Discussion & Voting

Meeting Summary

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Meeting report

AD HOC JOINT COMMITTEE ON OPEN DEMOCRACY BILL
21 January 2000
DELIBERATIONS & VOTING

Documents Referred To:
"{Promotion Of} Access to Information" Bill (OPD 107)
Grounds of refusal of access to records of public and private bodies (17 January 2000) (OPD101)
Opinion of Chief State Law Advisor (OPD 108)
New Option for Clause 34 (OPD 107a) (see Appendix A)
Provision for Clause 93 (OPD 107b) (see Appendix B)

SUMMARY
Morning session
The "Manner of Access" provisions, Chapters 3 of Part 2 and 3, were finalised as were the Exemptions, Chapters 4 of Part 2 and 3. In order to expedite consideration and finalisation of the Bill, where possible the "public body/private body" counterpart provisions found in the different Parts of the Bill were dealt with as "pairs", in tandem.

Afternoon session
In this session the committee finalised Clauses 35 through to 45, thus dealing with most of the exemptions and the public interest override.

Evening session
The committee began by finalizing the clauses that all members had already agreed to. Adv de Lange said he was pleased "about 98%" of the clauses had received the full support of the committee. 28 members were present to vote on the final clauses of the Bill. Before voting began, Adv de Lange put forth a new definition for "relevant authority". All members agreed to adopt the new definition. Some highlights of the voting included:
- The Committee voted for Option 3 for Clause 40: Republic’s defence, security and international relations. 21 members voted in favour of Option 3, while 7 members voted against it. As a result, the Certificate Systems will not be included as part of this Bill.

- One of the most contentious issues that was involved in the discussions within the committee was whether Cabinet would be excluded from the application of this Bill. Members voted in favour of Option 2 of 42(B): Cabinet’s records, to exclude the Cabinet by a vote of 20 - 8. As a result, Cabinet is excluded from the application of this Bill.

- Members of the committee unanimously agreed in favour of Option 1 for Chapter 2: Applications to Court. Thus, Part 4: Appeals against decisions of this Bill will include Chapter 1: Internal Appeals against decisions of Information Officers of certain public bodies.

- Mr Cronin (ANC) proposed a revised Preamble that was adopted by the Committee by a vote of 21 to 7.

- Ms Jana (ANC) proposed that Clause 9: Objects of Act include an additional subsection that specifies that public bodies are included under the definition of "requester". The new subsection was adopted by a vote of 18 members in favour, and 10 against.

- The committee also voted unanimously in favour of calling this Bill the "Promotion of Access to Information Bill".

- Adv de Lange asked members to vote on the entire Bill. 19 members voted in favour, 4 voted against, and 3 abstained.

MINUTES
Morning session
Chapters 3 of Parts 2 and 3: Manner of Access
The discussion opened with consideration (referring to OPD 107) of the Bill’s "Manner of Access" provisions, Chapter 3 of Part 2 (Clause 17 onwards) pertaining to public bodies, and Chapter 3 of Part 3 (Clause 57 onwards) pertaining to private bodies.

Clause 17, "Designation of Deputy Information Officers and Delegation" was approved without comment.

Clauses 18 and 57, "Form of Request", were dealt with in tandem and refined, with changes emphasising the need for requested records to be sufficiently identified, and for the identity of the requester to be verified. It was also agreed that Option 1 would be used for section 57. The provisions of subsection 57(2) are to conform with those of subsection 18(2), including as to specification of the requester’s South African address, and the use of the phrase "...must at least require the requester concerned--..."

Clause 19, "Duty to Assist Requesters", and Clause 20, "Transfer of Requests", were approved without comment.

Clause 21, "Preservation of Records Until Final Decision on Request", was approved after the Chair confirmed that the DP would not oppose the inclusion of the "internal appeal" mechanism within the provisions of the legislation. The only textual change was the deletion of the phrase "with the relevant authority", as Mr Jeffrey (ANC) noted that the concept is covered in the definition of " internal appeal".

Clauses 22 and 58, "Fees", were dealt with in tandem. "With the relevant authority" was deleted from subsection 22(3)(b), per the discussion of clause 21, and the phrase "...against the tender or payment of
the request fee..." was inserted in that subsection. The phrase "where applicable" was added to this subsection after "application to a court" (which change was also made to subsection 22(3)(c)).

Option 2 was preferred for subsection 22(5), with "must" substituted for "may" (the Chair noting that there is still ministerial discretion to waive fees per subsection 22(8)), and the phrase "applicable fees (if any)" used in lieu of "applicable prescribed access fee (if any)".

