"ACCESS TO {or FREEDOM} OF INFORMATION" BILL

GROUNDS OF REFUSAL - RECORDS OF PUBLIC AND PRIVATE BODIES

17 JANUARY 2000

EXPLANATORY NOTE:

# Proposed insertions or alternative wordings are in { } or underlined in { }.

 

A. PUBLIC BODIES (Chapter 4 of Part 2)

CHAPTER 4

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

Mandatory and discretionary grounds for refusal, and interpretation

Option 1 for subsection (1):

# References based on Option 2 of clause 45

32.(1) The information officer of a public body-

     (a) must refuse a request for access to a record contemplated in section 33(1), 35(1), {36(1)(a) - Option 2}, 36(3), {37(a)}, 39, 40(1) {Option 2}, {42B};

     (b) may refuse a request for access to a record contemplated in section 36(1), 37{(a)) or (b), 38(1), 40(1) {Option 1}, {41(1)}, 42, {42A}, 43, or 44,

unless the provisions of section 45 apply.

# Clauses not subject to cl 45 still to be separated from those that are & adjust in line with options chosen.

Option 2 for subsection (1):

# Omit subsection (1)

(2) A provision of this Chapter in terms of which a request for access to a record must or may be refused, must not be construed as-

(a) limited in its application in any way by any other provision of this Chapter{, except section 45,} in terms of which a request for access to a record must or may be refused; and

(b) not applying to a particular record by reason that another provision of this Chapter{, except section 45,} in terms of which a request for access to a record must or may be refused, also applies to that record.

Mandatory protection of privacy of third party

Option 1 for subsection (1):

33. (1) Subject to subsections (2) and (3), the information officer of a public body must refuse a request for access to a record of the body if its disclosure would constitute an {unreasonable} invasion of the privacy of an identifiable person {OR individual} (including an individual who died less than 20 years before the request is received [OR a deceased individual]) {other than the requester concerned or other person contemplated in section 18(5)}.

# Omit "other than the requester concerned or" if subsection (3) is included and omit "or other person contemplated in section 18(5)" in view of def. of "requester"

Option 2 for subsection (1):

(1) Subject to subsections (2) and (3), the information officer of a public body must refuse a request for access to a record of the body if its disclosure would involve the {unreasonable} disclosure of personal information about any individual, including a deceased individual.

Option 3 for subsection (1):

(1) Subject to subsections (2) and (3), the information officer of a public body must refuse a request for access to a record of the body if its disclosure would-

(a) constitute an {unreasonable} invasion of the privacy of an identifiable person {OR individual} (including an individual who died less than 20 years before the request is received [OR a deceased individual]); or

(b) involve the {unreasonable} disclosure of personal information about any individual, including a deceased individual.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information-

(a) about a person {OR an individual} that has consented in terms of section 47 or otherwise in writing to its disclosure to the requester concerned;

(b) that was given to the public body by the person {OR individual} to whom or which it relates and the person {OR individual} was informed by or on behalf of the public body, before its being given, that the information belongs to a class of information that would or might be made available to the public;

(c) already publicly available;

    (d) about an individual's physical or mental health, or well-being, who is under the care of the requester and who is-

            (i) under the age of 18 years; or

            (ii) incapable of understanding the nature of the request,

and if giving access would be in the individual's best interests;

     (e) about an individual who is deceased and the requester is-

(i) the individual's next of kin; or

(ii) making the request with the written consent of the individual's next of kin; or

Option 1 for par (f):

     (f) about an individual who is or was an official of a public body and which relates to the position or functions of the individual, including, but not limited to-

             (i) the fact that the individual is or was an official of that public body;

             (ii) the title, work address, work phone number of the individual and other similar particulars of the individual;

            Option 1 for par (iii):

(iii) the classification, salary scale or remuneration and responsibilities of the position held or services performed by the individual;

Option 2 for par (iii):

(iii) the classification and responsibilities of the position held or services performed by the individual;

Option 3 for par (iii):

# Omit par (iii)

             (iv) the name of the individual on a record prepared by the individual in the course of employment.

Option 2 for par (f):

# Omit par (f) and amend the def. of "personal information" by adding at end that it excludes par (i) to (iv), including/excluding par (iii), above

Option 1 for (3):

(3) The provisions of subsections (1) and (2) do not apply to a request for access by a person, or a person acting on behalf of that person, to a record by reason only of the inclusion in the record of personal information relating to the first-mentioned person.

Option 2 for (3):

(3) A record may not refused in terms of subsection (1) insofar as it consists of information about the requester or the person on whose behalf the request is made.

Tax related records

34. (1) Subject to subsection (2), the information officer of a public body must refuse a request for access to a record of the body if it reveals information that was obtained on a tax return or for the purpose of determining tax liability or collecting tax.

Option 1 for (2):

(2) The provisions of subsections (1) and (2) do not apply to a request for access by a person, or a person acting on behalf of that person, to a record by reason only of the inclusion in the record of personal information relating to the first-mentioned person.

Option 2 for (2):

(2) A record may not refused in terms of subsection (1) insofar as it consists of information about the requester or the person on whose behalf the request is made.

Mandatory protection of commercial information of third party

35. (1) Subject to subsection (2), the information officer of a public body must refuse a request for access to a record of the body if the record contains-

(a) trade secrets of {OR supplied in confidence by} a third party;

Option 1 for paragraphs (b) and (c):

(b) financial, commercial, scientific or technical information, other than trade secrets, {supplied in confidence by} of a third party {and treated consistently as confidential by that third party}, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial {or financial} interests of that third party; or

(c) information {supplied in confidence by a third party} the disclosure of which would be likely {OR could reasonably be expected}-

(i) to put that third party at a {OR an unfair} disadvantage in contractual other negotiations; or

(ii) to {unfairly} prejudice that third party in commercial competition; or

Option 2 - combine paragraphs (b) and (c):

(b) any other information {having a commercial value} {supplied in confidence by a third party} the disclosure of which could reasonably be expected {OR would be likely}-

(i) to put a third party at a {OR an unfair} disadvantage in contractual or other negotiations;

(ii) to {unfairly} prejudice a third party in commercial competition; or

(iii) to otherwise cause unreasonable harm to the commercial {or financial} interests of a third party; or

Option 3 - combine paragraphs (b) and (c):

(b) financial, commercial, scientific or technical information, other than trade secrets, of {OR supplied in confidence by} a third party {and treated consistently as confidential by that third party}, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial {or financial} interests of that third party;

ALTERNATIVE FOR PAR (d) INCLUDED AS CLAUSE 42A BELOW:

# Omit par (d) if words "commercial value" are used, since it would be covered by par (b) OR (b) and (c) above.

Option 1 for (d):

(d) the results of original research {having a commercial value} undertaken by a third party {and not yet published} the disclosure of which could reasonably be expected {OR would be likely} to deprive that body or official of the benefit of first publication of those results.

Option 2 for (d):

(d) information about research {having a commercial value} being or to be carried out by or on behalf of a third party, the disclosure of which would be likely {OR could reasonably be expected} to unreasonably expose-

(i) the third party;

(ii) a person that is or will be carrying out the research on behalf of the third party; or

(iii) the subject-matter of the research,

to {serious} disadvantage.

