OPEN DEMOCRACY BILL

OPEN DEMOCRACY BILL

[B 67-98]

BILL

To give effect to the constitutional right of access to any information

held by the state; to make available to the public information about the

functions of governmental bodies; to provide persons with access to their

personal information held by private bodies; to provide for the correction

of personal information held by governmental or private bodies and to

regulate the use and disclosure of that information; to provide for the

protection of persons disclosing evidence of contraventions of the law,

serious maladministration or corruption in governmental bodies; and to

provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as

follows:-

CONTENTS OF ACT

Section

PART 1

INTRODUCTORY PROVISIONS

1. Interpretation

2. Application of Act

3. Objects of Act

4. Designation of information officers, and delegation of powers by

information officer and head of governmental body

PART 2

GUIDE ON ACT AND MANUALS ABOUT FUNCTIONS OF GOVERNMENTAL BODIES

5. Guide on how to use Act

6. Manuals on functions of, and index of records held by, governmental

bodies

7. Information in telephone directory

8. Announcement of public safety or environmental risk

PART 3

ACCESS TO RECORDS OF GOVERNMENTAL BODIES

CHAPTER 1

RIGHT AND MANNER OF ACCESS

9. Right of access to records of governmental bodies

10. Use of Act for criminal or civil discovery of governmental bodies'

records excluded

11. Right of disclosure of record to which access is given .

12. Access to records in terms of other law -

13. Form of requests

14. Duty to assist requesters

15. Transfer of requests

16. Preservation of records until final decision on request

17. Payment of request fee

18. Payment of deposit

19. Decision on request and notice thereof

20. Urgent requests

21. Extension of period to deal with request

22. Deemed refusal of request

23. Severability

24. Access fees

25. Access and forms of access

26. Language of access

27. Reports to Human Rights Commission

CHAPTER 2

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

28. Mandatory and discretionary grounds for refusal

29. Mandatory protection of privacy

30. Health of requester

31. Mandatory protection of third party commercial information 11

32. Records supplied in confidence

33. Safety of individuals and security of structures and systems

34. Law enforcement

35. Privileged from production in legal proceedings

36. Republic's defence and security, including intelligence matters

37. International relations

38. Economic interests of Republic and commercial activities of

governmental bodies

39. Operations of governmental bodies

40. Frivolous or vexatious requests

41. Records that cannot be found or do not exist

42. Published records and records to be published

43. Records already open to public

44. Mandatory disclosure in public interest

CHAPTER 3

THIRD PARTY INTERVENTION

45. Notice to third parties

46. Representations by third parties

47. Decision on representations for refusal and notice thereof

PART 4

ACCESS TO, CORRECTION OF AND CONTROL OVER PERSONAL INFORMATION HELD BY

PRIVATE AND GOVERNMENTAL BODIES

48. Application of Part

49. Use of Act for criminal or civil discovery of private bodies'

records excluded

50. Access to personal information held by private bodies

51. Correction of personal information held by private bodies

52. Correction of personal information held by governmental bodies

53. Use of personal information by private bodies

54. Use of personal information by governmental bodies

55. Disclosure of personal information by private bodies

56. Disclosure of personal information by governmental bodies

57. Consistent purpose

58. Consent to use or disclose personal information

59. Use and disclosure of personal information held before commencement

60. Register of uses and disclosures not in governmental body's manual

61. Collection of personal information by governmental bodies

62. Retention, accuracy and disposal of personal information by

governmental bodies

PART 5

PROTECTION OF WHISTLE-BLOWERS

63. Exclusion of liability if disclosing contravention of law,

corruption or maladministration

64. Exclusion of liability if disclosing information after publication

65. Protection against reprisals

66. Notice to officials of provisions of Part and other complaint

procedure

PART 6

APPEALS AGAINST DECISIONS

CHAPTER 1

INTERNAL APPEALS

67. Right of internal appeal to head of governmental body

68. Manner of internal appeal, and appeal fees

69. Notice to and representations by other interested parties

70. Decision on internal appeal and notice thereof

71. Urgent internal appeals

CHAPTER 2

APPLICATIONS TO HIGH COURT

72. Non-exclusion of other remedies

73. Manner of applications to High Court

74. Applications regarding decisions of information officers or heads

of governmental bodies

75. Applications regarding contravention of Part 5

76. Jurisdiction of High Court

77. Assistance of Human Rights Commission

78. Production of records of governmental bodies to High Court

79. Burden of proof

80. Decision on application

81. Costs

PART 7

MISCELLANEOUS PROVISIONS

82. Additional functions of Human Rights Commission

83. Report to National Assembly by Human Rights Commission

84. Expenditure of Human Rights Commission in terms of Act

85. Offences

86. Regulations

87. Short title and commencement

PART 1

INTRODUCTORY PROVISIONS

Interpretation

1. (1) In this Act, unless the context otherwise indicates-

(i) "access fee" means a fee prescribed for the purposes of

section 24; (xxvii)

(ii) "application" means an application to a High Court in terms

of section 74 or 75, as the case may be; (i)

(iii) "commercial requester" means a requester other than a

personal or non-commercial requester; (xv)

(iv) "Constitution" means the Constitution of the Republic of

South Africa, 1996; (viii)

(v) "governmental body" means-

(a) any department of state or administration in the

national, provincial or local sphere of government or any

other functionary or institution exercising a power or

performing a duty in terms of the Constitution or a

provincial constitution or exercising a public power or

performing a public duty in terms of any legislation, and

includes, without limiting the generality of the

foregoing, any body-

(i) of which the accounts and financial statements which

are required by legislation to be audited by the

Auditor-General;

(ii) of which the majority of the members are appointed,

whether alone or on the advice or recommendation of,

or in or after consultation with some other person

or body, by the President, the Deputy President, a

Minister, the Premier of a province, a member of the

executive council of a province or of the municipal

council of a municipality, another governmental

body, or more than one of those authorities;

(iii) in which the state, a province or a municipality is

the majority or controlling shareholder;

(iv) of which more than 50 per cent of its expenditure is

defrayed directly or indirectly from funds voted by

Parliament, a provincial legislature or a municipal

council;

(v) which is or was dependant for more than 50 per cent

of its total permanent capital needs, including

share capital, loans or other forms of permanent

capital, on funds voted by Parliament, a provincial

legislature or a municipal council, and in which

permanent capital the state, a province or a

municipality still holds a direct or indirect

interest of more than 50 per cent;

(vi) which supplies products or services in terms of

monopolistic rights conferred on it by legislation;

(vii) in respect of which the state, a province or a

municipality creates the probability through

contingent liability that funds voted by Parliament,

a provincial legislature or a municipal council will

have to be used in future to defray more than 50 per

cent of the body's expenditure or to provide more

than 50 per cent of the body's permanent capital;

(viii) of which the funds, assets or other property are

administered by the state, a province or a

municipality on a trust basis on behalf of the

inhabitants of the Republic or of a particular

interest group; or

(b) any other body which was a body contemplated in paragraph

(a)(vi) and which exercises in a monopolistic manner

substantially the same functions as it performed when it

was a body contemplated in paragraph (a)(vi),

but does not include the Cabinet, a court, a judicial officer

or a body regarded as being part of another body as contemplated

in subsection (2) or (3); (xxiv)

(vi) "head", in relation to-

(a) a governmental body-

(i) in the case of a national department, provincial

administration or organisational component mentioned

in the first column of Schedule I or 2 to the Public

Service Act, 1994 (Proclamation No. 103 of 1994),

means the officer who is the incumbent of the post

bearing the designation mentioned in the second

column of the said Schedule 1 or 2 opposite the name

of the relevant department, provincial

administration or organisational component or the

officer who is acting as such;

(ii) in the case of any other governmental body, means

the chief executive officer of that governmental

body or the person who is acting as such;

(b) a private body-

(i) in the case of a natural person, that natural

person;

(ii) in the case of any other private body, the chief

executive officer of the private body or the person

who is acting as such; (x)

(vii) "Human Rights Commission" means the Human Rights Commission

referred to in section 181(1)(b) of the Constitution; (xvi)

(viii) "inaccurate", in relation to a record or information

contained therein, means incorrect, incomplete or misleading;

(vii)

(ix) "information officer", in relation to a governmental body,

means the person appointed as information officer of that

governmental body in terms of section 4(1)(a); (xi)

(x) "internal appeal" means an internal appeal to the head of a

governmental body in terms of section 67(1); (xiii)

(xi) "international organisation" means an international

organisation-

(a) of states; or

(b) established by the governments of states; (xii)

(xii) "non-commercial requester" means a requester seeking access

to a record for the purpose of-

(a) gathering news for the production of, or disseminating

news by, a printed or electronic medium; or

(b) research or education by a non-profit or an educational

body or a member or employee of that body in his or her

capacity as such; (xvii)

(xiii) "notice" means notice in writing, and "notify" and

"notified" have corresponding meanings; (xiv)

(xiv) "objects of this act" means the objects of this Act

referred to in section 3(1); (vi)

(xv) "official", in relation to a governmental body, means any

person in the employ (permanently or temporarily and

full-time or part-time) of that governmental body, including

the head of the body, in his or her capacity as such; (iv)

(xvi) "person" means an individual or a juristic person; (xix)

(xvii) "personal information" means information about an

identifiable person;(xx)

(xviii) "personal information bank" means a collection or

compilation of personal information that is organised or

capable of being retrieved by using a person's name or an

identifying number or another particular assigned to the

person; (xxi)

(xix) "personal requester" means a requester seeking access to a

record containing information about the requester; (xxii)

(xx) "prescribed" means prescribed by regulation in terms of

section 86; (xxx))

(xxi) "private body" means a person, other than a governmental

body, in possession of or controlling a personal information

bank; (xxiii)

(xxii) "public safety or environmental risk" includes the risk or

potential risk to the environment or the public (including

individuals in their place of work) associated with-

(a) a product or service which is available to the public;

(b) a substance which is released into the environment or

workplace or is present in food for human or animal

consumption;

(d) an installation or manufacturing process or substance

which is used in that installation or process; (xxvi)

(xxiii) "record" means recorded information regardless of form or

medium, and includes-

(a) a record which is capable of being produced by means of

computer equipment (whether hardware or software or both)

which is used for that purpose by a governmental body; or

(b) a part of a record,

and, in relation to-

(i) a governmental body, means a record in the

possession or under the control of that governmental

body or of an official of the body and whether or

not the record was created by the body and whether

it was created before or after the commencement of

this section;

(ii) a private body, means a record in the possession or

under the control of that private body or any person

in the employ (permanently or temporarily and

full-time or part-time) of the private body

(including the head of the body) in his or her

capacity as such, and whether or not it was created

by the body and whether it was created before or

after the commencement of this section; (xxv)

(xxiv) "request fee" means a fee prescribed for the purposes of

section 17; (xxviii)

(xxv) "request for access" means a request for access to a record

of a governmental body in terms of section 9, and

"requester", in relation to that request, means a person

making that request; (xxx)

(xxvi) "request for correction" means a request for the correction

of personal information in a record of a governmental body in

terms of section 52(2), and "requester", in relation to that

request, means a person making that request; (xxix)

(xxvii) "third party", in relation to a request for access, means

any person (including the government of a foreign state, an

international organisation or an organ of that government or

organisation) other than-

(a) the requester concerned;

(b) a person contemplated in section 13(5); or

(xxviii) "this Act" includes any regulation made and in force in

terms of section 86; (ix)

(xxix) "transfer", in relation to a record, means transferred in

terms of section 15(1) or (2), and "transferred" has a

corresponding meaning; (xviii)

(xxx) "urgent appeal application" means an application referred

to in section 71(1); (ii)

(xxx)) "urgent request application" means an application referred

to in section 20( 1 ); (iii)

(xxxii) "working day" means any day other than a Saturday, Sunday

or public holiday. (xxxii)

(2) For the purposes of this Act, a board, council, committee,

commission or other body-

(a) established or constituted in terms of legislation; or

(b) wholly or partly constituted by appointment made by the President,

the Deputy President, a Minister, the Premier of a province, a

member of the Executive Council of a province or of the Municipal

Council of a municipality, a governmental body, or more than one of

those authorities,

to manage or administer any activity of, to exercise any power of, to

perform any duty of, or to advise or assist, a body contemplated in

paragraph (a) or (b) of the definition of "governmental body" in subsection

(1) is regarded as being part of that body.

(3) For the purposes of this Act, the Human Rights Commission may, as

prescribed, determine that a governmental body is to be regarded as being

part of another governmental body.

