COSATU
1. Executive Summary of Recommendations
2. Introduction
3. Incorporating the "Right to Know" (RTK) principle in the bill
4. Limited access to privately held information
- Background
- The imperatives of granting access to privately held information
- Current information disclosure initiatives
- Implications of partial enforcement of section 32(1) of the Constitution
- Recommendations
5. Clarifying the meaning of rights
6. Protection of Whistle-Blowers
7. Relation to other information disclosure laws
8. Grounds for Refusing Access to Records
9. External review
10. Accessibility of the Bill (plain language)
11. Information Officers and Access Fees
12. Implementation
13. Conclusion
Annexure A: Proposed amendments to Open Democracy Bill to give effect to Sec. 32(1)(b) of the Constitution
Annexure B: Proposed amendments for the purposes of creating a right to know approach
Annexure C: Proposals regarding the bill’s relation to the other legislation
Annexure D: Proposal regarding fee waiver and duty to assist in crafting less costly requests
Annexure E: Proposed changes for the purpose of closing over-broad exemptions
Annexure F: Enforcement Mechanism
Executive Summary of Recommendations
1. The bill should incorporate the right to know principle, which will facilitate greater proactive disclosure of information. There is a need for a multi-stakeholder process to analyse which records in the possession of the departments should be routinely made available. As part of this exercise the GCIS, in collaboration with the Human Rights Commission, should provide guidelines to departments, which records should be proactively disclosed, based on an evaluation of public information needs. The infrastructure of the Post Office and the Tele-Centres/Multi-purpose Community Centres should be utilised to disseminate information to the public. Proactive disclosure of information should be extended to the private sector and the minister should be empowered to prescribe accordingly.
2. Horizontal application: The bill should be substantially amended to comply with section 32(1)(b) of the Constitution, i.e. access to information held by private bodies required for the exercise or protection of rights.
3. The Bill needs to clearly define use of the term (information required for) protection of rights
4. The whistle-blower provisions should be extended to the private sector to protect whistle-blowers in the sector. Further, the body charged with enforcing this bill should be empowered to assist whistle blowers.
5. The relationship between the bill and other information disclosure statutes should be such that there is no unintended restriction of disclosure. The law that favours disclosure should prevail in the event of a conflict between these laws.
6. Ground for refusing access to records: The bill should define trade secrets/commercially confidential information. In addition, the overly broad language of the third party commercial information needs to be narrowed. The necessity of harm exemptions override should be reintroduced in the Bill. The exercise and protection of rights must be a component of the mandatory disclosure in the public interest.
7. External Review: An intermediate body/mechanism should be established to adjudicate information disclosure disputes. COSATU proposes the establishment of the Open Democracy Appeals Board to settle disputes regarding information disclosure as such an intermediate body. More investigation is required regarding the mediation of information disclosure disputes. The High court will hear appeals regarding the interpretation of the law while the Appeals Board will hear appeals on decisions regarding denial of access to records by both the public and private sector.
8. A phased/staggered implementation process should be considered: first to appoint information officers and secondly to educate the public on how to use the legislation. The Human Rights Commission should receive sufficient resources to enable it to perform the duties imposed by this law. In addition, the Commission should establish a specialised body to deal with the bill.
9. To facilitate greater access, the information officer should be empowered to waive fees, where such waivers will allow for access to disadvantaged people.
10. The bill should be redrafted in plain language to make it accessible and readable.
Proposed substantive and technical legal amendments are contained in Annexures appended to the submission.
2. Introduction
The apartheid system cultivated a culture of secrecy entrenched in the public and private sector. Remnants of this culture remain pervasive in the private sector and sections of the public sector. For an open democracy to thrive, this culture should be uprooted wherever it manifests itself. A new beginning for our society is codified in the Constitution, which is imbued with the vision of an open and participatory democracy.
People require accurate and accessible information for meaningful participation in decision making. In addition, they need information to make informed choices, exercise and protect their rights. Further, information is required to hold the state and private corporations accountable.
Against this background, we welcome the Open Democracy Bill (hereafter the ‘Bill’) as an important legislative intervention to secure the constitutional right to access information. Efforts to inculcate an open democracy will have to contend with a high rate of illiteracy in our society, an authoritarian and inward-looking culture in the public service and resistance to information disclosure in the private sector.
COSATU’s approach to the bill is twofold, i.e. to underline areas which we support and to draw attention to its shortcomings. There are many positive elements of the bill that we support. However, despite the fact that the bill was developed over a long period of time, it has serious flaws and/or shortcomings in certain key areas.
This is a submission to the first stage of the parliamentary process. The bill needs to be redrafted to take into account the concerns raised regarding its shortcomings. We present legal formulations, which could assist the process of redrafting the bill. These proposals indicate possible legal drafting which could be used to capture our concerns. COSATU will participate in the second stage of the parliamentary process when the bill is redrafted and considered in the next session of parliament.