Option 3 for (d):

(d) information about the purpose or results of research (including research that is yet to be started or finished) {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on the third party or a person that is or will be carrying out the research.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about-

{(a) already publicly available;}

(b) a third party who has consented in terms of section 47 or otherwise in writing to its disclosure to the requester concerned;

(c) the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried out by or on behalf of} a third party and its disclosure would reveal a {serious} public safety or environmental risk.

(3) For the purposes of subsection (2)(c), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

Records obtained in confidence from third party

Option 1:

36. (1) Subject to subsection (2), the information officer of a public body may refuse a request for access to a record of that body containing information supplied in confidence to any public body by a third party if-

(a) the disclosure of the record would be likely to prejudice the future supply of similar records, or records from the same source;

(b) the last-mentioned public body has no right to demand, or that third party has no obligation to supply, the record; and

(c) it is in the public interest that similar records, or records from the same source, should continue to be supplied.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information-

(a) supplied to the public body concerned for the purpose of-

(i) securing some advantage, grant, permit, contract or concession from any public body; or

(ii) persuading any public body not to take any action against the person that supplied the record or on whose or which behalf the record was supplied;

(b) independently obtained by the body or already publicly available; or

(c) the third party concerned has consented in writing to its disclosure to the requester concerned.

Option 2 for subsections (1) and (2):

(1) The information officer of a public body may refuse a request for access to a record of a body if-

(a) the disclosure of the record would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement; or

(b) the record consists of information that was supplied in confidence by a third party-

(i) the disclosure of which could reasonably be expected {OR would be likely} to prejudice the future supply of similar information, or information from the same source; and

     (ii) it is in the public interest that similar information, or information from the same source, should continue to be supplied.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information-

(a) already publicly available; or

(b) about a third party that has consented in terms of section 47 or otherwise in writing to its disclosure to the requester concerned.

Option 3 for subsections (1) and (2):

(1) The information officer of a public body-

(a) must refuse a request for access to a record of a body if the disclosure of the record would constitute an action for breach of a duty of confidence in terms of an agreement and which is owed to a third party; or

(b) may refuse a request for access to a record of a body if the record consists of information that was supplied in confidence by a third party-

(i) the disclosure of which could reasonably be expected {OR would be likely} to prejudice the future supply of similar information, or information from the same source; and

     (ii) it is in the public interest that similar information, or information from the same source, should continue to be supplied.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information-

(a) already publicly available; or

(b) about the third party concerned has consented in term of section 47 or otherwise in writing to its disclosure to the requester concerned.

Mandatory protection of individuals' safety, and protection of property

37. The information officer of a public body-

(a) must refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to endanger the life or physical safety of an {identifiable} individual; or

(b) may refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to prejudice or impair the security of-

(i) a building, structure or system, including, but not limited to, a computer or communication system;

(ii) a mode of transport; or

(iii) any other property; or

(c) may refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to prejudice or impair methods, systems, plans or procedures for the protection of-

(i) an individual in accordance with a witness protection scheme;

(ii) the safety of the public, or any part of the public; or

(iii) the security of property contemplated in paragraph (b)(i), (ii) and (iii).

Law enforcement

38. (1) The information officer of a public body may refuse a request for access to a record of the body if-

(a) the record contains methods, techniques, procedures or guidelines for-

(i) the prevention, detection, suppression {OR curtailment} or investigation of a contravention or possible contravention of the law; or

(ii) the prosecution of alleged offenders,

and the disclosure of those methods, techniques, procedures or guidelines would be likely {OR could reasonably be expected} to prejudice the effectiveness of those methods, techniques, procedures or guidelines or lead to the circumvention of the law or facilitate the commission of an offence;

(b) the prosecution of an alleged offender is being prepared or about to commence or pending and the disclosure of the record would be likely {OR could reasonably be expected}-

(i) to impede that prosecution; or

(ii) to result in a miscarriage of justice in that prosecution;

(c) the disclosure of the record would be likely {OR could reasonably be expected}-

(i) to prejudice the investigation of a contravention or possible contravention of the law which is about to commence or is in progress or, if it has been suspended or terminated, is likely to be resumed;

(ii) to reveal, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law;

(iii) to result in the intimidation or coercion of a witness, or a person who might be or has been called as a witness, in criminal proceedings or other proceedings to enforce the law;

(iv) subject to subsection (2), to facilitate the commission of an offence {OR a contravention of the law}, including, but not limited to, escape from lawful detention; or

Option 1 for par (v):

(v) to prejudice {OR impair OR prejudice or impair} a person's right to a fair trial or an impartial adjudication.

Option 2 for par (v):

(v) to prejudice {OR impair OR prejudice or impair} the fairness of a trial or the impartiality of an adjudication.

Option 3 for par (v):

Omit par (v)

(2) A record may not be refused in terms of subsection (1)(c)(iv) insofar as it consists of information about the general conditions of detention of persons in custody.

(3) The information officer of a public body must refuse a request for access to a record of the body if access to that record is prohibited in terms of section 60(14) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

(4)(a) If a request for access to a record of a public body may be refused in terms of subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in any provision of subsection (1) or (3), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record.

(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3), must-

(i) state that fact;

(ii) identify the provision of subsection (1) or (3) in terms of which access would have been refused if the record had existed;

(iii) state adequate reasons for the refusal, as required by section 25(3), in so far as they can be given without causing the harm contemplated in any provision of subsection (1) or (3); and

{(iv) state that the requester concerned may lodge an internal appeal with the relevant authority {OR lodge an application with a court} against the refusal as required by section 25(3).}

Mandatory protection of records privileged from production in legal proceedings

39. The information officer of a public body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings unless the person entitled to the privilege has waived the privilege.

OPTION 1:

Republic's defence and security

40. (1) The information officer of a public body may refuse a request for access to a record of the body if its disclosure would be likely {OR could reasonably be expected} to {substantially} harm the defence or security of the Republic by-

(a) jeopardising the effectiveness of any measure for the prevention, detection or suppression {OR curtailment} of-

(i) aggression against the Republic;

(ii) sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic;

(iii) an activity aimed at changing the constitutional order of the Republic by the use of force or violence {or coercion}; or

(iv) a foreign or hostile intelligence operation;

(b) jeopardising the effectiveness of a public body, branch of that body or person responsible for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv) by disclosing its or his or her capabilities, deployment or performance;

(c) jeopardising the effectiveness of-

(i) arms; or

(ii) other equipment, including, but not limited to, communication or cryptographic systems,

used, or intended to be used, or being developed, designed, produced or investigated for preventing, detecting or suppressing an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv) by disclosing their or its capabilities, quantity, deployment or performance;

(d) jeopardising the effectiveness of methods or equipment for collecting, assessing or handling information used for the prevention, detection or suppression {OR curtailment} of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv); or

(e) disclosing the identity of a confidential source of information used for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv).

(2)(a) If a request for access to a record of a public body may be refused in terms of subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in any provision of subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record.

