Drafts on Fees & Right-to-know

Meeting report

AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
16 NOVEMBER 1999
DISCUSSION: NEW DRAFTS OF FEES AND RIGHT-TO-KNOW

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
Chairperson de Lange said that the next two weeks were going to be difficult, because everyone is still busy trying to get mandates from their parties on particular issues. Ms van Schoor is still working on a draft of the private sector bill, but they had rough drafts of the Fee Section, Right-to-know , Public Protector, and South African Revenue Service (SARS). Today they looked at the drafts of the Fee Section and the Right-to-know . They did not make any decisions or agreements on anything, but they did provide suggestions to be incorporated in yet another draft of those sections.

If the committee plans to meet next after the Thursday plenary session (as yet unconfirmed). Thereafter the following meeting will be Tuesday 23 November 1999.

MINUTES
The Chair said that they would be looking at the new drafts of the fee Section, the right-to-know , the Public Protector, and SARS.

Ms Smuts (DP) wanted to make two points right away on behalf of her party. They want included in the Bill a provision that would require governmental departments to publish their guidelines, regulations and rules. She referenced the University of Witwatersrand submission, and she also said that there were comparable provisions in both the U.S. model and the Australian model. She reminded everyone that you cannot expect people to follow the law if they do not know what the law is. Her second point was to say that the exclusions needed to be cleaned up. Both the Australian and the Canadian models have very clear language in their exemption sections. She suggested that the Committee go back and look at these.

The Chair said that she was right about the fact that the exemption Section needed to be cleaned up - there is general agreement on that point. As far as the first point, the Chair said that she should voice this concern again when the time comes for MPs to give their position statements. He suggested that she write up a one page argument saying why she felt that governmental department regulations needed to be included in this legislation rather than in the Administrative Justice Bill.

Draft: Fee Section
Mr du Preez said the new draft gave three different options of how to approach the issue of fees. The three options are basically the same so far as context, but they vary in terms of order. The new draft of the fee Section is linked to the original fee Section, which is housed in sections 17, 18 and 24 of the ODB.

The new draft takes out the distinctions between different types of requesters, and simply distinguishes between a personal requester and a person requesting information that is personal. The fee Section only applies to personal requesters in terms of their having to pay reproduction fees. A person requesting information that is personal will not have to pay any request fees or deposits. The new draft also gives the Minister the power to exempt certain people from having to pay any fees at all, which was added to ensure that indigent people will be exempted from the fee structure.

The Chair asked Mr du Preez if he had used any of the concepts that Ms Taljaard suggested from the UK model in this draft?

Mr du Preez said that had started to do that, but then felt that it would be better expressly to state in the Bill the types of requesters. You really do not want to leave that much to the Minister to create in the regulations.

The Chair asked Mr du Preez to add in a Section on capping in subsection 5, because it was not included under any of the options. You want the Minister under subsection 5 to have the power to exclude people completely from having to pay fees and you want to give him the power to cap the fees. The Minister should be able to say, for example, that NGOs will not have to pay for the first hour of research time.

The Chair then asked if anyone had any suggestions on the draft.

Ms Smuts (DP) said that if all the power to create the fee structure was in the Minister's hands, then there is the potential for unjustified limitation on people's access rights. The Minister could make the fees so onerous that people would not be able to pay them.

The Chair said that the Committee would be in a position to look at the regulations before they get promulgated, and if the Minister tried to make the fees too great, then the Committee can have them challenged by taking them to the Constitutional Court. With the Committee being able to comment on the regulations and bring them into the public light, the regulations will be fine.

Ms Camerer (NNP) wanted people only to have to pay for the time of the officials in doing the search for the document. The introduction of a request fee complicated the whole process. A request fee would require that people pay money just to get assistance. It should be that people pay a fee for the search service and not merely to fill in the application for a search service. She objected to a barrier being put in place that required people to pay to have their application processed. She argued that type of charge could be included into the access fee. You do not want a monetary barrier put in front of you before you even get started in the process.

The Chair said that the way he understood that type of fee structure was through the experiences of other jurisdictions. In other jurisdictions they found that all of the work would be done to get the information, but then the requester would decide that they no longer wanted the information or did not want to pay for it. There needs to be some penalty for not paying or some way to insure that there would be compensation for the work done, which is the point of a deposit.

Ms Camerer (NNP) said that ordinary people making requests for information should not have a barrier to access.

The Chair said that she was assuming that the information officer was making a decision about the document before they even had a chance to look at it. The information officer is not going to have the document. Further, he said that they were creating a right-to-know Clause, which would by pass this structure anyway.

Ms Jana (ANC) asked if there was a plan to include a refund section.

The Chair said that he thought that Mr Durr had also raised that point last week. Is there not provision for that already in the legislation?

Mr Landers (ANC) asked if it was possible to refund the deposit or is any part of the fee refundable?

