SUMMARY OF SUBMISSIONS ON THE OPEN DEMOCRACY BILL [B67 - 98]
PREPARED BY DEPARTMENT OF JUSTICE
EXPLANATORY NOTE
OPD 2A (Banking Council of South Africa):
Information sharing:
Banks are moving in a multi-focus direction in order to more comprehensively meet consumers' financial needs. Financial institutions are legally required to be organised into separate legal entities and are not free to structure themselves as they may wish. It is recommended that the definition of "private body" should be amended to include reference to "a financial services group". A "financial services group" should also be defined as a holding company as defined in the Companies Act, 1973, and its wholly owned subsidiaries, provided that the subsidiaries are a bank, registered insurer, unit trust scheme, scheme, stock exchange or any trustee. This will put wholly owned subsidiaries on the same footing as other private bodies as far as information usage and consent are concerned.
OPD 3 (Consumer Institute South Africa):
Whistle-blower protection should also cover private bodies.
OPD 5 (NEDCOR):
The individual's right to object to the use or disclosure of personal information is applauded. The creation of another statutory Authority will be costly and preference is given to the Human Rights Commission managing the piece of legislation.
OPD 7 (Leisure Books):
The international precedent of the right to object to personal information being used or disclosed is well established and entrenching the rights of the business sector and that of the individual through legislation is supported. Support is also expressed for using the Human Rights Commission.
OPD 8 (National Postal Forum):
The wording of the Bill is more applicable to manual rather than computerised databases and does not provide for future changes in technology. The European Union and all its trading partners are required to have adequate data protection regimes, conforming to the European Data Protection Directives, with effect from 24 October 1998.
For a balance to be struck between the interests of the individual and private bodies it is submitted that the Bill should reflect the following internationally accepted principles:
*The use and disclosure of personal information (which should include information which is already in the public domain) in pursuit of legitimate interests and which may be limited by the individuals on request.
*Control over information should be subjected to internationally accepted norms of control.
*Individuals should be made aware of their right to limit the use of information and should be able to exercise the right in an accessible and uncomplicated way.
*The individual's right should be subject to standard business and contractual practices.
OPD 9 (Direct Response Marketing):
It is submitted that the "opt-out" clause effectively protects the rights of the individual.
OPD 10 (Attorney-General: Transvaal):
The disclosure provisions laid down in the Shabalala-judgment leads to the submission that the Prosecuting Authority should be exempted from the provisions of the Bill. In view of the NDPP who can be instrumental in the shaping of regulations in terms of the Criminal Procedure Act, 1977, it is recommended that the Bill should only state that the matter must be governed by regulations in terms of the Criminal Procedure Act, 1977. Overtaxed prosecutors will to some extent be regarded as information officers which will not be in the interest of justice. If confidential information supplied by persons is not protected it will be detrimental to the process of justice and the investigation of crimes. Due to the complex nature of the Bill it will require Information Officers to be legal experts.
OPD 11 (WITS):
In this submission the inclusion of clause 10 of the 1996 draft is recommended. The Portfolio Committee's attention is also drawn to three law review articles. A brief summary of the three articles will be provided (the 1997 and 1998 articles are of special interest and should be perused in its entirety if time permits) after which a summary of the submission with regard to the recommendation in respect of clause 10.
L. Johannessen et al, "A Motivation for Legislation on Access to Information", 112 SALJ 45 (1995)
This article is a summary of the proposals made by a research team in June 1994 on South African Freedom of Information legislation. The research by the team entailed a comparative study of freedom of information legislation in the USA, Canada and Australia and draft legislation from India and the United Kingdom.
J White, "Open Democracy: Has the Window of Opportunity Closed?", (1998) 14 SAJHR 65 - 76
The article draws attention to changes brought about to the 1996 draft by Cabinet.
The Open meetings chapter was deleted from the draft. It is submitted that the absence of "open meetings" provisions are contra the Constitutional principles of sections 41(1)(c) and 195(1) and (3).
The Publication of decision-making guidelines principle formed part of the 1996 draft as clause 10 thereof. Clause 10 required that binding and interpretive guidelines were to be made publicly available. It is submitted that any administrative action which "confer any right, privilege, liability et cetera" cannot be lawful without the decision-making guidelines not being made public. By not doing so the rule of law underpinning the Constitutional right to lawful administrative action will be violated.
The exemptions section and the necessity of harm provision are also identified as an area of concern. It is submitted that the deletion of the "necessity of harm" provision creates the possibility that requests for information will be dealt with by way of a system of classification.
The blanket exclusion of Cabinet might be viewed as unwillingness on the part of Government to meet its obligations in respect of the principles of open democracy. Withholding access to information will have to be justified in terms of section 36, the limitation clause of the Constitution.
The Open Democracy Commission and Information Courts were replaced by the Human Rights Commission and High Court respectively. The ability of the Human Rights Commission to meet its proposed obligations on a budgetary and personnel level is questioned and the Bill does not expressly provide for budgetary implications. Open democracy cases will be dealt with on the same basis as urgent applications by judges designated by their respective Judges President. It is recommended that particular judges should be chosen as open democracy judges to ensure that they become experts in the field.
J Klaaren, "Constitutional Authority to Enforce the Rights of Administrative Justice and Access to Information", (1997) 13 SAJHR 549 - 64
The aim with this article is to advocate a structural and institutional mode of interpretation to assess the constitutionality of the relevant legislation under discussion. It is also recommended that a procedural test should be utilised to establish wether the legislation meets the requirements of the transitional provision (item 23). It should be taken that item 23(1) has been satisfied, and the implications of item 23(3) avoided, where the initial legislation purports to satisfy the duty to enact the envisaged legislation.
Clause 10 of previous draft
It is submitted that the Bill in its present form fails to give effect to the right of access to information. It is recommended that the publication of binding decision-making guidelines should be made compulsory. The motivation for advancing the inclusion of the publication requirement is: (i) it forms part of international best practice; (ii) the state is obliged to make the law publicly available on its own accord and to guard against the "secret law" that non-published but binding guidelines constitute; (iii) the right to lawful administrative action dictates that decision-making guidelines must be made publicly available; (iv) the infringement of a substantive right can only be justified in terms of the limitation clause where it is done on the basis of a law of general application (where a limitation is invoked on the basis of a decision-making guideline and without it being publicised it would not qualify as law of general application).
OPD 11A:
The Bill will have retrospective operation because clause 1(xxiii)(b)(i) provides that a record may be created before the commencement of the Act.
Clause 38 is an exemption for commercial activities of governmental bodies. Intellectual property concerns and commercial competitiveness should be safeguarded and will be conducive to a level playing field for public enterprises operating on a commercial basis.
It is recommended that an alternative enforcement mechanism, such as a tribunal in the form of a specialised unit within the Human Rights Commission, should be considered.
OPD 12 (Tupperware of Southern Africa):
Concern is raised with regard to the capacity of the Human Rights Commission to manage the Act. However, it is still preferred to creating another "revenue draining" statutory body. The right to object to the disclosure of personal information is supported and viewed as sufficient protection for the rights of the individual and the private body.
OPD 13 (Centre for Conflict Resolution):
The previous draft of the Bill included clause 46 which provided that "No provision in this Chapter shall be interpreted to require or permit the information officer of a governmental body to refuse a request for access if the harm that that provision is intended to guard against could not reasonably be expected to occur if the request was granted." . It is recommended that the provision should be included to clarify the obligation on the information officer to consider the merits of every request with regard to the potential harm which may be caused by disclosure of a particular record.
The omission of the provisions relating to "open meetings" is supported but it is recommended that the grounds on which the National Assembly and the NCOP may exclude the public from a sitting of one their committees must be included in the Bill.
It is also recommended that any failure by an information officer to comply with the provisions of the Bill should be made an offence in terms of clause 85.
OPD 14 (Deputy Minister for Intelligence):
There is no clause in the Bill to provide the intelligence services with a remedy in the event of damage caused to a third party (i.e where information is collected, disclosed to a third party and at a future date it appears to be incorrect).
OPD 15 (South African Council of Churches):
The aim of these comments is to draw attention to two aspects of the Bill, to wit, the Bill in relation to section 32 of the Constitution and the matter of open meetings contained in earlier drafts of the Bill.
Section 32 of the Constitution:
Section 32(2) read with item 23(1) of Schedule 6 requires legislation to be enacted by 4 February 2000. The Bill is intended to give effect to the right contained in section 32(1)(a) and partial effect to the right in section 32(1)(b). The Human Rights Commission will undertake comprehensive investigation and a consultation process in order to develop recommendations regarding legislation that would give effect to section 32(1)(b). It is submitted that the attempt to implement the sections 32(1)(a) and (b) rights in stages would lead to confusion, frustration and litigation and would impede the objectives of openness and protection of rights.
It is submitted that the Constitutional impact of the Bill's enactment is not clear. Two options exist, to wit, (i) lack of giving full effect to the rights contained in section 32(2) will render the interim constitutional provision operative until Parliament enacts legislation giving full effect to section 32(1)(b) or until section 32(2) automatically lapses in terms of item 23(3) of Schedule 6 on 4 February 2000; (ii) due to its capacity to give substantial effect to the rights contained in section 32(1) the Bill will pass the test contained in section 32(2) triggering the activation of section 32(1) and the replacement of the interim provision. The opinion is held that the Bill activates a part of section 32(1) is not viable. Section 32(2) makes no provision for separating the rights to public and private information or enacting them at different times. It is recommended that the Bill be amended to incorporate a new part equivalent to the current part 3 (access to records of government bodies) that gives full effect to section 32(1)(b) by providing a parallel right and manner of access to records of private bodies: (a) that contain personal information about the requester, or (b) are necessary to exercise or protect a right.
Open meetings
One of the methods of ensuring transparency and accountability of organs of state and the timeliness and accuracy of information about their deliberations is to guarantee public access to meetings of these bodies. It is submitted that, apart from public access to meetings of the National Assembly, NCOP, Provincial Legislators and Municipal Councils, more comprehensive legislation is needed to ensure that the provisions of sections 41 and 195 of the Constitution are applied consistently to all state policy making bodies. Early drafts of the Bill included an "open meetings" chapter which excluded access to Cabinet meetings. It is submitted that public access to meetings of state policy making bodies is consistent with the spirit of Constitution and an essential component of open democracy. It is recommended that a simplified version of the relevant chapter should be included in the Bill in order to establish the right of access. If a decision is taken against reincorporation, then the title of the Bill should be changed to the "Freedom of Information Bill" to accurately reflect scope of Act.
OPD 15A
Privately held information:
Even where legislation gives partial effect to section 32(1) it will activate the entire clause. This will result in the entrenchment of a right to privately held information with no mechanism to regulate the form and manner of that access.
"Right to know" principle:
Important information should be actively disseminated, the majority of South Africans do not have the resources and capacity to engage in an adversarial process to obtain information. Clauses 6 and 8 are welcomed but should be expanded to more types of governmental records and privately held information.
Whistleblowers:
Protection should be extended to the private sector and the Bill should provide for a mechanism to give practical and other support to potential whistleblowers.
Enforcement:
Provision should be made for a procedure aimed at conciliation and mediation which must be an inquisitorial procedure. An Information Commissioner, tribunal or Ombudsman should be introduced.
Exemptions:
The exemptions should be drafted in plain language. Exemptions with regard to information concerning individual persons and trade secrets and confidential information are too broad. Clauses 2, 12 and 43 impact on existing statutory rights to information and should be rewritten to ensure that the legislation most favourable to access must be followed.