3. Incorporating the "Right to Know" (RTK) principle in the bill
Currently, the bill primarily deals with access to publicly held information upon request, commonly known as freedom of information. In the light of resource disparities, a requester-driven approach may place the bill beyond the reach of the disadvantaged. Within a requester-driven approach the main beneficiaries will be the rich and powerful, thus deepening the uneven balance between commercial and noncommercial information seekers. Further, the advance in information technology has led to an exponential growth in the flow of information, but ironically, many people are shut out of the information superhighway. This underpins the need for a proactive approach to information disclosure, a key feature of RTK.
Information is power and if the state puts in place mechanisms to provide information to poor individuals and communities they will be empowered to participate in decision-making processes. In our view, information is not just a check and balance against the state, but a necessary condition to empower people’s participation in decision-making. This conception is important to distinguish COSATU’s view of the right to information from more liberal interpretations of the right. The liberal approach tends to be mainly concerned with the right for individuals to request information in the possession of the state, and less concerned with placing obligations, which will lead to the fuller realisation of the right for a greater number of people.
Against this background, COSATU believes that the ‘right to know’ principles should be incorporated in the bill. A right to know paradigm would take access to information one step further, recognising that certain categories of information are so important that government should actively disseminate it to the public without the need for special requests.
A right to know paradigm is illustrated in the relative advance made regarding environmental information. Pollution Release and Transfer Registries (PRTR) or Toxic Release Inventories (TRI) have been established in many countries to require that polluters report to the government their use of specified potentially harmful chemicals to the environment. Emissions data is systematically collected and disseminated to the public by national government, often by electronic means such as the Internet. Recently, PRTR has been proposed in South Africa in the Environmental Management White Paper and Act.
There are a number of benefits associated with the PRTR approach. First, it is an effective way to ensure public access to environmental information and facilitate public participation in environmental decision-making. Secondly, it creates economic efficiency by drawing attention to inefficient production practices, thereby reducing emissions. Thirdly, it is an important tool to government in evaluating the impact of existing pollution control and reduction policies.
The bill, albeit in a limited way, contains sections tilting towards a right to know paradigm. Section 8 provides mandatory disclosure of government records indicating public safety or environmental threats. Section 6 directs departments to proactively disseminate certain basic information about their functions. The right to know should go beyond these provisions, however, by requiring the government to actively disseminate a broad range of important information in a way that is easily accessible, understandable, and usable by the public.
There is a need for more proactive disclosure regarding the mechanisms to access rights and remedies when rights are violated. A duty to proactively disclose information should therefore be imposed on the public and private sectors, especially but not limited to socio economic rights. Proactive disclosure of information regarding socio-economic rights will benefit the poor and marginalised communities, thereby increasing awareness and enforcement of these rights.
The right to know raises several questions and/or challenges that should be given consideration:
• prioritisation of information to be proactively disclosed;
• whether government provides analytic tools to help the public to use the data;
• the target audience for the dissemination of information;
• the amount of information to be released to avoid ‘drowning’ the public with irrelevant information;
• the reporting burden to be placed on the private sector; and
• enforcement of reporting requirement.
Furthermore, from the environmental experience, is has been seen various technical questions, arise at the implementation stages. As the environmental case illustrates, drafting laws to implement a right to know paradigm will require significant attention to detail. It also requires creating a balance with other information disclosure laws.
In the light of these considerations the RTK will have to evolve and be refined from time to time. At the moment, it will be premature to advance a comprehensive list of records that must be proactively disclosed. The amendments we put forward propose a legal framework which would facilitate a manageable process. To realise the objective of incorporating the right to know paradigm in the bill, COSATU proposes the following:
• mandating governmental bodies to proactively disseminate information in their possession. Governmental bodies, with the assistance of the GCIS should consider existing records that should be proactively disclosed. In addition, to mandate governmental bodies to collect information, other than environmental information, from private bodies, which they should actively disseminate.
• placing a duty on private bodies, particularly corporations to actively disseminate information in the public interest (e.g. consumer information such as labeling of goods and services),
• mandating the Government Communication and Information Systems (GCIS) after consulting the relevant civil society bodies, to assist governmental bodies to identify records that should be proactively disseminated in line with the prescriptions by the Minister of Justice;
• to empower the Minister to prescribe locations where information should be disseminated. This should meet the broad criteria of accessibility, and consideration should be given to utilising the infrastructure of the Post Office and the Tele-centres or Community Multipurpose Centres. Popular forms of media such as pamphlets, etc. should be utilised as a means to disclose information as they are easily accessible; and
• an amendment to section 8 to mandate governmental bodies to actively collect and disseminate environmental information. It must be noted that the provisions of the National Environment Management Act regarding the disclosure of information are interim pending the passing of this legislation.
For these proposed technical amendments refer to Annexure A.
4. Limited access to privately held information
Background
Section 32(1)(b) of the Constitution provides that everyone has a right of access to "any information that is held by another person and that is required for the exercise or protection of any rights". Further, section 32(2) requires that national legislation be enacted to give effect to the right in section 31(1). Undoubtedly, the bill seeks to enforce the mandate of the constitution, but falls short of fulfilling this obligation, particularly with regard to horizontal application of this right.
