A summary of this committee meeting is not yet available.
JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
23 November 1999
PRIVATE SECTOR APPLICATION (horizontality): DISCUSSION
OPD 90: First draft of proposed new part to provide for access to records of private bodies
OPD 90a: Draft proposal for access to records of private bodies made by Dr J Delport (DP)
Document dealing with whether bodies fall under natural or juristic persons drafted by Adv van Schoor
The discussion revolved around the new draft on how access to information applies to the private sector. The main issues discussed were related to the use of the term "any person" as opposed to "everyone" and how far this right will extend in its application.
Chairperson de Lange announced that hearings on the Administrative Justice Bill would probably start this Friday, 26 November. They have about 30 submissions but not all of them have requested oral hearings. He has also provided the Justice Portfolio Committee members with all judgements relating to administrative law so that they will have an idea of where administrative law in South Africa currently stands.
The Chair opened the discussion on private bodies. The relevant documents are ODB 90 and ODB 90(a). The Chair said that they would come back to the discussion on ODB 90(a), which was the draft done by the Democratic Party (DP). The drafters in ODB 90 had looked at the part of the Bill dealing with public information and had taken parts out and re-worked them for the private sector. Some of what is included in this new draft is repetitious of what is in the draft for the public sphere. He said that they could come back to the definitions later, but for now he really wanted to have people comment on Chapter 1 (general provisions).
Mr Smith (IFP) wanted to make sure that the definition of private body also included to what extent that body functioned in the public sphere. If the body functions more in the private sphere, is it then going to be considered private?
The Chair said that a body that could be considered both public or private will be classified depending on what capacity they were functioning in relation to the information being requested. Did they act in their public or private capacity? He was not sure if the definition needed to say any more than it already did.
Mr Smith was concerned that the definition did not really make that point clear. He suggested redrafting it to be sure that it was clear that was how those types of bodies would be classified.
The Chair said that he thought that Mr Smith's concern was covered by the current definition, but he asked Ms van Schoor to look at it anyway to see if Mr Smith's concern could be addressed better. He then moved the Committee onto Chapter 1.
Ms Jana pointed out that clause 1 of the draft used the language "any person" whereas the language in section 32 of the Constitution used the term "everyone." She believed that the "everyone" was broader than "any person." She wanted to know why the term "any person" was being used.
Ms Smuts raised the same point, in addition she wanted to add the phrase "subject to this Act" to the end of clause 1.
The Chair said that he would pass that stylistic issue onto Ms van Schoor, but if that point was already in the DP draft, then Ms van Schoor already has it to look at. The issue really is in distinguishing between "any person" and "everyone." He does not really think that it is a constitutional issue, because of the effect of the limitation clause, but he did want to explore whether or not there was a distinction between them so far as their use in the Constitution.
Ms van Schoor said that it was true that "everyone" was the language used in the Constitution in relation to this right, but that her understanding was that "any person" meant to include all people - in effect having the same meaning as "everyone." She did not see the difference between any person and everyone.
Ms Jana said that there was a difference between the terms. In the Constitution there are places where one term is used over another term. If it was merely a question of language, then the Constitution would have just picked one of the terms and used it throughout.
The Chair said the point was noted, but he wanted to know what the distinction was between them.
Mr Swart (ACDP) said that the use of the term was dependent on the definition of person that they were using in that particular section of the Constitution. The use of the term was dependent on the context.
The Chair asked them to look at the definition as it is in the Bill - natural and juristic person. How would using one term over another impact on that definition? What limitation is there in using "any person?"
Ms Chohan (ANC) said that the crucial question was what the difference was between the two terms. A while ago the Committee had asked whether or not an association could be a juristic person in terms of this Bill, and the Committee agreed that it could be seen as such. She now thinks that this is incorrect. Clubs and associations are not juristic persons so far as insolvency law - so they probably should not be considered as such here. She is not sure if "everyone" would capture those people that fall outside of juristic persons either. Does anything capture those particular bodies? She wanted to know how much they really wanted to open up this issue. She believed that the term juristic persons did in fact exclude certain associations.
Ms van Schoor said that the document she had prepared deals with these issues specifically - whether bodies fall under natural or juristic persons. Common law principles also help to determine whether or not a body is juristic or not. In terms of that document and the categories covered in it, are there any other categories that fall outside of the definition of juristic persons?
Ms Smuts asked whether this discussion was even relevant. Looking at section 32(b) of the Constitution you cannot even exclude international or foreign people from access to information.
The Chair asked if there is anything beyond "any person"? The law is clear on associations. If a body does not fall under the legislation, then it will fall under common law. Are there things other then associations that people think fall outside of the definition? He said that he did not have a problem using the term "everyone," but he wanted to know where they are going if they use that term.
