Part 4; Section 8; Sections 2, 12 & 43

Meeting report

AD HOC JOINT COMMITTEE ON OPEN DEMOCRACY BILL
4 NOVEMBER 1999
PART FOUR, SECTION 8, SECTIONS 2, 12 AND 43: DISCUSSION;
SUMMARY OF ISSUES REQUIRING FURTHER DISCUSSION

SUMMARY
Discussion centred on effectively letting the privacy issues of Part Four go as long as there was a transitional clause obliging private bodies to take all reasonable steps to correct information that people do have access to. This would be until more detailed legislation on privacy and the control and disclosure of personal information held by both governmental and private bodies was produced. NOTE: The right of access to information held by private bodies, partially covered in Part four, clause 50, must still be legislated for by this Bill.

It was agreed that the committee would remove section 8 and pass a resolution that if section 8 issues were not already covered in legislation then each department should pass legislation that covered them.

With regard to primacy of this Bill over others, sections 2, 12 and 43 will be looked at further. The Chairperson said the practice developing within legislation to make provisions such as section 2 should be noted and a resolution passed to investigate how the law of interpretation is changing.

After discussion the Chairperson gave a clear summary of the issues outstanding and the way forward. The afternoon session was cancelled. The committee next meets on Tuesday 9 November at 9.30am

MINUTES
Part Four - Access to, correction of and control over personal information held by private and governmental bodies
Adv de Lange felt that as discussions on the principles of privacy and Part Four had led to no united stance it may be better to stick to technical issues by looking at each clause and the submissions made on them.

Mr Smith (IFP) agreed that it may be best to focus on technicalities but that he first wished to made a proposal on behalf of the opposition. This was that they would effectively let the privacy issues of Part Four go as long as there was some provision made that obliged the private sector to do something towards providing for the principles set out in Part Four. This would be merely a transitional empowerment clause until more detailed legislation was produced.

Adv de Lange accepted that this would be a good idea but that the ANC would have to meet to discuss this further. He suggested that a clause without detail could oblige private bodies to take all reasonable steps to correct information that people do have access to. This would be narrow but it would serve as a stopgap until more holistic legislation was passed. This would be a possible compromise as it would not override the existing system yet would provide for where a system does not exist. Further detailed legislation on disclosure of personal information held by private bodies and privacy would be made an urgent priority.

Ms Taljaard (DP) supported a transitional clause but made available summaries of select commission investigations on privacy versus the right to know from Canada, Australia and New Zealand. Most of them deal with the two issues separately.

Adv de Lange said that these should be looked at. He felt that as it appeared there was support for a transitional empowerment clause, Part Four should be left and other issues dealt with.

Section 8 - Announcement of public safety or environmental risk
Adv de Lange could not understand why this section was included in a freedom to access information Bill, especially as it does not have a request basis but put obligations on bodies to inform. He supported the content of the section but felt that as it was in the wrong place it should be left out. If it is to be included in the Bill the committee must consider:
· its effect on the private sector,
· its effect on governmental bodies within the private sector,
· its possible retrospective effect,
· how it will be enforced and what sanctions will exist - this is not provided for in section 8,
· its effect on third parties and whether they will have an override
· the consequences of both non-compliance and also compliance.

Ms van Schoor accepted that the section seemed out of place because it does not work on a request basis she pointed out that the obligation to inform within legislation was not unique. She outlined four other pieces of legislation which place obligations on people and bodies to inform and provide information. These included the Medical Health Act of 1973, the Internal Health Regulations Act of 1974, the Health Act of 1977, and the Environmental Management Act.

Adv de Lange felt these examples pointed to a sector by sector approach to placing such obligations on bodies.

Both Mr Smith and Ms Smuts agreed with the chair that despite supporting the content of section 8, it did not belong in this Bill, duties should be created by the sector they will affect.

It was agreed that the committee would remove the clause and pass a resolution that if section 8 issues were not already covered in legislation then each department should pass legislation that covered them. The resolution would also respond to the submissions made on section 8.

Sections 2, 12 and 43
Having given further thought to the inconsistencies of these sections, Adv de Lange referred the committee to section 32(2) of the consititution, 'national legislation must be enacted to give effect to this right [section 32(1)]'. He pointed out that 'national legislation need not be one Act alone.

Mr Durr supported this comment and read from section 239 of the constitution, '..."national legislation" includes - (a) subordinate legislation made in terms of an Act of Parliament and (b) legislation that was in force when the Constitution took effect and that is administered by the national government'.

