Grounds for Refusal of Access to Records

Meeting Summary

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Meeting report

13 December 1999

Relevant Documents
Grounds for Refusal of Access to Records : Revised Draft of Chapter 2 (OPD92)

Clauses 28 – 31 were discussed in relation to the various options added to this draft (OPD92) of the Bill. There was strong motivation to eliminate the "summary clause" – Clause 28 which attempted to distinguish between mandatory and discretionary grounds of refusal. Section 29 (5) –[actually 30(2)] was extensively debated with regard to doctors’ ethics, and patients’ rights to their "personal information".

Section 32 dealing with records supplied in confidence, specifically with regard to tax returns, still needs much research before the committee is confident with its principles.

Morning Session
The Chairperson Adv J De Lange opened the discussion by referring to s28 of OPD92 dealing with the exemptions in relation to governmental bodies.

Section 28 Mandatory and Discretionary Grounds For Refusal
Adv de Lange said that this was a type of summary clause. There was nothing new in 28(1). S28(2) was new and seemed to be the same clause as that included under private bodies – which said that if one falls under one exemption you are not excluded under any other exemption. He invited comments on 28.

Ms Chohan-Kota (ANC) felt that a Summary clause like S28 which dealt with mandatory and discretionary grounds for refusal was a bit misleading and unnecessary. She said that the exemptions could alone and S28 would possibly just lead to anomalies, for example, in relation to S41(1) and 34.

Ms D Smuts (DP) supported Ms Chohan-Kota. She felt that if it was possible to do without the clause and it should be removed.

Adv de Lange said that the clause could possibly go out. He asked the drafter that a second option, that would delete this clause, be added to the next draft of the Bill.

In answer to a query, Adv de Lange explained that 28(2)(b meant that if an exemption did or did not apply in one place this would not affect the wording or the exemption in another place. The exemptions were all independent of each other and applied in their own right.

Mr J Jeffery (ANC) and Mr P Smith (IFP) had problems with the wording of S28 and found it difficult to understand how 28(1) related to 28(2). Work was needed on these sections in Mr Jeffrey’s opinion. Adv de Lange felt on the other hand, that whilst the language used was not the easiest, the legal principles were clear enough.

Section 29: Mandatory Protection Of Privacy
Adv de Lange said that this had been discussed extensively in the private sphere already. He said that in option 2, whilst certain changes had been made, the issue of the "record" still needed to be changed. Ms Van Schoor would provide two other options in this regard.

Adv de Lange asked Ms Van Schoor whether the heading should not rather relate only to third parties.

She said 29(5)-(7) dealt with the health of a requester and did not deal with third parties.

Adv de Lange said that the option to make the heading Mandatory Protection Of Privacy of Third Parties should be included as an option in case it was decided to exclude 29(5)-(7) from S29.

Adv de Lange said that 29(2) was differently worded in this draft to make sure that it did not exclude other exemptions. Only in terms of section29(1) could access to a record not be refused. In terms of the other exemptions access to a record, could be refused.

Under section 29(2), option 2 had (a) and (b). Ms Chohan-Kota said that (a) was covered under (b). Adv de Lange disagreed. He said that (b) involved a special procedure to be followed regarding consent. It could be that the substance of (a) was applicable to a consent clause but it would not be applicable to (b), since (b) was where one asked a third party to comment.

Adv H Schmidt (DP) felt that (a) and (b) had to be separate. The two options included for (c) were briefly discussed.

Adv de Lange said that (d), in relation to the information about a deceased person, had to be limited to a person deceased for no more than 20 years.
In this regard the definition of "next of kin" was set out in two options.

With regard to 29 2(e)(i) the concern was raised in relation to the definition of a governmental body. Adv de Lange spoke about the previous discussions around the definition of "organs of state" and section 239 of the Constitution. An option not yet completed in the light of this debate was to make a "governmental body" to be the equivalent to an "organ of state". There was still controversy around this, which would have to be solved by the courts eventually.

Section 30 Health of Requester
Section 30(2) was practically a duplication of 29 (5) and all reference to 29 (5) automatically includes 30(2).
In relation to 29(5) Adv de Lange said that it was not dealing with third party requests but one's own personal requests and thus he felt that under the original Act it was under section 30 and that is where it belonged. S29(5) was the only exemption in the Bill directly dealing with an exemption involving a requester's personal information.

Where people are terminally ill or had mental problems, the absence of 29(5) would mean that, if such an ill person requested information in connection with their illness, they would automatically be entitled to be given such information immediately and without any questions. Thus Adv de Lange did not want it scrapped but moved to S30. S29(5) created a "little bit of a buffer", which allowed a doctor not to have to hand over a report to such a patient immediately. He could possibly arrange for the family to be called together instead to inform them that the person is terminally ill.

Adv de Lange stressed that he was not against people having access to information about their health. All he was saying was that people should not be able to demand immediate access to such records despite the possible consequences.

Ms Chohan-Kota however felt that the clause was making it possible, where two doctors’ opinions concur, to refuse to give personal information to a patient. If this information was going to be refused it had to be shown that its revelation would cause serious, material, almost inevitable harm in her opinion. The way the clause was currently worded it would apply to all medical information.

Adv de Lange said that there was in fact an enormous protection in the section in that the doctors involved would be the doctor who treated the patient, and a second doctor nominated by the patient. The other point was that the test in the section was high in that there had to be a likelihood of serious harm to his or her "physical or mental health, or well being" should the information be revealed. He said that the test was not as low as Ms Chohan-Kota was stating it.

Ms Chohan-Kota took the point but added that this personal information was more personal than the "personal information" dealt with before and thus the test had to be higher. A test had to be placed early on regarding the information going through the process. All medical information could not be subject to this process. One of the dangers of this section was that doctors may use it to refuse to give detailed medical reports which they hate doing and which they are constantly asked to do by attorneys for example.