Mr Smith said that if churches and clubs are included in the definition, then he does not have any problem in retaining "any person". In terms of who this right applies to, he said you cannot apply it only to South African citizens. You will also have to apply it to foreigners. Perhaps the right could be limited to once the foreign person is in the country.
Ms Jana agreed with Ms Chohan that the term juristic persons excluded certain associations. As she might be wrong, she said she would look at Ms van Schoor's document.
Mr Masutha (ANC) said that the issue was whether or not you have a list of certain criteria saying what is an association. The whole question of whether or not you are a natural or juristic person could fix into that context and discussion around that issue is relevant, because the Constitution does not have an answer.
The Chair said that the issue is what the end result of the language they finally chose is going to be in terns of applying this legislation.
Ms Smuts said on the issue of foreigners that you cannot exclude foreigners, because then you will be excluding a huge part of what sustains the economy. Your rights are your rights and they are checked by other competing rights.
The Chair said that all he wanted was to know where they were going with this part of the legislation in the end. He reminded everyone that this legislation was putting duties and obligations on companies in terms of access to information. The width of this clause will determine the extent of those duties and obligations. What kind of burden do they want to put on these companies?
Ms Chohan raised the issue of persons again. She agreed with Mr Masutha's point on establishing criteria. She said that partnerships are not juristic persons (as indicated in the document that Ms van Schoor had prepared). There can be huge partnerships. If an employer within that partnership needs access to information, then how is he going to do that if partnerships fall outside the definition?
The Chair asked if partners did not exercise their rights as natural persons? You would be able to sue them as individuals for access.
Ms Chohan said that you would then be using the definition as a blanket cover. If you do not fall under juristic persons than you fall under natural?
The Chair said that the only issue he saw was the one that Dr Delport had raised in the DP draft (ODB 90(a)), which is when you have a bridge or Tupperware club. These types of unorganized associations may not fall under the Bill. If they are not well organized, then you would not sue them as the bridge club you would sue them as an individual under natural persons. He asked if these types of persons would be included if they used the term "everyone" instead. He said he did not know what the courts were going to interpret, but more then likely in those cases the person would be classified as a natural person.
Ms Chohan said that she agreed with what the Chair had just clarified but she was still concerned with the issue of what is meant by the "exercise" of rights. Do you not want to restrict that to some degree because of the amount of burden that it would place on this sphere?
Mr Swart suggested sticking as much to the language used in the Constitution as possible rather than using other words. He said that they were here to give effect to the Constitution and the best way of ensuring that they do that is by using the language in the Constitution. Section 32(1)(b) does not clarify "everyone," but that is the term used, and they should also use that term. He also raised a concern about the language "is required" in section 32(1)(b), and he wanted to know what kind of burden this would place on the private sphere.
The Chair said that Ms Jana had raised this point because the term "everyone" is broader in scope that "any person." He pointed out clause 10 of the Constitution and said that the term "everyone" was used in relation to human dignity, and that everyone clearly meant natural persons in that context. Why should he accept that "everyone" is broader than "any person" when the Constitution does not make that clear? If the courts determine that "everyone" is wider, then who else would be included if they used the term "everyone" over "any person?"
Mr Swart said that if you use the language in the Constitution, then you would avoid this whole debate.
Mr Landers (ANC) said that he understood the problem raised by Ms Jana. He said the difficulty is that the term "any person" may leave certain clubs and associations out of the loop. This conclusion was based on how he saw the Constitution using the term "any person." (he referenced section 8 (2) of the Constitution - application of the Bill of Rights). He acknowledged that they had not answered the Chair's question on how much wider is the term "everyone". He said that it does not mean that using "any person" would actually exclude associations. In the end, he thought that it would be wise to follow Mr Swart's suggestion of using the exact language of the Constitution.
Mr Masutha said that the use of "private body" was a misnomer. The definition of natural and juristic persons does include associations. It may be important to revisit the terminology that they are using in this section. The terms that they use in this section should match the terms used in section 32 of the Constitution. The Constitution does not deal with private bodies it deals with people, which means that private bodies can only refer to juristic persons and not at the same time natural persons.
The Chair wanted to know if his concern was not resolved by the definition they had used for private bodies?
Ms Jana said that she now had read Ms van Schoor's document on how natural and juristic persons are categorized, and she still held the same view as before. The courts have held that not every association is a juristic person and certainly partnerships are not juristic persons. It is true that individual partners can raise issues as natural persons, but not as an association. There are groups that are going to be left out. The term "everyone" would cover those left out.
The Chair agreed that partnerships are not juristic persons. But he felt that the only groups that would not be covered by the definition of natural and juristic persons would be those small unorganized groups such as bridge clubs. It is obvious that these small unorganized groups do not fall under that definition nor the common law definitions. There is no argument on that issue.
