Revised Bill: discussion

Meeting report

JOINT ADHOC COMMITTEE ON THE OPEN DEMOCRACY BILL
17 January 2000
PARTS 4 - 7 AND CHAPTER 4 OF PART 2: DISCUSSION

Documents handed out:
Revised Working Draft (11 January 2000)
Grounds of refusal of access to records of public and private bodies (17 January 2000)
DP Proposed amendments

SUMMARY
The committee focused on Part 4 to 7 of the Revised Working Draft finalising the options in these parts, as well as the specific wording of the clauses. They then looked at a new draft of Grounds of refusal of access to records of public and private bodies. They discussed half the chapter dealing with public bodies.

In Part 5 there was much discussion over the functions of the Human Rights Commission (HRC). Adv de Lange expressed concern that this Bill was stretching the limits of the HRC which was already exceedingly over budget. It was decided that 89(1) be amended to state specifically what the SAHRC "must" be required to do, and what they "may" be required to do. It was generally agreed that they must be responsible for providing reports to Parliament every two years, and publishing a guide on how to use this Act. It was also suggested that the development of educational programmes, and the dissemination of information be included in the "must" list.

In Part 4 dealing with Appeals, the committee had extensive discussions on the meaning of "burden of proof" in 86. The Chair stated that he found the practice of burden of proof to be problematic. The clause was changed to establish a clearer understanding of what the term infers.

Much of the morning was spent debating the need to include "representations ex parte" in 85(2A)(a). It was eventually decided to omit this term, and replace it with an empowerment clause for a "Rules Board." The Chair argued that this would ensure rules are made for the working of this bill, and it would also establish clearer procedures to deal with third parties. The Clause was taken from the Administrative Justice bill.

In the new draft dealing with Grounds for Refusal of Access to Records of Public Bodies, Democratic Party members were unhappy with the addition in Option 2 of 40(1b), in relation to the Certificate system with respect to the Republic’s defence, security and international relations. The Chair agreed to include a new subsection, which would make 40(1b) unnecessary. Some members raised concerns over provisional refusals being made by information officers. The Chair specified options on time limits that stipulated when decisions regarding provisional refusals would be made.

MINUTES:
PART 4 APPEALS AGAINST DECISIONS
Option 1 - Provide for internal appeals (so includes Chapter 1)

Chapter 1: Internal appeals
[Note: these deliberations were not minuted]

Chapter 2: Applications to [High C]court
[Note: deliberations on clauses 81 to 82 were not minuted]

Clause 83: Jurisdiction of [High C]court
Adv de Lange informed committee members that this clause was insufficient as it stands. He stated that it’s referral solely to the High Court was far too narrow, and must be rewritten to specifically include the Magistrates Court and the Constitutional Court. He further stated that he wants to have it written that the courts can be amalgamated in areas where no Magistrates Court exists. The Chair made reference to the Administrative Justice Bill, in which they specify the following:
1) In an area where there is both a High Court and a Magistrates Court, an individual has access to either and can designate which Court they want.
2) An individual can go to a Magistrates Court, but is not obliged to go there.
3) An individual can go to a High Court if that court has jurisdiction.

Adv de Lange asked that the clause that appears in the Administrative Justice Bill be used for this clause. All members showed support.

Clause 84: Assistance of Human Rights Commission
Adv de Lange raised concern over 84(3). He was not completely convinced of what the practical effect of this subsection was. He raised the following questions:
1) Why is the Human Rights Commission (HRC) appointing a legal practitioner?
2) What are the implications of this action?
3) Does this have any impact on Legal Aid?
4) Why is the HRC taking on this role when they are not even litigants?

The Chair thought all of these issues must be covered under the Legal Aid Act.

Mr Swart (ACDP) stated that it was necessary to include subsection (2) in this clause, but that subsection (3) could be omitted. The Chair felt that this could be problematic as the HRC is already five to ten times over their budget, and may be stretching them past their limits. The Chair favoured only including 84(1). Mr Swart (ACDP) then inquired as to the practical effect of subsection (1). The Chair said that its intended purpose would be a broad assistance clause stating that the HRC may give advice. Mr Swart (ACDP) felt that subsections (2) and (3) would give more specific direction as to the role of the HRC. Adv de Lange feared that these subsections would make it obligatory that the HRC provide assistance, which he felt uncomfortable including.

Clause 85: Disclosing Records to, and precautions against disclosing, by court
Adv de Lange stated that 85(1) was extremely important as it is this subsection that is the biggest protection against abuse by public and private bodies.

The Chair was confused by (2A)(a) which states "receive representations ex parte." He asked Ms van Schoor what the specific meaning of "representations ex parte" was in relation to this clause. Ms van Schoor replied that it meant representation without notice. Adv de Lange replied that the application procedure outlined in this clause was clearly not ex parte, and that it seemed odd to include. The Chair then asked Ms van Schoor to see which country this was taken from.

