GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

OPEN DEMOCRACY BILL [B 67-98]:

DRAFT REVISED CHAPTER 2

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

# Proposed deletions are in square brackets

# Proposed insertions and alternative wording are underlined or in brackets but not bold

# Notes are inserted in bold and italic next to #

# Certain cross-references must still be corrected

Mandatory and discretionary grounds for refusal

28.(1) The information officer of a governmental body-

(a) must refuse a request for access to a record contemplated in section 29(1) or 31(1), unless the provisions of section 44(1) apply;

(b) may refuse a request for access to a record contemplated in-

(i) section 30(2), 33(a), 34(1)(c)(ii), (iii) or (vi) or (d) or 35, unless the provisions of section 44(1) apply;

(ii) section 32(1) or (3), 33(b), 34(1)(a), (b) or (c)(i), (iv) or (v), 36, 37(1), 38(1) or (2) or 39(1), unless the provisions of section 44(2) apply;

(iii) section 40, 41(1), 42(1) or 43.

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

(a) limited in its application in any way by any other provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused; and

(b) not applying to a particular record by reason that another provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, also applies to that record.

Mandatory protection of privacy
Option 1 for subsection (1):

29. (1) Subject to subsection (2), the information officer of a governmental 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 or other person contemplated in section 13(5). . # Omit "than the requester concerned or" if subsection (4) or Option 2 of s9(1) is included

Option 2 for subsection (1):

(1) Subject to subsections (2) and (4), the information officer of a governmental 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. # Retain existing definition of "personal information" in s1, ie information about an identifiable person OR include following detailed definition in s1:

"personal information" means information about an identifiable individual, including, but not limited to-

information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, [disability,] well-being, religion, conscience, belief, culture, language and birth of the individual;

information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;

any identifying number, symbol or other particular assigned to the individual;

the address, fingerprints or blood type of the individual;

the personal opinions or views of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;

correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature and replies to such correspondence that would reveal the contents of the original correspondence;

the views or opinions of another individual about the individual,

the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and

the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,

but excludes information about an individual who has been dead for more than 20 years;

(2) [Subsection (1) does not apply to a] A record may not be refused in terms of subsection (1) insofar as it consists of information-

Option 1 for paragraph (a):

(a) already publically available;

Option 2 for paragraph (a) or include as separate paragraph:

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

(b) about a person that has, in accordance with section 46(b), consented to its disclosure to the requester concerned; # Introductory wording implies that, despite consent the record may still be refused i t o another exemption. If that is not the intention, it could be included as a separate subclause that states that the information officer must disclose it if person consents.

Option 1 for paragraph (c):

(c) about an individual's physical or mental health, or well-being, who is-

(i) under the age of 18 years;

(ii) under the care of the requester; and

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

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

Option 2 for paragraph (c):

(c) 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; # Use "process" similar to one in subsection (5) to (7) below?

(d) about an individual who is deceased and the requester is the individual's next of kin; or

(e) about an individual who is or was an [official] employee of a governmental 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] employee of that governmental body;

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

(iii) the classification, salary scale or remuneration and responsibilities of the position held or services performed by the individual; # Exclude public enterprises, but is sensitive information not covered by s38(2)?

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

# Move definition in subsection (3) below to s1 (definition section).

(3) In subsection (2)(d) "individual's next of kin" means-

Option 1 for paragraph (a):

(a) an individual to whom the individual was married, with whom the individual lived as if they were married [or with whom the individual cohabited], immediately before the individual's death;

Option 2 for paragraph (a):

(a) an individual to whom the individual was married, with whom the individual lived as if they were married;

(b) a parent, child, brother or sister of the individual; or

(c) if-

(i) there is no next of kin referred to in paragraphs (a) and (b); or

(ii) the requester concerned took all reasonable steps to locate such next of kin, but was unsuccessful,

an individual who is related to the individual in the second degree of affinity or consanguinity.

(4) Subject to subsections (5) to (7), the provisions of subsections (1) to (3) 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.

