1) The head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received) other than the requester concerned.
(2) Subsection (1) does not apply to a record in so far as it consists of information—
     (a) about a person that has consented to its disclosure to the requester concerned;
     (b) about an individual's physical or mental health, or well-being, who is—
             (i) under the age of 18 years;
             (ii) under the care of the requester; and
             (iii) incapable of understanding the nature of the request,
and if giving access would be in the individual's best interests;
     (c) about an individual who is deceased and the requester is the individual's next of kin.
(3) In subsection (2)(c) "individual's next of kin" means—
     (a) an individual to whom the individual was married, with whom the individual lived as if they were married or with whom the individual cohabited, immediately before the individual's death;
     (b) a parent, child, brother or sister of the individual; or
     (c) if—
             (i) there is no next of kin referred to in paragraphs (a) and (b); or
             (ii) the requester concerned took all reasonable steps to locate such next of kin, but was unsuccessful,
an individual who is related to the individual in the second degree of affinity or consanguinity.
(4) The head of a private body considering a request for access to a record that might be a record contemplated in subsection (1) must give the person to whom or which that record relates a reasonable opportunity to make representations why the request must be refused.

[Health of requester

16. (1) In this section "health practitioner" means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals.
(2) The head of a private body may refuse a request for access to a record of the body about the requester's physical or mental health, or well-being, and which was provided by a health practitioner in his or her capacity as such if—
     (a) the head has disclosed the record to, and consulted with, a health practitioner who—
             (i) carries on an occupation of the same kind as the health practitioner who provided the record; and
             (ii) has been nominated by the requester or his or her authorised representative; and
(b) the health practitioner so consulted is of the opinion that the disclosure of the record to that requester would be likely to cause serious harm to his or her physical or mental health, or well-being.
(3) If the requester is—
     (a) under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (2)(b)(ii); or
     (b) incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. ]

Mandatory protection of third party commercial information

17. (1) The head of a private body must refuse a request for access to a record of the body if the record contains—
     (a) trade secrets of a third party;
     (b) financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which could reasonably be expected to cause unreasonable harm to the commercial or financial interests of that third party; or
     (c) information supplied by a third party the disclosure of which would be likely to put that third party at a disadvantage in contractual or other negotiations or cause it prejudice in commercial competition.
(2) Subsection (1) does not apply to a record in so far as it consists of information—
     (a) about a third party who has consented to its disclosure to the requester concerned;
     (b) about the safety of goods or services supplied by a third party, and the disclosure of the information would be likely to result in better informed choices by persons seeking to acquire those goods or services; or
     (c) supplied to, or about the results of any test or other investigation carried out by, a private body regarding a public safety or environmental risk.
(3) The head of a private body considering a request for access to a record that might be a record contemplated in subsection (1) must give the third party to whom or which that record relates a reasonable opportunity to make representations why the request must be refused.

Safety of individuals and security of structures and systems
18. The head of a private body may refuse a request for access to a record of the body if its disclosure would be likely to endanger—
     (a) the life or physical safety of an individual; or
     (b) the maintenance or enforcement of methods for the security of a particular building, installation or information storage, computer or communication system.

Privileged from production in legal proceedings

19. The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings.

Commercial information of private body
20. The head of a private body may refuse a request for access to a record of the body if the record contains—
     (a) trade secrets of the private body;
     (b) financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected to cause harm to the commercial or financial interests of the private body;
     (c) information the disclosure of which would be likely to put the private body at a disadvantage in contractual or other negotiations or cause it prejudice in commercial competition; or
     (d) the results of original research undertaken by an employee of the private body the disclosure of which could reasonably be expected to deprive that body or employee of the benefit of first publication of those results.
(2) Subsection (1) does not apply to a record in so far as it consists of information—
        (a) about the safety of goods or services supplied by the private body and the disclosure of the information would be likely to result in better informed choices by persons seeking to acquire those goods or services; or
     (b) supplied to, or about the results of any test or other investigation carried out by, the private body regarding a public safety or environmental risk.
            
