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OFFICE OF THE CHIEF STATE LAW ADVISER
Private Bag x 9069, CAPE TOWN, 8000.12^th Floor, Atterbury House, 9 Riebeeck Street, CAPE TOWN 
Tel. No. (021)441-4900  Fax (021)421-7923

Ref	:  B6 - 2010
Enq	: X Mdludlu/ Carin Booyse 
Tel	:  (021) 441-4901
Fax	:  (021) 421 7923
website	:  http:/www.doj.gov.za
Date   	:  27 January 2011

COMMENT ON THE REFERENCE TO A THIRD PARTY AS MENTIONED IN THE PROMOTION OF ACCESS TO INFORMATION ACT
We were asked to comment on the reference to a third party as mentioned in the Promotion of Access to Information Act, 2000 (Act No 2 of 2000) (hereinafter referred to as “PAIA”) more specifically how PAIA will relate to the Protection of Information Bill 

.	 The provisions under part 4 in PAIA – Appeals against Decisions provide for:
•	The right of internal appeal to the relevant authority (section 74);
•	Manner of internal appeal and appeal fees ( section 75);
•	Notice to and representation by other interested persons ( section 76); and
•	Decision on internal appeal and notice thereof (section 77).
If classified information may be obtained under the provisions of PAIA, who for the purposes of the Protection of Information Bill will constitute the third party and more specifically what must be contained in the notice to the third party since the Protection of Information Bill relates to classified information.  

Part 4 of PAIA grants a requester a right of internal appeal to the relevant authority.

Relevant authority is defined to mean:

“relevant authority”, in relation to—
	(a)	a public body referred to in paragraph (a) of the definition of “public body” in the national sphere of government, means—
	(i)	in the case of the Office of the Presidency, the person designated in writing by the President; or
	(ii)	in any other case, the Minister responsible for that public body or the person designated in writing by that Minister;
	(b)	a public body referred to in paragraph (a) of the definition of “public body” in the provincial sphere of government, means—
	(i)	in the case of the Office of a Premier, the person designated in writing by the Premier; or
	(ii)	in any other case, the member of the Executive Council responsible for that public body or the person designated in writing by that member; or
	(c)	a municipality, means—
	(i)	the mayor;
	(ii)	the speaker; or
	(iii)	any other person,
		designated in writing by the Municipal Council of that municipality.”

Section 74(2) of PAIA provides that “ a third party may lodge an internal appeal against a decision of the information officer of a public body referred to in paragraph (a) of the definition of “public body” in section 1 to grant a request for access.

Public body is defined under section of PAIA to mean:
(a)	any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or
	(b)	any other functionary or institution when—
	(i)	exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or
	(ii)	exercising a public power or performing a public function in terms of any legislation;

A third party is defined under PAIA as follows:
“third party”, in relation to a request for access to—
	(a)	a record of a public body, means any person (including, but not limited to, the government of a foreign state, an international organisation or an organ of that government or organisation) other than—
	(i)	the requester concerned; and
	(ii)	a public body; or
	(b)	a record of a private body, means any person (including, but not limited to, a public body) other than the requester,
but, for the purposes of sections 34 and 63, the reference to “person” in paragraphs (a) and (b) must be construed as a reference to “natural person”;

Section 75 of PAIA provides that an internal appeal must be lodged within the prescribed manner and within a certain period of time and if notice to a third party is required by section 49(1) (b) ….

Section 49(1)(b) of PAIA provides that:
(1)  The information officer of a public body must, as soon as reasonably possible, but in any event within 30 days after every third party is informed as required by section 47—
	(a)	decide, after giving due regard to any representations made by a third party in terms of section 48, whether to grant the request for access;
	(b)	notify the third party so informed and a third party not informed in terms of section 47 (1), but that made representations in terms of section 48 or is located before the decision is taken, of the decision;

……….
(c) must identify the subject of the internal appeal and state the reasons for the internal appeal and may include any other relevant information known to the appellant”.

