Grounds for Refusal of Access to Records

Meeting report

JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
14 December 1999
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS: DELIBERATIONS

Relevant Documents
Grounds for Refusal of Access to Records : Revised Draft of Chapter 2 (OPD92)
Alternative For Clause 36 (Defence And Security) – ‘ Classification’ System (OPD92b) [appended to these minutes]
Part 6 Appeals against Decisions by Governmental Bodies (see this section with this meeting's amendments included in the revised draft of the Bill as of 15/12/99)

SUMMARY
Clauses 34 – 38 were discussed in relation to the various options added in OPD92 and OPD92b (relating to S36). Other jurisdictions were strict on a low threshold test to facilitate refusal of most requests for information in the sphere of security and defence. The majority of members felt that South Africa should have a lower threshold as well in this important area, while others disagreed. The importance of confidentiality with regard to international relations and the problems with regard to privatisation were discussed.

MINUTES
Section 34 Law Enforcement
The committee rounded off the discussion following on from the previous day's meeting. The main problem which needed to be addressed were whether the refusal of access to records was mandatory or discretionary. Adv de Lange said that there were dangers with both interpretations.

Adv de Lange said that in relation to an accused’s constitutional right (following the Shabalala case) to access to the docket, the Bill should not extend such right beyond what the Shabalala case had decided. Thus an accused could only get access at a certain stage in the process and not (for example) at the bail stage.

Section 35 Mandatory Protection of Records
This was a straight-forward exemption. It was only a question of getting the wording in order.

Section 36 Defence and Security
OPD92b was an alternative draft for Clause 36 on the refusal of access to information in the sphere of defence and security.

The draft used the American version’s approach of listing various categories of information and intelligence where, in the case of a request for such information, there had to be a refusal. In the American situation, the procedure would simply be that where a request was for information falling within the listed grounds, a certificate would be issued in terms of the relevant legislation stating the refusal and the grounds there for (that is, the relevant listed category, for example, "military plans").

In the Australian jurisdiction the practice of issuing a certificate was also found. However in the Australian situation there was no specific listed grounds. Instead there was simply a broad exemption in the sphere of defence and security and certificates were issued in terms thereof in refusing a request for access to information. The guiding principle was whether granting the request was "reasonably likely to cause harm."

Adv de Lange said that the threshold of this test was quite low and clearly made it a formality in the majority of cases that requests, in matters of defence and security, would be refused. He added that in the American situation there was actually no threshold, making it even more likely that a refusal would follow a request.

In OPD92(b), he was thus concerned with 36(2)(b), which followed the listed grounds in (a) (taken from the American system). According to 36(2)(b), in addition to the request having to fall within (a) to be refused, it would be refused if "the disclosure of that record would be likely {or would reasonably be expected} to cause (substantial) harm to the security{or defence} of the republic, and the minister may sign a certificate to that effect".

Adv de Lange felt that the threshold in this option was extremely high considering the above approaches of Australia and the USA. He was opposed to such a high threshold which could allow very sensitive information (which could even be confidential) to be accessed. If confidential foreign relations had occurred between South Africa and another country for example, it would be totally unacceptable and unprofessional if under domestic law such confidential relations could be accessed because the disclosure would not be likely to "cause (substantial) harm to the security or defence of the republic".

He said that other countries were serious about security and this was reflected in their very low or non-existent thresholds. South Africa had to take an example. It was the only country promoting the word "harm" which was a high test. Even with the original Section 36, South Africa was setting standards much higher than other countries in this regard. This was a concern since it was still a developing country in many respects and could not afford to be as ambitious as this.

Ms D Smuts (DP) said that in view of the current global situation with wars and unrest, she felt that in the field of arms, peace keeping and intelligence, citizens had a right to have information to know what was happening. She thus argued for a higher threshold along with a discretion to disclose the requested information. Part of her motivation was transparency.

