OPEN DEMOCRACY BILL [B 67—98]: BRIEFING
(Complied by Advocate Empie van Schoor)


1 APPLICABLE CONSTITUTIONAL PROVISIONS
A BILL OF RIGHTS
B. OTHER PROVISIONS

2 OBJECTS OF BILL

3 SCOPE OF BILL
A ACCESS TO STATE INFORMATION
B PROTECTION OF PERSONAL INFORMATION

4 COMPONENTS OF BILL

5 ACCESS TO STATE RECORDS
A MANNER OF ACCESS
B GROUNDS FOR REFUSAL
C THIRD PARTY INTERVENTION

6 PROTECTION OF PERSONAL INFORMATION

7 PROTECTION OF WHISTLE-BLOWERS

8 ENFORCEMENT MECHANISMS

9 HUMAN RIGHTS COMMISSION

10 GENERAL PROVISIONS

1. APPLICABLE CONSTITUTIONAL PROVISIONS

A. BILL OF RIGHTS
Legislation must be enacted before 4/2/2000 to give effect to the right of access to information—
(a) held by state; and
(b) held by another person and required for exercise or protection of any rights
(section 32(1) & item 23(1) of Schedule 6)

Legislation may provide for reasonable measures to alleviate administrative and financial burden on State (section 32(2))

Right to freedom of expression, including freedom to receive & impart information (section 16(1)(b))

Right to privacy (section 14)

Rights may be limited—
- in terms of law of general application
- to extent that limitation is reasonable & justifiable
- in open & democratic society
- based on human dignity, equality and freedom,
- taking into account relevant factors (section 36(1))

When interpreting Bill of Rights, Courts—
(a) must promote values underlying open and democratic society based on human dignity, equality and freedom;
(b) must consider international law;
(c) may consider foreign law (section 39(1))

Bill of Rights does not affect other rights or freedoms recognised or conferred by common or customary law or legislation to extent they are consistent with Bill of Rights (section 39(3))

B OTHER CONSTITUTIONAL PROVISIONS
National legislation must ensure promotion of—
(a) encouragement of public participation in policy-making
(b) accountable public administration;
(c) transparency by providing public with timely accessible accurate information
(section 195(1)(e), (f) and (g) and (3))

Applies to—
administration in national, provincial and local sphere of government
organs of state
public enterprises
(section 195(2))

Where "organ of state" is used in Constitution it means:
(a) department of state or administration in any sphere of government;
(b) any other functionary or institution—
(i) exercising power or performing function i t o Constitution or provincial constitution;
(ii) exercising public power or performing public function in terms of legislation, but does not include court or judicial officer

(section 239)

2. OBJECTS OF BILL
Principal objects of Bill are to—
(a) give effect to constitutional right of access to information held by state;
(b) partially give effect to constitutional right of access to information held by another person and which is required for exercising or protecting any right;
(c) 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 affect them.

To attain principal objects, Bill includes specific provision for—
(a) public access, on request, to information held by state, subject to exemptions necessary to protect good governance, personal privacy & commercial confidentiality;
(b) disclosure of information obtained in accordance with this Act;
(c) governmental bodies to make information available that will assist 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, correction of personal information held by state or private persons as well as regulation of use & disclosure thereof;
(e) protection of persons disclosing evidence of contraventions of the law, serious maladministration or corruption in governmental bodies;
(f) enforcement mechanisms in respect of rights contemplated in the Bill in form of internal appeals & applications lodged with High Court.

(See clause 3)

3 SCOPE (APPLICATION) OF BILL
General override that stipulates that the Bill (when it becomes law & takes effect) prevail over other conflicting legislation (See clause 2 of the Bill)

A ACCESS TO STATE INFORMATION
- departments of state
- administrations on national, provincial and local level
- functionaries and institutions exercising powers and performing duties in terms of Constitution and provincial constitutions
- functionaries and institutions exercising public powers and performing public duties in terms of legislation
- certain type of bodies listed, eg—
in which State is controlling shareholder
of which more than 50% of expenses is paid from funds voted by legislature
which supplies products or services under monopolistic rights conferred by legislation

Exclusions: Cabinet and courts and judicial officers

Access on request is provided in respect of recorded information regardless of form or medium
Thus, a request to compile information is not provided for
(See definition of "governmental body" and "record" in clause 1 of the Bill)

B PROTECTION OF PERSONAL INFORMATION
Applies to information about individual or juristic person (personal information) in records held by governmental and private bodies

Collection and retention requirements apply to governmental bodies only

(See definitions of "person" & "personal information" in clause 1)

4. COMPONENTS OF BILL
Three main components:
- access to state records
- (i) access to, (ii) correction of, and (iii) regulation of use & disclosure, of personal information held by private/governmental body
- protection of whistle-blowers

5. ACCESS TO STATE RECORDS
A MANNER OF ACCESS
Information officer for each governmental body to—
receive and decide on requests
assist requesters
(See clauses 4, 13 & 14)

Human Rights Commission must publish guide in plain language (in all official languages) to inform public of and assist them to exercise rights in terms of Bill
(See clause 5)

Each governmental body (other than a public enterprise) must publish manual in at least 2 official languages on—
their functions; and
information held by body
(See clause 6)

Guide and manuals must be distributed as prescribed by regulation
(See clauses 5(4) & 6(4))

Phone directory must contain particulars of all information officers (but not name) (See clause 7)

Governmental bodies must announce serious public safety risks (See clause 8)

Form and manner of request for access to records held by governmental bodies (See clause 13)

Oral requests allowed where individual unable to make written request because of illiteracy, poor literacy or physical disability (See clause 13(4))