Application of Act

2. This Act applies despite the provisions of any other legislation.

Objects of Act

3.(1) The objects of this Act are-

(a) to give effect to the constitutional right of access to any

information held by the state by providing public access, as

swiftly, inexpensively and effortlessly as reasonably possible, to

that information without jeopardising good governance, privacy and

commercial confidentiality;

(b) to require governmental bodies to make information available that

will assist the public in understanding the powers, duties and

operation of governmental bodies;

by private bodies;

(d) to provide for the correction of inaccurate personal information

held by governmental or private bodies;

(e) to regulate the use and disclosure of personal information held by

governmental or private bodies;

(f) to protect persons disclosing evidence of contraventions of the

law, maladministration or corruption in governmental bodies; and

(g) generally, to promote transparency and accountability of all organs

of state by providing the public with timely, accessible and

accurate information and by empowering the public to effectively

scrutinise, and participate in, governmental decision making that

affect them.

(2) When interpreting a provision of this Act, every court must prefer

any reasonable interpretation of the provision that is consistent with the

objects of this Act over any alternative interpretation that is

inconsistent with those objects.

Designation of information officers, and delegation of powers by

information officer and head of governmental body

4.(1) For the purposes of this Act, each governmental body must,

subject to legislation governing the employment of personnel of the

governmental body concerned, designate-

(a) a person as the information officer of the body; and

(b) such number of persons as deputy information officers as are

necessary.

(2) The information officer of a governmental body has direction and

control over every deputy information officer of that body.

(3) The information officer of a governmental body may delegate a power

or duty conferred or imposed on that information officer by this Act to a

deputy information officer of that governmental body.

(4) The head of a governmental body may delegate a power or duty

conferred or imposed on the head by this Act to any official of that body

who is-

(a) not the information officer or a deputy information officer of that

body; and

(b) more senior than that information officer.

(5) Any power or duty delegated in terms of subsection (3) or (4) must

be exercised or performed subject to such conditions as the person who made

the delegation considers necessary.

(6) Any delegation in terms of subsection (3) or (4)-

(a) must be in writing:

(b) does not prohibit the person who made the delegation from

exercising the power concerned or performing the duty concerned

himself or herself;

(7) Any right or privilege acquired, or any obligation or liability

incurred, as a result of a decision in terms of a delegation in terms of

subsection (3) or (4) is not affected by any subsequent withdrawal or

amendment of that decision.

PART 2

GUIDE ON ACT AND MANUALS ABOUT FUNCTIONS OF

GOVERNMENTAL BODIES

Guide on how to use Act

5.(1) The Human Rights Commission must, within six months after the

commencement of this section, publish in each official language a guide

containing such information, in an easily comprehensible form and manner,

as may reasonably be required by a person who wishes to exercise any right

contemplated in this Act.

(2) The guide must, without limiting the generality of subsection (1),

include a description of-

(a) the objects of this Act;

(b) the postal and street address, phone and fax number and, if

available, electronic mail address of-

(i) the information officer of every governmental body; and

(ii) every deputy information officer of every governmental body

appointed in terms of section 4(1)(b);

(i) access to a record of a governmental body;

(ii) access to a record of a private body containing personal

information; and

(iii) correction of personal information held by a private body

and a governmental body,

contemplated in sections 9, 50, 51 and 52 must be made;

(d) the assistance available from the information officer of a

governmental body and the Human Rights Commission in terms of this

Act;

(e) the manner of lodging- (i) an internal appeal with the head of a

governmental body; and (ii) an application with a High Court;

(f) all remedies in law available regarding an act or failure to act in

respect of a right or duty conferred or imposed by this Act, except

the remedies referred to in paragraph (e);

(g) the manual to be published by every governmental body in terms of

section 6, the information contained therein and how to obtain

access to the manual; and

(h) the categories of records open to the public in terms of

legislation as contemplated in section 43 and how to obtain access

to those records.

(3) The Human Rights Commission must, if necessary, update and publish

the guide at intervals of not more than one year.

(4) The guide must-

(a) if reasonably possible, be made available on the Internet by the

Human Rights Commission; and

(b) otherwise be made available as prescribed.

Manual on functions of, and index of records held by,

governmental body

6. (1) This section does not apply to a governmental body which is a

public enterprise that operates a system of financial administration

separate from the national, provincial and local spheres of government.

(2) Within ]2 months after the commencement of this section or the

coming into existence of a governmental body, the head of the governmental

body concerned must publish in at least two official languages a manual

containing-

(a) a description of its structure and functions;

(b) the postal and street address, phone and fax number and, if

available, electronic mail address of the information officer of the

body and of every deputy information officer of the body appointed

in terms of section 4(1)(b);

obtain access to it;

(d) in sufficient detail to facilitate a request for access to, and for

correction of personal information in, a record of the body, a

description of-

(i) the subjects on which the body holds records and the

categories of records held on each subject;

(ii) every personal information bank held by the body,

including, in respect of each bank-

(aa) the identification of the bank and a description of

the categories of persons to whom or which the bank

relates;

(bb) a statement of the purposes for which the information

in the bank was obtained or the bank was compiled and a

statement of the purposes consistent with those

purposes for which the information in the bank is used

or disclosed; and

(cc) a statement of the standards of retention and disposal

applied to 5 information in the bank as contemplated in

section 62(1) and (3);

(e) a description of the categories of records of the body open to the

public in terms of legislation as contemplated in section 43 and how

to obtain access to those records;

(f) a description of the duty of the head of the body to disclose in

terms of section 10 8 records revealing a serious public safety or

environmental risk;

(g) a description of the services available to members of the public

from the body and how to gain access to those services;

(h) a description of any arrangement or provision for a person (other

than a governmental body) by consultation, making representations or

otherwise, to 15 participate in or influence-

(i) the formulation of policy; or

(ii) the exercise of powers or performance of duties, by the

body;

(i) a description of all remedies available in respect of an act or a

failure to act by 20 the body;

(j) a description of all remedies (including the procedure contemplated

in section 63) available to a member of the public or an official of

the body who wishes to report or otherwise remedy an impropriety

contemplated in section 63 and the protection for an official of the

body against reprisals provided for in 25 section 65;

(k) such other information as may be prescribed.

(3) A governmental body must, if necessary, update and publish its

manual referred to in subsection (2) at intervals of not more than one

year.

(4) Each manual must-

(a) if reasonably possible, be made available on the Internet by the

head of the governmental body concerned; and

(b) otherwise be made available as prescribed.

(5)(a) If the functions of two or more governmental bodies are closely

connected, the Human Rights Commission may on request or of its own

accord determine that the two or more bodies publish one manual

only.

(b) The cost of that publication must be shared between the relevant

bodies as determined by that Commission.

(6) The Human Rights Commission may on request or of its own accord by

notice in the Gazette exempt any category of governmental bodies from any

provision of this 40 section for such period as it thinks fit.

Information in telephone directory

7. (1) The Director-General of the national department responsible for

communications must at that department's cost ensure the publication of the

postal and street address, phone and fax number and, if available,

electronic mail address of the 45 information officer of every governmental

body in every telephone directory issued for general use by the public.

(2) The information contemplated in subsection (1) must be published in

the first telephone directory to be issued after the expiry of a period of

six months after the commencement of this section and thereafter in every

telephone directory that is issued.

Announcement of public safety or environmental risk

8. (1) If there are reasonable grounds for believing that-

(a) a record of a governmental body reveals a serious public safety or

environmental risk; and

(b) it is in the public interest to disclose the record to the public

or persons 55 affected,

the head of the body must, subject to this section, as soon as

reasonably possible, so disclose the record.

(2) If the record referred to in subsection(1) contains information

contemplated in section 29(1) or 31(1) (in this section referred to as

"third person information"), the head of the governmental body concerned

must, before disclosing the record, inform by the fastest means reasonably

possible, the person to whom or which the information relates (in this

section referred to as the "third person") of the intended disclosure,

unless all necessary steps to locate the third person within a reasonable

period have been unsuccessful.

(3) When informing a third person in terms of subsection (2), the head

of the governmental body concerned must-

(a) state that he or she intends disclosing a record that contains

third person information and describe that information; and

(b) inform the third person that he or she may, within the period

referred to in subsection (4) after he or she is informed, make

written or oral representations to the head of the body why the

third person information should not be disclosed.

(4) A third person informed in terms of subsection (2) of an intended

disclosure may, within such reasonable period as the head of the relevant

governmental body determines, make written or oral representations to that

head why the third person information should not be disclosed.

(5)(a) The head of the governmental body concerned must-

(i) after due regard to any representations made by a third

person in terms of subsection (4) and the grounds for

disclosure contemplated in subsection ( I (a) and (b), decide

whether the third person information should be disclosed or

not; and

(ii) notify the third person informed in terms of subsection (2)

and a third person not located as contemplated in that

subsection, but that can be located by taking all necessary

steps before the decision is taken, of the decision.

(b) If a third person cannot be located as contemplated in subsection

(2), any decision whether to disclose the third person information

must be made with due regard to the fact that the third person did

not have the opportunity to make representations why the information

should not be disclosed.

(6) If the head of a governmental body decides in terms of subsection

(5) to disclose the third person information, the notice in terms of that

subsection must state-

(a) the findings on all material questions of fact, referring to the

material on which those findings were based;

(b) the reasons for the decision in such manner as to enable the third

person-

(i) to understand the justification for the decision of the

head of the body; and

(ii) to make an informed decision about whether to lodge an

application with a High Court or to utilise any other remedy

in law available to the third person;

against the decision of the head of that body within l O working

days after notice is given, and the procedure for lodging that

application; and

(d) that the third person information will be disclosed after the

expiry of working days after notice is given, unless such an

application is lodged within that period.

(7) If the head of a governmental body decides in terms of subsection

(5) to disclose the third person information, the head must disclose that

information after the expiry of working days after notice is given in terms

of that subsection, unless an application with a High Court is lodged

against the decision within that period or an extended period granted in

terms of section 73(3).

PART 3

ACCESS TO RECORDS OF GOVERNMENTAL BODIES

CHAPTER 1

RIGHT AND MANNER OF ACCESS

Right of access to records of governmental bodies

9. Any person must, on request, but subject to this Act, be given

access to any record of a governmental body.

Use of Act for criminal or civil discovery of governmental bodies' records

excluded

10. No request for access to a record of a governmental body may be

made in terms of this Act for the purpose of criminal or civil discovery

provided for in any other law.

Right of disclosure of record to which access is given

11. Subject to the common law, any person, whether or not he or she is

the relevant requester, may publish, broadcast or otherwise disclose

information contained in a record of a governmental body to which access is

given in terms of this Act.

Access to records in terms of other law

12. Nothing in this Act, except section 56, prevents a governmental

body from giving access to a record of that body in accordance with any

other law.

Form of requests

13. (1) A request for access must be made in the prescribed form to the

information officer of the governmental body concerned at his or her

address or fax number or electronic mail address.

(2) The form for a request of access prescribed for the purposes of

subsection (1) must at least require from the requester concerned-

(a) to provide sufficient particulars to enable an official of the

governmental body concerned to identify the record or records

requested;

(b) to indicate which applicable form of access referred to in section

25(2) is required;

language;

(d) to state whether the requester is a personal, non-commercial or

commercial requester and, in the case of a commercial requester, to

include the request fee;

(e) to specify a postal address or fax number and, if the request

includes an urgent request application, a phone number, for the

requester in the Republic;

(f) if, in addition to a written reply, the requester wishes to be

informed of the decision on the request in any other manner, to

state that manner and the necessary particulars to be so informed;

and

(g) in the case of a request for access to a record containing personal

information, to state the capacity contemplated in subsection (5) in

which the requester is making the request and to submit-

(i) the requester's identity document or a certified copy

thereof or any other reasonable proof of the requester's

identity; or

(ii) if the requester is not the person to whom or which the

personal information relates, reasonable proof of the

capacity in which the requester is making the request.

(3) If a requester can, according to the purposes for which access is

sought, be classified as a personal, non-commercial and commercial

requester or as any two of those requesters, that requester is regarded,

for the purposes of this Act, to be that type of requester who would, upon

the request for access being granted, be liable to pay the higher or

highest access fee in respect of the request.

(4)(a) An individual who because of illiteracy, poor literacy or a

physical disability is unable to make a request for access to a

record of a governmental body in accordance with subsection (1), may

make that request orally.

(b) The information officer of that body must reduce that oral request

to writing in the prescribed form and provide a copy thereof to the

requester.

(5) A request for access to a record containing personal information

may be made-

(a) by the person to whom or which the personal information relates or

that person's authorised representative;

(b) if the individual contemplated in paragraph (a) is-

(i) under the age of 16 years, by a person having parental

responsibility for the individual;

(ii) incapable of managing his or her own affairs, by a person

appointed by the court to manage those affairs; or

(iii) deceased, by the executor of his or her estate.

