Right to Know; Access to Records of Private Bodies

Meeting report

AD HOC JOINT COMMITTEE ON OPEN DEMOCRACY BILL
18 November 1999
DISSCUSSION ON FURTHER POSSIBLE CHANGES TO THE 'RIGHT TO KNOW' (OPD 87cc) & PROPOSED NEW PART TO PROVIDE ACCESS TO RECORDS OF PRIVATE BODIES (OPD 90)

Documents handed out
OPD 87cc - Further options and amendments to the proposed 'Right to Know' clause for governmental bodies. APPENDIX 1
OPD 90 - First draft of proposed new part to provide for access to records of private bodies. APPENDIX 2
OPD 90a - Draft proposal for access to records of private bodies made by Dr J Delport (DP). APPENDIX 3

SUMMARY
Possible 'right to know' clauses were discussed and it seems likely that an amalgamation of proposed options will be adopted (there are no real diverse opinions on what the clause should cover).

A very tentative first draft on access to records of private bodies was discussed. It aims to give full effect to the constitutional right of 32(1)(b):-

" Everyone has the right of access to.....any information that is held by another person and that is required for the exercise or protection of any rights."

Although access is less generous than that to governmental bodies, the draft reflects the structure set out in Part Three on access to records of governmental bodies. The committee agreed with Adv de Lange that this structure may prove problematic as it sets out limitations to a right that already includes an internal limitation. The draft will be discussed in greater detail at the committee's next meeting on Tuesday (23 November).

MINUTES
'Right to know'
OPD 87c proposed three possible right to know clauses and these were discussed on 16 November. Following these discussions Ms Van Schoor has produced OPD87cc. This sets out some amendments to the existing Bill that would probably be needed should a right to know clause be included. OPD87cc also proposes two more possible right to know clauses. The difference between the options is much to do with wording not substance. Only option five really varies in that right to know information would be made available to the Minister of Justice and not be directly published in the Gazette.

The main area discussed by the committee was the subclause proposed to be included in respect of all five options:

" The head of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, on a request to that record in terms of this Act, is required or permitted by this Act to be refused."

Mr Smith (IFP) felt that it did not make sense that a document available under the 'right to know' clause could have portions deleted or censored.

Adv de Lange accepted the point being made but said that the deletions would allow for the rest of the information to be made readily available. He then raised the issue of personal information to which each individual has a right to know but which could not be made openly available to everyone. A procedure would have to be provided by which each individual could easily access information that they had a right to know. The Health Department of Queensland found that most of the information it held was personal information that an individual had the right to know. They removed all this information from the Queensland Information Act and set up a separate procedure through which you could access it. Adv de Lange thought it would be advantageous for South African Departments to do a similar thing.

Mr Smith (IFP) said that this further complicated the concept of 'right to know'. Right to know means that all have a right of automatic access to information. This means that this information cannot be censored nor can personal information that not everyone has a right to know be included within this clause.

Ms Van Schoor felt that although referred to as the 'right to know' clause, this clause was about creating a flexible way for people to gain information and for Departments to ease their administrative burden.

It seems likely that some sort of amalgamation of the various options will be adopted.

Access to records of private bodies
Ms Van Schoor briefed the committee on her proposed new part to provide access to records of private bodies (OPD 90). She stressed that this was a very tentative first draft. Many of the proposed options were influenced by the submissions made by COSATU, SACC and other members of the Open Democracy Campaign Group.

The current Bill only provides for access to personal information held by private bodies, mainly legislated for in clause 50. The aim of this draft is to give full affect to the constitutional right of 32(1)(b),

" Everyone has the right of access to.....any information that is held by another person and that is required for the exercise or protection of any rights."

· The long title of the Bill and the objects of the Bill set out in clause 3 would be amended to fulfil the constitutional demand that legislation is enacted to provide for the right of 32(1)(b).
· The definition of 'private body' would be broadened to cover all non-governmental bodies and not merely any non-governmental body holding a personal information bank.
· Clause 5 would be amended so that a guide to requesting access to any information held by a private body, not merely personal information, is available.