# Alternative for s30 (Health of requester) below: Provisions similar to subsection (5) to (7) below in Australia (Fed): s41(3) to (8); Ireland: s28(3) & (4); Queensland: s44(3) & (4) & Western Australia: s28

(5) The information officer of a governmental body body may refuse a request for access to a record of the body about the requester's physical or mental health, or well-being, and which was provided by a health practitioner in his or her capacity as such if-

(a) the information officer has disclosed the record to, and [at the cost of the governmental body], consulted with, a health practitioner who-

(i) carries on an occupation of the same kind as the health practitioner who provided the record; and

(ii) has been nominated by the requester or his or her authorised representative; and

(b) the health practitioner so consulted is of the opinion that the disclosure of the record to that requester would be likely [OR could reasonably be expected] to cause serious harm to his or her physical or mental health, or well-being.

(6) If the requester is-

(a) under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (5)(a)(ii); or

(b) incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination.

(7) In this section "health practitioner" means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals.

# See other option for s30 in s29(5) to (7):

Health of requester

30. (1) In this section "health practitioner" means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals.

(2) The information officer of a governmental body may refuse a request for access to a record of the body about the requester's physical or mental health, or well-being, which was provided by a health practitioner in his or her capacity as such if-

[(a) the disclosure of the record to that requester would be likely to cause serious harm to his or her physical or mental health, or well-being; and]

(b) the information officer has disclosed the record to, and [at the cost of the governmental body] consulted with, a health practitioner who-

(i) carries on an occupation of the same kind as the health practitioner who provided the record; and

(ii) has been nominated by the requester or his or her authorised representative; and

(c) that health practitioner so consulted is of the opinion that [the serious harm contemplated in paragraph (a)] the disclosure of the record to that requester would be likely [OR could reasonably be expected] to cause serious harm to his or her physical or mental health, or well-being is likely to result.

(3) If the requester {reconsidering reference to "requester"} is-

(a) under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (2)(b)(ii); or

(b) incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination.

(4) If-

(a) access has been given to a record of a governmental body containing information about the requester's physical or mental health, or well-being, which was provided by, or originated from, a health practitioner;

(b) that access was given without that health practitioner's knowledge; and

(c) that health practitioner can be located by taking all necessary steps,

the information officer concerned must notify that health practitioner that access has been so given.

Mandatory protection of third party commercial information

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

(a) trade secrets of 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 by a third party the disclosure of which would be likely [OR could reasonably be expected] to-

(i) put that third party at a [an unfair] disadvantage in contractual other negotiations; or

(ii) [cause it] [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 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 interests of a third party; or

ALTERNATIVE FOR PARAGRAPH (D) INCLUDED AS S38A BELOW:

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

Option 1 for (d)/(c):

(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] to deprive that body or employee of the benefit of first publication of those results.

Option 2 for (d)/(c):

(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] 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)/(c):

(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) [Subsection (1) does not apply to a] A record may not be refused in terms of subsection (1) insofar as it consists of information-

[(a) already publicly available;]

(b) about a third party who has, in accordance with section 46(b), consented to its disclosure to the requester concerned;

(c) [about the safety of goods or services supplied by a third party, and the disclosure of the information would be likely to result in better informed choices by persons seeking to acquire those goods or services; or] 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.

[(d) supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a 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.

[(3) If a request for access to a record contemplated in subsection (2)(d) is granted, the information officer must at the same time as access to the record is given, direct the requester to the source of the original testing or other investigation to enable the requester to obtain an explanation of the methods used in conducting the test or other investigation.] # But see Canada: 20(3)

(4) Subsection (1) does 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 information contemplated in subsection (1) that relates to that person. # But unnecessary in view of par (a) of def. of "third party" in s1

Records supplied in confidence
Option 1 for subsections (1) and (2):

32. (1) Subject to subsection (2), the information officer of a governmental body may refuse a request for access to a record of that body containing information supplied in confidence to any governmental 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 governmental 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) Subsection (1) does not apply to a record insofar as it consists of information-

