Access to Records of Private Bodies

Meeting report

JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
10 December 1999
DELIBERATIONS

Documents handed out:
Access to records of private bodies: second draft (OPD90c)

The Committee dealt with Chapter 1 of this second draft of the new section of the Open Democracy Bill (OPD90c) providing for access to the records of private bodies.

Chapter 1 General Provisions
Section 3 Application of other legislation prohibiting or restricting disclosure
The Committee agreed that this section had to be read with sections 4, 5 and 6. All these sections attempt to reconcile the conflict between the Open Democracy Bill and existing laws that restrict or prohibit the disclosure of information. Some of the latter will for practical reasons remain applicable despite the provisions of the new Bill.

The Chair suggested that a schedule be added to the Bill listing such legislation. The Chair recognised however that writing up such a schedule would take time and involve an audit of all existing laws. In light of this, the Chair proposed that a new clause be added which provides for a transitional arrangement to exist until the schedule is drawn up. The arrangement could involve having existing legislation applying in this interim period unless they conflict with the purpose of the Open Democracy Bill in which case the Bill will prevail.

Adv Masutha (ANC) raised the issue of adoption regulations of the Welfare Department obtaining exemption from the provisions of the Bill. A release of information in the case of adoptions must always serve the best interests of the child.

The Chair was not in favour of a blanket exemption for these regulations. Instead the Chair argued that adoption regulations was precisely the type of legislation that would be listed and thus saved in the proposed schedule described above. Provided the regulations did not conflict with the purpose of the Bill, there was no reason why the procedures of the Welfare Department could not be followed in releasing this type of information. The Chair said that if the Welfare Department had desired a blanket exemption from the Bill, they should have made submissions to this effect during the allocated period.

It was ultimately decided that Adv van Schoor (State Law Advisor and drafter) would draft the suggested transitional amendment to the Bill as well as the proposed new schedule.

Section 5 Use of Part from Criminal or Civil Discovery of Private Bodies Records Excluded
Many members raised the question of this section being abused by devious litigants. It was suggested that a litigant could circumvent this section by having a third party who has no connection with the litigation apply for disclosure of the relevant information.

It was pointed out though that this possibility was protected against by use of the words "for the purpose of criminal or civil proceedings". Third parities who attempted to gain access to protected information for a litigant would fall foul of this provision because they gained the information for the "purpose" of litigation.

Nevertheless some members suggested that this information should not be made available when legal proceedings had begun for further protection and wanted the provision changed accordingly.

Some members were also wary of the criminal sanction imposed by s5(2). Some called for there to be reasonable suspicion, at least, that a person had attempted to contravene provision 5(1) before a criminal penalty could be imposed.

The Chair concluded this discussion by agreeing that the provision had to amended. He reminded members that the purpose of this clause was to allow normal common law rules of discovery to govern access to information in criminal proceeding and not the Open Democracy Act. The drafters needed to bear this in mind when creating a framework to give effect to this purpose.

Section 6 Voluntary Disclosure of Certain Records
The members agreed that there were two amendments that had to be made to this provision:
1) It had to be emphasised that the private body was to discuss these records on a voluntary basis. For that the word "voluntary" had to appear in the subclause.
2) Section 6(2)(a)(iii) in Option 2 was incorrect and had to be deleted. The records would not be made available free of charge.
The drafters were advised accordingly.

Section 7 Manual
Mr Durr (ACDP) raised strong objections to this section. He argued that the information that a duty compelling companies to produce a manual was onerous and unnecessary as most of such information was available in business directories. It was wrong to create further bureaucracy and he said that the production of the manual should not be mandatory.

The Chair disagreed strongly with this sentiment. He argued that the purpose of the Bill was to have open democracy permeate not just the public sector but also the private sector. While he agreed that the Bill should not be applied in the same way in the private sector as in the public sector, he did not think the production of a manual containing the information required was too onerous.

Other members agreed that while there was a duty to make the culture of private organisation more democratic, there were ways to simplify the process and the manual in its current form may not be best way.

The Chair concluded the discussion by noting the following substantive views needed to be drafted as options:
1)The entire manual provision should be deleted
2) Some guide must be provided as to the type of information available from companies.

Section 8 Form of Request and Assistance
The Committee agreed that a prescribed request form must be drafted and attached as a schedule to the Bill.

The Chair suggested that wherever the words "head of the private body" in the bill appears, the words "or any other appropriate person" should follow. The Committee agreed that the Bill should indicate that the head of the private body was not the only person to whom correspondence should be addressed or duties be imposed on.

Section 9 Decision on Request
The Chair recommended that Option 1 for s9(3) be scrapped. It was too onerous to expect private bodies to provide reasons for the refusal of a request for access on all "material questions of fact". The reasons need be merely adequate. Instead option 3 was preferred although the Chair believed it could be made clearer.

The Chair also warned that that this provision should also avoid an overlap with Administrative Justice Bill which also demanded that reasons be given for administrative decisions taken.

Section 10 Extension of Period to Deal with Request
The Chair recommended that s10(2) be amended so that the notice informing the requester of the extension be in writing.

Section 11 Records that Cannot be Found or Do Not Exist
The Chair suggested two changes to s11:
1) The head of the private body should not give a notice as described in s11(1) but rather a signed affidavit containing the information described in s11(1).

2) If the records are found at a later date, the requester should be informed of their discovery.

Section 13 Form of Access and Access Fee
The Chair suggested that the access fee be set in accordance with Ministerial guidelines which periodically recommend a maximum access fees. This should be done so as to avoid the situation where private bodies construct de facto barriers to access by prescribing exorbitant access fees.

Before the meeting concluded, the Chair made a number of announcements:
- The Democratic Party has drafted a proposed document on mandatory disclosures as a refinement on the existing draft. This can be debated at a later meeting.
- At the next meeting, the Right-to-know section (OPD87CC) will be discussed.