Section 76 of PAIA provides that:

“	(1) If a relevant authority is considering an internal appeal against the refusal of a request for access to a record contemplated in section 34 (1), 35 (1), 36 (1), 37 (1) or 43 (1), the authority must inform the third party to whom or which the record relates of the internal appeal, unless all necessary steps to locate the third party have been unsuccessful.
(2)  The relevant authority must inform a third party in terms of subsection (1)—
	(a)	as soon as reasonably possible, but in any event within 30 days after the receipt of the internal appeal; and
	(b)	by the fastest means reasonably possible.
(3)  When informing a third party in terms of subsection (1), the relevant authority must—
	(a)	state that he or she is considering an internal appeal against the refusal of a request for access to a record contemplated in section 34 (1), 35 (1), 36 (1), 37 (1) or 43 (1), as the case may be, and describe the content of the record and the provisions of section 34 (1), 35 (1), 36 (1), 37 (1) or 43 (1), as the case may be;
	(b)	furnish the name of the appellant;
	(c)	in any case where that authority believes that the provisions of section 46 might apply, describe those provisions, specify which of the circumstances referred to in section 46 (a) in the opinion of the head might apply and state the reasons why he or she is of the opinion that section 46 might apply; and
	(d)	state that the third party may, within 21 days after the third party is informed, make written representations to that authority why the request for access should not be granted.
(4)  If a third party is informed orally of an internal appeal in terms of subsection (1), the relevant authority must, on request, give a written notice stating the matters referred to in subsection (3) to the third party.
(5)  A third party that is informed of an internal appeal in terms of subsection (1), may within 21 days after the third party has been informed, make written representations to the relevant authority why the request for access should not be granted.
(6)  A third party that obtains knowledge about an internal appeal other than in terms of subsection (1) may—
	(a)	make written or oral representations to the relevant authority why the request for access should be refused; or
	(b)	give written consent for the disclosure of the record to the requester concerned.
(7)  If the relevant authority is considering an internal appeal against the granting of a request for access, the authority must give notice of the internal appeal to the requester concerned.
(8)  The relevant authority must—
	(a)	notify the requester concerned in terms of subsection (7) as soon as reasonably possible, but in any event within 30 days after the receipt of the internal appeal; and
	(b)	state in that notice that the third party may within 21 days after notice is given, make written representations to that authority why that request should be granted.
(9)  A requester to whom or which notice is given in terms of subsection (7) may within 21 days after that notice is given, make written representations to the relevant authority why the request for access should be granted.
The notice to a third party contemplated under PAIA must contain the following information:
•	The identification of the subject of the internal appeal;
•	The reasons for the internal appeal;
•	Any other relevant information known to the appellant;
•	State that the relevant authority is considering an internal appeal;
•	Description of the contents of the record;
•	The name of the appellant;
•	In the event where the relevant authority believes that the provisions of section 46 of PAIA may apply, specify which of the circumstances referred to in section 46(a) in the opinion of the Head may apply;
•	State the reasons why the relevant authority is of the opinion that section 46 may apply; and
•	Time frames within which the third party may make written representations.

2.	Discussion of provisions in PAIA

2.1	The Constitutional Court has in the First Certification judgment indicated that the entrenchment of an access to information right in the Constitution was “directed at promoting good government…. Section 32, and in turn, the PAIA are therefore part of the broad constitutional project of establishing a democratic system of government”. This in turn is interpreted as promoting access to information and the Act must therefore be interpreted to promote that objective. However even under PAIA there are certain limitations and various exemptions and grounds for refusal to disclose information. The writers pointed out that withholding information is only permitted on the grounds explicitly set out in the Act and access should only be denied where it is clearly justified.

Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution  of the Republic of South Africa , 1996 (4) SA 744 (cc)