Mr Landers (ANC) said that such transparency had to be balanced. The constitutional imperative concerning the right of access to information had to be met, but people had to be aware of the sensitivity of information in defence and security matters. The instinctive response of people to want to know everything about what was happening, for example, with the St Elmo’s Bombing, the DRC conflict or Angola was natural. It had to be accepted however that there were expert investigators who, simply because of their training and expertise, would justifiably not allow certain information to be divulged under any circumstances.

Mr P Smith (IFP) said that initially he was opposed to the structure of the amendment in OPD92(b) dealing with how the military would regulate their own internal information whilst the Bill was concerned with access to information broadly speaking. He subsequently reconsidered the merits of the process involved in S36, especially the certificate, and decided to support this.

Adv de Lange admitted that although he had learnt quite a lot about how exemptions are dealt with, the idea of certificates was new to him and really had to be considered. He felt that what had to be done was to try and capture the two options: one option had to be an exemption without a certificate; the second one would have a certificate. This option would have further options for example to have a test, not to have a test, and perhaps to have various thresholds. He said that the best examples to use would be those derived from Canada and America - including categories.

Section 37 International Relations
Adv de Lange said that many countries adopt a certificate approach to International Relations. The confidentiality clause of the Australians was an important one

Adv S Swart (ACDP) felt that international agreements had to be included in S37.

Adv de Lange said that it would be included as an option there.

Mr PF Smith (IFP) said that the issue of the certificate was not as relevant in 37 as it was in 36.

Adv Schmidt (DP) also felt that the clause should not have the certificate approach. Ms D Smuts (DP) agreed.

Ms Chohan-Kota (ANC) felt that the option of collapsing Sections 36 and 37 into one clause should be looked at. This was because there may be overlapping of these two areas in practice.

Adv de Lange felt that once again the test in 37(1) (b) was too high in comparison with other countries. Countries would not want to have relations with South Africa since the possibility was there that confidentiality was not protected satisfactorily.

Mr P Smith felt however that the "best interests" test in 37(1) (b) was important to allow an individual who justifiably wants information regarding foreign relations to obtain such information.

Adv de Lange strongly supported the "confidence clause" of Australia. Thus if a foreign country gave South Africa information in confidence then it should stay in confidence. Surely there could not be a law allowing people to get hold of this information. Which country would want to deal with South Africa on that basis? There was no way that there could be confidential relations conducted with other countries while having this information available to the public.

Mr Masutha (ANC) said that his understanding of the international obligations clause in the Constitution implied that the Constitution including the Bill of Rights is limited to the extent that international law or international obligations may be providing against it. If people tried to use rights guaranteed in the Constitution to insist on information which at the same time is restricted as a result of international agreements or international law – if the Constitution was to prevail over such a situation it would be seriously problematic. Thus the moment there was an international agreement or law operational in that sphere, it would trump the internal Constitutional obligation that the state may have.

The Committee established that Section 231 of the Constitution dealing with international agreements states that such agreements only become binding if Parliament agreed to them.

Mr Masutha said that once this process of ratifying the international agreement had occurred making this international law part of the domestic law, one could not at a later stage say that the agreement was inconsistent with the Constitution and therefore invalid.

Adv de Lange disagreed. If Parliament agreed to anything which was unconstitutional, even if it was a foreign agreement, the Constitution would strike the agreement down as being unconstitutional – not fitting in with our
constitutional dispensation. It simply would not have any binding effect.

Ms D Smuts (DP) added that the Constitution would trump International Law and Customary International Law where it was inconsistent with the Constitution.

Adv de Lange said that this issue was clear. The issue of the meaning of 37(1)(a) had to be looked at more carefully though. He asked Ms van Schoor where it came from and she said that it was something uniquely drafted for South Africa. In this context the committee had to look at the full implications of 37(1)(a).

Mr K Durr (ACDP, Western Cape) felt that it had to be clearly stated in (a) that international agreements were included.

Adv S Swart (ACDP) was not too sure, but thought that international agreements formed part of "International Law" anyway and thus did not need express inclusion.

