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JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
27 OCTOBER 1999
DISCUSSION OF SUBMISSIONS
Morning session: The morning session revolved around submissions relating to Clauses 32 - 36 of the Bill.
Chairperson de Lange requested that people should not be lobbying the drafters or staff, but rather that they should be lobbying the committee members. The drafters are only the technicians, and they have no influence on the changes that are being made. The Committee will be sitting all next week except for Monday which would be left open for study group sessions. The ODB program will running through until December 15.
Afternoon session: Sections 36 through to 44 were discussed by the committee. Important issues were flagged for later discussion whilst several technical or rewording proposals were accepted as possibilities. These will be 'bracketed' as options by the drafters when they release a working draft with proposed amendments.
Clause 32: Records supplied in confidence
Mr Smith (IFP) asked what the position of journalist are? Are there other acts that affect them?
The Chair questioned whether or not journalists have an absolute privilege. He asked Mr Durr (ACDP) to confirm this.
Mr Durr (ACDP) said that journalists do not have an absolute privilege.
Mr Smith (IFP) said then the override would apply here.
The Chair replied that the override would apply. There are also common law privileges relating to spouse or attorney. This is really a matter of public policy. In reference to OPD 23, he said that Transnet was mixed up in what they were asking. Information supplied to a governmental body for the purpose of securing some advantage is covered under the commercial clause and not this one.
Ms Smuts (DP) said that this clause was problematic. Licenses would also fall under this clause, and there is a lot of confidential information when people try to secure licenses.
Ms Chohan-Kota (ANC) felt that this clause was good because it fosters the kind of openness that they want - the kind that would prevent corruption.
The Chair agreed that it does foster openness, but they may not need this section to provide openness, because of what the override clause does. He agreed though that information that is released that is found later to be confidential could be severely detrimental to private bodies.
Ms Chohan-Kota (ANC) suggested that they look at this clause in conjunction with the other commercial and trade provisions. There are other protections that are indicated in those. Until someone identifies that there has been corruption, then they won't disclose the information so the override will not work.
The Chair disagreed and said that the override works, once the information officer looks at the document and not after the corruption is made known. But he admitted that she was making a valid point. Looking at section 31 where third party information is dealt with, if under 31 you can exclude the information, but then under section 32 you can't. The question is which of the exemptions takes preference? One section says that the information can be accessed, but yet another one says you can't. The way that the exemptions are currently drafted makes these clashes - especially in the commercial areas.
Ms Smuts (DP) wanted to know whether the private/public distinction should be made here.
Mr Durr (ACDP) stated that they needed to be careful with the wording of the conflicting clauses
Mr Masutha (ANC) said that the problem was caused by the lack of cross referencing. By cross referencing you can determine when each provision will apply. If 32(2) is there to prevent corruption, then a way to deal with that is to add the word "unfair" before advantage, which would indicate a degree of unfairness as part of the language of the provision thus making it more in line with its intended objective.
The Chair admitted that he is not sure if inserting the word "unfair" would help to solve the problem, but he agreed that Mr Masutha is identifying part of the problem. The problem with Mr Masutha's suggestion is that you would never supply a document to government to secure an unfair advantage, because that would be illegal, but his suggestion will be flagged.
Ms Camerer (NNP) said that they have to focus on this - as Mr Masutha rightly pointed out how hard it would be to distinguish such things. This is all further complicated by problems with implementation. There is no reason why 32(1) cannot be reworded in such a way so as to put section 31 and 32 together in the same section
The Chair agreed that at the very least the word "must" from section 31 and "may" from 32 need to be in alignment.
Ms Taljaard (DP) suggested that they look at the severability clause as a way of decreasing the burden on the information officer.
The Chair said that the problem with that suggestion is that severability does not help you in the case where under 31 the information would be available but under 32 it would not. We should really be looking at how other countries deal with this.
Mr Smith (IFP) asked if someone could think of an example of when sections 31 and 32 would clash.
The Chair said that it is not just that there is a clash between 31 and 32. If you go to each exemption there are clashes with other exemptions.
Mr Masutha (ANC) suggested adding to 32 the phrase "notwithstanding the provisions in 31(1)" as a way of reconstructing the clause so that it would not clash.