The bill only gives partial effect to section 32(1)(b) in section 50(1) of the bill, which grant access to "any record of a private body containing personal information about that person." In terms of the memorandum to the bill, the Human Rights Commission is entrusted with the task to "investigate and consult widely so as to develop recommendations regarding legislation which would give full effect to this right as required by section 32(1)(b) read with section 32(2) of the Constitution." Failure to give full effect to this right in the current bill is problematic for a number of reasons elaborated below.
The imperatives of granting access to privately held information
Access to information held by private bodies, especially corporations, is important for several reasons. Corporations, even though they are privately owned, exercise enormous social power. Many bodies in the private sector routinely take decisions that have a profound impact on people. In many cases they exercise what for all practical purposes is public, rather than private, power. This is exacerbated by the fact that South Africa has a highly unequal concentration of ownership.
Increasingly, the distinction between ‘private’ and ‘public’ is blurring and progressively being eroded. Many traditional services historically provided by the state are now provided by the private sector, for example health care, transport, policing, etc. The change in ownership does not necessarily result in a change in the nature of goods, products and/or services that are provided by these entities to consumers. Therefore power is not the sole prerogative of the state but substantially resides in the private sphere as well. It is imperative that these institutions be held accountable for their actions and decisions.
Communities and consumers require information to protect themselves against health hazards and other forms of environmental threats. This information may have critical implications for people’s right to life, security of persons, health, etc. A failure to disclose the relevant information, or denial to the public of the right to information, means that persons who might be affected would not know, for instance, what chemicals and how much of such chemicals are being emitted from the factories around which they live or work, or whether any prescribed standards are being broken. Further, the public generally, would not know what measures should be taken to correct the situation.
In addition, science and industry develop thousands of new kinds of potentially dangerous consumer products, many of which are extremely complicated, leaving consumers puzzled and confused. Consumers’ good health and safety are often threatened due to lack of information concerning the quality, safety and reliability of products and goods and services that they buy.
Prices for essential services and products such as bank transactions, insurance policies, bus and train fares, fuel consumption, etc are often increased without prior notification and proper justification. Lack of information makes it extremely difficult for communities to decide whether price hikes are fair and in turn this severely constrains dialogue between the service provider and the communities.
Consumers also regularly complain about being denied access to certain services or facilities such as overdrafts, personal loans, etc, by financial institutions. As these institutions are not required by legislation to give reasons, their conduct often lends credibility to suspicions that their services are racially motivated or discriminatory on other prohibited grounds. Disclosure of information is therefore important to protect and exercise rights, to make informed choices, as well as building mutually beneficial relations between companies and consumers.
The Constitution, particularly the Bill of Rights protects consumer rights in the broad sense, which will only be adequately protected if the right to have access to information is extended to apply in respect of private bodies.
Further, workers require information to exercise and protect their rights. If the bill provided for a situation where trade unions or workers could request information vital to the protection or exercise of the right to fair labour practices, or the right to form trade unions (even in situations where workers were unorganised), this would strengthen the enforcement of human rights throughout South Africa. Furthermore, information is required to exercise and protect the right to equality, to ensure the absence of discrimination in hiring, promotion and salaries, and generally to promote democratisation of the workplace.
In broad terms, access to information held by private bodies will be required where their decisions would have a detrimental or positive effect on access to socio-economic rights. For instance, one would be entitled to pricing information if the pricing policies on basic foodstuffs by private suppliers detrimentally affected people’s access to food (as enshrined in section 27(1)(b) of the Constitution.
The duty to respect the bill of rights is capable of, and suitable for application to private bodies, and therefore can be brought within the ambit of section 8(2) of the Constitution. Section 8(2) envisages that a right can be applicable to private parties to an extent. The State also bears the duty to "protect" the relevant socio-economic right [section 7(2)] by regulating prices etc. In this situation one would also be able to claim the relevant information directly from the State in terms of section 32(1)(a).
Current information disclosure initiatives
The ODB coexists with a range of provisions in other legislation. As an omnibus bill, it should be comprehensive and complement the range of provisions in other legislation, which are partial and limited.
The Companies Act 61 of 1973 places limited disclosure duties on companies. Companies are required to publish an annual report, with chairperson’s and director’s reports and audited financial statements. The proposed amendments to the Companies Act currently before parliament seek to improve information disclosure by companies in line with international norms.
The King Report (1994) presented a Code of corporate practices and conduct and included in its recommendations that companies to whom the report applied disclose the total pay of executives and non-executive directors, details of employment policies, including staffing levels, skills levels, new jobs created, retrenchments, affirmative action policies and training programmes, environmental matters including planned pollution control, etc. In our view, the report has several flaws including the fact that it does not go far enough to entrench workplace democracy. Despite the fact that Code has been adopted by the JSE as a listing requirement, in every other respect it is unenforceable. There is no enforcement mechanism other than peer pressure.
The LRA, Act 66 of 1995, has significantly expanded the scope of employers’ duties of disclosure but within the parameters of collective bargaining. It recognises that effective collective bargaining is impossible without adequate information disclosure. Further, the Employment Equity Act imposes a variety of duties of consultation and disclosure on designated employers.
