Access to Records of Private Bodies

Meeting report

JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
9 December 1999
ACCESS TO RECORDS OF PRIVATE BODIES: DISCUSSION

Relevant Documents
Access to records of private bodies: second draft (OPD90c)

SUMMARY
Various exemptions found in Sections 16 - 24 in the second draft were looked at together with optional amendments there to. Technical concepts such as "trade secrets", "commercial value" "breach of confidence" were discussed in their various specific contexts in the Bill. New suggestions from members regarding further options and amendments, arising out of the discussions, would form part of a new draft. The constitutionality of the exemptions had to be carefully scrutinised since there was no doubt that they did limit the right to access information.

MINUTES
The committee deliberated on the second draft of this new section dealing with access to records of private bodies.

Definitions
The chair, Adv de Lange, indicated that an important principle was now reflected in the definitions clause of the new draft: a natural person is limited to those who carry out a "trade, business or profession". He added that "occupation" was not included as it would have made it too wide. Partnerships have been included to cover the lack of clarity on this concept. There followed a discussion on who is head of a partnership and it was evident that this would be a case-by-case determination.

There was a brief recurring discussion on the definition of "organ of state" when Mr Smith (IFP) suggested referring to governmental body as a public body. Adv De Lange accepted that this should be considered. He noted that the SARFU case had made the dichotomy clearer by emphasis on the functioning of the power - "whether they exercise a public power" - rather than the ownership of the power.

The definition for requester brought on a debate about whether governmental body should be included or excluded in this definition. The new draft provides two options – one including and the other option excluding governmental body as a requester. Section 32 (1)(b) of the Constitution states that everyone has the right to exercise/protect any rights. De Lange argued that the use of "everyone" includes government institutions. He believed government should not be excluded from the process of representing and protecting the broad interests of its citizens.

The DP and ACDP had fundamental conceptual problems with the notion that the state is the bearer of rights and they believed that governmental body should not be included as a requester. Adv Schmidt argued that horizontal and not vertical application was implicit in Section 32 (1)(b) because of the use of the phrase ‘any person’. "Everyone has the right of access to any information held by another person" meant that government was not included in this particular use of "everyone". Referring to section 7 of the Constitution Dr Delport (DP) argued that the state is not the carrier of any of the rights conferred by the Bill of Rights – it only has a duty to ensure these rights.

Adv de Lange believed that "another person" could also be referring to a juristic person such as the state. He said that "no one is saying that the state is the bearer of rights. De Lange argued that the deliberate use of the phrase "any rights’ in Section 32 (1)(b) of the Constitution made it broader than only the rights referred to in the Bill of Rights plus the sate would be protecting not their rights but "any" rights. He again reminded the committee that Section 32 was a unique right that does not exist anywhere else in the world granting the right to access information from the private sector.

Ms Chohan Khota (ANC) pointed out that the deliberate use by the drafters of the Constitution of "Everyone has the right of access to any information held by another person" rather than ‘Any person has the right of access to any information held by another person’ proves that the interpretation must go broader. In answer to this the DP referred to the inconsistent use of "everyone" in the Bill of Rights. For example, "Everyone has the right to have access to adequate housing" could not be interpreted to mean the state.

Adv Masutha (ANC) spoke of developmental fourth generation rights that applied to the collective rather than individuals. He also noted that Section 37 referred to the "life of the nation is threatened" as if it were a person. He believed that the state is the bearer of rights as it can acquire property and thus the state could protect its rights. He referred the committee to Section 8(4) on juristic persons being entitled to the rights in the Bill of Rights which he believed deserved some study.

Mr Lever (DP) warned against a wide interpretation of "any rights" as the state could then demand access to commercially sensitive information.

The Chair drew this extensive debate to a close by saying that it was clear that the political parties could not convince each other as they were arguing not only from a legal viewpoint but also from ideological differences. They would have to "agree to disagree" and that was why there were two options provided to cater for these differences.

With regard to the definition of third party, parties were asked to decide whether to waive the exemption "other than the requester or a person acting on his or her behalf"

Chapter One - General Provisions
The clause on private access clearly states the first hurdle that a person has to clear before being allowed access to records held by a private body. There are two options provided for in this clause but only the introduction varies in each option. Option 2 states that it is subject to this Part and allows you to obtain records that provide information about yourself. This clause provides a procedural barrier before the exemptions of Chapter 2 kick in.

