Clauses 38-72A of Revised Bill

Meeting report

JOINT ADHOC COMMITTEE ON THE OPEN DEMOCRACY BILL
14 January 2000
DELIBERATIONS ON REVISED DRAFT: CLAUSES 38 - 72A

Relevant document:
Revised Working Draft - January 11, 2000

SUMMARY
Morning session
The committee discussed clauses 38 through 42: exemptions in the public body sphere. The meeting focused on the specific wording of each of the clauses, as well as a discussion of all possible options listed within this section of the draft. New options were added into many of the clauses, including a proposal by members of the Democratic Party to make five amendments to clause 42(B). A large portion of the morning session was spent debating the Certificate Systems outlined in Clause 40 dealing with defence and security matters. Many members expressed concern over exactly how the certification process would work, specifically relating to when certificates would be issued. The Chairperson was of the opinion that there were many advantages to this system but admitted that further discussion was needed.

Afternoon session
The committee continued discussing the last few exemptions in the public body sphere as well as the public interest override and then moved on to access to information of private bodies as well as its exemptions and overrides. Much of the discussion in terms of the public body exemptions and overrides proved to be relevant for private bodies as well so that many of the amendments made to public body exemptions and overrides were duplicated in the private body sections.

MINUTES
Morning session
Clause 38: Law enforcement
Adv de Lange raised concern over the wording of Option 1 for subsection (1A) in that it repeats section 60(14) of the Criminal Procedure Act, 1977. It was decided that this option may create a conflict between the prosecution's need to obtain information contained in a police docket for the purposes of bail proceedings, and the information officer's discretion of whether the information is relevant. Mr Jeffery (ANC) stated that the prosecutor must be the one to decide the relevancy of a docket in bail cases. All members agreed that the broader claim outlined in Option 2 for subsection (1A) was more acceptable.

Ms Chohan-Khotha (ANC) advised that changes should be made in (1A)(a) so that it would read "may refuse a request for access to a record of the body", and "if access to that record is prohibited in terms of section 60(14)of the Criminal Procedures Act, 1977;" The Chair agreed and the changes were made.

Ms van Schoor asked if in light of the changes made in Clause 38 subsection 1 of Option 2 whether part (b) and (1B) was needed. It was agreed that both could be omitted.

Mr Smith (IFP) asked why 38(2) had been included. Mr Jeffery (ANC) replied that it was important to include as it makes available information about the general conditions of persons in custody.

Clause 39: Mandatory protection of records
Adv de Lange informed the committee that the South African Law Commission (SALC) had indicated that 39b be deleted. All members agreed.

Clause 40: Republic’s defense and security [;including intelligence matters]
Adv de Lange stated that Option 2; Certificate Systems, was based on the Australian and Canadian models, which combine security and international relations.

Mr Jeffery (ANC) believed that the committee should hear from the Intelligence Department before deciding on Option 2. The Chair felt that was not necessary.

Mr Smith (IFP) was unclear as to when a certificate would be issued. He asked whether a document would be certified at the time it was generated, or whether it would be certified after a request was made. Mr Jeffery (ANC) felt that if all documents were to be classified the moment they were generated it would create "huge logistical problems." Ms Jana (ANC) pointed out that these concerns were covered in subsections 4-6 of this clause. Mr Jeffery (ANC) replied that subsections 4-6 apply only to when the certification has already been issued, but not before. The Chair felt that there needed to be more discussion on this point, and asked Ms van Schoor to draft an exemption based on the concern of Mr Jeffery (ANC) over the issuing of documents.

Mr Jeffery (ANC) asked if no certification had been issued, and no Minister was available, would the information officer be able to refuse access to a document? He believed that the use of the word "must" in 40(1) was problematic, and thought "may" would be preferable. The Chair asked Ms Van Schoor to add the new wording into the draft, and to add an option to 40(1) stating "allow to refuse if certain criteria exist".

Mr Smith (IFP) asked why in subsection (6)(a) why a certificate remains in force for a period up to 20 years. He suggested it be amended to a length of 5 years. The Chair asked Ms van Schoor to add it as an option.

Mr Cronin (ANC) noted that he was unclear about the merits of the certificate systems. The Chair stated that there were three advantages. One, it would allow documents to be certified when they are received. Secondly, it would shift the decision away from being a bureaucratic one, and would make it a political decision, and thirdly, it would make the Minister of each department accountable for providing a reason why a document was classified. Mr Cronin (ANC) was content with the Chair’s reply.