Frivolous or vexatious requests

21. The head of a private body may refuse a request for access to a record of the body if the request is manifestly frivolous or vexatious

Records that cannot be found or do not exist
22. (1) The head of a private body may refuse a request for access to a record of the body if—
     (a) a thorough search to find the record has been conducted, but it cannot be found; or
     (b) there are reasonable grounds for believing that the record does not exist.
(2) If the head of a private body so refuses a request, he or she must, in the notice referred to in section 9, give a full account of all steps taken to find the record in question or to determine whether the record exists, as the case may be, including all communications with every person who conducted the search on behalf of the head.

Published records and records to be published

23. (1) The head of a private body may refuse a request for access to a record of that body if—
     (a) the record is to be published within 60 days after the receipt of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it;
     (b) the record can be copied at a library to which the public has access at a fee no greater than would be charged for access in terms of this Part; or
     (c) the publication of the record is required by law, within 90 days after the receipt of the request.
(2) The head concerned must, in the notice referred to in section 9, in the case of a refusal of a request for access in terms of—
     (a) subsection (1)(a) or (c), state the date on which the record concerned is to be published; or
     (b) subsection (1)(b) and if such information is ordinarily available to the private body concerned, identify the title and publisher of the record and the library concerned nearest to the requester concerned.

Records publicly available
24. The head of a private body may refuse a request for access to a record of the body if the record is already publicly available.

Right outweighing ground for refusal
25. The head of a private body must grant a request for access to a record of the body contemplated in sections 15 to 23 if the right sought to be exercised or protected clearly outweighs the need for non-disclosure contemplated in the provision in question.

Note: Require reporting to Human Rights Commission and report by Commission to Parliament?

OPD 90a: Draft proposal for access to records of private bodies made by Dr J Delport (DP)

Insert the following:

Right of access to records of Private bodies
1. Any person must, but subject to this Act, be given access to any record held by a private body if such record is required for the exercise or protection of any right of that person.

Access to records in terms of other laws
2. Nothing in this Act, except section 56, prevents a private body from giving access to a record of that body in accordance with any other law.

Use of Act for criminal or civil discovery excluded
A litigant in civil or an accused in criminal proceedings shall not be given access to any record of a private body in the course of litigation if such record is subject to the process of discovery provided for in the law and practice applicable to civil or criminal proceedings.

Grounds for refusing access to records
4. A request for access to a record of a private body may be refused if-
(a) The interests of the requester, taking into account the nature of the right which such requester wishes to exercise or protect and the importance of access to the relevant record for the exercise or protection of such record, is outweighed by the possible adverse effect disclosure may have on the interests of any other person emanating from -
(I) a right in terms of the Bill of Rights;
(ii) a claim or obligation against any other person, including a contractual or delictual claim or obligation;
(iii) a right to or in property, including immaterial property; or
(iv) a right in any commercial activity;

(b) a public body would have been entitled to refuse disclosure of the record in terms of sections 30 to 43 had the request for access to the record been lodged with a public body:
Provided the grounds for refusal set out in this section shall not apply to a request for access to personal information in terms of Part 4 of this Act.

Form of request
A request for information shall -
(a) be addressed in writing to the head of the private body from whom information is required;
(b) specify sufficient particulars to enable the receiver of the request to identify the information requested.
(c) identify the right the requester is seeking to exercise or protect and provide a reasonable explanation of why the requested information is required for the exercise or protection of that right.

Fees
6. A requester must, when so required by the private body, pay an access fee as stipulated in section 24(2).

Form of access
7. The forms of access to a record in respect of which a request was granted, are as set out in sections 25(2) to 25(10).

Access deemed to have been refused
If a private body fails to give a decision on a request for access within a period of 30 days, the request shall be deemed to have been refused.

Third Party Intervention
9(a) If the interest of any third party may be affected by granting access to a record and in particular if the interests of any third party need to be taken into account for the purpose of applying section 4 above, inform such third party -
(a) of the name of the requester;
(b) of the nature and content of the request for access;
(c) of the nature and content of the interest of the third party which may be affected;

before any access is granted to the requester.

(b) A third party may upon receipt of a notice as referred to in section 9(a) or if such third party suspects that access to a particular record may be requested by or granted to any person -
(a) make written or oral representations to the head of the private body concerned why the request should be refused; or
(b) give written consent for the disclosure of the record to the requester concerned.