Public Protector; Tax Information; Application of Bill: new drafts

Meeting report

AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
17 November 1999
DISCUSSION: NEW DRAFTS REGARDING THE PUBLIC PROTECTOR, TAX INFORMATION, AND APPLICATION

Documents handed out:
Draft: Fee Section (Appendix 1)
Draft: Proposed Right-to-know Clause for Governmental Bodies (Appendix 2)
Draft: Protection of information held by Public Protector (Appendix 3)
Draft: Proposed Separate Exemption for Tax-related Information (Appendix4)
Draft: Application regarding access to records of Governmental Bodies (Appendix 5)

SUMMARY
The Committee reviewed and commented on new drafts relating to the Public Protector, tax information, and application of this Bill to other legislation.

MINUTES
Draft: Protection of information held by Public Protector
Ms van Schoor said that the revisions were made to Clause 34(1) of the current Bill. Clause 34 deals with law enforcement. Originally, the Bill did not provide any specific protection to the information held or obtained by the Public Protector. Revisions have been made to address this concern. She said firstly that the exemptions in the Bill may be too limiting as far as protecting the Public Protector. In response to that concern, she made changes to 34(1)(a)(i), (c)(i), and (c)(ii). Those changes were intended to cover the information that the Public Protector wanted to keep confidential.

Mr Smith (IFP) asked if the information that the Public Protector wanted to keep confidential went beyond criminal offences - say to include mal-administration. If so, then the changes to Clause 34 did not go far enough.

The Chair said that the contravention of the law covers those other areas. The changes made to Clause 34 go beyond just protecting information such as maladministration. The confidentiality exemption would be there to protect that type of information as well. However, he asked Ms van Schoor to check to make sure that all of the necessary information was protected with the language she used in the new draft.

Mr Lever (DP) queried the "prepared or about" language in 34(1)(b. He was concerned that this did not cover access to dockets. He said it was important to make it clear that they were not allowing access to dockets. He felt that the provision was so broadly stated that someone could interpret it to mean otherwise.

The Chair said that they do have to look at how the Bill is affected by the Shababala decision. He said that this was their attempt at protecting the Public Protector, but not completely exempting them. There were no other comments on this draft.

Draft: Proposed Separate Exemption for Tax-related Information
The Chair said that there was broad consensus that the Committee did not want to have a clause that undermined the tax system, but there was also no support for a complete exclusion for SARS. He asked Ms van Schoor to go over the new draft.

Ms van Schoor said that she had drafted two options in revising Clause 32(3). The first option was similar to the one currently in the bill. The major addition to this option was the inclusion of "fees, charges, additional tax and any other monies . . ." This language expands the coverage of the exclusion to include information related to all of those additional areas. The benefit of adding this language is that levies and duties collected by other bodies such SETA (Sector Education and Training Authority) would also be protected.

The second option came from a suggestion made by Ms Taljaard (DP). It only provides protection for tax and tax return information. It does not include such things as levies or duties as in the first option. She raised the concern that this option may be too limiting in that it would not protect levies and duties collected by other bodies such as SETA.

The Chair asked why she would want to exclude SETA anyway? There is nothing secret about levies, and further levies really relate to a duty imposed on a company rather than tax liability.

Ms van Schoor said that some levies are collect by SARS and some are collected by SETA, but both go to the same place.

Mr Smith (IFP) said that private companies do deal with tax information and trade and secrecy.

The Chair said that the "levies and duty" language could be added to the end of Option two.

Mr Smith (IFP) said that the problem was that the Committee did not have a good idea about what bodies and institutions deal with taxes, levies and duties. He was concerned that this exemption could turn out to be too broad.

The Chair said that he was more inclined to go with the second option, unless someone could give him explicit reasons as to why additional information should also be excluded.

Ms Chohan (ANC) said that she followed Chairperson de Lange's reasoning as well. She felt that the privacy exemption would cover a lot of SARS's concerns anyway. The court could test to see if the information would be covered under the privacy exemption or even the third party exemption

The Chair said that the point of excluding some of the information held by SARS was to continue to encourage people to pay their taxes. He said that it was clear that there were two options available on this issue. He stressed that Ms van Schoor had to look at what ways this Bill will be subjected to the Prevention of Organised Crime legislation. Further, Ms Chohan was correct in pointing out that they also need to look at how the privacy exemption would impact on this issue as well.