Adv de Lange reminded the committee that certification would move the decision away from the information officer, and make it a political decision. He further stated that the significant difference between the two available options was that Option 1 was "open-ended" and Option 2 was limited to the conditions of 40(3).

Mr Schmidt (DP) raised the issue of what would happen if a request was made and the information officer was unaware of whether the document should be certified. Adv de Lange stated that it is the responsibility of the Minister at the time the document is produced to decide if it should be certified.

Mr Schmidt (DP) asked for 40(3)(b)(iv)(aa) and (bb) to be deleted and to add into that section 40(1)(a) (i-iv). The Chair said that it would be drafted as an option.

The Democratic Party (DP) were happy with the possible amendments that will be made.

Clause 41: International relations
The Chair asked that 41(1b) precede 41(1a) so that the clause goes from general terms to specific terms, instead of specific terms to general terms as is stated.

Clause 42: Economic interests of Republic and commercial activities of governmental bodies
Miss van Schoor advised the committee that 42(1) deals with financial welfare, and 42(2) deals with commercial activities of governmental bodies. She suggested that 42(1)(a-c) be deleted and replaced with subsection 2(Aa). This would make all of 42(1) unnecessary. Adv de Lange asked that it be drafted as an option.

Mr Cronin (ANC) raised two issues. He felt that the use of the term "financial welfare" in 42(1) did not include the whole totality of people, but seemed to be specific to one group. He asked that "financial welfare" be replaced with "economic interests", as it appears in the title of this clause. Secondly, he asked that "or any part thereof" be removed from 42(1) for the purpose of clarity. The Chair asked Ms van Schoor to put both phrases in brackets for voting on later.

Ms Taljaard (DP) proposed to the committee the following 5 amendments to clause 42B:
1. Amend subsection 1(a) of Clause 42 to read:
(1)(a) it has been submitted to the Cabinet for its consideration;

2. Amend subsection 3 of Clause 42B to read as follows:
(3) For the purpose of this Act but subject to Section 85, a certificate signed by the Minister in the Office of the President certifying that a resolution has been taken by the Cabinet stating that a record -
(a) is a record contemplated in subsection (1); and
(b) is not a record contemplated in subsection (2),

establishes, subject to the operation of {Chapter 2 of} Part 4, that it is a record contemplated in subsection (1) and is not a record contemplated in subsection (2)

3. Amend subsection 4 of Clause 42B to read as follows:
(4) For the purpose of this Act, a certificate signed by the Minister in the Office of the President certify that a resolution has been taken by the Cabinet stating that a record would, if it existed -
(a) be a record contemplated in subsection (1); and
(b) not be a record contemplated in subsection (2),

establishes subject to the operation of this {Chapter 2 of} Part 4, that, if that record exists, it is a record contemplated in subsection (1) and is not a record contemplated in subsection (2)

4. Amend (b) of subsection 6 of Clause 42B:
Omit (iv)

5. Insert a new subsection 8 after the words "In this Section ‘Cabinet’ includes a Cabinet committee or subcommittee:"
(8) For the purpose of this Act, a certificate signed by the Minster in the Office of the President certifying that a resolution has been taken by the Cabinet certifying that a document -
(a) is one of a kind referred to in paragraph of subsection (1); and
(b) is not a document containing purely factual material that is excluded from the application of this section under subsection (2),
establishes conclusively, subject to the operation of Chapter 4 of Part 2, that it:
(c) is an exempt document of that kind; and
(d) is not a document containing such material.

Adv de Lange asked that the Democratic Party (DP) submit to the committee a written list of the proposed amendments, and would be added as an option to the draft for voting later.

Afternoon session
Clause 43 Operations of governmental bodies
There were some concerns raised by Mr Smith regarding 43(4)(b). He was of the opinion that a situation could arise where a government body could receive a report which, if this report did not contain an opinion, advice, recommendation or an account of a consultation as in 43(1)(a), it would not be able to refuse a request for access to the report. If the report was necessary to make a finding on some issue then, before even making the finding, the report could already become public knowledge.

He disagreed with the Chair, Adv De Lange, who said that the release of information covered in the grounds in 43(4)(b) would not be possible if it would frustrate the deliberative process in terms of 43(1) (b)(i). He said these grounds in 43(4) (b) were not covered by 43 (1) since he said that the "record" referred to in 43(1)(b) (I), because of the "and" in (a), made it clear that there was no other record but the one referred to in (a). Quite clearly then people could not be refused access to the record referred to in 43(4) since this was not the same record referred to in 43(1).