Necessity of harm:
It is submitted that the "necessity of harm' test is important and should be re-introduced to prevent the unreasonable refusal of information.
Decision-making guidelines:
The clause dealing with decision-making guidelines should be re-introduced and is "particularly important if the chapter providing for open meetings is not reinstated in the Bill".
OPD 15D
Section 32(2) falls away and suspended section 32(1) automatically comes into operation if Bill is not enacted timeously. Holders of information on a horizontal level will have little guidance with regard to disclosure, or otherwise, of information. Bill must include more detailed provisions regulating horizontal application. In view of deadline the following are recommended:
Commitment to enact legislation regarding privately held information.
Incorporate set of provisions relating to privately held information.
Consider implications, such as review and enforcement mechanisms and the whistle-blower provisions with regard to horizontality.
See pages 4 to 6 for recommended amendments.
OPD 16 (Freedom of Expression Institute):
There is no reason why media companies should be treated differently to other companies. However, journalists and their sources should be protected from unnecessary invasion and it is submitted that existing legislation and the common law are sufficient to assist an aggrieved party or someone who believes that access to information will enable them to exercise their rights. Confidentiality is a fundamental part of ethics involved in the media and the reasons behind confidentiality are the following:
*Element of danger - a journalist being compelled to reveal sources (section 205 of the Criminal Procedure Act, 1977) can place his or her life in danger, his or her future as a journalist could be jeopardised and could be seen as doing the work of the police.
*Defamation may be an area where disputes could arise but it is argued that in a defamation suit the normal rules of discovery in the civil procedure are available to the plaintiff.
*A suspected criminal can effectively close down an investigative activity (not only for media but also for police) and stop information flowing to the public.
*Financial considerations - investigative journalism is expensive and time consuming. Access to information at a crucial stage could jeopardise a journalist's livelihood and eliminate the exclusive nature of an investigation. This might have an effect on the decision of media institutions to finance future investigative reporting.
It is submitted that journalists and their sources should be protected from unnecessary invasion. Sources can be defined as all material, the disclosure of which would either inhibit a flow of information or endanger personal security and, inter alia, include the identity of confidential sources, material which would reveal the identity of sources and material which, if disclosed, may attract retaliation.
It is recommended that in view of section 32(1)(b) of the Constitution the various types of information should not be mentioned. It would be more acceptable if the clause outlines only the broad parameters of the right. It should be left over for the courts to give content to the relevant right.
OPD 16A:
The "Open meetings" and "decision-making guidelines" provisions should be included in the Bill. Cabinet should not be excluded and other clauses exempting government remain too broad.
OPD 16B:
See p 2 to 5 for recommended amendments with regard to horizontal application.
The word "must" in provisions relating to mandatory non-disclosure should be replaced with "may".
OPD 17 (Judge PJJ Olivier):
The heading "whistle-blowers" in Chapter 5 is unusual but it is probably a term that will convey the legislator's intention to the public.
OPD 22 (Attorney-General: Eastern Cape):
The position of information officer, will require a skilled lawyer, which will have to be a full-time position to keep track with the procedures and the great number of applications for information which are expected. The availability of suitable candidates and adequate funding at provincial and local spheres of government is doubtful. Administration of the cumbersome procedures of the Bill will lead to problems and will be counter-productive with regard to the line functions of departments where officials have to attend to requests for information at the expense of primary tasks that have to be attended to.
OPD 23 (Transnet):
It is submitted that due to Transnet's unique position, access to information by its competitors may lead to such information being used against Transnet. Uncertainty will apply with respect to information relating to existing or planned ventures between Transnet and other bodies. Confidentiality agreements may be superceded by the precedence of legislation over contractual arrangements. Transnet should be completely exempted from the Bill.
OPD 25 (ESKOM):
Clause 1(1)(v) includes a public enterprise in the definition of governmental body. The inclusion is based on the "traditional" role of public enterprises. Section 195 of the Constitution separates the terms "organ of state" and a "public enterprise". It is further submitted that in terms of the Draft White Paper on the Energy Policy, the government contemplates a competitive market in this sector. A public enterprise cannot be placed in the same position as a governmental body where additional obligations are placed on it while its private sector competitors are not subjected to the same obligation.
OPD 26 (Environmental Justice Networking Forum):
Access to government held information concerning the environment and risks thereto is contained in the National Environment Management Act, 1998, (NEMA). It allows the Minister of Environmental Affairs and Tourism to draft regulations allowing for access to privately held information. These provisions lapse when the Open Democracy legislation comes into effect. The Bill will have to include certain aspects of the NEMA, namely:
*The definition of commercially confidential information. Information about emissions and waste streams should be exempt from being described as commercially confidential.
*The right of the Minister to make regulations about the disclosure of environmental information held by private persons.
*The right of government to obtain from individuals information about the environment and emissions into the environment.
It is submitted that "public disclosure of information about the environment" will be a cost effective mechanism of government control.
OPD 26A (Legal Resources Centre):
The Bill should include the provisions of section 31(1) of the National Environmental Management Act, 1998, which lapses when the Bill becomes an Act or in the alternative the Bill should provide that section 31(1) of NEMA continues to have effect.
OPD 27 (NADEL):
In a country with limited resources the Bill should take a shift from "freedom of information" to a "right to know" model. The need for the horizontal application of the Bill will protect whistleblowers in the private sector. Open meetings provisions should be reincorporated in the Bill. An alternative enforcement mechanism such as a tribunal system should be considered. Disclosure of governmental decision-making guidelines should be included in the Bill. Grounds for exemptions should be drafted in plain language.
Chapter 2
Exemptions must be drawn as narrowly as possible to safeguard the interests that the exemptions protect. Only sensitive information should be exempted. Information should only be exempted where disclosure will cause real harm. Information which falls within the ambit of an exemption should be made subject to a public interest override.
Necessity of harm
It is an important test and will prevent unreasonable refusal of disclosure.
OPD 28 (Human Rights Committee):
The high rate of illiteracy will have to be addressed by introducing measures to actively assist citizens to obtain information.
The Bill should aim at "the greatest possible openness of government" which would require narrow and well-justified exemptions, real harm exemption only, public-interest override and a principle of maximum disclosure as interpretive guideline. The "disclosure of governmental decision making guidelines" provision should be re-introduced. A shorter time period for response in respect of "already packaged" information should be required. The Bill provides for access to information on request, certain categories of information should be made automatically available (the "right to know" approach).
The "open meetings" provisions should be re-introduced. A tribunal system, which would be a cheap, speedy and accessible enforcement procedure, is recommended. Protection for whistleblowers in the private sector should be provided for.
OPD 29 (IDASA):
External review by a High Court is expensive, inaccessible and intimidating, and should be replaced by a tribunal system which are inquisitorial, informal and cheap (existing infrastructures can be used and the department who is subject to appeal should contribute to overall running costs).
OPD 30 (Black Sash Trust):
The "open meetings" provision should be included in the Bill (provisions should be made more flexible with provisions for special meetings and emergencies).
In the context of hierarchical nature of the South African government, the information officers to be appointed should be properly empowered (sufficiently senior).
The framework of the Bill of "freedom of information" should shift to the "right to know". The Bill should provide for the pro-active dissemination of certain categories of information and privately held information.
The external review by the High Court should be replaced by an alternative such as a tribunal.
OPD 31 (Southern African Catholic Bishops' Conference):
Objection is made with regard to the deletion of the "open meetings" clauses. Access to privately-held information is limited to information which is personal to the applicant and does not "do justice to section 32(1)(b) of the Constitution".
The omission of the "necessity of harm" exemption override is criticised on the basis that it will obstruct the free flow of information.
An alternative enforcement mechanism should be considered, the High Court as forum is expensive, time-consuming and formal.
OPD 32 (Human Rights Commission):
The Bill limits access to information held "about the requester him or herself", but any information falls within the ambit of section 32 of the Constitution.
If the Bill is passed timeously it may provide for "reasonable measures to alleviate the administrative and financial burden on the state", if the legislation is passed after the three year period it would have to rely on the general limitation clause with regard to exemptions to the right.
Alternative enforcement mechanisms such as a tribunal system, ombudsman or information commissioner should be considered.
The provisions in the Bill relating to whistleblowing are too brief and need more clarification.
The provisions of the Bill, especially dealing with exemptions, should be drafted in plain language.
An increase in the budget of the Commission is foreseen in order to meet its responsibilities in terms of the Bill.
OPD 33 (COSATU):
The Bill should reflect the "right to know" principles to accommodate the needs of the disadvantaged communities. It is important that the government should be obliged to disseminate certain categories of information (that goes beyond the purview of clauses 6 and 8 of the Bill), for example environmental information.
The Bill is an overarching freedom of information statute which must set standards for information disclosure in relation to other legislation, for example the Companies Act, 1973, which places limited disclosure duties on companies.
The Bill should clearly define the meaning of "any rights" referred to in section 32(1)(b) of the Constitution. It is recommended that the definition should include constitutional, statutory and common law rights.
Protection for whistle-blowers should be extended to the private sector.
The "necessity of harm" provisions should be re-introduced.
An intermediate procedure between the internal and external review procedures should be considered. The establishment of an Open Democracy Appeals Board based on the Water Tribunal established in terms of the National Water Act, 1998, is recommended.
The Bill should be drafted in plain language.
OPD 34 (Telkom):
Telkom was incorporated as a public company with limited liability and is governed by its Memorandum and Articles of Association. It is submitted that Telkom is a "public enterprise" within the meaning of section 195(2)(c) of the Constitution and not a section 195(2)(b) "organ of state". Telkom is a juristic person and falls within the ambit of section 32(1)(b) of the Constitution.
OPD 36B (Committee for Private Data Base Users):
Opinion by B Currin on section 32(1)(b) of the Constitution. The section 32(2) requirement does not impact on the substantive right in section 32(1) of the Constitution. The words "give effect to the right" of the section 32(2) requirement do not imply that the section 32(1) right depends upon the legislation envisaged in section 32(2). There is at present no constitutional right of access to private information due to the operation of the transitional arrangement (Item 23(2) of Schedule 6 to the Constitution). Constitutional Court concluded in its certification judgment that section 32(1) of the Constitution will come into effect, irrespective of compliance with section 32(2), at the latest 3 years after the Constitution came into effect. An absolute duty to enact the measures envisaged in section 32(2) does not exist. The words "must be enacted" in Item 23(1) of Schedule 6 refer to the 3 year period. The question arises as to who will have to decide what constitutes total compliance. Parliament might be correct in its assessment. It will, however, impact on "the extent to which the Constitutional Court will have to provide its own guidelines in giving effect to the right: The less legislation, the greater the burden on the Court.". It is also possible that Parliament might be of the view that the Constitutional Court will be better equipped to give meaning to the relevant words.
OPD 36C
The Bill substantially achieves its objective in providing public access to privately-held information.
Section 32(1) will come into operation in February 2000 irrespective of whether the Bill gives full effect in section 32(1)(b). Section 32(1) does not depend upon the provisions of the Bill.
OPD 38 (N Alant and T Uys):
Then Bill does not provide for whistleblower protection in the private sector and does not protect the identity of the whistleblower.
It is submitted that the protection of whistleblowers is specialised function which should be vested in a single body.
OPD 39 (Department of Public Administration: UNISA):
The obligation to publish "binding directives and guidelines" should be included in the Bill.
"Open meetings" provisions are internationally regarded as an essential component of open democracy legislation and its absence from the Bill will "undermine" the values that the Bill should promote.