This means that you would have the right, on request and subject to this Act, to access information to information held by private bodies if it was necessary to exercise or protect any right.

Ms Van Schoor went on to highlight other important areas of the draft (NOTE: these are new clauses and will be renumbered when included in the Bill):-

Clause 6 Availability of certain records - 'right to know'
A right to know clause is proposed so that an easy and simple method of access is available. This would be entirely voluntary on the part of the private body but its use could ease their administrative burden in having to provide access to records. Ms Van Schoor noted that concern has been raised that a right to know clause may be inappropriate in view of the qualification of the constitutional right, "...that is required for the exercise or protection of any right."

Clause 7 Manual
Manuals would be provided by private bodies as they are by governmental bodies but not by private bodies that are natural persons. This manual may or may not include a description of personal information banks held by the private body. A decision on this will follow the nature of the decision made on the planned transitional clause to cover clause 51 on the correction of personal information held by private bodies.

Clause 8 Form of request
This is a more simplified version of that set out for requests to governmental bodies.

Clause 9 Decision on request
This provides for how notice is given to requesters. Two different options are proposed, one longer, one shorter.

Clause 10 Extension of period to deal with request
This provides for extensions and also covers the giving of notice to third parties and the possible extension needed to do this.

Clause 11 Severability
This is a reflection of the clause for governmental bodies.

Chapter 2 Grounds for refusal of access to records
Ms Van Schoor stressed that this section would need a great deal of work and much of the draft on this chapter is merely a framework.

Clause 14 No right exercised or protected
Several options have been drafted to try and capture the exact limitation of a person's right to access.

Clause 15 Mandatory protection of privacy
This clause will need a lot of work just as the parallel clause for governmental bodies will.

Clause 16 Health of requester
The equivalent clause affecting governmental bodies is still up for a great deal of discussions. It is likely that this clause will be changed following the result of those discussions.

Clause 17 Mandatory protection of third party commercial information
This provides a more simplified exemption to that already in the Bill.

This draft does not provide an equivalent to clause 32(2) which provides exemptions to refusals of requests for access to records containing information supplied in confidence to a governmental body by a third party. The inclusion of equivalent exemptions for the private sphere is to be investigated.

Clause 18 Safety and security of structures and individuals
This reflects the exemption for governmental bodies

Clause 19 Privileged from production in legal proceedings
Access is denied to all records privileged from production in legal proceedings, there are no exemptions as for records of governmental bodies.

Clause 20 Commercial information of private body
This provides an equivalent to clause 38 on the economic interests and commercial activities of governmental bodies.

Clause 21 Frivolous or vexatious requests - as for governmental bodies.
Clause 22 Records that cannot be found or do not exist - as for governmental bodies.
Clause 23 Published records and records to be published - simplified version of that for governmental bodies.

Clause 25 Right outweighing ground for refusal
This clause would provide an equivalent to the public interest override for information of governmental bodies (clause 44). The need for an override to the exemptions set out in clauses 15 - 23 was supported in the submissions made on access to records of private bodies. However the only one Ms Van Schoor felt was appropriate is that proposed - access may be granted "...if the right sought to be exercised or protected clearly outweighs the need for non-disclosure contemplated in the provision in question."

Adv de Lange suggested that members read the draft in full before it was discussed in detail. He also thought that issues relevant to the public sphere might be discussed together. His main concern surrounding the draft was its structure. The aim of the draft is to regulate the right of 32(1)(b) and the aim of the exemptions is to provide for limitations to this right. However this is problematic because the right itself is also ready internally regulated and limited, access is only allowed for the exercise or protection of any right.