(a) [if it has been] supplied to the governmental body concerned for the purpose of-

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

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

(b) [insofar as it consists of information] independently obtained by the body or already publicly available; or

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

Option 2 for subsections (1) and (2) - further research on 32(1)(a) still required:

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

(a) the disclosure of the record would found [OR constitute] an action for breach of confidence owed to a person other than-

(i) the state;

(ii) a governmental body; or

(iii) an employee of a governmental body; or

(b) the record consists of information that was communicated in confidence-

(i) the disclosure of which would be likely [OR could resaonably be expected] 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.

[(3) The information officer of a governmental body may refuse a request for access to a record of the body if the record-

(a) is held by a governmental body for the purpose of enforcing legislation imposing a tax, duty or levy; and

(b) was supplied in confidence to a governmental body by a third party or another governmental body.]
Option 1 (in s32 or other existing section or new section):

The information officer of a governmental body must refuse a request for access to a record of the body if it contains information which was obtained or is held by the body for the purpose of enforcing legislation imposing taxes, duties, levies and additional tax, including penalties and interest in connection with such moneys.

Option 2:

The information officer of a governmental body must refuse a request for access to a record of the body if it contains information which was obtained or is held by the body for the purpose of enforcing legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997).

Note: "'revenue' is defined in the South African Revenue Service Act, 1997, as "income derived from taxes, duties, levies, fees, charges, additional tax and any other moneys imposed in terms of legislation, including penalties and interest in connection with such moneys".
Option 3:

The information officer of a governmental 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 4:

The information officer of a governmental body must refuse a request for access to a record of the body if it reveals information obtained or held for the purpose of enforcing legislation imposing taxes, levies or duties as contemplated in section 77(1) of the Constitution.

Safety of individuals and security of structures and systems
Option 1:

33. The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected]-

(a) to endanger the life or physical safety of an [identifiable] individual; or

(b) seriously to endanger the maintenance or enforcement of methods for the security of a particular building, installation or information storage, computer or communication system.

Option 2:

33. The information officer of a governmental 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-

(a) endanger the life or physical safety of an [identifiable] individual; or

(b) prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system.

Option 3:

The information officer of a governmental body-

(a) must refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] 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 would be likely [OR could reasonably be expected] to prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system.

Law enforcement

34. (1) The information officer of a governmental 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 investigation of [offences] 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-

(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 [any offence or possible offence] 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 [respect of a law enforcement matter] 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 or other proceedings to enforce the law[, or to endanger the life or physical safety of that witness or person]; # Omitted because slready in s33

(iv) to result in the commission of an offence;

(v) subject to subsection (2), to facilitate escape from lawful detention; or

(vi) to deprive a person of a right to a fair trial or an impartial adjudication; or

(d) the record contains arrangements for the protection of an individual in accordance with a witness protection scheme.

(2) A record may not be refused in terms of subsection (1)(c)(v) [does not apply to a record] insofar as it consists of information about the general conditions of detention of persons in custody.

(3)(a) If a request for access to a record of a governmental 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 19(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 the findings and the reasons for the refusal, as required by section 19(3)(a) and (b), 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 concerned may lodge an internal appeal with the [head of the governmental body concerned] relevant authority against the refusal as required by section 19(3)(c).

Mandatory protection of records privileged from production in legal proceedings

35. The information officer of a governmental body [may] must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings [unless-

(a) the person entitled to the privilege has waived the privilege; or

(b) the legal proceedings to which the record relates have been finally determined].

Republic's defence and security[, including intelligence matters]
# Second option providing for classification system still being drafted.

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

(a) [frustrating] jeopardising the effectiveness of any measure for the prevention, detection or suppression 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 governmental 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 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 governmental 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 19(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;

(iv) state that the requester may lodge an internal appeal with the [head of the governmental body concerned] relevant authority against the refusal as required by section 19(3)(c).