"In developed countries such as Canada and Australia an average of only 10 requests are being received and processed by governmental departments per month.". It is submitted that there will not be a high demand for information and existing public officials will be able to cope with the additional workload.
OPD 41 (SAHRC workshop report):
Horizontality
One main function of Bill is to give shape and form to the horizontal application of some kind. Private and governmental sectors are different, horizontal provisions should not be copied from provisions relating to governmental sector.
Implementation
Bill should provide for training of heads of departments. The Independent Broadcasting Authority and tertiary institutions should fulfill educational obligations. No consensus whether Public Protector should share duties with SAHRC.
Archive legislation should provide for a positive duty to keep accurate records. The destruction of a record that has been requested should be criminalised.
SAHRC should draft a preamble to the Bill.
Police, Defence Force, Health and Welfare should be allowed to develop streamlined procedures.
Information should be classified (information for immediate publication without delay; automatic publication after a specified time delay; information made available upon request).
Information officer should have discretion to charge request fee and Bill should stipulate criteria.
Bill should have full retrospective effect and should be drafted in plain language which can even be done after enactment.
Exemptions
External judicial body other than High Court should decide disputes.
No governmental body should be automatically be excluded but certain information should be excluded (test: an evaluation should be made assessing the consequences or the results of information being disclosed in a particular context).
Bill should be made more accessible to non-lawyers by making use of footnotes and flow-charts.
Appeal and review
Notice to third party requirement, the harm's test should be re-introduced in the form of "in the opinion of the person considering the appeal, there will be potential prejudice to a third party, that person should notify the third party.".
Concern was raised that the SAHRC may not be effective in rural areas where there are no offices. Recommends a strict duty should be imposed on all information officers to notify applicants of the role of the SAHRC where access to information is denied. Information which is easily accessible should immediately be made available.
Norms and standards should be included in Bill regarding internal appeals, for example, legal presentation, whether representations should be written or oral. External appeals should be located in specialised section of Magistrates' Courts (see last paragraph on p 99).
OPD 42 (Department of Land Affairs):
Government officials can be turned into researchers for a member of the public, irrespective of motive of requester and whether there is a broader public interest in supplying the information. Access to information is important but is not the only important function of government.
OPD 45 (Johannesburg Stock Exchange - JSE):
It is unclear whether the JSE is a "government body". The JSE is a voluntary association with separate juristic personality. JSE is only licensed stock exchange but the Stock Exchanges Control Act, 1985, does not provide JSE with monopolistic rights as envisaged in clause 1(1)(v)(a)(vi) of Bill. It is also not clear whether exercises public power or performs a public duty.
Further comments are made on presumption that JSE is a government body.
OPD 48 (Lawyers for Human Rights):
Objection is raised with regard to High Court or even Magistrates' Court as enforcement mechanism. Legal advice should be provided in rural areas by way of paralegals. A paralegal-scheme is cost-effective and trustworthy and disputes may also be resolved through the intervention and advice of paralegals.
Another consideration may be to include the Public Protector who may serve as a neutral entity to review a dispute upon conclusion of an internal appeal.
It is also recommended that schedules, diagrams, footnotes or flow charts should be included in the Bill in order to render its provisions more accessible.
OPD 49 (Legal Aid Board):
Members of the public convey confidential information to the Board in attempting to receive legal aid. Many of the Board's employees and agents are not practising legal practitioners and the Board is not a legal firm. Provision should be made to protect the interests of the Board's clients.
OPD 51 (Department of Agriculture):
A penalty clause should be included for requests unnecessarily indicated as urgent.
Provision is made for assistance to the SAHRC but a similar provision does not exist with regard to state departments experiencing financial constraints.
The prescribed fees that are collected have to be paid over to State Expenditure which will place a departments under financial pressure.
No provision is made to compel private companies to give access to information and it will be impractical to obtain a court order.
OPD 53 (Provincial Administration: Western Cape):
The appointment of information officers and the system for processing requests might "hinder the administration of the Western Cape Provincial Government" and responsibilities of the head of a governmental body will impact on the workload of the administration. The Bill will impact on the administrative burden at the expense of primary functions, for example, responsibilities in terms of clause 6.
Too many exceptions in the Bill will lead to a "bad" system of public administration. It is stated that this provincial government will need time to build the necessary capacity to administer the Bill. Poorly literate persons will require assistance to such an extent that it will add to the burden imposed on the State.
The relationship between the two Bills, clauses 6, 42 and 44 of the Bill and clauses 13 and 14 of the Administrative Justice Bill, should be considered and clarified.
OPD 57 (Minister of Justice):
Flow charts may be used to promote a better understanding of the provisions of the Bill. Flow charts may be effective in explaining procedural matters and the interrelationship between internal appeals (clauses 67 to 71) and applications to High Court (clauses 72 to 81) may be explained in this manner.
An alternative enforcement mechanism could be too costly and could delay the implementation of the Bill.
Attention is drawn to the enforcement mechanisms provided for in the equality and administrative justice draft legislation.
OPD 58A (Department of Justice):
The use of footnotes may be considered to promote a better understanding of the Bill. It should be provided that footnotes do not form of the legislative text and it should be limited to cross-references between relevant clauses of the Bill.
OPD 59 (Department of Finance):
Designation of information officers and the provisions relating to cost recovery will reduce financial pressure on government bodies. A gradual implementation of the Bill will assist in capacity building in government bodies. The time period for response to requests should be increased.
Bill does not adequately limit access to financial information concerning companies and individuals used for determining policy and regulatory measures, for example, insider trading and exchange control surveillance. It is recommended that Committee consult with Financial Services Board and Reserve Bank.
OPD 64A (Open Democracy Campaign):
Section 32(2) of the Constitution will automatically fall away if no legislation is passed before 4 February 2000 and the section 32(1) right automatically comes into operation. This conclusion is based on paragraphs 82 to 87 of the certification judgment, Constitutional Principle ix would not have been satisfied if the suspension of section 32(1) had not been restricted to a fixed period and further that an alternative reading of the relevant provisions would result in an absurdity.
It is also submitted that if the legislation does not give full effect to the right in section 32(1) it will not qualify as section 32(2) legislation.
OPD 68 (Institute for security Studies):
Whistle-blower provisions should be extended to private sector and should also apply to disclosure about public safety and environmental risks.
It is recommended that there should be four types of disclosure, to wit, to obtain advice from a lawyer or union; to raise the issue with a designated body and to disclose the issue more widely. The test for the first three disclosures are that the whistle-blower is acting in good faith and with reasonable belief. An additional test for wider public disclosure is recommended.
Include the Public Service Commission, the national Director of Public prosecutions and any special Investigating Unit in list of designated bodies.
Internal disclosures should be protected where there is no formal reporting procedure.
OPD 68A
The UK Public Interest Disclosure Act, 1998, incorporates three important aspects, to wit, it nullifies the employee's duty of confidentiality towards an employer (disclosure is not protected if the person commits an offence); it protects the disclosure of extra-territorial issues (multi-national companies) and it also establishes an employee's right not to be subject to detriment.
SUMMARY OF SUBMISSIONS CLAUSE BY CLAUSE
CLAUSE 1
(Interpretation)
OPD 2 (Banking Council of South Africa):
The definition of "inaccurate" refers to "incomplete" and disputes could arise in practice over the definition (it is submitted that all information or records are likely to be "incomplete"). It is recommended that "inaccurate" be amended to include "established under circumstances of reasonable care having regard to the purpose for which the information is prepared". The "reasonable care" qualification is in line with international precedents as found in Australia and New Zealand.
OPD 3 (Consumer Institute South Africa):
Clause 1(1)(v) limits the exercise of public power to governmental bodies but certain private bodies are involved in activities that pertain to matters of public interest and the definition should be extended to all such bodies. The words "public body" should be used in the place of "governmental body".
OPD 13 (Centre for Conflict Resolution):
The definition of "governmental body" excludes Cabinet. Constitutional Principle IX of the Interim Constitution, the forerunner of section 32 of the 1996 Constitution and the Open Democracy Bill, states that "provision shall be made for freedom of information so that there can be open and accountable administration at all levels of government". Section 92(2) of the Constitution provides that "members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions". It is submitted that access to information is a crucial element of accountability. Cabinet should be included in the definition of "governmental body". It is acknowledged that full disclosure of Cabinet's business will not be in the interest of good governance but Chapter 2 of the Bill affords sufficient protection and can always be amended to address Cabinet's concerns.
OPD 23 (Transnet):
Transnet is a public enterprise which have to compete in the commercial marketplace and should be excluded from the definition of governmental body.
OPD 23A
Transnet as state owned enterprise is included in definition of government body in clause 1(v)(a)(iii) and may be compelled to disclose sensitive commercial information to competitors to its own detriment. It is submitted that, irrespective of the protection afforded by clause 38, the administrative process as set out in the Bill of grounds for refusal may be time consuming (see p 3 for recommended inclusion of "state-owned enterprise").
OPD 26 (Environmental Justice Networking Forum):
Environmental information should be defined and the definition should include a reference to the state of elements of the environment, factors such as substances, energy, noise, radiation and the state of human health and safety.
OPD 27 (NADEL):
The exclusion of private bodies that perform public functions, the courts and judicial officers in clause 1(2) is a matter of concern.
OPD 34 (Telkom):
The definition of "governmental body" expands the definition of "state" beyond that of an "organ of state" in section 239 of the Constitution and disregards section 195(6) of the Constitution. It is recommended that Telkom and other similar public enterprises be exempted by regulation in terms of the Bill or be exempted from the Bill itself.
OPD 35 (Credit Bureau Association):
Clause 1(1)(viii) defines inaccurate which include the word "incomplete" which is too broad and should be defined with "having regard to the purpose for which the record or information will be used or disclosed".
OPD 36 (Committee for Private Data Base Users):
The definition of "inaccurate" should take account of the nature and intended uses of information. The current definition will lead to disputes as to what constitutes a "complete" record.
OPD 41 (SAHRC workshop):
Definition of "record" should distinguish between information which must be requested in the prescribed form and information which can be requested in manners other than the prescribed form.
OPD 42 (Department of Land Affairs):
Definition of "government body" is wide and it is not clear whether it includes bodies such as schools.
OPD 44 (Law Society of South Africa):
The LSSA is an institution exercising a public power or performing a public duty in terms of legislation and qualifies as a government body.
With regard to the exclusion of the judicial branch of the State the Bill is inconsistent with the draft Administrative Justice Bill. This will lead to the inconsistent situation where the judiciary will be bound to proceed fairly and to provide reasons for its administrative actions, but will not be bound to provide access to information.
The duty of the judiciary, as branch of the State, in terms of section 32(1)(a) will have to be balanced with section 165(2) and (3) of the Constitution. The judiciary should be included in the Bill insofar as it exercises public powers other than the judicial authority granted to it by section 165(1) of the Constitution.
Constitutional Principle ix requires freedom of information so that there can be open and accountable administration at all levels of government. The blanket exclusion of Cabinet is a failure to give effect to the Constitution.
Horizontal application of the Bill can be achieved by amending definition of "private body" in clause 1(xxi), by deleting the words "in possession of or controlling a personal information bank".
The open meetings chapter should be reintroduced in order to ensure that the Bill complies with the requirements of the Constitution.
OPD 45 (JSE):
JSE is entirely privately funded, no state administration has any authority to appoint JSE officers, JSE is not affiliated to any government body, administration or organisation.