It was later decided that there must be an allowance for representations ex parte to be received by the courts. Adv de Lange argued that since no rules of procedure for judicial review exist in the law, it was necessary to add an empowerment clause for a "Rules Board." He stated this "Rules Board" will have two effects. One, it will make rules necessary to the working of this Bill, and two, it will deal with Magistrate Courts. The Chair said the same provision had been added into Clause 8 of the Administrative Justice Bill. He also said a resolution would be added to develop clear procedures for third parties, which the committee had been unable to do. It was agreed that 85(2A)(a) would be deleted and be replaced with:
"The Rules Board for courts of Law established by Section 2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), must within one year after the date of commencement of this Act, make and implement
rules of procedure for judicial review.", and

"Any rule under subsection (5) must, before publication in the Gazette, be [submitted to, and] approved by Parliament."

The Chair stated that this would ensure that rules are submitted to Parliament.

Adv de Lange asked why (2A)(d) was necessary. Ms van Schoor said that it was unnecessary, and could be omitted.

The Chair was adamant that 85(3) be excluded. He said that the only test the court need to apply is whether the document must or must not be made available.

Clause 86: Burden of Proof
Adv de Lange felt that there was no need for this clause. He stated that he had no problem with the principle behind burden of proof, but found the practice of it to be problematic. He further stated that it was up to the governmental body to determine the burden of proof.

Mr Schmidt (DP) stated that it was up to the one party to make a prima facie case for being granted access to a document, and then the other party must provide sufficient proof why the document should not be granted. The Chair replied that he was worried that this clause would shift the burden of proof on to the private body. He felt that this clause needed to be more specific. Mr Lever (DP, NCOP) suggested that rewording 86(a) to read "the refusal of a request for access; if after establishing a prima facie case; or" would solve the Chair’s concern. The Chair said it would be added as an option.

Adv de Lange was also concerned over the use of the word "justified". He argued that it implies too strong a test for the courts. Ms van Schoor stated that "justified" was taken from the Canadian model. The Chair saw three problems arising. First, that courts all over the world interpret onus very differently. Secondly, that the Canadian court system and judicial process are far more developed than South Africa’s, and one cannot apply their procedures to our system, because we are not yet equal, and thirdly, if we just follow other country’s models, then our judges will look to these countries for answers. Adv de Lange stated it was important that if "justified" is used that they apply their own definition to it, and not a definition from another country. Mr Schmidt (DP) suggested using "entitled" instead of "justified". The Chair agreed it was a preferable option.

Adv de Lange called for members to look over the sections listed in (b). Ms van Schoor advised the committee that (b) may not need to be included.

The Chair concluded that by adding in Mr Lever’s wording in 86(a) and by replacing the word "justified" with "entitled", this clause was now very clear in establishing that burden of proof means 1) prima facie on the applicant and 2) burden of proof on the "refuser"

There were no problems with or discussions on Clause 87: Decision on Application, or Clause 88: Costs

Option 2: No internal appeal procedure included in Bill (so Chapter 1 omitted)
Chapter 2 Applications to [High C]court
The amendments made in Option 1 will carry over and apply to Option 2.

Mr Du Preez (drafter) raised concern over the definition of "court". He asked if the Constitutional Court is a court of first instance? Adv de Lange replied that the Constitution does allow for it, but that it needs to be verified if the Constitutional Court will hear disputes that have not been adjudicated in the lower courts. He advised Mr Du Preez to look at the rules pertaining to direct access.

Adv de Lange referred to the possible need for an Information Commissioner. He stated that in sophisticated democracies, this is the best enforcement mechanism. He expressed concern that due to financial constraints, however, it would not be possible to have an information commissioner. The Chair asked Mr Du Preez to draft a chapter on "Information Commissioner", and said that it would be added as a resolution later. Adv de Lange said the draft will be submitted to the Department of Finance to determine whether it would be a feasible option. The Chair believed this would be a "strong message that we are sending out."

Mr Smith (IFP): What about mediation?

The Chair said if mediation powers in the Public Protector’s Act were sufficient, then there would be no problem, but if a party is in dispute over the Open Democracy Bill then a clause may be added to amend the Public Protector’s Act to include mediation over disputes related to the Open Democracy Bill.

PART 5 HUMAN RIGHTS COMMISSION
Clause 89: Additional functions of Human Rights Commission
The Chair was nervous that in subsection (1a) the Human Rights Commission (HRC) must review the Act either annually or every two years. He felt that it would be an enormous task for the HRC to undertake. The Chair raised the following issues:
1) Should the HRC have to train information officers?
2) Should it be a duty for the HRC to have to train information officers of
parastatals?
3) Would it put a duty on the HRC to legally assist parastatals?