Adv de Lange pointed out that the unrestricted right of access to information is created in section 32(1) and can only be limited by section 36 - the 'limitation clause'. Section 32(2) is about regulating the right of access and this is why the Open Democracy Bill is needed. However any legislation that provides for the right in 32(1), and can be tested by the limitation clause, can regulate the right of 32(1). Duplication of regulating 32(1) need not be problematic if the national legislation doing this is constitutional. Therefore when a requester is accessing information s/he could have a choice of national legislation to choose from. This would remove the need for section two of the Bill. Section 43 would then be amended, instead of refusing access to records already 'open to public access' it whould refuse access to records already obtained.

Mr Smith wished to know how an individual would decide which national legislation to use and whether this would be a conscious decision.

Adv de Lange stated that replacing 'open to public access' with 'obtain' in section 43, would allow individuals to swap and change between different methods of obtaining information until they had obtained the record. The right of access to information is provided for by the constitution, national legislation - including this Bill - only regulates this right. There is no need to complicate the exercising of this right further by giving one method of access primacy, as section two does. Consider that previous laws will become invalid if they fail to provide for section 32(1) and fail to comply with the limitation clause. Future laws may undermine this Bill but this too would not matter as they must also provide for 32(1) and comply with 36. Therefore the right of access to information cannot be denied without amending the Constitution itself. The amendment to section 43 will merely stop duplication of access.

To some extent Ms Smuts accepted the point that Adv de Lange was making but wished the committee to look at the amendment that combined sections 2 and 12 drafted by Ms van Schoor. She accepted that the Constitution protected the right to access information but felt that a safeguard should still be provided in this Bill. This would mean section 2 would state that the legislation with the most favourable provisions for access to information would apply.

Adv de Lange felt that such a safeguard was not only unnecessary but unhelpful. The word 'favourable' would only aid courts and not officials in deciding which legislation should be used. It made more sense to allow for more than one piece of legislation to regulate the right of access, if both were constitutional.

Ms Chohan-Khota (ANC) accepted Adv de Lange's point. However she wondered if a provision should be made to allow departments to use existing legislation only until this is found to be unconstitutional. This would make the following of procedure easier.

Adv Schmidt (DP) stated that all statutes are equal except the Constitution. Even an Act demanded to fulfil a constitutional right has no preference above another Act. Therefore all acts should aim to be non-contradictory. However should conflict occur, the only influences on a court's decision as to which Act takes precedence are the dates and the purposes for passing the Acts. This is how the law of interpretation works in South Africa. Therefore this Bill would have precedence over previous Acts that regulate access to information and over previous Acts that include sections dealing with access to information. Therefore Adv Schmidt agreed that section 2 is not necessary and suggested it is probably unconstitutional. However he thought it would be useful for this Bill to have an annexure stating where this Act would apply over others - this would avoid conflict always being referred to the courts.

Mr Jeffery (ANC) accepted that the Constitution would protect the right of access to information but felt that this Bill could still specify that where conflict arises, this Bill prevails. This would stop unnecessary involvement with courts.

Ms Smuts agreed such a provision should be made and that it could not be unconstitutional as several other Acts have clauses similar to section 2.

Adv de Lange felt that if several Acts did exist with such clauses then they were effectively changing the law of interpretation. Further, such a clause would only be a tool of courts and of no use to officials - conflict would still have to be resolved by the courts. Most importantly by giving precedence to this Bill the opportunity to increase access and decrease exemptions would be made impossible.

Ms Smuts felt that if section 2 was to be deleted then the schedule must include the repeal of previous Acts giving less access to information.

Adv de Lange disagreed. Such a schedule would not be necessary as the repeal and amendment of lesser laws would be automatic. He was more concerned about other Acts including sections similar to section 2. Not only was this changing the law of interpretation, huge conflict would be possible if two Acts, both with clauses stating their primacy over all other legislation, clashed.

Mr Schmidt (DP) said that simple database searches could reveal existing legislation affected by this Bill and thus allow for the audit of access to information legislation needed to produce a schedule of Acts this Bill would override.

Adv de Lange reiterated that such an audit would not be done. An audit would require the analysis of the conflicting legislation identified and there is no time for this.