Ms Jana (ANC) suggested that if the Committee chose Option 2, that they retain the "may" rather than the "must" language,

The Chair said that they would not do that, because they do not want the clause to go any broader. He said they would only use "may"; to do otherwise would undermine the Prevention of Organised Crime (POC) legislation. He also wanted the Committee to think about how this Bill will affect the Judicial Service Commission (JSC) and the Truth and Reconciliation Commission (TRC).

Mr Smith made the suggestion of merging the "was obtained" and "is held by the body" language from Option 1.

The Chair said that was a possibility.

Mr Durr (ACDP) said that it would be helpful if Ms van Schoor passed this draft onto the Commissioner for his opinion. It is important to look at how it would affect international agreements as well.

The Chair agreed that they would do this after Ms van Schoor looked at how it was going to impact on the POC legislation.

Mr Smith (IFP) said SARS has access to lots of people's information on its own. He was wondering if their current ability to access information would be impacted by this legislation.

The Chair said that it would not, but that he would have Ms van Schoor check into it.

Ms van Schoor said that it was not the intention of the Bill to prevent SARS from accessing the information that they already do access.

Ms Taljaard raised the concern whether or not this legislation applies to access to information between governmental bodies.

The Chair said that this Bill was not drafted to cover access to information between governmental bodies, which is part of why it is so important that they look at the Prevention of Organised Crime legislation. He was not sure if it was clear in the Act that it did not apply between governmental bodies. It really was not intended to cover one governmental body asking another governmental body for access to information. The Bill does not allow the State to access information from the State.

Ms van Schoor said that Chapter 3 of the Constitution covered the issue of access between governmental bodies.

The Chair raised the point that they need to figure out what the distinction is between "everyone" and "any person."

Ms Chohan said that in looking at the Prevention of Organised Crime legislation they would also have to look at the public interest override. There are other types of illegalities that cannot be overlooked.

Ms Taljaard felt that it was important to include the relationship between governmental bodies and how to regulate the relationship between them.

The Chair said that was an issue, but not one that would be addressed in this Bill. He said that he would need a substantive argument as to why this Bill should regulate all relationships including that between governmental bodies. The government already has a system in place by which there is an exchange of information, and he does not want to interrupt that flow. He said that they would check to see what other countries do.

Ms Chohan felt that SARS argument for being excluded from the Bill had nothing to do with the discussions they were having on crime. The point of SARS argument was in order to continue to facilitate people coming forward to pay taxes, SARS had to be exempted. It is important to take their argument at face value and try to regulate around that, but to what costs to we want to regulate it?

The Chair said that is why they need to look at the Prevention of Organised Crime legislation. Protection of SARS cannot be at the cost of the effectiveness of that legislation. The SARS concern is to keep information secure so as to continue to encourage people to pay their taxes.

The Chair then said that there were some other issues that the Committee should be thinking about that they had not discussed yet. He wanted then to be thinking of the role of Members of Parliament in the Bill and to what extent they fall under this legislation. The consequences of their inclusion could be far reaching. The exemptions as of right now do not cover them. The Judicial Service Commission must be discussed - whether or not the tape recordings of their meeting are going to be accessible or not. Further, they should think of the TRC and the information they now have on criminal prosecutions. Finally, they need to think about the special tribunals and whether or not it will be treated as a court in terms of this legislation.

Ms Smith asked if the issue was really all tribunals. Should tribunals in general be exempted?

The Chair said that he could only think of the one tribunal that acts as a court so far as it functions in the system. He said that they will need to spell out how that tribunal will be treated, but he had doubts as to the constitutionality of treating it as a court.

The Chair concluded that they had done justice to the concerns raised by SARS.

Draft: Application regarding access to records of Governmental Bodies
This draft was the most complicated because it related to how this legislation would impact other legislation dealing with access to information.

Ms van Schoor said that the clauses that were in this draft were to replace clauses 2, 10, 11,12, and 43 of the current Bill. She also suggested that they amend the definition of record as she indicated in the new draft. The new Clause 2 basically says that this Bill applies retroactively, and it effectively would replace Clause 12 of the current Bill.

The Chair was concerned that this clause did not effectively mirror what was said in the discussions. He felt that it should be clear that this legislation applies to legislation in existence at the time this Bill is passed and to any legislation passed in the future.