Dr Delport (DP) agreed that the structure of the draft may be problematic and put forward his own proposal for access to records of private bodies (OPD 90a) which he felt took a different approach. He explained that it does not provide exemptions but instead provides for; (i) the weighing up of the interests of the requester against those of any other person - clause 4(a),and; (ii) the right to refuse access if a public body would have been entitled to refuse - clause 4(b). Dr Delport said that the proposal was a very rough draft but he hoped if created a principle which could lead to dynamic processing of requests.

Adv de Lange thought that clause 4(b) of Dr Delport's proposal was merely a more compact way to deal with the exemptions spelt out in Ms Van Schoor's draft. Further he did not think that 4(a) offered a structure different to that proposed by Ms Van Schoor, it merely spelt out broader criteria for how the internal qualification of 32(1)(b) is to be limited.

Mr Smith (IFP) said that clause 4(a) just spelt out the process that a court would follow in deciding between competing rights and in this way would not offer guidance to them. Further the entire proposal is very broad whilst the committee has already expressed the desire to have tight exemptions for the private sphere. Simple guidelines do not simplify if they offer less guidance.

Ms Chohan-Khotha (ANC) raised the issue of how some bodies straddle both the definition of governmental body and private body and how this may have implications for access to information structures. her particular concern was for public enterprises.

Ms Taljaard (DP) agreed that public enterprises straddle the boundary between the public and private sphere because although they sustain a public function their share ownership levels may see them qualify as private bodies. She went on to point out that private bodies that have statutory rights, perform a public function or have specific legislation governing them, may be deemed governmental functions. She made reference to the Statistics Act [1 - 99] which includes a list of all private bodies which have statutory rights and suggested that this be looked at by members and the department.

Adv de Lange initial feeling was that public enterprises would be governmental bodies and was more concerned about where political parties and administrative bodies of government would fall. He said that the only way to determine what was public and what private would be to look at legislation affecting bodies and see if this legislation relates to the exercising of a public power. He accepted that this may make some private bodies, governmental bodies in terms of this legislation. Further some bodies could be simultaneously be both private and governmental depending on how they were operating, some of their information may be deemed that of a governmental body, some that of a private body.

It was agreed that this issue would be further investigated.

Adv de Lange raised the issue of whether guidelines on Information Officers for private bodies would be included within the Bill. This had been previously discussed and there was consensus that the legislature could not dictate to a private body an exact structure it must set up. However it was suggested that flexible guidelines that delegate responsibility for providing information could be set out in the Bill. He requested Ms Van Schoor investigate this.

Ms Van Schoor agreed to do this but felt that as requests would be made to the head of a private body who had the power to delegate there would be no need for guidelines on this.

The way forward
Adv de Lange spelt out the following programme:

There will be no meeting on Monday.

The committee will meet again on Tuesday when Ms Van Schoor's draft on private bodies will be looked at in more detail and the further proposals on fees (following the discussions of 16 November) will also be considered.

It is still unclear when the hearings on the Administrative Justice Bill (AJB) will be. As yet very few submissions have been received but it is expected that more will imminently arrive. It is possible that the hearing could be fitted in at the end of next week (ending 26 November) but if there are too many they may continue in to the following week. All this will hopefully be clear by Tuesday.

The committee will not pass the Bill a week early as some sources have suggested. This would mean the committee would have to return on 3 January and not the 10 January. Further it is unnecessary to pass the Bills so early because as this is a joint committee the Bill can go straight to the President, without further amendments, once it has been passed in the House.
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APPENDIX 1
OPD 87cc: Proposed "Right to Know" clause for governmental bodies
# SEE NOTE AND OPTIONS 4 AND 5 INCLUDED PURSUANT TO COMMITTEE’S DISCUSSIONS on OPD 87c - 16 November

Note:
(1) Propose that the existing clause 6(2)(e) be substituted for the following:
"(e) the latest notice, published in terms of section 7, regarding the kinds of records of the body, which are available without a person having to request access in terms of Part 3;".
(2) Propose to amend clause 86(c) to provide for the making of regulations relating to the classification of records for the purposes of establishing a uniform system of classifying records as available as contemplated in the proposed clause 7.
(3) A new proposed clause 4(1)(b) (Option 1: OPD 87a) provides that the Act does not apply to a record of a governmental body which is available in terms of section 7 (proposed right to know-clause).
(4) If the financial year of a body is used as proposed in Option 4, a similar amendment to clause 6 (manual) should be considered and an appropriate transitional arrangement for the first financial year for clause 6 and proposed clause 7 should be included.