(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3), must-

(i) state that fact;

(ii) identify the provision of subsection (1) in terms of which access would have been refused if the record had existed;

(iii) state adequate reasons for the refusal, as required by section 25(3), in so far as they can be given without causing the harm contemplated in any provision of subsection (1); and

{(iv) state that the requester may lodge an internal appeal with the relevant authority {OR an application with a court} against the refusal as required by section 25(3).}

OPTION 2 - CERTIFICATE SYSTEM and COMBINING CLS 40 & 41:

Republic's defence, security and international relations

40. (1) The information officer of a public body-

(a) must refuse a request for access to a record of the body which is subject to a certificate signed {OR issued} in terms of subsection (2);

{(b) may refuse a request for access to a record of the body if a certificate has not been signed {OR issued} in terms of subsection (2), but a certificate could have been so signed {OR issued} on a ground contemplated in that subsection {OR a ground on which a certificate may be so signed {OR issued}}, exists}.}

Option 1 for subsections (2) & (3):

(2) For the purposes of subsection (1), a Minister {OR functionary} designated by the President {for this purpose} may, at any time, sign {OR issue} a certificate if-

(a) the disclosure of a record of a public body could reasonably be expected {OR would be likely} to cause harm {OR damage OR prejudice} to-

(i) the defence of the Republic;

(ii) the security of the Republic; or

(iii) the international relations of the Republic {OR the conduct of relations by the Republic with another state or an international organisation}; or

(b) the disclosure of that record would reveal information-

(i) supplied in confidence by or on behalf of another state or an international organisation;

(ii) supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement {AND/OR international agreement contemplated in section 231 of the Constitution} with that state or organisation which requires the information to be held in confidence; or

(iii) required to be held in confidence by an international agreement or customary international law contemplated in sections 231 or 232, respectively, of the Constitution.

(3) A record contemplated in subsection (2), without limiting the generality of that subsection, include a record containing information-

(a) relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;

(b) relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of-

(i) weapons or any other equipment used for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or

(ii) anything being designed, developed, produced or considered for use as weapons or such other equipment;

(c) relating to the characteristics, capabilities, vulnerabilities, performance, potential, deployment or functions of-

(i) any military force, unit or personnel; or

(ii) any body or person responsible for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;

(d) held for the purpose of intelligence relating to-

(i) the defence of the Republic;

(ii) the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or

(iii) another state or an international organisation used by or on behalf of the Republic in the process of deliberation and consultation of in the conduct of international affairs;

(e) on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to paragraph (d);

(f) on the identity of a confidential source {and any other source} of information referred to in paragraph (d);

(g) on the positions adopted or to be adopted by the Republic, another state or an international organisation for the purpose of present or future international negotiations;

(h) that constitutes diplomatic correspondence exchanged with another state or an international organisation or official correspondence exchanged with diplomatic missions or consular posts of the Republic.

Option 2 for subsections (2) and (3) in one subsection:

(2) For the purposes of subsection (1), a Minister {OR functionary} designated by the President {for this purpose} may, at any time, sign {OR issue} a certificate if-

(a) the disclosure of a record of a public body-

(i) could reasonably be expected {OR would be likely} to cause harm {OR damage OR prejudice} to-

(aa) the defence of the Republic;

(bb) the security of the Republic; or

(cc) the international relations of the Republic {OR the conduct of relations by the Republic with another state or an international organisation}; or

(ii) would reveal information-

(aa) supplied in confidence by or on behalf of another state or an international organisation; or

(bb) supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement {AND/OR international agreement contemplated in terms of section 231 of the Constitution} with that state or organisation which requires the information to be held in confidence;

(cc) required to be held in confidence by an international agreement or customary international law contemplated in sections 231 or 232, respectively, of the Constitution; and

(b) {that Minister (OR functionary} is satisfied that} the record contains information-

(i) relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;

(ii) relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of-

(aa) weapons or any other equipment used for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or

(bb) anything being designed, developed, produced or considered for use as weapons or such other equipment;

(iii) relating to the characteristics, capabilities, vulnerabilities performance, potential, deployment or functions of-

(aa) any military force, unit or personnel; or

(bb) any body or person responsible for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;

(iv) held for the purpose of intelligence relating to-

(aa) the defence of the Republic;

(bb) the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or

(cc) another state or an international organisation used by or on behalf of the Republic in the process of deliberation and consultation of in the conduct of international affairs;

(v) on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to subparagraph (iv);

(vi) on the identity of a confidential source {and any other source} of information referred to in subparagraph (iv);

(vii) on the positions adopted or to be adopted by the Republic, another state or an international organisation for the purpose of present or future international negotiations; or

(viii) that constitutes diplomatic correspondence exchanged with another state or an international organisation or official correspondence exchanged with diplomatic missions or consular posts of the Republic.

(4) A certificate referred to in subsection (2) must state into which of the categories contemplated in section (2)(a) or (b) {OR (2)(b) - in case of option 2 for subsection (2)?} the record in question falls.

(5) Subject to the operation of {Chapter 2 of} Part 4, a certificate signed {OR issued} in terms of subsection (2), so long as it remains in force, establishes that the record is a record that must be refused in terms of subsection (1).

(6) A certificate signed {OR issued} in terms of subsection (2)-

Option 1 for (a):

(a) remains in force for the prescribed period{, which period may not be longer than 20 {OR 15 OR five} years since the date it was signed {OR issued}; and

Option 2 for (a):

(a) remains in force for a period of five years since the date it was signed {OR issued}; and;

(b) may be revoked in the prescribed manner before the end of such period.

{(6A) When a certificate is revoked in terms of subsection (6)(b), it must be made public {OR the fact of its revocation must be made known by notice in the Gazette {and in at least two national newspapers}.}

(7) If the Minister designated by the President is satisfied that information as to the existence or non-existence of a record as described in a request for access would, if contained in a record of a public body, cause the last-mentioned record to be a record in respect of which a certificate would have been signed {OR issued} in terms subsection (2), he or she may sign {OR issued} a certificate to that effect.

(8)(a) If a certificate-

(i) has been signed {OR issued} in terms of subsection (7) in respect of a record as described in a request for access, the information officer concerned must refuse to confirm or deny the existence or non-existence of the record; or

{(ii) has not been signed {OR issued} in terms of subsection (7), but a certificate could have been so signed {OR issued} on a ground contemplated in that subsection {OR a ground on which a certificate may be so signed {OR issued}}, exists}, the information officer concerned may refuse to confirm or deny the existence or non-existence of the record.}

(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3), must-

(i) state that fact;

(ii) identify the provision in terms of which access would have been refused if the record had existed;

(iii) state adequate reasons for the refusal, as required by section 25(3); and

{(iv) state that the requester concerned may lodge an internal appeal with the relevant authority {OR an application with a court} against the refusal as required by section 25(3).}

OPTION 3 FOR CL 40 - NO CERTIFICATE AND COMBINES CLS 40 & 41:

Republic's defence, security and international relations

Option 1 for subsections (1) and (2):

40. (1) The information officer of a public body may refuse a request for access to a record of the body if its disclosure-

(a) could reasonably be expected {OR would be likely} to cause harm {OR damage OR prejudice} to-

(i) the defence of the Republic;

(ii) the security of the Republic; or

(iii) subject to subsection (3), the international relations of the Republic {OR the conduct of relations by the Republic with another state or an international organisation}; or

(b) would reveal information-

(i) supplied in confidence by or on behalf of another state or an international organisation;

(ii) supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement {AND/OR international agreement contemplated in section 231 of the Constitution} with that state or organisation which requires the information to be held in confidence; or

(iii) required to be held in confidence by an international agreement or customary international law contemplated in sections 231 or 232, respectively, of the Constitution.