Ms van Schoor said that there is an assumption that the law is always speaking so that the language in Clause 2 would apply to future legislation. She then moved on. Clause 3 deals with "Application of other legislation prohibiting disclosure." She had written two options for this section. The effect of either option is really the same. This legislation would preempt any other legislation relating to access to information.

Clause 4 creates a mechanism by which the Minister can look at all legislation after the Bill is passed and decide which legislation relating to access can be used. Option two of Clause 4 does not apply to the right to know and it really looks more like the clause they currently have in the Bill. Option 2 really gives the person the option of choosing which legislation they want to use to get access. The problem with that option is that this Act would circumvent the access procedures in other legislation.

The Chair said that you could add (2) and (3) from Option 1 to Option 2 so that you could start off by having the requester having the option to choose between legislation while at the same time the Minister is doing an audit of all of the relevant legislation.

Ms van Schoor said that Clause 5 would replace Clause 10 in the current Bill, which relates to access to police dockets.

The Chair asked if other countries have a similarly worded clause as Clause 5, because it seems extremely complicated. Also it is important to see how the Shabalala case will affect this provision. The problem with this clause is that the State can use it to prohibit you from getting information that you would ordinarily get through discovery.

Ms van Schoor responded by saying that the right to access dockets should really be covered by the right to a fair trial.

The Chair said that they would look at that, but he was concerned that this Act would override the Shabalala decision. How is that decision going to weigh up if the right to access is at odds with the right to a fair trial?

Ms van Schoor said that Clause 6 gave permission for requesters to publish or broadcast the information once they had access to it, which would replace Clause 11 of the current bill.

The Chair said that maybe they should add a sunset clause to Clause 4, which would just give the Minister the right to do an audit later of all other legislation and then decide which ones would be pre-empted by this Bill. He said that they also have to look at how the issue of access between governmental bodies would apply here as well. Further, it seemed that Clause 3 still did not deal with future and past legislation and also that Clause 3 conflicted with Option 2 of Clause 4. There were also still problems with Clause 5, because Ms van Schoor had not checked to see how the Shabalala decision would impact on it.

Mr Landers (ANC) suggested that they amend the Criminal Procedure Act to deal with the Shabalala decision.

The Chair said that there was merit in doing that, but that still would not solve the problem, because you still have to weigh the right to access against the right to a fair trial. He asked Ms van Schoor to make a note in the resolution to look at the Shabalala case.

Ms Camerer (NNP) said that the emphasis in the new Clause 5 was different from its counter-part Clause 10 in the current Bill. Clause 5 is very limiting in that it prohibits the supplier of information rather then the requester. What does this shift mean?

The Chair admitted that Clause 5 was complicated and that it had holes in it. He wanted to look at how this clause was worded in other countries. He acknowledged that Ms Camerer made a good point about the shift in emphasis.

Mr Durr said that the word "publish" in Clause 6 really worried him. This could be highly problematic. The Archives has a copyright over the information that they hold, but with this provision a person could go to Archives and copy the information that they want on slavery in the Cape and publish it in their book on slavery.

The Chair said that this was a big worry. To wipe out all copyright laws by allowing people the right to publish the information once they have access would be problematic. Further, the Committee really needs to look at the statutory issue. No where does the Bill say whether or not the Bill also applies to statutory law. The main point is that the Committee has to remember that this Bill is creating other rights.

Mr Landers (ANC) was surprised that the Director of Archives had not picked up on this.

The Chair said that it was amazing how much people missed in their submissions. He said that they would speak to the Director of Archives about it. He asked if they needed Clause 6 at all. Once you have the information you can do what you want with it in terms of the law, which is why this Bill should also be subjected to common law.

Mr Smith (IFP) said what is the harm in keeping Clause 6 in if it is used for guidance purposes?

The Chair said the harm could be devastating if a judge in interpreting the clause looked at the specific language which said 'publish'. It is fine if the clause acts as a guide, but for now the way that it is drafted changes copyright law.

Mr Durr (ACDP) wanted to come back to the point he raised earlier about how Clause 6 impacts copyright law. He wanted to add that it is not just South African copyright law that would be affected, but international copyright law could also be affected by this provision.

Mr Smith (IFP) said that he preferred Option 2 from Clause 4, but he was wondering why it was necessary to standardize the procedures from Clause 4 at all. How will the Committee know if Clause 4 really is the best procedure over all other legislation?