Section 38 Economic Interests of Republic and Commercial Activities of Governmental Bodies
Ms van Schoor suggested that "economic interests of the Republic" and commercial activities of governmental bodies should be dealt with in one subsection unlike in the original bill. She briefly explained what the various options dealt with, pointed out new amendments and why they had been drafted the way they stood.

Ms D Smuts (DP) said that in relation to privatisation there had to be sufficient transparency in relation to access to information for citizens who were served by these institutions (such as the Post Office).

Adv de Lange felt that Option 1 for (b) and (c) ) had included refusal to access this information to try and prevent competitors from getting hold of information of institutions which were in the process of privatising. This was an attempt to level the playing fields since the institution being privatised would not be entitled to access the information of competitors.

Ms Chohan–Kota (ANC) was sure that Adv de Lange had in fact captured what the intention of the clause was. She was not convinced that the wording of the option actually captured this position. What needed to be protected would be negotiations, and the detail of the agreement, which precedes the transfer. The option only captured the actual transfer of rights for example.

Mr L Lever (DP, NCOP) agreed with Ms Chohan–Kota. He said that Option 3 came closest to achieving this objective.

Adv de Lange said that Option 3 did not however deal at all with privatisation. This had to be made very clear.

Mr K Durr (ACDP, NCOP) said that whilst he agreed that institutions who were privatising had a right not to be spied on by competitors, the public of South Africa were in a sense the shareholders of companies that were now being sold. Thus the public citizens had the right to know as much as people in a public company. A citizen should know for example whether the company was being sold to some undesirable person or institution. Wording had to be found to deal adequately with this.

Adv de Lange said that Mr Durr should introduce such wording.

Mr J Machlangu (ANC, NCOP, Co Chair) asked a question not directly in relation to the issues in Clause 38. It had to do with access to information generally. Was there a criminal sanction to deal with people who gain access to information illegally?

Adv de Lange said that under some of the older laws there probably was a criminal sanction.

Mr J Machlangu said that there was an incident in 1998 where someone had gained access to information in a computer. He had erased lots of very sensitive information and apparently there were no sanctions which could be imposed.

Afternoon session
Clause 38A [alternative to Clause 38 which would include this subclause (d)]
The Chair noted that this provision is a counterpart to that allowing private bodies to refuse access to information about research that has commercial value. He also noted Options 1-3 for Clause 31(1)(d)/(c), protecting a third party's commercially valuable research contained in government records. He observed that the protection for a government body's research applies regardless of whether it has commercial value.

Mr P Smith (IFP) raised the related point that the third party protection contemplated in either of the three options presented under Clause 38A may not be appropriate in this governmentally-related section.

In response to questions from Mr Makwetla (ANC) and a DP member, the Chair noted that in including high threshold tests for refusing disclosure of records (that is, disclosure being "likely to", or "could be reasonably be expected to", have certain effects), the proposed text incorporates standards from legislation elsewhere, and that the courts eventually will have to sort out application of these standards. He also noted that the standards for exemptions cannot be uniform, as national security concerns are of a different magnitude from commercial concerns, and they accordingly must be treated and evaluated differently, and that such distinctions should be carefully considered by all members over the coming break.

Clause 39--Operations of Governmental Bodies
The Chair noted that there is an issue as to whether the Cabinet needs a separate exemption, and that Clause 39 needs to be weighed against a Cabinet-specific amendment to be reviewed on 15/12/99. The Chair went on to indicate that Clause 39 is very important, as it addresses minutes of governmental bodies and the "raw materials" of policy discussions and formulation, and protects the integrity of the process. He also observed that this may be "the most overlooked" clause in the Bill, as it actually covers issues that government officials have raised when discussing the Bill with him. He also suggested that, in the interests of transparency, this exemption be simplified in order to prevent government decision-making from "being driven underground", as officials had a legitimate interest in availing themselves of the exemption's protection in order to avoid inappropriate disclosures.