The Chair asked Ms van Schoor to look at this again to see if there was a way of working it in.

Ms Chohan (ANC) said that the whole issue of fees needed to be clarified. How is it going to work practically? She pointed out that there really was no request fee per se. Everyone was getting confused. There are two types of fees: deposit and your access fee.

The Chair then asked Mr du Preez to explain the Section 17(1) request fee as opposed to Section 24 access fee.

Mr du Preez said that the access fee referenced in Section 24 was defined as work done to get the information or work done plus replication costs. The request fee from Section 17 refers to the fee you have to pay as soon as you submit your request, which would be better named as the application fee.

The Chair said that the request fee was as he had understood it. The access fee will be deducted from the deposit and the application fee. There are some that will be excluded from paying any of these fees. The problem is that we do not know what price the Minister will put on the application fee.

Ms Taljaard (DP) asked if the drafters had looked at the Freedom of Information Act from the U.S. She read aloud Section 4(2), which talked about fees. She said the U.S. model as well as the UK model did not create that initial barrier to access by creating an application fee. Further, both the U.S. and the UK model state that there will be no fee for information that in being accessed in the public interest, which is a provision that would go well with the public interest override already in the Bill.

The Chair said that they would look into that.

Ms Jana (ANC) said that there was a request fee as well as an access fee in the Australian model. Nevertheless, she believed that they really should only have an access fee.

The Chair said that the problem with not having a request fee is that a person could make some 2000 requests and overburden the department. He said that they should think of the consequences.

Ms Jana (ANC) said that was an extreme case. What the committee is talking about is the ordinary person.

The Chair pointed out that the ordinary person would not even need to worry about all of this, because they are only going to have to pay copying fees, as the majority of the information that they want is going to fall under the right-to-know category. All of that is spelled out in Section 24(3).

Ms Camerer (NNP) supported Ms Jana. If you look at other countries, there is not a thirst for information. You do not want to put artificial barriers up that would restrict accessibility. Further, you do not want to implement a fee system that would cost more to administer that it would pay back.

The Chair said that just because the U.S. and the UK do not have a request fee does not mean that other countries do not. Australia uses it. This is not something unusual. Again, he pointed Ms Camerer to Section 24(3) and (5), because they really address her concerns.

Ms Chohan (ANC) said that all of this debate was unnecessary, because this process DOES NOT apply to requests for personal information. If you are requesting some personal information on yourself, then you are not going to have to pay any request fee or any other fee other than copying. It is important to be sure that the requester wants the information up front and that they are willing to pay for it, which is the purpose of having a deposit. You are not actually creating a third category of fees.

Ms Jana (ANC) said that the deposit is actually a part of the access fee. In truth, you only have one type of fee, because the deposit and the access fee are really one and the same, but that attach at different times.

Mr Landers (ANC) pointed out again that Section 17(1) was confined to commercial requesters.

Mr Masutha (ANC) said that it was important to keep in mind that they did not want to create a separate appeal mechanism for fees only. There should be one standardized appeal mechanism for appeals of decisions made by the information officer.

The Chair to clarify said that the person requesting personal information about themselves would only have to pay reproduction costs, which is covered in Section 24(3). The question is do we need a request fee or is it covered under the access fee? As you think about that bear in mind Section 24(5). Further, the drafters need to look at how to incorporate the issue of capping in 24(5) in option 1, and they need to take a look at the U.S. model to see if it would be of assistance.

Mr Masutha (ANC) said that as the Bill stands right now Section 17 deals with request fees, and Section 18 deals with access fees. Perhaps the heading for Section 18 should include both access fees as well as deposits.

The Chair said again that the major issue for the fee Section was on this notion of a request fee, and the fact that the Clause needs to broadened to address the issue of capping.

Mr Landers (ANC) had a concern over who would determine the reproduction costs. The Chair said that it will be proscribed in the regulations.

Draft: Proposed Right-to-know Clause for Governmental Bodies
Ms van Schoor went over the three options presented in the draft which would be inserted after Clause 6 [Manual on functions of, and index of records held by, governmental body].

The first option put the burden on the governmental body to publish in the Government Gazette "the kinds of records" that the governmental body would want to make readily available. It then says that the governmental body should also make it clear how a person can assess that information (e.g. via the Internet), and finally that the only fees would be for the cost of reproduction of those documents.

The second option puts the burden on the governmental body to publish "an index of records" rather than the "kinds of records" as was in the first option. Additionally, the second option is more specific about how the records can be accessed.

Finally the third option makes a distinction between the different types of records, and how those different types will be made available.

The Chair said that purpose of the right-to-know is to remove this type of information from the application process in the Bill. The three options are possible mechanisms for giving effect to this type of information

Ms Camerer (NNP) felt that the way the right was drafted made it appear more like a right to withhold information. The provision should state how we see the right-to-know and what its purpose is. Further, it seems to give really wide discretion to the departments.

