Discussion of Submissions

Meeting report

JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
20 OCTOBER 1999
DISCUSSION OF SUBMISSIONS

Documents handed out:
Expanded Summary of Submissions

SUMMARY
The Committee continued to go through the submissions and the amendments that they proposed. Chairperson de Lange stated that the Committee would not meet this Friday, but rather they would meet starting Tuesday of next week. He anticipates that they will be meeting Tuesday through Friday of next week. Further, he stated that if organisations have a problem with the way their submission has been summarised that they should contact Mr Henk Du Preez of the Justice Department. Additionally, if an organisation wanted to make a further amendment proposals that from today forward they had to make the changes on a copy of the Bill and turn that in.

MINUTES
The meeting this morning picked up from where the meeting ended yesterday, which was in going over Part 3 Chapter 1 on the Right and Manner of Access.

Clause21: Extension of period to deal with request
Mr Masutha (ANC) reiterated his concern raised the previous day, which was when a department wanted to fulfill a request but they could not because they could not do so within the 30-day limit time frame. He asked if there was a more creative way to deal with this problem other than asking for a 30 day extension. He suggested a clause be added which said, in effect, that in certain circumstances that the department, in agreement with the requester, establish a time frame suitable to fulfill that particular request.

The Chair felt that this was a good workable suggestion. He reminded the Committee that such a suggestion would fall under their Implementation discussions as well. He agreed that there could be further agreement between the department and the requester in certain circumstances.

Ms Chohan-Kota (ANC) suggested that they find the simplest method of dealing with all possible situations rather than having different time frames for different situations. Her solution was to have something like a 180 day time frame instead of 30.

The Chair said that they would go ahead and add the agreement clause as Mr Masutha suggested.

Mr Smith (IFP) asked how could they build into the Bill a process for mediation and negotiation?

The Chair said that Mr Smith's concern should be one that is dealt with when they talk about Enforcement, but he flagged the issue to make sure that they came back to it later.

Clause 22: Deemed refusal of request
There was a suggestion in the submissions that "regarded to have" be changed to "deemed to have"

The Chair said that they would not decide yet on this issue, but he marked it in the Bill as a possible change.

Mr Mashimbye (ANC) asked of they would look at 20(5) as it relates to clause 22. He suggested that 20(5) should be amended to require that the requester be notified "in writing", because a person could later say that they called to notify when they really didn't.

Chair: He said that they would add to the Bill that the phone call should be followed up by a letter.

Mr Lever (DP) wanted to know if they should add to Clause 22 "deemed to" have refused the request "if no answer was received within 5 days" or something to that effect.

Ms van Schoor: said that this does not need to be added because clause 19(1) is subject to clause 21 so far as notification is concerned

Mr Smith (IFP) wanted to say that clause 22 really represented bad administrative practice. If you don't bother to respond, then that just means no.

The Chair said Clause 22 is merely a legal mechanism to be used if there is a dispute about the request later. If the time frame has lapsed, then the requester can assume that the request has been denies and move forward by going to court or the like.

Ms Chohan (ANC) said that it is important to leave the mechanism is, because it ultimately protects the requester.

The Chair said stated that the requester still has the option at that point of using the internal appeal procedures.

Clause 23: Severability
Chair: In response to a submission, he said that just because a part of the information is severed does not mean that there is tainted information.

Mr Smith (IFP): What does severability mean exactly? Blank pages? White out?
Chair: Yes, you can just take out a page or a word - whatever is necessary.

Mr Masutha (ANC) pointed out that this clause was critical in the welfare sphere, because there are so many issues involving identification of parties. The concept of severablility is a good one.

Clause 24: Access Fees
Chair: There is a question about the differences between commercial, non-commercial, and personal. Also where do MPs fall in those three categories?

Mr Durr (ACDP): Should there be a provision for refunds. What would happen if a person in good faith make a request to Land Affairs, and then Land Affairs said that it was the right place to make the request. After Land Affairs did some research, they realized that request should go to the Environmental department. Do you still have to pay Land Affairs?

Ms van Schoor: You should only pay if you get the information, but maybe this type of clause should be added

The Chair understood Mr Durr as making two points: One was the issue of overpayment and the second point was the issue of being charged for a mistake made by the department. He agreed that a clause needed to be added addressing both of these concerns.