The Chair said that whatever other laws that deal with access to information are going to have to be tested against this Bill, and then decisions can be made on which procedure or procedures would be the most effective. Option 1 subsection (3) of Clause 4 is an attempt to find a mechanism which over a period of time an audit would be done. The audit would indicate which procedures from other legislation are to be kept in place and which ones will be overridden by this Bill. Another method for doing the same thing would be to create a schedule with the results of the audit. Finally, a sunset provision could be created, which would have the same overall effect as the other two options.

Mr Smith (IFP) wanted to point out that Clause 5 does have a change in emphasis from the corresponding Clause 10 of the Bill, and he wanted to point out that the clause does not take into account the Shabalala decision.

The Chair said again that they were going to look into that. He admitted that he was not sure how Clause 3 fitted in with Clauses 2 and 4. How were they going to work together? It seemed as though they were in stark conflict.

Ms Jana (ANC) said that they really are not in conflict. Clause 3 deals with constitutionality and principle and not anything else. This is indicated through the use of the language "prohibiting or restricting access." She pointed out that Clause 4 deals with a different procedure. Clause 4 does not kick in until you actually have access to the information. Clause 3 kicks in before access is granted. There is no conflict.

The Chair admitted that her assessment was correct, and that was what Ms van Schoor had intended when she drafted this section. He asked if there was a way to clean up the language in Clause 3 to make it clear that it only deals with "prohibiting and restricting" rather than actual access. He wanted to make sure that in practice people would be able to distinguish between the clauses.

Ms Jana (ANC) also wanted to point out the it is normal practice for new legislation to replace old legislation.

Ms van Schoor said that the "non-disclosure" language from the Queensland document would support Ms Jana's point, and would make the provision much more clear and would make the provision more in line with what they had in mind.

Mr Swart (ACDP) said that he liked Option 2 of Clause 4 better, because it gives the person the right to choose which legislation they wish to follow in terms of getting access to the information that they want. However, he also like the language from subsections (2) and (3) in Option 1. He wanted to suggest that they combine both options together.

Mr Smith (IFP) liked Mr Swart's proposal to combine Options 1 and 2 of Clause 4

The Chair said that they could add to Mr Swart's analysis what Ms Jana raised about Clause 3. If you read the option of Clause 3 with Option 2 of Clause 4, then what happens is whichever procedure in whichever piece of legislation proves to be less onerous on the requester to get access to the information that they want will override the procedure in any other legislation. The more onerous legislation will, in effect, be excluded.

Mr Durr (ACDP) wanted to say one more thing about the points he was raising earlier with regard to the flaws in Clause 6. He said that the way Clause 6 was currently drafted would also impact on the areas of royalties and patents.

The Chair said that all of his points were well made, and that they must look at the viability of Clause 6. They will either need to remove it or draft it in such a way that it acts more as a guiding principle as Mr Smith had suggested

Mr Smith (IFP) asked why it was necessary to have Clause 3 at all.

The Chair said that of all of the clauses on this subject, Clause 3 was the most vital. The purpose of Clause 3 is to make sure that all of the secrecy and confidentiality type clauses in other legislation that impact access to information are wiped out. Where another law prohibits your access to information this law will override it. The purpose of Clause 4 is merely to provide you with the option of using the access provisions in other legislation if you wish to do so.

The Chair than summarized what had been discussed. He said that the next draft for this section should contain both the sunset option and the schedule option under Clause 4. He asked Ms van Schoor to draft the sunset provision and the Clause 43 equivalent completely separately, and Clause 43 (records already open to the public) should be put at the beginning of the Bill rather than as an exemption. Also, he asked Ms van Schoor to write an option to Clause 4 that took Mr Swart's suggestion into account, which combined both Option 1 and 2 together. Additionally, it is important to look at the issue of whether or not this legislation applies between governmental bodies. The language of Clause 2 needs to be looked at, and perhaps the "non-disclosure" language of the Queensland document should be used instead of the current language. He wanted to be sure that this section made it clear that it impacts on both past and future legislation. They will need to look again at Clause 5. Finally, he admitted that Clause 6 has serious problems, and that they needed to look at the issues raised by Mr Durr.