(2) A record contemplated in subsection (1), without limiting the generality of that subsection, include a record containing information-

(a) relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;

(b) relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of-

(i) weapons or any other equipment used for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or

(ii) anything being designed, developed, produced or considered for use as weapons or such other equipment;

(c) relating to the characteristics, capabilities, vulnerabilities, performance, potential, deployment or functions of-

(i) any military force, unit or personnel; or

(ii) any body or person responsible for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;

(d) held for the purpose of intelligence relating to-

(i) the defence of the Republic;

(ii) the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or

(iii) another state or an international organisation used by or on behalf of the Republic in the process of deliberation and consultation of in the conduct of international affairs;

(e) on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to paragraph (d);

(f) on the identity of a confidential source {and any other source} of information referred to in paragraph (d);

(g) on the positions adopted or to be adopted by the Republic, another state or an international organisation for the purpose of present or future international negotiations;

(h) that constitutes diplomatic correspondence exchanged with another state or an international organisation or official correspondence exchanged with diplomatic missions or consular posts of the Republic.

Option 2 for subsections (1) & (2) - combined in one subsection:

(1) The information officer of a public body may refuse a request for access to a record of the body if-

(a) the disclosure of that record-

(i) could reasonably be expected {OR would be likely} to cause harm {OR damage OR prejudice} to-

(aa) the defence of the Republic;

(bb) the security of the Republic; or

(cc) subject to subsection (3), the international relations of the Republic {OR the conduct of relations by the Republic with another state or an international organisation}; or

(ii) would reveal information-

(aa) supplied in confidence by or on behalf of another state or an international organisation; or

(bb) supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement {AND/OR international agreement contemplated in terms of section 231 of the Constitution} with that state or organisation which requires the information to be held in confidence;

(cc) required to be held in confidence by an international agreement or customary international law contemplated in sections 231 or 232, respectively, of the Constitution; and

(b) the record contains information-

(i) relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;

(ii) relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of-

(aa) weapons or any other equipment used for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or

(bb) anything being designed, developed, produced or considered for use as weapons or such other equipment;

(iii) relating to the characteristics, capabilities, vulnerabilities performance, potential, deployment or functions of-

(aa) any military force, unit or personnel; or

(bb) any body or person responsible for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;

(iv) held for the purpose of intelligence relating to-

(aa) the defence of the Republic;

(bb) the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or

(cc) another state or an international organisation used by or on behalf of the Republic in the process of deliberation and consultation of in the conduct of international affairs;

(v) on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to subparagraph (iv);

(vi) on the identity of a confidential source {and any other source} of information referred to in subparagraph (iv);

(vii) on the positions adopted or to be adopted by the Republic, another state or an international organisation for the purpose of present or future international negotiations; or

(viii) that constitutes diplomatic correspondence exchanged with another state or an international organisation or official correspondence exchanged with diplomatic missions or consular posts of the Republic.

(3) A record may not be refused in terms of subsection (1)(a)(iii) {OR (1)(a)(i)(cc) if it came into existence more than 20 {OR 15} years before the request.

(4)(a) If a request for access to a record of a public body may be refused in terms of subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in any provision of subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record.

(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3), must-

(i) state that fact;

(ii) identify the provision of subsection (1) in terms of which access would have been refused if the record had existed;

(iii) state adequate reasons for the refusal, as required by section 25(3), in so far as they can be given without causing the harm contemplated in any provision of subsection (1); and

{(iv) state that the requester may lodge an internal appeal with the relevant authority {OR an application with a court} against the refusal as required by section 25(3).}

OPTION 1 FOR CLAUSE 41:

International relations

41. (1) The information officer of a public body may refuse a request for access to a record of the body if its disclosure-

Option 1 for (a):

(a) subject to subsection (2), would be likely {OR could reasonably be expected} to cause {substantial} harm {OR damage OR prejudice} to the capacity of the Republic to maintain or conduct relations {in the best interests of the Republic} with another state or an international organisation;

Option 2 for (a):

(a) subject to subsection (2), would be likely {OR could reasonably be expected} to cause {substantial} harm {OR damage OR prejudice} to the international relations of the Republic;

(b) would be in contravention of an obligation imposed on the Republic by-

(i) an international agreement contemplated in section 231; or

(ii) customary international law contemplated in section 232 of the Constitution; or

# Omit (c)(iii) above if (b) is included?

(c) would reveal information-

(i) supplied in confidence by or on behalf of another state or an international organisation;

(ii) supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement {AND/OR international agreement contemplated in section 231 of the Constitution} with that state or organisation which requires the information to be held in confidence; or

{(iii) required to be held in confidence by an international agreement or customary international law contemplated in section 231 or 232, respectively, of the Constitution.} # Omit (b) above if (c)(iii) is included?

(2) A record may not be refused in terms of subsection (1)(a) if it came into existence more than 20 {OR 15} years before the request.

OPTION 2 FOR CLAUSE 41:

Omit cl 41 if OPTION 2 or 3 for cl 40 is used

 

Economic interests {AND/OR financial welfare} of Republic and commercial activities of public bodies

OPTION 1 FOR CL 42:

Option 1 for subsection (1):

42.(1) The information officer of a public body may refuse a request for access to a record of the body if its disclosure would be likely {OR could reasonably be expected} to {seriously OR substantially OR materially} jeopardise the financial welfare of the Republic {or any part thereof} or the ability of the government to manage the economy of the Republic {or any part thereof} effectively in the best interests of the Republic by prematurely disclosing-

     (a) a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment;

     (b) a contemplated change in or decision not to change-

             (i) credit or interest rates;

             (ii) customs or excise duties, taxes or any other source of revenue;

             (iii) the regulation or supervision of financial institutions;

             (iv) government borrowing; or

             (v) the regulation of prices of goods or services, rents or wages, salaries or other incomes; or

     (c) a contemplated-

             (i) sale or acquisition of immovable or movable property; or

             (ii) international trade agreement.