Clause 1(1)(v) should be amended to read " ... but does not include the Cabinet, a court, a judicial officer, a stock exchange licensed to carry on business as such in terms of the Stock Exchange Control Act, 1985 or a body regarded as being part of ...".
See paragraph 3.2.1 to 3.2.3 for further motivation for exclusion, it is recommended that clause 1(1)(xxi) be amended to read " ... a personal information bank, but does not include a stock exchange ... Stock Exchanges Control Act, 1985 ;".
OPD 46 (Minister of Health):
Heading would reflect content of clause better if word "Definitions" is used.
OPD 50 (Public Service Commission):
Clause 1(1)(vi)(a)(i) should refer to Schedule 1 to 3 of the Public Service Law Amendment Act, 1998 (Act 86 of 1998).
Clause 1(1)(xxiv) and (xxvi) refer to requester which is not defined. A definition of requester should include a person acting in his or her own interest; association acting in the interest of its members; person acting on behalf of another person who is not position to seek relief in own name; and a person acting as a member of or in the interest of a group or class of persons or acting in public interest.
Clause 1(1)(xxxii) defines "working day" but Bill refers to "days". The term "working day" should be consistently used in the Bill.
OPD 62 (South African Revenue Services):
Information protected by the secrecy provisions provided for by Acts administered by the SARS as set out in Schedule 1 of the South African Revenue Services Act, 1997 (Act 34 of 1997), should be excluded from provisions of Bill. Disclosure in terms of the Bill will inhibit full disclosure by taxpayers, prejudice tax compliance and the broadening of the South African tax base. Administrative impact of Bill will hamper tax administration and revenue collections.
OPD 63 (Department of Minerals and Energy Affairs):
Application of clause is too wide. Certain issues of access to information should be dealt with in specialised legislation, for example, geological, prospecting and mining information should be addressed in legislation dealing with mineral matters. This clause will impact negatively on State's move towards making information publicly available.
OPD 65 (South African Society of Archivists):
Definition of non-commercial requester (clause 1(1)(xii)) should be broadened to accommodate archival researchers whose research is not for commercial purposes.
The words "in the possession or under the control of" in clause 1(1)(xxiii)(i) require clarification. It is submitted that it cannot be the intention to include archival collections in the control and under professional control of a governmental body (a university library) but remain property of another person or organisation.
OPD 67 (J Poswa, S.C - o.b.o BLA):
Concern is raised with regard to large number of exemptions including the courts and judiciary. BLA supports submission by NADEL.
CLAUSE 2
(Application of Act)
OPD 16B (Freedom of Expression Institute):
Other legislation dealing with access and all Acts dealing with a greater amount of access should prevail over the Bill. Clauses 2 and 12 should be merged for the sake of legal certainty.
OPD 26A (Legal Resources Centre):
The meaning of this clause should be clarified and may be merged with clause 12 and should also state that the legislator may enact other legislation giving greater access to information.
OPD 33 (COSATU):
Clauses 2, 12 and 43 deals with the relationship between the Bill and other legislation. Provision should be made to ensure "that where there is conflict between legislation, the legislation most favourable to access must be followed".
OPD 47 (Public Protector):
Section 7(2) of the Public Protector Act, 1994, provides for the non-disclosure of the contents of any document in the possession of the Public Protector. It is not clear whether clause 2 of the Bill supercedes section 7(2) of the Public Protector Act, 1994.
OPD 50 (Public Service Commission):
This clause should be revised to make it clear that "if any other Act is inconsistent with this Act, this Act will prevail.".
OPD 53 (Provincial Administration: Western Cape):
This clause is problematic and will result in legal uncertainty, for example:
Section 16 of Labour Relations Act, 1995
Section 31 of National Environmental Management Act, 1998
Section 7 of legal Deposit Act, 1997
Protection of Information Act, 1982, as a whole
The Bill's position in relation to other legislation should be clarified especially where the provisions dealing access to information is more user friendly in existing legislation.
OPD 65 (South African Society of Archivists):
Clauses 2 and 12 should state clearly that existing rights of access to information in terms of other legislation should not be "diminished" by the Bill.
OPD 69 (Financial Services Board):
The clause will have the effect that the Board will have to revisit legislation such as the Financial Services Board Act, 1990, and the Inspection of Financial Institutions Act, 1998, in order to establish whether any amendments or repeals have to be effected.
CLAUSE 3
(Objects of Act)
OPD 3 (Consumer Institute South Africa):
The restriction of the terms "good governance' and "commercial confidentiality" in clause 3(1)(a) on the right to information which relates to the quality, suitability or safety of the goods or services supplied by public bodies should be considered. A precise definition should be given to "good governance" and "commercial confidentiality" or should be deleted in the light of clause 38 that is broad enough to encompass the terms.
OPD 34 (Telkom):
Objects of the Bill must conform with the Constitution and the limitation that "information should be provided without jeopardising the commercial and operational activities of governmental bodies" should be included in clause 3(1)(a).
OPD 46 (Minister of Health):
Clause 3(2) provides for interpretation and can be better provided for under its own heading.
CLAUSE 4
(Designation of Information Officers)
OPD 2 (Banking Council of South Africa):
Clause 4(1) imposes a duty on governmental bodies and allows for no discretion in the application of the provision. It is recommended that "must" be replaced with "should, as may be required".
OPD 23 (Transnet):
Productivity will be affected by the need to employ additional personnel while Transnet is in a process of transformation. Critical operational areas of the company may be affected by an individual who is on a "fishing expedition".
OPD 25 (ESKOM):
The Human Rights Commission should be required to review existing procedures within organisations (taking into account financial factors and substantial compliance with the Bill) and if acceptable should not require the creation of infrastructures and systems.
OPD 34 (Telkom):
Telkom has more than 58 000 employees and may need to employ numerous information officers which will add to administrative costs affecting in turn its business efficacy. It is submitted that the clause 4(3) delegation of powers is not feasible. It would be preferable to delegate such powers to the information officers.
OPD 41 (SAHRC workshop):
Should include a provision relating to suitability of information officer (will prevent appointment of junior persons).
OPD 46 (Minister of Health):
Structures could be simplified by creating an office in the Government Communication and Information System. Two subsections, one dealing with designation and the other with delegation would suffice.
OPD 51 (Department of Agriculture):
Posts for an information officer and deputy information officers will have to be created and duplicated on the service establishments of those parastatals linked to the Department (suffering financial constraints).
OPD 52 (Mpumulanga Provincial Government):
Provision should be made, in the case of provincial administrations, for a central information officer to act on behalf of the 10 or 11 provincial departments which will ensure consistency within the administration and a co-ordinated approach regarding requests for access.
OPD 63 (Department of Mineral and Energy Affairs):
Department receives many requests for access to prospecting and mining potential information, designation of information officers may create a bottleneck in relaying information to respective clients (might influence views of investment climate in South Africa).
CLAUSE 5
(Guide on how to use Act)
OPD 2 (Banking Council of South Africa):
The requirement in clause 5(2)(c) relating to the manner and form in which a request for access to information must be made will be impossible to comply with in a diversified and competitive private sector. It is recommended that clause 5(2)(c)(ii), and reference to "a private body" in clause 5(2)(c)(iii) be deleted.
OPD 23 (Transnet):
The guide should provide an explanation that the Bill is based on section 32 of the Constitution and the implications thereof so as to prevent unnecessary enquiries to a large organisation (article 10 of Human Rights and Fundamental Freedoms should be included in the guide). The Human Rights Commission should provide proper guidelines on the provisions of the Bill, so that when an application is made the individual is "coached" in the substantive and procedural aspects of the Bill which will ensure the efficiency of the process.
OPD 42 (Department of Land Affairs):
Guide will be volumeous and costly containing information of at least 1 000 bodies. The 12 monthly updating will be enormous task, information will have to be obtained from government bodies and compared with existing guide. Guide will be useful to users but to include information of every government body (clause 5(2)(b)) "seems to over-kill.".
OPD 46 (Minister of Health):
Only requires two subsections, dealing with publication of guide and the other with ways of making it available.
OPD 51 (Department of Agriculture):
The obligation to keep SAHRC updated with new information holds personnel implications for the Department.
CLAUSE 6
(Manual on functions of governmental body)
OPD 2 (Banking Council of South Africa):
Clause 6(2)(d)(ii) refers to "personal information bank". It is recommended that the word "bank" be defined in clause 1 or be described with "personal information" or "data" wherever it is used.
OPD 25 (ESKOM):
Public enterprises should be excluded from all provisions of the Bill that do not apply to private bodies.
Direct input by the public into the policy of an organisation should not be allowed, the Government should give effect to its policy either by its shareholding, legislation or by way of a regulatory authority.
OPD 41 (SAHRC workshop):
A provision similar to clause 6(6) should be made applicable to entire Bill. Transitional arrangements should be included in Bill to allow for staggering implementation.
OPD 42 (Department of Land Affairs):
Level of detail is to vast and will require a great deal of time in analysing and preparing information, for example, a description of the subjects on which the body holds records and categories of records, and a description of all remedies which will necessitate an analysis of every statute, proclamation and regulation administered by body. The requirement of annual re-publication "is either so vague as to be ineffective, or extremely onerous.".
OPD 46 (Minister of Health):
Requires only two subsections, dealing with publication of manuals and the other with ways of making manuals available (what manual has to provide for should be included in regulations).
OPD 50 (Public Service Commission):
The clause require a manual while clause 9 of the Administrative Justice Bill requires that every organ of state should have a register and this appears to be overlapping. It is recommended that this Bill, the Administrative Justice Bill and Labour Relations Act should be co-ordinated in order to avoid duplication.
OPD 51 (Department of Agriculture):
Cost implications are a concern, manual will have to be compiled by departmental officials or external contractors.
OPD 52 (Mpumulanga Provincial Government):
The provision found in clause 6(2)(d) does not apply to the private sector and the Bill therefore falls short on the openness principle with regard to the private sector.
CLAUSE 7
(Information in telephone directory)
OPD 42 (Department of Land Affairs):
Places a large burden on the relevant head, every government body that qualifies will
have to be identified. Every telephone directory will include at least 40 to 50 extra pages with the additional financial implications. Doubt is raised whether it is necessary for a Western Cape directory to carry the details of local councils in the Northern Province.
OPD 43 (Department of Public Works):
Printing costs with regard to every telephone directory will be immense, a special directory servicing government bodies might be considered.
CLAUSE 8
(Announcement of public safety or environmental risk)
OPD 3 (Consumer Institute South Africa):
Clause 8 is supported because it will promote the publication of information on products that were banned or withdrawn internationally or locally.
OPD 25 (ESKOM):
The position is unclear with regard to when disclosure should take place, degree of investigation and should only additional information be disclosed. It is recommended that disclosure should be required from the responsible Minister.
OPD 26A (Legal Resources Centre):
The voluntary disclosure of information (right to know) is limited due to the privacy concerns of "third parties". A greater flexibility to deal with situations in which there is an "immediate risk or serious danger to the public or serious detriment to the environment" is called for and it is recommended that a general overriding provision of the time periods and procedures should be incorporated. Disclosure should then take place "forthwith" or at least "as soon as possible".
OPD 46 (Minister of Health):
This clause is not directly relevant to title of Part 2 and could be better served with its own title.
OPD 43 (Department of Public Works):
Guidelines must be provided in respect of the discretionary power given to the head when deciding what is in the interest of public safety and environmental risk.
Clause 8(4) oral representations places a burden on government with regard to keeping of such representations.