Adv Swart (ACDP) asked whether, if many doctors were doing this, the section 44 override would not kick in – under mandatory disclosure in public interest.

Mr P Smith wanted Adv de Lange to put this clause to the Medical Council for their comment. Ms D Smuts agreed and said that the committee was busy with an area, which they were not sufficiently expert in. They should approach Groote Schuur’s Medical Ethics group, which was started a few years ago, and ask them for their opinion.

Adv de Lange felt that there had been ample opportunity for consultation. The Health Department had had no problem with that clause when they gave their input. There was no input from doctors. It was too late to approach people for input. If the committee wanted to scrap the provision they had to bear the consequences. If they wanted to change it they had to come up with alternatives. The clause was common in other established jurisdictions.

Ms Jana wanted to know what "well being" meant in the clause.

Secondly the stage at which a requester nominated someone to represent him was not clear.

In relation to the second question Adv de Lange said that this would occur when a doctor wanted to use the section to refuse to give the record.

Ms Jana also felt that there were possible ethical concerns.

Adv Schmidt (DP) said that in section 77 of the Criminal Procedure Act there was a similar process in terms of which, if a person did not agree with the report of a psychiatrist then he could ask for a second opinion. He found no real ethical problems and simply indicated that the process was comparable to other sections of our law.

Adv de Lange summed up by saying that there were four options:
To keep 29(5)-(7) under the privacy option
To have a separate option.
To delete 29(5)-(7).
A possible re-worded option

Under 30(3)&(4) there was nothing discussed.

Section 31 Mandatory protection of Third Party Commercial Information
Three options have been added to 31(1)(b) and two options added to (d)&(c) as a result of previous discussions.

S31(2) was the exclusions from the exemptions. The first one was consent. S31(3) dealt with 2(b) and 31(4) stated what it did not apply to.

Adv de Lange said that the committee did not have to look at the options and motivate which to choose. All they simply had to do was to check if the wording was correct and whether the options captured all the possible amendments which were needed.

Mr P Smith wanted to know whether this clause related to information "of" or "by" a third party.

Adv de Lange said that this would be one of the options according to 31(1)(b).
"Of" would make it much wider.

Afternoon session
Section 32 Records supplied in confidence
Although changes to Section 34 (relating to police investigations) help solve certain problems with this section, the Chair concluded that he is not confident that the principles have been sorted out. The second clause opens it up too wide. He believes that there is still lots of work necessary for this "confidentiality clause".
The phrase "in confidence" needs looking at. Adv Schmidt (DP) advised looking at Amler's Legal Precedents regarding breach of confidence action.
The right wording still needs to be found with regard to excluding South African Revenue Services (SARS). For tax systems to work, there has to be a high degree of confidentiality. SARS has requested full exemption but the committee wants to protect only personal information.
The Prevention of Organised Crime Act needs also to be protected from this clause/Act and the Chair asked Ms van Schoor to look into this.

Section 33 Safety of individuals and security of structures and systems
Three options are now provided. One option clearly distinguishes between people on the one hand and structures and systems on the other hand. Further, discretion still exists regarding access to records dealing with structures and systems (ie "The information officer...may refuse...") but it is mandatory to refuse a record when an identifiable person's safety is in danger (ie "The information officer...must refuse...").
The DP suggested that Section 33 (a) might fit better under Section 34 dealing with Law Enforcement.
On considering who would fall under Section 33 (a), it was decided that it did not only deal with the law enforcement arena (information on informers and witnesses) but could also apply , for example, to the security plans detailing the protection of visiting VIPs. The rest of the committee had no conceptual problem with the clause remaining here.
In addition to structure and system, pattern/mode of transport and, optionally, network will be added to Section 33 (b).

Section 34 Law Enforcement
This section is regarded as very important as it must not ultimately be used to defeat the ends of justice. It has changed quite a bit since the Public Protector submission and now includes not only offences but also "possible contraventions of the law".

Subsection 34 (1)(b) stipulates until when one is able to refuse access to a docket. As a result of the Tshabalala case, once the State has concluded its investigations and is ready to go to trial, the defence may receive the docket.
However the wording "the prosecution of an alleged offender is …..about to commence" was deemed problematic as this would mean that the defence would have no time to prepare its case. The Chair proposed a change to the wording so that refusal of access to the docket would not be linked to the commencement of the trial but rather to "while the investigation is in progress".

[The Chair noted that the new bail law (whereby the docket is excluded from the bail proceedings) had recently been found to be constitutional. Only once the investigation phase is over, is the accused able to have access to some of the information in the docket and the disclosure clause will apply.]

Ms P Jana (ANC) and Ms D Smuts were concerned about the provisions in subsections 34 (1)(c) (iv) and (vi) as they believed that in these circumstances (access to the record would result in the commission of an offence / deprive a person of a right to a fair trial), leaving this to the discretion of the information officer was problematic and hence refusal to access to the record should be mandatory.

Ms F Chohan-Kota also pointed out that Subsection 34 (1)(d) dealt with the sensitive area of witness protection and thus refusal to access such a record should not be discretionary but mandatory.

The Chair was loathe to give absolute discretion to the police and create absolute bars changing the wording from "may refuse" to "must refuse". With "must" there is an area where the police are overly security-conscious but he agreed that one had to err in favour of the individual’s rights. Subsection 34 (1)(d) would most probably need the wording to change to "must". However with dockets in subsection 34 (1)(b), such wording was problematic.

Mr Jeffreys (ANC) felt that subsection 34 (1)(c) was better as phrased as discretionary as there are grey areas unlike with witness protection.


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