15 June 2000

To: The Director: Secondary Legislation, Department of Justice

1.1) The Open Democracy Campaign Group conducted extensive research in respect of what was then the Open Democracy Bill and made a number of submission to the Ad Hoc Parliamentary Committee. The Campaign Group represents a broad range of NGO organisations and interests and to that extent is representative of the sort of non-profit, public interest organisation that is likely to make frequent requests for information under the provisions of the Promotion of Access to Information Act 2000 (hereafter the Act), whether for their own research and related purposes or on direct behalf of their clients.

1.2) With this in mind, the regulations in respect of which submissions are now invited are of great interest to the Campaign Group. Hence, we would like to put forward constructive, and motivated, suggestions as to how best to frame the regulations so as to achieve the objectives of the Act. Our proposals focus on four areas of the Act:

• Section 93(2)(a): different provisions of the Act coming into effect of different dates;
• Sections 14(5) and 51(4): exemption of public and private bodies from obligation to publish a manual in terms of sections 14(5) and 51(4) respectively;
• Sections 22(8) and 54(8): exemptions and determination of fees; and,
• The need for a transparent and open approach to the promulgation of the envisaged regulations.

2.1) Section 93(1) provides for the President to determine a date whereon the Act will come into effect. Section 93(2)(a) provides that different dates may be determined in respect of different provisions of the Act. However it is important to read this section within the purpose and context of the Act.

2.2) The Act's purpose is contained in the long title: "To give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights". In terms of the Preamble the Act gives effect to section 32 of the Constitution (Act 108 of 1996). Section 32 of the Constitution is "directed at promoting good government" (Ex parte Chairperson of the Constitutional Assembly: In Re certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) para 83.).

2.3) The Act's paramount aim is to provide detailed substantive provisions relating to the constitutional right of access to information. The Act aims at empowering both natural and juristic persons to engage with their right of access to information. Without knowing how to engage the right of access to information, the right is meaningless. Therefore the Act provides for:

• a manual on the functions of, and index of records held by public and private bodies (sections 14 & 51);
• voluntary disclosure and information that is automatically available (sections 15 & 52);
• assistance to a requestor to request information by a public body (section 19); and,
• the South African Human Rights Commission (hereafter SAHRC) to compile a guide on how to use the Act (section 10).

2.4) Section 32(2) of the Constitution includes a provision recognising that the right of access to information may place administrative and financial burdens on the state and the Act, it continues, "may provide for reasonable measures to alleviate the administrative and financial burden on the state."

2.5) These reasonable measures are included in the Act that provides for:

• public and private bodies to enjoy a six month grace after the commencement of sections 14 and 51 to compile a manual on the functions of, and index of records;
• public and private bodies to submit a description relating to voluntary disclosure and information that is automatically available once a year, in terms of sections 15 and 52; and,
• the SAHRC to compile a guide on how to use the Act within eighteen months of the commencement of section 10.

2.6) As sections 10, 14, 15, 51 and 52 contain inherent time delays we do not support the delay of the coming into effect of these provisions in terms of section 93(2) of the Act.

2.7) Section 19 provides for "reasonable" assistance to a requestor by a public body. Therefore there is no need to delay this section's coming into effect as the facts of each case will determine what is "reasonable", taking into account financial and practical considerations. We cannot support a delay of this section.

2.8) As a group we recognised the administrative and financial burdens when the Act was promulgated (February 2, 2000) and accepted that the Act would not become operative immediately. Most obvious was the fact that neither private nor public bodies budgeted for the implementation of the Act. However, we are in a new financial cycle now and the Act is not in effect yet.

2.8) In exercising section 93(2) the principle of accessibility to the Act should apply. Delaying sections that are aimed at providing access to the Act undermines the efficacy of the Act and the constitutional right of access to information.

2.9) We recommend that:

• the Act be implemented at the start of the next financial cycle with due regard to its purpose;
• Sections 10, 14, 15, 19, 51 and 52 that is crucial to the right of access to information should not be delayed in terms of section 93(2); and,
• The Regulations be promulgated after public consultation (see our comments under 6 below).