The Chair agreed that that would be a possibility, but that only deals with one clash. The Bill currently makes exemptions subservient to each other, therefore they are not really exemptions anymore. You are essentially creating a hierarchy of exemptions to information. How would you decide which exemption should go above another?
Ms Chohan-Kota (ANC) asked to have 32(2)(a)(ii) explained. Discretion only comes into play if none of the exemptions apply. In a sense, there is a hierarchy among the exemptions. You must have a higher test for certain information that you do not want the information officer to have discretion over.
The Chair said that this is a problem because if there is a clash between the exemptions, then you are just not given the information
Ms van Schoor said that was not correct. It is true that if the information falls under one of the exemptions then the information will not be disclosed. However the reverse is NOT true. If information does not fall under one exception, it may still fall under another exemption depending on the type of information that it is. Just because information may not fall under one exemption does not necessarily mean that the information must be disclosed.
Mr Masutha (ANC) said that 32(2) does not indicate who is requesting the information (the person to whom the information is to be disclosed) as compared to 31(1)(c ). In 31(1)( c) the disclosure is to a third party. There is certainty as to whom the party is, which is not true from 32(2). If it could be the same person requesting the information under both 31 and 32, then there is a possibility that the two exemptions would clash. However, if the requester is different will there really ever be a clash?
Ms Camerer (NNP) said that it is wrong to give discretion to information officers on a different basis depending on which clause you are looking at. It is wrong to put the burden on the information officer to determine the difference between trade secrets and confidential information.
Ms Jana (ANC) said that she thought that section 31 dealt more with the situation of private information than 32. If there is a clash, and the information officer is forced to use discretion, what happens then?
The Chair asked whether there is any legal weight when something is said to be confidential? Can just anyone decide what is confidential? If they can, then any information stamped confidential will be excluded from disclosure under this exemption.
Mr Durr (ACDP) said that it is important to add an indemnification clause for those people who in good faith release information that is later determined to be confidential.
The Chair asked the Committee not to continue to repeat the problem. It is clear what the problems are relating to this section. If the members have solutions or new points, these should be raised. Plus it is important not to forget the section 43 override in these discussions.
Mr Masutha (ANC) said that the Committee needed to flag this issue, and think about taking section 32 out all together. Section 32(1) is covered in the whistleblower section. He could not see any harm in eliminating this section.
The Chair said that they were not making any decisions at this point, but that all suggestions were noted.
Ms Chohan-Kota (ANC) was still waiting for an explanation of section 32(2)(a)(ii). She still did not understand what it means, because it is not really referencing a record.
The Chair wanted to know what kind of record are we protecting here? It does not make sense to have this clause in this context.
Mr Smith (IFP) asked for clarity between 32(1) and 32(3)(b). He also asked what it meant to have in 2(b) the term "obtained" when the section itself was titled in terms of "supplied".
The Chair agreed that these terms need to be aligned with one another. He agreed that 32(1) and 32(3)(b) confused him also. Is this just an exemption of tax authority in 3(b).
Ms van Schoor agreed that 32(3) just applies to tax authority.
The Chair then moved onto the NADEL submission (OPD 27). He flagged this submission because they will look at it later as a possible option. He agreed that it might be a good idea to narrowly define "third party" and look at what Canada and Australia have done with regards to this definition. He asked Ms van Schoor to find the definition from the Canadian and Australian acts for the Committee members.
Clause 33: Safety of individuals and security of structures and systems
There were no submissions on this clause.
The Chair wanted to know how this clause fit in with clause (8)
Dr Delport (DP) felt that there could NEVER be an instance where the public interest would outweigh the interest of the safety and security of a person's life.
The Chair asked when this would ever happen anyway? What did Ms van Schoor have in mind when this section was drafted?
Clause 34: Law Enforcement
The Chair admitted that he did not have much sympathy on his part to narrow this exemption. In reference to OPD 16A, the term "likely" is already a high test so to add the term "substantial" would make the test way too high.
Ms Smuts (DP) thought that adding the term "substantial" was a good idea.