Mr Mgidi (ANC) asked how foreigners are given access to information in other democracies? He also wanted the Committee to bear in mind the costs (especially to small associations) in giving this level of access.
The Chair said that everyone knows that the regimen that they are trying to create here does not exist anywhere else in the world. There is no answer as to what other open democracies do because no one else has attempted this before. He said that they would come back and look at the issue of cost later.
Mr Durr (ACDP) asked whether they going to have limitations if they allow foreigners the right to access information. How are they going to police in what way a foreigner uses their information once that information leaves their jurisdiction. There would be no reason why a foreigner would have to follow South Africa's copyright laws once they take the information from South Africa.
The Chair remarked that this was an excellent point - how are they going to regulate the use of the information that a foreigner takes out of the country since there is agreement that the language in section 32 extends the right to to foreigners as well.
Mr Smith said that section 8(2) of the Constitution does not have a third category for non-natural persons. He felt that "any person" and "everyone" meant the same thing. The main issue that they should be discussing is the extent to which foreigners NOT in the country (like shareholders) will have access to information. What about foreign employees that work for South African companies? There are two issues: how you deal with foreigners in the country and how you deal with foreigners out of the country that want access. The copyright issue comes into play again.
Ms Chohan wanted to know what other countries do. Will they be able to impose penalties for abuse of information with regard to foreigners misusing the information?
Mr Masutha said that if the term "everyone" did have a specific fixed meaning, then it would have been easy to use it again here with that same meaning or in another place in the Constitution with that same meaning.
The Chair said that was a good point. In one context in the Constitution it seems that the term means natural person and that in other contexts it seems to mean more. That is exactly the reason why he is asking what the committee wants it to mean. He feels that that the capacity that you act in is the capacity in which you will be sued. He said that because they are proposing a new law that they do not know the consequences of it. It is true that no matter if you use the term "everyone" or "any person" foreigners are included. They need to decide on the term first and then whether or not they want the right extended to foreigners. When you talk of foreigners you are not just talking about individuals, you are talking about groups like CNN and businesses having access. This raises the issue of what is meant by the terms "exercise" and "any right" in section 32(1)(b). How far do you want you obligations and duties to go in this sphere? Essentially, the main issues are whether they should use the tem "everyone" or "any person" and whether or not foreigners should be restricted or limited in their use of this right.
The Chair commented that when he passes a Bill he wants to know that the committee did the best that they could, and the only way to ensure this is for them to discuss it and to challenge each other. Typically, they do look at what other countries have done, but they cannot do that now, because they are the first to attempt this. This Chapter is ground breaking so they need to work through all of the issues. If it seems like time is being wasted on a point just keep in mind that it really is important to discuss anything that they think may be a problem. They need to deal with this issue of "everyone" first, and they will get to the issue of foreigners later. However, they do need to discuss what is meant by the terms "exercise" or "protection" and "any rights." How far do they want this obligation to go?
Mr Smith said that although they have the general limitations clause, section 32(2) of the Constitution only applies to the State or the public sector. They do not have a limitation clause like that for the private sector, all they have is the general limitations clause.
The Chair said that 32(2) was an additional limitation, but he felt that it really would have been covered by the general limitations clause. He saw it as being double protection, but what Mr Smith was pointing out was that this extra protection does not apply to the private sphere.
Mr Masutha said that they weigh the terms "exercise" / "protection" of rights of an individuals (natural persons) on the one hand and juristic persons on the other. The issue is how are you going to weigh competing rights? For example, the media said that information falls under the right to privacy so that they do not have to give access. How do you weigh which right wins? He felt that you should be more inclined to protect the individual rather than big companies.
The Chair said that they need to ask how the weighing of rights will play out in practical terms. There is no pecking order of rights in the Constitution. The two issues are when rights clash and how the limitations clause applies. There is a balancing act. Perhaps the solution lies in the use of adjectives. Create tests like "substantial harm" to determine which direction the scale should tip. Typically they do use such adjectives to formulate tests to determine when one right should win over another. Under the private sector, they should also create such tests.
Ms van Schoor said that she had provided four options in Section 14, which establishes tests similar to what Chairperson de Lange was talking about. Each option contains a different test.
The Chair said that the DP draft that Dr Delport had written (ODB 90(a)) also lists criteria on how to exercise and protect. All of these options need to be examined to see which would best balance the competing rights. They need to determine which to use. The difficulty is that they need to look at the options in terms of the limitation clause as well. Is the word "exercise" a limitation in and of itself? The obstacles a person would have to jump are that you show you have a right and that you are trying to protect it, then you have to see if any of the exemptions apply, and then you have to deal with fees. In the public sphere you only have to deal with the exemptions and fees. You do not have to prove in that sphere whether or not you are exercising or protecting a right.