On subsection 58(3)(b) and (c), references to internal appeals must be deleted as inapplicable to private bodies, and the language of subsections 58(3)(b) and 58(5) concerning "the tender" and "applicable fees" must be conformed to that of their counterparts in clause 22, as noted above.

Clauses 23 and 58A, "Records That Cannot be Found or Do not Exist", were dealt with in tandem and approved, with the corrections in subsections (1)(b) of "are reasonable grounds". It was also noted by the drafter, Adv van Schoor that the text of clause 58A had been moved to this spot to maintain the Bill’s sequencing consistency.

Clause 24, "Deferral of Access," was approved after changing subsection 24(3) to read "...after due consideration of those representations..."

Clauses 25 and 59, "Decision on Request and Notice Thereof", were dealt with in tandem. On subsection 25(1), the phrase "or transferred" was deleted, per Ms Chohan-Khotha (ANC). For consistency changes were also made to subsection 25(2)(c) concerning the usage noted in clauses 22 and 58 of "with relevant authority" and "where applicable", which were also made to subsection 25(3)(c)

Option 2 on subsection 59(1) was agreed to.

On subsection 59(3), it was agreed that it should read:
"(a) must state adequate reasons...and (b) must exclude any reference to the content...", and that a provision must be inserted as subsection 25(3)(b) tracking
subsection 59(3)(b).

It was also decided that subsection 25(3)(c) should be tracked—as applicable-- in a provision to be added as subsection 59(3)(c), and there was an indication that perhaps subsection 25(2)(c) should be similarly tracked as an added subsection 59(2)(c).

It was agreed that subsections 59(4) and (5) are to be deleted.

Clauses 26 and 60, "Extension of Period to Deal with Request", were dealt with in tandem. For consistency changes were made to subsection 26(3) concerning the usage of "with relevant authority" and "where applicable." A question was raised as to the danger of divulging the contents of a requested document in the extension procedure, but the Chair noted that this is not a problem due to the narrow grounds which may lead to an extension. Mr. Jeffrey (ANC) also noted the possibility of including a general provision in the Bill to clarify that such incidental divulging in the course of responding to a request is proscribed.

Concerning Clause 60, relating to private bodies, Mr Smith (IFP) noted that it does not track clause 26 as closely as the other "public/private paired provisions" do, and suggested that for consistency it be amended to do so. The Chair agreed with this, subject to Mr Lever’s admonition that the "consequential" textual changes also be taken into consideration in the redrafting.

Clauses 27 and 61, "Deemed Refusal of Request", were approved without comment.

Clauses 28 and 62, "Severability", were approved without comment.

Clauses 29 and 63, "Form(s) of Access", were dealt with in tandem. Clause 63 was approved without comment, as was clause 29, except to note changes concerning the usage of "with relevant authority" and "where applicable".

Concerning Clauses 29A and 63A, the titles were changed to "Access of Health of Other Records" at the Chair’s suggestion. At Adv van Schoor’s suggestion, subsection 29A(1) will be amended to reflect that the preferred term for use in this clause is "relevant person", rather than "requester". Per the Chair, the concept in subsection 29A(3)(a) of counseling "before, during, and after disclosure of the record" is to stay, but "quantification" of the counseling is to be deleted. He also noted, in response to Mr Smith’s query, that this clause is not intended to affect the doctor/patient relationship.

It was agreed that clause 63A is to track clause 29A.

Clause 30, "Language of Access," was approved without comment

Clause 31, "Reports to HRC", was approved with the addition of subsections (g) and (h), and (i) (with deletion of reference to section 27 in the last, which is included in (h)).

Chapters 4 of Parts 2 and 3: Grounds for Refusal of Access to Records
Referring to OPD 101, the discussion continued with consideration of the Bill’s exemptions, which the Chair termed "the effective heart and soul" of the legislation. He also noted that in consultation with the security establishment, there is a preference for an "exemption scheme", rather than a "certificate system", at least initially. The Chair also indicated his intent to continue the pattern of consideration of "paired public/private provisions" (Chapter 4 of Part 2, Clause 32 onwards, pertaining to public bodies, and Chapter 4 of Part 3, Clause 64 onwards, pertaining to private bodies) under "Grounds for Refusal of Access to Records" in different Parts of the Bill.

Concerning Clauses 32 and 64, the titles were changed to "Interpretation" at the Chair’s suggestion. On subsection 32(1), the Chair noted that this is a guide to "mandatory/discretionary" denial of requests, which can only be finalised after each other clause is finalised. Subsection 32(2) and section 64 were dealt with in tandem and approved without comment, except as to the need to delete references to section 72 from section 64.