(2) Subject to subsection (3), the information officer of a public body may refuse a request for access to a record of the body if the record contains-

Option 2 for subsection (1) - included in existing subsection (2) as par (Aa) and new subsection (2A) and subsection (1) above:

(aA) information the disclosure of which would be likely {OR could reasonably be expected} to {seriously OR substantially OR materially} jeopardise the {economic interests} or {financial welfare} of the Republic {or any province} or the ability of the government to manage the economy of the Republic {or any province} effectively in the best interests of the Republic; or

     (a) trade secrets of the state or a public body;

Option 1 for paragraphs (b) and (c): 

    (b) financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected {OR would be likely} to cause harm to the commercial {or financial} interests of {the state or} a public body;

     (c) information the disclosure of which would be likely {OR could reasonably be expected}-

(i) to put a public body at a {OR an unfair} disadvantage in contractual or other negotiations; or

(ii) to {unfairly} prejudice a public body in commercial competition;

Option 2 - combine paragraphs (b) and (c):

(b) any other information {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely}-

(i) to put a public body at a {OR an unfair} disadvantage in contractual or other negotiations;

(ii) to {unfairly} prejudice a public body in commercial competition; or

(iii) to otherwise cause unreasonable harm to the commercial {or financial} interests of a public body; or

Option 3 - combine paragraphs (b) and (c):

(b) financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected {OR would be likely} to cause harm to the commercial {or financial} interests of a public body;

ALTERNATIVE FOR PAR (d) INCLUDED AS CLAUSE 42A BELOW:

# Omit par (d) if words "commercial value" are used, since it would be covered by par (b) OR (b) and (c) above.

Option 1 for par (d): 

    (d) the results of original research {having a commercial value} undertaken by an official of a public body {and not yet published} the disclosure of which could reasonably be expected {OR would be likely } to deprive that public body or official of the benefit of first publication of those results; or

Option 2 for par (d):

(d) information about research {having a commercial value} being or to be carried out by or on behalf of a public body, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose-

(i) a public body;

(ii) a person that is or will be carrying out the research on behalf of a public body; or

(iii) the subject-matter of the research,

to {serious} disadvantage; or

Option 3 for par (d):

(d) information about the purpose or results of research (including research that is yet to be started or finished) {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on a public body or a person that is or will be carrying out the research; or

    (e) a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the state or a public body, except in so far as it is required to give access to a record to which access is granted in terms of this Act. # Covered by (2)(b) or (b) & (c) above? # Def. of "computer program" in above-mentioned Act: "means a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result;"

# Subs (2A) below part of option 2 for subsection (1):

(2A) The information referred to in subsection (2)(Aa) includes, without limiting the generality of that subsection, information about-

  (a) a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment;

(b) a contemplated change in or decision not to change-

(i) credit or interest rates;

(ii) customs or excise duties, taxes or any other source of revenue;

             (iii) the regulation or supervision of financial institutions;

             (iv) government borrowing; or

             (v) the regulation of prices of goods or services, rents or wages, salaries or other incomes; or

     (c) a contemplated-

             (i) sale or acquisition of immovable or movable property; or

             (ii) international trade agreement.

Option 1 for (2B):

(2B) The information referred to in subsection (2)(c) [Option 1 for (b) & (c)] {OR (b) [Options 2 and 3 for (b) & (c)] includes, without limiting the generality of that subsection, information about an agreement, or contemplated agreement, to transfer any interest in or right to {a substantial number of} shares in the capital of a public body to any person which is not a public body.

Option 2 for (2B):

# Omit if option 2 of def. of "public body" is adopted and/or in view of (2)(c) [Option 1 for (b) & (c)] OR (b) [Options 2 and 3 for (b) & (c)] (2A)(c)(i) above.

(3) A record may not be refused in terms of subsection (2) insofar as it consists of information-

     {(a) already publicly available;}

     (b) about or owned by a public body {,other than the public to which the request is made,} which has consented in writing {OR in the prescribed manner} to its disclosure to the requester concerned;

     (c) about the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried out by or on behalf of} a public body and its disclosure would reveal a {serious} public safety or environmental risk.

     (3A) For the purposes of subsection (3)(c), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

(4) If a request for access to a record contemplated in subsection (3)(c) is granted and the testing or other investigation was carried out by or on behalf of the public body from which the record is requested, the information officer must at the same time as access to the record is given, provide the requester with a written explanation of the methods used in conducting the testing or other investigation.

OPTION 2 FOR CL 42 - Deals with financial welfare, etc of Republic and the commercial information of a public body separately as in Option 1 of subsection (1) for Option 1 for cl 42, but worded similar to Option 2 of subsections (1) & (2A) for Option 1 for cl 42: :

42. (1) The information officer of a public body may refuse a request for access to a record of the body if its disclosure would be likely {OR could reasonably be expected} to {seriously OR substantially OR materially} jeopardise the {economic interests} or {financial welfare} of the Republic {or any province} or the ability of the government to manage the economy of the Republic {or any province} effectively in the best interests of the Republic.

(2) The information referred to in subsection (1) includes, without limiting the generality of that subsection, information about-

  (a) a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment;

(b) a contemplated change in or decision not to change-

(i) credit or interest rates;

(ii) customs or excise duties, taxes or any other source of revenue;

             (iii) the regulation or supervision of financial institutions;

             (iv) government borrowing; or

             (v) the regulation of prices of goods or services, rents or wages, salaries or other incomes; or

     (c) a contemplated-

             (i) sale or acquisition of immovable or movable property; or

             (ii) international trade agreement.

(3) Subject to subsection (4), the information officer of a public body may refuse a request for access to a record of the body if the record contains-

(a) trade secrets of the state or a public body;

Option 1 for paragraphs (b) and (c): 

    (b) financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected {OR would be likely} to cause harm to the commercial {or financial} interests of {the state or} a public body;

     (c) information the disclosure of which would be likely {OR could reasonably be expected}-

(i) to put a public body at a {OR an unfair} disadvantage in contractual or other negotiations; or

(ii) to {unfairly} prejudice a public body in commercial competition;

Option 2 - combine paragraphs (b) and (c):

(b) any other information {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely}-

(i) to put a public body at a {OR an unfair} disadvantage in contractual or other negotiations;

(ii) to {unfairly} prejudice a public body in commercial competition; or

(iii) to otherwise cause unreasonable harm to the commercial {or financial} interests of a public body; or

Option 3 - combine paragraphs (b) and (c):

(b) financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected {OR would be likely} to cause harm to the commercial {or financial} interests of a public body;

ALTERNATIVE FOR PAR (d) INCLUDED AS CLAUSE 42A BELOW:

# Omit par (d) if words "commercial value" is used, since it would fall under par (b) OR (b) and (c) above.

Option 1 for par (d): 

    (d) the results of original research {having a commercial value} undertaken by an official of a public body {and not yet published} the disclosure of which could reasonably be expected {OR would be likely } to deprive that public body or official of the benefit of first publication of those results; or

Option 2 for par (d):

(d) information about research {having a commercial value} being or to be carried out by or on behalf of a public body, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose-

(i) a public body;

(ii) a person that is or will be carrying out the research on behalf of a public body; or

(iii) the subject-matter of the research,

to {serious} disadvantage; or

Option 3 for par (d):

(d) information about the purpose or results of research (including research that is yet to be started or finished) {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on a public body or a person that is or will be carrying out the research; or

     (e) a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the state or a public body, except in so far as it is required to give access to a record to which access is granted in terms of this Act.