Mr Smith (IFP) asked to what extent do the requirements listed under 89(1) put a financial burden on the HRC? Is the State going to reimburse them the costs involved? Mr Smith suggested that perhaps the HRC should be responsible for submitting a report to Parliament every two years. Adv de Lange agreed, but felt that they must also be responsible for publishing a guide on how to use this Act. Mr Smith suggested that 89(1) be rewritten with two separate headings. One heading would consist of what the HRC "must" be required to do, and the other would consist of what they "may" be required to do. It was agreed that a variation of (1a) dealing with reports to Parliament, and (1g) the publishing of a guide be placed under the "must" heading.

Mr J Cronin (ANC) favored the inclusion of 1(d-f) under the must list. He felt it necessary that the HRC foster a climate of educating, as well as being a disseminator of information. He argued that these do not make specific demands on what the HRC must do, but rather says that they should actively promote education. He was sure that the HRC would want to see themselves as an active body in promoting democracy. He concluded by saying that they must do more than submit reports every two years, and produce a guide.

Ms Chohan-Khotha (ANC) requested that 2(b) "train information officers of governmental bodies" be moved to section (1). She also asked that 2(f) which pertains to making donations be deleted as the term "donations" is too broad, and would be problematic. The Chair advised Ms van Schoor to make the changes, however, it was not determined which heading 2(b) would be placed under in 89(1).

Clause 90: Report to National Assembly by Human Rights Commission
Mr Swart (ACDP) asked why is the HRC responsible for performing all these tasks?

The Chair stated that if an information commissioner was put in place then they would be responsible for gathering data on the number of applications, on requests for access, and on those granted and refused, and other tasks outlined in 90(1), however, until that information commissioner was in place, they must rely on the HRC.

Clause 91: Expenditure of Human Rights Commission in terms of Act
It was agreed by all members that Option 1 for clause 91 was the best option with the proposed deletions of 91(a) and 91(b).

PART 6 TRANSITIONAL ARRANGEMENTS
Clause 92: Application of other legislation providing for access
Adv de Lange stated that clause 92 will stand over.

Clause 93: Periods for dealing with requests
Adv de Lange advised the committee that the only issue is if this clause will apply to private bodies which he felt may be problematic. He reminded the committee of their previous discussions on "phasing-in" in relation to other countries in different levels of government. However he stated that in South Africa, it is in the Constitution and in the schedules, that there is an unrestricted right applicable, and so he believed that the necessity of "phasing in" is not as important as first thought.

The Chair asked Ms van Schoor to draft a subsection (2) stating that this Act will allow for extensions of thirty days in the following way:
1) the 30 day extension is applicable to all references to 30 days.
2) the 30 day extension is not applicable to all references to 60 days.
3) the 30 day extension is not applicable to all references to 90 days.

93A: Correction of personal information
Mr Smith (IFP) was concerned over the wording "reasonable steps". He felt that it did not imply that the steps taken may be appropriate. The Chair agreed. The Chair said that he would favour adding in the words "until legislation is passed" for the purpose of clarity. All agreed the new wording of 93A would read as such:
"If no provision for the correction of personal information about a person contained in a record of a governmental or private body exists, until legisation is passed, that governmental body must take appropriate steps {to establish {internal} measures} providing for such correction."

Mr Masutha (ANC) asked why this was being included as a transitional provision. The Chair responded that it will remain a transitional provision until legislation is passed. He said that when other bills are passed, this clause will be taken out, but for now it has the hallmarks of a transitional provision in that it has no sanctions or procedures attached to it.

PART 7 GENERAL PROVISIONS
Clause 94: {Liability
The Chair reminded members that this clause applies to both public and private bodies. There were no problems raised.

Clause 95: Offences
There were no problems with this clause.

Clause 96: Regulations
The Chair stated three changes that he felt were crucial to this clause. First, he wanted to omit "after consultation with the Human Rights Commission and with the approval of Parliament" from 96, so that it reads:
"The Minister [of Justice] may, by notice in the Gazette make regulations
regarding - "

Secondly, the Chair asked that the "usual clause" be added relating to financial ramifications being approved by the Department of Finance, and thirdly, he wanted all regulations to be submitted to Parliament before publication, so that they can be discussed.

Mr Durr (ACDP) asked whether that applies to all regulations regarding this Act. The Chair replied that "all regulations" must be submitted to Parliament.

Clause 97: Short title and commencement
Adv de Lange asked that in 97(1) an option be added for the name of this Act to be 'The Promotion of Access to Information Act'. Some members were unsure of why it was the 'Access to Information Act' and not the 'Freedom of Information Act'. The Chair responded that although most countries do refer to it as Freedom of Information Act, "it is better for us to use 'Access' as we are referring to it as being a right".