Clauses 33 and 65, "Mandatory Protection of Privacy of Third Party", were dealt with in tandem. The Chair asserted that these provisions are intended to deal only with third parties who are natural persons, and at her suggestion directed Ms. van Schoor to amend the general definition of "third party" to so specify. Ms. van Schoor also suggested that "third party" then be used in the text of these provisions, rather than "individual", which the Chair concurred with.

Concerning subsection 33(1), the Chair noted that the DP prefers Options 1 or 3, and the ANC prefers Option 2, and indicated that the DP should change the terminology in its options to conform to that suggested by Adv van Schoor, as noted above. He also noted that conceptually, the DP version, with the deletion of "unreasonable", overly skews the legislation toward the protection of privacy rights, rather than disclosure, while the ANC version reverses that balance. He also noted that Option 2 precludes the need for subsection 33(3).

The Chair went on to note that subsections 33(1) and 65(1) should, ideally, track each other.

On subsection 33(2), it was noted that "individual" should be used, rather than "person". The Chair also stated that on subsection 33(2)(f)(iii), Option 1 is preferred to Option 2, and that these provisions should be tracked in subsection 65(2), though the DP objects to inclusion of (f) in the latter section. The Chair also noted that subsection 33(3) would be tracked as subsection 65(3) if the DP version of subsections 33(1) and (3) prevail, but that there would be no subsection 65(3) if the ANC succeeds in eliminating subsection 33(3).

Afternoon session
Clause 35 Mandatory Protection of Commercial Information Of Third Parties
There was support for Options 1 and 2 for paragraphs 35 (1)(a) and (b). Option 3 was omitted. 35 (1)(d) was also scrapped in both the private and public spheres.

All the changes made to 35(2) which was a public interest override, (for example the addition of the words "product or environmental" were agreed upon. There was also agreement on 35(3) and the same changes would apply in the private body clause.

Clause 36 Records Obtained in Confidence from a Third Party
Option 1 for 36(1), which was the original wording of 36(1), was scrapped. Option 2 for 36(1) was kept but in this option, the words "would be likely" was scrapped. In the corresponding private body section namely 68, "must" had to replace "may". Section 36(2) was fine.

Clause 37 Mandatory Protection of Individual’s Safety and Protection Of Private Property
In 37(a) Adv De Lange had a problem with the word "identifiable". He felt that if the refusal was contingent upon there being an "identifiable" individual people’s lives could be endangered. He felt that identifiable should be scrapped and the members agreed. Also in (a) there was agreement that "would be likely" would be scrapped.

In (b) "could reasonably be expected" was replaced by "would be likely". 37(b)(i)(bb) was amended to read "a mode, means or form.

Clause 38 Law Enforcement and Legal Proceedings
The word "curtailment" replaced "suppression" in 38(1)(a)(i). Ms DPS Jana however felt that they amounted to the same thing. There were no further amendments. 38(a),(b), and (c)(i)-(iv) were agreed to. Option 2 of 38(c)(v) was agreed to while Option 1 was scrapped. Options (2), (3), 4(a) and (b) were all accepted.

Clause 39 Mandatory Protection of Records Privileged from production in Legal Proceedings.
No changes were made to this clause nor to clause 70, the corresponding private body section.

Clause 40 Republic’s Defence And Security
The ANC chose Option 3. Schmidt of the DP chose Option 2 of Option 3. All the other options were deleted. In (a) (iii) of Option 3, the words underlined, from "or the conduct … to international organisation" were scrapped. In (b)(ii) "international agreement … Constitution" was included. In (b)(iii) nothing was changed.

In Option 3 of 40(2), "include" in the second line was changed to "includes".
Also in Option(3) of 40 (2), in (a), (b), (c) and (d) the optional "curtailment" in brackets had to be added. In (f) "and any other source" was included. There were no changes to (e) (g) and (h).

In the DP’s Option 2 of Option 3, in 40(a)(i) would be likely as well as damage was out. "Or the conduct…organisation" was also deleted. In 40(a)(ii) "arrangement" was deleted. In 40(b) wherever the word suppression appeared it was replaced by curtailment.

In 40(3) the ANC opted for 20 years whilst the DP opted for 10 years.

In 40(4)(iv) "or an application with a court" was included.

Clause 41 International Relations
This whole clause was deleted since it was dealt with in other sections of the Bill.

Clause 42 Economic Interests
Option 1 was completely scrapped. In Option 2 of 42 (1) the DP wanted opted for "substantially" whilst the ANC opted for "materially". The DP opted for "financial welfare" whilst the ANC opted for "economic interests or financial welfare". It was agreed that "or any province" would be deleted.