Mr Masutha said that the only issue is really in the publication of information. Perhaps they should have an exemption that deals specifically with publication
The Chair said that the issue was broader than just a privacy argument and a right to information.
Ms Jana asked if the government has a right to get information held by private bodies as well? Does the term "everyone" cover this as well?
The Chair said that perhaps this is true.
Ms Jana said that there may be instances when the government will need to request access to information from the private sector, and the law should not preclude them from this access. One example would be if the government needed access to the results of a research project.
Ms Taljaard (DP) asked about the ambit of the right. Some of the rights in the Constitution apply to second and third generation rights. Will this right also extend that far? How are they actually going to use this right? How far do they conceptualize this right, and how far do they want it to extend internationally?
Ms Chohan returned to the issue of exercise and protection of rights. She felt that Ms Taljaard was right in pointing out how far they want the legislation to extend. She felt that "any rights" needed to be regulated by some mechanism that would limit what that meant. It is an issue that extends beyond just constitutional rights. This legislation will impact foreigners and the international community. This discussion should be about restrictions and limitations. Perhaps the way to limit "any rights" would be to use the language in the Constitution as the drafters probably had in mind that the right should be limited, being aware that this would be ground-breaking legislation. At the extreme, exercise and protection would mean litigation.
[Ms Jana was asked to act as Chair while Mr de Lange dealt with another issue]. Ms Jana felt that to exercise a right also meant to invoke it ,and that exercise was not limited to litigation.
Ms Chohan said was trying to point out the extremes. Exercising the right to commercial freedom would mean going to court. She felt that they needed to find a middle ground in between the two extremes, but she was not sure if they would find that middle ground. She felt that the narrow approach would solve a lot of problems relating to foreigners and the points that Mr Smith had raised.
Ms Jana summarized Ms Chohan's points: "any rights" means any rights in their Constitution as well as any in the world, foreigners have the right to access as the right is drafted now, the definition of exercise could be looked at narrowly so as to be restricted to litigation or it could be looked at as the broad exercise of rights. She then asked Ms van Schoor if she had any input.
Ms van Schoor that all rights did not apply only to those in the Bill of Rights. All rights included statutory law as well, and that might also include international law. She had not thought of looking at "exercise" in its narrowest form. On the issue of government being able to access information in the private sphere, she said that there is argument in support of allowing government such access, but there is no case law.
Mr Smith said that his initial reaction had been not to allow government access to information in the private sphere, but it may be constitutional to allow them access. He agreed that "any rights" did go beyond just the rights in the Constitution. Sections 231(4) and (5) of the Constitution relate to international agreements, which is proof that this right would extend to international law as well. Further, this right also includes state law as well. He was not sure how state law would impact on this legislation though. He thought that one way of limiting this right would be to limit the word "required" instead of focusing on the term "exercise." The test for the term "required" is very high. He said it was like section 14 of the draft on the private sphere. He wanted to know why they could not have all of the options listed in clause 14. Each option could be a different test - make it like a sliding scale. All of the options are restrictions. You would have several options available, but not all of them will apply to each situation.
Ms Jana summarized his point and said that you could apply any one of the options and you could do this by inserting language like "If any one of these options apply." Mr Smith wanted the legislation to be wider than just having one option.
Ms Chohan said that she was not sure to what end that suggestion would get them. How would the options apply in practice? How did Mr Smith think that the options would work, and what does that suggestion solve?
Mr Smith said that he was just pointing out that using all the options was not impossible. There would still need to be an appeal mechanism. He really did not have any firm views on it, but he pointed out that the task of limiting the term "exercise" was going to be very difficult.
Ms Jana said that since they are giving extraordinary rights here that Mr Smith was looking for a way of limiting it.
Ms Chohan said if they go that route, then that would increase the level of uncertainty in relation to this legislation. You do not want to leave too much for the courts to decide.
Ms Jana pointed out that she did not think using the term "everyone" would imply that it included everything.
Ms Chohan said that any rights apply here and all right as well. Rights even beyond their country are going to apply. What are they going to do if someone sues in a different country under a different jurisdiction? She did not want them to exclude that scenario from consideration. The restriction is that a person must have some basis for which to go to court, which gets back to what she was saying earlier about looking at "exercise" narrowly.
Mr Matthee (NNP) said that the restriction should only apply when the matter is in our courts. He then raised the issue of locus standi.
Ms Chohan said that you cannot get away with only restricting to courts in South Africa. You must deal with the issue as it relates to other jurisdictions as well. The issue is not around locus standi.
Mr Smith said that he could understand how you have to have a test in protecting a right, but he said you could not apply that same test to the exercise of a right. What is the distinction between exercising a right and protecting a right in practice?