Open Democracy Bill Drafts as released on 16 November 1999
Draft: Fee Section: see Appendix 1 below
Draft: Proposed Right-to-know Clause for Governmental Bodies: see Appendix 2 below
Draft: Protection of information held by Public Protector: see Appendix 3 below
Draft: Proposed Separate Exemption for Tax-related Information: see Appendix 4 below
Draft: Application regarding access to records of Governmental Bodies: see Appendix 5 below

Appendix 1:
Draft: Fee Section
PROPOSED AMENDING OPTIONS RELATING TO CLAUSES 17, 18 AND 24 (FEES):

NOTE:
The options hereunder will require the deletion of the definitions of "commercial requester", clause 1(iii) and "non-commercial requester", clause 1(xii). Consideration may be given to the inclusion of the following definition: "requester" — means a person who is not a personal requester.

Clauses 17(3) and 18(3)(b) of options 1 and 3 and clause 17(6) of option 2 will be rendered obsolete if the head of a governmental body becomes the information officer. The relevant subclauses should either be deleted or provision should be made for representations to be made to the head of the governmental body to reconsider the decision).

OPTION 1:

Payment of request fee
17. (1) A requester, other than a personal requester, must, when making his or her request for access, pay the prescribed request fee.

(2) If that requester has not paid the prescribed request fee the information officer of the governmental body concerned must by notice require the requester to pay that fee.

(3) That notice must state—

(a) that the requester may lodge an internal appeal with the head of the body against the payment of the fee; and

(b) the procedure (including the period) for lodging the internal appeal.

(4) If the prescribed request fee is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee is paid.

Payment of deposit
18. (1) If—

(a) the search for a record of a governmental body in respect of which a request for access by a requester, other than a personal requester, has been made; and

(b) the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)),

would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.

(2) No deposit is payable in respect of a request for access by a personal requester.

(3) The notice referred to in subsection (1) must state—

(a) the amount of the deposit; and

(b) that the requester may lodge an internal appeal with the head of the governmental body concerned against the payment of a deposit, and the procedure (including the period) for lodging the internal appeal.

(4) If a deposit is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the deposit is paid.

(5) If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.

Access fees
24. (1) A requester whose request for access to a record of a governmental body has been granted may be given access to the record only if he or she has paid the applicable prescribed access fee (if any).

(2) Access fees prescribed for the purposes of subsection (1) must provide for a reasonable access fee for—

(a) the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and

(b) the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").

(3) A personal requester must pay an access fee for reproduction only.

(4) A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.

(5) The Minister of Justice may, by notice in the Gazette —

(a) exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;

(b) determine that any fee is not to exceed a certain maximum amount; and

(c) the manner in which any fee is to be calculated.

OPTION 2:

Fees
17. (1) An information officer to whom a request for access to information is made must by notice require the requester to pay the prescribed request fee, and the decision on the request in terms of section 19 may be deferred until the fee is paid.

(2) A requester whose request for access to a record of a governmental body has been granted may be given access to the record only if he or she has paid the applicable prescribed access fee (if any).

(3) A requester must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.

(4) Access fees prescribed for the purposes of subsection (2) must provide for a reasonable access fee for—

(a) the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and

(b) the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").

(5) If —

(a) the search for a record of governmental body in respect of which a request for access by a requester, other than a personal requester, has been made; and

(b) the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)),

would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.

(6) The notices referred to in subsections (1) and (5) must state —

(a) the amount of the deposit payable in terms of subsection (5);

(b) that the requester may lodge an internal appeal with the head of the governmental body concerned against the payment of the request fee in terms of subsection (1), or the payment of a deposit in terms of subsection (5), as the case may be; and

(c) the procedure (including the period) for lodging the internal appeal.

(7) A personal requester is exempted from paying a request fee and deposit and must pay an access fee for reproduction only.

(8) The Minister of Justice may, by notice in the Gazette —

(a) exempt any person or category of persons from paying any fees in terms of this section;

(b) determine that any fee is not to exceed a certain maximum amount; and

(c) the manner in which any fee is to be calculated.

(9) If a deposit has been payed in respect of a request for access which is refuse, the information officer concerned must repay the deposit to the requester.

OPTION: 3

Payment of request fee and deposit
17. (1) A requester must, when making his or her request for access, pay the prescribed fee.

(2) If that requester has not paid the prescribed request fee, the information officer of the government body concerned must by notice require the requester to pay that fee.