OPD 66 (Department of Environmental Affairs):
Section 24 of the Constitution requires the protection of the environment through reasonable legislative and other measures that prevent pollution, promote conservation and sustainable development. Access to environmental information and the duty to disclose information are internationally recognised measures for the protection of the environment. Refer to page 2 of the submission for a comparison between section 31 of NEMA and the provisions of the BIll.
OPD 70 (Office the Premier: Northern Province):
Clause 8(4) only provides for a "reasonable period" within which representations may be presented by a third party. A specific period should be provided for (see clause 45(2)).
CLAUSE 9
(Right of access to records of governmental bodies)
OPD 25 (ESKOM):
A record has to be disclosed where a governmental body is in possession of a record created by a third party and where the third party cannot or does not rely on Chapter 2 protection.
Retrospective application may be unfair where a third party departs from the view that a document was created on the understanding that it should not be freely available.
The qualification requiring a purpose for the information "exercise of a right or protection of an interest" should be retained.
OPD 52 (Mpumulanga Provincial Government):
It should be clearly outlined whether one governmental body would be able to request access to information from another governmental body (or in another or the same sphere of government).
CLAUSE 10
(Use of Act for criminal and civil discovery of governmental bodies' records excluded)
OPD 44 (Law Society of South Africa):
This clause is a substantial limitation of the section 32(1)(a) right. It will permit a government body to refuse access to information whenever it considers that a request for information is made for purposes of discovery. Clause 10 should be deleted.
CLAUSE 11
(Right of disclosure)
OPD 3 (Consumer Institute South Africa):
The inclusion of this clause is welcomed.
OPD 25 (ESKOM):
The right of the recipient to publish information should be subjected to guidelines to avoid prejudice to the public. It is submitted that a distinction may be drawn between non-commercial and personal requesters.
OPD 63 (Department of Mineral and Energy Affairs):
Those aspects of the common law to which this clause refers should be mentioned in the Bill or in the guidelines.
CLAUSE 13
(Form of requests)
OPD 43 (Department of Public Works):
The clause 13(2)(g) person must provide proof of authorisation where the requester seeks personal information on behalf of another.
An oral request for information should be accompanied by a form of identification.
OPD 46 (Minister of Health):
Clause 13(2) suggests that the words "prescribed form" relate to a form to be completed, the clause should indicate where the form can be obtained.
OPD 63 (Department of Mineral and Energy Affairs):
Due to different nature of information required by the public it is submitted that every department should have its own prescribed form and should also be permitted to prescribe what type of request should be made in terms of the Bill. Some requests can be dealt with telephonically.
OPD 69 (Financial Services Board):
Provision should be made in clause 13(2) for the disclosure of the purpose of the request.
CLAUSE 14
(Duty to assist requesters)
OPD 25 (ESKOM):
It is recommended that an information officer should only be required to refer requests to the correct governmental body and to provide assistance in locating the correct governmental body. An information officer should not be required to comply with clause 13 in this regard.
CLAUSE 15
(Transfer of requests)
OPD 34 (Telkom):
Placing a statutory duty on public commercial enterprises may result in "an unbearable administrative burden".
CLAUSE 17
(Payment of request fees)
OPD 42 (Department of Land Affairs):
It is questioned why non-commercial requesters should be exempted from paying a request fee, they will have to pay an access fee in terms of clause 24. The work to determine an access fee will be substantial. It is submitted that there is no basis for exempting certain requesters.
OPD 43 (Department of Public Works):
How will payment take place where a request is made electronically and requester can only be contacted electronically.
OPD 46 (Minister of Health):
Clauses 17, 18 and 24 could be dealt with in one clause.
OPD 58A (Department of Justice):
Clauses 17, 18 and 22 are important clauses which will contribute to minimising financial expenditure.
OPD 70 (Office of the Premier: Northern Province):
Request and access fees (clauses 17 and 24) will have to be "spelt out" in the regulations.
CLAUSE 18
(Payment of deposit)
OPD 42 (Department of Land Affairs):
Members of parliament, provincial legislators and municipal councils will be exempted from paying deposits or access fees (clause 24 (6)). It means that there are more than 10 000 persons who may request access to information. Elected members have other channels for access.
OPD 43 (Department of Public Works):
Personal requester should pay a deposit if the personal information requested require a substantial amount of search hours.
OPD 63 (Department of Mineral and Energy Affairs):
It is not always possible to distinguish between personal and commercial requests, delete clause 18(2)(a) and replace with "officials in the service of a State department in the execution of their duties". (See clause 24(3)).
CLAUSE 19
(Decision on request and notice thereof)
OPD 42 (Department of Land Affairs):
The thirty days period is in reality not substantial. Basic steps include: register the request; consider whether it is excluded in terms of Chapter 2; identify where in department records are likely to be found; send it to relevant part; conduct research whether information is available; estimate time necessary to collect and prepare it; submit information to information officer; consider response form line functionary; and prepare response to the request; if response is a refusal the relevant findings of fact and reasons for refusal will have to be prepared. This work might be done at expense of relevant department's primary functions.
OPD 46 (Minister of Health):
Does not provide for information officer to request further information from requester where a request may not be clear on the nature of the information requested.
CLAUSE 20
(Urgent requests)
OPD 25 (ESKOM):
Further options need to be provided where there is no fax or telephone.
CLAUSE 21
(Deemed refusal of request)
OPD 52 (Mpumulanga Provincial Administration):
Provision should be made in clause 21(1) for the extension of the 30 day period with a further (30 day) period within the first 30 day period "in order to avoid any delays in attending to the requests for information".
CLAUSE 22
(Deemed refusal of request)
OPD 21 (Chief Justice):
In several places "regarded to have" is used, it should be "deemed to have".
OPD 51 (Department of Agriculture):
Presumed refusal of a request could lead to unnecessary appeal and court proceedings.
CLAUSE 23
(Severability)
OPD 25 (ESKOM):
Disclosure of the severed part of the record could indirectly divulge information that should be refused. It is proposed that the Bill should expressly allow for refusal of the entire record where information cannot be reasonably severed.
CLAUSE 24
(Access fees)
OPD 25 (ESKOM):
A safeguard should be introduced to ensure that governmental bodies are not exploited as cheap labour to locate information. Additional fees for commercial requesters may not justify the costs incurred by an organisation. The Bill does not clearly define a commercial requester.
OPD 42 (Department of Land Affairs):
See comments under clause 18 in relation to clause 24(6).
OPD 63 (Department of Minerals and Energy Affairs):
Refer to comment on clause 18(2) and include "officials in the service of any State department in the execution of their duties" in clause 24(3).
CLAUSE 25
(Access and forms of access)
OPD 25 (ESKOM):
Provision is not made where information is only available in a more expensive format than the form in which it is requested. Provision should be made for the information officer or delegate to be present during the hearing of a recording or the viewing of a video. Publication of a transcript, where the requester wishes to do it personally, should be limited unless certified as a correct transcription.
OPD 42 (Department of Land Affairs):
The government body must be given a reasonable time to research, prepare and deliver the records once the access fee or deposit has been paid.
CHAPTER 2
(Grounds for refusal of access to records)
OPD 64 (Open Democracy Campaign Group):
Consideration should be given to an inquisitorial enforcement procedure within the magistrate Court structure.
The Minister should designate a Magistrates' Court, after consultation with the Magistrates Commission, with the jurisdiction to hear appeals. This structure will be more cost effective and accessible.
Candidates should be suitably qualified to be officers, meaning that they should be magistrates, lawyers, academics and other specialists who possess a broad knowledge of constitutional issues.
The powers of these court should include the power to decide on its jurisdiction, subpoena of witnesses and records, questioning of witnesses in simple language, keep records of proceedings and should be able to make interim or any other appropriate orders.
An inquisitorial procedure should be followed which allows for an informal process which will be less expensive and will enhance accessibility.
The appeal process should be the present system (section 83 of the Magistrates' Courts Act, 1944).
Constitutional questions should be referred directly to the Constitutional Court.
(See p 5 to 9 for recommended amendment of Chapter 2).
CLAUSE 29
(Mandatory protection of privacy)
OPD 25 (ESKOM):
Failure to protect the details of the remuneration of individuals may be unconstitutional. The remuneration of individuals should be protected by the clause.
OPD 26A (Legal Resources Centre):
A request for access "must" be refused if the conditions in clauses 29(1) and 31(1) are met. The right of access to information is subjected to interests like privacy and commercial confidentiality. Objection is raised against the word "must" irrespective of the qualification provided for in clause 44(1).
The only requirement for a refusal of access is an "invasion of privacy" and it is submitted that the test is too weak and not in line with international presidents and section 36(1)(e) of the Constitution. Objection is raised, on the same grounds as above, regarding the "commercial or financial interest" test of clause 31(1)(b).
Clause 44(1) limits privacy and commercial confidentiality but the standard thereof is too high. The person refusing disclosure has to prove relatively little harm to privacy or commercial confidentiality while the requester have to show "substantial danger" to the environment and/or public safety.
It is recommended that the word "must" in clauses 2991) and 31(1) should be replaced with "may".
The words "an invasion of privacy" in clause 29(1) should be replaced with "an unreasonable invasion of privacy".
The words "be expected to cause harm" in clause 31(1)(b) should be replaced with "be expected to prejudice to an unreasonable degree".
A proviso should be inserted at the end of clause 29(1) to the effect that the information officer shall not refuse a request for access to a record if the invasion of privacy that would otherwise occur can be remedied by blacking out the identifying characteristics of the person concerned.
OPD 27 (NADEL):
Private interests are strengthened by the unqualified reference to "privacy" which will undermine the right to access. In following the American qualification of unreasonableness it is recommended that the necessity of harm exemption override should be included in the Bill. The Bill should also include an expansive definition of "personal information" such as in Canada and Sweden.
OPD 34 (Telkom):
The scope of clause 30(2)(e)(iii) would mean that employees "may acquire information about an individual's salary and remuneration". Telkom expresses its concern in this regard.
OPD 41 (SAHRC workshop):
Bill should not attempt to cater for privacy concerns, another Bill should deal with privacy. Reference to an invasion of privacy should be toughened. The word "must" in clauses 29 and 31 could cause some confusion in the light of clause 44 and should be replaced with "may".
OPD 46 (Minister of Health):
Clauses 29 to 35 and 37 to 39 could be provided for in one clause with 10 subsections.
OPD 63 (Department of Minerals and Energy Affairs):
Section 1.3.3.3 of the White Paper on a Minerals and Mining Policy for South Africa provides that it will be a condition of any prospecting licence or reconnaissance permission that all information and data form from prospecting shall be submitted to the State, who in turn will release the information to the public at any time after submission of the information (unless the prospector retains a prospecting, retention or mining licence). This information will be used to create a national exploration database.
Access ti this information will promote investment in exploration and mining and this clause will make it difficult for the State to release the information. (Comment also relevant to clause 31).
CLAUSE 31
(Mandatory protection of third party commercial information)
OPD 3 (Consumer Institute South Africa):
The criteria for disclosure should be "public safety or environmental risk".
OPD 23 (Transnet):
Transnet is in the process of finding strategic equity partners for certain business units. The Bill may have an inhibiting effect on potential candidates, the extent to which information will be exchanged between parties and the varying ways of processing such information. This might reflect negatively on the eventual price. The phrase "better informed choices" in clause 31(2)(c) should be clearly defined to ensure fairness to both parties.
OPD 33 (COSATU):
The provisions of clause 31(1) are too broad and may curtail the right to access information, a narrower and more flexible approach such as in the National Environmental Management Act, 1998, is recommended.
