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JOINT ADHOC COMMITTEE ON THE OPEN DEMOCRACY BILL
24 January 2000
PROMOTION OF ACCESS TO INFORMATION BILL: DELIBERATIONS
Promotion of Access to Information Bill
Resolution: (Report of the Ad Hoc Joint Committee on the Open Democracy Bill) [B67B-98] (see Appendix)
The committee was alerted to the fact that there were a few mistakes with the draft of the Bill which had been voted on. The mistakes were rectified. It was stressed that the voting would not be affected. The committee made a few amendments to the draft resolution and adopted it.
Adv De Lange said that although the members had voted on the Bill already, the draft, which now contained the clauses as voted on, was not in fact the final draft of the Bill. There were some mistakes with the Bill, which had been overlooked and which needed rectification.
In the definition of requester in (b)(i), after public body "or an official thereof" had to be added.
Clause 8 Part Applicable when performing functions as public or private body
After "For the purposes of this Act" in Clause 8(1), the first 2 lines of 8(1)(b) from a "public body…" up to "in section 1" had to be deleted from (b) and added in 8(1). To this "or private body" also had to be added. Finally in (b), "such a" also had to be deleted. In 8(2)(b) "a request for access" had to be deleted.
Clause 9 Objects of Act
In clause 9(c), "justice" had to be "social justice", "providing for" had to be "including" after "allowing them" there had to be "amongst others", before "obligation" there had to be "additional" and "only" had to be deleted.
Clause 10 Guide on how to use Act
With regard to 10(2)(g) which, referred to all the different procedures, Ms Van Schoor suggested the inclusion of the words "decision on internal appeal" after "public body" in (ii).
Clause 12 Act not applying to certain public bodies or officials thereof
It was decided that 12(2) was in fact an interpretation clause. Adv De Lange therefore suggested that it rather be put in clause2.
Clause 15 and 52 (public and private) Voluntary disclosure and automatic availability of certain records
Adv De Lange suggested in both 15 and 52, the addition of the words: "including such categories available" after "in terms of this Act".
Clauses 39 Law Enforcement and Legal Proceedings and 43 Records About Research
Adv De Lange said that the draft needed some stylistic changes to be made. He said that in relation to the exemptions, where there was a "must" and a "may" in a clause, then the "must" clause had to come before the "may" clause. Thus in 39, (3) had to come before (2) and (4). A similar change had to be made in 43 as well.
Clause 44 Operations of public bodies
In 44(1)(b)(i) "knowledge that" had to be deleted as well as "were possible". In 44(1)(b)(i)(aa) "that" was replaced by "an" and "report" was added after "advice". In 44(1)(b)(i)(bb), "that" was replaced by "a".
Clause 46 Mandatory disclosure in public interest
In 46 there was a change of 3 words also to be made.
Clause 56 Decision on request and notice thereof
56(1)(b) had to be replaced. 25(1)(b)’s wording from "if the requester…to reasonably possible" was used. The only difference would be that the reference in 25(1)(b)’s wording to "18(2)(e)" would be replaced by "53(2)(e)".
Clause 80 Disclosure of records to, and non-disclosure by, court
In 80, to "any record of a public body" was added "or private body".
Clause 87 Extended periods for dealing with requests during first two years
She also added that in clause 87(a)(ii) and (b)(ii), (3) and (4) had to be deleted.
A draft resolution had been prepared but this was substantially amended primarily by Adv De Lange. The committee adopted this resolution with the added amendments. The meeting was adjourned.
RESOLUTION OF PROMOTION OF ACCESS TO INFORMATION [B67b-99] AS PUBLISHED IN THE ATC OF 24/01/00
Report of the Ad Hoc Joint Committee on Open Democracy Bill on the Open Democracy Bill [B 67 - 98] (National Assembly - sec 75), dated 24 January 2000, as follows:
The Ad Hoc Joint Committee on Open Democracy Bill, having considered the subject of the Open Democracy Bill [B 67 - 98] (National Assembly - sec 75), referred to it and classified by the JTM as a section 75 Bill, presents the Promotion of Access to Information Bill [B 67B - 98].
The Committee further wishes to report as follows:
1. This Bill, resulting from the constitutional obligation to enact legislation giving effect to the right referred to in section 32 of the Constitution, amongst others, promotes transparency and accountability of public bodies by providing the people of South Africa with timely, accessible and accurate information.