International relations

37. (1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be [OR could reasonably] be-

(a) in contravention of an obligation imposed on the Republic by international law; or

(b) subject to subsection (2), likely [OR expected] to cause [substantial] harm 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.

(2) A record may not be refused in terms of subsection (1)(b) [does not apply to a record] if it came into existence more than 20 years before the request.

Economic interests of Republic and commercial activities of governmental bodies

Option 1 for subsection (1):

38.(1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] substantially to 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 governmental 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) and new subsection (2A):

(Aa) information the disclosure of which would be likely [OR could reasonably be expected] substantially to jeopardise the 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 could reasonably be expected [OR would be likely] to result in an undue benefit to any person; # As to "substantially" above see Canada: s18(d) - "materially"; New Zealand: s6(d) {relates to premature disclosure of economic financial policy} - "seriously"

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

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

(b) financial, commercial, scientific or technical information, other than trade secrets, [held by a governmental body for the purpose of conducting a commercial activity which it is authorised by law to conduct and which it does conduct or is about to conduct,] 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 governmental body; # Omit "the state or" in view of subsection (1)(a) above?

(c) information, including, but not limited to information about the transfer of any interest in or right to a share in the capital of a governmental body to any person which is not a governmental body or other information about the privatisation of a governmental body, the disclosure of which would be likely [OR could reasonably be expected] to put a governmental body at a [an unfair] disadvantage in contractual or other negotiations or [cause it] unfairly prejudice a governmental body in commercial competition;

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

(b) any other information [having a commercial value], including, but not limited to information about the transfer of any interest in or right to a share in the capital of a governmental body to any person which is not a governmental body or other information about the privatisation of a governmental body, the disclosure of which could reasonably be expected [OR would be likely] to-

(i) put a governmental body at an [unfair] disadvantage in contractual or other negotiations;

(ii) [unfairly] prejudice a governmental body in commercial competition; or

(iii) otherwise cause unreasonable harm to the commercial interests of a governmental body; or

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

(b) financial, commercial, scientific or technical information, other than trade secrets, [held by a governmental body for the purpose of conducting a commercial activity which it is authorised by law to conduct and which it does conduct or is about to conduct,] the disclosure of which could reasonably be expected [OR would be likely] to cause harm to the commercial interests of [the state or] a governmental body; # Omit "the state or" in view of subsection (1)(a) above?

ALTERNATIVE FOR PARAGRAPH (D) INCLUDED AS S38A BELOW:

Option 1 for paragraph (d):

(d) the results of original research [having a commercial value] undertaken by an [official] employee of a governmental body the disclosure of which could reasonably be expected [OR would be likely to] to deprive that governmental body or [official] employee of the benefit of first publication of those results; or

Option 2 for (d):

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

(i) a governmental body;

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

(iii) the subject-matter of the research,

to [serious] disadvantage; or

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 a governmental 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 governmental 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. # Could not find similar provisions in available legislation of other countries.

(2A) The information referred to in subsection (1)(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.

(3) A record may not be reused in terms of [Ssubsection (2) [does not apply to a record] insofar as it consists of information-

(a) [already publicly available;]

(b) about or owned by a governmental body which has consented in writing [OR the prescribed manner] to its disclosure to the requester concerned;

(c) about [the safety of goods or services supplied by a governmental body and the disclosure of the information would be likely to result in better informed choices by persons seeking to acquire those goods or services; or] the results of any [product or environmental] testing or other investigation supplied by [AND/OR carried out by or on behalf of] a governmental body and its disclosure would reveal a [serious] public safety or environmental risk.

[(d) supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a 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)[(d)](c) is granted and the testing or other investigation was carried out by or on behalf of the governmental body from which the record is requested, the information officer must at the same time as access to the record is given, [direct] provide the requester [to the source of original test or other investigation to enable the requester to obtain an] with a written explanation of the methods used in conducting the testing or other investigation.