OPD 41 (SAHRC workshop):
The word "harm" in clauses 31 and 38 should be qualified to refer to "unreasonable harm".
CLAUSE 32
(Records supplied in confidence)
OPD 16A (Freedom of Expression Institute):
The words "another person" in clause 32(1)(b) refer to natural and juristic persons. Juristic persons denote far more than commercial entities. Publishing houses should be included within the ambit of the Bill but journalists and their sources should be protected. The existing statutory and common law would assist an "aggrieved party" with regard to access to information.
OPD 23 (Transnet):
The clause should include information supplied to a governmental body for the purpose of securing some advantage, grant, permit, contract or concession from the governmental body concerned.
OPD 23B
Transnet may be compelled under this clause to provide reasons to an unsuccessful tenderer why a contract was awarded to another party. Clause 39 cannot be used by the Transnet Tender Board to refuse access to a record (see p3 and 4 for recommended amendments).
OPD 27 (NADEL):
Exemption is overly broad. In Canada it is limited to information obtained from within government at all levels, international organisations of state and foreign governments. In Australia exemption is limited to cases where disclosure would found an action for breach of confidence. It is suggested that "third party" should be narrowly defined.
CLAUSE 34
(Law enforcement)
OPD 16A (Freedom of Expression Institute):
Broadening the exemptions are unacceptable, the "substantial" qualifier should be added to the "prejudice" referred to in clauses 24(1)(a) and 34(1)(c)(i).
OPD 27 (NADEL):
It is submitted that the "necessity of harm override" should be included and exemption should only apply to information acquired by lawful methods.
OPD 41 (SAHRC workshop):
There should be a free-flow of information between agencies.
OPD 57 (Minister of Justice):
Information relating to criminal matters (including police dockets) should be excluded from the ambit of the Bill in view of the Shabalala decison.
CLAUSE 35
(Privilege)
OPD 25 (ESKOM):
Clause 35(6) should be deleted. Professional privilege, even after legal proceedings have been finalised, ensures confidentiality which is essential for the proper functions of the legal system.
OPD 44 (Law Society of South Africa):
The "final determination" exception in clause 35 and the duty to reveal privileged information in the public interest in clause 44 affects the law of legal professional privilege to the extent that it will seriously inhibit the work of legal professionals
CLAUSE 36
(Republic's defence and security, including intelligence matters)
OPD 13 (Centre for Conflict Resolution):
The terms "frustrating" and "jeopardising" are possibly too broad, however the terms are constrained by the requirement that disclosure of information may be denied only if such disclosure "would be likely substantially to harm the defence or security of the Republic". This phrase could be reworded to read "would be likely to harm substantially the defence or security of the Republic" so that "substantially" more clearly qualifies "harm" rather than "likely".
OPD 14 (Deputy Minister for Intelligence):
The word "substantial" in clause 36(1) is confusing in relation to intelligence or security related matters. The intelligence services can be in possession of "information" which at the relevant time cannot be defined as "intelligence" and will cause a burden to prove that "substantial" harm is likely to be caused.
Ad the word "coercion" after "violence" to deal with passive resistance which may be a threat to the security and defence of the Republic.
OPD 16A (Freedom of Expression Institute):
The wording of the clause is broad which might lead to unnecessary suppression of information. A distinction should be made between the current democratic order and the previous order.
OPD 26A (Legal Resources Centre):
The five factors in clause 36(1) are vague and leaves the information officer with a large discretion. The phrases "aggression against the Republic" and "sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic" in clause 36(1)(a)(i) and (ii) and "jeopardise the effectiveness of arms" in clause 36(1)(c) are general terms and open to misuse. The clause potentially infringes the right to freedom of expression.
It is recommended that categories of national security information should be provided for coupled with time periods in respect of classification (see footnote 8 on p 14).
OPD 52 (Mpumulanga Provincial Government):
The wording "would be likely substantially to harm" in clause 36(1) should be amended to correspond with "likely to cause substantial harm" in clause 37(1)(b).
CLAUSE 37
(International relations)
OPD 3 (Consumer Institute South Africa):
The clause is phrased in such a manner that it appears that the South African government's obligations towards the international community are placed above those of its citizens.
OPD 16A (Freedom of Expression Institute):
Information should only be refused where "substantial" harm will be caused to relations with other states.
OPD 52 (Mpumulanga Provincial Government):
Obligation on provincial information officers will be onerous. The information officer will firstly have to approach the Department of Foreign Affairs in order to establish whether disclosure would be in contravention of an international law obligation. A central provincial information office might also alleviate this potential problem.
OPD 60 (Department of Foreign Affairs):
Concern is raised regarding the clause and an alternative formulation of the clause is recommended.
CLAUSE 38
(Economic interests of the Republic and commercial activities of governmental bodies)
OPD 16A (Freedom of Expression Institute):
Clause 38(1)(c) is too broad and a provision should be included to the effect that the sub-clause will not apply where compelling public interest may require the disclosure of the information and where there is reason to believe that the sale or international trade agreement is not in the best interest of the Republic.
OPD 23 (Transnet):
See discussion under clause 31.
OPD 26A (Legal Resources Centre):
Objection is raised with regard to information officer's discretion to refuse a request, on the same grounds as mentioned in clause 29. It is also mentioned that the information does not even have to be confidential to be protected and will prevent corruption form being exposed.
The words "be expected to cause harm to the commercial and financial interests" in clause 38(2)(b) with "be expected to prejudice to an unreasonable degree the commercial and financial interests".
OPD 51 Department of Agriculture):
Consent for the disclosure of information (clause 38(3)(b)) should be given by the head or his/her delegate in order to prevent unauthorised permission.
CLAUSE 39
(Operations of governmental bodies)
OPD 26A (Legal Resources Centre):
The words "could reasonably be expected to frustrate the deliberative process in a governmental body" is subjective and a more objective test is needed (see p 11 and 12 for recommendation).
OPD 50 (Public Service Commission):
Concern is raised with regard to the wording "governmental bodies" and constitutional bodies. Governmental bodies do not include a constitutional body such as the PSC and it is unclear whether the functions of the PSC are included under clause 39(1)(b).
CLAUSE 40
(Published records and records to be published)
OPD 23B (Transnet):
The words "frivolous" and "vexatious" are not defined and will have to be given their ordinary grammatical meaning.
OPD 42 (Department of Land Affairs):
The test is objective, the request is frivolous or vexatious, and objection is raised with regard to the use of the word "manifestly".
OPD 43 (Department of Public Works):
The nature of the words "frivolous and vexatious" must be clarified.
OPD 46 (Minister of Health):
It is not clear what constitutes a frivolous or vexatious request without reasons for the request (see comment under clause 13).
OPD 52 (Mpumulanga Provincial Government):
The clause should be amended tp prevent an information officer from making subjective decisions on whether a request is "manifestly frivolous or vexatious". An information officer should be obliged to supply written reasons in respect of his/her decision. Approach will also be in line with section 33 of the Constitution.
CLAUSE 41
(Records that cannot be found or do not exist)
OPD 41 (SAHRC workshop):
Wording "records that cannot be found or do not exist" should not be a ground for refusal.
CLAUSE 42
(Published records and records to be published)
OPD 51 (Department of Agriculture):
A department will not know what a library charge for information (clause 42(1)(b)) or where the requester's nearest library is (clause 42(2)(b)).
CLAUSE 43
(Records already open to public)
OPD 23 (Transnet):
The part of the clause dealing with costs should be deleted. Where information is available from an alternative source the applicant should revert to the alternative at his or her own cost.
OPD 26 (Environmental Justice Networking Forum):
A clause 43A should be included relating to access to environmental information which have to include the right of every person to access to information held by the state, the right of the organs of state to have access to information and the grounds upon which a request for information may be refused.
Opd 42 (Department of Land Affairs):
The Department has a variety of deeds, survey and mapping records available to the public, not all in terms of specific legislation. The words "or in any other manner" should be included after the words "if the record is open to public access in accordance with any other legislation".
OPD 46 (Minister of Health):
It should be made clear at what stage the SAHRC would be required to intervene, after internal appeal has been made or before.
CLAUSE 44
(Mandatory disclosure in public interest)
OPD 3 (Consumer Institute South Africa):
Consumer confidence and the development of an information society will be promoted by the clause.
OPD 13 (Centre for Conflict Resolution):
Clause 44 deals with the mandatory disclosure of information in the public interest. The clause provides clear guidelines to an information officer in exercising the discretion of deciding whether information should be disclosed or not.
Clause 44(1)(a) states that an information officer must provide information if such disclosure would reveal evidence of substantial abuse of power; injustice to a person; danger to the environment or health or safety of an individual or the public; or unauthorised use funds or assets. Clause 44(1)(b) provides that the information must be made available if "the public interest in the disclosure of the record clearly outweighs the need for non-disclosure in the provision concerned.". It is recommended that the word "and" between clause 44(1)(a) and (b) be replaced with "or", otherwise it implies that the two subclauses constitute separate considerations.
Clause 44(2) provides that the information officer must provide information and repeats the test referred to in clause 44(1)(b) but neglects to cover the conditions laid down in clause 44(1)(a). This would have the result that the "disclosure of substantial evidence of illegality and injustice is not necessarily in the public interest". It is recommended that the Bill be amended so that every ground for refusal of access to information be overruled if either clause 44(1)(a) or 44(1)(b) applies.
It is further recommended that if clause 44 is to serve in the public interest then the grounds for mandatory disclosure of information should include: deviation from official policy; infringements of rights and freedoms and deviation from International Law.
OPD 41 (SAHRC workshop):
Test is too strenuous. The two tests in clause 44(1) and (2) should be merged.
CLAUSE 45
(Notice to third parties)
OPD 16A (Freedom of Expression Institute):
Amend clause 45(2)(b) to prevent an information officer from divulging the name of a requester to a third party, unless the requester agrees, and that only the category of requester be made known.
OPD 26A (Legal Resources Centre):
The name of the requester has to be furnished to the third party in terms of clause 45(3)(b). It is submitted that the identity of the requester may, in certain cases, for privacy or confidentiality concerns have to be kept secret.
Provision should be made in clause 45(3)(e) for an abbreviated time period in cases of urgency.
The words "unless the interests of the requester or the interests of justice militate otherwise" should be included at the end of clause 45(3)(b).
OPD 63 (Department of Minerals and Energy Affairs):
Foreign and local companies complain about difficulty in obtaining geological and prospecting information compared to other jurisdictions. Clauses 45 to 47 reinforce section 19 of the Minerals Act, 1991 (Act 50 of 1991), the lack of accessible information and requirement for obtaining consent makes South Africa unattractive to foreign investors. (Refer to comments on clauses 29 and 31).
CLAUSE 46
(Representations by third parties)
OPD 46 (Minister of Health):
The clause suggests that representations by third parties must be made within 10 working days after being informed, clause 20(2) decision on urgent requests must be made within 5 working days. More days (not less than 10) should be considered with regard to urgent requests.
CLAUSE 47
(Decision on representations for refusal and notice thereof)
OPD 15D (South African Council of Churches):
Concern was raised regarding a possible conflict between the SACC's proposed clause 47C and the current clause 30(2).
Clause 50(2) deals with personal information about the requester while the proposed 47C deals with any information required for the exercise or protection of any rights. A satisfactory solution would have to include clause 50 in the interim and a new part dealing with privately-held information.
CLAUSE 48
(Application of Part)
OPD 65 (South African Society of Archivists):
Exclusions defined should not apply to information gathered about individuals without their consent before the Bill comes into operation.