In 42 42(2) and 42(3)(a) were accepted by the members. The ANC wanted retention of 42(3) (b) and (c). Because there was a separate option dealing with research, it was decided to scrap (d). Option (e) remained in and would now become (d).

There were two options for 3A. The ANC supported the first and the DP the second option. They were thus both included. In the corresponding private body section all the optional amendments in brackets were effected.

Clause 42A Records About Research
Adv De Lange said that previously most members had shown a preference for Option 2. It was agreed to have 2 options, both incorporating Option 2, but the one having a "may" and the other a "must" in the opening sentence. It was also agreed that "serious" was in but "unreasonably" was deleted. Also, "could reasonably be expected" would be replaced by "would be likely". These same amendments would apply in the private bodies’ section.

Clause 42B Cabinet’s Records
In 42B(i)(a) "for its consideration" was included. In 42B(i)(d) "or register" was deleted. In Option 2 for the introductory part of 42B(3), "Chapter 2 of" was deleted. The ANC was undecided as yet as to whether or not to omit this clause.

Clause 43 Operations Of Public Bodies
Adv De Lange asked whether there should be an "and" between (a) and (b). The ANC and IFP opted for "or" whilst the DP wanted "and".

In 43(1)(b)(i) "could reasonably be expected" replaced "or would be likely".
In 43(1)(b)(ii) "could" replaced "would" and "likely" and "substantially" were out.

In 43(2)(a) the DP opted for "would be likely" whilst the ANC wanted "could reasonably be expected"

In 43(2)(b) the ANC wanted "an assessment" out but the DP opted to keep it in. It thus remained an option. There was no change to 43(2)(c).

Adv De Lange wanted the words underlined in 43(3) to be deleted. This was agreed upon.

Clause 44 (Manifestly) Frivolous or Vexatious Requests or Substantial and Unreasonable Diversion Of Resources
It was decided to include "Manifestly" in the heading.

Clause 44A
This clause was suggested by the DP. They therefore opted for Option 1. The ANC opted to delete the clause – Option 2.

Clause 45 Mandatory Disclosure in The Public Interest
Mr Schmidt argued, on behalf of the DP, for Option 1. The ANC wanted Option 2. Adv De Lange asked whether the tax exemption had to be included in the override. The DP said it did not. Ms F Chohan Khota said with regard to documents generated by the Receiver of Revenue, if the public interest override did not apply to them, the criminal activities of officials would be difficult to trace.

Chapter 3: THIRD PARTY INTERVENTION
Adv de Lange reminded the committee that it was necessary to look at all the clauses in Chapter 3 in conjunction with all the clauses in Chapter 5. He suggested that the title of both Chapters be changed to read: "THIRD PARTY INTERVENTION AND NOTIFICATION". All members agreed to the new titles.

Clause 46: Notice to third parties and Clause 73: Notice to third parties
Ms van Schoor stated in 46(1), that {or 42A} should actually read {or 42A(2)}. The committee agreed the proposed insertion with the change should be included. It was also agreed that {OR necessary} be omitted from 46(1). It was subsequently agreed to in 73(1) that {or 71A} be included, and that {OR necessary} be omitted.

The Chair noted that in 46(3a) and (3c), the {or 42A}, must also be changed to {or 42A(2} as indicated in 46(1). Members of the committee were in favour of including the proposed insertions in both 46(3), and 73(3), with the exception of both references to {(1)} in 46(3d).

Clause 47: Representations by third parties and Clause 74: Representations by third parties were agreed to as stated.

Clause 48: Decision on representations for refusal and notice thereof and Clause 75: Decision on representations for refusal and notice thereof
The committee agreed that in both 48(2) and 75(2) the words {OR necessary} could be omitted. In addition, the committee agreed in 48(3c) that "the relevant authority" be deleted and replaced by {an application with a court in terms of section 82(2)}. Adv de Lange suggested that in 48(3d), the proposed insertion be changed to read {an application}. Members agreed to include the insertion as amended, as well as to including {in terms of section 82(2)} in 48(4).

Clause 49: Right of access to records of private bodies
The Chair stated that Option 1 for 49(1a) was the ANC option, and that options 2 for 49(1a) was the submission of the Democratic Party (DP). It was agreed that Option 1 was preferable with the deletion of the {s} after "right".

Adv de Lange then suggested the following as an option to the existing 49(2):
"In addition to the requirements referred to in section (1) above, when a record is required by a public body, referred to in paragraphs (a) and (b)(ii)
of the definition of public body for the exercise and protection of any rights, other than it’s rights, it must be acting in the public interest."

The Democratic Party (DP) asked that a third option be added to delete both the original 49(2), and new option put forth by the Chair.