Mr Lever (DP) wanted to bring up the issue of locus standi. He said that sections 38 (c ), (d) and (e) of the Constitution (enforcement of rights) are where the issues are going to come from. You cannot expect that a test involving locus standi is really going to restrict. Further, he wanted to say that he did not feel that the right to access information in the private sphere should extend to the State.
[Chairperson de Lange resumed his position as Chair[. Adv de Lange pointed out that section 38 was also a right, which meant that the limitation clause applied to it as well.
Mr Masutha said that all section 38 does is elevates a person's INTEREST in the matter as the basis for a person's right to sue for access to information. He disagreed with Mr Lever's point, when he argued that the State does not have the right to access information in the private sphere. The State might need to access information in the private sphere in order to access another right.
The Chair said that the problem is solved by creating a test where the State will have to prove that they have a right to access that information. If the State fails to show that they have that right, then access will be denied and they would not even get to the next hurdle which is the exemptions. He wanted to remind them that the definition also included public bodies as well. Do they really want to exclude the State as well as public bodies?
Ms Chohan said the Mr Lever may have been correct in saying that if you are going to limit this right through the use of locus standi, then in effect you are not limiting it at all. For the benefit of Chairperson de Lange she repeated her earlier suggestion as to how to limit the right. A possible limitation would be to look at the term "exercise" in its most narrow form which would be to say that you exercise your right by going to court. She said to look at the term "require." There are going to be instances where you are going to need certain information just to form a basis for going to court.
The Chair said that was a difficult concept to understand. How do you know what right you want to protect without the information? It is almost impossible to overcome that. He admitted that she had raised an important point. The term "requires" really is problematic.
Mr Smith (IFP) wanted to get back to the distinction between exercise and protect. Are they going to keep them together or have a separate test for each. It is important to figure out what the words actually mean. To protect your right you must show that you cannot exercise that right.
The Chair pointed out - as with the Freedom of Expression - you need the information to form a view or opinion on it. You cannot exercise your right to expression without first having the information, which is the point that Ms Chohan had aised. You must first get the information before you can exercise your right, which is a very strict test.
OPD 90: First draft of proposed new part to provide for access to records of private bodies
18 November 1999
On page 2, in the second line, to insert:
and any information held by another person and that is required for the exercise or protection any rights
Clause 1 (Definitions):
On page 10, in lines 52 and 53, to omit the definition of "private body" and to substitute:
"private body" means any natural or juristic person other than a governmental body;
Clause 3 (Objects):
On page 14, in lines 8 and 9, to omit paragraph (c) and to substitute:
(c) to give effect to the constitutional right of access to information held by another person that is required for the exercise or protection of any rights subject to justifiable limitations;
Clause 5 (Guide):
On page 16, in line 14, to omit "containing personal information".
New clauses (to be renumbered when included in the Bill):
Right of access to records of private bodies
1. Any person must, on request, but subject to this Act, be given access to any record of a private body that the person requires for the exercise or protection of any rights.
Part applies to record whenever it came into existence
2. This Part applies to a record of a private body regardless of when the record came into existence.
Application of other legislation prohibiting disclosure
3. This Part applies to the exclusion of any provision of other legislation that prohibits the disclosure of a record of a private body.
3. If any conflict arises between any provision of this Part and any provision of other legislation that prohibits the disclosure of a record of a private body, this Part prevails.
Application of other legislation providing for access
4. (1) Section 1 does not apply to a record of a private body—
(a) subject to subsection (2), which is available in accordance with—
(i) any other legislation; or
(ii) arrangements made by that private body,
whether or not such access is subject to a fee;
(b) described in a list published by notice in the Gazette in terms of section 6(2).
(2) The Minister must—
(a) on a periodic basis not less frequently than once each two years; and
(b) in accordance with the prescribed criteria,
review the legislation and arrangements contemplated in subsection (1)(a) in order to determine whether the manner in which access may be obtained to a record or, category of records, of a private body in terms of any legislation or arrangement is more onerous than access to that record would have been in terms of this Part.
(3) If the Minister has determined in terms of subsection (2) that the manner in which access may be obtained to a record or, category of records, of a private body in terms of such legislation or arrangement is more onerous than access to that record would have been in terms of this Act, the Minister must, by notice in Gazette, determine that this Act applies to such record or category of records.
4. (1) This Part does not apply to any record of a private body described in a list published by notice in the Gazette in terms of section 6(2).
(2) Nothing in this Part prevents a private body from giving access to a record of that body in accordance with any other law.
Use of Part for criminal or civil discovery of private bodies’ records excluded
5. A person may not request access to a record of a private body in terms of section 1 for the purpose of criminal or civil proceedings if the production of that record for that purpose is regulated by any other law.