The Chair said that it had to give wide discretion to the departments, because it is up to them to decide what information they want to fall under this right-to-know . If they want to give more documents that is great - the point is to create more accessibility. Further, the department can delete a part of a record and then place the document under the right-to-know category of information as well.

Ms Smuts (DP) suggested that they add what is to be published in the Gazette into the manuals as described in Clause 6 of the ODB, in order to tell the public what categories of information will be available.

Ms van Schoor said that she would look into that, and perhaps use the Australian model in developing a mechanism for ensuring that the information was also in the manuals. Perhaps each department could produce their own manual.

Ms Smuts (DP) said that the information made available in the new Clause 7 (right-to-know ) should be put into the manual as well. So she needs to add to Clause 6 of the Bill pertaining to the manuals the fact that the information from Clause 7 also applies. Further, the guidelines she had referred to at the beginning of the meeting should also be included in Clause 6.

The Chair said that her first point was good, and that they would add that the right-to-know information would be put into the manuals as laid out in Clause 6. The solution may be to use parts of all three options to create a new draft.

Mr Smith (IFP) said that the duty of the governmental body to publish in the Government Gazette on at least an annual basis was fine under option one, but that it would be too much of a burden under option 2. Option 2 uses "index of records", which would include a lot more than "kinds of records" from option 1. He likes part (a) of option 1, but liked part (b) of option 2.

The Chair said that the solution may be in taking a little from each of the options. Further he noted that Clause 86 would have to be amended to match this Clause.

Mr Smith (IFP) said that the language "if applicable" needed to be added to Option 2 subsection (2) on fees. He was concerned that a governmental department would try and sell the information that they are making available under the right-to-know . For example, the governmental department might try and sell their glossy annual reports for a profit.

The Chair said that another option would be to add that to the fee Section, and just spell it out there. He said that even the fees should be proscribed.

Mr Mahlangu (ANC, co-chair) wanted them to keep in mind the costs involved in administering the fee structure. It might be that it costs more to have the fee structure in place than the amount of fees actually generated. It may cost more to run the system than the amount you take in. For example, it may cost the requester 10 cents to copy this information, but the governmental department has to pay R5 to furnish a receipt. Further, he asked about how you would pay for information if it was made available on the Internet.

Mr du Preez said that he would look into that. He said that the onus is on the department not to overburden itself. The department can chose how much information they want to make available.

The Chair said that you would not have to pay to get information off the Internet.

Mr Smith (IFP) suggested having the government departments publish in provincial Gazettes as well as the national Gazette.

The Chair was worried about that suggestion because it is national comprehensive legislation, which means everything has to be done through the Minister. Further, he did not want to create a fragmented system.

Mr Smith (IFP) asked if the right-to-know provision applied only to governmental bodies or if it also applied to private bodies.

The Chair said that they were split on that issue, and that they would have to come back to it.

Mr Smith (IFP) asked if all the local libraries were going to have a copy of what was published in the Gazette

The Chair reminded him that all of the information that was published in the Gazette would also be put into the manuals, as Ms Smuts suggested. The Gazette was the legal method of publicizing what information fell under the right-to-know.

Ms Smuts (DP) asked if they were suggesting that all 800 or so governmental bodies had to publish in the Gazette.

The Chair said that they would have to finalize that point. They were thinking of a way to pull all the local government information together in some way. They were also looking at creating a manual for particular industries as far as public enterprise is concerned, which would cut down on the number of manuals.

Ms Chohan (ANC) wanted to know why publication in the Government Gazette was necessary at all.

The Chair explained that by creating a right-to-know provision you are creating a pile of information that will not be covered by the Bill. To do this, you must give that provision legal status and standing. Effectively, by creating this provision you are giving the government the power to chose what documents will not be regulated by the Bill. Without publishing this in the Gazette you would be giving the government unconstitutional powers. You cannot have the government making changes to the manual every day, without some oversight by Parliament, which is the function of the publication in the Gazette.

Mr Smith (IFP) was concerned that there were no regulations or guidelines there to enforce the right-to-know . There was no mechanism forcing the governmental department to give that information up in a timely manner.

The Chair said that most countries that have this type of Clause create the right-to-know to decrease the burden on the departments. Once the department publishes what information they are going to make available under the right-to-know they are obligated by that. If there is a question about it, then the requester can take them to court. If the committee is given permission to create a Information Commission, then that body can deal with those problems as well. The Chair is not sure if that will be approved, but they will just have to wait and see. He asked the Committee to look over the other new drafts so that they would be prepared to discuss them tomorrow. Further, he asked them to look over the Open Democracy Alliance Group/COSATU submission to be sure that everything was covered in this right-to-know draft.

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.