The Chair asked her if that meant that she was not prepared to protect police investigations.
Dr Delport (DP) said that 34(c )(4) validated the disclosure of a document even if would result in the commission of a crime. For Parliament to validate such a thing would be severely problematic.
The Chair said that you can give the information or not give it - it is a discretionary point, and that is what Dr Delport sees as a problem. With reference to Nadel's submission (OPD 27), you cannot broaden one area of the clause and narrow another. He was not sure if their suggestion to add a "necessity of harm override" would be appropriate here. The "necessity of harm override" should be looked at in conjunction with section 44. You must be consistent. The problem is when balancing these rights you must not make it so that one right overrides another, because the Constitution does not allow for that. All rights are valued equally under the Constitution as they should be in the Bill.
The Chair then pointed out that the exemptions that are in the Bill have come from what other countries have done. The Committee must not think that the exemptions were created specifically for this legislation by the government to limit access to information. It is highly important that the South African exemptions are kept in line with what is done internationally, because it could impact on international relations and how other countries communicate with South Africa. This needs to be balanced with our interest in obtaining a more open democracy. So far as the points emerging from the SAHRC workshop (OPD 41), the Committee cannot really regulate the free flow of information per se.
Ms Taljaard (DP) said that this is actually a good point, because there is so much inter-departmental rivalry.
The Chair admitted she was right, but the solution does not lie in this Bill. He then raised what the impact of the Shabalala decision would be on 34(1)(a) and (b). It is essential that there be a balance between the right to a fair trial and access to information.
Ms van Schoor said that clause 10 was intended to deal with this issue. A new submission (OPD 74d) offers a proposal for a new reading of clause 10
The Chair asked if the exemption of 34 should be subject to clause 10? The revision to clause 10 does make it clearer so that the ODB cannot be used as a substitute to get documents.
Mr Smith (IFP) raised some drafting issues. He asked if 34(1)(c )(5) where it made reference to (2) could be deleted, and he pointed out that subsections 34(3)(b)(2) and (4) were also redundant, because they already need to follow the procedures in 19(3).
The Chair asked if these sections could be written in a simpler form.
Dr Delport (DP) pointed out the 34(1)( c)(xi) makes it possible, in certain circumstances, for an information officer to deprive a person of the right to a fair trial. Is this constitutional?
The Chair said to flag this issue. He reminded the committee that they had a problem with subsection 34(1)(c )(iv) as well which reads that an information officer "may refuse a request of access to information if disclosure would be likely to result in the commission of an offence." Again, Parliament does not want to in any way foster breaking law or hampering law enforcement. There are clearly some things we want to make known (e.g. when someone is getting beaten up) or areas that would lend to possible police abuse. However, there are those other areas that should not be made know, especially those areas relating to criminal's rights. The Chair really saw the problems in this section as being ones that could be resolved by drafting changes rather than any kind of substantive changes.
Clause 35: Privilege
The Chair then moved onto discussion revolving around Eskom's submission (OPD 25). This submission asked that section 35(b) be deleted, which the Chair agreed was a good point. Professional privilege mandates that even after a legal proceeding has been finalised/closed that the information involved in that relationship should still remain confidential because that privilege once made is always in place.
Ms Chohan-Kota (ANC) felt that the issue of privileges was already well established in South Africa. Does this Act serve to wipe out the common law privileges (through the use of the override)?
Ms van Schoor said that there is no danger in eliminating the common law privileges. To eliminate them, you would have to specifically raise them in this section. Clause 35 is a standard clause that many other countries use.
The Chair asked if the "may" should not be changed to a "must?" He also asked about the spousal privilege. Would people be able to use this privilege automatically as they do now? If the privileges will still be used in the same way as they are now, then a provision needs to be added to this clause indicating that.
Mr Smith (IFP) asked if it would be easier to deal with the privilege issue in the beginning of the Act by saying that when a privilege applies that the information does not fall under the ambience of this Act?
The Chair agreed that would probably be the way to solve the problem. He asked Ms van Schoor to look at what privileges South Africa already has and to also look at what other countries do in relation to this issue.
