NADEL

We thank the Committee for providing the opportunity for Nadel to make a written and oral submission on the Open Democracy Bill.

INTRODUCTION
We would like to begin by emphasising the fundamental importance of this Bill for building democracy in our country and for overcoming the legacy of Apartheid. This Bill will play an important role in establishing an open, participatory and accountable democracy and is necessary to give effect to the constitutional right to freedom of information and the right to just administrative action.

This submission will cover three areas. First, it will deal with the positive and commendable aspects of the Bill. Secondly, it examines broadly what we regard as the problematic areas of the Bill. Finally, it will cover in detail the problems surrounding the exemptions in the Bill.

2. POSITIVE ASPECTS OF BILL
A] We would like to commend the process by which the Bill has been developed as being inclusive and broad. Nonetheless there is cause for worry in terms of future process. We strongly urge the Committee to ensure the process continues to be participative despite the pending problems of time and capacity constraints that will be caused by the short time-span of the next session and changes to committee membership. Some continuity is essential and it is imperative that this Bill be prioritised for the session. We urge the Committee to commit to a second round of hearings and input from communities.

B] The Bill is also worthy of praise for its innovation in dealing with the changing nature of information technology. This is demonstrated by the wide definition of record including computer generated data and encompassing both software and hardware. This is a question that other countries have grappled with and had to accommodate to ensure that the principles of open democracy are maintained.

C] This praise extends to the decisive manner in which the Bill deals with commercial requesters. Again, this is an issue international jurisdictions have grappled with. The choice has merit in that it takes into account the South African context of development and differentiates requests for commercial profit as opposed to those for personal access.

D] The Bill is proactive in establishing a duty to distribute information without request in the form of guides and manuals. There is however a need to extend this Right to Know perspective and this will be discussed below.

3. GENERAL OVERVIEW OF THE BILL
As stated above the Open Democracy Bill is a critical piece of legislation in promoting effective and accountable government, participative democracy and an open culture of respect for constitutional rights. The measures of the Bill must give effect to the constitutional right set out in section 32(1) of the Constitution. The system created to do this must be accessible to the poorest and most marginalised sectors of society.

The following criticisms of the Bill are made in the interest of ensuring that the Bill is accessible and that the measures it sets out are practical.

A] Nadel endorses the submission presented by the Human Rights Committee. To this end we wish to emphasise the need to shift from a freedom of information framework to a right to know model. Along with strengthening the principle foundation of the legislation, this model will address the South African context more effectively. It incorporates the reality that most South Africans do not have the resources or capacity to pursue the measures in the Bill and the real need to build open democracy.

B] Nadel endorses the submission made by the South African Council of Churches. In particular we agree with the need for a horizontal application of the Bill in order to give full effect to the intent of section 32(1) of the constitution. This change will result in an extension of the protection for whistleblowers to the private sector and remove the major weakness of the otherwise well-drafted chapter 5.

C] Nadel fully endorses the submission made by the Black Sash for the section on open meetings to be returned to the Bill. These provisions are critical in giving effect to the constitutional and democratic values of open and transparent government. The provisions inter alia are fundamental to making the Bill an Open Democracy Bill, as opposed to being simply a freedom of information statute.

D] Nadel endorses the submission made by Idasa on the enforcement mechanisms of the Bill. We agree fully that the current provision for external review by the High Court is inaccessible, expensive, time consuming and cumbersome. The alternative proposal of a tribunal system would deal with these shortcomings. We also wish to emphasise that the additional duties assigned to the Human Rights Commission will require the provision of sufficient resources - this need not be dealt with in the Bill, but efficient external mechanisms will have to be developed.

E] We believe that the exclusion of the section, entitled "Disclosure of governmental decision-making guidelines", is detrimental to the intended effect of chapter 1 part 2 of the Bill and the proposed Right to Know model. This section provides for the distribution of information that would significantly help applicants identify the type and nature of information to which they may want access. It is a logical and reasonable corollary to section 6 of the Bill and would enhance the purpose of this section.

4. EXEMPTIONS
The Bill contains two different types of exemptions. This section will deal first with exemptions based on the grounds set out in chapter 2 of the Bill, including the public interest override. The section will also deal with exemptions based on the type of institution to which the act applies.