Although, the LRA and the Employment Equity Act have begun to address information disclosure they do not comprehensively address workers’ information needs. The Employment Equity Act is limited by the fact that it applies to designated employers or those who choose to be designated employers in terms of this Act. The LRA contains certain conditionalities that must be satisfied before information is disclosed. One of them is that the trade union must be representative. In instances where trade unions are not representative or power is unevenly distributed between employers and employees, such as in agriculture, unions may find it difficult to use the LRA as a vehicle to request information. Further, the right to disclose information may be withdrawn for a specified period in the event of a dispute about alleged breach of confidentiality (section 16(14).
There are voices in business who regard the bill as an unnecessary intrusion often arguing that information disclosure by employers or companies is already covered in other legislation. While some of the concerns may be genuine, particularly the need for synergy between information disclosure laws, there is however, an attempt to limit as far as possible information disclosure requirements from business. The bill is an overarching freedom of information statute, which must set standards for information disclosure. It is further important to emphasise that access to privately held information in terms of the Constitution is contingent upon the exercise or protection of rights. Some of these rights my be sufficient to override the need to protect commercial information and personal privacy.
Implications of partial enforcement of section 32(1) of the Constitution
Several challenges arise from giving partial effect to the right contained in section 32(1)(b). The truncated enforcement of section 32(1) gives rise to constitutional dilemmas. Section 32(2) does not envisage staggering legislation, one to give effect to section 32(1)(a) and the other to give effect to section 32(1)(b). The dilemma will arise from the understanding that any legislation purporting to give effect to the constitutional requirement may in fact trigger the whole right thus repealing the transitional provisions.
Secondly, failure to provide an orderly mechanism for accessing information held by private bodies may lead to chaos and in some case undue disclosure of information. In the absence of an orderly mechanism stipulating the manner and form of access as well as exemptions, it will be left to the courts to adjudicate this matter. Lack of precedent and jurisprudence in this regard may lead to uneven information disclosure subject to the interpretation of the courts.
Recommendations
Against this background, COSATU recommends that the bill be amended to give full effect to section 32(1) of the constitution. In extending the bill to private bodies it is important to take into account a number of factors. A private body is a generic term encapsulating both juristic and natural persons, i.e. organisations and individuals. While all private bodies must give access to information required for the exercise and protection of rights, the mechanism to realise this needs to be carefully balanced to take into account the fact that private bodies do not possess similar capacity.
It may be inappropriate to place the same duties on a major corporation and a ‘spaza’ shop in the township or on a private individual. Therefore it is important not to place too onerous requirements on private bodies, especially individuals given the capacity constraints. A distinction should be made between the categories of ‘persons’ and the corresponding duties specified. Further the possibility of empowering the Minister to designate large companies to comply with the prescribed provisions should be investigated. These designated private entities would be required to appoint information officers and hold internal appeals. In the context of these large corporations it may be inappropriate to confer the responsibility to process requests for information to the head of the corporation. Appoint information officers will thus facilitate and perhaps accelerate the processing of requests for information. Most corporations have a media/public relations capacity which could possibly be given the mandate to process requests for information.
The amendments contained in Annexure B seeks to achieve the following:
• to provide right of access to records of private bodies required for the exercise and protection of rights. Upon requests any person should be given access to a record of a private body required for the exercise and protection of rights and subject to ground for refusing access;
• define forms of requests and manner of access. A requester must write to the head of a private body and among other provide his or her details including contact details;
• outline grounds for refusing access to records. Subject to the public interest override a private body may refuse access to a record on the ground that it contains personal information or third party commercial information;
• provide for an appeal mechanism. Any person who is refused access to a record of a private body may apply or appeal to the Open Democracy Appeals Board. The person may lodge an application with the High Court only after the Board has made its decision and the appeal such be limited to interpretation of law;
• allow for third party intervention. This section provides for the notice of third parties whenever the head of a private body contemplates disclosing third party information. However, it may be appropriate to place this duty on all private bodies and this constitutes one of the possible exemptions that the Minister may grant in his or her regulations; and
• empower the Minister to prescribe by regulation a procedure for dealing with requests for information regarding access to records of private bodies for certain categories of small businesses, NGOs and private individuals.
5. Clarifying the meaning of rights
In our view, the Bill should clearly define the meaning of "any rights" as provided in terms of section 32(1)(b) to give guidance to the courts. There appears to be conflicting interpretations of the meaning of "any rights" by the courts in adjudicating disputes regarding information disclosure in terms of the Interim Constitution.
There have been cases which have held in respect of section 23 of the Interim Constitution that rights in this context refers to constitutional rights. However, there are other cases which say it extends to all rights however derived – this would include constitutional rights, statutory rights, common law rights (e.g. contractual and delictual rights). COSATU prefers the more expanded approach, which interprets the notion to mean any rights however they are derived.
6. Protection of Whistle-Blowers
We support the section on whistle-blowers as an important intervention to prevent and eradicate corruption in our society. The bill is limited to the public sector, unwittingly creating the impression that corruption in the private sector is less serious. In our view, there should be zero-tolerance of corruption in both the public and private sectors. Therefore, the bill should be extended to protect whistle-blowers in the private sector.