3.1) The manuals required in terms of sections 14 and 51 provide "road maps" to individuals and organisations seeking to exercise their right of access to information. By publishing a manual, a body runs little or no risk of revealing sensitive information that could compromise its ability to achieve its objectives. On the contrary, a clear guide to the types of records held and the procedure by which members of the public may gain access to these records should minimise the need to respond to general inquiries or vague requests for access that amount to "fishing expeditions". In other words, the production of clear manuals will be of as much value to the holders of information as for requesters, in terms of reducing the administrative burden of the implementation of the Act.

3.2) Consequently, neither public nor private bodies should be excused from publishing manuals unless there is a clear and compelling reason to do so. The onus should be on bodies seeking exemption to make such a request to the Minister and to offer a clear justification.

3.3) The two most compelling rationales for exemption would be national security and organisational capacity. However, even where these concerns are relevant, the exemption must be applied as narrowly as possible.

3.4) National security: In general, national security concerns should not impinge on the publication of manuals -- only on decisions relating to the disclosure of specific records. Even where a state agency is unable for security reasons to describe its structure and functions fully or in great detail, it should still be able to satisfy the requirements of section 14(1)(a) in general terms.

3.5) Section 14(1)(d) poses greater problems. This requires a body to list the subjects on which it holds records in "sufficient detail to facilitate a request for access". In an extremely limited number of situations, state security agencies may not even be able to confirm or deny the existence of certain highly sensitive records ("Glomar denial"). Agencies that indicate that they hold such records must be excused from describing them in the manual. However, where such an exemption is granted, the list of records in the agency's manual should include a notation indicating that it has been abridged for reasons of national security. Private bodies should not be eligible for such an exemption -- just as they are not permitted to refuse access to records on national security grounds.

3.6) Organisational capacity: Public and private bodies are more likely to request exemption on the grounds that compliance would tax organisational resources (staff and funds) to an extent that would obstruct achievement of the body's objectives. The strategy for addressing such concerns must differ depending on whether the body is in the public or private sector.

3.7) Public sector bodies: Small, under-resourced agencies (rural water boards, etc.) cannot be expected to publish their own separate manuals. Rather than simply exempting these bodies, however, the preferred strategy should be to identify "clusters" of similar or related agencies capable of publishing a joint manual, as envisioned in section 14(4)(a).

3.8) If it is considered desirable to exempt some such bodies in the short term until the process of determining clusters is complete, then exemption should be granted for not more than one year. The duration of the exemption could be reviewed at the end of the year and extended if necessary, but the Minister should refrain from excusing public bodies for indefinite periods.

3.9) Private sector bodies: A more lenient approach to exemptions will be necessary in the private sector where it is not feasible to adopt a "cluster" strategy. In general, any natural person who is covered by the act with respect to her or his trade, business, or profession should be permanently excused from publishing a manual. Small businesses and non-profit organisations should also be exempted, at least for an initial period of two years, subject to review.

3.10) We propose that only those private bodies classified as "designated employers" in terms of the Employment Equity Act (Act 55 of 1998) should be obliged to publish a manual within 6 months of the Promotion of Access to Information Act coming into effect, as envisioned in section 51.

3.11) Exemption would not prevent individuals and organisations from publishing manuals at their own discretion.

4.1.) Introduction

4.1.1) The provisions determining the payment of fees are crucial to the effective functioning of the Act. Access to information is a constitutional right and must not be unduly fettered by imposing prohibitive fees. The fee system must be carefully structured so as to find a sensible balance that meets the costs of providing information without undermining the whole purpose of the Act.

4.1.2) We believe that our proposals achieve this balance. We have based our recommendations on the constitutional rights of each individual and on the spirit and intention of the Act as set out in the Objects clause (section 9). In particular, we note s. 9(d) provides that persons should be able to access records "...as swiftly, inexpensively and effortlessly as reasonably possible".

4.1.3) In formulating our proposals we have taken into consideration:

• the nature and purpose of the information requested (is it in the public interest/required for the exercise or protection of any right?);
• the financial circumstances of the requester; and,
• fairness and equity.

4.2) FEES FOR INFORMATION REQUESTED FROM PUBLIC BODIES (S. 22)

4.2.1) Categories of Exemption from Payment of Fees

4.2.1.1) We previously recommended that there should be a distinction between a commercial and a non-commercial requester (see Comment on the Proposed Fee Structure, 24.11.99). This is because we recognise that individuals will request information for different ends and we believe that this should be reflected in the fees payable. Other jurisdictions use this distinction [see, for example, s. 552(4)(A)(ii)(I)&(II) Freedom of Information Act 1986 as amended (US)].