Duty to assist requesters

14. (1) If a requester informs the information officer of a

governmental body that he or she wishes to make a request for access to a

record of that or another governmental body, the information officer must

render such assistance, free of charge, as is necessary to enable that

requester to comply with section 13(1).

(2) If a requester has made a request for access that does not comply

with section 13(1), the information officer concerned may not refuse the

request because of that non-compliance unless the information officer has-

(a) notified that requester of an intention to refuse the request and

stated in the notice-

(i) the reasons for the contemplated refusal; and

(ii) that the information officer or another official identified

by the information officer would assist that requester in

order to make the request in a form that would remove the

grounds for refusal;

(b) given the requester a reasonable opportunity to seek such

assistance;

information (including information about the records, other than

information on the basis of which a request for access is required

or permitted by this Act to be refused, held by the body which are

relevant to the request) that would assist the making of the request

in that form; and

(d) given the requester a reasonable opportunity to confirm the request

or alter it to comply with section 13(1).

(3) When computing any period referred to in section 19(1) or 20(2) or

(3), the period commencing on the date on which notice is given in terms of

subsection (2) and ending on the date on which the person confirms or

alters the request for access concerned must be disregarded.

(4) If it is apparent on receipt of a request for access that it should

have been made to another governmental body, the information officer of the

governmental body concerned must-

(a) render such assistance as is necessary to enable the person to make

the request, to the information officer of the appropriate

governmental body; or

(b) transfer the request in accordance with section 15 to the

last-mentioned information officer,

whichever will result in the request being dealt with earlier.

Transfer of requests

15. (1) If a request for access is made to the information officer of a

governmental body in respect of which-

(a) the record is not in the possession or under the control of that

body but is in the possession of another governmental body;

(b) the record's subject matter is more closely connected with the

functions of another governmental body than those of the

governmental body of the information officer to whom the request is

made; or

38(2) in which any other governmental body has a greater commercial

interest,

the information officer to whom the request is made must as soon as

reasonably possible, but in any event within 14 days after the request is

received-

(i) transfer the request to the information officer of the

other governmental body or, if there is in the case of

paragraph (c) more than one other governmental body having a

commercial interest, the other governmental body with the

greatest commercial interest; and

(ii) if the governmental body of the information officer to whom

the request is made is in possession of the record and

considers it helpful to do so to enable the information

officer of the other governmental body to deal with the

request, send the record or a copy of the record to that

information officer.

(2) If a request for access is made to the information officer of a

governmental body in respect of which-

(a) the record is not in the possession or under the control of the

governmental body of that information officer and the information

officer does not know which governmental body has possession or

control of the record;

(b) the record's subject matter is not closely connected to the

functions of the governmental body of that information officer and

the information officer does not know whether the record is more

closely connected with the functions of another governmental body

than those of the governmental body of the information officer to

whom the request is made; and

(i) was created by or for another governmental body; or

(ii) was not so created by or for any governmental body, but was

received first by another governmental body,

the information officer to whom the request is made, must as soon as

reasonably possible, but in any event within 14 days after the request is

received, transfer the request to the information officer of the

governmental body by or for which the record was created or which received

it first, as the case may be.

(3) If a request for access which is to be transferred includes an

urgent request application, the request must be so transferred immediately

or, if that is not reasonably possible, as soon as reasonably possible, but

in any event, within five working days after it is received.

(4) Subject to subsection (5), the information officer to whom a

request for access is transferred, must give priority to that request in

relation to other requests as if it were received by him or her on the date

it was received by the information officer who transferred the request.

(5) If a request for access is transferred, any period referred to in

section 19(]) or 20(2) or (3) must be computed from the date the request is

received by the information officer to whom the request is transferred.

(6) Upon the transfer of a request for access, the information officer

making the transfer must immediately notify the requester of-

(a) the transfer;

(b) the reasons for the transfer; and

Preservation of records until final decision on request

16. If the information officer of a governmental body has received a

request for access to a record of the body, the head of the body must take

the steps that are reasonably necessary to preserve the record, without

deleting any information contained in it, until the information officer has

notified the requester concerned of his or her decision in terms of section

19 and-

(a) the periods for lodging an internal appeal with that head, an

application with a High Court or an appeal against a decision of

that Court have expired; or

(b) that internal appeal, application or appeal against a decision of

that Court or other legal proceedings in connection with the request

has been finally determined, whichever is the later.

Payment of request fee

17.(1) A commercial requester must, when making his or her request for

access, pay the prescribed request fee.

(2) If-

(a) there are reasonable grounds for believing that a requester is a

commercial requester; and

(b) that requester has not paid the prescribed request fee,

the information officer of the governmental body concerned must by

notice require the requester to pay that fee.

(3) That notice must state-

(a) that the requester may lodge an internal appeal with the head of

the body against the payment of the fee; and

(b) the procedure (including the period) for lodging the internal

appeal.

(4) If the prescribed request fee is payable in respect of a request

for access, the decision on the request in terms of section 19 may be

deferred until the fee is paid.

Payment of deposit

18. (1) If-

(a) the search for a record of a governmental body in respect of which

a request for access by a non-commercial or commercial requester has

been made; and

(b) the preparation of the record for disclosure (including any

arrangements contemplated in section 25(2)(a) and (b)(i) and

(ii)(aa)),

would, in the opinion of the information officer of the body, require

more than the hours prescribed for this purpose for non-commercial or

commercial requesters, as the case may be, the information officer must by

notice require the requester to pay as a deposit the prescribed portion

(being not more than one third) of the access fee which would be payable if

the request is granted.

(2) No deposit is payable in respect of a request for access by-

(a) a personal requester; or

(b) a member of Parliament, a provincial legislature or a municipal

council in connection with the member's official duties.

(3) The notice referred to in subsection(1) must state-

(a) the amount of the deposit; and

(b) that the requester may lodge an internal appeal with the head of

the governmental body concerned against the payment of a deposit,

and the procedure (including the period) for lodging the internal

appeal.

(4) If a deposit is payable in respect of a request for access, the

decision on the request in terms of section 19 may be deferred until the

deposit is paid.

(5) If a deposit has been paid in respect of a request for access which

is refused, the information officer concerned must repay the deposit to the

requester.

Decision on request and notice thereof

19. (1) The information officer to whom a request for access is made or

transferred, must, subject to sections 20 and 21 and Chapter 3 of this

Part, as soon as reasonably possible, but in any event, within 30 days,

after the request is received or transferred-

(a) decide in accordance with this Act whether to grant the request;

and

(b) notify the requester of the decision and, if the requester stated

as contemplated in section 13(2)(f) that he or she wishes to be

informed of the decision in any other manner, inform him or her in

that manner if it is reasonably possible.

(2) If the request for access is granted, the notice in terms of

subsection (1)(b) must state-

(a) the access fee (if any) to be paid upon access;

(b) the form in which access will be given; and

the governmental body concerned against the access fee to be paid or

the form of access granted, and the procedure (including the period)

for lodging the internal appeal.

(3) If the request for access is refused, the notice in terms of

subsection (1)(b) must state-

(a) the findings on all material questions of fact, referring to the

material on which those findings were based;

(b) the reasons for the refusal (including the provisions of this Act

relied upon to justify the refusal) in such manner as to enable the

requester-

(i) to understand the justification for the refusal; and

(ii) to make an informed decision about whether to lodge an

internal appeal with the head of the governmental body

concerned or to utilise any other remedy in law available to

the requester; and

the governmental body against the refusal of the request, and the

procedure (including the period) for lodging the internal appeal.

Urgent requests

20. (1) A requester who wishes to obtain access to a record of a

governmental body urgently must include an application to that effect in

the request for access, and give reasons for the urgency.

(2) If a request for access includes an urgent request application, the

information officer concerned must, subject to Chapter 3 of this Part,

immediately or, if that is not reasonably possible, as soon as reasonably

possible, but in any event within five working days, after the request for

access has been received or transferred, decide on the request and give

notice of the decision in accordance with section 19, unless there are

reasonable grounds for believing that-

(a) the nature of the reasons for the urgency furnished by the

requester is such that the requester will suffer no prejudice if the

request is decided upon within the applicable period contemplated in

section 19(1); or

(b) it is impractical to decide on the request within five working days

after the request has been received or transferred.

(3) If the information officer refuses an urgent request application on

grounds referred to in subsection (2)(a) or (b), he or she must immediately

or, if that is not reasonably possible, as soon as reasonably possible, but

in any event, within five working days, after the request for access has

been received or transferred, notify the requester of the refusal.

(4) The notice in terms of subsection (3) must state-

(a) the findings on all material questions of fact, referring to the

material on which those findings were based;

(b) the reasons for the refusal (including the provisions of this

section relied upon to justify the refusal) in such manner as to

enable the requester-

(i) to understand the justification for the refusal; and

(ii) to make an informed decision about whether to lodge an

internal appeal with the head of the governmental body

concerned or an application with a High Court or to utilise

any other remedy in law available to the requester; and

the governmental body, or an application with a High Court, against

the refusal of that urgent request application, and the procedure

(including the periods) for lodging the internal appeal and the

application with a High Court.

(5) If the notice in terms of subsection (2) or (3) of a decision is

not given by fax, the requester must be informed by phone of the decision.

Extension of period to deal with request

21.(1) Subject to section 20, the information officer to whom a request

for access has been made or transferred, may extend the period of 30 days

referred to in section l 9(1) (in this section referred to as the "original

period" ) once for a further period of not more than 30 days, if-

(a) the request is for a large number of records or requires a search

through a large number of records and compliance with the original

period would unreasonably interfere with the activities of the

governmental body concerned;

(b) the request requires a search for records in, or collection thereof

from, an office of the governmental body not situated in the same

town or city as the office of the information officer that cannot

reasonably be completed within the original period;

another governmental body is necessary or desirable to decide upon

the request that cannot reasonably be completed within the original

period; or

(d) more than one of the circumstances contemplated in paragraphs (a),

(h) and (c) exist in respect of the request making compliance with

the original period not reasonably possible.

(2) If a period is extended in terms of subsection (1), the information

officer must, as soon as reasonably possible, but in any event, within 30

days, after the request is received or transferred, notify the requester of

that extension.

(3) The notice in terms of subsection (2) must state-

(a) the period of the extension;

(b) the reasons for the extension (including the provisions of this Act

relied upon to justify the refusal) in such manner as to enable the

requester-

(i) to understand the justification for the extension; and

(ii) to make an informed decision about whether to lodge an

internal appeal with the head of the governmental body

concerned or to utilise any other remedy in law available to

the requester; and

the governmental body against the extension, and the procedure

(including the period) for lodging the internal appeal.

Deemed refusal of request

22. If an information officer fails to give his or her decision on a

request for access within the period contemplated in section l9(1), the

information officer is, for the purposes of this Act, regarded to have

refused the request.

Severability

23.(1) If a request for access to a record of a governmental body

containing information which is required by section 29 or 31, or permitted

by section 30, 32, 33, 34, 36, 37, 38, 39 or 42, to be refused, is made,

every part of the record which-

(a) does not contain; and

(b) can reasonably be severed from any part that contains,

any such information must, despite any other provision of this Act, be

disclosed.

(2) If a request for access to-

(a) a part of a record is granted; and

(b) the other part of the record is refused,

as contemplated in subsection (1), the provisions of section 19(2),

apply to paragraph (a) of this section and the provisions of section 19(3)

to paragraph (b) of this section.

Access fees

24.(1) A requester whose request for access to a record of a

governmental body has been granted may be given access to the record only

if he or she has paid the applicable prescribed access fee (if any).

(2) Access fees prescribed for the purposes of subsection (1) must

provide for a reasonable access fee for-

(a) the cost of making a copy of a record, or of a transcription of the

content of a record, as contemplated in section 25(2)(a) and (b)(i),

(ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in

this section referred to as an "access fee for reproduction"); and

(b) the time reasonably required to search for the record and prepare

(including making any arrangements contemplated in section 25(2)(a)

and (b)(i) and (ii)(aa)) the record for disclosure to the requester

(in this section referred to as an "access fee for search and

preparation").

(3) A personal requester must pay an access fee for reproduction only.

(4) A non-commercial requester must pay an access fee for reproduction

and for search and preparation for any time reasonably required in excess

of the prescribed hours to search for and prepare (including making any

arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the

record for disclosure.

(5) A commercial requester must pay an access fee for reproduction and

for search and preparation.

(6) A member of Parliament, a provincial legislature or a municipal

council who makes a request for access in connection with his or her work

as such member does not have to pay any access fee in respect of the

request.