Whistle blowers should be permitted to approach the enforcement agency for advice prior to blowing the whistle and for support once they have blown the whistle. Lack of protection may serve as a deterrent to blowing the whistle thereby defeating the objectives of the bill. If these objections cannot be realised in this bill, they should be addressed in a separate bill, especially one dedicated to deal with corruption.
7. Relation to other information disclosure laws
We are concerned that sections 2, 12 and 43, dealing with the relationship between this bill and other legislation may unwittingly interfere with existing statutory rights to information. We suggest that these sections be rewritten so as to ensure that where there is conflict between legislation, the legislation most favourable to access must be followed. Proposed technical amendments are contained in Annexure C.
8. Grounds for Refusing Access to Records
The Open Democracy Task Team recommended that "construction of the exemptions from the right to access information ought to be governed by the principle of maximum disclosure." This requires the exemptions to be narrowly drawn, content based rather than organisation-based or class-based, and rigorously connected to their underlying rationales. COSATU believes that this should be the test against which exemptions are examined. The bill currently provides for sixteen (16) grounds for refusing information. Two of these are mandatory, namely protection of personal privacy and protection of third party commercial information, the remainder are discretionary.
Exemptions from government’s duty to disclose information while appropriate in general, contain several flaws. The trade secrets/confidential information exemptions are overly broad. Although the protection of this information is fair in principle, the provisions of section 31(1) are too broad and may curtail the right to access information. It is a matter of concern that the bill does not define commercially confidential information while it provides for mandatory protection of third party commercial information.
In terms of section 31(1) the information officer of a governmental body "must refuse a request for access to a record of the body if it contains among others trade secrets, financial, commercial scientific or technical information, other than trade secrets, supplied in confidence by a third party." In addition to the overly broad language in section 31(1), the right to access information may be undermined by stating that a governmental body "must refuse a request." This language may lead to increased conservatism among information officers who may read the word "must" and conclude that they have no discretion in deciding whether to provide access to available information. We recommend a narrower and more flexible approach such as is included in the Environmental Management Act, Act no. 107 of 1998.
Previous drafts of the bill had a section called "Necessity of Harm" – which prevented information being refused on the basis of an exemption, if the harm envisaged by the exemption was unlikely to occur. We recommend that this section be reintroduced in the bill as it will prevent unreasonable refusal of information.
COSATU welcomes the public interest override contained in section 44. This section applies different criteria for different exemption clauses. For all exemptions the override operates if giving due weight to the importance of open, accountable and participatory administration, the public interest in disclosure outweighs the need for non-disclosure contemplated by the provision as per section 44(2). However, some overrides only operate if further circumstances exist, for instance if the record would reveal evidence of substantial abuse of authority by an official of a governmental body.
However, the wording of the public interest override may be unnecessarily prohibitive, particularly section 44(1)(a) which provides that "the disclosure of the record would reveal evidence of substantial." This creates the impression that less substantial abuse of authority by a public official, etc, is permissible. In our view, evidence of abuse of authority, corruption etc, should dictate the disclosure of a record and should not be subject to the condition that it reveals "substantial abuse".
Proposed amendments related to exemptions are contained in Annexure E. The purpose of the amendment is to:
• define commercially confidential information and narrow the exemptions on this ground;
• clarify section 41 which will deny access to a record if that record cannot be found or does not exist. Steps should be taken to collate information where records do not exist;
• place a duty on the information office to refer requesters to institutions that possess such information in the instance of refusing information on the grounds that it is publicly available;
• add the protection and exercise of rights as a component of the public interest over-ride;
• reintroduce the necessity of harm override;
• reformulate section 44(1)(a) by deleting the word "substantial"; and
• extend the public interest and the necessity of harm overrides to the private sector with contextual changes.
9. External review
The current bill provides for external review to take place in the high court. We believe that the high court is not best suited for a first point of adjudication of freedom of information disputes. It is not accessible, speedy or cheap. Even with the automatic assumption of urgency, which is provided for in the bill, it is unlikely that the time frames for court applications and dates of hearings envisioned in the bill will be accommodated in the high court. Further, the high court is formal, adversarial and prohibitively expensive.
We therefore support the proposal for an interim or intermediate procedure between the internal and external review by the courts. Such a procedure would be directed towards conciliation and mediation with a view to facilitating settlement of matters, and would utilise an informal and inquisitorial procedure. Although the idea was subsequently dropped, the Task Group identified several advantages associated with a tribunal as opposed to the high court procedure.
We recommend the establishment of the Open Democracy Appeals Board. The proposal for the Board is modeled on the Water Tribunal established in terms of the National Water Act, No.36 of 1998. Its main focus will be to consider appeals referred to it regarding decisions to deny access to records by a governmental or private body. The role of the High Court will be to adjudicate appeals regarding the interpretation of law.
The Open Democracy Appeals Board will consist of a chairperson, a deputy chairperson and additional members as determined by the Minister. The chairperson and deputy chairperson may be appointed on a full-time or part-time basis. Additional members of the Board will be appointed on a part-time basis. Refer to Annexure F for proposed technical amendments.