Chapter Two – Grounds for refusal of access to records [or Exemptions]
Section 14 Interpretation
This clause means that if all exemptions are applicable, you can use any of them and you cannot be refused due to the mere fact that another exemption may deal with the matter. No one can interpret that one can use only one exemption.

Section 15 Mandatory Protection of Privacy
Ms van Schoor pointed out the new full definition of "personal information" now employed under Option 2 of 15(1). This comes from Canadian privacy legislation. As South Africa currently lacks privacy legislation, this definition has been put in here to clarify what "personal information" entails.

Looking at the definition of "personal information", the following points were noted:
- "a record" should be used and not "information" in 15 (1); that is, ‘ "personal information" means a record (delete information) about…..’
sexual orientation and disability should be added to the list in 15(1)(a).

Clauses 15 (1) to (3) do not apply to persons asking for their own personal information which is now dealt with separately in 15(4). By making this a separate provision it makes this dichotomy more clear.

Section 15 (2)(b) deals with already publicly available information. A query raised here was the concern about an unofficial leak of information. Once leaked would this put the onus on the head of the private body to release this information as it was now publicly available information. This issue was not discussed further.

The chair noted that a third party can still refuse permission for a requester to receive a record regarding the personal information of this third party even though it is already in the public domain.

Section 15 (2)(c) deals with private library collections to which access cannot be denied under certain conditions.

Section 15 (2)(d) now has the "who is under the care of the requester" in the body of the text and is not in the subtext.

With regard to duplication of meaning of the terms "cohabited" and "lived as if they were married" in Section 15 (3)(a), it was decided to delete "or with whom the individual cohabited". There was some debate around marital status. Prof Mabeta (UDM) objected to certain flippant remarks that were made in reference to polygamy. The chair concurred and asked the committee to be mindful of causing unnecessary offence. The chair wanted this subclause to be defined narrowly with regard to whom could give permission to access the records of a dead person. The co-chair Mr Mahlangu agreed that there needed to be some reformulation here and Adv de Lange asked the drafter to provide two options here, one narrow and the other wider.

Sections 15(5) is one example of where a requester’s personal info can be refused to be released by a private body. It pertains to records about the requester's "physiacl or mental health, or well-being". Many committee members felt that a person should never be denied access to personal information records. Adv de Lange believed that the clause merely served as a procedural block on immediate direct access to such records. He believed that there was sufficient protection of a person’s rights by means of the words "may refuse", by means of subclause 15(5)(a)(ii) plus the fact that the procedure involves not one but two doctors.

Afternoon session
Section 16 Mandatory Protection of Third Party Commercial Information
The various options were discussed. Option 2 combined clauses (b) and (c).
In option 1, to the words "would be likely" were added "or could reasonably be expected". "Disadvantage" became "unfair disadvantage" and "unfairly" was added to "prejudice".

With regard to 16(d) there were 3 options.

Mr P Smith (IFP) said, in relation to option 2, that (a) could be combined with (b) and (c) as well. He wanted to know whether the Option 3 (d) was phrased to include non-commercial information as well.

The Chair, Adv de Lange, said that this was not the intention. It had to be clearly spelt out that the commercial information of a third party was the issue being dealt with here. This was what the exemption was all about, so this had to be clearly indicated.

Ms van Schoor said that in relation to the concept of trade secrets in 16 (1)(a), there was no exact definition. She said that it was referred to in court cases. In one case the court pointed out that trade secrets in a broad sense was confidential information of an employer to which an employee may have access and it is of such a nature that the employee may never use it except for the benefit of the employer and which the employee remains bound to keep secret at all times after leaving that employer’s employ. Another case said that trade secrets could include business method such as when and how to approach customers. Even very routine information about business methods was given protection.

Mr Masutha (ANC) said that it seemed as though these definitions were in the context of the enforcement of contracts in restraint of trade. This concerned the standard practice where business wanted to prevent former employees from sharing trade secrets with for example competitors.