Clause 36: Republic's defence and security
The Chair noted that Environmental Justice Networking Forum (OPD 26A) suggested that this provision have seven categories under section 36(1) rather than five as they do in America. It was suggested that South Africa adopt the American model as it applies to this section. The submission also suggested that time periods be added to those categories. The time period would tell you how long that particular exemption would actually be in existence. After a designated period of time, the exemption would actually fall away. The Chair suggested that the time periods issue should be left up to the Archives Act. All of the time period issues are dealt with somewhere else.
Ms Smuts (DP) asked why wouldn't it be good to add time periods? This area is the one most open to abuse and corruption so time periods would be helpful.
The Chair pointed out that they do not use time periods anywhere else in the Bill, and to do so here would be inconsistent.
Mr Smith (IFP) asked what currently governs the classification of documents?
The Chair responded by saying the Archives Act does that. To add time periods here would require that someone audit all of the material covered under this section.
Mr Smith (IFP) said that there might be merit in doing that kind of audit.
The Chair acknowledged that there was some support for time frames as well as some opposition. The question hinges on whether they would need to add time frames to all of the exemptions.
Mr Durr (ACDP) wondered if it would be possible to separate defence from trading of commodities (such as guns for example)?
The Chair said that to do this he would need to know what other countries were doing. The problem is if our country trades one way and has a law allowing access to certain documents, but the country we want to trade with does not follow by the same rules. This raises an issue of fostering international relations. He acknowledged that this would be the area where there could be the most crookery and corruption, but the Committee must keep in mind what other countries do in practice. If there are already existing international trade practices that do not disadvantage South Africa, then they should follow those. Again, we need to keep in mind the power of the override.
Dr Delport (DP) could not understand why the information officer would have the discretion (from the use of the term "may") to decide to disclose information that could jeopardise national security. He felt that they needed to re-visit the use of the term "may."
The Chair agreed with Dr Delport's concern that this issue was one that the Committee would have to look at.
Section 36 Republic's defence and security, including intelligence matters
Various issues surrounding section 36 were flagged during the morning session, including the key matter of whether the legislation should err on the side of caution regarding this sensitive area.
The final submission, Mpumalanga Provisional Government (OPD 52), agreed with other submissions that unnecessary suppression of information should be avoided. Adv de Lange had Ms van Schoor record their proposal as an option to strengthen the test in 36(1).
Mr Durr raised the issue of accidental disclosure of damaging information by the information officer. Considering the magnitude of possible consequences he wondered whether the information officer could be indemnified.
Adv de Lange made it clear that the department or organisation the information officer belonged to would be held responsible.
Section 37 International relations
Adv de Lange had the proposal by the Freedom of Expression Institute (OPD 16A), to strengthen the test leading to refusal, bracketed as an option.
The concerns raised by the Mpumalanga Provincial Government (OPD 52) related to the burdens placed on information officers. Adv de Lange felt this was an issue to be resolved when structures are discussed in greater detail.
Section 38 Economic interests of the Republic and commercial activities of governmental bodies
Adv de Lange accepted the point made by the Freedom of Expression Institute, that section 38(1)(c) is too broad.
Various issues relating to both the exemptions and exclusions of this section were discussed. It was flagged for further debate.
Section 39 Operations of governmental bodies
Adv de Lange accepted that the point submitted by the Legal Resources Centre (OPD 26A), that the grounds for a governmental body to refuse access were too subjective in 39(1)(a)(i).
Adv de Lange suggested that the submission made by the Public Service Commission (OPD 50) related to the broader area of how the Bill defines a governmental body. Constitutional bodies like the PSC do not fall under the definition of governmental bodies which is problematic regarding the provisions made in this clause. Meanwhile the committee has also discussed how the inclusion of state-owned public enterprises under governmental bodies is equally problematic. He suggested that there were grounds to support the Transnet (OPD 23B) proposal that clauses could be drafted to recognise when they apply to national, provincial and local government and not to state-owned public enterprises.
In response to a query from mr Smith (IFP), Adv de Lange said the section was designed to allow the policy making process to occur without the possibility of problematic disclosures and was not as wide as Mr Smith was suggesting. He said that government must be allowed to run its course and that forced disclosure will probably only encourage poor minute taking and push government underground. The inclusion of the tests, 'frustrate' and 'inhibit' clearly meant this was not a blanket grounds for refusal. Further once a decision has been made on policy then the Act kicks in.