The issue of mediation and conciliation of disputes needs further investigation. For instance the National Water Act empowers the Minister of Water Affairs to refer disputes to a mediation mechanism.
10. Accessibility of the Bill (plain language)
One broad observation is that the bill is not easy to read or follow, making it inaccessible. While the intention was to make the rights contained in the bill accessible – even to illiterate people – the result is a long, bureaucratic bill, crammed full of practical detail that ironically make the bill itself inaccessible. For instance, when examining the exemptions provisions it becomes apparent that they are drafted in a convoluted and confusing way. The bill needs to be drafted in accessible or plain language. The bill falls short of some of the plain language features (footnote 9) especially regarding cross-references and does not contain flow charts like the LRA.
Legislation is most often written for lawyers even when they are not the most frequent users of the law. For this reason we recommend a legal structure which facilitates an understanding by the most likely reader. Plain language texts (compared with traditional legal texts) has the following benefits:
• greater clarity of provisions;
• greater certainty of rights and responsibilities;
• quicker access to information;
• wider profile of people who can understand its contents;
• less time is spent explaining the law;
• less disputes about the interpretation of provisions; and
• texts which follow plain language statutes are more likely to be plain themselves (e.g. forms, regulations, etc.).
11. Information Officers and Access Fees
We commend the drafters’ sensitivity to the high rate of illiteracy in our society. In particular, the designation of the information officers (section 4) and the duty to assist requesters (section 14) would contribute to facilitating access to government held information.
We recommend that the information officer assist requesters to craft less costly alternatives where it will be costly to produce the information that has been requested. In addition, where access fees would cause economic hardship to the requester and disclosure will promote transparency, the information officer should waive the payment of such fees. Specific guidelines regarding waiver of fees on this ground could be incorporated in regulations. The waiver of fees should be extended to the private sector. For the proposed technical amendments refer to Annexure D.
In our view, access fees should be limited to reproduction and postal costs. Exorbitant fees will practically place the bill beyond the reach of people who lack the requisite resources. Therefore section 24(3) is important in this regard. In terms of this section a personal requester has to pay only for reproduction and a commercial requester must pay an access fee for reproduction and for search and preparation, an approach we broadly support. However, we are concerned that the requirement in terms of section 24(4) that non-commercial requesters pay similar amounts to commercial requesters, may unwittingly restrict access by organisations who do not possess the resources. Thus the fee waiver will also be important in this regard.
12. Implementation
The bill would demand a sea change in attitudes in both the public and private sector, which under apartheid have become accustomed to operate under a blanket of secrecy. It should complement and consolidate the Batho Pele initiative (the White Paper on Transforming Public Service Delivery), i.e. ensuring a responsive, accountable and transparent public service in line with values for public administration contained in the constitution.
A wholesale implementation of the bill, while desirable, may become unworkable. Therefore a staggered approach should be considered with a number of pilots identified. During the first phase the appointment and training of information officers is critical. Secondly, this must be accompanied by public education and training on the use of the legislation.
The capacity of the Human Rights Commission to execute the duty imposed by this bill should be greatly enhanced to avoid a situation of creating an ‘unfunded’ or under capacitated mandate. It is important that the commission set up a dedicated structure to deal with the Open Democracy Act and allocate adequate resources to such a structure.
13. Conclusion
COSATU supports the broad objectives of the bill to encourage transparency and accountability in the public and private sectors. It is instrumental in ridding our society of the spectre of secrecy that characterised the apartheid system. The bill is, however, defective in key areas such as its failure to give full effect to section 32(1)(b) and in other respects underlined in the submission.
For the bill to receive our unqualified support, these areas should be addressed. We have forwarded proposals, which are geared towards enhancing the bill in key areas of concern. We hope that the portfolio committee will interrogate this submission and we are open to discussion on any issue canvassed in this submission.