Option 1 for (3A):

(3A) The information referred to in subsection (2)(c) [Option 1 for (b) & (c)] {OR (b) [Options 2 and 3 for (b) & (c)] includes, without limiting the generality of that subsection, information about an agreement, or contemplated agreement, to transfer any interest in or right to {a substantial number of} shares in the capital of a public body to any person which is not a public body.

Option 2 for (3A):

# Omit if option 2 of def. of "public body" is adopted and/or in view of (2)(c) [Option 1 for (b) & (c)] OR (b) [Options 2 and 3 for (b) & (c)] (2A)(c)(i) above.

(4) A record may not be refused in terms of subsection (2) insofar as it consists of information-

     {(a) already publicly available;}

     (b) about or owned by a public body {,other than the public to which the request is made,} which has consented in writing {OR in the prescribed manner} to its disclosure to the requester concerned;

     (c) about the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried out by or on behalf of} a public body and its disclosure would reveal a {serious} public safety or environmental risk.

     (5) For the purposes of subsection (4)(c), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

(6) If a request for access to a record contemplated in subsection (4)(c) is granted and the testing or other investigation was carried out by or on behalf of the public body from which the record is requested, the information officer must at the same time as access to the record is given, provide the requester with a written explanation of the methods used in conducting the testing or other investigation

Records about research

# If cl 42A is included-

* omit clauses 35(1)(d) and 42(2)[Opt 1] 42(3)[Opt 2](d); and

* provided for third party notification

42A. The information officer of a public body may {OR must} refuse a request for access to a record of the body if the record contains

Option 1

the results of original research undertaken by a public body or third party {and not yet published} the disclosure of which could reasonably be expected {OR would be likely} to deprive that public body, third party or the person that undertook the research of the benefit of first publication of those results.

Option 2

information about research being or to be carried out by or on behalf of a public body or third party, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose-

(a) a public body or third party;

(b) a person that is or will be carrying out the research on behalf of a public body or third party; or

(b) the subject-matter of the research,

to {serious} disadvantage.

Option 3:

information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on a public body or a third party or a person that is or will be carrying out the research.

OPTION 1 - if Cabinet is not excluded from the application of the Bill as in clause 6(a)

Cabinet's records

42B.(1) The information officer of a public body must refuse a request for access to a record if-

(a) it has been submitted to Cabinet {for its consideration};

(b) it was prepared for submission to Cabinet and is proposed, or has at any time been proposed, by a Cabinet member to be submitted to Cabinet; or

(c) it was prepared for briefing, or the use of, a Cabinet member or an official of a public body in relation to a matter-

(i) submitted to Cabinet; or

(ii) that is proposed, or has at any time been proposed, to be submitted to Cabinet by a Cabinet member;

(d) it is, or forms part of, a record of Cabinet, including a list {OR register} of matters submitted to Cabinet;

(e) its disclosure would involve the disclosure of an account of a consultation, discussion or deliberation by Cabinet that has occurred, including, but not limited to, minutes of a meeting, for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; or

(f) it is a preliminary, working or other draft of a matter referred to in paragraphs (a) to (e).

(2) A record may not be refused in terms of subsection (1)-

(a) if it was officially published by decision of Cabinet;

(b) if the Cabinet has consented to its disclosure {to the requester concerned}; or

(c) in so far as it consists of factual material unless-

(i) the disclosure of that record would involve the disclosure of matter contemplated in subsection (1)(e); and

(ii) the fact of that matter has not been officially published by decision of Cabinet; or

(d) if the record came into existence more than 20 {OR 15} years before the request concerned.

Option 1 for introductory part of (3):

(3) For the purposes of this Act, a certificate signed by the Minister designated by the President stating that a record-

Option 2 for introductory part of (3):

(3) For the purposes of this Act, a certificate signed by the Minister in the Office of the Presidency certifying that a resolution has been taken by the Cabinet stating that a record-

(a) is a record contemplated in subsection (1); and

(b) is not a record contemplated in subsection (2),

establishes, subject to the operation of {Chapter 2 of} Part 4, that it is a record contemplated in subsection (1) and is not a record contemplated in subsection (2).

Option 1 for introductory part of (4):

(4) For the purposes of this Act, a certificate signed by the Minister designated by the President stating that a record would, if it existed-

Option 2 for introductory part of (4):

(4) For the purposes of this Act, a certificate signed by the Minister in the Office of the Presidency certifying that a resolution has been taken by the Cabinet stating that a record-

(a) be a record contemplated in subsection (1); and

(b) not be a record contemplated in subsection (2),

establishes, subject to the operation of {Chapter 2 of} Part 4, that, if that record exists, it is a record contemplated in subsection (1) and is not a record contemplated in subsection (2)

(5) A certificate in terms of subsection (3) or (4)-

(a) remains in force for the prescribed period{, which period may not be longer period than 20 {OR 15} years since its date it was signed {OR issued}; and

(b) may be revoked before the end of such period in the prescribed manner.

(6)(a) If a certificate in terms of subsection (3) or (4) has been signed in respect of a record as described in a request for access, the information officer concerned must refuse to confirm or deny the existence or non-existence of the record.

(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3), must-

(i) state that fact;

(ii) identify the provision in terms of which access would have been refused if the record had existed;

(iii) state adequate reasons for the refusal, as required by section 25(3); and

{(iv) state that the requester concerned may lodge an internal appeal with the relevant authority {OR an application with the High Court} against the refusal, as required by section 25(3).}

(7) In this section "Cabinet" includes a Cabinet committee or subcommittee.

OPTION 2 - if Cabinet is excluded from the application of the Bill as in clause 6(a)

# Omit clause 42B.

Operations of public bodies

43. (1) Subject to subsections (3) and (4), the information officer of a public body may refuse a request for access to a record of the body-

(a) if the record contains-

(i) an opinion, advice, report or recommendation obtained or prepared; or

(ii) an account of a consultation, discussion or deliberation that has occurred, including, but not limited to, minutes of a meeting,

for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; and {OR or}

(b) if-

(i) the knowledge that disclosure of the record were possible could reasonably be expected {OR would be likely} to frustrate the deliberative process in a public body or between public bodies by inhibiting the candid-

(aa) communication of that opinion, advice or recommendation; or

(bb) conduct of that consultation, discussion or deliberation; or

(ii) the disclosure of the record would {OR could}, by premature disclosure of a policy or contemplated policy, be likely {OR reasonably be expected} to {substantially} frustrate the success of that policy.

(2) Subject to subsection (3), the information officer of a public body may refuse a request for access to a record of the body if-

(a) the disclosure of the record would be likely {OR could reasonably be expected} to jeopardise the effectiveness of a testing, examining or auditing procedure or method used by a public body;

(b) the record contains evaluative material {OR an assessment}, whether or not the person who supplied it is identified in the record, and the disclosure of the material would breach an express or implied promise which was-

(i) made to the person who supplied the material; and

(ii) to the effect that the material or the identity of the person who supplied it, or both, would be held in confidence; or

(c) the record contains a preliminary, working or other draft of an official of a public body.

