Revised Bill: discussion

Meeting report

JOINT ADHOC COMMITTEE ON THE OPEN DEMOCRACY BILL
13 January 2000
REVISED BILL: DISCUSSION

Relevant document:
Revised Working Draft "Open Democracy" Bill, dated 11 January 2000 (OPD 96)

SUMMARY
Morning session
Clauses 9 through to 14 and Clauses 32 (2) to 34 in the revised Bill were discussed. As everything from Clause 16 through to Clause 32(2) was a procedural matter, a sub-committee consisting of one member from the ANC, the DP, and the IFP will look at these clauses and see if there are any changes they want made.

Afternoon Session
The committee continued to look at the exemptions in the Bill. Much debate occurred on the health requester’s access to medical records. It was decided that this controversial issue would not be dealt with as an exemption. The need for an extensive law on privacy was exposed since it was clear that the Bill could hardly deal with all aspects of access to information, some needing regulation elsewhere. Only minor adjustments to the options were made by members who, for the most part, seemed content with the various options available.

MINUTES
Morning session
Adv de Lange (ANC) called for the full participation of all members in the meetings, and hoped they could move quickly through the remaining draft. The Chair asked for the members to move away from "persuading each other", and rather focus on the finalizing of options.

CHAPTER 1 APPLICATION (continued)
Clause 9: Application of other legislation prohibiting or restricting disclosure
From yesterday's discussions Adv de Lange stated that Ms van Schoor was asked if the issue of fees outlined in 9(2) constituted were "materially inconsistent." The Chair believed that the term "materially inconsistent" should not cause any problems, however, it was generally agreed that 9(2) could be omitted as it was unnecessarily detailed. Adv de Lange stated he was in favor of Option 1.

Mr Lever (DP North West): What determines the difference between "prohibit" and "restrict"?

Adv de Lange replied that it was a question of degree.

Mr Lever (DP North West) suggested that "prohibits" and "restricts" should be separated in section 9(1). The Chair responded by reminding Mr Lever that this Act has to be applied to the officials, but said another option could be added to separate the two words.

Ms Chohan-Khotha (ANC) felt that the new wording would limit the extent that the exemptions would cover. She raised concern that the courts would need a test to see whether this Act would "trump" other legislation.

The Chair said that this law will amend past legislation, and need to bring it in line with the constitution.
He further stated that whilst "restricts" and "prohibits" are different, the term "materially inconsistent" covers them both, and so it must be a concern for the courts.

Clause 10: Application of other legislation providing for access
Adv de Lange stated that Option 1 was too problematic. The Chair raised the question as to whether it was a supplement or an exclusion. It was agreed that it was a supplement. He articulated that this clause 10 must incorporate three points. First, if legislation appears in a schedule, then access can be granted, secondly, that if legislation is not listed in the schedule, a test may be applied to see if the legislation is "more onerous". Thirdly, that Ministers must make available a list of all available legislation.

Ms van Schoor pointed out that the Adv de Lange's third point was included in 92(2) Part 6, Transitional Provisions of this bill.

Adv de Lange stated that this clause must establish a limited schedule supplement to get information, a procedure as set out in 92(3) whereby Ministers must obtain information from their departments, and an interim of one year where Acts that do give access are applicable if they are less favorable than this one.

Mr Lever (DP North West) believed that Options 1 and 2 were not worthwhile, but suggested a hybrid of Options 3 and 4 with an exclusion.

Ms Chohan-Khotha (ANC) said that there were substantial differences in the meaning of the words between Options 3 and 4. Adv de Lange agreed, and said that it was the concepts of the two options that must be combined, not specific words.

Concern was raised over NEMA (National Environmental Management Act). The Chair said that NEMA will be put on the schedule as a "supplemental remedy."

Clause 11: Act not applying to records required for criminal or civil proceedings after commencement
Mr Jeffery (ANC) raised the question of when exactly do criminal proceedings actually "commence"?
Adv de Lange believed that it would be when the actual charge was laid against an individual.