See clause 5(2) (guide) and clause 6(2) (manual) of the Bill.

Insert the following clause after clause 6:

"Right to know/Records automatically available/Availability of certain records

Option 1:
"7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, by notice in the Gazette, publish a description of—
(a) the kinds of records of the governmental body that are available for inspection without a person having to request access in terms of Part 3; and
(b) how to obtain access to such records.
(2) The fees payable for access to records in terms of subsection (1) may only provide for the cost of reproduction.".

Option 2:
"7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, by notice in the Gazette—
(a) publish an index of records of the governmental body to be open to public access without a person having to request access in terms of Part 3; and
(b) specify how such records may be inspected, copied, purchased or otherwise accessed.
(2) The fees payable for access to records in terms of subsection (1) may only provide for the cost of reproduction.".

Option 3:
"7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each financial year of the body, by notice in the Gazette, publish a description of—
(a) the kinds of records of the governmental body that are available—
(i) for inspection in terms of legislation other than this Act;
(ii) for purchase from the governmental body;
(iii) from the governmental body free of charge; and
(b) how to obtain access to such records.".

Option 4:
"7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, by notice in the Gazette, publish a description of—
Option 1 for (a):
(a) the kinds of records of the governmental body that are available without a person having to request access in terms of Part 3; and
Option 2 for (a):
(a) the kinds of records of the governmental body that are available—
(i) for inspection in terms of legislation other than this Act; [Note: might impose fees conflicting with (2) below]
(ii) for purchase from the governmental body;
(iii) from the governmental body free of charge; and [Note: Since par (b) covers the different ways in which records are available, suggest that option 1 for (a) be used.]
(b) specify how such records may be inspected, copied, purchased or otherwise accessed.
Option 1 for fee:
(2) The fees payable for access to records in terms of subsection (1) may only provide for a prescribed fee for reproduction (if any).".
Option 2 for fee:
(2) If applicable, only the payment of the prescribed fee for reproduction (if any) may be required for access to a record in terms of subsection (1)."
Option 3 for fee:
(2) No fee other than the prescribed fee for reproduction (if any and if applicable) is payable for access to a record in terms of subsection (1)."

Option 5:

"7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, furnish to the Minister of Justice a description of—
(a) the kinds of records of the governmental body that are available without a person having to request access in terms of Part 3; and
(b) specify how such records may be inspected, copied, purchased or otherwise accessed.
(2) The Minister of Justice must, on a periodic basis not less frequently than once each year, publish in one notice in the Gazette all the descriptions furnished in terms of subsection (1).
(3) No fee other than the prescribed fee for reproduction (if any and if applicable) is payable for access to a record in terms of subsection (1)."

# Following subclause proposed to be included in respect of all 5 options:
"The head of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, on a request to that record in terms of this Act, is required or permitted by this Act to be refused.".
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APPENDIX 2
OPD 90: First draft of proposed new part to provide for access to records of private bodies
18 November 1999

Long title:
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):

CHAPTER 1
GENERAL PROVISIONS

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
Option 1
3. This Part applies to the exclusion of any provision of other legislation that prohibits the disclosure of a record of a private body.
Option 2
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
Option 1
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.
Option 2:
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"?

Manual
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—
Option 1:
     (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.
Option 2:
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.

Severability
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.

CHAPTER 2
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
     (c) if—
             (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?
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APPENDIX 3
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.

Fees
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.