A] GROUNDS FOR EXEMPTION
It is submitted at the outset that Nadel believes strongly that the foundational principle of this section should be maximum disclosure. To this end we wish to reiterate the general principles for exemptions found at p4-5 of the Open Democracy Advisory Forum Policy Principles:

a) Narrow Exemptions: the exemptions must be drawn as narrowly as possible, to exclude from disclosure the minimum of information necessary to safeguard the interests that the exemptions protect.

b) Real Justified Exemptions: the exemptions should be constructed so that there is a tight fit between their scope and the principles that justify them. The exemptions should protect sensitive information only: they should not be blanket immunities for particular bodies or organisations. They should operate to protect information the content of which requires exemption from disclosure; not to privilege particular government departments.

c) Harm: information should be exempt from disclosure only when its release would cause real, not speculative, harm.

d) Public Interest Override: some exemptions at least should be subject to a public interest override. In the case of those exemptions, in other words, even information which falls within the ambit of the exemption, and is therefore prima facie protected, should be disclosed if the public interest warrants it. The public interest should be taken to warrant overriding an exemption if the national interest in accountable and participatory government that disclosure serves outweighs the secrecy interest that exemption serves.

With regard to particular grounds for exemption there are some general comments to be made. The section needs to be drafted in plain and accessible language. This is imperative to ensure that applicants understand fully the reason(s) for refusal of disclosure based on the grounds in the Bill. There is however merit in the detail of the section as it ensures that exemptions are construed as narrowly as the principle of maximum disclosure intends.

Secondly, it is important to note that there are two different standards for the general public interest override. There is a broad override based on whether public interest in disclosure outweighs the need for non-disclosure. There is a narrow override based on the above and the additional circumstances that are outlined in section 44(1) of the Bill. The merits of each application of the override for each ground of exemption will be discussed below, where the Bill’s application is questionable.

The following are the sections of chapter that need to be improved or re-examined:

i) Mandatory Protection of Personal Privacy
This provision allows a refusal of disclosure if such disclosure would constitute the invasion of privacy of an identifiable person. The section then sets out particular situations where the exemption does not apply.

The unqualified reference to "privacy" has the effect of strengthening the private interest and undermining the right to access. Other countries like Canada and Sweden have dealt with this problem by referring to a Privacy/Secrecy Act that defines, at length, what constitutes personal information. On the other hand, the similar exemption in the US act takes effect if disclosure constitutes an "unreasonable" or "unwarranted" invasion of privacy. It is submitted that legislation may be desirable in future as "privacy" and "personal information" may have distinct meanings for different acts. This does not however address the loophole in the current Bill. It is suggested that the Bill include an expansive definition of "personal information". The reinstatement of the necessity of harm exemption override would have a qualifying effect similar to the American qualification of unreasonableness.

ii) Records supplied in confidence
This provision allows a government body to refuse a request for access to records that contain information supplied in confidence by a third party. This exemption is based on the disclosure jeopardising a future supply of similar information or information from the same source. The exemption also applies if it is in public interest that similar information is supplied or the same source is used.

We submit that the exemption is overly broad. It creates a dangerous space for furtive dealings between government and particular private parties. Other jurisdictions have differing approaches. In Canada the exemption is limited to information obtained from within government at all levels, international organisations of state or institutions and foreign governments. The Australian exemption is limited to cases where disclosure would found an action for breach of confidence. The lesson that can be extracted is a need for a tighter definition of "third party" for the application of this section.

iii) Law enforcement
This exemption applies to information about law enforcement techniques, methods, procedures and guidelines. It also applies to information about specific investigations and prosecutions. The exemption is triggered by the likelihood of disclosure bringing about negative consequences.

It is submitted that the test for activating the exemption is weaker than that contained in earlier draft. The inclusion of the "necessity of harm override" could deal with this weakness.

Secondly, in other jurisdictions this exemption applies only to lawful methods etc. It is imperative that this qualification be added to the Bill.

iv) Operations of Government
This exemption protects information, which contains opinions, advice, recommendations, and accounts of consultation or deliberations for the purpose of assisting to formulate policy or taking decisions in the exercise of government power.

The section also states instances where the exemption does not apply: factual information or analysis thereof, reports on the performance or efficiency of a project or of a scientific expert and there is a fifteen-year limit on application.

The aim of the section is to deny access to information about the process of policy making and exercising of government power while such process is taking place. Thus it is not clear why the protection period is extended to fifteen years. Once certainty is reached it is desirable that information about the basis of the decision be accessible.

B] EXEMPTION BY DEFINITION
The second form of exemption is based in the definition section, which outlines which bodies the Bill does not apply to. Nadel wishes to express grave concern at the exclusion of the bodies in section 1(2), the exclusion of private bodies that perform public functions and the exclusion of the courts and judicial officers. The former two are covered in detail by the submissions on open meetings and horizontality made by the Black Sash and the South African Council of Churches. Thus, we will deal specifically with the latter.