Mr Jeffery (ANC) was concerned over the phrasing of 11(1), and asked if criminal proceedings could be separated and look at it under exclusions.

The Chair said it would be problematic to remove criminal proceedings, and that there is no need to split up civil and criminal proceedings.

Ms Jana (ANC) agreed with Mr Jeffrey. She argued that at first the discussions started with "discovery", but since the Bill intends to include more than discovery, she asked for it to be dealt with separately.

The Chair stated that both criminal and civil proceedings must be dealt with together.

Clause 12: Right of disclosure of record to which access is given
Adv de Lange stated that he felt that clause 12 was unnecessary to include in this bill as it would influence and undermine patent and copyright laws. Ms Chohan-Khotha (ANC) asked for clarity on this matter. The Chair expressed concern that if this bill allows a person access to information, and then other laws define restrictions on the use of that information, it may raise questions of constitutionality.
It was decided to omit clause 12 from the Bill (Option 3).

CHAPTER 2 PUBLICATION AND AVAILABILITY OF CERTAIN RECORDS
Clause 13: Manual on functions of, and index of records held by, governmental body
Primarily, Adv de Lange said that clause 13 would be returned to at a later date as it was a procedural matter, however it was agreed upon that 13(1) would be deleted.

Some members expressed concern over which languages the manuals would be written in. The Chair said that the main guide will be written in all eleven languages, and noted that 13(2) states "in at least two official languages".

Clause 14: Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}
Mr Jeffery (ANC) took issue with the wording "the kinds of records" in 14(1)(a). He said that it would be preferable to make a provision for listings. He also called for a provision to update rather than the republishing of the manuals. The Chair agreed. It was decided to change 14(1) from "...submit to the Minister a list which-" to read "...submit to the Minister an amended list which-"

CHAPTER 3
RIGHT AND MANNER OF ACCESS
Clauses 16 to 31
Adv de Lange said that this Chapter dealt with procedural matters and requested that a sub-committee be created under Co-Chair Mr Mahlangu (ANC, Mpumalanga) consisting of one member from the ANC, the DP, and the IFP. He asked that those members be ready by Monday to approach Mr Mahlangu about any changes they want made.

Chapter 4: GROUNDS FOR REFUSAL OF ACCESS TO RECORDS
Clause 32: Mandatory and discretionary grounds for refusal, and interpretation
Ms Jana (ANC) raised concern over the wording "permitted to be refused" in 32(2). Mr Jeffery (ANC) suggested inserting "must" or "may be refused". Adv de Lange asked Ms Van Schoor to look into it.
Mr Jeffery (ANC) queried why the phrase in 32(2 )"in terms of which a request for access to a record is required or permitted to be refused" is repeated in 32(2a), and 32(2b). The Chair also asked Ms Van Schoor to look into that.

Clause 33: Mandatory protection of privacy {of third party}
Mr Masutha (ANC) asked whether "unreasonable" in 33(1) would open up privacy laws to a new test of reasonableness?

Adv de Lange replied that one does not want to limit privacy laws in this Bill, but noted that it is a discretion of reasonableness with relation to third parties.

Dr Delport (DP) called for some sort of measure for information officers to "weigh up" the possible adversities of providing certain documentation. The Chair stated it was necessary to look at it more thoroughly.

Mr Smith (IFP) inquired about employers who were seeking information, such as on job performance, on possible employees. He said that employers must have access to this type of information.
Adv de Lange noted that the Bill does not restrict the applicant from attaining information on himself. The employer would have to ask the applicant to produce those documents.

Afternoon Session
Chapter 4 Grounds For Refusal Of Access To Records
Clause 33 Mandatory protection of privacy {of third party}
In clause 33(1) Adv De Lange suggested that "unreasonable" be kept in both options. In 33(3) Adv De Lange said that the word "personal" would come before "information" in the last line.