Ms Taljaard (DP) wished to know how this clause would affect the policy formulation done by consultants (an increasing occurrence). Federal Canadian law treats outsourced work as it treats government department work to ensure accountability.
Adv de Lange said this section and others must be written so that all work on policy formulation falls under the same procedures.
Both Ms Chohan-Kotha (ANC) and Ms Jana (ANC) mentioned the need to look at the Canadian legislation on this as they believe it specifically mentions work done by consultants.
Section 40 Frivolous or vexatious requests
Adv de Lange stressed that 'frivolous' and 'vexatious' do have legal meaning and that he believed this section would be successful in stopping repetitive and unnecessary demands.
The proposal by the Department of Land Affairs (OPD 42) to raise the test of legal interpretation by deleting the word 'manifestly', was bracketed. Adv de Lange said that this was probably a section / test that would develop in practice.
The Minister of Health (OPD 46) submitted that a request could not be deemed frivolous or vexatious without the reason for the request being submitted. Adv de Lange said that requester could not give their reasons for requesting information as this should not affect whether access was granted or refused. Instead of needing to disclose reasons there has been a penalty for misuse of information written in to section 74(d).
Section 41 Records that cannot be found or do not exist
Adv de Lange recognised that this might be used as a get-out-clause but stated that the section must exist.
Mr Smith said that the section did not make sense - how can you 'refuse' access to a record that does not exist?
Adv de Lange said that the use of the word 'refuse' was legally needed so that the requester could challenge the denial of information on the grounds that is does not exist. The problem is that the Bill is structured on a basis of exemptions. Therefore this section is worded not on the basis of the record not existing but on the basis of there being a reasonable belief that the record may not exist. If we change the wording of this section so that it makes sense in lay-men's terms the section will no longer be an exemption and challenges in court will not be possible.
Section 42 Published records and records to be published
Section 42(1)(b) denies the public access to records, already available for copying in a library, in terms of this Act. Mr Smith wished to know if this meant a person was obliged to go to a non-local library to get already published information.
Adv de Lange accepted that this would be unacceptable and requested Ms van Schoor redrafted the section to include something about 'reasonable access'.
Section 43 Records already open to the public
The Environmental Justice Networking Forum (OPD 26) submitted that access to environmental information be treated in a different and more requester-friendly manner than that outlined in section 43. Adv de Lange felt that this was unnecessary because of the number of exclusions relating to environmental information already in the Bill.
The Department of Land Affairs (OPD 42) proposal to recognise records already available but not through any other legislation was bracketed.
Adv de Lange made it clear that the SAHRC's role as a mediatory body in determining whether requests (for already open records) should be granted or denied was still up for debate.
Adv de Lange pointed out that this section is very dependent on section 2;
'This Act applies despite the provisions of any other legislation.' How it is decided to draft this section will impact on section 43. The relationship to section 12, 'Nothing in this Act, except section 56, prevents a governmental body from giving access to a record of that body in accordance to any other law,' must also be considered. Further the term 'open to public access' must be clearly defined in relation to the term 'already publicly available', used in section 31(2)(a). Finally Adv de Lange requested the department to request how this section related to other sections obliging information officers to aid access to information that is elsewhere.
Section 44 Mandatory disclosure in public interest.
Adv de Lange wanted to know if section 44 could be drafted so that only one test, and not two, existed to override refusal of access to information. Ms van Schoor said she would look in to this but would be influenced by how much the committee wanted all exemptions to be overridden. She stated that she had investigated the overrides in the legislation of three other nations and would make summaries on these available to the committee.
Adv de Lange said that the override would be the subject of a fundamental discussion at a later date once all the exemptions had been finalised. Not only must Ms van Schoor's investigations be considered, the committee should also look at whether the override was, or could be, included in the Bill of Rights and give further consideration to the issues of public safety and environmental risk. His personal feeling was section 44 currently failed to strike the right balance.
The meeting was adjourned.
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