(3) A record may not be refused in terms of subsection (1) or (2) insofar as it consists of an account of, or a statement of reasons for, a decision taken in the exercise of a power or performance of a duty conferred or imposed by law. Link with Administrative Justice Bill?

(4) A record may not be refused in terms of subsection (1)-

(a) if the record came into existence more than 15 {OR 20} years before the request concerned; or

Option 1 for (b):

(b) insofar as it consists of-

(i) factual material, including, but not limited to, any statistical data;

(ii) the analysis, interpretation or evaluation of, or any projection based on, factual material referred to in subparagraph (i);

{(iii) a report on the performance or efficiency of a public body or any part thereof, or any programme, project or other activity under its supervision;

(iv) a report of a scientific or technical expert; or

(v) the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried out by or on behalf of} a public body and the disclosure of the record would reveal a {serious} public safety or environmental risk.}

Option 2 for (b):

# Omit par. (b) & and subs (5) and (6) below.

(5) For the purposes of subsection (4)(b)(v), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

(6) If a request for access to a record contemplated in subsection (4)(b)(v) is granted and the testing or other investigation was carried out by or on behalf of the public body from which the record is requested, the information officer must at the same time as access to the record is given, provide the requester with a written explanation of the methods used in conducting the testing or other investigation.

{Manifestly} frivolous or vexatious requests, or {substantial and unreasonable} diversion of resources

44. The information officer of a public body may refuse a request for access to a record of the body if-

(a) the request is manifestly frivolous or vexatious; or

(b) the work involved in processing the request would substantially and unreasonably divert the resources of the public body.

OPTION 1 (DP's proposal):

Necessity of harm

44A. No provision in this Chapter may be construed to require or permit the information officer of a public body to refuse a request for access to a record of the public body if the harm that the provision is intended to guard against would not occur if the request is granted.

OPTION 2:

# Omit clause 44A.

 

Mandatory disclosure in public interest

OPTION 1:

45. (1) Despite any other provision of this Act, but subject to Chapter 3 of this Part, the information officer of a public body must grant a request for access to a record contemplated in section {29(1), 30(2), 31(1), 33(a), 34(1)(c)(ii), (iii) or (vi) or (d) or 35} [see numbers of original Bill ; still to be adjusted to refer to new clause numbers] if-

(a) disclosure of the record would reveal evidence of substantial-

{(iA) infringement of any right in the Bill of Rights in Chapter 2 of the Constitution;}

(i) abuse of authority, illegality or neglect in the exercise of a power or performance of a duty of an official of a public body;

(ii) injustice to a person, including a deceased individual;

Option 1 for paragraph (iii):

(iii) danger to the environment or the health or safety of an individual or the public; or

Option 2 for paragraph (iii):

(iii) public safety or environmental risk;

(iv) unauthorised use of the funds or other assets of a public body; and

(b) giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned.

(2) Despite any other provision of this Act, but subject to Chapter 3 of this Part, the information officer of a public body must grant a request for access to a record contemplated in section {32(1) or (3), 33(b), 34(1)(a), (b), (c)(i), (iv) or (v), 36(1), 37(1), 38(1) or (2) or 39(1)} [see numbers of original Bill; to be adjusted to refer to new clause numbers], if giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision in question.

OPTION 2:

Despite any other provision of this Part, the head of a public body must grant a request for access to a record of the body contemplated in section 33(1) [privacy] or (4){OR 34} [health of requester], 35(1)[third party commercial information], 36(1)(b) [certain confidential information], 37(b) [security of structures], 40(1) [defence], 41(1) [international relations], 42(1) or (2) [economic/commercial interests of state/public body], {42A [research]}, 43(1) or (2) [operations of public bodies] or 44(b) [diversion of resources] if-

(a) the disclosure of the record would reveal evidence of-

(i) a substantial contravention of, or failure to comply with, the law; or

(ii) an imminent {AND/OR serious} public safety or environmental risk; and

(b) {giving due weight to the importance of open, accountable and participatory administration,} the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision in question.

B. PRIVATE BODIES (Chapter 4 of Part 3)

CHAPTER 4

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

Interpretation

# See cl 32(1) - similar clause here

64. A provision of this Chapter in terms of which a request for access to a record may or must be refused, must not be construed as-

(a) limited in its application in any way by any other provision of this Chapter, except section 72, in terms of which a request for access to a record may or must be refused; and

(b) not applying to a particular record by reason that another provision of this Chapter, except section 72, in terms of which a request for access to a record may or must be refused, also applies to that record.

Mandatory protection of privacy of third party

Option 1 for subsection (1):

65. (1) Subject to subsections (2) and (3), the head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an {unreasonable} invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received [OR a deceased individual]) {other than the requester concerned.} # Omit "other than the requester" if subsection (3)?

Option 2 for subsection (1):

(1) Subject to subsections (2) and (3), the head of a private body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about any person, including a deceased individual.

Option 3 for subsection (1):

(1) Subject to subsections (2) and (3), the information officer of a public body must refuse a request for access to a record of the body if its disclosure would-

(a) constitute an {unreasonable} invasion of the privacy of an identifiable person {OR individual} (including an individual who died less than 20 years before the request is received [OR a deceased individual]); or

(b) involve the {unreasonable} disclosure of personal information about any individual, including a deceased individual.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information-

(a) about a person {OR an individual} that has consented in terms of section 74 or otherwise in writing to its disclosure to the requester concerned;

(b) already publically available;

(c) that was given to the private body by the person {OR individual} to whom or which it relates and the person {OR individual} was informed by or on behalf of the private body, before its being given, that the information belongs to a class of information that would or might be made available to the public;

(d) about an individual's physical or mental health, or well-being, who is under the care of the requester and who is-

             (i) under the age of 18 years; or

             (ii) incapable of understanding the nature of the request,

and if giving access would be in the individual's best interests;

     (e) about an individual who is deceased and the requester is-

(i) the individual's next of kin; or

(ii) making the request with the written consent of the individual's next of kin.

Option 1 for (3):

(3) The provisions of subsections (1) and (2) do not apply to a request for access by a person, or any person acting on behalf of that person, to a record by reason only of the inclusion in the record of information relating to the first-mentioned person.

Option 2 for (3):

(3) A record may not refused in terms of subsection (1) insofar as it consists of information about the requester or the person on whose behalf the request is made.

Mandatory protection of commercial information of third party

67. (1) The head of a private body must refuse a request for access to a record of the body if the record contains-

(a) trade secrets of {OR supplied in confidence by} a third party;

Option 1 for paragraphs (b) and (c):

(b) financial, commercial, scientific or technical information, other than trade secrets, of {supplied in confidence by} a third party, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial {or financial} interests of that third party; or

(c) information {supplied in confidence by a third party} {and having a commercial value} the disclosure of which could reasonably be expected {OR would be likely} to-

(i) put that third party at a {OR an unfair} disadvantage in contractual other negotiations; or

(ii) {unfairly} prejudice that third party in commercial competition; or

Option 2 - combine paragraph (b) and (c):

(b) any other information {having a commercial value} {supplied in confidence by a third party} the disclosure of which could reasonably be expected {OR would be likely} to-

(i) put a third party at an {unfair} disadvantage in contractual or other negotiations;

(ii) {unfairly} prejudice a third party in commercial competition; or

(iii) otherwise cause unreasonable harm to the commercial {or financial} interests of a third party; or

Option 3 - only paragraphs (b) and (c):

# Omit par (d) if words "commercial value" are used, since it would be covered by par (b) OR (b) and (c) above.

(b) financial, commercial, scientific or technical information, other than trade secrets, of {OR supplied in confidence by} a third party {and treated consistently as confidential by that third party}, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial or financial interests of that third party;

Option 1 for (d):

(d) the results of original research {having a commercial value} undertaken by a third party {and not yet published} the disclosure of which could reasonably be expected {OR would be likely} to deprive that body or official of the benefit of first publication of those results.