Mr Smith (IFP) requested clarification of the wording to ensure that "minutes" are specifically included as protected, noting that "an account" was not necessarily "a minute". He also wondered whether the 15 year time period prescribed in Section 39(4)(a) should be 20 years to ensure uniformity with other provisions of the Bill.

Clause 40 Frivolous or Vexatious Requests, or Diversion of Resources
The Chair noted that this was taken from the Australian legislation, and sets an appropriately high test in Section (b) of a request having to "substantially and unreasonably" divert the government body's resources in order to justify a refusal to disclose.

Clause 41 Records that Cannot Be Found or Do Not Exist
The Chair noted that technically this is not an exemption, and therefore has been covered in Clause 18A.

Clause 42 Published Records and Records to Be Published
Ms van Schoor noted that Sections 42(1)(b) and (c) could be omitted, since they fall under the "Right to Know" clause, though the Chair wondered whether (b) should come out . He also questioned whether Sections 42(1)(a), (d), and (e) are exemptions. He suggested that they are more accurately "deferrals" of access which should be folded into Clause 18B, along with the Section 42(3) right for a requester to demonstrate why immediate access should take priority over deferral. It was also noted that for uniformity the time period in Section 42(1) should be 90 days.

Clause 43 Records Already Open
The Chair noted that this clause will come out, as the substance is covered elsewhere.

Clause 44 Mandatory Disclosure in the Public Interest
The Chair noted that this clause tracks provisions for disclosure by private bodies due to overriding public interests.

Ms Smuts (DP) questioned the logic of the apparent "double threshold" standards in Option 1's Section 44(1) for mandatory disclosure. In response Ms van Schoor elaborated on the "substantial harm" and "weighing the value of disclosure vs. the value of non-disclosure" concepts which the text currently contemplates.

Ms Smuts also submitted for consideration an "underride" provision, which states that if the problem the exemption was to cover does not exist, the record should be disclosed, which the Chair indicated would be considered.

As a general comment, the Chair stated that each proposed exemption should be examined to determine whether it should be subject to mandatory override, and if so, what the standard should be. On the latter point, he also suggested that the "substantial contravention" test of Option 2's Section 44(a) may be a better, higher standard to apply in this context. As an aid to further consideration on this point, the Chair requested that Ms van Schoor prepare a summary for distribution on 15/12/99 of how other jurisdictions handle this "public interest override" issue. The Chair also stated that the key to the efficacy of the Bill will be to ensure that the exemptions will pass constitutional muster, and that this will be an area of serious focus upon reconvening in January.

Part 6 Appeals against Decisions by Governmental Bodies
The Chair opened discussion by confirming with Ms van Schoor that her colleague's redraft of this text was essentially technical in nature, the only substantive changes being to Section 71 concerning Urgent Internal Appeals, and to Clause 1's definition of "relevant authority", in which Ministers, MECs, and mayors (depending on the government body involved), have replaced director-generals in such capacity.

Mr Smith (IFP) opened the questioning by asking whether parastatals and other "quasi-governmental" bodies would be covered by Chapter One's provisions concerning internal appeals. Ms van Schoor suggested that ,since all such entities acting in a "governmental" capacity are ultimately under the authority of a minister, they would be. However the Chair wondered whether they would be, or should be, and suggested that perhaps this appellate process was too unwieldy generally, and especially for organizations that aren't "purely governmental".

Mr Masutha (ANC) asked whether a minister or director-general is the appropriate adjudicator of an appeal concerning a parastatal or other "quasi-governmental" entity under his nominal control, and suggested that such entities be dealt with separately from any ministry which may ultimately be accountable for them in their exercise of governmental power. The Chair agreed, and suggested that a better approach would be to include an empowering clause authorizing each such entity to designate its own internal appeal structure (if there is to be an internal appeal mechanism at all, which he stated was still an open question). He went on to indicate that such an approach could also be useful in helping private entities deal with devising an internal appeal structure, and that if appeals structures were required the only way to avoid having to have one would be by specific exemption.