There are principled and substantive reasons why the courts and judicial officers should fall under the application of this Bill. The contributing role these bodies played in the Apartheid system cannot be ignored with regards to the Bill’s aim to develop an open, accountable and democratic culture. Thus the courts and judicial officers have to play a role and demonstrate their commitment to this culture.

Secondly, the experiences of other countries with similar legislation have shown that such a Bill impacts on the way bodies make decisions and record information. In the South African context the battle to transform institutions of the state can only be enhanced by public scrutiny.

It is important to emphasise that the impartiality and independence of the judiciary is of paramount importance for our democracy. This, however, does not exempt the judiciary from the duty to be transparent and accountable. The two have to be balanced, provision being made to extend open democracy in a manner that promotes the protection of the impartiality and independence of the courts as the constitution outlines in section 165(3).

The question may be asked, what information do these bodies have that are not already publicly available? The following are scenarios drawn from interviews with judges, academics, and lawyers. They demonstrate that these bodies do hold information that is of interest to the public:

• Case 1:
Citizen A is a survivor of rape. She has been waiting for the trial of the accused in her case for 18 months. When she discovers that a high profile case has been fast-tracked on the same bench, she wishes to discover how the bench prioritises cases?

• Case 2:
Citizen B is an awaiting trial prisoner. He has been waiting for two years in jail, as he could not afford bail. He would like to know why the courts have delayed his case?

• Case 3:
Citizen C is a judge of the high court. The Judge-president represents his bench on the Judicial Services Commission. Citizen C is unhappy about a decision taken by the JSC. He wants to see the minutes of a meeting where the Judge-president received a mandate from his bench on the position.

The above demonstrate that the courts and judicial officers have records of meetings where procedural decisions are taken. They also should have processes and procedures documented to ensure fairness and transparency. However, for the above citizens the information they seek is not accessible.

Having established a principled and substantive case for the inclusion of the courts and judicial officers in the application of this Bill, there remains the task of suggesting how they can be accommodated. Similar legislation in France, the Netherlands, Sweden and New Zealand applies to the courts and judicial officers. This application is severely limited to protect the above-mentioned democratic principle of the independence of the judiciary. In most cases it applies only to requests for information on administrative action.

In terms of this Bill, there is scope for application of section 1 part 2 to the courts and judicial officers. This would impose a duty to produce and distribute a manual of its functions and an index of the records that are held by the courts and judicial officers. This manner of incorporating the courts is useful it that it imposes a duty to be transparent, while giving the courts the power to decide what information outside of statutory restrictions will be available to the public. Re-introducing the section on "Disclosure of governmental decision-making guidelines" will also benefit the public access interest while not impeding the court’s independence.

The provision for the courts and judicial officers under these sections would provide a framework within which the above cases could request information and would resolve the first case entirely.

Application can go further and allow request of information on administrative action. It would be unavoidable in the above situation, as access to scrutinise procedures and processes would lead to questioning on their fairness. We submit that this is desirable and can only contribute to the transformation and effectiveness of our judicial system.

Thus, Nadel strongly objects to the exclusion of the courts and judicial officers from the application of this Bill. We have established that the Bill can and should include them. We submit

That the explicit exclusion of the courts and judicial officers should be removed and a specific section outlining the application to the courts be included. This section should set out which sections of the Bill apply [we suggest Chapter1, part2 entirely and the rest of the Bill with regards to administrative action only]. The section should also include special provisions to ensure that the impartiality and independence of the courts is protected and not impeded by the measures of this Bill.

C] NECESSITY OF HARM OVERRIDE
Previous drafts of the Bill contained a section entitled " Necessity of harm" which prevented disclosure being refused on the basis of an exemption, if the harm envisaged by the exemption is unlikely to occur. We believe strongly that this test is important and will prevent unreasonable refusal of disclosure. We submit that this section should be re-introduced to the Bill.

5. CONCLUSION
This legislation is of critical importance in establishing the foundations for an open and democratic society. We, at Nadel consider these values as essential elements of a constitutional state and a human rights culture. Thus we support the tabling of this legislation.

Nonetheless we believe that in order to achieve the desired affect, the best Bill possible must be passed. This entails amending the current draft:

• To reflect the full ambit of the constitutional right to access information.
• To ensure that the principles apply as widely as possible encompassing all sections of our state that have been in the dark in the past.
• To ensure that it is workable in practice.
• To ensure that the principles of open democracy do not remain remote, but translate into real cultural change.

To this effect we hope that our recommendations and criticism will contribute to strengthening the bill and developing an open democratic culture.

Drafted by:
Rikky Minyuku
Nadel Human Rights Research and Advocacy Project