Access and forms of access

25. (1) If a requester has been given notice in terms of section 19(1)

that his or her request for access has been granted, that requester must,

subject to subsections (3), (9) and (10)-

(a) if an access fee is payable, upon payment of that fee; or

(b) if no access fee is payable, immediately,

be given access in the applicable forms referred to in subsection (2)

as the requester indicated in the request, and in the language contemplated

in section 26.

(2) The forms of access to a record in respect of which a request of

access has been granted, are the following:

(a) If the record is in written or printed form, by supplying a copy of

the record or by making arrangements for the inspection of the

record;

(b) if the record is not in written or printed form-

(i) in the case of a record from which visual images or printed

transcriptions of those images are capable of being

reproduced by means of equipment which is ordinarily

available to the governmental body concerned, by making

arrangements to view those images or be supplied with copies

or transcriptions of them;

(ii) in the case of a record in which words or information are

recorded in such manner that they are capable of being

reproduced in the form of sound by equipment which is

ordinarily available to the governmental body concerned-

(aa) by making arrangements to hear those sounds; or

(bb) if the governmental body is capable of producing a

written or printed transcription of those sounds by the

use of equipment which is ordinarily available to it,

by supplying such a transcription;

(iii) in the case of a record which is held on computer, or in

electronic or machine-readable form, and from which the

governmental body concerned is capable of producing a printed

copy of-

(aa) the record, or a part of it; or

(bb) information derived from the record, by using computer

equipment and expertise ordinarily available to the

governmental body, by supplying such a copy;

(iv) in the case of a record available or capable of being made

available in computer readable form, by supplying a copy in

that form;

(v) in any other case, by supplying a copy of the record.

(3) If a requester has requested access in a particular form, access

must, subject to section 23, be given in that form, unless to do so would-

(a) interfere unreasonably with the effective administration of the

governmental body concerned;

(b) be detrimental to the preservation of the record; or

the governmental body concerned.

(4) If a requester has requested access in a particular form and for a

reason referred to in subsection (3) access in that form is refused but

access is given in another form, the fee charged may not exceed what would

have been charged if that requester had been given access in the form

requested.

(5) If a requester with a visual or auditory disability is prevented by

that disability from reading, viewing or listening to the record concerned

in the form in which it is held by the governmental body concerned, the

information officer of the body must, if that requester so requests, take

reasonable steps to make the record available in a form in which it is

capable of being read, viewed or heard by the requester.

(6) If a record is made available in accordance with subsection (5),

the requester may not be required to pay an access fee which is more than

the fee which he or she would have been required to pay but for the

disability.

(7) If a record is made available in terms of this section to a

requester for inspection viewing or hearing, the requester may make copies

of or transcribe the record using the requester's equipment, unless to do

so would-

(a) interfere unreasonably with the effective administration of the

governmental body concerned;

(b) be detrimental to the preservation of the record; or

the governmental body concerned.

(8) If the supply to a requester of a copy of a record is required by

this section, the copy must, if so requested, be supplied by posting it to

him or her.

(9) If an internal appeal with the head of a governmental body or an

application with a High Court is lodged against the granting of a request

for access to a record, access to the record may be given only when the

decision to grant the request is finally confirmed.

(10) If a request for access to a record is granted, but a request for

correction is pending in respect thereof or a part thereof, access to the

record or part thereof, as the case may be, may be given only when the

decision on the request for correction has been finally determined.

Language of access

26. A requester whose request for access to a record of a governmental

body has been granted must, if the record-

(a) exists in the language that the requester prefers, be given access

in that language; or

(b) does not exist in the language so preferred or the requester has no

preference be given access in any language the record exists in.

Reports to Human Rights Commission

27. The head of each governmental body must annually submit to the

Human Rights Commission a report stating in relation to the governmental

body-

(a) the number of requests for access received;

(b) the number of requests for access granted in full;

(d) the number of requests for access refused in full and refused

partially and the number of times each provision of this Act relied

on to refuse access was invoked to justify refusal in full and

partial refusal;

(e) the number of requests for correction and the number of cases in

which a correction was made;

(f) the number of cases in which the periods stipulated in sections

19(1) and 52(7), respectively, were extended in terms of section

21(1) and that section, read with section 52(6), respectively;

(g) the number of urgent request applications and urgent appeal

applications made and the number of cases in which those

applications were granted;

(h) the number of internal appeals lodged with the head of the body and

the number of cases in which, as a result of an internal appeal,

access was given to a record or a part thereof or a correction of

inaccurate personal information was made;

(i) the number of internal appeals which were lodged on the ground that-

(i) a request for access was regarded to have been refused in

terms of section 22; and

(ii) a request for correction was regarded to have been refused

in terms of section 52(8);

(j) the number of applications to a High Court which were lodged on the

ground that an internal appeal was regarded to have been dismissed

in terms of section 70(7); and

(k) such other matters as may be prescribed.

CHAPTER 2

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

Mandatory and discretionary grounds for refusal

28. 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.

Mandatory protection of privacy

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 invasion of the privacy of an

identifiable person (including an individual who died less than 20 years

before the request is received) other than the requester concerned or other

person contemplated in section 13(5).

(2) Subsection (1) does not apply to a record in so far as it consists

of information-

(a) already publicly available;

(b) about a person that has, in accordance with section 46(b),

consented to its disclosure to the requester concerned;

is-

(i) under the age of 18 years;

(ii) under the care of the requester; and

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

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

(d) about an individual who is deceased and the requester is, or is

requesting with the written consent of, the individual's next of

kin; or

(e) about an individual who is or was an official 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 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;

(iv) the name of the individual on a record prepared by the

individual in the course of employment.

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

(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:

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

(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.

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 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

serious harm contemplated in paragraph (a) is likely to result.

(3) 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 (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

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;

(b) financial, commercial, scientific or technical information, other

than trade secrets, supplied in confidence by a third party and

treated consistently as confidential by that third party, the

disclosure of which could reasonably be expected to cause harm to

the commercial or financial interests of that third party; or

be likely to put that third party at a disadvantage in contractual

or other negotiations or cause it prejudice in commercial

competition.

(2) Subsection(1) does not apply to a record in so far 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;

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

(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) 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

test or other investigation to enable the requester to obtain an

explanation of the methods used in conducting the test or other

investigation.

Records supplied in confidence

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

the same source, should continue to be supplied.

(2) Subsection (1) does not apply to a record-

(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) in so far as it consists of information independantly obtained by

the body or already publicly available; or

disclosure to the requester concerned.

(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.

Safety of individuals and security of structures and systems

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-

(a) to endanger the life or physical safety of an 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.

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; or

(ii) the prosecution of alleged offenders,

and the disclosure of those methods, techniques, procedures or

guidelines would be likely 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;

(i) to prejudice the investigation of any offence or possible

offence 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;

(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;

(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) Subsection (1)(c)(v) does not apply to a record in so far 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

against the refusal as required by section 19(3)(c)

Privileged from production in legal proceedings

35. The information officer of a governmental body may 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

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 substantially to harm the defence or security of the Republic by-

(a) frustrating 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

(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;

(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;

(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 may lodge an internal appeal with

the head of the governmental body concerned 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-

(a) in contravention of an obligation imposed on the Republic by

international law; or

(b) subject to subsection (2), likely 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) 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

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 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

(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-

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

(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 to cause harm to

the commercial or financial interests of the state or a governmental

body;

governmental body at a disadvantage in contractual or other

negotiations or cause it prejudice in commercial competition;

(d) the results of original research undertaken by an official of a

governmental body the disclosure of which could reasonably be

expected to deprive that governmental body or official of the

benefit of first publication of those results; 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.

(3) Subsection (2) does not apply to a record in so far as it consists

of information-

(a) already publicly available;

(b) about or owned by a governmental body which has consented in

writing to its disclosure to the requester concerned;

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

(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.

(4) If a request for access to a record contemplated in subsection

(3)(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 original test

or other investigation to enable the requester to obtain an explanation of

the methods used in conducting the test or other investigation.

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 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, by premature disclosure

of a policy or contemplated policy, be likely substantially

to frustrate the success of that policy;

(b) if the disclosure of the record would be likely to jeopardise the

effectiveness of a testing, examining or auditing procedure or

method used by a governmental body;

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;

(d) if the record contains a working draft or note of an official of a

governmental body.

(2) In subsection (I)(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) Subsection (1) does not apply to a record in so far 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.

(4) Subsection (l)(a) does not apply to a record-

(a) if the record came into existence more than 15 years before the

request concerned; or

(b) in so far 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 test or other

investigation regarding a public safety or environmental

risk.

(5) If a request for access to a record contemplated in subsection

(4)(b)(v) 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 test or other investigation to enable the requester to obtain an

explanation of the methods used in conducting the test or other

investigation.

Frivolous or vexatious requests

40. The information officer of a governmental body may refuse a request

for access to a record of the body if the request is manifestly frivolous

or vexatious.

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

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 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 at a fee no greater than would be charged for access in terms

of this Act;

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;

(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 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 l9(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;

to the governmental body concerned, identify the title and publisher

of the record and state where it can be purchased; or

(d) subsection (I)(e), state the date on which the record is to be

submitted to Parliament.

(3) If an information officer is considering to refuse a request for

access to a record in terms of subsection (l)(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.

(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.

(5) If the record in respect of which a request for access has been

refused in terms of subsection (l)(a) is not published within 60 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.

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-

(i) abuse of authority, illegality or neglect in the exercise

of a power or performance of a duty of an official of a

governmental body;

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

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

individual or the public; or

(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.

CHAPTER 3

THIRD PARTY INTERVENTION

Notice to third parties

45. (1) If the information officer of a governmental body is

considering a request for access to a record contemplated in section 29(1)

or 31(1), the information officer must inform a third party to whom or

which the record relates of the request, unless all necessary steps to

locate that third party have been unsuccessful.

(2) The information officer must inform a third party in terms of

subsection (1)-

(a) as soon as reasonably possible, but in any event, within 21 days

or, if an urgent request application has been granted, within five

working days, after that request is received or transferred; and

(b) by the fastest means reasonably possible.

(3) When informing a third party in terms of subsection (1), the

information officer must-

(a) state that he or she is considering a request for access to a

record contemplated in section 29(1) or 31(1), as the case may be,

and describe the content of the record;

(b) furnish the name of the requester;

(i) section 29(1), describe the provisions of section 29; or

(ii) section 31(1), describe the provisions of section 31;

(d) in any case where the information officer believes that the

provisions of section 44(1) might apply, describe those provisions,

specify which of the circumstances referred to in section

44(1)(a)(i) to (iv) in the opinion of the information officer might

apply and state the reasons why he or she is of the opinion that

section 44(1) might apply; and

(e) state that the third party may, within 21 days or, if an urgent

request application has been granted, within 10 working days, after

the third party is informed-

(i) make written or oral representations to the information

officer why the request for access should be refused; or

(ii) give written consent for the disclosure of the record to

the requester.

(4) If a third party is not informed in writing of a request for access

in terms of subsection (1), the information officer must, on request, give

a written notice stating the matters referred to in subsection (3) to the

third party.

Representations by third parties

46. A third party that is informed in terms of section 45(1) of a

request for access, may, within 21 days or, if an urgent request

application has been granted, within 10 working days after the third party

has been informed-

(a) make written or oral representations to the information officer

concerned why the request should be refused; or

(b) give written consent for the disclosure of the record to the

requester concerned.

Decision on representations for refusal and notice thereof

47. (1) The information officer of a governmental body must, as soon as

reasonably possible, but in any event within 30 days or, if an urgent

request application has been granted, within 15 working days, after every

third party is informed as required by section 45-

(a) decide, after giving due regard to any representations made by a

third party in terms of section 46(a), whether to grant the request

for access; and

(b) notify the third party so informed and a third party not located as

contemplated in section 45(1), but that can, after taking all

necessary steps, be located before the decision is taken, of the

decision.

(2) If a third party cannot be located as contemplated in section

45(1), any decision whether to grant the request for access must be made

with due regard to the fact that the third party did not have the

opportunity to make representations in terms of section 46(a) why the

request should be refused.

(3) If the request for access is granted, the notice in terms of

subsection (1)(b) must state-

(a) the findings on all material questions of fact, referring to the

material on which those findings were based;

(b) the reasons for granting the request (including the provisions of

this Act relied upon to justify the granting) in such manner as to

enable the third party-

(i) to understand the justification for the granting of the

request, and

(ii) to make an informed decision about whether to lodge an

internal appeal with the head of the governmental body

concerned or to utilise any other remedy in law available to

the third party; and

decision with the head of the governmental body-

(i) within 30 days; or

(ii) if an urgent request application has been granted, within

10 working days,

after notice is given, and the procedure for lodging the internal

appeal; and

(d) that the requester will be given access to the record after the

expiry of the applicable period contemplated in paragraph (c)(i) or

(ii), unless an internal appeal is lodged within that period.