As for "purely governmental" organizations, the Chair noted that the proposed text provides a mandatory structure. Further, in response to comments by Ms Chohan-Khotha that at least local governments be given discretion to designate "alternative appellate structures", since mayors may be hostile to the transformation process, the Chair stated that, while her comment had merit, too much deviation in appellate structure among "pure" government bodies would be problematic, and that there must be uniformity of process at each "pure" government level.

The Chair continued that having an appeal process requiring ministerial participation could be very troublesome as it would involve ministers spending much time in court defending the merits of appellate actions. Such appeals are subjected to a different level of scrutiny than in "discretionary executive review" matters (which are increasingly troublesome in their own right in the wake of the SARFU decision resulting in the President having to testify in court).

In response Mr Smith noted that internal appellate procedures could be conducted without ministerial involvement. However the Chair indicated that the problem of any designated official having to participate in time-consuming court proceedings would be the same so long as an internal appeal procedure was required. He then summarized by reiterating that the question remained whether an internal appeal procedure was necessary, or whether it would be preferable to proceed (per Option 2 of the proposed text) straight to court enforcement mechanisms dealt with in Chapter 2 of the proposed text.

In considering these enforcement mechanisms, the Chair stated that there is clearly no money to create a new structure, for example, an Information Commission, from the inception of this law, and so the Bill currently calls for court-based relief after exhausting internal appeal remedies. Relief would be by application to the court (whether High or Magistrate's, per the text), which would provide an opportunity for de novo review, rather than a more limited appellate consideration.

Mr Smith noted that without an information commissioner or equivalent, there will no "middle ground" between an internal appeal and costly litigation. The Chair responded that this was the practical reality of the current situation.

Appendix 1
Alternative For Clause 36 (Defence And Security) - 'Classification' System

Security {OR defence} of Republic
36.
(1) The information officer of a governmental body must refuse a request for access to a record of the body which is subject to a certificate issued in terms of subsection (1).
(2) If-
(a) the {OR a} Minister {designated by the President for this purpose} is
satisfied that a record of the governmental body contains-
(i) military plans, weapons systems or operations;
(ii) foreign government information;
(iii) information about intelligence activities;
(iv) intelligence sources or methods, including confidential sources;
(v) information about scientific, technological or economic matters relating to national security;
(vi) programs of governmental bodies for safeguarding nuclear materials or facilities; or
(vii) vulnerabilities or capabilities of systems, installations, projects or plans relating to national security; and
(b) the disclosure of that record would be likely {OR could reasonably be expected} to cause harm to the security {or defence} of the Republic,
he or she may sign {OR issued} a certificate to that effect.
# Provide for a maximum period of validity of a certificate and/or the periodic review of certificates signed?
(3) Subject to the operation of Chapter 2 of Part 6, a certificate signed {OR issued} in terms of subsection (2), 50 long as it remains in force, establishes that the record is a record that must be refused in terms of subsection (1).
(4) If the {OR a} Minister {designated by the President for this purpose} is satisfied that information as to the existence or non-existence of a record as described in a request for access would, if contained in a record of a governmental body, cause the last mentioned record to be a record in respect of which a certificate would have been signed {OR issued} in terms subsection (2), he or she may sign {OR issued} a certificate to that effect.
(5)(a) If a certificate in terms of subsection (4) has been signed {OR issued} in respect of a record as described in a request for access, the information officer concerned must refuse to confirm or deny the existence or non-existence of the record.
(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 19(3), must-
(i) state that fact;
(ii) identify the provision in terms of which access would have been refused if the record had existed;
(iii) state the reasons for the refusal, as required by section 19(3); and
(iv) state that the requester concerned may lodge an internal appeal with the
relevant authority against the refusal as required by section 19(3)(c).
(6) A certificate referred to in subsection (2) or (S) must state under which of the
categories contemplated in section (2)(a) the record in question falls.

# Copy of the certificate to be furnished to the requester?