Clause 55: Voluntary disclosure of certain records
Adv de Lange noted that this title had previously been agreed to read "Voluntary disclosure and automatic availability of certain records". The Chair then asked if all members were in favour of Option 1 to include this clause in the Bill. All members agreed, to include it with the {must} in 55(2). The Chair then asked the committee to turn to Clause 76.

Clause 76: Right of internal appeal to relevant authority
Adv de Lange suggested the following new definition for "relevant authority": "relevant authority" means -
(a) referred to paragraph (a) of the definition of "public body" in the national sphere of government means:
(i) in the case of the Office of the President, the person designated in
writing by the President; or
(ii) in any other case, the Minister responsible for that public body, or the person designated in writing by that Minister;
(b) referred to in paragraph (a) of the definition of "public body" in the provincial sphere of government means:
(i) in the case of the Office of the Premier, the person designated in writing by the Premier; or
(ii) in any other case, the member of the Executive Council responsible for that public body, or the person designated in writing by that Minister.
(c) a municipality means:
(i) the mayor;
(ii) the speaker;
(iii) or any other person,
designated by the relevant municipal council, designated in writing by the relevant municipality.
The committee agreed to the new definition.
It was also agreed that "(b)(i)" in 76(1) could be omitted.

Clause 77: Manner of internal appeal, and appeal fees
It was decided that (if any) in 77(4a) would be included.

Clause 78: Notice to and representations by other interested persons
The Chair stated that all references to {42A} in this clause must be changed to {42A(2)} as was done in clauses 46 and 73. It was also agreed that in 78(3c) all mention of {(1)} must be omitted.

All members of the committee agreed with Clause 79: Decision on internal appeal and notice thereof as stated. It was also agreed that internal appeals would be included in this bill, and as such Option 2 for Chapter 2 was omitted. The Committee focused on the clauses listed under Option 1 for chapter 2.

Clause 80: Non-exclusion of other remedies

The Committee voted unanimously in favour of Option 2 to delete this clause.

Clause 82: Applications regarding decisions of information officers or relevant authorities of public bodies or heads of private bodies
The Chair stated that 82(2b) will now be deleted as it refers to the certificate system, under Option 2 for Chapter 2, which no longer exists. The Chair stated that (2c) will now become (2b), and that 82(2c) will now read:
(c) aggrieved by a decision of the information officer of a public body
referred to in paragraph (b) of the definition of a public body in section 1 -
(i) to refuse a request; or
(ii) a decision taken in terms of section 22, 26(1), or 29(3)

and 82(3b) will now read:
(b) referred to in paragraph (b) of the definition of a public body to grant a
request for access.

Clause 83: Procedure
The Chair suggested that in 83(1a) and 83(1b), "Magistrate’s" should be deleted. The members agreed to the change. It was also agreed to that "Act" would replace "section" in 83(1), and that Option 2 for 83(2) would be included.

No questions or concerns were raised regarding Clause 85: Disclosure of records to, and non-disclosure by, court. The Chair did note that 83(3)(a) "receive representations ex parte" would be included in the final draft.

Clause 86: Proceedings are civil
The Chair noted that 86(3c) could be deleted as it refers to the certificate system which is no longer included as part of this Bill.

The committee agreed to Clause 87: Decision on application as stated.

Clause 89: Additional functions of Human Rights Commission
The Committee decided that Option 1 for 89(4) was more suitable. It was also decided that {financial and other} would be included in 89(5), and {and private} would be included in (3)(a)(ii).

Clause 90: Report to National Assembly by Human Rights Commission
Mr Smith (IFP) asked if 90(b)(vi-xi) is included. The Chair replied that it was, and that all of clause 90 was correct as stated.

No members had problems with Clause 91: Expenditure of Human Rights Commission in terms of Act. The Chair also noted that 92 was agreed to as per earlier discussions in the day.

Clause 93: Extended periods for dealing with requests during first two years

The committee turned its attention to the new proposed provision for 93(3) outlined in OPD 107b. The Chair stated that Option 1 was best, but that it should be reworded. He suggested that it read:
(3) Parliament must after a period of 12 months, but within a period of 18
months, after the commencement of this section, review the operation of this section.
The committee agreed with the amendments to Option 1, and it was chosen. It was also decided in earlier discussions that {Chapters 3, 4 and 5 of} be omitted from 93(1)(a).

Clause 94: Liability was agreed to as stated.

Clause 95: Offences
Mr Jeffery (ANC) felt that for grammatical purposes 95 (a),(b) and (c) should be in plural. Adv de Lange asked Ms van Schoor to make the appropriate changes.