(4) If the information officer of a governmental body decides in terms

of subsection (1) to grant the request for access concerned, he or she must

give the requester access to the record concerned after the expiry of-

(a) 30 days; or

(b) if an urgent request application has been granted, 10 working days,

after notice is given in terms of subsection ( D(b), unless an

internal appeal with the head of the governmental body is lodged

against the decision within the applicable period contemplated in

paragraph (a) or (b) of this subsection.

PART 4

ACCESS TO, CORRECTION OF AND CONTROL OVER PERSONAL INFORMATION HELD BY

PRIVATE AND GOVERNMENTAL BODIES

Application of Part

48. This Part, except sections 50, 51 and 52, does not apply to

personal information-

(a) already publicly available;

(b) created or acquired and preserved solely for public reference or

exhibition purposes in a library or museum;

in-

(i) an archives repository established in terms of-

(aa) section 11(1) of the National Archives of South Africa

Act, 1996 (Act No. 43 of 1996); or

(bb) an equivalent provision of provincial legislation

regarding the custody of the records of governmental

bodies in the relevant provincial sphere of government;

(ii) a library or museum controlled by a governmental body;

(d) about an individual who is or was an official of a governmental

body if the information relates to the position or functions of that

official, including-

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

governmental body;

(ii) the title, work address, work phone number and other

similar particulars of the individual;

(iii) the classification, remuneration and responsibilities of

the position held or services performed by the individual; or

(iv) the name of the individual on a record prepared by the

individual in the course of such employment.

Use of Act for criminal or civil discovery of private bodies' records

excluded

49. No request for access to a record of a private body may be made in

terms of this Act for the purpose of criminal or civil discovery provided

for in any other law.

Access to personal information held by private bodies

50. (1) Subject to section 49 and this section, a person (in this

section referred to as "the requester") must, on request (in this section

referred to as "the request"), be given access to any record of a private

body containing personal information about that person.

(2) The request must-

(a) be made orally or in writing to the head of the private body

concerned at his or her address, fax number or electronic mail

address;

(b) provide sufficient particulars to enable the head of the private

body to identify the record requested;

Republic; and

(d) state the capacity contemplated in subsection (3) in which the

requester is making the request and include-

(i) the requester's identity document or a certified copy

thereof or any other reasonable proof of his or her identity;

and

(ii) if the requester is not the person to whom or which the

personal information relates, reasonable proof of the

capacity in which the requester is making the request.

(3) The request may be made-

(a) by the person to whom or which the personal information in the

record relates or that person's authorised representative;

(b) if an individual contemplated in paragraph (a) is-

(i) under the age of 16 years, by a person having parental

responsibility for the individual;

(ii) incapable of managing his or her affairs, by a person

appointed by the court to manage those affairs; or

(iii) deceased, by the executor of his or her estate.

(4) The head of the private body to whom the request is made, must,

subject to subsection (6), give access to the record to the person as soon

as reasonably possible, but in any event, within 30 days, after the request

has been received.

(5) If, in accordance with this section, access is given to a record

containing personal information-

(a) the head of the private body must inform the person concerned that

a request for the correction of the information may be made in terms

of section 51; and

(b) the form of access is as the head of the private body determines,

provided that a copy of the record must, on request of the

requester, be provided at a reasonable fee.

(6)(a) Subject to this subsection, the provisions requiring or

permitting the refusal or granting of a request for access to a

record, or part thereof, of a governmental body contained in

sections 23(1) and (2), 29, 30(1), (2) and (3), 31(1) and (2), 32,

33, 34 (except subsection (3)(b)(iv)), 35, 36 (except subsection

(2)(b)(iv)), 37, 38(1), (2) and (3),39(1) to (4),40,41,42(1), (2)

and (5) and 43 apply, with the changes required by the context, to

the request.

(b) Any reference in a provision contemplated in paragraph (a) to-

(i) the information officer of a governmental body;

(ii) a record of a governmental body; and

(iii) a notice in terms of section 19, must be construed as a

reference to the head of a private body, a record of a

private body and a notice in terms of paragraph (c) of this

subsection, respectively.

head of the private body must notify the requester of the refusal

and the reasons for the refusal as soon as reasonably possible, but

in any event, within 30 days, after the request has been received.

(7) The head of a private body may, subject to the conditions

determined by the head, delegate a power conferred or duty imposed on the

head by this Part to any employee of the private body.

Correction of personal information held by private bodies

51. (1) A record may be corrected in terms of this section by amending,

supplementing or, subject to subsection (8), deleting the inaccurate

information.

(2) If a person is given access to a record of a private body in terms

of section 50, that person may request the correction of inaccurate

personal information about that person in that record (in this section

referred as "the request").

(3) Nothing in this section prevents a private body from correcting

personal information in a record of that body in accordance with other law.

(4) If any other law determines any requirement in respect of the

correction of personal information in a record of a private body which is

additional to, but consistent with, the provisions of this section, a

correction requested in terms of this section must be made in accordance

with this section and the requirement of that other law.

(5) The request must-

(a) be made orally or in writing to the head of the private body

concerned at his or her address, fax number or electronic mail

address;

(b) provide sufficient particulars to enable the head of the private

body to identify the record which contains the information that the

requester regards as inaccurate;

as inaccurate and provide any information regarding the inaccuracy

that is in the possession or under the control of the requester; and

(d) specify a postal address or fax number for the requester in the

Republic.

(6) The head of a private body to whom the request is made, must, as

soon as reasonably possible, but in any event, within 30 days, decide on

the request.

(7) If the head of a private body decides that the information

identified in the request is inaccurate, the head must, free of charge and

within the period contemplated in subsection (6)-

(a) correct the information and send a copy of the part of the record

containing the correction to the requester; and

(b) determine, as far as reasonably possible, whether the inaccurate

information is in any other record of the private body and, if it

is, make the same correction on the other record.

(8) If the head of a private body decides upon the request to delete

information contained in any record, the head must, before making the

deletion-

(a) make a copy of the part of the record to be deleted;

(b) make a note on that copy of the deletion to be made in the original

record; and

(9) If the head of a private body decides that the information referred

to in a request for correction is not inaccurate and that the request is

not irrelevant, frivolous or vexatious, the head must, free of charge and

within the period contemplated in subsection (6)-

(a) make a note in the record as near as reasonably possible to the

point where the information appears-

(i) of the decision of the head that the information is not

inaccurate;

(ii) that the accuracy of the information is disputed by the

requester; and

(iii) that the request is attached to the record,

and attach the request to the record; and

(b) notify the requester-

(i) of the decision that the information is not inaccurate; and

(ii) that a note was made on the record as required by paragraph

(a), and send a copy of the note to the requester.

(10) If a record has been corrected in terms of subsection (7), any

disclosure or use of the record after such correction must be in its

corrected form.

(11) If a note has been made in a record as contemplated in subsection

(9)(a), any disclosure of the information concerned in the record must

include-

(a) that note; and

(b) the relevant request attached thereto.

Correction of personal information held by governmental bodies

52. (1) A record may be corrected in terms of this section by amending,

supplementing or, subject to subsection (10), deleting the inaccurate

information.

(2) If a person is given access to a record of a governmental body in

terms of section 9, that person may request the correction of inaccurate

personal information about that person in that record.

(3) Nothing in this section prevents a governmental body from

correcting personal information in a record of that body in accordance with

other law.

(4) If any other law determines any requirement in respect of the

correction of personal information in a record of a governmental body which

is additional to, but consistent with, the provisions of this section, a

correction in terms of this section must be made in accordance with this

section and the requirement of that other law.

(5)(a) A request for correction must be made in the prescribed form or

orally to the information officer of the governmental body concerned

at his or her address, fax number or electronic mail address.

(b) The form for a request for correction prescribed for the purposes

of paragraph (a), must at least require from the requester-

(i) to provide sufficient particulars to enable an official of

the governmental body concerned to identify the record which

contains the information that the requester regards as

inaccurate;

(ii) to specify the respect in which the requester regards the

information as inaccurate and to provide any information

regarding the inaccuracy that is in the possession or under

the control of the requester; and

(iii) to specify a postal address or fax number for the requester

in the Republic.

(6) Sections 13(4), 14, 15, 16, 20 and 21 apply with the changes

required by the context to a request for correction.

(7) The information officer to whom a request for correction is made or

transferred' must, subject to sections 20 and 21(1), read with subsection

(6), as soon as reasonably possible, but in any event within 30 days, after

the request is received or transferred, decide on the request.

(8) If the information officer fails to decide on a request for

correction within the period contemplated in subsection (7), the

information officer is, for the purposes of this Act, regarded to have

refused the request.

(9) If the information officer decides that the information identified

in a request for correction is inaccurate, the information officer must,

free of charge and within the period contemplated in subsection (7)-

(a) correct the information and send a copy of the part of the record

containing the correction to the requester;

(b) determine, as far as reasonably possible, whether the inaccurate

information is in any other record of that governmental body and, if

it is, make the same correction on the other record;

information has been supplied by that governmental body to any other

governmental body or person and notify any such other governmental

body or person of the correction that was made; and

(d) send to the requester a copy of each notice which the information

officer gives in terms of paragraph (c).

(10) If the information officer decides upon a request for correction

to delete information contained in any record, he or she must, before

making the deletion-

(a) make a copy of the part of the record to be deleted;

(b) make a note on that copy of the fact of the deletion to be made in

the original record; and

(11) A governmental body which has been notified in terms of subsection

(9)(c) that such governmental body has been supplied with inaccurate

information must, as soon as reasonably possible, but in any event within

30 days, after being so notified, if the body-

(a) accepts that the information is inaccurate, correct that

information and notify the person to whom or which the information

relates that the correction has been made; or

(b) is of the opinion that the information is not inaccurate, make a

note and notify the requester as contemplated in subsection (12)(a)

and (b).

(12) If the information officer decides that the information identified

in a request for correction is not inaccurate and that the request is not

irrelevant, frivolous or vexatious, the information officer must, free of

charge and within the period contemplated in subsection (7)-

(a) make a note in the relevant record as near as reasonably possible

to the point where the information appears-

(i) of the decision of the information officer that the

information is not inaccurate;

(ii) that the accuracy of the information is disputed by the

requester concerned; and

(iii) that the request is attached to the record, and attach the

request to the record;

(b) notify the requester-

(i) of the decision that the information is not inaccurate;

(ii) that a note was made on the record as required by paragraph

(a);

(iii) that he or she may lodge an internal appeal with the head

of the governmental body against the decision that the

information is not inaccurate, and of the procedure

(including the period) for lodging the internal appeal,

and send a copy of the note to the requester;

statement of any further reasons why the requester considers the

information to be inaccurate; and

(d) unless there are reasonable grounds for considering the statement

irrelevant, defamatory or unnecessarily voluminous, attach the

statement so provided to the record.

(13) If a record containing personal information has been corrected in

terms of subsection (9) or (11), any disclosure or use of the record after

such correction must be in its corrected form.

(14) If a note has been made in a record as contemplated in subsection

(l1)(b) or (12)(a), any disclosure of the information concerned in the

record must include-

(a) that note;

(b) the request for correction concerned, if applicable; and

applicable.

Use of personal information by private bodies

53. Subject to section 59, a private body may not use a record of the

private body containing personal information, except-

(a) if the person to whom or which the information relates has

consented to its use in accordance with section 58;

(b) for the purpose for which the information was obtained or compiled

or for a purpose consistent with that purpose; or

private body in terms of section 55 or 56.

Use of personal information by governmental bodies

54. Subject to section 59, a governmental body may not use a record of

the governmental body containing personal information, except-

(a) if the person to whom or which the information relates has

consented to its use in accordance with section 58;

(b) for the purpose for which the information was obtained or compiled

or for a purpose consistent with that purpose; or

governmental body in terms of section 55 or 56.

Disclosure of personal information by private bodies

55. Subject to section 59, a private body may not disclose a record of

the private body containing personal information, except-

(a) in accordance with section 50 of this Act or any other law that

authorises its disclosure;

(b) if the person to whom or which the information relates has

consented to its disclosure in accordance with section 58;

or for a purpose consistent with that purpose;

(d) for the purpose of complying with-

(i) a subpoena, warrant issued or order made by a court or

person authorised to compel the production of information; or

(ii) rules of court relating to the production of information;

(e) for the purpose of avoiding prejudice to the maintenance of the

law, including the prevention, detection, investigation, prosecution

and punishment of an offence;

(f) for the purpose of averting or lessening an imminent and serious

threat to the health or safety of an individual or the public;

(g) for the purpose of the performance of a contract to which the

person to whom or which the information relates is a party; or

(h) for any prescribed purpose which would not pose a threat to the

privacy of the person to whom or which the information relates and-

(i) to which the person on invitation of the private body did not object;

(ii) which is necessary for pursuing the legitimate interests of

the private body.