CLAUSE 49
(Use of Act for criminal or civil discovery of private bodies' records excluded)
OPD 45 (JSE):
It is not clear how clause applies to discovery in disciplinary proceedings of a self-regulatory body such as JSE.
CLAUSE 50
(Access to personal information held by private bodies)
OPD 2 (Banking Council of South Africa):
The individual's right to privacy can be placed at risk (especially where there is an existing legal obligation such as client confidentiality in the banking sector) if the information officer does not have proof that the requester is entitled to the requested information. Documentation such as faxes, email and letters facilitate the forgery of identity and other related documentation. It is recommended that clause 50(2)(a) be amended to state clearly that the request must be submitted in such a manner that the identity of the requester can be established beyond reasonable doubt.
OPD 24 (Direct Marketing Association):
Clause 50(2)(c) requires a requester to provide a "postal address or phone number" and is inconsistent with clause 51(5)(d) which requires, in a request for correction of personal information, a "postal address or fax number". The Bill should be amended to provide for a postal address, fax or telephone number, and/or e-mail address.
OPD 35 (Credit Bureau Association):
Clause 50(2)(d)(i) leaves room for fraud and the clause should make provision for a discretion in the form of "or any proof of his or her identity to the reasonable satisfaction of the head of the private body".
OPD 36 (Committee for Private Data Base Users):
Clause 50(2)(d)(i) will lead to unauthorised persons gaining access to information. Private bodies should be given the right to satisfy themselves that identity has been proved.
OPD 45 (JSE):
Blanket cross-reference in clause 50(6)(a) to clauses applicable to government bodies leads to uncertainty.
CLAUSE 51
(Correction of personal information held by private bodies)
OPD 24 (Direct Marketing Association):
Clause 51(5)(b) requires sufficient particulars to identify the record. Particulars may be provided after a date the initial request was made. To protect the information holder the words "of receiving sufficient information to identify the record" should be included after the words "... within 30 days" in clause 51(6).
Clause 51(8) requires that copies of deleted records should be retained. This defeats the purpose of the deletion and creates an administrative and cost burden with regard to storage facilities. The clause should be deleted, or the requirement should be limited to specified sectors where compelling reasons exist to retain records. If it has to be made applicable to all private bodies then a time limit (one year) should be included.
OPD 35 (Credit Bureau Association):
Keeping a deleted part of a record for as long as the entire record is retained is impractical. It is recommended that the copy should be retained for as long as the deleted information would have been retained.
Clause 51(9)(a)(iii) provides that a request must be attached to a record but it is recommended that provision should be made for a reasonable summary where the request is voluminous.
OPD 36 (Committee for Private Data Base Users):
Storing deleted information is expensive and impractical. Provision should be made for the deleted information to be held for no longer than it would have been held if not deleted (clause 51(8)(c)).
Provision should be made for requests to be summarised where they are too long to be cost-effectively stored (clause 51(9)(a)).
CLAUSE 53
(Use of personal information by private bodies)
OPD 3 (Consumer Institute South Africa):
Increasing technological advances with regard to information makes it difficult for individuals to control the dissemination of their personal information. Data protection is an important international guideline and article 6 of the European Union's directives should be noted. The provisions of the USA Fair Credit Reporting Act, 1971, may provide a guideline in this regard.
OPD 24 (Direct Marketing Association):
The clause does not reflect the same balance of interests with regard to the use of information as is the case with the disclosure of information in clauses 55(h) and 56(p). It is suggested that the wording of clause 55(h) be included as a clause 53(d).
OPD 35 (Credit Bureau Association):
The word "to" in clause 53(c) should be "by" and reference to clause 56 should be deleted.
CLAUSE 55
(Disclosure of personal information by private bodies)
OPD 2 (Banking Council of South Africa):
The presumption is that clause 55(g) covers for example a loan contract where the withdrawal of consent can not override prior contractual obligations. Should this not be the case , then the capacity for consent to be withdrawn in terms of contractual obligations (relating to loans, surety agreements, guarantee agreements etc.) needs to be prescribed.
OPD 6 (SACOB):
Exchange of information between companies of the same group is not allowed which will result in costly administrative difficulties for companies in retail credit operations. Access to a common data base should be permitted.
OPD 35 (Credit Bureau Association):
The wording of clause 55(h) implies that regulations can be made which override subclauses (a) to (g) and the words "other purpose which may be prescribed and which would not pose an unreasonable threat to privacy" should be used.
OPD 36 (Committee for Private Data Base Users):
The wording of subclause (h) might lead regulations being made which conflict with subclauses (a) to (g) and should make it clear that it is there to cater for other matters not provided for in (a) to (g).
OPD 50 (Public Service Commission):
A condition of disclosure is that "the information should be disclosed for the purpose for which the information was obtained or compiled or for a purpose consistent with that purpose.". If the condition is met, the consent of the person to whom the information relates is not required. The word "purpose" is not defined and it will allow for an interpretation which will nullify the right of privacy.
CLAUSE 56
(Disclosure of personal information by governmental bodies)
OPD 2 (Banking Council of South Africa):
Clause 56(m) confers privileged access by governmental bodies to information held by other governmental bodies in order to follow up on bad debts. Private bodies have the same problems and in view hereof it is suggested that the words "or a private body" be included after every reference to "governmental body".
Clause 56(n) favours only the recipients of payments to the exclusion of those owed unpaid debts. If clause 56(m) is accordingly amended as suggested above then clause 56(n) can be deleted because the eventuality will be covered.
OPD 24 (Direct Marketing Association):
Clause 56(n) is unnecessarily restrictive where non-financial benefits such as goods or services are due to persons. The words "or deliver a benefit owing to that other person" should be included after "... in order to make a payment".
OPD 35 (Credit Bureau Association):
Clause 56(m)(i) favours governmental bodies over private bodies where debts in the private sector are larger than in the governmental sector. It is recommended that clause 56(m)(i) should be included in clause 55.
CLAUSE 57
(Consistent purpose)
OPD 35 (Credit Bureau Association):
The subjective test is biassed against private bodies and should be reworded to an objective test in the form of "only if the person could reasonably be regarded to have expected such a use or disclosure".
OPD 36 (Committee for Private Data Base Users):
The clause implies a subjective test and it is submitted that the test should be objective.
CLAUSE 58
(Consent to use or disclose personal information)
OPD 2A (Banking Council South Africa):
An individual may withdraw consent given in a loan application that his or her non-performance in meeting repayment terms can be listed with a credit reference bureau. The wording of this clause is vague and it is recommended that a subclause to the effect that "where a borrower is in default or arrears in terms of loan obligations, and consent has been given to disclose this fact, consent may not be withdrawn" should be included.
OPD 4 (Edgars):
The "prescribed form" and "prescribed manner" requirement will result in enormous administration and cost burden with a group of in excess of 3, 6 million account holders. It is submitted that when an obligation has to be imposed it should rather be to give effect to the instructions of a client as opposed to the data base holder being obliged to obtain the express consent of every client.
OPD 8 (National Postal Forum):
The disclosure of personal information for legitimate marketing and communication purposes should be allowed, except where the individual has registered an objection.
It is submitted that a new clause dealing with the use and disclosure of personal information for marketing purposes be included. The provisions of which should include the following:
*All private and governmental bodies should register with a national body which should be a self-regulatory body with a code of conduct endorsed by the business Practices Committee of the Department of Trade and Industry.
*The individual is afforded the opportunity to object against the use of information after being informed of the intended use of the relevant information.
*The individual be allowed to register the objection directly with the relevant body or the nationally recognised self-regulatory body which will exclude the use of personal information in marketing activities.
OPD 35 (Credit Bureau Association):
Clause 58(1)(b) is open to abuse and it is recommended that the words "unless the person has a prior agreement to the contrary with the party concerned" be added to avoid situations where an in mora debtor applies for further credit at another institution in the knowledge that his or her non-payment may not be disclosed by the other creditor.
OPD 36 (Committee for Private Data Base Users):
Withdrawal of consent should not be allowed where it is done to prejudice another party to an agreement (clause 58(1)(b)).
CLAUSE 59
(Use and disclosure of private information held before commencement)
OPD 3 (Consumer Institute South Africa):
The clause does not indicate what the duration of the "prescribed" period will be. Objection is made with regard to the fact that unlawfully obtained information may be used for lawful purposes.
OPD 35 (Credit Bureau Association):
Clause 59(2) does not provide for persons who refuse consent when the prescribed steps were taken to obtain it.
Clause 59(4) allows for categories to be treated differently when making regulations and the opinion is expressed that reference to subclause 2 should be included.
OPD 36 (Committee for Private Data Base Users):
Provision should be made for persons who responded and actually refused consent. Reference should be made in subclause 4 of all three subclauses and not only 1 and 3.
CLAUSE 60
(Register of uses and disclosures not in governmental body's manual)
OPD 34 (Telkom):
The administration involved in keeping a clause 60(1) register may interfere with a body like Telkom's commercial activities.
CLAUSE 61
(Collection of personal information by governmental bodies)
OPD 34 (Telkom):
Clause 61(3) is onerous as far as administrative procedure, cost and time are concerned.
CLAUSE 62
(Retention, accuracy and disposal of personal information by governmental bodies)
OPD 52 (Mpumulanga Provincial Government):
It is recommended that private bodies should also be required to nominate a person who will be responsible to handle requests for access and the security of personnel information.
CLAUSE 63
(Exclusion of liability)
OPD 14 (Deputy Minister for Intelligence):
The Constitution makes provision for the appointment of the Inspector-General who will be responsible for the civilian monitoring of the intelligence services, who will have unlimited access to information held by the services. It is important to use this institution for whistle blowing in the intelligence services as the institution will have expert knowledge and unlimited access to intelligence.
OPD 25 (ESKOM):
The clause can be abused to the detriment of the governmental body. The encouragement of full disclosure should be balanced against the need to ensure that such protection is not relied upon to undermine legitimate internal processes.
OPD 26A (Legal Resources Centre):
Confidentiality ensures that complainants are encouraged to "come forward" and it also encourages institutions to be frank and open in their approach and correspondence with the Public Protector.
This clause does not provide for a complainant who lodges a complaint against prejudice suffered due to a decision of a government body. The benefit of openness and frankness in correspondence with the Public Protector would be jeopardised if institutions know that complainants and the media would have access to their correspondence. Clause 32(1) does not pose a solution to the problem because it only applies to records supplied by a third party and excludes a government body per definition. Clause 39(1) is of assistance but is watered down by clause 36(3). Clause 44(2) also detracts from the protection of confidential information.
It is recommended that provision should be made that the Bill does not effect the provisions of the Public Protector Act, or clause 32 can be amended by adding a subclause (4) in which reference is made to information supplied in confidence by a third party or another governmental body.
OPD 34 (Telkom):
Clause 63(3)(b) refers to the disclosing party's "belief" at the time of disclosure and serious harm could be done to a company if such information is disclosed and the accuracy of the information has not been established by objective methods.
OPD 50 (Public Service Commission):
Bodies for reporting corruption are too many. Public Service Commission monitors corruption and can be mandated to deal with whistle-blowing mechanisms and protection of whistle-blowers in Public Service. Public Service Commission as designed by Cabinet plays leading role in National Anti-Corruption campaign.
OPD 54 (N Alant and Prof T Uys):
A court and a judicial commission of inquiry are not included and this may be interpreted that a person, who even may have been subpoenaed, has no protection. Whistleblower protection should be extended to private sector.