Mr Smith (IFP) asked if they could set up a fee structure that included corrective measures so that the fee would follow the request wherever it ended up?

The Chair said that the problem with this is that you would need one avenue for all payments, but that could not be done. It would require either redrafting the Bill or totally restructuring the system.

Mr Smith (IFP) had a concern that there needed to be an objective test over the request and not a purpose-based test as is in the Bill currently. He said the problem is that the purpose for which the requester is asking for the information could change, and that would impact what category they would fall into. Here a student would be considered commercial, because they would not fall under (b) for educational bodies.

Chair: You can’t read the definitions strictly, but rather read them in context of where they are being used. The purpose part is really to assist the Minister in drafting the proclamation.

Ms van Schoor: The purpose structure is only for use with the fee structure

Mr Masutha (ANC): Is the "if any" in clause 24(1) necessary?

Ms van Schoor: The "if any" deals with those instances where there is no fee (e.g. when you just want to look at a document). The words are really not necessary.

Clause 25: Access and Forms of Access
Ms Smuts (DP) said that there will be some organizations that record their meetings but do not record them on paper. Those tapes should be accessible.

Chair: No, that is incorrect. You don't have the right to look at document before the department or whomever has had the opportunity to see if it falls under one of the exceptions. The suggestion as made by ESKOM will not be followed because to allow that would be undermining the purpose of the legislation. The requester cannot look at the information first, and then argue with the department over whether or not it falls under an exemption.

Mr Durr (ACDP) said that this submission was really coming from ESKOM's fear of the environmental lobby. They are concerned about when private research that is sold for profit becomes available to the public.

Chair: If someone is distorting the information, then the department can fix it or show the whole tape/document. He said that they had not yet finished with clause 12, but the they cannot do what ESKOM suggests.
Ms Jana (ANC) added that if someone misrepresents the information, then the department can follow the normal remedies.

The Chair said that the department must give whatever recorded information they have if it does not fall under one of the exemptions. There is no issue of what format it is supposed to be in. The Committee just needs to make sure that the legislation makes recorded material available. If something is recorded and you ask for it, then they must give it to you. They cannot require you to get it in a more expensive format. If it is a video, then you pay for the video. If it is a document, then you pay for the document.

Mr Smith (IFP) asked if the clause dealt with electronic mail anywhere. Shouldn't this be available as an option?

Chair: You can read this into 25(2)(iv) or (v). He asked Ms van Schoor to see if something could be added to make it more clear.

Dr Delport (DP) said that the word "copying" could be interpreted in two ways. This is something that the Committee should look at later.

Mr Durr (ACDP) asked if he should wait to discuss the exemptions regarding government departments whose function it is to do research for profit until later.

The Chair responded that it would br discussed with exemtions. The Chair flagged the issue of how structures who support themselves by selling the research that they do, will be affected by the legislation. Will the legislation end up undermining what they are doing to sustain themselves by forcing them to make such research available to the public for free?

Mr Smith (IFP) asked about 25(5) and what is meant by providing for people with disabilities. Would this include the departments having to provide the requester with a copy of the document in Braille?

Chair: Said that the clause is flexible - that the departments could if they wanted to.

Mr Smith (IFP) pointed out that the clause used the term "must", which implied that the department had an obligation

Ms van Schoor said that the term "must" has to stay in or the purpose of the clause would be undermined. The key words to focus on are "reasonable steps." The department must take "reasonable steps" to provide that document to the requester in Braille.

Clause 26: Language of Access
Chair: Stated that there is no obligation that the department translate the document into another language for the requester. If the department happens to have the document in the requester's preferred language, then the requester can have it. If the document is in only one language, then the burden is on the requester to get it translated.

Clause 28: Mandatory and discretionary grounds for refusal
There were no submissions on this clause.

Mr Mashimbye (ANC) said that the language of clause 28 is too rigid - should not "must refuse" be changed to "may refuse?". The Chair wanted to wait to answer this after they had looked at Clauses 29 and 31's use of the term "must." In clause 28 the term "must" is simply being use for codification.