Disclosure of personal information by governmental bodies

56. Subject to section 59, a governmental body may not disclose a

record of the governmental body containing personal information, except-

(a) in accordance with Part 3 of this Act or any other law that

authorises its disclosure;

(b) if the person to whom or which the information relates has

consented to its disclosure in accordance with section 58;

or for a consistent purpose;

(d) for the purpose of complying with-

(i) a subpoena, warrant issued or order made by a court or

person authorised to compel the production of information; or

(ii) the rules of court relating to the production of

information;

(e) for the purpose of avoiding prejudice to the maintenance of the

law, including the prevention, detection, investigation, prosecution

and punishment of an offence;

(f) for the purpose of averting or lessening an imminent and serious

threat to the health or safety of an individual or the public;

(g) to a prosecuting authority for the purposes of criminal proceedings

or to a legal practitioner representing the state, the Government of

the Republic, any functionary thereof or a governmental body in

civil proceedings for the purposes of those civil proceedings;

(h) to a governmental body, on the written request of that body, for

the purposes of enforcing the law or carrying out an investigation

in terms of the law, if the request specifies the purpose and

describes the information to be disclosed;

(i) in terms of an agreement between the Government of the Republic or

an organ thereof and the government of a foreign state, an

international organisation or an organ of that government or

organisation, for the purposes of administering or enforcing the law

or carrying out an investigation in terms of the law;

(j) to an official of a governmental body for the purpose of an

internal audit or to the Auditor-General or an official from his or

her office for the purpose of audit or to a person appointed to

carry out an audit in respect of a governmental body;

(k) to an archives repository in accordance with-

(i) section 11 of the National Archives of South Africa Act,

1996 (Act No. 43 of 1996); or

(ii) an equivalent provision of a provincial law regarding the

custody of records of governmental bodies in the relevant

provincial sphere of government;

(l) to any person for research or statistical purposes if-

(i) there are reasonable grounds for believing that the purpose

for which the information is disclosed cannot reasonably be

accomplished unless the information is provided in a form

that would identify the person to whom or which it relates;

and

(ii) the information officer of the governmental body obtains

from the person a written undertaking that no subsequent

disclosure of the information will be made in a form that

could reasonably be expected to identify the person to whom

or which it relates;

(m) to a governmental body for the purposes of locating a person-

(i) to collect a debt owing to the state or a governmental body

by that person; or

(ii) to make a payment owing to that person by the state or a

governmental body;

(n) to a person other than a governmental body for the purpose of

locating another person in order to make a payment owing to that

other person;

(o) for the purpose of the performance of a contract to which the

person to whom or which the information relates, is a party; or

(p) for any prescribed purpose which would not pose a threat to the

privacy of the person to whom or which the information relates and-

(i) to which the person on invitation of the governmental body

did not object; or

(ii) which is necessary for pursuing the legitimate interests of

the private body.

Consistent purpose

57. If personal information has been collected directly from the person

to whom or which the information relates, the purpose of a use or

disclosure of that information is a consistent purpose in terms of sections

53(b), 54(b), 55(c) and 56(c) only if the person might reasonably have

expected such a use or disclosure.

Consent to use or disclose personal information

58. (1) The consent of a person for the use or disclosure of personal

information in a record of a private or governmental body contemplated in

section 53(a), 54(a), 55(b) or 56(b)-

(a) must be obtained by the prescribed person in the prescribed form

and manner; and

(b) may be withdrawn by the person giving that consent as prescribed.

(2) Regulations made for the purposes of subsection (1) may-

(a) differentiate between different-

(i) categories of private bodies; and

(ii) categories of governmental bodies; and

(b) provide for the consent for a specific purpose or a category of

purposes.

Use and disclosure of personal information held before commencement

59. (1) If a record containing personal information is in the

possession or under the control of-

(a) a private body from a date before the commencement of sections 53

and 55 those sections do not apply to that record of the private

body for a prescribed period from that commencement;

(b) a governmental body before the commencement of sections 54 and 56,

those sections do not apply to that record of the governmental body

for a prescribed period from that commencement.

(2) If, at the end of the prescribed period referred to in subsection

(1)(a) or (b), as the case may be, the prescribed steps have been taken to

obtain the consent contemplated in section 53(a), 54(a), 55(b) or 56(b), as

the case may be, of the person to whom or which the personal information in

the record contemplated in subsection (1)(a) or (b), as the case may be,

relates, that person is regarded to have given that consent whether or not

the person in fact gave consent.

(3) Any consent regarded to have been given in terms of subsection (2)

may be withdrawn as prescribed.

(4) Regulations made for the purposes of subsection (l) or (3) may-

(a) differentiate between different-

(i) categories of private bodies; and

(ii) categories of governmental bodies; and

(b) provide for the consent for a specific purpose or a category of

purposes.

60. (1) If the use or purpose of personal information in a personal

information bank of a governmental body is not included in the statements

of uses and purposes set out in accordance with section 6(2)(d)(ii)(bb) in

the manual of the body published in terms of section 6, the head of that

body must-

(a) keep a register of-

(i) any use by the body of that personal information; and

(ii) any use or purpose for which that personal information is

disclosed by the body; and

(b) attach that register to that personal information.

(2) For the purposes of this Act, a register attached in terms of

subsection (1)(b) is regarded to form part of the personal information to

which it is attached.

(3) If the personal information in a personal information bank of a

governmental body is used or disclosed for a use consistent with the

purpose for which the information was obtained or compiled by the body but

the use is not included in the statement of compatible uses set out in

accordance with section 6(2)(d)(ii)(bb) in the manual of the body, the head

of the body must ensure that the use is included in the next manual to be

published.

Collection of personal information by governmental bodies

61. (1) No personal information may be collected by a governmental body

unless such collection is-

(a) required or permitted in terms of legislation; or

(b) required for carrying out the functions of that body.

(2) A governmental body must, if reasonably possible, collect personal

information which is intended to be or may be used in taking any decision

which affects a person's right or determines its content, directly from

that person unless-

(a) the person authorises otherwise; or

(b) personal information contained in a record may be disclosed to the

body in terms of section 56.

(3) If a governmental body collects personal information directly from

a person, the body must inform the person of-

(a) the fact that, and the purpose for which, the information is being

collected;

(b) the name and address of the body that-

(i) is collecting the information; and

(ii) will hold the information;

terms of legislation-

(i) the relevant provisions of that legislation; and

(ii) whether the supply of the information by the person is

voluntary or compulsory;

(d) the rights of access to, and correction of, personal information

referred to in sections 9 and 52, respectively.

(4) Subsections (2) and (3) do not apply if compliance therewith could

reasonably be expected to defeat the purpose, or prejudice the use, for

which the information is being collected.

Retention, accuracy and disposal of personal information by governmental

bodies

62. (1) Personal information which has been used by a governmental body

to make a decision which affects a person's right, or determines its

content, must be retained by the head of that body for such prescribed

period after it was so used as is necessary to ensure that the person to

whom or which it relates has a reasonable opportunity to obtain access to

that information.

(2) The head of a governmental body must take all reasonable steps to

ensure that personal information which is used by the body to make a

decision which affects a person's right, or determines its content, is as

accurate, up-to-date and complete as possible and that-

(a) the confidentiality of that information is protected; and

(b) that information is secured against unauthorised access.

(3) The head of a governmental body must dispose of personal

information in a record of the body as prescribed.

PART 5

PROTECTION OF WHISTLE-BLOWERS

Exclusion of liability if disclosing contravention of law, corruption or

maladministration

63. (1) No person is civilly or criminally liable or may be subjected

to disciplinary action in any court or administrative or other tribunal on

account of having disclosed any information, if-

(a) the person in good faith and reasonably believed at the time of the

disclosure that he or she was disclosing evidence of a contravention

of the law, corruption, dishonesty or serious maladministration in a

governmental body or on the part of an official of the body (in this

Part referred to as an "impropriety"); and

(b) the disclosure was made in accordance with subsection (3).

(2) Without limiting the generality of subsection (l)(a) "impropriety"

includes-

(a) an abuse of power by a governmental body or an official thereof;

(b) an improper or unauthorised use of the funds or other assets of the

state or a governmental body;

substantial-

(i) waste of public resources; or

(ii) danger to the health or safety of an individual or the

public; or

(d) an offence referred to in section 1 of the Corruption Act, 1992

(Act No. 94 of 1992).

(3) Subsection (1) applies only if the person concerned-

(a) disclosed the information concerned to-

(i) a committee of Parliament or of a provincial legislature;

(ii) the Public Protector;

(iii) the Human Rights Commission;

(iv) the Auditor-General;

(v) any Attorney-General or his or her successor; or

(vi) more than one of the bodies or persons referred to in

subparagraph (i) to (v); or

(b) disclosed the information concerned to one or more news media and

on clear and convincing grounds (of which he or she bears the burden

of proof) believed at the time of the disclosure-

(i) that disclosure was necessary to avert an imminent and

serious threat to the safety or health of an individual or

the public, to ensure that the impropriety concerned was

properly and timeously investigated or to protect himself or

herself against serious or irreparable harm from reprisals;

(ii) giving due weight to the importance of open, accountable

and participatory administration, that the public interest in

disclosure of the information clearly outweighed any need for

non-disclosure; or

with any applicable external or internal procedure (other than the

procedures contemplated in paragraph (a) or (b)) for reporting or

otherwise remedying the impropriety concerned.

(4) Subsection (1) applies whether or not the person disclosing the

information concerned has used or exhausted any other applicable external

or internal procedure to report or otherwise remedy the impropriety

concerned.

Exclusion of liability if disclosing information after publication

64. No person is civilly or criminally liable or may be subjected to

disciplinary action in any court or administrative or other tribunal on

account of having disclosed any information if, before the time of the

disclosure of the information, it had become available to the public,

whether in the Republic or elsewhere.

Protection against reprisals

65. (1) Any person who made, or indicated that he or she intends

making, a disclosure contemplated in section 63 or who refused to

participate in an impropriety, may not as a result thereof or partly as a

result thereof-

(a) in respect of his or her employment, profession or office-

(i) be dismissed, suspended, demoted, harassed or intimidated;

(ii) be transferred against his or her will;

(iii) be refused transfer or promotion;

(iv) be subjected to a term or condition of employment or

retirement which is altered or kept unaltered to his or her

disadvantage;

(v) be otherwise detrimentally affected in respect of that

employment, profession or office, including, but not limited

to, employment opportunities and work security;

(b) be denied appointment or election to any employment, profession or

office; or

(2) If it is proved, in any criminal or civil proceedings or

disciplinary action before a court or administrative or other tribunal with

respect to an alleged contravention or threatened contravention of

subsection (1), that an action contemplated in subsection (1)(a), (b) or

intention to disclose or refusal contemplated in subsection (1), it must be

presumed, unless the contrary is proved, that such action took place as a

result, or partly as a result, of that disclosure, indication of an

intention to disclose or refusal.

(3) Subsection (1) applies whether or not the person who disclosed the

information concerned has used or exhausted any other applicable external

or internal procedure to report or otherwise remedy the impropriety

concerned.

(4) A provision in a contract of employment or other agreement whereby

any provision of this section is excluded, is void.

(5) An official of a governmental body who has made a disclosure

contemplated in section 63 must, on his or her request and if reasonably

possible, be transferred from the post or position occupied by him or her

at the time of the disclosure to-

(a) another post or position in the same division or another division

of that governmental body; or

(b) another governmental body.

(6) The terms and conditions of employment of a person transferred in

terms of subsection (5) may not, without his or her written consent, be

less favourable than the terms and conditions applicable to him or her

immediately before his or her transfer.

Notice to officials of provisions of Part and other complaint procedure

66. The head of a governmental body must give to every official of the

body a copy of a notice prepared by the Human Rights Commission, which

explains-

(a) the provisions of this Part and section 85(b) and all external and

internal procedures (other than the procedure contemplated in

section 63) available to an official of the body who wishes to

report or otherwise remedy an impropriety or, when those provisions

or procedures are amended, that amendment;

(b) that, if a contravention or threatened contravention of a provision

of this Part in relation to a person is alleged, that the person may

lodge an application with a High Court for appropriate relief, and

the procedure (including the period) for lodging that application.

PART 6

APPEALS AGAINST DECISIONS

CHAPTER I

INTERNAL APPEALS

Right of internal appeal to head of governmental body

67. (1) A person may lodge an internal appeal against any decision of

the information officer of a governmental body in relation to that person

with the head of the body.