With regard to 43(1) Adv De Lange said that there had to be two options with regard to the "and" and the "or" between (a) and (b) which would partially take care of this problem. Secondly he said that (a) had to be amended to state: "if the record contains an opinion, advice or report obtained or prepared for the purpose of assisting formulating policy or to take a decision". After amending 43(1)(b)(ii) slightly as well, he said that this went some way to addressing Mr Smith’s concern.

Clause 44 Frivolous or Vexatious requests or diversion of resources Adv De Lange said that the words "substantially and unreasonably" in the new 44(b) involved strong tests and needed to be so since it was a matter of quantity and not quality.

He pointed out that the next two pages of the draft dealing with records that cannot be found or do not exist and published records and records to be published would be deleted since they were dealt with elsewhere in the Bill.

Clause 44A Necessity of Harm
The Chair read out the clause which was the DP’s proposal. He wanted to know from the DP whether this was in place of mandatory disclosure. They said that it was in addition to it. He wondered how this would be applied since one would now have two overrides: how would this provision work in relation to the override since 44A seemed to be an absolute override.

Dr J Delport (DP) said that 44A was a general catch-all, fall-back position. If any application is made which does not fall under any of the exemptions or overrides this would contain the criteria to apply to that. Because it was difficult to say that there would not be a scenario which could slip through both the exemptions and the overrides, 44A was a necessary inclusion.

Adv De Lange said that there would be two options: namely to have 44A or not to have it.

Ms S Camerer (NNP) felt that 44A was not necessary since it could easily lead to confusion. Secondly she felt that the tests under 44 of "substantially and unreasonably" were not strong enough.

Adv De Lange felt that "substantially and unreasonably" was a strong test.

Ms Camerer felt that the proportionality test could be included.

Adv De Lange said that the proportionality test was included in the unreasonableness test already.

Mr Smith felt that 44A added nothing legally and therefore was not needed.

Clause 45 Mandatory Disclosure in public interest
Adv De Lange said that this section was the override and since it trumped everything stated in the Bill up to now, there were obviously complications and difficulties with it.

Adv De Lange read Option 2 out which was a new amendment. He said that among other things it had to be decided which exemptions to leave out.

Mr J Jeffrey (ANC) asked if bodies who investigate unlawful action, such as the Public Protector, Auditor General and the SAPS, would have to reveal documentation that was evidence of a contravention of law. It would not be good at all if this section requires such documentation to be revealed prematurely.

Adv De Lange said that these considerations were very important and therefore in Option 2, (a) had been linked to (b) through "and". Therefore according to (b) the need for disclosure in the public interest has to clearly outweigh the need for non-disclosure. Exactly because of Mr Jeffrey’s concern, it had been argued at the public hearings that you could not have (a) on its own. Secondly it was vital to look at every single exemption since some of them talk about compulsory non-disclosure whereas s45 would effectively be an override of the exemption not to disclose. Every exemption therefore had to be assessed to see whether it was compulsory or not.

He said that if the tax exemption was looked at, it would be seen that it was a compulsory "must". Therefore you do not give access to a person’s tax return. If the tax return was for example the tax return of "Staggie [an alleged druglord] who could have been making quite a packet with drugs and other things", this could show a contravention of the law. To what extent you would reveal such tax return would depend on the public interest because gangsters would not declare their money if it was evident that this could be accessed via the override.

It would therefore be a policy decision which exemptions one wants in and out. He suggested that each party look very carefully at which option they want here and weigh it against the exemptions they want in.

The Chair noted that the next section "third party notification" would fall under the procedural matters to be dealt with by a subcommittee on Monday 17 January. The group would bring back all the problem areas to the committee.

PART 3 ACCESS TO RECORDS OF PRIVATE BODIES
Chapter 1 Application
Clause 49 is merely a retrospectivity clause.

In clause 50, a member queried the use of the word "official" and asked whether in relation to private bodies, employee would not be more appropriate.

Ms van Schoor said that the problem with putting employee in was that one would then be including members of a governmental body.

As there were no objections to the contrary, Adv De Lange stated that Clauses 51, 52 and 53 would be amended in the same manner as the equivalent provisions regarding access to records of public bodies.

He asked that if possible, Ms van Schoor should include those [public and private body] sections that were exactly the same only once at the beginning in order to avoid repetition.