The Chair questioned why 97(2b) had been included, but realized that this subsection acts as a safety net, in case anything has been missed. He also stated that it had been added for the purpose of clarity.

The rest of the meeting focused on a new draft of Chapter 4 of Part 2 of the Bill.
Chapter 4 Grounds of refusal for access to records
Adv de Lange asked that members of the committee concentrate on making sure that the amendments are correct, and not on debating any of the amendments. He stated that through the discussions that they have had, issues had been cleared out at "various levels."

32. Mandatory and discretionary grounds for refusal, and interpretation
The committee agreed that Option 1 was the best option. Mr Smith (IFP) asked why 32(1) includes the term "public body" and not "governmental body". The Chair stated that the change was made so that there is a clear distinction between public and private bodies. He further stated that this satisfies parastatals who do not like to be defined as governmental bodies.

33. Mandatory protection of privacy of third party
Adv de Lange reminded the members that the third option for 33(1) was the submission of Ms Taljaard (DP). The Chair stated that there were two options regarding 38(1f). The committee was in favor of Option 1.

The Chair also informed the committee that a decision had to be made between the three available options for par (iii) in Option 3 of 38(1f). Mr Smith (IFP) stated that he favored Option 2, as did most members of the African National Congress (ANC). The Democratic Party (DP) showed a preference for Option 1 for par (f). The third option, which was to omit 38(1f) (iii) was not acceptable to any member.

Ms van Schoor advised committee members that in subsection 1(2) of this clause, the use of "person" or "individual" was dependent on which option is chosen in 38(1). She stated that if:
Option 1 of 38(1) was chosen, then "person" would be used.
Option 2 of 38(1) was chosen, then "individual" would be used.
Option 3 of 38(1) was chosen, then "person or individual" would be used.

34. Tax related records
Of the two options that are available for 34(2), all members supported Option 2.

35. Mandatory protection of commercial information of third party
Adv de Lange expressed reservations about the possibility of adding "supplied in confidence" to 35(1a). He believed that including this phrase would change the meaning of trade secrets in the courts. It was agreed that all three options for paragraphs (b),(c), and (d) would remain as stated in 35(1). The Chair made note that 35(4) had been deleted from the revised working draft of January 11, 2000.

36. Records obtained in confidence from third party
No members liked Option 1 for 36(1). Adv de Lange stated the significant difference between the two remaining options, is that in Option 3 it specifies that an information officer must refuse if a breach of confidence occurs. The Chair also noted the other decision that must be made in reference to both Option 2 and 3, is whether to include the term "reasonably be expected" or "would be likely".

37. Mandatory protection of individuals’ safety, and protection of property
There were no problems or questions raised pertaining to this clause.

38. Law enforcement
Some discussion revolved around whether to use "prejudice", "impair", or "prejudice or impair" in 38(1c)(v). The Chair believed that the term "prejudice" was the most appropriate term. No final decision was made. All other decisions pertaining to the exact wording of this clause stood as stated.

39. Mandatory protection of records privileged from production in legal
proceedings
This clause was acceptable to all members.

Clause 40: includes:
Option 1 - Republic’s defence and security
Option 2 - Republic’s defence, security and international relations
Option 3 - Republic’s defence, security and international relations
Adv de Lange began by stating that he favored Option 2. Mr Smith (IFP) asked what the link was between the information officer and the Minister with reference to certificates. The Chair said that if there is no certificate, then the information officer must give the document to the requester. He further stated that the certificate acts as a safety net, so that information officers are not giving away documents that they should not be.

In Option 2 of 40(1), a (1b) has been added that states an information officer of a public body "may refuse a request for access to a record if a certificate has not been signed…" Members of the DP were adamant that they would not accept Option 2 with the addition of 40(1b). The Chair replied that if you state a certificate can be issued at any time, then 40(1b) would not be needed. He asked Ms van Schoor to add a subsection that clearly states it does not matter whether a certification was issued before or after a request was made.

Mr Schmidt (DP) felt that if an information officer could provisionally refuse a request for a document, then the information officer would have to go to the Minister to see if it needed certification. He argued that this process could last indefinitely. Mr Jeffery (ANC) suggested that a time limit be implemented for provisional refusals. The Chair stated that the provisional refusal would last 30 days, and the Minister must make a decision within 30 days. The Chair stated that there were two possible options for dealing with provisional refusals. The first is that if there is a request for a document, the Minister must determine whether it needs to be certified, or whether access can be granted, within 30 days of receiving it. The Chair stated this is in line with 25(1). The second option is to say that the Minister must make a decision after receiving the request within 90 days for the first year this Bill is implemented, 60 days for the second year, and 30 days from the third year on. There was some confusion between members over Option 2.

The meeting was adjourned for the day.