(3) If—

(a) the search for a record of a governmental body in respect of which a request for access by requester has been made; and

(b) the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa),

would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.

(4) No deposit is payable in respect of a request for access by a personal requester.

(5) The notice referred to in subsection (3) must state—

(a) the amount of the deposit; and

(b) that the requester may write representations to the head of the governmental body concerned against the payment of a deposit, and the procedure (including the period) for missing representations.

(6) If the prescribed request fee or deposit, as the case may be, is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee of deposit is paid.

(7) If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.

Access fees
24. (1) A requester whose request for access to a record of a governmental body has been granted may be given access to the record only if he or she has paid the applicable prescribed access fee (if any).

(2) Access fees prescribed for the purposes of subsection (1) must provide for a reasonable access fee for—

(a) the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and

(b) the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").

(3) A personal requester must pay an access fee for reproduction only.

(4) A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.

(5) The Minister of Justice may, by notice in the Gazette —

(a) exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;

(b) determine that any fee is not to exceed a certain maximum amount; and

(c) the manner in which any fee is to be calculated.

Appendix 2:
Draft: Proposed Right-to-know Clause for Governmental Bodies

# 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 year, 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

(b) how to obtain access to such records.".

# Following subclause proposed to be included in respect of all 3 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.".

Appendix 3:
Draft: Protection of information held by Public protector

If section 7(4), read with section 7(5), of the Public Protector Act, 1994 (quoted below), is construed to give the Public Protector the "right to demand" information, such information could not be refused under clause 32(1) of the Bill in view of clause 32(1)(b). Propose amendments to clause 34(1) to sufficiently protect information relating to investigations by the Public Protector - deletions are in [ ] and insertions are underlined:

(1) The information officer of a governmental body may refuse a request for access to a record of the body if—

     (a) the record contains methods, techniques, procedures or guidelines for—

             (i) the prevention, detection, suppression or investigation of [offences] a contravention or possible contravention of the law; or

             (ii) the prosecution of alleged offenders,

and the disclosure of those methods, techniques, procedures or guidelines would be likely to prejudice the effectiveness of those methods, techniques, procedures or guidelines or lead to the circumvention of the law or facilitate the commission of an offence;

     (b) the prosecution of an alleged offender is being prepared or about to commence or pending and the disclosure of the record would be likely—

             (i) to impede that prosecution; or

             (ii) to result in a miscarriage of justice in that prosecution;

     (c) the disclosure of the record would be likely—

             (i) to prejudice the investigation of [any offence or possible offence] a contravention or possible contravention of the law which is about to commence or is in progress or, if it has been suspended or terminated, is likely to be resumed;

             (ii) to reveal, or enable a person to ascertain, the identity of a confidential source of information in [respect of a law enforcement matter] relation to the enforcement or administration of the law;

             (iii) to result in the intimidation or coercion of a witness, or a person who might be or has been called as a witness, in criminal or other proceedings to enforce the law, or to endanger the life or physical safety of that witness or person;

             (iv) to result in the commission of an offence;

             (v) subject to subsection (2), to facilitate escape from lawful detention; or

             (vi) to deprive a person of a right to a fair trial or an impartial adjudication; or

     (d) the record contains arrangements for the protection of an individual in accordance with a witness protection scheme.

Section 7(2) to (6) of the Public Protector Act 23 of 1998 quoted below:

"(2) Notwithstanding anything to the contrary contained in any law no person shall disclose to any other person the contents of any document in the possession of a member of the office of the Public Protector or the record of any evidence given before the Public Protector, a Deputy Public Protector or a person contemplated in subsection (3) (b) during an investigation, unless the Public Protector determines otherwise.

(3) (a) The Public Protector may, at any time prior to or during an investigation, request any person-

(i) at any level of government, subject to any law governing the terms and conditions of employment of such person;

(ii) performing a public function, subject to any law governing the terms and conditions of the appointment of such person; or

(iii) otherwise subject to the jurisdiction of the Public Protector,

to assist him or her, under his or her supervision and control, in the performance of his or her functions with regard to a particular investigation or investigations in general.

(b) ...

(4) (a) For the purposes of conducting an investigation the Public Protector may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated, and may examine such person.

(b) The Public Protector or any person duly authorised thereto by him or her may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated.