Currie and De Waal: The Bill of Rights Handbook ed 5  p 691-692

Ibid footnote 4 page 702

2.2. Under section 76 of PAIA there are certain internal limitations in the provisions of the Act that require an information officer of a public body to refuse access to a record of the body if its disclosure would involve:
•	The unreasonable disclosure of personal information about a third party, including a deceased individual.(section 34(1));
•	Access to a record of the South African Revenue Services if the record contains information that was obtained or is held by that Service for the purposes 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) ( section 35(1));
•	Disclosure of trade secrets of a third party; financial , commercial, scientific or technical information other than trade secrets of the third party, if such disclosure would be likely to cause harm to the commercial or financial interest of a third party; or where information is supplied in confidence by a third party and the disclosure could reasonably be expected to put that third party at a disadvantage in contractual or other negotiations, or be prejudicial to that third party in commercial competition (section 36(1));
•	A breach of a duty of confidence owed to a third party in terms of an agreement; or may refuse information supplied in confidence by a third party that could lead to or reasonably be expected to prejudice the future supply of similar information or information from the same source or where it is in the public interest that similar information or information from the same source should continue to be supplied then the information officer may also refuse access. (Section 37(1));
•	A record of the public body if the record contains information about research being (done) or to be carried out by or on behalf of a third party and the disclosure of the information would likely expose a serious disadvantage to the third party, a person that is or will be carrying out the research on behalf of a third party; or the subject matter of the research (Section 43 (1)).

2.3 	Chaskalson et al indicated that “…privilege has long since been part of South African Law. It is likely to remain so although in a limited form. In the United States case US v NIXON a qualified right of confidentiality for communications among high government officials was confirmed. The writers mention a number of instances where they are of the view that “in appropriate and genuine circumstances a law that restricts access to information (for example national security, privacy, trade secrets or confidential business information and legal professional privilege) would be justifiable..

Constitutional Law of South Africa, Vol  1 rev 5 , p 24-9 to 24-10

Ibid footnote 6 pages 24-10 to 24-11.

2.4.	As pointed out by Currie and Klaaren, the internal appeals provisions of PAIA provide a requester with a relatively rapid and cheap procedure to reconsider access decisions. Therefore only information held by “a department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government form the subject matter for a request to access. As pointed out by the writers the internal appeal lies against a decision by an information officer to a higher authority within or responsible for the same public body.  As an example the writers mention that in the case of a national department, the information officer of that department will be the Director-General of that department.  For the purpose of filing an internal appeal with the relevant authority an appeal will be filed against a decision by the Director- General with the Minister responsible for the department concerned. 

Currie and Klaaren AIA : A Commentary page 194

Ibid footnote 8  page 195

2.5.	The writers also pointed out that an internal appeal may only be made with regard to the following types of decisions by an information officer, namely:
•	“Refusals of requests for access;
•	Refusals to provide access in the requested form;
•	Decisions regarding the levying of fees in terms of section 22; and
•	Decisions to extend the period within which a decision on access must be made in terms of section 26(1).
And then importantly the writers note that a “third party may lodge an internal appeal only against decisions to grant access.”

Our underlining ibid footnote 8 page 196.

 2.6.	As pointed out by the writers, “generally third party information is information the disclosure of which would affect a person other than the body from which it is requested. That person is a third party since they were not involved directly in the request for information, either as the applicant or the person who must respond to the request.” The writers indicated that generally the basic idea is that under sections 47-49 of PAIA an information officer must, when deciding a request implicating any of the third party grounds for refusal (those listed and mentioned above under sections 34(1), 35(1), 36(1), 37(1) and 43(1) of PAIA) take “all reasonable steps to inform the third party of a request as well as the consideration being given to the request, the name of the requester and the potential application of the public interest override. Even though the third party grounds require mandatory refusal of requests, the public interest override may authorise disclosure of the information or the third party may waive the protection.” 
2.7.	PAIA defines a third party in the instance where a public body received a request as “any person (including, but not limited to, the government of a foreign state, an international organisation or an organ of that government or organisation). 
2.8	 As pointed out by the writers PAIA provides the third party with the rights to make representations to the information officer regarding why the information should be refused or permission to authorise the information officer to disclose the information. Therefore in the case where a third party files an internal appeal against the granting access to information that appeal will suspend the application for access pending the outcome of the internal appeal.

2.9.	It appears from the aforesaid that under PAIA notice must be given to a third party when a request is received that deals with any of the so-called “third party grounds for refusal” (those listed and mentioned above under sections 34(1), 35(1), 36(1), 37(1) and 43(1) of PAIA). The information officer must take all reasonable steps to locate the third party in that event. 