The Committee is of the opinion that proper record-keeping by all public bodies will contribute to the efficiency of public bodies in relation to their obligations in terms of the Bill. The National Archives of South Africa Act, 1996 (Act No. 43 of 1996), as a standard-setting piece of legislation for the proper management and care of records held by governmental bodies, standardises and regulates the operations of public bodies with regard to control over records. An efficient system of identification, arrangement, storage and retrieval of records will enhance the ability of public bodies to provide the public with timely and accurate information.
Various submissions were received that public bodies were more often than not in breach of the National Archives of South Africa Act, 1996, not always acting in accordance with the provisions of the Act. The Minister for Justice and Constitutional Development is, therefore, requested to inform all public bodies of the importance and necessity of proper record-keeping, to request them to once again take note of the provisions of the National Archives of South Africa Act, 1996, and to take the necessary steps to ensure that its provisions are closely followed by all public bodies to which the Act applies. Furthermore, the Minister is requested to undertake an audit as to the feasibility and desirability of existing legislation dealing with record-keeping, and to suggest appropriate remedial action.
2. Clause 6 of the Bill provides that the Bill does not prevent the giving of access to records of public or private bodies in terms of any other legislation listed in the Schedule to the Bill.
Clause 86 of the Bill requires that the Schedule to the Bill should be amended to include the provisions of legislation which provides for or promotes access to records of public and private bodies. A schedule of this nature will provide an individual who wishes to request access to a record held by a public or private body but is faced with a choice between utilising this Bill or another piece of legislation, with an efficient form of reference to enable him or her to make use of both options.
The Committee, therefore, draws the attention of the Minister for Justice and Constitutional Development to the provisions of Clause 86, which require the relevant amending legislation to be introduced in Parliament within 12 months after the commencement of Clause 6, and requests the Minister to initiate an audit amongst all public bodies as soon as possible in preparation of the relevant amending legislation.
3. Clause 5 of the Bill provides that the Bill applies to the exclusion of any other legislation that prohibits or restricts the disclosure of a record of a public or private body which is materially inconsistent with an object, or a provision, of the Bill. No audit appears to have been done in order to establish how this legislation will effect existing legislation, and vice versa. In the interim, this Clause has been provided for to reflect the intention of the legislature that this Bill applies to the exclusion of any other legislation that prohibits or restricts the disclosure of a record of a public or private body.
The Committee still finds it advisable to request the Minister for Justice and Constitutional Development to do a comprehensive audit and, if necessary, to propose appropriate remedial action. The Committee requests the Minister to interact with all departments whilst undertaking this audit.
4. This Bill, amongst others, deals with access to personal information in the public and the private sector to the extent that it includes provisions regarding the mandatory protection of the privacy of third parties.
This Bill only deals with the aspect of access to private information of an individual, be it access by that individual or another person, and does not regulate other aspects of the right to privacy, such as the correction of and control over personal information and so forth. Foreign jurisdictions with freedom of information regimes enacted separate legislation which, as an important component of democracy legislation, regulates aspects, inter alia, such as the correction of and control over personal information. Privacy legislation generally provides for more detailed mechanisms and provisions dealing with personal information in the hands of another person by empowering that individual to, amongst others, demand the correction of incorrect information. The part in the Bill that dealt with these matters, was removed, as the Committee felt that it would be dealing with the right to privacy in section 14 of the Constitution in an ad hoc and undesirable manner. Clause 88 of the Bill provides for an interim measure regarding the correction of personal information, and it is intended that South Africa, in following the international trend, should enact separate privacy legislation.
The Committee, therefore, requests the Minister for Justice and Constitutional Development to introduce Privacy and Data Protection legislation, after thorough research of the matter, as soon as reasonably possible. Furthermore, it may be noted that, when the Privacy and Data Protection legislation is passed, this Bill may have to be amended, if necessary, in accordance with that legislation.
5. Clause 51 of the Bill provides that the heads of private bodies must compile manuals within six months after the commencement of that Clause.
The manual referred to in Clause 51 must contain information which will facilitate a request for access to a record held by a private body. Provision is further made for the Minister, on receipt of a request or on the Minister's own accord, to exempt any private body or category of private bodies from any provision of the Clause for such period as the Minister thinks fit. The Committee is aware of and sensitive towards the fact that Clause 51, read with the definition of "private body" in Clause 1, might place an undue burden on certain private bodies to meet the requirements of Clause 51.