(5) A direction referred to in subsection (4) (a) shall be by way of a subpoena containing particulars of the matter in connection with which the person subpoenaed is required to appear before the Public Protector and shall be signed by the Public Protector and served on the person subpoenaed either by a registered letter sent through the post or by delivery by a person authorised thereto by the Public Protector.

(6) The Public Protector may require any person appearing as a witness before him or her under subsection (4) to give evidence on oath or after having made an affirmation.

...." (Our emphasis.)

Appendix 4:
Draft: Proposed Separate Exemption for Tax-related Information

PROPOSED SEPARATE EXEMPTION FOR TAX RELATED INFORMATION TO REPLACE CLAUSE 32(3)

Revenue information

Option 1:
The information officer of a governmental body must refuse a request for access to a record of the body if it contains information which "was obtained" OR "is held by the body" for the purpose of enforcing legislation "imposing taxes, duties, levies, fees, charges, additional tax and any other moneys, including penalties and interest in connection with such moneys" OR "concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997)".

Note: "‘revenue’ is defined in the South African Revenue Service Act, 1997, as "income derived from taxes, duties, levies, fees, charges, additional tax and any other moneys imposed in terms of legislation, including penalties and interest in connection with such moneys".

Option 2:
The information officer of a governmental body must refuse a request for access to a record of the body if it reveals information that was obtained on a tax return or for the purpose of determining tax liability or collecting tax.

Note: Reference to "tax return" and "... tax ..." too limited? If reference is made only to tax, etc collected by SARS it would exclude levies and duties collected by other bodies (eg skills development levies collected by SETAs).

Example of "tax" secrecy provision - Income Tax Act, 1962:

"Preservation of secrecy
4.(1) Every person employed in carrying out the provisions of this Act shall preserve and aid in preserving secrecy with regard to all matters that may come to his knowledge in the performance of his duties in connection with those provisions, and shall not communicate any such matter to any person whatsoever other than the taxpayer concerned or his lawful representative nor suffer or permit any such person to have access to any records in the possession or custody of the Commissioner except in the performance of his duties under this Act or by order of a competent court: Provided that-

(a) any information obtained by the Commissioner in the performance of his duties under the provisions of this Act or any previous Income Tax Act may be used by him for the purposes of the provisions of any other fiscal law administered by him;

(b) the Auditor-General shall in the performance of his duties in terms of section 3 of the Auditor-General Act, 1995 (Act 12 of 1995), have access to documents in the possession or custody of the Commissioner;

(c) the provisions of this subsection not be construed as preventing the Commissioner from disclosing to the Chief of the Central Statistical Services such information in relation to any person as may be required by such Chief in connection with the collection of statistics in complying with the provisions of the Statistics Act, 1976 (Act 66 of 1976), or any regulation thereunder.

(1A) The Chief of the Central Statistical Services or any person acting under the direction and control of such Chief, shall not disclose any information supplied under subsection (1) (c) to any person or permit any person to have access thereto, except in the exercise of his powers or the carrying out of his duties to publish statistics in any anonymous form.

(1B) ......

(a) Every person so employed shall, before acting under this Act, take and subscribe before a magistrate or justice of the peace or a commissioner of oaths, such oath or solemn declaration, as the case may be, of fidelity or secrecy as may be prescribed.

(b) Any oath of secrecy taken and subscribed under the provisions of any previous Income Tax Act by any person who is employed in carrying out the provisions of this Act shall be deemed to be an oath taken and subscribed in terms of this subsection.

(2A) No person shall in any manner publish or make known to any other person (not being an officer carrying out his duties under the control, direction or supervision of the Commissioner) the contents or tenor of any instruction or communication given or made by the Commissioner or any such officer in the performance of his or their duties under this Act for or concerning the examination or investigation of the affairs of any taxpayer or class of taxpayers or the fact that such instruction or communication has been given or made, or any information concerning the tax matters of a taxpayer or class of taxpayers: Provided that the provisions of this subsection shall not be construed-

(i) as preventing any taxpayer or his representative who is or may be affected by any such examination, investigation or furnishing of information from publishing or making known information concerning his own tax matters; or

(ii) subject to the provisions of subsection (1), as in any way limiting the duties or powers of the Commissioner or any such officer; or

(iii) as preventing any person from publishing or making known anything which has been published or made known by the taxpayer or his representative as contemplated in paragraph (i) or by the Commissioner or any such officer in the exercise of his duties or powers.