There was the possibility that in addition to this legislation there was other legislation which also dealt with access to records. Mr Masutha assumed that where there was other legislation, for example the Companies Act, which had a different procedure to be followed for obtaining certain records, then the requester was obliged to use the other Act.

Adv De Lange said that this was not correct since the requester could choose under which Act he would be applying for such information. He would therefore have both options. He said that if there are two ways of giving access, then both ways should be allowed. The way this would be done would be by the Minister including such an Act (for example, the Companies Act) in the Schedule to the Act.

Chapter 2 Publication and Availability of Certain Records
Dr J Delport (DP) advocated against the "must" in Option 1 of 54(1). Option 2, suggested by the DP, used "may" instead. He was opposed to the idea of it being obligatory for all private bodies to produce a manual.

Whilst he agreed with limiting the application of 54, the Chair felt that the way to deal with this should be through regulations which would exempt all one-person practices and firms with fewer than a certain number of employees from having to produce manuals.

He said that whilst "Right and Manner of Access" would stand over for the subcommittee to look at, Clause 56 (Right of Access to Records of private bodies) had to be looked at since it was central to the test of when one is allowed access to a private body’s document.

Chapter 3 Right and manner of access
Clause 56 Right of access to records of private bodies
Adv De Lange favoured Option 1 which merely re-stated the Constitution - "that the record is required for the exercise or protection of any rights." He said that while the other options all created other tests, this option created an enormous hurdle up front for a person to overcome even before the exemptions are applied. Previously 56(1) had been included as part of an exemption. It had been decided by the members previously that the exercise or protection of a right could not be part of an exemption.

He said that 56(2) was also very important.

It was pointed out by Mr Smith that whilst Option 1of 56(1) was a restatement of the Constitution, he could not understand why the Constitution spoke of "any rights" whilst the interim Constitution used "their rights".

The only reason Adv De Lange could think of was to facilitate the access of trade unions to records of employers in order to be able to protect the rights of their members. The changing of "their rights" to "any rights" could only be because the trade unions would, strictly speaking, not be dealing with their rights but their members’ hence the inclusion of "any rights". This was in fact not even necessary since a trade union had locus standi to represent employees and thus even if "their rights" had not been changed to "any rights", the issue of locus standi would solve the problem.

Mr Smith wanted to know whether there had to be any reference to a person where someone else made an application on behalf of that person. In other words he wanted to know whether one person (A) could go directly to another (B) to protect the rights of (C) without (C) even knowing about it.

Adv De Lange said that this was possible in the light of how the Constitution stood. The third party (A) would however have to prove the exercise or protection of (C)’s rights. The drafters of the Constitution should simply have relied on the locus standi issue to solve this. They should not have widened
"their rights" to become "any rights" since this would open the door for illegal access to other’s rights where an outsider(A) fraudulently manages to prove the exercise or protection of (C)’s rights.

Ms Chohan Khotha wanted clarity on whether "any person" in 56(1) also included juristic persons. This question was not answered.

Clauses 57-63 would stand over for discussion by the subcommittee led by Mr Mahlangu on Monday 17 January.

Chapter 4 Grounds For Refusal Of Access To Records
Clause 65 Manadatory protection of privacy {of third party]
Adv De Lange said that as far as the options for 65 went, the consensus in previous discussions was for Option 2 for 65(1). 65(4)-(6) should be deleted pursuant to 63A replacing it. Adv De Lange asked whether there were any further amendments members wanted to suggest for 65(1),(2)or (3) which had not been done under the public bodies.

Mr L Lever (DP) said that this dealt with the mandatory protection of privacy. In the past when the Bill was originally published, if one looked at the old 58, there was an up-front prior consent to disclosure of information. This was a valid point to consider since there was a whole industry now marketing information. However what was provided in 65(2) was that only once a request was made, did one have to get consent in terms of 74(3)(b). He suggested that the old 58 be looked at and a provision had to be made for it.

Ms van Schoor said that this 58 only related to the use and disclosure of information by a private body or a governmental body. Thus it was actually a protection of privacy that prohibits a private body to disclose information. This was not the case where someone requested information from them in terms of this Act. Rather it was the case where they had personal information with them and for example Standard Bank comes and asks them for such information. That 58 did not even refer to the access clause for private bodies because there was a "private body access clause" for personal information which was not even referred to. That 58 only related to the use and disclosure of information (not in terms of a request for access in terms of this Act) but a general use and disclosure of that information. This would be dealt with in the privacy legislation.