4.2.1.2) We consequently recommended two fee structures: a higher rate for commercial requesters and a lower one for non-commercial requesters. We were disappointed that the recommendation was not adopted but we still believe that a distinction should be made according to the nature of the information and the purpose for which it is requested. We also believe that the financial circumstances of the requester should be taken into consideration. We therefore propose a tiered structure:

(a) Full fee

The full fee should be payable by all requesters other than those set out in paragraphs 4.2.2 and 4.2.3 below and personal requesters as already provided in the Act.

The fee should be calculated at a commercial rate and should aim to cover the actual costs of providing the information in the form in which it is requested. We set out the amounts we propose in respect of this fee at 4.2.2 below.

(b) Lower fee (rights based/public interest fee)

Information which is either

• required for the exercise or protection of any rights (s.50); or
• in the public interest as contemplated in s.46 of the Act

should incur a lower level of fee.

Note: The Act already uses rights based/public interest concepts to govern disclosure of information requested from private bodies (s.50). The test proposed above would be analogous to that contemplated in terms of s.50.

(c) Exemption from payment of fee

Information which is either:

should not incur any fee. The practice of exempting requesters from payment of fees on the grounds of financial hardship is one which is adopted in other jurisdictions such as Freedom of Information and Privacy Act, Ontario (s.57(4)).

4.2.1.3) For the purposes of determining which level of fee is payable a requester must, on making the request for information, state with reasons which level he believes should be payable. In relation to the protection of a right, this would be the same as that required for request from private bodies under s. 53(2)(d) (namely an obligation to identify the right in question and explain why the record is required for the exercise of the right). In relation to the "public interest" test the requester would have to explain why the information requested is in the public interest.

4.2.1.4) The information officer must decide which fee, in his reasonable opinion, should apply. A requester would be able to appeal against the decision using the internal appeal mechanism.

4.2.2) Amount of Fees

4.2.2.1) We propose that the structure outlined above should apply to each of the fees contemplated in the Act. For the purposes of determining appropriate amounts we reiterate our starting point that any fee charged for the provision of information must be affordable to the person making the request. Access to information is a constitutional right and must not be turned into an income generating exercise.

(a) Request Fee

We understand the rationale behind the request fee as being to deter frivolous requests. However, the fees imposed should not be so high as to deter genuine requests.

We propose the following:

(b) Access Fee

The Access fee is made up of 3 components :

• reproduction fees, s.22(7);
• postal fees, if applicable, s.22(7); and
• time reasonably required in excess of the prescribed hours to search for and prepare the record for disclosure, s.22(6).

Note: there appears to be an error in drafting in relation to the fee for search and preparation. S.22(6) provides that this must cover the time "reasonably required in excess of the prescribed hours" to search and prepare for disclosure whereas s.22(7) provides that it must cover the time "reasonably required" to search and prepare. We note that the Regulations follow s.22(6) as they contemplate an hourly rate for time "reasonably required for search and preparation"(reg.3(2)(g)). Further, the "prescribed hours" in the Regulations relate only to the payment of a deposit. However, it is clear from s.22(6) that it is intended that a search and preparation fee will only become payable once the "prescribed hours" are exceeded. The words "in excess of the prescribed hours" should therefore be inserted in reg.3(2)(g).

We propose the following structure for the Access Fee:

Note: We believe that there should be a cap on the access fee payable when the prescribed hours are exceeded. Such a mechanism will prevent the access fee from being used to prevent access altogether.

(c) Deposit

S.22(2) provides that if the time for search and preparation would, in the opinion of the information officer, require more than the hours prescribed for the purpose then a deposit shall be payable which shall be no more than a third of the Access Fee. We are still unclear as to how this amount can be accurately calculated at a time when the exact amount of the Access Fee is unknown. However, we presume that it is intended that the Deposit will be calculated on an estimate of the Access Fee.

We propose that at the time of providing the estimate of the Access Fee the requester should be given an option to refine his/her request and/or ask for the information to be provided in a different manner. This should avoid unnecessary time spent searching for information and keep costs down for all parties.