(3) Any person who contravenes the provisions of subsection (1) or (2A) shall be guilty of an offence and liable on conviction to a fine not exceeding R5 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(4) Any person who acts in the execution of his office before he has taken the prescribed oath or solemn declaration shall be guilty of an offence and liable on conviction to a fine not exceeding R50.

SOUTH AFRICAN REVENUE SERVICE ACT 34 OF 1997: LEGISLATION ADMINISTERED BY COMMISSIONER

1. Union and Southern Rhodesia Death Duties Act, 1933 (Act 22 of 1933)

2. Marketable Securities Tax Act, 1948 (Act 32 of 1948)

3. Transfer Duty Act, 1949 (Act 40 of 1949)

4. Estate Duty Act, 1955 (Act 45 of 1955)

5. Income Tax Act, 1962 (Act 58 of 1962)

6. Customs and Excise Act, 1964 (Act 91 of 1964)

7. Stamp Duties Act, 1968 (Act 77 of 1968)

8. Value-Added Tax Act, 1991 (Act 89 of 1991)

9. Section 60 of the Income Tax Act, 1993 (Act 113 of 1993)

10. Section 39 of the Taxation Laws Amendment Act, 1994 (Act 20 of 1994)

11. Company Tax Amendment Decree, 1994 (Decree 2 of 1994), of the former Republic of Ciskei

12. Section 41 of the Income Tax Act, 1994 (Act 21 of 1994)

13. Tax Amnesty Act, 1995 (Act 19 of 1995)

14. Sections 56 and 57 of the Income Tax Act, 1995 (Act 21 of 1995)

15. Tax on Retirement Funds Act, 1996 (Act 38 of 1996)

16. Final Relief on Tax, Interest, Penalty and Additional Tax Act, 1996 (Act 101 of 1996)

17. The Sales Tax Act, 1978 (Act 103 of 1978), to the extent that it remains in force in terms of section 85 of the Value-Added Tax Act, 1991 (Act 89 of 1991)

18. Any regulation, proclamation, government notice or rule issued in terms of the above-mentioned legislation or any agreement entered into in terms of this legislation or the Constitution.

AND any other legislation concerning the collection of revenue that may be assigned to SARS in terms of either legislation or an agreement between SARS and the organ of state or institution entitled to the revenue.

Appendix 5:
Draft: Application regarding access to records of Governmental Bodies

# To replace clauses 2, 10, 11, 12 and 43 and reference in paragraph (i) of the definition of record to "and whether it was created before or after commencement of this section".

Act applies to record whenever it came into existence

2. This Act applies to a record of a governmental body regardless of when the record came into existence.

Application of other legislation prohibiting disclosure
Option 1

3. This Act applies to the exclusion of other legislation prohibiting or restricting access to a record of a governmental body.

Option 2
3. If any conflict arises between this Act and any other legislation that prohibits or restricts access to a record of a governmental body, this Act prevails.

Application of other legislation providing for access
Option 1
4. (1) This Act, except {correction clause}, does not apply to a record of a governmental body which is available—

     (a) subject to subsection (2), in accordance with—

(i) any other legislation; or

(ii) arrangements made by that governmental body,

whether or not such access is subject to a fee;

  (b) in terms of section 7 [proposed "right to know"].

(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 governmental body in terms of any legislation or arrangement is more onerous than access to that record would have been in terms of this Act.

(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 governmental 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. Nothing in this Act prevents a governmental body from giving access to a record of that body in accordance with any other law.

Note: Gives a person a choice as to which legislation he/she wishes to use, but, if this Act is used it "circumvents" established procedures for access (eg deeds) under other legislation.

Use of Act for criminal or civil discovery of governmental bodies’
5. No accused in criminal proceedings or party to civil proceedings, or person acting on the behalf of that accused or party, requiring the production of documents for the purposes of those criminal or civil proceedings, as the case may be, may be given access to a record of a governmental body in terms of this Act if that production is provided for in any other law.

Note: This provision may be circumvented if another person obtains access in terms of the Act and furnished the information to person to use it in criminal or civil proceedings. Proposal: Provide in clause 85 that a contravention of clause 10 is an offence.

Right to disclose record to which access is given
6. Subject to the common law, any person, whether or not he or she is the relevant requester, may publish, broadcast or otherwise disclose information contained in a record of a governmental body to which access is given in terms of this Act.