Mr Lever said that whilst it was agreed that this should be in the privacy legislation, there was still a concern with regard to the growing importance of information. Information is being actively marketed and, for example, what the finance houses contemplate doing is that they want you to consent upfront to the accessing and use of certain personal information held by them. The privacy issue had been taken out because privacy legislation was on the cards, but a transitional arrangement was needed.

Adv de Lange asked Mr Lever whether 65(2)(a) did not cover his concern.

Mr Lever said that this dealt with consent once a request had been made. In the modern technological age, information is bought, sold and exchanged without there actually being a request. Certain individuals that run this type of industry had expressed the concern that the way this section was worded (mandatory protection of privacy of third parties ) would preclude them from carrying on that trade even if they have up-front informed consent. This was a major growing industry and Parliament would probably take some time to come up with a Privacy Act. In the meantime there was a lack of clarity.

Ms R Taljaard (DP) said that if one considered that these companies often shared information banks and people would then get prompting e-mails asking whether they were interested in certain marketing menus or certain products. This was a whole industry, which could also potentially be excluded here because the initial sharing of that information bank is built up and there is no initial consent there. In terms of the privacy issue, this would certainly be a big issue in the privacy debate.

Adv De Lange wanted to know whether there was a specific word describing what these finance houses, for example, wanted. He said that this issue should be flagged and Mr Lever should come up with a technical way of capturing what was needed to ensure that the obtaining of prior consent in respect of personal information would only entitle the use of a limited part of the information.

Dr Delport said that he did not see Options 1 and 2 as two alternatives in the sense that whilst there was agreement that work had to be done on a Bill that would define privacy, until such time the protection of privacy could not be thrown out of the window. One could not equate personal information about a person with the right to privacy because personal information was but a minor aspect of the right to privacy.

Adv De Lange said that in both options there was in fact the inclusion of the protection of the privacy right. In option (1) an "unreasonable invasion" was a higher test than the weaker test in (2) of "unreasonable disclosure". Option 2 does refer to "personal information" which is defined extensively elsewhere in the Bill.

Dr Delport said that privacy was not primarily about information – it goes way beyond that.

Adv De Lange said that this would be in a Privacy Act. This Act was only dealing with information – in this case the information of a person who is on record.

Mr Smith proposed an amendment to the definition of personal information to include information dealing with an individual's preferences, interests, activities and so on.

Ms Taljaard (DP) proposed that since there was an interim period where there would not be a privacy law, Option 1 should include " if its disclosure would constitute an unreasonable invasion of privacy of an identifiable person including personal information as defined…". Thus Option 1 and 2 would be combined to cover both bases in the absence of a privacy act. The DP wanted this included as an option.

Adv De Lange noted that in this Act "privacy" was used loosely since it always amounted to information about the person. This was not privacy but an aspect of privacy. He said that Ms van Schoor should include the DP’s suggestion as a third option both in the private and public spheres.

Clause 66 Health of the Requester
As with the parallel clause in public bodies, this clause now also fell away.

Clause 67 Mandatory Protection of Third Party Commercial Information
As there was no disagreement to Adv De Lange suggestion that many of the changes made in the corresponding public bodies clause would fit in here, similar amendments will be done here.

With regard to Clauses 68, 69, 70 and 71, the amendments made in the corresponding public body provisions would also apply.

Clause 72 Mandatory Disclosure
Adv De Lange said that this was the override in the private sphere. At first he could understand that in relation to private bodies the test here could not involve the "public interest". However, after looking at Option 2, the criteria used in (a) namely "serious contravention of or failure to comply with the law… serious public safety or environmental risk" appeared to be closely enough linked to "public interest" to include "public interest" as a general criteria for a third option in line with a suggestion by Mr Smith.

Clause 72A Adverse Effects
This clause was suggested by the DP. Adv De Lange was opposed to it. He said it out-did every exemption. What it amounted to was that even when one complied with the exemptions, if there was an adverse effect in granting the information in relation to another person, then this right of a third party would outweigh the right of the requester and the information would be refused. He opposed the fact that another person’s right could take precedence over the requester’s even once the requester had complied fully with the exemption. It was nevertheless there as an option.

Adv De Lange said that third party notification was also procedural and would be discussed by Mr Mahlangu’s working group. This small working group would discuss the procedural areas on Monday 17 January 2000 in order to pinpoint the contentious issues. The committee would then look at the areas where there was disagreement. The Committee also still had to discuss the enforcement mechanisms, which they would start with on Monday. The meeting was adjourned.