Clause 95A: Amendment of Public Protector Act 23 0f 1994
The Chair asked that for clarification purposes 95A(b) be changed to add in the phrase "endeavor to resolve, in his or her discretion, by -". No objections were raised.

It was agreed to in Clause 96: Regulations to delete {the determination of} in 96(3)(a), and that in Clause 97: Short title and commencement, all that needed to be voted on was the title of the Bill.

Voting on clauses not already agreed to
(Note: All definitions and clauses not referred to here have already been unanimously agreed to by the committee members)
The Chair said that he was pleased that "about 98%" of the clauses had already been settled, and that there were only a few that required voting by the 28 members present.

Clause 1: Definitions
All 28 members voted in favour of the definitions of "access fee", "application" and "Constitution".

The Chair then asked how many members were in favour of the definition of "court" with the inclusion of (a). The members voted 20 in favour, and 8 against.

The Chair also stated that with Option 2 for 43(2)(b) not being chosen, that "evaluative material" would be retained in this Bill.
All 28 members voted in favour on Option 1 to include "internal appeal".

Mr Masutha (ANC) asked that before voting occurred on "public safety of environmental risk", that the committee consider changing the definition to include "means harm or risk to the environment" The Chair felt that there would be no problems with adjusting the definition. The committee voted unanimously for Option 1 for (c), with Mr Smith’s (ANC) suggestion of including the word "intended".

All members voted in favour of Option 2 for "record".

The proposed definition of "relevant authority" by the Chair was passed with a vote of 20 in favour, and 8 against.

The committee voted in the following way for the definition of "requester".
- All 28 members voted in favour of Option 2 for (a).
- The 19 ANC members voted for Option 2 of (b), while 8 members voted for
option 1, with one member (IFP) abstaining.

Adv de Lange stated that the definition of "subversive or hostile activities" is included in the definitions as options (3) for clause 40 was used, and that the definition of "working days" will be included as internal appeals are provide for.

Clause 2: Interpretation of Act
The ANC majority voted in favour of Option 2 to omit subsection (2), as well as to omit subsection (3).

Clause 4A: Act not applying to certain public or officials thereof
The committee members voted 19 in favour of Option 1 for 4A(1a), 7 voted against, and 1 member abstained. This clause was later omitted as Clause 42B was included in the Bill.

Clause 10: Guide on how to use Act
All 28 members voted in favour of Option 1 for 10(1), with the amendments that had previously been agreed to for this option, including the deletion of {by Human Rights Commission} from the title, and the deletion of the proposed insertions in 10(2)(h) and 10(2)(I).

Adv de Lange stated that all members had previously agreed unanimously to Clause 11 through Clause 31, as well as to the amendments. The Chair read each clause, with the agreed upon amendments for clarification from the committee. They included:
Clause 16(1) Voluntary disclosure and automatic availability of certain records
-including the proposed insertion in 16(1), and (2)(b).
Clause 21: Preservation of records until final decision on request
-including "an internal appeal", but excluding "with relevant authority" in 21(a).
Clause 22: Fees
-including 22(2)(b) and (2)(c)
-there was a vote held for the Option 2 for 22(5). 20 members voted in favour of the option, while 8 voted against it.
Clause 25: Decision on request and notice thereof
-deleting "or transferred" in 25(1)
-including the proposed insertions in 25(3)
Clause 26: Extension of period to deal with request
-including subsection (3)(c)
Clause 29A: Access to health or other records
-the deletion of all alternate wordings, and proposed insertions.
Clause 31: Reports to Human Rights Commission
-the inclusion of (g), (h), and "an internal appeal" in (i)

Clause 32: Mandatory and discretionary grounds for refusal, and interpretation
All members voted unanimously in favour of Option 1 for 32(1).

Clause 33: Mandatory protection of privacy of third party
The Chair asked that members vote on Option 2 for subsection 33(1) including the term {unreasonable}. 20 voted in favour of Option 2, with the addition of the word "unreasonable", and 8 member voted against it. In addition, all 28 members voted for Option 1 of 33(2f)(iii). It had been previously agreed that 33(3) would be deleted.

Clause 34: Revenue related records of South African Revenue Services
The committee voted unanimously for Option 2 of 34(1), with the inclusion of 34(2) as stated on OPD107a.

Clause 35: Mandatory protection of commercial information of third party
23 members voted in favour of Option 1 with the changes in wording previously agreed to, while 5 voted against Option 1. The Chair noted that 35(1)(d) was no longer needed, and so no voting on the outlined options occurred.

Clause 36: Records obtained in confidence from third party
All 28 members voted in favour of Option 2 for subsection (1).