Note: This provision may be circumvented if another person obtained access in terms of the Act and furnished the information to person to use it in criminal or civil proceedings. Proposal: "any person that contravenes section 5 [above] is guilty of an offence ...".
Availability of certain records
6.(1) The head of a private body may on a periodic basis submit to the Minister a list which describes—
(a) the kinds of records of the private body that are available without a person having to request access in terms of this Part; and
(b) how to obtain access to such records.
(2) The Minister may, if appropriate, publish by notice in the Gazette any list so submitted.
(3) The only fee payable for access to a record described in a list so published is a reasonable fee for reproduction (if applicable).
Note: "Right to know" clause for privately held information inappropriate in view of the qualification of the constitutional right, ie "... that is required for the exercise or protection of any rights"?
7.(1) This section does not apply to private bodies which are natural persons.
(2) Within 12 months after the commencement of this section or the coming into existence of the private body concerned, the head of a private body, which is a juristic person, must publish a manual containing—
(a) the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body;
(b) a description of the guide referred to in section 5 and how to obtain access to it;
(c) the latest list published in terms of section 6(2);
(d) a description of the records of the body which are available in accordance with—
(i) any other legislation; or
(ii) arrangements made by that private body;
(e) in sufficient detail to facilitate a request for access to, and for correction of personal information in, a record of the body, a description of—
(i) the subjects on which the body holds records and the categories of records held on each subject;
[(ii) every personal information bank held by the body, including, in respect of each bank—
(aa) the identification of the bank and a description of the categories of persons to whom or which the bank relates; and
(bb) a statement of the purposes for which the information in the bank was obtained or the bank was compiled and a statement of the purposes consistent with those purposes for which the information in the bank is used or disclosed.]
(f) such other information as may be prescribed.
(3) The head of a private body must on a regular basis update its manual referred to in subsection (2).
(4) Each manual must—
(a) if reasonably possible, be made available on the Internet by the head of the private body concerned; and
(b) otherwise be made available as prescribed.
(5) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of private bodies from any provision of this section for such period as the Minister thinks fit.
Form of request
8.(1) A request for access to a record of a private body in terms of section 1 must—
(a) be made in writing to the head of the private body concerned at his or her address, fax number or electronic mail address;
(b) provide sufficient particulars to enable the head of the private body to identify the record requested;
(c) specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester; and
(d) identify the right the requester is seeking to exercise or protect and provide a reasonable explanation of why the requested record is required for the exercise or protection of that right.
Decision on request
9. (1) The head of the private body to whom the request is made must, as soon as reasonably possible, but in any event, within 30 days, after the request has been received
(a) decide in accordance with this Part whether to grant the request; and
(b) notify the requester of the decision.
(2) If the request for access is granted, the notice in terms of subsection (1)(b) must state—
(a) the access fee (if any) to be paid upon access; and
(b) the form in which access will be given.
Option 1 for (3):
(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state—
(a) the findings on all material questions of fact, referring to the material on which those findings were based;
(b) the reasons for the refusal (including the provisions of this Part relied upon to justify the refusal) in such manner as to enable the requester—
(i) to understand the justification for the refusal; and
(ii) to make an informed decision about whether to utilise any remedy in law available to the requester.
Option 2 for (3):
(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state the reasons for the refusal.
(4) If the head of a private body fails to give his or decision on a request for access to a record of the body within the period contemplated in subsection (1), the head is, for the purposes of this Act, regarded as having refused the request.
Extension of period to deal with request
10. (1) The head of a private body to whom a request for access has been made, may extend the period of 30 days referred to in section 9(1) (in this section referred to as the "original period") once for a further period of not more than 30 days, if—
(a) the request is for a large number of records or requires a search through a large number of records and compliance with the original period would unreasonably interfere with the activities of the private body concerned;
(b) the request requires a search for records in, or collection thereof from, an office of the private body not situated in the same town or city as the office of the head that cannot reasonably be completed within the original period;
(c) the record relates to a third party as contemplated in section 15(4) or 17(3);
(d) more than one of the circumstances contemplated in paragraphs (a), (b) and (c) exist in respect of the request making compliance with the original period not reasonably possible.
If there exists reasonable grounds for such extension.
(2) If a period is extended in terms of subsection (1), the head of the private body must, as soon as reasonably possible, but in any event, within 30 days, after the request is received, notify the requester of that extension, the period of the extension and the reasons for the extension.
11. (1) If a request for access to a record of a private body containing information which is required or permitted by Chapter 2 [Exemptions - set out below], to be refused, is made, every part of the record which—
(a) does not contain; and
(b) can reasonably be severed from any part that contains,
any such information must, despite any other provision of this Part, be disclosed.