Mr Smith sought to gain some clarity on what was being proposed regarding section 2. It was clear that the committee would want this Bill to prevail over other legislation because it was to be the major piece of legislation on section 32(1) of the Constitution. He went on to point out that the law of interpretation did not just consider the dates of conflicting legislation, it also considers the purposes. This would mean that small and incidental issues of access to information, within future Bills concerning other areas, would remain subordinate to this Bill. He wondered if this might be problematic. Finally, although he agreed section 2 could be deleted, he thought that section 12 would be required to ensure people had choice in accessing information.

Adv de Lange agreed that this was the way he saw things but felt that there was no need to finalise issues discussed today. However he said the practice developing within legislation to make provisions such as section 2 should be noted and a resolution passed to investigate how the law of interpretation is changing.

The way forward
Adv de Lange gave a summary to the committee on what he thought must now be done:
· The committee must now go back over the legislation in a more informed way and try and find one position on all issues.
· The drafting that has been requested of the department must be looked at.
· Hard and fast decisions must be moved forward to allow for an accurate draft to be produced.

Adv de Lange then highlighted the areas to be captured:
PREAMBLE
· This is still being drafted but once done must be considered.

SCOPE OF THE BILL
· Is this a right to information Bill or a open democracy Bill? This issue to be included within the Bill must be identified.
· The name of the Bill - at some point in the future this must be decided upon.
· Section 32 - the committee has now decided what it believes the concept behind section 32 to be.
· Section 8 - the committee must go back to parties on this but it is accepted that a department by department approach is needed for legislation on the issues contained within section 8.
· Privacy - the committee must go back to parties with its proposals to replace Part four. A resolution for a privacy Bill will be passed, a six months progress report will be produced and a transitional clause will be included in this Bill.
· Whistle-blowing - drafting is currently being done on whistle-blowing legislation. It appears this will not be passed this year but will be passed by 4 February at the latest.
· Primacy of this Bill over others - sections 2, 12 and 43 will be looked at further so that the best way to resolve the issues raised today is found.

SCOPE OF THE RIGHT OF ACCESS TO INFORMATION
· 'Right to know' - drafting is being done on a clause.
· Exclusions - there may be exclusions to the right to know and these will be discussed. Possibilities include: cabinet, provincial, district and local municipalities' executives, courts, public protector, public enterprises.
· Outsourcing or privatization of the access to information - this is yet to be investigated.
· 'Governmental body' - this definition must be fine tuned.
· Exemptions - each must be individually reviewed. Mandatory versus discretionary exemptions must be looked at. The categories within each exemptions must be decided upon. The adjectives used within each exemption must be 'tweaked'. Privacy exemptions must also be investigated.
· Public interest override - the extent of this must be decided.

STRUCTURE AND PROCEDURE
Various models have been presented to the committee:
· Information officers within each department with original powers and a process of internal appeal.
· Director General as information officer, no appeal process.
· Director General as information officer, with an internal appeal process - how this would work remains unclear as the Director General can only be answerable to the minister and ministers have no time to appear in court.
· The problems raised about local government transformation must be investigated.

FEES
· Charge at all?
· Categories - currently three but should this change?
· Capping - either on type of information or type of requestor?
· Should public representatives be treated differently?
· How will foreign requesters be treated?

HORIZONTALITY
· the committee is now relatively sure of the constitutional issues this involves.
· Part four has been dealt with.
· The framework proposed by the Open Democracy Campaign Group is being looked at as the basis for a draft but no decisions have been taken.
· Should private and public sphere information be split.
· Should there be a 'right to know' clause for the private sphere?
· Should private bodies be excluded entirely?

ENFORCEMENT MECHANISM
· Courts - either the supreme court, the magistrate court or the choice of either? However the use of magistrate courts may be problematic as no magistrate court's decision binds another. This could lead to conflict that would have to be resolved in the high court.
· Information Commissioners - used in Queensland and Western Australia. These would fall between departments and courts. They would have adjudication powers.
· Tribunal - this could be like a court or could be more flexible allowing mediation and final adjudication. However the latter may present problems if it can both mediate and adjudicate. The tribunal could use court structures but this may be problematic as this would interfere with a separate arm of government. Another alternative would be for magistrate courts to act as tribunals by giving them mediatory powers.
· A possible role for the SAHRC or the public protector has been discussed but it might be constitutionally problematic to give them adjudication powers.

IMPLEMENTATION
· This was discussed yesterday without any conclusions being reached. This is constitutionally a tough issue as on the 4 February any gaps within this legislation will be filled by the unrestricted right of access. Time limits or staggering of implementation will have the same effect.