Option 2 for (d):

(d) information about research {having a commercial value} being or to be carried out by or on behalf of a third party, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose-

(i) the third party;

(ii) a person that is or will be carrying out the research on behalf of the third party; or

(iii) the subject-matter of the research,

to {serious} disadvantage.

Option 3 for (d):

(d) information about the purpose or results of research, including research that is yet to be started or finished, {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on the third party or a person that is or will be carrying out the research.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about-

     (a) a third party who has consented in terms of section 74 or otherwise in writing to its disclosure to the requester concerned;

     (b) the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried by or on behalf of} a third party and its disclosure would reveal a {serious} public safety or environmental risk.

(3) For the purposes of subsection (2)(b), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

Breach of confidence imposed by agreement

68. The head of a private body may {OR must} refuse a request for access to a record of a body if its disclosure would constitute an action for breach of a duty of confidence in terms of an agreement and which is owed to a third party.

Mandatory protection of safety of individuals, and protection of security of property

69. The head of a private body-

(a) must refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to endanger the life or physical safety of an {identifiable} individual; or

(b) may refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to prejudice or impair the security of-

(i) a building, structure or system, including, but not limited to, a computer or communication system;

(ii) a mode of transport; or

(iii) any other property; or

(c) may refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to prejudice or impair methods, systems, plans or procedures for the protection of-

(i) the safety of the public, or any part of the public; or

(ii) the security of property contemplated in paragraph (b)(i), (ii) and (iii).

Mandatory protection of records privileged from production in legal proceedings

70. The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings unless the person entitled to the privilege has waived the privilege.

Commercial information of private body

71. (1) The head of a private body may refuse a request for access to a record of the body if the record contains-

     (a) trade secrets of the private body;

Option 1 for paragraphs (b) and (c):

(b) financial, commercial, scientific or technical information, other than trade secrets, of the private body, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial {or financial} interests of the body; or

(c) information {having a commercial value} the disclosure of which could reasonably be expected {OR would be likely} to-

(i) put the private body at a {OR an unfair} disadvantage in contractual other negotiations; or

(ii) {unfairly} prejudice the body in commercial competition; or

Option 2 - combine paragraph (b) and (c):

(b) any other information {having a commercial value} the disclosure of which could reasonably be expected {OR would be likely} to-

(i) put the private body at an {unfair} disadvantage in contractual or other negotiations;

(ii) {unfairly} prejudice the body in commercial competition; or

(iii) otherwise cause unreasonable harm to the commercial {or financial} interests of the body; or

Option 3 - only paragraph (b) and not (c) of Option 1:

(b) financial, commercial, scientific or technical information, other than trade secrets, of {treated consistently as confidential by the private body}, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial or financial interests of the private body;

ALTERNATIVE FOR PAR (d) IN CLAUSE 71A BELOW:

# Omit par. (d) if the words "having a commercial value" are used, since it would be covered by par (b) OR (b) and (c)

Option 1 for (d):

(d) the results of original research {having a commercial value} undertaken by the private body {and not yet published} the disclosure of which could reasonably be expected {OR would be likely} to deprive the body, or official thereof, of the benefit of first publication of those results.

Option 2 for (d):

(d) information about research {having a commercial value} being or to be carried out by or on behalf of the private body, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose-

(i) the private body;

(ii) a person that is or will be carrying out the research on behalf of the body; or

(iii) the subject-matter of the research,

to {serious} disadvantage.

Option 3 for (d):

(d) information about the purpose or results of research, including research that is yet to be started or finished, {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on the private body or a person that is or will be carrying out the research.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried by or on behalf of} the private body and its disclosure would reveal a {serious} public safety or environmental risk.

(3) For the purposes of subsection (2), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

Records about research

# If cl 71A is included omit 67(1)(d) and 71(1)(d)

71A. The head of a private body may {OR must}refuse a request for access to a record of the body if the record contains

Option 1

the results of original research undertaken by the private body or a third party {and not yet published} the disclosure of which could reasonably be expected {OR would be likely} to deprive that the private body or third party or a person that undertook the research of the benefit of first publication of those results.

Option 2

information about research being or to be carried out by or on behalf of the private body or a third party, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose-

(a) the private body or third party;

(b) a person that is or will be carrying out the research on behalf of the private body or third party; or

(c) the subject-matter of the research,

to {serious} disadvantage.

Option 3:

information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on the private body or a third party or a person that is or will be carrying out the research.

Mandatory disclosure {in public interest}

Option 1:

72. Despite any other provision of this Part, the head of a private body must grant a request for access to a record of the body contemplated in section 65{privacy}, 67{third party's commercial information}, 69{safety} or 71{body's commercial information}-

(a) if the disclosure of the record would reveal evidence of-

(i) a substantial {OR serious} contravention of, or failure to comply with, the law; or

(ii) imminent {and serious} public safety or environmental risk; and

Option 1 for (b):

(b) the right sought to be exercised or protected clearly outweighs the harm {OR need for non-disclosure} contemplated in the provision in question.

Option 1 for (b):

(b) the public interest in the disclosure of the record clearly outweighs the need for non-disclosure {OR harm} contemplated in the provision in question.

Option 2:

Despite any other provision of this Part, the head of a private body must grant a request for access to a record contemplated in section 65{privacy}, 67{third party's commercial information}, 69{safety} or 71{body's commercial information}-

(a) if the disclosure of the record would reveal evidence of -

(i) a serious contravention of, or failure to comply with, the law;

{(ii) a serious miscarriage of justice;} or

(iii) a imminent and serious public safety or environmental risk; and

(b) the probable adverse effects of the non-disclosure of such record will clearly outweigh the possible adverse effects disclosure will have for any person whose interest is protected by the provisions of {the above-mentioned sections}.

Adverse effects

Option 1 (DP's proposal):

72A.(1) The head of a private body must, in all requests for access to a record not covered by the provisions of sections 65 to 71, have regard to the possible adverse effects that the granting of access may have on the right of any other person and access shall be given only if the adverse effects non-disclosure may have for the requester outweighs the adverse effects disclosure may have for that other person.

(2) In weighing up the adverse effects disclosure and non-disclosure of a record may have, the nature of the relevant rights, the importance of the record for the exercise or protection of the relevant rights and the nature, extent and permanence or otherwise of the adverse effects, must be taken into account.

Option 2:

# Omit section 72A