Ms Taljaard (DP) wanted to know whether "commercial value" in Option 2 adequately captured what Option1 was trying to protect in terms of financial, commercial, scientific or technical information.

Ms van Schoor felt that Option 1 was limiting while "commercial value" in Option 2 allowed for a wider interpretation.

Ms Taljaard felt that the protection of research was extremely important in this regard since, with research, one is not necessarily immediately able to extrapolate the potential "commercial value" of the research which was being conducted. It was thus important to ensure that the research clause adequately encapsulates what one aimed to protect because you cannot know what the commercial value of a given set of scientific information is going to be.

Mr Smith (IFP) pointed out the distinction between primary research, which may not even be intended to be of commercial benefit, and applied research which is more geared towards a commercial application. He said that in big companies half the inventions are spin-offs of primary research, which initially did not have commercial value.

Mr J Delport (DP) suggested that in Option1(c) "information supplied by a third party" should read "any information.

Adv de Lange wanted to know with regard to Option1 why (c) was not covered in (b). Ms Taljaard said that it was in fact covered. Adv de Lange said that if (c) added nothing to (b) it should be removed.

Mr M Masutha (ANC) was concerned that the committee may be seen to be re-writing the law on trade secrets. He asked whether the section on trade secrets should not be qualified by using the words "protected under any law" so that it was clear that it was not intended to try and redefine what constituted protected information under whatever law.

Mr P Smith felt that the trade secrets in these circumstances will probably not be registered patents or copyrighted and thus Mr Masutha’s suggestion may not really help.

Section 17 Confidential Communications
Section 17 states that the head of a private body may refuse a request for access to a record of a body if its disclosure would found an action for breach of confidence.

The chairperson said that in terms thereof there had to be a cause of action because of such breach.

Ms F Chohan-Kota (ANC) thought that this particular action could only be founded in a contractual relationship where there was for example an agreement to retain information and not expose it. She wanted to know whether this action could in fact be founded outside of the contractual situation.

Adv de Lange said that this issue would need a bit more research.

Mr P Smith wanted to know whether s17 related to the "non commercial" information of a private body.

Adv de Lange said that he "imagined" that it did not.

Mr Smith (IFP) wanted to know what a " breach of confidence " actually meant.

Adv de Lange said that it was linked to an civil action. He said that one would be able to refuse to give access to a document. Where one did not refuse but gave access to the document, then someone could sue you for breach of confidence. It was thus a technical term, which existed where there was a confidence clause or obligation where breach thereof would found a civil action. The fact that a civil action must be able to be founded, shows that there is quite a high test. It was concluded that this section needed more research.

Section 18 Safety of individuals and security of structures and systems
There were two options added to s18. Under Option 2 the head of a private body was obliged to refuse access to a record if it was likely to endanger the life or physical safety of an individual. It had a discretion to do so when the security of a building or other structure was prejudiced or impaired.

It was pointed out that the wording had changed in the section where "prejudiced or impaired" replaced "maintained or enforced".

Section19 Privileged from production in Legal Proceedings
No amendments were made.

Section20 Commercial Information of Private Body
Option 2 combined (b) and (c). There were 2 options for (d) and ss3 was new.
There was very little discussion on this.

Section 21 Mandatory Disclosure
This section is an override to the exemptions, which allows disclosure of a record if it would reveal evidence of - a contravention of, or failure to comply with the law; or an imminent and serious public safety or environmental risk; or a miscarriage of justice.

Adv de Lange felt that the criteria of a " miscarriage of justice" was too wide. He suggested its removal.

Section 22 Third Party Notification
This deals with the information of third parties and the obtaining of their consent when requested by an outsider for access to such information. Fundamentally there had to be an obligatory refusal unless there is consent. The third party’s refusal to consent to disclosure would only be trumped by an override in terms of s21 or any other override in the Bill. All the members except Mr Smith felt that a requester had to provide identification.

Adv de Lange said that there were clauses in s22, 23 and 24 on third parties that were very technical. He said that the committee would start looking at the Draft from s2 onwards again the following day and examine more closely some of the sections looked at already. The major concerns raised by members would be reflected in the next draft, which would incorporate these concerns as further options (as would be the case regarding Ms Taljaard’s point about research for example), deletions or amendments. The meeting was adjourned.