(2) Subsection (1) may not be construed to limit any other right a

person has in terms of the law to remedy a matter in respect of which an

internal appeal may be lodged.

Manner of internal appeal, and appeal fees

68. (1) An internal appeal-

(a) must be lodged in the prescribed form-

(i) within 60 days;

(ii) if notice to a third party is required by section 47(1)(b),

within 30 days; or

(iii) if the internal appeal is against the granting of a request

for access and an urgent request application has been granted

in respect of the request, within 10 working days,

after notice is given to the appellant of the decision appealed

against or, if notice to the appellant is not required, after the

decision was taken;

(b) must be delivered or sent to the information officer of the

governmental body concerned at his or her address, fax number or

electronic mail address;

reasons for the internal appeal and may include any other relevant

information known to the appellant

(d) if, in addition to a written reply, the appellant wishes to be

informed of the decision on the internal appeal in any other manner,

must state that manner and provide the necessary particulars to be

so informed;

(e) if applicable, must be accompanied by the prescribed appeal fee

referred to in subsection (4); and

(f) must specify a postal address or fax number and, if the internal

appeal includes an urgent appeal application, a phone number for the

appellant in the Republic.

(2) A person who wishes to lodge an internal appeal, but, because of

illiteracy, poor literacy or physical disability, is unable to comply with

subsection (1), may request the Human Rights Commission to assist him or

her to so comply.

(3)(a) If an internal appeal is lodged after the expiry of the period

referred to in subsection (1), the head of the governmental body

concerned must, upon good cause being shown, allow the late lodging

of the internal appeal.

(b) If that head disallows the late lodging of the internal appeal, he

or she must give notice of that decision to the person that lodged

the internal appeal.

(4) (a) A commercial requester lodging an internal appeal against the

refusal of his or her request for access must pay the prescribed

appeal fee.

(b) If the prescribed appeal fee is payable in respect of an internal

appeal, the decision on the internal appeal may be deferred until

the fee is paid.

(5) As soon as reasonably possible, but in any event, within 10 working

days, or, if an urgent appeal application has been granted, immediately,

after receipt of an internal appeal in accordance with subsection (1), the

information officer of the governmental body concerned must submit to the

head of that body-

(a) the internal appeal together with his or her reasons for the

decision concerned; and

(b) if the internal appeal is against the refusal or granting of a

request for access, the name, postal address, phone and fax number

and electronic mail address, whichever is available, of any third

party that must be notified in terms of section 45(1) of the

request.

Notice to and representations by other interested persons

69. (1) If the head of a governmental body is considering an internal

appeal against the refusal of a request for access to a record contemplated

in section 29(1) or 31(1), the head 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 head must inform a third party in terms of subsection (1)-

(a) as soon as reasonably possible, but in any event, within 30 days

or, if an urgent appeal application has been granted, within five

working 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 head

concerned 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

29(1) or 31(1), as the case may be, and describe the content of the

record;

(b) furnish the name of the appellant;

(i) section 29(1), describe the provisions of section 29; or

(ii) section 31(1), describe the provisions of section 31;

(d) in any case where that head believes that the provisions of section

44(1) might apply, describe those provisions, specify which of the

circumstances referred to in section 44(1)(a)(i) to (iv) in the

opinion of the head might apply and state the reasons why he or she

is of the opinion that section 44(1) might apply; and

(e) state that the third party may, within 21 days or, if an urgent

appeal application

has been granted, within 10 working days, after the third party is

informed, make written representations to that head why the request for

access should not be granted.

(4) If a third party is not informed in writing of an internal appeal

in terms of subsection (1), the head of the governmental body concerned

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-

(a) within 21 days; or

(b) if an urgent appeal application has been granted, within 10 working

days, after the third party has been informed, make written

representations to the head of the governmental body concerned why

the request for access should not be granted.

(6) If the head of a governmental body is considering an internal

appeal against the granting of a request for access, the head must give

notice of the internal appeal to the requester.

(7) The head must-

(a) notify a third party in terms of subsection (6) as soon as

reasonably possible, but in any event, within 30 days or, if an

urgent appeal application has been granted, within five working

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 head why that

request should be granted.

(8) A requester to whom or which notice is given in terms of subsection

(6) may within 21 days after that notice is given, make written

representations to the head of the governmental body why the request for

access should be granted.

Decision on internal appeal and notice thereof

70. (1) The decision on an internal appeal must be made with due regard

to-

(a) the particulars stated in the internal appeal in terms of section

68(1)(c);

(b) any reasons submitted by the information officer in terms of

68(5)(a);

(d) if a third party cannot be located as contemplated in section

69(1), the fact that the third party did not have the opportunity to

make representations in terms of section 69(5) why the internal

appeal should be dismissed.

(2) When deciding on the internal appeal the head of the governmental

body concerned may confirm the decision appealed against or substitute a

new decision for it.

(3) The head of the governmental body concerned must, subject to

section 71, decide on the internal appeal-

(a) as soon as reasonably possible, but in any event, within 30 days

after the internal appeal is received by the information officer of

the body;

(b) if a third party is informed in terms of section 69(1), as soon as

reasonably possible, but in any event-

(i) within 30 days; or

(ii) if an urgent appeal application has been granted, within 15

working days after the third party has been informed;

(i) within five working days after the requester concerned has

made written representations in terms of section 69(8); or

(ii) in any other case within 30 days after notice is so given.

(4) The head of the governmental body must, immediately after the

decision on an internal appeal-

(a) give notice of the decision to

(i) the appellant;

(ii) every third party informed as required by section 69(1); and

(iii) the requester notified as required by section 69(6); and

(b) if reasonably possible, inform the appellant about the decision in

any other manner stated in terms of section 68(1)(d).

(5) The notice in terms of subsection (4)(a) must state-

(a) the findings on all material questions of fact, referring to the

material on which those findings were based;

(b) the reasons for the decision (including the provision of this Act

relied upon to justify the decision) in such manner as to enable the

appellant, third party or requester, as the case may be-

(i) to understand the justification for the decision; and

(ii) to make an informed decision about whether to lodge an

application with a High Court or to utilise any other remedy

in law available to him or her, with respect to the decision

on internal appeal; and

may lodge an application with a High Court against the decision on

internal appeal-

(i) within 60 days;

(ii) if notice to a third party is required by subsection

(4)(a)(ii), within 30 days; or

(iii) if that application is against the granting of a request

for access on internal appeal and an urgent appeal

application has been granted in respect of the internal

appeal, within 10 working days,

after notice is given, and the procedure for lodging the

application; and

(d) if the head of the governmental body concerned decides on internal

appeal to grant a request for access and notice to a third party-

(i) is not required by subsection (4)(a)(ii), that access to

the record will forthwith be given; or

(ii) is so required, that access to the record will be given

after the expiry of the applicable period for lodging an

application with a High Court against the decision on

internal appeal referred to in paragraph (c), unless that

application is lodged before the end of that applicable

period.

(6) If the head of the governmental body decides on internal appeal to

grant a request for access and notice to a third party-

(a) is not required by subsection (4)(a)(ii), the information officer

of the body must forthwith give the requester concerned access to

the record concerned; or

(b) is so required, the information officer must, after the expiry of-

(i) 30 days; or

(ii) if an urgent appeal application has been granted in respect

of the internal appeal, 10 working days,

after the notice is given to every third party concerned, give the

requester access to the record concerned, unless an application with

a High Court is lodged against the decision on internal appeal

before the end of the applicable period referred to in subsection

(5)(c) for lodging that application.

(7) If the head of a governmental body fails to decide on an internal

appeal within the period contemplated in subsection (3), that head is, for

the purposes of this Act, regarded to have dismissed the internal appeal.

Urgent internal appeals

71. (1) A requester who wishes-

(a) his or her internal appeal against the refusal of a request for

access to be decided urgently must include an application to that

effect in the internal appeal; or

(b) an internal appeal against the granting of his or her request for

access to be decided urgently must lodge an application to that

effect with the information officer concerned, and in that

application give reasons for the urgency.

(2) If an urgent appeal application is included in an internal appeal

or is lodged with an information officer of a governmental body, the head

of that body must, subject to section 69, immediately or, if that is not

reasonably possible, as soon as reasonably possible, but in any event,

within five working days, after the receipt of that urgent appeal

application, decide on the internal appeal and give notice of the decision

as required by section 70(4), unless there are reasonable grounds for

believing that-

(a) the nature of the reasons for the urgency furnished by the

applicant is such that the applicant will suffer no prejudice if the

internal appeal is decided upon within the period contemplated in

section 70(3); or

(b) it is impractical to decide on the internal appeal within five

working days after that urgent appeal application has been received.

(3) If the head of a governmental body refuses an urgent appeal

application on the grounds referred to in subsection (2)(a) or (b), the

head must immediately or, if that is not reasonably possible, as soon as

reasonably possible, but in any event, within five working days, after that

urgent appeal application has been received, notify the applicant of the

refusal.

(4) The notice in terms of subsection (3) must state-

(a) the findings on all material questions of fact, referring to the

material on which those findings were based;

(b) the reasons for the refusal (including the provision of this Act

relied upon to justify the refusal) in such manner as to enable the

applicant-

(i) to understand the justification for the refusal; and

(ii) to make an informed decision about whether to lodge an

application with a High Court or to utilise any other remedy

in law available to the applicant, with respect to the

refusal; and

against the refusal of the urgent appeal application, and the

procedure (including the period) for lodging that application with a

High Court.

(5) If the notice in terms of subsection (2) or (3) of a decision is

not given by fax, the applicant concerned must be informed by phone of the

decision.

CHAPTER 2

APPLICATIONS TO HIGH COURT

Non-exclusion of other remedies

72. This Chapter may not be construed to exclude or limit any other

right a person has in terms of the law to remedy a matter in respect of

which an application may be lodged with a High Court in terms of this

Chapter.

Manner of applications to High Court

73. (1) An application in terms of this Chapter must be lodged-

(a) with a High Court having jurisdiction in terms of section 76; and

(b) subject to this Chapter, in accordance with the rules regarding an

urgent application by way of notice on motion applicable to that

High Court.

(2) For the purposes of those rules of the High Court concerned, all

applications are regarded to be urgent without any supporting documents

required to set out the reasons for the urgency and why the applicant could

not be afforded substantial redress at a hearing in due course.

(3) If the interests of justice so require, a High Court having

jurisdiction may extend the period within which an application may be

lodged.

Applications regarding decisions of information officers or heads of

governmental bodies

74. (1) A person-

(a) that has been unsuccessful in an urgent request application, an

internal appeal to the head of a governmental body or an urgent

appeal application; or

(b) aggrieved by a decision of the head of a governmental body to

disallow the late lodging of an internal appeal in terms of section

68(3),

may appeal against the decision by way of an application.

(2) If an application referred to in subsection ( I ) is against the

granting of a request for access on internal appeal that application must

be lodged-

(a) within 30 days; or

(b) if an urgent appeal application has been granted in respect of the

internal appeal, within 10 working days,

after the third party concerned has been notified of the decision to

grant the request on internal appeal.

(3) The Human Rights Commission may appeal by way of an application

against a decision of-

(a) the information officer of a governmental body; or

(b) the head of a governmental body on internal appeal.

(4) A third party notified of a decision of the head of a governmental

body to disclose information regarding a serious public safety or

environmental risk in terms of section 8(5)(a), may appeal by way of an

application against the decision within 10 working days after the third

party concerned has been notified of the decision.

Applications regarding contraventions of Part 5

75. If a contravention or threatened contravention of a provision of

Part 5 is alleged in relation to a person, that person may lodge an

application for appropriate relief.

Jurisdiction of High Court

76. A High Court has jurisdiction in respect of-

(a) a decision of the information officer or head of a governmental

body contemplated in section 74 which has its office or, if the body

has more than one office, its main office;

(b) a person that lodges an application in terms of section 74(1) or

(4) or 75 and resides, carries on a business or is employed;

occurred or is about to occur,

in the area of jurisdiction of the High Court.

Assistance of Human Rights Commission

77. (1) An individual who wishes to lodge an application, but, because

of illiteracy, poor literacy or a physical disability, is unable to comply

with this Chapter, may request the Human Rights Commission to assist him or

her to so comply.

(2) If the Human Rights Commission is of the opinion that an important

matter of principle is involved, the Commission may appear before a High

Court as a party to an application.

(3) The Human Rights Commission may, on request, appoint a person to

represent an individual who has lodged an application in terms of section

74(1) or 75.

Production of records of governmental bodies to High Court

78. (1) Despite any other provisions of this Act, any court hearing an

application or an appeal against a decision on an application may examine

any record of a governmental body to which this Act applies, and no such

record may be withheld from that court on any grounds.