(2) If a request for access to—
(a) a part of a record is granted; and
(b) the other part of the record is refused,
as contemplated in subsection (1), the provisions of section 9(2), apply to paragraph (a) of this section and the provisions of section 9(3) to paragraph (b) of this section.
Form of access and access fee
12. (1) If access is granted to a record of a private body, the head of that body must, as soon as reasonably possible after notification in terms of section 9, give access in—
(a) such form as the requester reasonably requires; or
(b) if no specific form of access is required by the requester, such form as the head reasonably determines.
(2) The head of a private body may determine a reasonable access fee for reproduction, and for search and preparation of a record of the body, not exceeding the prescribed amounts.
(3) The head of the private body may defer access to a record of the body until the applicable access fee is paid by the requester concerned.
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS
No right exercised or protected
14. The head of a private body may refuse a request for access to a record of the body if—
(a) the requester fails to identify a right he or she seeks to exercise or protect; or
Option 1 for (b):
(b) the requested record could not reasonably be required for the exercise or protection of a right.
Option 2 for (b):
(b) the requested record is not likely to be required for the exercise or protection of a right.
Option 3 for (b):
(b) the requested record is, in the opinion of that head, not required for the exercise or protection of a right.
Option 4 for (b):
(b) the requested record could not reasonably be expected to advance the exercise or protection of a right.
Mandatory protection of privacy
15. (1) The head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received) other than the requester concerned.
(2) Subsection (1) does not apply to a record in so far as it consists of information—
(a) about a person that has consented to its disclosure to the requester concerned;
(b) about an individual’s physical or mental health, or well-being, who is—
(i) under the age of 18 years;
(ii) under the care of the requester; and
(iii) incapable of understanding the nature of the request,
and if giving access would be in the individual’s best interests;
(c) about an individual who is deceased and the requester is the individual’s next of kin.
(3) In subsection (2)(c) "individual’s next of kin" means—
(a) an individual to whom the individual was married, with whom the individual lived as if they were married or with whom the individual cohabited, immediately before the individual’s death;
(b) a parent, child, brother or sister of the individual; or
(i) there is no next of kin referred to in paragraphs (a) and (b); or
(ii) the requester concerned took all reasonable steps to locate such next of kin, but was unsuccessful,
an individual who is related to the individual in the second degree of affinity or consanguinity.
(4) The head of a private body considering a request for access to a record that might be a record contemplated in subsection (1) must give the person to whom or which that record relates a reasonable opportunity to make representations why the request must be refused.
[Health of requester
16. (1) In this section "health practitioner" means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals.
(2) The head of a private body may refuse a request for access to a record of the body about the requester’s physical or mental health, or well-being, and which was provided by a health practitioner in his or her capacity as such if—
(a) the head has disclosed the record to, and consulted with, a health practitioner who—
(i) carries on an occupation of the same kind as the health practitioner who provided the record; and
(ii) has been nominated by the requester or his or her authorised representative; and
(b) the health practitioner so consulted is of the opinion that the disclosure of the record to that requester would be likely to cause serious harm to his or her physical or mental health, or well-being.
(3) If the requester is—
(a) under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (2)(b)(ii); or
(b) incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. ]
Mandatory protection of third party commercial information
17. (1) The head of a private body must refuse a request for access to a record of the body if the record contains—
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which could reasonably be expected to cause unreasonable harm to the commercial or financial interests of that third party; or
(c) information supplied by a third party the disclosure of which would be likely to put that third party at a disadvantage in contractual or other negotiations or cause it prejudice in commercial competition.
(2) Subsection (1) does not apply to a record in so far as it consists of information—
(a) about a third party who has consented to its disclosure to the requester concerned;
(b) about the safety of goods or services supplied by a third party, and the disclosure of the information would be likely to result in better informed choices by persons seeking to acquire those goods or services; or
(c) supplied to, or about the results of any test or other investigation carried out by, a private body regarding a public safety or environmental risk.
(3) The head of a private body considering a request for access to a record that might be a record contemplated in subsection (1) must give the third party to whom or which that record relates a reasonable opportunity to make representations why the request must be refused.
Safety of individuals and security of structures and systems
18. The head of a private body may refuse a request for access to a record of the body if its disclosure would be likely to endanger—
(a) the life or physical safety of an individual; or
(b) the maintenance or enforcement of methods for the security of a particular building, installation or information storage, computer or communication system.
Privileged from production in legal proceedings
19. The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings.
Commercial information of private body
20. The head of a private body may refuse a request for access to a record of the body if the record contains—
(a) trade secrets of the private body;
(b) financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected to cause harm to the commercial or financial interests of the private body;
(c) information the disclosure of which would be likely to put the private body at a disadvantage in contractual or other negotiations or cause it prejudice in commercial competition; or
(d) the results of original research undertaken by an employee of the private body the disclosure of which could reasonably be expected to deprive that body or employee of the benefit of first publication of those results.