Time within which requests should be dealt with
- Generally: requests to be attended to within 30 days
- Urgent requests: 5 working days;
- Extension once, or where third parties are involved, for 30 days
(See clauses 19, 20 & 21)

Fees to be paid:
* Classification of requesters—
(a) Non-commercial requester (news purposes and education and research purposes by educational and non-profit bodies)
(b) Personal requester (seeking information about him/herself)
(c) Commercial requester (other than (a) and (b))
(See definitions in clause 1)

* Type of fees—
(a) Request fees to be paid by commercial requesters
(b) Deposit to be paid by commercial and non-commercial requesters if search and preparation more than prescribed hours
(c) Access fees:
- Personal requesters - reproduction only
- Commercial and non-commercial requesters - reproduction and search and preparation, non-commercial - only in access of prescribed hours

(See clauses 17, 18 and 24)

Amount of different fees to be prescribed by regulation

B GROUNDS FOR REFUSAL OF ACCESS
Mandatory & discretionary grounds for refusal (clause 28)

Mandatory protection of personal privacy:
* disclosure would constitute an invasion of the privacy of an identifiable person, subject to exemptions
(Clause 29)

Health of requester
* disclosure would cause harm to physical or mental health, or well-being after consulting with a health practitioner
(Clause 30)

Mandatory protection of third party commercial information
* trade secrets
* financial, commercial, scientific or technical information — disclosure could reasonably be expected to cause harm to commercial/financial interests of a third party
* disclosure would be likely to put third party at disadvantage in contractual/other negotiations
(Clause 32)

Records supplied in confidence
* Information supplied in confidence &
(a) disclosure would be likely to prejudice future supply of similar records/records from the same source &
(b) no right to demand information &
(c) in public interest that similar records/records from the same source to be supplied
(Clause 32)

Safety of individuals & security of structures & systems
(Clause 33)

Law enforcement
eg
* prosecution of alleged offender is being prepared or about to commence or pending & disclosure would be likely to impede that prosecution
* disclosure would be likely—
(a) to prejudice investigation of an offence
(b) to reveal identity of a confidential source of information
(c) to result in intimidation of a witness
(Clause 34)

Privileged from production in legal proceedings
(Clause 35)

Defence & security of Republic
(Clause 36)

International relations
* Disclosure would be—
(a) contrary to international obligation; or
(b) likely to cause substantial harm to conduct of international relations (only records in existence 20 years or less)
(Clause 37)

Economic interests of Republic & commercial activities of governmental bodies
Eg
* Disclosure would be likely substantially to jeopardise financial welfare of Republic or ability to manage economy in the Republic’s best interests by prematurely disclosing—
eg
(a) contemplated change in policy substantially affecting the currency, exchange rates, etc
(b) contemplated change in credit or interests rates, etc
* Protects commercial information of state (similar to clause 31)
(Clause 38)

Operations of governmental bodies (deliberative process) (Clause 39)
Frivolous or vexatious requests
(Clause 40)

Records that cannot be found or do not exist
* Must conduct thorough search - full detail of steps taken to determine whether record exists or to find record
(Clause 41)

Published records and records to be published (eg if record is available at library/to be tabled in Parliament)
(Clause 42)

Records already open to public (in terms of other legislation) (eg Legal Deposit Act, 1997 (Act No. 54 of 1997)
(Clause 43)

Mandatory disclosure in public interest:
Despite exemptions access must, with regard to certain records, be granted if, giving due weight to importance of open, accountable and participatory administration, public interest in disclosure clearly outweighs need for non-disclosure (as embodied in the relevant ground for refusal)
(Clause 44)

C THIRD PARTY INTERVENTION
Notice to persons when request for record pertaining to them is received

Opportunity to make representations as to non-disclosure

(See Chapter 3 of Part 3 — clauses 45 to 47)

6 ACCESS TO, CORRECTION OF AND CONTROL OVER OF PERSONAL INFORMATION
Provision for access to personal information held by private bodies (clause 50)

Correction of inaccurate information about personal information held by private/governmental body (clauses 51 & 52)

Use & disclosure of personal information held by private/governmental body (clauses 53 to 59)

Distinction drawn between information obtained before and after commencement of Bill (clause 59)

Collection, retention, accuracy & disposal of personal information (only governmental bodies) (clauses 61 & 62)

(See Part 4 — clauses 48 - 62

7 PROTECTION OF WHISTLEBLOWERS
Officials who blow whistle on—
contraventions of law
corruption
maladministration
abuses of power
are protected

Disclosures may be made to—
specified bodies, eg Public Protector, parliamentary committee
in certain circumstances, media

(See Part 5 — clauses 63 - 66 )

8 ENFORCEMENT MECHANISMS
If request for access or correction of government record is refused, may lodge internal appeal with head of governmental body

If—
urgent request for access or urgent internal appeal or internal appeal is unsuccessful; or
contravention of whistle-blower provisions is alleged,
may lodge urgent motion application with High Court

(See Part 6 — clauses 67 - 81)

9 ROLE OF HUMAN RIGHTS COMMISSION
Human Rights Commission must annually—
review operation of Bill and make recommendations to Parliament
report to Parliament, eg on number requests received, granted and refused

Commission must also assist persons who wishes to exercise rights contemplated in Bill
(See clauses 82 to 84)

10 GENERAL PROVISIONS
Provision is made for offences in clause 85

Minister of Justice empowered to make regulations regarding inter alia—
(a) matters that must or may be prescribed (eg form of requests, fees payable);
(b) notices in terms of Bill;
(b) classification of records (see offence-provision in clause 85(c))
(See clause 86)

Provisions of the Bill, when it becomes law, can be brought into operation on different dates
(See clause 87(2))