(2) Such court may, subject to subsection (3), not disclose to any

person, including the parties to the proceedings concerned-

(a) any record of a governmental body which is required or permitted in

terms of this Act to be withheld from disclosure; or

(b) if the information officer of a governmental body, or the head of

that body on internal appeal, in refusing to grant access to a

record in terms of section 34(2) or 36(2), refuses to confirm or

deny the existence or non-existence of the record, any information

as to whether the record exists.

(3) If such court considers it in the interest of justice, it may order

the disclosure of such record or such information to any party to the

proceedings concerned, and may, if it considers it necessary, order such

party not to disclose such record or such information to another person.

Burden of proof

79. In any legal proceedings the burden of establishing that-

(a) the refusal of a request for access; or

(b) any decision taken in terms of section 17(2), 18(1), 20, 21(1),

25(3), 52(12)(d), 65(5) or 71, is justified in terms of this Act is

on the party claiming that it is so justified.

Decision on application

80. (1) After due consideration of all written and oral evidence before

a High Court in respect of an application, the Court may make any order or

other decision which it considers just.

(2) An order or other decision in terms of subsection (1) includes, but

is not limited to, an order or other decision-

(a) which confirms, amends or sets aside the decision which is the

subject of the application concerned;

(b) which requires from the information officer or head of a

governmental body to take such action as the High Court considers

necessary within a period mentioned in the order;

application or urgent appeal application, on the request for access

to a record in respect of which that application was made;

(d) which grants an interdict, interim or specific relief, a

declaratory order or compensation.

(3) In deciding in terms of subsection (1) which order or other

decision is just, the High Court concerned must have due regard to the

desirability of a speedy and inexpensive resolution of the application

concerned.

Costs

81. A High Court may make such order as to costs of an application

before the Court as it considers appropriate.

PART 7

MISCELLANEOUS PROVISIONS

Additional functions of Human Rights Commission

82. (1) The Human Rights Commission must-

(a) annually review this Act and other legislation and the common law

having a bearing on the accountability and openness of governmental

bodies as well as private bodies which exercise substantial

influence over the nature of the South African society;

(b) make recommendations for-

(i) the development, improvement, modernisation, reform or

amendment of this Act or other legislation or common law

contemplated in paragraph (a);

(ii) the compliance with any constitutional requirements about

access to information; and

(iii) procedures in terms of which governmental bodies make

information electronically available;

(d) develop and conduct educational programmes to advance the

understanding of the public, in particular of disadvantaged

communities, of this Act and of how to exercise the rights

contemplated in this Act;

(e) encourage governmental and private bodies to participate in the

development and conduct of programmes referred to in paragraph (d)

and to undertake such programmes themselves;

(f) promote timely and effective dissemination of accurate information

by governmental bodies about their activities;

(g) publish and make available a guide on how to use this Act as

contemplated in section 5;

(h) if reasonably possible-

(i) assist any person as required by this Act; and

(ii) generally, on request, assist any person wishing to

exercise a right contemplated in this Act;

(i) make the determinations as contemplated in section 43;

(j) supply the notice as contemplated in section 66; and

(k) submit reports to the National Assembly as contemplated in section

83.

(2) The Human Rights Commission has all such powers as are reasonably

necessary or expedient to enable it to perform its duties referred to in

subsection (1), including, but not limited to, the power to-

(a) recommend to a governmental or private body that the body make such

changes in the manner in which it administers this Act as the

Commission considers advisable;

(b) train information officers of governmental bodies;

bodies on the problems encountered in complying with this Act;

(d) obtain advice from, consult with, or receive and consider proposals

or recommendations from, any governmental or private body, official

of such a body or member of the public in connection with the

Commission's functions in terms of this Act;

(e) receive money from any source to perform its functions in terms of

this Act;

(f) make donations to any private body participating in the development

or conduct of, or undertaking, educational programmes as

contemplated in subsection (1)(e);

(g) for the purposes of section 83(c)(xii), request the Public

Protector to submit to the Commission information with respect to-

(i) the number of complaints lodged with the Public Protector

in respect of a right conferred or duty imposed by this Act;

(ii) the nature and outcome of those complaints; and

(h) generally, inquire into any matter, including any legislation, the

common law and any practice and procedure, connected with the

objects of this Act.

(3) An official of a governmental body must afford the Human Rights

Commission reasonable assistance for the effective performance of its

functions in terms of this Act.

Report to National Assembly by Human Rights Commission

83. The Human Rights Commission must include in its annual report to

the National Assembly referred to in section 181(5) of the Constitution-

(a) any recommendation in terms of section 82(1)(b);

(b) a statement of all money received from any source referred to in

section 82(2)(e);

(i) the number of requests for access received;

(ii) the number of requests for access granted in full;

(iii) the number of requests for access granted in terms of

section 44;

(iv) the number of requests for access refused in full and

refused partially and the number of times each provision of

this Act relied on to refuse access was invoked to justify

refusal in full and partial refusal;

(v) the number of requests for correction and the number of

cases in which a correction was made;

(vi) the number of cases in which the periods stipulated in

sections 19(1) and 52(7), respectively, were extended in

terms of section 21(1) and that section, read with section

52(6), respectively;

(vii) the number of urgent request applications and urgent appeal

applications, and the number of cases in which those

applications were granted;

(viii) the number of internal appeals lodged with the head of the

body and the number of cases in which, as a result of an

internal appeal, access was given to a record or a part

thereof and a correction of inaccurate personal information

was made;

(ix) the number of internal appeals which were lodged on the

ground that-

(aa) a request for access was regarded to have been refused

in terms of section 22;

(bb) a request for correction was regarded to have been

refused in terms of section 52(8);

(x) the number of applications made to every High Court and the

outcome thereof and the number of decisions of every High

Court appealed against and the outcome thereof;

(xi) the number of applications to every High Court which were

lodged on the ground that an internal appeal was regarded to

have been dismissed in terms of section 70(7);

(xii) the number of complaints lodged with the Public Protector

in respect of a right conferred or duty imposed by this Act

and the nature and outcome thereof; and

(xiii) such other matters as may be prescribed.

Expenditure of Human Rights Commission in terms of Act

84. Any expenditure in connection with the performance of the Human

Rights Commission's functions in terms of this Act must be defrayed subject

to-

(a) requests being received with the changes required by the context in

the form prescribed for the budgetary processes of departments of

State; and

(b) the Exchequer Act, 1975 (Act No. 66 of 1975), and the regulations

and instructions thereunder, and the Auditor-General Act, 1995 (Act

No. 12 of 1995).

Offences

85. A person who-

(a) wilfully fails to comply with an undertaking contemplated in

section 56(1)(ii); or

(b) discloses information about an impropriety contemplated in section

63(1)(a) knowing it to be false or not knowing or believing the

information to be true; or

classified in terms of the regulations made in terms of section

86(1)(c) and has been unlawfully obtained,

commits an offence and is liable on conviction to a fine or to

imprisonment for a period not exceeding 12 months.

Regulations

86. The Minister of Justice may, after consultation with the Human

Rights Commission and with the approval of Parliament, by notice in the

Gazette make regulations regarding-

(a) any matter which is required or permitted by this Act to be

prescribed;

(b) any notice required by this Act;

(d) any administrative or procedural matter necessary to give effect to

the provisions of this Act.

Short title and commencement

87. (1) This Act is the Open Democracy Act, 1998, and takes effect on a

date determined by the President by proclamation in the Gazette.

(2) Different dates may be so determined in respect of different

provisions of this Act.

MEMORANDUM ON THE OBJECTS OF THE OPEN DEMOCRACY BILL, 1998

Constitutional right of access to information

1.1 Section 32(1) of the Constitution of the Republic of South Africa,

1996 ("the Constitution"), provides as follows:

"(1) Everyone has the right of access to-

(a) any information held by the state; and

(b) any information that is held by another person and that is

required for the exercise or protection of any rights.".

1.2 Section 32(2) of the Constitution, read with item 23(1) of Schedule

6 thereto, requires the enactment of national legislation to give effect to

this right within three years of the commencement of the Constitution, that

is before 4 February 2000. Item 23(2) of Schedule 6 to the Constitution

provides that until such legislation is enacted section 32(1) must be

regarded to read as follows (which is similar to the corresponding right in

terms of the Constitution of the Republic of South Africa, 1993 (Act No.

200 of 1993)):

"(1) Every person has the right of access to all information held by

the state or any of its organs in any sphere of government in so far as

that information is required for the exercise or protection of any of their

rights.".

1.3 The right of access to information referred to in section 32(1) of

the Constitution, being part of the Bill of Rights, may only be limited in

accordance with the limitations provisions for the Bill of Rights in the

Constitution, namely sections 32(2) and 36.

Principal objects of Bill

2.1 The principal objects of the Bill are-

(a) to give effect to the right referred to in section 32(1)(a) of the

Constitution, and to partially give effect to the right mentioned in

section 32(1)(b) of the Constitution and to section 195(3), read

with section 195(1)(g), of the Constitution; and

(b) generally, to promote transparency and accountability by all organs

of state by-

(i) providing the public with timely, accessible and accurate

information; and

(ii) empowering the public to effectively scrutinise, and

participate in, governmental decision making that affects

them.

2.2 To attain these principal objects, the Bill includes specific

provision for-

(a) public access, on request, to information held by the state,

subject to exemptions necessary to protect good governance, personal

privacy and commercial confidentiality;

(b) the disclosure of information obtained in accordance with the Bill;

the public in understanding the functions of governmental bodies,

their operation and the criteria employed in making decisions;

(d) access by persons to information about themselves held by private

bodies, the correction of personal information held by the state or

private persons as well as the regulation of the use and disclosure

of such personal information;

(e) the protection of persons disclosing evidence of contraventions of

the law, serious maladministration or corruption in governmental

bodies; and

(f) enforcement mechanisms in respect of the rights contemplated in the

Bill in the form of internal appeals as well as applications lodged

with a High Court.

Full effect to section 32(1)(b) of Constitution

3. A right of access to any information held by another person and

which is required for exercising or protecting any rights which is

protected as a fundamental right in a constitution is a new notion in law,

not only in South Africa but also elsewhere. Consequently, it is considered

desirable for the Human Rights Commission to investigate and consult as

widely as possible on this matter in order to make recommendations

regarding legislation which would give full effect to this right as

required by section 32(1)(b), read with section 32(2), of the Constitution.

Existing legislation inconsistent with Bill

4. No express provision is made in the Bill for amendments to existing

legislation inconsistent with the Bill or the provisions of the

Constitution regarding access to information. Clause 2 of the Bill contains

a general override, stipulating that the provisions of the Bill (if it

becomes law and takes effect) prevail over all other legislation in case of

conflict. The Constitution, being the supreme law, will in any case prevail

over any conflicting legislation. The eventual amendment or repeal of these

inconsistent provisions in existing legislation, although not absolutely

necessary, is desirable for the sake of clarity. To this end each

functionary administering such inconsistent legislation should make

proposals to the appropriate legislative authorities for the necessary

adjustments.

Duty of confidentiality of officials

5. If the Bill becomes law and takes effect, one of its significant

effects on existing legislation would be the repeal of any duty of

confidentiality imposed on a government official by other legislation where

information is disclosed in accordance with the Bill.

Parliamentary procedure

6.1 Section 76(3)(d) of the Constitution provides that a Bill must be

dealt with in accordance with the procedure established by section 76(1) or

(2) thereof if it provides for legislation envisaged in section 195(3) and

(4) of the Constitution. Section 195(3), read with section 195(1), of the

Constitution provides that national legislation must inter alia ensure the

promotion of the following principles:

(a) Transparency must be fostered by providing the public with timely,

accessible and accurate information;

(b) Public administration must be accountable; and

These principles apply to administration in every sphere of government

and to organs of state and public enterprises (section 195(2) of the

Constitution).

6.2 Given that the Bill provides for legislation envisaged in the said

section 195(3), the State Law Advisers are of the opinion that the Bill

must be dealt with by Parliament in accordance with the procedure

established by section 76(1) or (2) of the Constitution.

Consultation

7.1 The following bodies/persons were consulted:

- Ministries and Government Departments/Offices (including the

Premiers of provinces, the Public Protector, Attorneys-General,

South African Police Service, South African National Defence Force

and National Intelligence Agency)

- Chief Justice of the then appellate division of the Supreme Court

and Judges President of the then provincial divisions of the Supreme

Court

- Open Democracy Advisory Forum (constituted of more than 60

organisations mainly representing civil society)

- Various public enterprises and non-governmental bodies

7.2 In order to comply with section 154(2) of the Constitution a draft

of the Bill was published in the Gazette in October 1997 for information

and comment.