Clause 37: Mandatory protection of individuals’ safety, and protection of property
The Chair noted that the only remaining part necessary for voting was to include { OR would be likely} and {identifiable} in 37(a), and {OR would be likely} in (b). It was agreed to that "would be likely" will not be included in (a), but that it would be included in (b). The Democratic Party stated that they were in favour of retaining the word "identifiable". The committee voted 5 in favour including it, and 23 against it.

Clause 40: Republic’s defence, security and international relations
Adv de Lange put Option 3 for Clause 40 up for voting. Members voted 21 to 7 in favour of the option. The Chair also put Option 1 for subsections (1) and (2) to a vote. 21 committee members voted in favour of Option 1, 7 members voted against it. Included in this vote was that:
-40(1)(a) would read: "could reasonably be expected to cause prejudice to-", and
that the proposed insertion of (1)(a)(iii) be omitted.
-subsection (2) includes all references of {OR curtailment}

The Chair stated that Clause 41: International relations was deleted as Option 1 for Clause 40 was not used.

It was decided by a vote of 22 in favour and 6 against that the title of Clause 42 would read:
Clause 42: Economic interests and financial welfare of Republic and commercial activities of public bodies
The committee members voted 22 to 6 in favour of Option 2 for clause 42. In 42(1), the majority of committee members voted in favour of deleting {OR could reasonably be expected} and in favour of including "materially". The Chair then put Option 1 for paragraphs (3b) and (3c) up for voting, with the inclusion of {would be likely} in (b) and the deletion of {OR an unfair} in (b)(i) and {unfairly} in (c)(ii). 22 members voted in favour of the option, and 6 members voted against it. Members had already agreed to include (2)(e). The Committee also opted by a vote of 20-8 for Option 1 for (3A), and for Option 1 within that option by the same vote.

Clause 42A: Records about Research
The committee agreed to Option 2, with the exclusion of "a public body" in (a), and the inclusion of the terms {would be likely} and {serious}.

Clause 42B: Cabinet’s records
The committee voted 20 in favour of Option 2 of 42(B), and 8 against the option. As such, Cabinet is excluded from the application of this Bill.

Clause 43: Operation of pubic bodies
The Chair called for a vote to determine whether {or} should be used instead of "and" in 43(1). 20 members voted in favour of "or", 8 members voted against it. In 43(2)(b), it was decided by a vote of 21 to 7 to delete {an assessment}.

Adv de Lange asked how many members were in favour of Option 2 for (4)(b), which would omit (b), and subsections (5) and (6). 21 members voted for the option, and 7 voted against the option.

Clause 45: Mandatory disclosure in public interest
The Chair stated that Option 1 for this clause was the Democratic Party option. The committee voted 8 in favour and 20 against the option. The Chair noted that Option 2 will be adopted.

Clause 49: Right of access to records of private bodies
The committee voted on the options for 49(1)(a). 19 members voted in favour of Option 1, and 9 members voted against it. The Chair also put forth a vote on whether the committee wanted to include 49(2). The result was 19 in favour, 8 against, and 1 abstention.

Clause 54: Manual
The Chair stated that Option 1 for 54(1) was the African National Congress (ANC) option, and Option 2 was put forth by the Democratic Party, while Option 3 had been the submission of the African Democratic Christian Party (ACDP). Adv de Lange put Option 1 up for a vote, with the period of six months to compile the manual included. 21 members voted in favour of Option 1, and 7 voted against it.

The Chair noted that the committee had previously decided to omit Option 2 for Clause 55: Voluntary disclosure of certain records, and so no vote was needed.

Clause 57: Form of request
The committee voted in favour of Option 1, 20-8.

Clause 59: Decision on request
The committee voted unanimously in favour of Option 2. The Chair noted that Option 2 was the submission of the Democratic Party (DP), and was a "very sound" option.

Clause 72A: Adverse effects
The Chair asked that members vote on the Democratic Party (DP) option, Option 1. The committee voted 6 in favour, and 22 against. The Chair stated this clause will now be omitted as per Option 2.

All members voted unanimously in favour of Option 1 of Chapter 2: APPLICATIONS TO COURT to include internal appeals. All clauses under Option 1 were already agreed to as stated.

Clause 92: Application of other legislation providing for access
The Chair asked members to vote on this clause with the use of the words {OR promotes} in section (a) and (b), and the with the deletion of all other proposed insertions. The committee voted unanimously for the clause.

Clause 93: Extended periods for dealing with requests during first two years
The committee voted unanimously for Clause 93, with the Option 1 for subsection 3 as outlined in OPD 107b.

Clause 97: Short title and commencement
All members voted unanimously to the title "Promotion of Access to Information Bill".