Research

38A. The information officer of a governmental body may refuse a request for access to a record of the body if the record contains

Option 1

the results of original research undertaken by an employee of a governmental body or a third party the disclosure of which could reasonably be expected [OR would be likely to] to deprive that governmental body or employee 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 governmental body, the disclosure of which would be likely [would be likely to] unreasonably to expose-

(a) a governmental body or third party;

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

Operations of governmental bodies

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

(a) if the record contains an opinion, advice or recommendation obtained or prepared, or 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 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 governmental body or between governmental 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 could reasonably be] substantially to frustrate the success of that policy;

(b) if 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 governmental body;

(c) if the record contains evaluative material, 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

(d) if the record contains a working draft or note of an [official] employee of a governmental body.

(2) In subsection (1)(c) "evaluative material" means an evaluation or opinion prepared-

(a) for the purpose of determining the suitability, eligibility or qualifications of the person to whom or which the evaluation or opinion relates-

(i) for employment or for appointment to office;

(ii) for promotion in employment or office or for continuance in employment or office;

(iii) for removal from employment or office; or

(iv) for the awarding of a scholarship, award, bursary, honour or similar benefit; or

(b) for the purpose of determining whether any scholarship, award, bursary, honour or similar benefit should be continued, modified, cancelled or renewed.

(3) A record may not be refused in terms of subsection (1) [does not apply to a record] 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) [does not apply to a record]-

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

(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 governmental 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[, or report on,] any [product or environmental] testing or other investigation [regarding] supplied by [AND/OR carried out by or on behalf of] a governmental body and the disclosure of the record would reveal a [serious] public safety or environmental risk.

(4A) 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.

(5) 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 governmental body from which the record is requested, the information officer must at the same time as access to the record is given, [direct] provide the requester [to the source of the original test or other investigation to enable the requester to obtain an] with a written explanation of the methods used in conducting the testing or other investigation.

Frivolous or vexatious requests or diversion of resources

40. The information officer of a governmental 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 governmental body.

# See s18A to replace s41 below (attached as Annex A)

[Records that cannot be found or do not exist

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

(a) a thorough search to find the record has been conducted, but it cannot be found; or

(b) there are reasonable grounds for believing that the record does not exist.

(2) If an information officer refuses a request for access to a record in terms of subsection (1), he or she must, in the notice referred to in section 19(1)(b), give a full account of all steps taken to find the record or to determine whether the record exists, as the case may be, including all communications with every person who conducted the search on behalf of the information officer.]

Published records and records to be published

# Australia (Fed): s21; Ireland: s11; Queensland: s 31; Western Australia: s25.: Subsection (1)(a), (d) & (e) below not drafted as an "exemption", but referred to as "deferral" of access- see s18B as alternative for subsection (1)(a), (d) & (e) & related subsections - attached as Annex B. Draft UK Bill: cl 17 - an exemption as below

42. (1) Subject to this section, the information officer of a governmental body may refuse a request for access to a record of the body if-

(a) the record is to be published within [60] 90 days after the receipt or transfer of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it;

[(b) the record can be copied at a library [to] which [the public has access] is reasonably accessible to the requester concerned at a fee no greater than would be charged for access in terms of this Act;] # Omit par (b) in view of "right to know" clause?

[(c) the record is available for purchase by the public in accordance with arrangements made by or on behalf of a governmental body at a fee no greater than would be charged for access in terms of this Act;] # Omit par (b) in view of "right to know" clause?

(d) the publication of the record is required by law, within 90 days after the receipt or transfer of the request; or

(e) the record has been prepared for submission to Parliament [OR any legislature] unless a period of 90 days after such preparation has expired and the record has not been so submitted.

(2) The information officer concerned must, in the notice referred to in section 19(1)(b), in the case of a refusal of a request for access in terms of-

(a) subsection (1)(a) or (d), state the date on which the record concerned is to be published;

[(b) subsection (1)(b) and if such information is ordinarily available to the governmental body concerned, identify the title and publisher of the record[and the library concerned nearest to the requester concerned;

(c) subsection (1)(c) and if such information is ordinarily available to the governmental body concerned, identify the title and publisher of the record and state where it can be purchased; or ]

(d) subsection (1)(e), state the date on which the record is to be submitted to Parliament [OR the legislature concerned].