The Committee, therefore, requests the Minister for Justice and Constitutional Development to consider exempting certain private bodies in accordance with Clause 51(4) simultaneously with the implementation of Clause 51.
6. The Committee has once again become acutely aware of the various shortcomings of the Interpretation Act, 1957 (Act No. 33 of 1957), during its deliberations on the Bill. This Act was drafted during an era when we had a system of unfettered parliamentary sovereignty and regulated matters of interpretation during the height of the Apartheid era. This Act is highly anacronistic and in no way is it in line with the principles of constitutional democracy. The Committee therefore urges the Minister to consider the amendment of the Interpretation Act, 1957, to bring it in line with the principles and ethos of constitutionalism and the new principles and practices of interpretation which Parliament and the courts have used since 1994.
7. The enforcement mechanism provided for in terms of the Bill includes internal appeals against the decisions of information officers of certain public bodies, whereafter an individual may remedy the matter in a court of law by lodging an application. Application may, on the other hand, be lodged with a court by a person who is aggrieved by the outcome of a request for access to a public or private body where an internal appeal procedure is not available to that person.
The Committee is aware that it is adding further matters to the jurisdiction of Magistrate's Courts. Clause 79 of the Bill provides that the Rules Board for Courts of Law must within 12 months after the commencement of that Clause make and implement rules of procedure for a court in respect of applications in terms of Clauses 78 and 80(3)(a) of the Bill. Clause 79 further provides that applications should be lodged with the High Court or another court of similar status before the implementation of the relevant rules of procedure for Magistrate's Courts. Therefore, in the first year after the commencement of this Bill, all applications must be lodged in the High Courts, until the appropriate Rules have been drafted and approved by Parliament.
The Committee has, however, noted that other jurisdictions created an enforcement mechanism, namely an Information Commissioner, which is characterised by an accessible and inexpensive form of dispute resolution aimed at mediating disputes on an informal and speedy basis between interested parties, with the ability to adjudicate on disputes between parties. The Committee has noted further that the system enjoys great success in those jurisdictions in the sense that they have created an enforcement mechanism which tends to be widely accepted by members of the public and the relevant public authorities. However, the Committee is aware of the lack of financial and other resources, and it is not intended or advisable to allow for a proliferation of commissions, despite the desirability of such alternative less adverserial type of enforcement mechanisms in our nascent democracy. The existing court structures with its formal procedures will not be conducive to settling informal disputes of this kind between parties in our society.
The Department of Justice and Constitutional Development is requested to investigate the feasibility of establishing an enforcement mechanism like the Information Commissioner and to report back to the Committee within 12 months after the Bill has been put into operation. The Committee is considering a proposal in this regard at this moment and will forward it to the Department in due course.
8. The Committee has spent much time in looking at the implementation of the Bill in a phased manner. It is an attractive and novel concept, but the phased implementation of the Bill is problematic. On 4 February 2000, section 32(1)(a) and (b) of the Constitution will come into operation in its unrestricted form, until the Bill is put into operation. This could last for a few months whilst the regulations are being drafted. The courts will have to enforce the right without any guidelines from the legislature contained in this Act now being passed. Against this background, the Committee suggests that the Bill should be implemented in all haste. Clause 87 of the Bill is flexible and will have to be used against the background that each public body has to create an information regime afresh and, therefore, provision is made that public bodies will be allowed to deal with requests for access within a period of 90 days within the first 12 months after the commencement of the Bill, a period of 60 days within the next 12 months, and a period of 30 days within the third year.
9. The original Bill provided a chapter on the protection of whistle blowers. All parties were unanimous in their views that this legislation is vital for the fight against crime. The Committee was of the view that it is not apposite to include a chapter on whistle blower protection in legislation dealing with the right of access to information. Parliament has embarked on a process of redrafting the chapter into separate legislation. The whistle blower legislation will be the next priority of the Committee, and this task must be finalised by not later than the end of February 2000.
10. Provision was made in Clause 8 of the original Bill for a duty to disclose records of governmental bodies that reveal a serious public safety or environmental risk. However, information regimes, including our own, are request-based and, therefore, it was held to be undesirable to retain this Clause in the Bill. It was decided that it was best dealt with in those departments which administer legislation dealing with environmental and public safety issues. The Committee suggests that the various departments should review the relevant existing legislation, and those departments without such legislation should provide for a similar mechanism in new legislation to provide for this very important issue.
Report to be considered.
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