(2) Subsection (1) does not apply to a record in so far as it consists of information—
(a) about the safety of goods or services supplied by the private body and the disclosure of the information would be likely to result in better informed choices by persons seeking to acquire those goods or services; or
(b) supplied to, or about the results of any test or other investigation carried out by, the private body regarding a public safety or environmental risk.
Frivolous or vexatious requests
21. The head of a private body may refuse a request for access to a record of the body if the request is manifestly frivolous or vexatious
Records that cannot be found or do not exist
22. (1) The head of a private body may refuse a request for access to a record of the body if—
(a) a thorough search to find the record has been conducted, but it cannot be found; or
(b) there are reasonable grounds for believing that the record does not exist.
(2) If the head of a private body so refuses a request, he or she must, in the notice referred to in section 9, give a full account of all steps taken to find the record in question or to determine whether the record exists, as the case may be, including all communications with every person who conducted the search on behalf of the head.
Published records and records to be published
23. (1) The head of a private body may refuse a request for access to a record of that body if—
(a) the record is to be published within 60 days after the receipt of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it;
(b) the record can be copied at a library to which the public has access at a fee no greater than would be charged for access in terms of this Part; or
(c) the publication of the record is required by law, within 90 days after the receipt of the request.
(2) The head concerned must, in the notice referred to in section 9, in the case of a refusal of a request for access in terms of—
(a) subsection (1)(a) or (c), state the date on which the record concerned is to be published; or
(b) subsection (1)(b) and if such information is ordinarily available to the private body concerned, identify the title and publisher of the record and the library concerned nearest to the requester concerned.
Records publicly available
24. The head of a private body may refuse a request for access to a record of the body if the record is already publicly available.
Right outweighing ground for refusal
25. The head of a private body must grant a request for access to a record of the body contemplated in sections 15 to 23 if the right sought to be exercised or protected clearly outweighs the need for non-disclosure contemplated in the provision in question.
Note: Require reporting to Human Rights Commission and report by Commission to Parliament?
OPD 90a: Draft proposal for access to records of private bodies made by Dr J Delport (DP)
Insert the following:
Right of access to records of Private bodies
1. Any person must, but subject to this Act, be given access to any record held by a private body if such record is required for the exercise or protection of any right of that person.
Access to records in terms of other laws
2. Nothing in this Act, except section 56, prevents a private body from giving access to a record of that body in accordance with any other law.
Use of Act for criminal or civil discovery excluded
A litigant in civil or an accused in criminal proceedings shall not be given access to any record of a private body in the course of litigation if such record is subject to the process of discovery provided for in the law and practice applicable to civil or criminal proceedings.
Grounds for refusing access to records
4. A request for access to a record of a private body may be refused if-
(a) The interests of the requester, taking into account the nature of the right which such requester wishes to exercise or protect and the importance of access to the relevant record for the exercise or protection of such record, is outweighed by the possible adverse effect disclosure may have on the interests of any other person emanating from -
(I) a right in terms of the Bill of Rights;
(ii) a claim or obligation against any other person, including a contractual or delictual claim or obligation;
(iii) a right to or in property, including immaterial property; or
(iv) a right in any commercial activity;
(b) a public body would have been entitled to refuse disclosure of the record in terms of sections 30 to 43 had the request for access to the record been lodged with a public body:
Provided the grounds for refusal set out in this section shall not apply to a request for access to personal information in terms of Part 4 of this Act.
Form of request
A request for information shall -
(a) be addressed in writing to the head of the private body from whom information is required;
(b) specify sufficient particulars to enable the receiver of the request to identify the information requested.
(c) identify the right the requester is seeking to exercise or protect and provide a reasonable explanation of why the requested information is required for the exercise or protection of that right.
6. A requester must, when so required by the private body, pay an access fee as stipulated in section 24(2).
Form of access
7. The forms of access to a record in respect of which a request was granted, are as set out in sections 25(2) to 25(10).
Access deemed to have been refused
If a private body fails to give a decision on a request for access within a period of 30 days, the request shall be deemed to have been refused.
Third Party Intervention
9(a) If the interest of any third party may be affected by granting access to a record and in particular if the interests of any third party need to be taken into account for the purpose of applying section 4 above, inform such third party -
(a) of the name of the requester;
(b) of the nature and content of the request for access;
(c) of the nature and content of the interest of the third party which may be affected;
before any access is granted to the requester.
(b) A third party may upon receipt of a notice as referred to in section 9(a) or if such third party suspects that access to a particular record may be requested by or granted to any person -
(a) make written or oral representations to the head of the private body concerned why the request should be refused; or
(b) give written consent for the disclosure of the record to the requester concerned.
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