Mr M Masutha (ANC) said that as a possible option under 33(2)(c)- Option 2 he wanted "under the care of the requester" to be expanded a bit to include someone who had an interest in the well-being of a person.

Adv De Lange said that he was nervous to go into situations where someone was not under your care. If someone starts asking for documents about a person, one should only be entitled to them if one looks after and cares for the person. If one is not caring for the person it would become tenuous since really anyone would be able to access the documents or information.

Mr J Cronin (ANC) raised the following instance: if an old woman stumbles out of an old age home in shocking condition and an interested person wants access to her medical records immediately to determine whether the authority taking care of her was neglecting her and to avoid those records being destroyed - this would not be allowed under this Act.

Adv De Lange said that one could not use this Act to solve the real problems which existed in other areas, otherwise the Act would never be passed. Particularly in light of the fact that there was no law on privacy yet, this Act was there just to have the minimum on which people could get by.

Ms P Jana (ANC) agreed with the chairperson that the valid concerns of Mr Masutha and Mr Cronin could not all be dealt with under this Act. In the committee’s resolution when it tackled the whole area of privacy, it had to be noted strongly that an audit of all affected Bills had to be done with a view to bring them in line with the Act.

Mr P Smith (IFP) said that in terms of the Termination of Pregnancy Act, a minor can terminate her pregnancy without informing her parents. In Option 2(c) of 33(2), it seemed as if a record may not be refused to a parent in terms of the child’s health. This would surely allow access to the record of the pregnancy which would not be allowed under the Termination of Pregnancy Act.

Adv De Lange said that it would still depend whether the giving of such a record was in the individual’s best interest and if there was legislation (for example the Termination of Pregnancy Act) which said that you should not give access, then this would help the official very much to say that it was not in the child’s best interests to give the information. He said that the funny thing about this clause was that it was an exclusion from the exemption (being Chapter 4: grounds for refusal of access to records) and there is also a test before you can apply it.

He said that his worry was not really Mr Smith’s example but rather where a father rapes his child and then wants access to her medical records. He however felt that once again the "child’s best interests test" would prevent this until one had a full privacy law dealing with these issues.

In Option 2 for 33(1) Adv De Lange noted that 2(aA) was the previous "library clause".

For 33(2)(c) Adv De Lange said that Option 2 had been chosen.

In terms of (d) he said that this was dealt with already and in terms of (e) the members simply had to decide to omit or keep (iii). Secondly they could also as an option omit (e) completely.

Clause 34 Health of requester
Clause 34 which was previously an exemption clause was then looked at. Ms Van Schoor had drafted clause 29A as an alternative to 34. Here, instead of being dealt with as an exemption, if in the opinion of the information officer after consulting with a medical practitioner, he decides that the record would harm the health of the requester then he must provide for some counselling before the record is released. Thus it is not an exemption since the record is not refused.

Adv de Lange was optimistic about 29A since the general exemption of medical information was eliminated and only if there was harm or serious harm, would there be possible counselling before releasing the information. Not all medical information would then fall under an exemption.

This would thus be an alternative option whilst 34 would still be kept to keep all medical information under an exemption.

Ms van Schoor pointed out that Option 2 of 34 contained the deletion of the limitation to exclude records provided by health practitioners. Secondly members could choose to include or exclude the fact that the release of that record is prohibited by other law. Thirdly the issue of the requester nominating someone to form an opinion whether to disclose or not. Finally In Option2 (3) a clause was included to the effect that even if harm would result if the request was granted, if counselling would prevent the harm and there was proof of the counselling then the information had to be released.

Mr Smith felt that everyone had an intrinsic right to the information whether it would harm them or not. There should not be any discretion to refuse it. How one deals with this subsequently is a separate issue and there may be merit in there being some form of counselling if there was a view that access to the information could damage you psychologically. Option 1 – which says that an information officer "may" refuse is therefore not acceptable at all. He preferred Option 2. He also favoured putting this section closer to the front of the Act as opposed to it falling under the exemptions generally.