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Annexure A: Proposed amendments to Open Democracy Bill to give effect to Sec. 32(1)(b) of the Constitution
Item |
Section |
Proposed amendment |
Comment |
1. |
In the initial description of the bill, prior to the table of contents, insert the following language: |
||
2. |
1. |
Amend the definition of "private body" as follows: |
The redefinition of private body is pursuant to the objective of giving effect to section 32(1)(b) of the constitution. |
3. |
3. |
Insert new 3(1)© after current (1)(b) as follows: |
|
4. |
4. |
Insert new section after current section 4 and before current part 2: |
This amendment empowers head of private body to delegate authority and specify the conditions for such a delegation. |
5. |
5. |
Amend section 5(2)©(ii) as follows: |
|
6. |
|
Inset new Part 4 (page 58) and renumber current part 4: |
|
7. |
|
Use of Act for criminal or civil discovery of private bodies’ records excluded 49. Similar to current section 10 regarding records of governmental bodies. |
|
8. |
|
Right of disclosure of records to which access is given |
The addition to this section derived from section 11 recognise that under certain circumstance confidential information may be disclosed on condition that it is not published. As a result there is a need to balance that requirement with the ODB. |
9. |
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Access to records in terms of other law 51. Nothing in this Act, except section 55, prevents a private body from giving access to a record of that body in accordance with any other law or authorises a private body to deny access to a record of that body that any other law requires to be made available. |
This clearly stipulates that access to records of private bodies should be given in terms of other law on condition that it does not infringe personal privacy in line with section 55. |
10. |
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Forms of requests |
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11. |
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12. |
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Decision on request and notice thereof |
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13. |
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14. |
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15. |
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16. |
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17. |
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18. |
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Language of access |
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19. |
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Chapter 2: Grounds For Refusal of Access to Records |
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20. |
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Chapter 3: Third Party Intervention 74. Same as section 45 with the following changes: Information officer should be changed to head of a private body; Reference to sections 29 & 31 in 45(1) & (3) means sections 61 & 63 (above) of the proposed amendments. Reference to section 44 in 45(3)(d) means section 72 (above) of the proposed amendments. Representations by third parties 75. Same as section 46 with the following changes: Reference to section 45(1) in 46 means section 74(above) of the proposed amendments; Change information officer to head of a private body. Decisions on representation for refusal and notice thereof 76. Similar to section 47 with the following changes: change information officer to head of a private body; reference to section 46(a) in 47(1)(a) shall mean section 75(above) of the proposed amendments; reference to section 45 in 47(1) shall mean section 74 of the proposed amendments. For enforcement of this section refer to the proposed amendment for enforcement mechanism contained in Annexure F. 77(1) The Minister may prescribe by regulation a procedure for dealing with requests for information in terms of section 48 for certain categories of small businesses, non governmental organisations and private individuals; |
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Annexure B: Proposed amendments for the purposes of creating a right to know approach
Item |
Section |
Suggested Amendment |
Comment |
1. |
Section 6 |
Substitute current section 6(4) with the following "Minister" means the Minister of Justice. |
The objective of these amendments is to allow for maximum proactive disclosure of information by governmental bodies. The GCIS would be given the mandate to assist departments in identifying information that should be proactively disclosed. The Minister may further prescribe additional information, which shall be proactively disclosed. |
2. |
7. |
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3. |
8. |
Insert new subsection 8(2) as follows: |
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Annexure C: Proposals regarding the bill’s relation to the other legislation
Item |
Section |
Suggested Amendment |
Comment |
1. |
Section 2 |
Replace section 2 with the following: |
The purpose of this amendment is to ensure that where conflict arises between legislation, the one that encourages disclosure should uphold. |
2. |
Section 12 |
Omit section 56 and replace with section 29 in section 12 as follows: |
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Annexure D: Proposal regarding fee waiver and duty to assist in crafting less costly requests
Item |
Section |
Suggested amendment |
Comment |
1. |
Section 14 |
Insert new section 14 (5) to read as follows: |
The information officer should be empowered to assist requesters to craft less costly requests and waive fees in instances where this would facilitate access. |
2. |
Section 25 |
Add the following to section 25(1) |
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Annexure E: Proposed changes for the purpose of closing over-broad exemptions
Item |
Section |
Proposed Amendment |
Comment |
1. |
Section 1 |
At page 8 insert following definition |
The purpose of these amendments is two-fold: to define commercially confidential information and to narrow broad exemptions. |
2. |
Section 31 |
Add new subsection (2)(d) to read as follows: |
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3. |
Section 38 |
Amend subsection (2)(a) as follows: |
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4. |
Section 39 |
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No specific amendment is proposed save to note that section 39(2) exemption for evaluative material concerning employees is too broad because it would allow governmental bodies to refuse information about employees to their union representative. If, however, it is clear that the LRA’s pro-disclosure provisions override these provisions limiting the right to disclosure, then this will be acceptable and indeed, desirable. |
5. |
41. |
Amend subsection 41. (1) as follows: |
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6. |
Section 43 |
Amend section 43 as follows: |
Section 43 permits a governmental body to refuse to disclose information when a person request it by means of the ODB simply because it is "open to public access in accordance with any other legislation." It should be deleted because it creates an unnecessary roadblock for a requester. |
7. |
44. |
Amend section 44 as follows: |
The word substantial is unnecessarily prohibitive and suggest that less substantial abuse of authority for example is permissible. Our view is that any form of corruption must necessitate disclosure of information. |
Annexure F: Enforcement Mechanism
Item |
Section |
Proposed Amendment |
Comment |
1. |
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2. |
73. |
Terms of office of members 73(1) A member is of the Board is appointed for a period of office determined by the Minister, which may not exceed five years. (2) A member may be re-appointed. |
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3. |
74. |