Clause 29: Mandatory protection of privacy
The Chair said that there is a problem with this legislation that it does not have a separate clause on privacy. This legislation only deals with privacy in terms of an exemption rather than as a substantive piece of legislation. How should privacy be dealt with? He made a note that the government should look at this issue, and that they should pass a resolution saying that legislation needs to be passed dealing with privacy as a substantive issue.

With reference to 29(2)(e)(iii), the Chairperson had no qualms about making public everyone's salary. What is good for the goose is good for the gander.

Mr Smith (IFP): What effect will giving out such information have amongst parastatals? What will the implications be?

Chair: Why is it OK for the government but not for the parastatals?

Mr Smith (IFP): The parastatals are working in a different environment.

Ms Smuts (DP) There is a difference between them, but where is the dividing line?

Ms Chohan-Kota (ANC) asked why it is that they should treat parastatals differently to the government? Is it because they are in a more private sphere? The point is that public money is going to pay these people and so they should be subject to the same provisions as the government.

Ms Smuts (IFP) made reference to what was laid out in the COSATU submission.

The Chair said that if you do not put them both on the same level then you will be fostering corruption still, which goes against the purpose of the Bill. We need to make sure that we are fostering transparency and openness NOT corruption.

Mr Durr (ACDP) felt that where the shareholders were primarily public that the body should be treated as the government is.

There was a clear concern raised about 29(2)(c), which deals with children: Clause 29(1) states that an information officer must refuse a request for information if disclosure would invade the privacy of an identifiable person. However 29(2)(c) states that you CAN disclose the information if it relates to an individual's physical or mental health and that person in under 18, under the care of the requester, is incapable of understanding the nature of the request, and it is in the individual's BEST INTERESTS.

The Chair stated that the Committee needed to look at this clause. How do you test the "best interest" of an individual? We need to deal with subsection (c) in a different way - the wording may need to be changed. We don't want the public protector to be the place to determine what is in the child's best interests.

Ms Jana (ANC): This whole area relating to children is dealt with in other pieces of legislation. Shouldn't we just leave it to the other legislation to deal with it? (This was the point that Mr Masutha raised yesterday).

Ms Camerer (NNP): I understand Ms Jana's point, but this was intended to be a simple provision. In reality, when is the public protector going to be in a position to make a determination of a child's best interests? When would all of this really be at issue?

In conclusion, there are four options that the Committee faces in dealing with the best interest of the child in conjunction with this Bill:
- leave the Bill as it is
- take this section out entirely
- keep the language as it is, but make reference to other legislation
- take out the current section and replace it with a reference that all matters dealing with the best interest of the child be dealt with in terms of other existing legislation.

The large part of the remainder of the meeting focused on the problem of conflicting interests in the exemption Chapter in general. The problem with the exemptions is that they must be read in conjunction with the override in Clause 44. This means that there are exceptions to the exceptions. Further, there is the problem of the lack of a separate privacy law. The problem with Clauses 33 and 34(1)(b) are that they are optional exemptions. There is a conflict over weighing the interest between such things as protecting the public interest versus protecting the health or safety of an individual.

Dr Delport (DP) pointed out the conflicting issues with the Exemption chapter and Clause 44: Mandatory disclosure in public interest. For example, Clause 33(a) says that an information officer of a governmental body may refuse a request for access if the disclosure would be likely to endanger the life or physical safety of an individual. However, if you read this section in conjunction with Clause 44, then you see the conflict. Clause 44 essentially said that information that could endanger a person's life or safety MAY STILL BE DISCLOSED if the interest to the public or open democracy clearly outweighs the individual interest. This conflict raises a powerful point: what do we value more: open democracy or the individual? Are we too far in our push for transparency and open democracy?

Dr Delport pointed out another example of this conflict. Clause 34 sets out when records should not be disclosed in the law enforcement sphere. One instance where the information will not be disclosed is if disclosure would prejudice the investigation or prosecution. Again, this must be read in conjunction with Clause 44. Clause 44 specifically states that this can be overridden if the public interest outweighs the interest in law enforcement. Now we are talking about possible tampering with a person's right to a fair trial.

The Chair recognised the validity of the points that Dr Delport raised. He reminded the Committee that they always have to keep 44 in mind while they are reviewing the Exemptions chapter. The problem is in weighing all of these conflicting interests.

Ms Smuts (DP) agreed that transparency is important, but that it should not go too far.

The meeting adjourned.