Adv De Lange wanted to know Mr Smith’s and Ms Chohan Khotha’s view on 29A which did not treat this as an exemption. Mr Smith said that it made more sense. [Both Mr Smith and Ms Chohan Khotha had been against the draft of this clause as it read in late 1999].

Ms Chohan-Khotha (ANC) agreed and said that it was a procedural matter now rather than an exemption. It was not entirely problem-free. The first loophole was that a "personal requester" could nominate somebody else to get the information for him or herself. She said that the way the Act handled this was by saying that if the nominee could not handle the information he was accessing then he should go for counselling!

She said that this issue of accessing medical records had to come out of the chapter on governmental bodies and had to be a general provision for both governmental and private bodies. She still had not heard from the Medical and Dental Council in regard to what the position was regarding their policy on patients’ access to their medical records. She was however sure that patients were generally entitled to them whilst, in the case of terminal illnesses, doctors would use their discretion to decide whether the person could handle the news or not. The doctor would be at a crossroads since he has a duty to see that the person is in fact treated but as long as the person does not know about the illness he cannot be treated. Whilst this was a difficulty the doctors had to sort out this problem in terms of their own code and she was happy to leave this status quo.

If it was true that patients had an inherent right to access their medical information then this would be the first place where such a right would be restricted. Where there was conflict between this Act and others which also restricted this right then this Act would apply. Where other law made such information freely available it would prevail over this Act. She felt that in the light of this she had no problem with the regulations of the Medical and Dental Council having to be subject to this Act where it was more restrictive but prevailing over the Act where it was less restrictive.

Mr Smith felt that the Bill had to state categorically that one was entitled to one’s medical records.

Adv de Lange said that it was not really possible to do this since this entitlement to medical records was subject to all the other exemptions in the Bill. That is why this was just a mechanism to delay the handing over of the document. It does not deal with your right to have it or not. This right had to be read in a range of other places in the Bill since we do not have a law on privacy.

Mr Lever (DP, NCOP) referred to 29A (3a) and said that whilst he saw the need for counselling he felt that where a person’s condition was such that he needed counselling which could not be offered at normal hospitals it may not be viable to provide it in some cases but this did not remove its need. Therefore the "counselling" issue was creating a threshold which in some situations would conceivably not be met. Where counselling would not be available, he suggested that perhaps the next of kin should be given the information and perhaps as a family member, he could provide or arrange for some kind of suitable counselling.

Adv de Lange said that this suggestion would warrant a slight change to 29A( 3a) to include a provision for the situation where there no counselling was available (for example, a rural area) but where a family member knew the problem and could deal with it. Thus something like : "to have made other suitable arrangements" had to be added to "provision is made for counselling".

Mr Masutha observed that the introduction of the principle of having counselling (where it was needed) before actually giving information was necessary.

Mr Cronin suggested that the "must" in 29A be changed to a "may".

Mr Smith was concerned with the words "on behalf of the person" in 29A (3a). For clarity he wanted to make sure that one could not go behind someone’s back and request information of that person "on behalf of the person".

Adv de Lange said that "on behalf of the person" meant that one either needed permission from the person or legally you were entitled to act on the person’s behalf.

Ms Chohan Khota suggested the deletion of 29A(a) which made it possible to consult, for example, a radiographer who "carries on the same kind of occupation as the health practitioner who provided the record".

Adv De Lange wrapped up the discussion by saying that this section would be subject to section 16 as well as the equivalent section in the private sphere and would in no way retract from a person's right to have the document. In 29A(1) "harm" would be "serious harm", 29A(a) would be removed, and "must" would be "may". In (3) the test would be "likely to cause…", "adequate" provision would be in and finally Ms van Schoor would look for some wording to the effect that there could be some other appropriate alternative to counselling – Mr Lever’s point. 33(4;5 and 6) will be deleted. Exemption 34 would also be deleted. Clause 29A would become a general clause and would not just be for governmental bodies.