Preamble and Table of Contents
The Chair asked Mr Cronin (ANC) to redraft the Preamble. The Committee adjourned for 15 minutes. Mr Cronin (ANC) then read out the redrafted version of the Preamble as an Option 2. It read as follows:

"RECOGNISING THAT -
* the system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public and private bodies which often led to the abuse of power and human rights violations;
* section 8 of the Constitution provides for the horizontal application of the
rights in the Bill of Rights to juristic persons to the extent required by the
nature of the rights and the nature of those juristic persons;
* Section 32(1)(a) of the Constitution provides that everyone has the right of access to any information held by the State.
* Section 32(1)(b) of the Constitution provides for the horizontal application of the right to access of information held by another person to everyone when that information is required for the exercise and protection for any right.
* and that national legislation must be enacted to give effect to this right in
Section (32).

AND BEARING IN MIND THAT -
* the State must respect, protect, promote and fulfill at least all the rights in
the Bill of Rights which is the cornerstone of democracy in South Africa.
* the right of access to any information held by a public or private body
may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution;
* reasonable legislature measures may, in terms of section 32(2) of the Constitution, be provided to alleviate the administrative and financial burden on the State in giving effect to its obligation to promote and fulfil the right of access to information;

AND IN ORDER TO -
*foster a culture of transparency in public and private bodies by giving access to information;
*actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all their rights,

BE IT THEREFORE ENACTED by Parliament of the Republic of South Africa, as follows...

Ms Taljaard (DP) proposed that the second and third paragraph be deleted in Option 1 of the Preamble as an alternate option to Mr Cronin’s. The Chair put the Option drafted by Mr Cronin to a vote. 21 members voted in favour of the revised preamble, 7 members voted against it.

Clause 9: Objects of Act
Ms Jana (ANC) proposed that a new subsection be added into Option 2 of this section that reads:
"to give effect to the constitutional obligations of the State of promoting a human rights culture and social justice, by including public bodies in the definition of a "requester", allowing them, amongst others to access information from private bodies upon compliance with the four requirements in this Act, including an additional obligation for certain public bodies in certain instances to act in the public interest;"
Ms Jana (ANC) also proposed that (d) be deleted.

Ms Taljaard (DP) asked that an additional option be added, that deletes subsection (d) and omits the word "private" from (e). Adv de Lange told the committee that two options now existed. The Chair put the ANC option up for voting. 18 members voted for the ANC option, and 10 members voted against it.

Voting on the Bill as a whole
The Chair then asked the members to vote on the entire bill. 19 members voted in favour of the Bill, 4 voted against it, and 3 abstained.

APPENDIX A:

NEW OPTION FOR CLAUSE 34: PAGE 40 OF OPD 107

1. See option2:

Tax related records {OR Revenue related records of South African Revenue Service}

Option 1:

34. {(l) Subject to subsection (2), the} The information officer of a public body must refuse a request for access to a record of the body if it reveals information that was obtained on a tax return {supplied by a third party} or for the purpose of determining tax liability or collecting tax.

Option 2:

(I) The information officer of the South African Revenue Service, established by section 2 of the South African Revenue Service Act, 1997 (Act No.34 of 1997), {OR referred to in section 2(1A)} must refuse a request for access to a record of that Service if it contains information which was obtained or is held by that Service or the purpose of enforcing legislation concerning the collection of revenue as defined in section 1 of that Act.

(Note: "'revenue' is defined in the South African Revenue Service Act, 1997, as "income derived from taxes, duties, levies, fees, charges, additional tax and any other moneys imposed in terms of legislation, including penalties and interest in connection with such moneys ". }

{(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about the requester or the person on whose behalf the request is made.} # Omit if term "third party" is used above

2. If option 2 for cI 34 is used, include following subsection in clause 2 (Interpretation of Act) OR in clause 1 (definitions):

Option 1 - option 2 for cl 34 is used:

(1A) For the purposes of this Act, the South African Revenue Service referred to in section 34 {OR, established by section 2 of the South African Revenue Service of this Act.} is a public body.

Option 2 - option 2 of cl 34 is not used:

# Omit subsection (1A)

Option 3 - include (1A) above (1A) as subsection (2) of clause 1

 

APPENDIX B

PROVISION PROPOSED TO BE ADDED TO CLAUSE 93- SEE PAGE 103 OF OPD 107

Add the following subsection to clause 93:

Option 1:

(3) Parliament must, within a period of 12 months after the commencement of this section review the periods of 90 days and 60 days referred to in subsection (1)(a) and (b).

Option 2:

(3) The periods of 90 days and 60 days referred to in subsection (1)(a) and (b), respectively, are subject to review by Parliament within 12 months after the commencement of this section.

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