OPD 52 (Mpumulanga Provincial Government):
It is recommended that private bodies should also be requested to nominate a person who will be responsible to handle requests for access and the security of personnel information.
Objection is raised with regard to the requirement that the whistleblower have to disclose the information to an intermediary. It is submitted that the information should follow the shortest route to disclosure.
Bill is silent on mala fide disclosure or disclosure in return for payment.
The question is raised whether protection should also be provided to persons who disclose information which they obtained (secondary whistleblower).
Medical practitioners and lawyers who have a fiduciary duty towards their patients and clients may have to disclose information under certain circumstances and should be considered.
The term "public interest" in clause 63(3)(b) is not defined and may be problematic.
The restrictive operation of the Bill should be expressly provided for.
OPD 55 (SA Association of Consulting Engineers):
Provision relating to protection of whistle-blowers should also apply to private enterprises.
OPD 64C (Cosatu):
Whistle-blower protection needs to be extended to private sector. List of bodies that person can disclose information to should be expanded.
OPD 65 (South African Society of Archivists):
It is not clear whether the person who supplies the information to the whistle-blower also enjoys protection. A definition of whistle-blower is called for which have to include both the supplier and user of the information.
CLAUSE 65
(Protection against reprisals)
OPD 50 (Public Service Commission):
A whistle-blower should have an automatic right of appeal to an external complaints body in cases of retaliatory action against the whistle-blower, Further guarantees to a whistle-blower should include the right to automatic official leave of absence during duration of investigation; receive a salary while on official leave of absence; right to personal security; to receive feedback on process and outcome of investigation; temporary or permanent re-assignment and the right "to freely decide to continue or discontinue being a whistle-blower.".
OPD 54 (N Alant and Prof T Uys):
Clause 65(3) is supported but concern is raised in respect of cases where no internal procedure exists in an organisation and an employee raises the matter internally. An employee will not be protected in those cases.
OPD 68 (Institute for Security Studies):
A right to claim compensation for any loss or damage suffered as a result of victimisation is recommended.
CLAUSE 66
(Notice to officials of provisions of Part and other complaint procedure)
OPD 50 (Public Service Commission):
The whistle-blowing mechanism must be documented and communicated to managers and employees for the system to be effective (see p6 to 7 for details of recommendation).
CLAUSE 67
(Right of internal appeal to head of governmental body)
OPD 23 (Transnet):
Clauses 67 to 81. An appeal against the refusal of information may paralyse the commercial process (window of opportunity being lost) by arguing that the matter is sub iudice until a final decision is reached in terms of clauses 67 to 81.
OPD 34 (Telkom):
Governmental bodies with existing internal administrative and control measures contemplated in clauses 67 to 71 should be exempted from its operation.
OPD 52 (Mpumulanga Provincial Government):
The words "to disclose as" should be inserted in clause 65(2) between the words "to disclose or refusal" and "contemplated in subsection (1)". The words "to disclose" should be added in clause 65(2) after the words "or refusal.".
CLAUSE 68
(Manner of internal appeal, and appeal fees)
OPD 42 (Department of Land Affairs):
Appeal fee in clause 68(4)(a) should be payable by all requesters.
CLAUSE 70
(Decision on internal appeal and notice thereof)
OPD 2 (Banking Council of South Africa):
It is recommended that the word "dismissed" be replaced with the word "granted" in clause 70(7) in order to ensure that an internal appeal succeeds where a head of a governmental body fails to act on such an appeal.
CLAUSE 71
(Urgent internal appeals)
OPD 42 (Department of Land Affairs):
The word "substantial" or "material" should be included before "prejudice" in clause 71(2)(a).
CLAUSE 72
(Non-exclusion of other remedies)
OPD 3 (Consumer Institute South Africa):
In view of financial considerations it is suggested that a body such as the Ombudsman or Informational Tribunal should be considered as an alternative to the High Court.
CLAUSE 73
(Manner of applications to High Court)
OPD 19 (Judge President: Northern Cape Division):
Paragraph (b) of subclause (1) refers to Rule 6(12) of the Uniform rules which is applicable in cases of urgent applications and bestows a judicial discretion on the Court to dispense with the prescribed rules. The result is that the Court makes its own rules in the relevant circumstances. It is submitted that if "subject to this Chapter" does not mean that the provisions of the Chapter may not be dispensed with as minimum requirements it would seem to be meaningless. It would be more logical to lay down those rules that are regarded as necessary and then to provide for cases of urgency.
OPD 34 (Telkom):
Clause 73(2) should place the High Court in a position to determine the urgency of an application by supporting documents.
OPD 42 (Department of Land Affairs):
Objection is raised with regard to all applications being deemed as urgent and all other litigants will be subjected to "information" litigants. The applicant should be able to prove urgency if the matter is urgent.
CLAUSE 74
(Applications regarding decisions of information officers)
OPD 19 (Judge President: Northern Cape Division):
Subclause (1) deals with appeals to the High Court. Subclause (2) prescribes times for lodging the appeals. It appears that subclause (2) does not provide for all the categories stated in subclause (1). It is submitted that a right of appeal may exist in a certain matter without a prescribed time to lodge such an appeal. The question is also raised whether clause 20, appeals directly to the High Court, should not also provide for internal appeals.
It is also recommended that subclause (1) should employ the same wording as subclause (3) because doubt exists wether subclause (1) provides for all kinds of detrimental decisions that can be taken.
With regard to subclause (3) it is submitted that the Human Rights Commission should also be subjected to internal appeal.
The provisions of subclause (4) should form part of subclause (2).
OPD 21 (Chief Justice):
In clause 74(1) "A person that" should be "A person who".
CLAUSE 77
(Assistance of Human Rights Commission)
OPD 21 (Chief Justice):
If it is intended that the person referred to in clause 77(3) should have the right to appearance then the term "legal representative" should be used.
CLAUSE 78
(Production of records of governmental bodies to High Court)
OPD 23 (Transnet):
Clause 78(1). Even where the court refuses to allow access to information, the possibility exists that the information may be obtained through the court transcript. During oral evidence refusal to answer questions should be allowed where an answer may disclose sensitive/confidential information, indicating to the applicant the source of confidential information and prejudicing the disclosure of confidential information in any manner.
Clause 78(3). It is suggested that the High Court should be able to refuse disclosure in the interests of justice and on the grounds of public policy.
OPD 34 (Telkom):
The ambit of clause 78(1) is too wide insofar as it allows for the production of records subject to professional legal privilege and should exempt such documents from the ambit of clause 78(1).
CLAUSE 79
(Burden of proof)
OPD 23 (Transnet):
It is recommended that where a person requests information from the State in exercising or protecting his/her rights, there should be a legal reason for doing so. It is recommended that this test should be included in the clause as a preliminary test.
CLAUSE 81
(Costs)
OPD 34 (Telkom):
Security for the costs of proceedings should be included.
OPD 44 (Law Society of South Africa):
The clause does not make express provision for an order requiring the provision of security for costs and High Court should be granted a discretionary power in this regard.
CLAUSE 82
(Additional functions of Human Rights Commission)
OPD 2 (Banking Council of South Africa):
The phrase "private bodies which exercise substantial influence over the nature of the South African society" is subjective and open to dispute. It is recommended that the words "as well as private bodies ... South African society" be deleted.
OPD 6 (SACOB):
Clause provides for consultation between Human Rights Commission and private bodies but direct as opposed to diluted consultation would result in more acceptable regulations ( see also clause 86).
OPD 52 (Mpumulanga Provincial Government):
The powers of the SAHRC should be increased to include powers to investigate, intervene and litigate as required in the European Union Directive on data protection with regard to independent supervisory authorities.
No individual may be subjected to a decision which affects that individual (for example creditworthiness) where the decision is based on the automated processing of data only.
CLAUSE 84
(Expenditure of Human Rights Commission in terms of Act)
OPD 42 (Department of Land Affairs):
All other functions of government are subject to budgetary constraints. There is no reason for dealing differently with the functions of the SAHRC under this legislation.
CLAUSE 85
(Offences)
OPD 68 (Institute for Security Studies):
Clause 85(b) will inhibit whistle-blowing and should be deleted.
OPD 70 (Office of the Premier: Northern Province):
Only imprisonment period is stated, it is recommended that monetary value of fine should also be included.
CLAUSE 86
(Regulations)
OPD 4 (Edgars):
Many issues will be embodied in the regulations. Consultation should take place with private bodies that will be directly effected by the regulations.
OPD 6 (SACOB):
Specific provision should be made for a consultative process to be extended to private bodies. The only requirement is that the Minister of Justice will make regulations in consultation with the Human Rights Commission. Although provision is made for interaction and consultation with private bodies, the opinion is held that it will be in a "diluted" form. Direct consultation will result in more practical and acceptable regulations.
OPD 7 (Leisure Books):
Consideration should be given to the inclusion of the requirement that consultation should take place with the relevant private sector bodies in the drafting of regulations.
OPD 8 (National Postal Forum):
Consultation with other governmental and private bodies in making regulations should be made compulsory.
OPD 11A (WITS):
Clause 86(c) does not serve the same purpose as clause 36. The power of the Minister in terms of clause 86(c) should be interpreted to relate to the classification of records in terms of categories of disclosure (pro-active disclosure, mandatory refusal, discretionary refusal and disclosure after notification). Clause 2 of the Bill overrides the Protection of Information Act. Clause 86(c) should not be deleted.
OPD 12 (Tupperware Southern Africa):
Consultation with private bodies that will be affected by the regulations should take place.
OPD 14A (Ministry for Intelligence Affairs):
Clause 86(c) contradicts with the objective of the whole Bill which regulates the disclosure of information as opposed to the protection thereof. The Protection of Information Act is currently under review and recommendations will be forwarded to the South African Law Commission. The classification of information will be more appropriate in the Protection of Information Act. Clause 86(c) should therefor be deleted.
OPD 26A (Legal Resources Centre):
Objection is raised with regard to the Minister's power to make regulations regarding "the classification of records of governmental bodies" in clause 86(c) and it is recommended that criteria for classification should be included.
OPD 36 (Committee for Private Data Base Users):
Provision should be made for the establishment of a consultative committee representative of private bodies with whom the Minister must consult where appropriate.
OPD 51 (Department of Agriculture):
Time periods in the Bill should rather be included in regulations which will make amendment easier.
OPD 65 (South African Society of Archivists):
Technical aspects of Bill should rather be included in the regulations in order to streamline the Bill.
Only clauses 85(c) and 86(c) refer to the classification of records. Other provisions of the Bill implies that classification of records should not be taken into consideration when a decision is made on access. Clauses 85(c) and 86(c) establish doubt and raise concern that classification of records could be used to undermine other provisions of the Bill. Should be deleted or should include criteria for classification.
CLAUSE 87
(Short title and commencement)
OPD 42 (Department of Land Affairs):
Clause 87(2) is supported, the essential requirements of an open government can be introduced first, followed by more demanding measures. The Committee should submit a phased implementation plan to the President and Minister for consideration. Part 5 (Whistle-blowers) should be implemented first, it is an important mechanism with limited administrative burden and cost implications. Part 4 (Access to personal information) should be implemented immediately.
REPEAL OF LAWS
OPD 14 (Deputy Minister for Intelligence):
Transitional arrangements should be included to accommodate amendments to existing legislation. The Protection of Information Act, 1992 (Act 84 of 1992), for example defines a security matter as "any matter which is dealt with by the Agency or the Service..." and is a vague clause which might be outweighed by the Bill.