3.	Protection of Information Bill and third party:

3.1.	The objects of the Protection of Information Bill (hereinafter referred to as PIB) are set out in clause 2 to the Bill and provide inter alia that the Act must:
•	Regulate the manner in which state information may be protected;
•	Promote transparency and accountability in governance while recognising that State information may be protected from disclosure in order to safe guard the national security of the Republic;
•	Provide for the classification and declassification of information; 
•	To harmonise the implementation of the Act with PAIA and the National Archives and Records Services of South Africa Act, 1996 ( Act No 43 of 1996).
3.2.	The application of PIB is regulated by clause 3 which clause also provide for exemptions under certain conditions.
3.3. 	In our opinion dated the 20 January 2011, we indicated that currently under the Minimum Information Security Standards (MISS) classification is done by the head of a department of State, or the person authorised to act on his or her behalf. We also mentioned that function of classification rests with the author or head of the department of State or his or her delegate.

3.4.	Regarding the question who declassifies information we expressed the view that “the decision who declassifies information in a particular organ of state is a decision that should be left to the head of an organ of state. To ensure the decision on who declassifies is exercised properly the Bill may require each head of an organ of state to establish a written policy for his or her department (organ of state) depending on the circumstances of that department and the security clearance required”.

3.5. 	Furthermore as we indicated in our opinion where access to a document is made under the provisions of PAIA the only grounds for refusal of access to a record of a public body are those mentioned in PAIA. Sections 34 to 45 of PAIA provide for mandatory and discretionary grounds for refusal of access to a record of a public body. The grounds for refusal as mentioned are subject to a limited public interest override under section 46 namely information that discloses evidence of a breach of law or a serious risk to public safety or the environment.

3.6.	Clause 27(2) of PIB however provides that “unless ordered by a court, no classified information may be made available to the public unless the information has been declassified”. The head of an organ of state in PIB is given the power to determine within the parameters of the Bill the classification, the review in status and the declassification of state information. Where a head of an organ state is uncertain whether information must be classified the Bill provides that the head may approach the Minister of that organ of state for guidance on the matter.

3.7.	If the functions of a head of an organ of state as provided for in PIB are read in conjunction with what the Supreme Court of Appeal remarked in its analysis of what is required to prove that secrecy is justified under PAIA, then it is evident that a court will in evaluating whether classification or declassification was justified carefully consider the grounds upon which “ secrecy is claimed, particularly the facts that purport to found a claim of secrecy will generally be within the peculiar knowledge of the public body concerned if the rights of the requester are not to be frustrated. The SCA concluded that it is incumbent upon the public body to lay a proper foundation for refusal to grant access to information..

President of the Republic of South Africa v M&G Media Ltd  case no 570/2010

Ibid footnote 11 paragraphs 31 and 53

4.	Conclusion
4.1		We considered the relevant sections of PAIA, namely sections 74 to 77 and noted that a third party is notified under circumstances where PAIA provides for mandatory protection of information. The information relates to information specific to a third party, namely records that relate to private information about a person, revenue records, third party commercial information, third party information supplied in confidence and research information of a third party. 

4.2.	If any of the information relates to records that could reasonably be expected to cause prejudice to the defence, security and international relations or reveal such information, then section 41 of PAIA makes it clear that an information officer may refuse such information.

4.3.	PAIA also provides for a method of providing information through severance under section 28 of PAIA. Currie and De Waal mention that “ in accordance with the principle that limitations of the right to information should be reasonable and proportional to the aims pursued by the limitation, the Act requires holding bodies to sever ( i.e. delete) from a record any information that is subject to refusal and to disclose the remainder of the information. The duty applies to both private and public bodies. It is not competent for bodies to refuse disclosure of a record simply because it contains information covered by one or more grounds for refusal. Bodies are required to determine whether the protected information can be reasonably severed from the remainder of the record, and if so, to disclose the remainder.

Currie and De Waal AIA : Commentary 20003 page 90

4.4. 	Similarly it appears possible that the method of severance may be employed if the provisions of PAIA are considered.

We shall be pleased to further expand on any issue raised by the Committee if the Committee so wishes.

CHIEF STATE LAW ADVISER