Draft regulation 4(4)(a) [as at received May 29, 2000] limits the "prescribed hours" to 6. We believe that this is too high for those required to pay the full fee but too low for the rights based/ public interest category. We therefore propose the same prescribed hours as set out above, namely 1 hour for the full fee and 8 hours for the lower level (rights based/public interest) fee.

4.2.3 Appeal Fees

4.2.3.1) S.75(3) provides that a requester lodging an appeal "...must pay the prescribed fee (if any)". This wording recognises that there will be circumstances in which it will not be appropriate to charge an appeal fee. Regulation 7, however, appears to contemplate payment of an appeal in every case. We firmly believe that there should be no fee imposed on appeal in any case. We believe that a fee would restrict the appeal process to those who could afford it and exclude those who were unable to do so. The process would also be open to abuse as anyone unwilling to provide information but who has no legitimate grounds for refusal could nonetheless refuse the request in the knowledge that the requester may well be unable to afford to appeal.

4.2.3.2) We therefore propose that draft regulation 7 should be deleted entirely, at least for an initial period of one year. The appeal process should be monitored during this time and, if necessary, reviewed in due course.

4.3) FEES FOR INFORMATION REQUESTED FROM PRIVATE BODIES (S.54)

4.3.1) The Act makes similar provisions in relation to fees for information requested from private bodies. However, the test for disclosure of information requested from private bodies is slightly different to that for information from public bodies in that the information must only be disclosed if it is "required for the exercise or protection of any rights" (s.50(1)(a)) and, where the requester is a public body, where that body is acting "in the public interest" (s.50(2)).

4.3.2) We propose that the same distinctions and amounts should apply as for information requested from public bodies. However, we realise that the criteria for eligibility for the lower level fee (the rights based/public interest fee) is effectively the same is that governing disclosure of the information for private bodies. To apply the same test would therefore mean that virtually all disclosable information would be exempted from fees. Because of this, we do not propose the lower level of fee for information requested from private bodies. We still, however, believe that the financial circumstances of the requester should be taken into consideration.

4.3.3) We therefore propose either payment of the full fee [see 4.2.1.2(a) above] or total exemption where the information is either in the public interest or required for the exercise or protection of any right and where there would be financial hardship to the requester [see 4.2.1.2(b) above].

5.1) We very much welcome the approach taken by the Department in deciding to invite submissions in relation to the construction of the regulations. We think that it would be useful to sustain this open approach throughout the development of the new systems that will be put in place once the Act comes into effect.

5.2) Given the close attention that the parliamentary ad hoc committee on the Open Democracy Bill paid to the legislation, and the extent and range of its amendments, we submit that it would be appropriate and useful for the committee to reconvene in order to consider the draft regulations and to hear views from both the government and outside bodies as to the efficacy of the proposals. As you know, section 92(2) states that any regulation in terms of subsection (1) must, before publication in the Gazette, be submitted to Parliament.

5.3) There is an additional reason for suggesting the involvement of the parliamentary committee. Although we have sought to provide the department with detailed and constructive proposals (above), we have had to do so "blind" in relation to the submissions or proposals put forward by the "holders" of information whether in the public or private sector. (We speak on behalf of potential requesters of information; hence our letter to you dated 30 May 2000 inviting you to provide us with copies of submissions or proposals made by holders of information prior to us finalising our submission).

5.4) Thus, we suggest that where there are such submissions or proposals from the holders of information in relation to either the areas we have covered above, or in respect of other areas of the regulations, we ask you to consider inviting the parliamentary committee to conduct an open process to determine which proposals will best serve the objectives of the Act.

5.5) It is clear that there will be an element of experimentation in relation to a number of the areas covered by the regulations. Since the success of the Act depends largely on the workability of the systems that will be put in place, we think that it is very important that there be regular opportunities for review of the regulations and the operation of the Act. We invite the department to include explicit review periods and/or dates in the Regulations and, in line with our comments above, suggest that the parliamentary committee is the appropriate forum for such review.

Our submission is endorsed by PHILA, Public Health Interventions through Legislative Advocacy, a national programme of the NPPHCN (National Progressive Primary Health Care Network). We attach a flow chart* that is meant to represent an application in terms of the Act from a fees perspective. The South African Human Rights Commission, as partner to our group response to the invitation, compiled this chart. We trust that these submissions will be of use to you. Please let us know if we can be of further assistance to you.