(3) If an information officer is considering to refuse a request for access to a record in terms of subsection (1)(a), (d) or (e), he or she must notify the requester concerned-

(a) of such consideration; and

(b) that the requester may, within 30 days after that notice is given, make representations to the information officer why the record is required before publication or submission to Parliament [OR the legislature concerned].

Option 1 for subsection (4):

(4) If notice is given to a requester in terms of subsection (3), the information officer must, after due consideration of any representations made in response to the notice, grant the request, unless there are reasonable grounds for believing that the requester will suffer no substantial prejudice if access to the record is deferred until the record is published or submitted to Parliament [OR the legislature concerned].

Option 2 for subsection (4):

(4) If a requester makes representations pursuant to a notice given in terms of subsection (3)(b), the information officer must, after due consideration of that representations, grant the request for access only if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the record is deferred until the record is published or submitted to Parliament [OR the legislature concerned]

(5) If the record in respect of which a request for access has been refused in terms of subsection (1)(a) is not published within [60] 90 days after receipt or transfer of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it, the requester must be given access to the record.

[Records already open to public

43. The information officer of a governmental body may refuse a request for access to a record of the body if the record is open to public access in accordance with any other legislation, unless the Human Rights Commission determines that the manner in which access may be obtained and the fee payable for access in terms of the other legislation concerned is more onerous than the request fee and access fee payable in terms of this Act.]

Option 1 for section 44:

Mandatory disclosure in public interest

44. (1) Despite any other provision of this Act, but subject to Chapter 3 of this Part, the information officer of a governmental 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 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] employee of a governmental 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 governmental 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 governmental 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), 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 concerned.

Option 2 for section 44:

Mandatory disclosure

44. Despite any other provision of this Part, the head of a governmental body must grant a request for access to a record of the body contemplated in section 29(1) [privacy] or (5)[health of requester], 31(1)[third party commercial information], 32(1)(b) [certain confidential information], 33(b) [security of structures], 36(1) [defence], 37(1) [international relations], 38(1) or (2) [economic/commercial interests of state/governmental body], 39(1) [operations of governmental bodies], 40(b) [diversion of resources] or 42(1) [records to be published], if-

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

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

(ii) imminent [and/or serious] public safety or environmental risk; and # See definition of "public safety or environmental risk" in clause 1 of the Bill

(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.

# s42: see alternative - s18B - inclusion not as an exemption

ANNEX

Records that cannot be found or do not exist

18A.(1) If-

(a) all reasonable steps have been taken to find a record requested; and

(b) there is reasonable grounds for believing that the record-

(i) is in the governmental body's possession but cannot be found; or

(ii) does not exist,

the information officer of a governmental body must by way of affidavit notify the requester that it is not possible to give access to that record.

(2) The affidavit referred to in subsection (1) must give a full account of all steps taken to find the record in question or to determine whether the record exists, as the case may be, including all communications with every person who conducted the search on behalf of the information officer.

(3) For the purposes of this Act, the affidavit referred to in subsection (1) is to be regarded as a decision to refuse a request for access to the record.

Deferral of access
# See note on s42 exemption: records to be published, etc

18B. (1) If the information officer of a governmental body decides to grant access to a request for access to a record, but that record-

(a) is required by law to be published but is yet to be published; or

(b) has been prepared for submission to Parliament [OR any legislature] or a particular person but is yet to be submitted,

the information officer may defer giving access to the record for a reasonable period.

(2) If access to a record is deferred in terms of subsection (1), the information officer must notify the requester concerned-

(a) that the requester may, within 30 days after that notice is given, make representations to the information officer why the record is required before such publication or submission; and

(b) of the likely period for which access is to be deferred.

(3) If a requester makes representations in terms of subsection (2)(a) , the information officer must, after due consideration of that representations, grant the request for access only if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the record is deferred for the likely period referred to in subsection (2)(b).