Section 35 Mandatory protection of third party commercial Information
Adv de Lange read out the various options for 35(b) and (c). For (d) there were also 3 options. He said that Option 3 should in fact reflect that it was applicable to (b) and (c). He asked for members’ preferences in terms of options for (b) and (c). Mr Smith proposed Option3. There was no other discussion on the options for (b) and (c). Adv De Lange said that the options were all there and ready for people to vote on.

In terms of (d) Adv De lange said that Option 1 was not really supported. Imam G Solomon said that Option 3 was redundant since he felt that it was included in Option 2. Adv De Lange tended to agree with him but said that the tests applied were different in that Option 2 had a higher test.

Ms Van Schoor said that 42A was drafted as an alternative to 35 (1) (d). 42A therefore was another option. Mr Lever supported 42A but said that in the introductory paragraph, "may" had to be changed to "must" or at least there had to be an option to do so. Adv De Lange supported Option 2 in 42A to replace (d) of 35.

Adv De Lange then moved to 35(2), (3) and (4) and read out the amendments. He wanted to know whether 35(2)(c) was in fact needed since he felt that the override in 45 would deal with this issue. However there were no comments on these amendments.

Section 36 Records supplied in confidence
Adv De Lange read out the various options under 36 (1) and (2). He said that in relation to a breach of confidentiality, our law did have at least two remedies according to Amlers, namely an interdict and a claim for damages. Important considerations in this regard were: the relationship between the parties which was vital; the defendant’s knowledge of the confidentiality; and damages. Whether or not this was relevant to the concept of a "breach of a duty of confidence was not certain. The test included in the various options made it clear that one could not simply rubber stamp a document to reflect that it is confidential. He wondered if these tests were sufficient or whether more grounds, perhaps like those read out from Amlers, should be included as well.

Adv De Lange said that 36(2) was problematic in that it made it possible in a tender situation, for a tenderer to have access to the tender information of other tenders. This, in terms of 36(2) cannot be refused.

Mr Smith said that 43 (1)(b)(ii) would prevent this from occurring.

Adv De Lange said that there were two reasons 43 (1)(b)(ii) did not apply here. Firstly 36(2) applied to third parties while 43 (1)(b)(ii) applied to the government structure itself. Secondly an advantage, grant or permit was not a "contemplated policy " stated in 43 (1)(b)(ii). He felt that 36(2) was misplaced and he supported Option 3 which substituted 36(1) and (2).

Ms Chohan Khotha said that 36(2)(c) dealing with consent was necessary to be included.

Adv De Lange agreed to keep it. Thus as an option there would be a sub clause 2 which allowed for consent. He said that 36(2)(b) also had to be added which dealt with "publicly available". The clause had to be a separate exemption.

He moved on to section 36(3) dealing with tax-related records. He said that members generally preferred Option 3. There was general agreement on Option 3, which would also be a separate exemption with a separate number.

Section 37 Mandatory protection of safety of individuals, and protection of security of structures and systems or property
There were three options to Section 37. Adv De Lange said that the only difference between Option 2 and 3 was that when it came to the endangering of life and physical safety, in Option 2 the officer "may refuse" whilst in Option 3 he "must refuse" it. He inquired as to members’ preferences.

Most opted for Option 3. He then asked whether the wording should be "reasonably expected" or "likely" in relation to (a) and (b). He thought that (a) would be "likely" and (b) would be "reasonably expected".

Mr Schmidt (DP) said that with (a) which dealt with endangering life, a lower test was needed and therefore the tests should be turned around.

Adv De Lange agreed and said that in fact in both (a) and (b) there should be the lower test of "reasonably expected". He pointed out that Ms van Schoor had left out the opening line and a half in (c). He said that she should scrap the original clause and Option 2. Members who voted for Option 3 could then simply choose between "could reasonably be expected" and "would be likely". This concluded the meeting.