74. No person may hold office a member of the Board – if that person is an unrehabilitated insolvent; or if that person has been convicted of an offence involving dishonesty or has been sentenced to imprisonment without the option of a fine. A disqualification under this subsection ends three years after the sentence has been served. |
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4. |
75. |
Nomination for appointment to the Board 75.(1) The Minister must request of the Judicial Service Commission to – publish a notice in Gazette calling for nominations for appointment to the Board; and consider any further steps, appropriate to bring the contents of the notice to the attention of interested persons, and take those steps which the Commission considers to be appropriate. (2) A notice in terms of subsection (1) must set out, in general terms, at least – the activities of the Board; the time commitment reasonably expected from members of the Board; the term of office for which appointments will be considered; the criteria for disqualification as a member; the requirements with which a nomination must comply; the date by which nominations must be submitted, which may not be earlier than 30 days after publication of the notice; and the address to which nominations must be sent. (3) Every nomination of a person for appointment to the Board must be signed by a proposer and a seconder, neither of whom may be the nominee, and must contain the nominee’s signed acceptance. (4) The Judicial Service Commission – must consider all valid nominations received before the date contemplated in subsection (2)(f); may prepare a short list of nominees; may interview all short-listed nominees; and must make recommendations to the Minister on the appointment of members of the Board. (5) In recommending a nominee for appointment the Judicial Service Commission must consider – the criteria set out in section 72(4) of this Act; the reputation and integrity of the nominee; and any conflict of interests which the nominee may have. (6) The Judicial Service Commission must recommend a candidate for appointment for every vacancy, including that of chairperson or deputy chairperson. |
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6. |
76. |
76. (1) A member of the Board ceases to hold office – from the effective date of the member’s resignation; if the member has become disqualified in terms of section 74; if the member’s appointment has been terminated in terms of section 72(9); or if the member has been declared to be of unsound mind by a competent authority. (2) A member who is not the chairperson must notify the chairperson of his or her resignation. The chairperson must notify the Minister of his or her resignation and the resignation of any other member. A vacancy in the Board shall not affect the validity of the proceedings or decisions of the Board. |
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7. |
77. |
77. (1) After having considered the necessary field of knowledge for the purpose of a hearing a particular matter, the chairperson may nominate one or more members of the Board to hear a matter and a decision by such a member or members constitutes a decision by the Board. (2) Administrative support for the Board must be provided by officials of the Department designated by the Director-General, subject to the laws pertaining to the secondment of officers in the Public Service. (3) The expenditure of the Board must be defrayed out of money appropriated by Parliament for that purpose or from any other source. Neither the Board, the chairperson, the deputy chairperson nor any other member is liable for an act or omission committed in good faith while performing a function in terms of this act. |
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8. |
78. |
Appeals to the Open Democracy Appeals Board (2) An appeal in terms of subsection (1) must be lodged within 60 days. (3) The Human Rights Commission may appeal by way of an application against a decision of – the information officer of a governmental body; the head of a governmental body on internal appeal; or the head of a private body. (4) A third party notified of a decision of the head of a governmental body to disclose information regarding a serious public safety or environmental risk in terms of section 8(5)(a), may appeal by way of an application against the decision within 10 working days after the third party concerned has been notified of the decision. |
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9. |
79. |
Notice 79.(1) Where an appeal is lodged in terms of section 78(1), the Open Democracy Appeals Board shall give notice of the appeal to the relevant - head of a governmental body or information office; or the head of a private body. (2) When the information officer or the head of a governmental body, receives notice of an appeal, he or she shall, as soon as reasonably possible, but in any event within seven days after receiving the notice, inform the third party where this is required. (3) The head of a private body must inform a third party where this is required as soon as is reasonably possible, but in any event within seven days after receiving notice of an appeal. |
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10. |
80. |
80. (1) An appeal or application before the Board must be heard by one or more members, as the chairperson may determine. (2) A party to an appeal or application may be represented by a person of that party’s choice. (3) A person aggrieved by the decision of a governmental body or a private body, may apply to the Board for a rehearing. The board may receive evidence, and must give the appellant or applicant and every party opposing the appeal or application and opportunity to present their case. The Board must keep minutes containing a summary of the proceedings of every hearing. The Board may make rules which – Govern the procedure of the Board, including the procedure for lodging and opposing an appeal or an application and the hearing thereof where necessary; May provide for application or appeal fees payable by a claimant or appellant’ and Must be approved and published in the Gazette by the Minister. |
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11. |
81. |
Subpoenas and evidence Subpoena for questioning any person who may be able to give information relevant to the issues; and Subpoena any person who is believed to have possession or control any record or object relevant to the issues, to appear before the Board. (2) A subpoena must be signed by a Board member and must – Specifically require the person named in it to appear before the Board; State the date, time and place at which the person must appear; and Sufficiently identify any record or object to be produced by that person. (3) The law relating to privilege, as it applies to a witness subpoenaed to give evidence or to produce any record or object before a court of law, applies to the questioning of nay person and to the production of any record or object in the terms of this subsection. (4) The Board may administer an oath or accept an affirmation from any person called or subpoenaed to give evidence. |
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12. |
82. |
Contempt of the Board |
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13. |
83. |
Decisions of the Board |
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14. |
84. |
Insert new Chapter 3 in page 86 as follows: |
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15. |
85. |
Retain current section 73 and renumber to 85. |
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16. |
86. |
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17. |
87. |
Retain and renumber current section 75 to 87 |
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18. |
88. |
Amend current section 76 as follows: |
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19. |
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Retain and renumber current section 77-80. |
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20. |
93. |
Amend current section 81 as follows: |
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