SOUTH AFRICAN COUNCIL OF CHURCHES
LEGISLATIVE SUBMISSION

OPEN DEMOCRACY BILL
(B67-98)

Submission to the Portfolio Committee on Justice
1 February 1999

Summary
The SACC strongly supports the Open Democracy Bill and urges its prompt adoption and implementation. However, we have serious reservations about the Bill in its current form. We have already identified our main concerns in an earlier submission, made jointly with eight other organs of civil society. In this submission, we expand upon our earlier arguments concerning what we see as the Bill's most glaring flaw: its failure to give full effect to the provisions of section 32(1)(b) of the Constitution concerning access to privately-held information vital to the protection or exercise of fundamental rights. We propose extensive revision of the Bill to address this omission and include suggested language in an appendix.

We also raise, more briefly, objections to the deletion of the Open Meetings provisions contained in early drafts of this legislation. We propose that this chapter be reincorporated into the Bill or, at the least, that the Bill be retitled to acknowledge its limited scope.

Submission to the Portfolio Committee on Justice
Re: Open Democracy Bill (B67-98)

1.0 Access to government information is an essential component of open democracy
1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 25 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 The SACC strongly supports the adoption of legislation that promotes open and accountable government and gives full effect to the constitutional guarantees of freedom of political choice, access to information, and just administrative action. We believe that openness and accountability—in both public and private institutions—facilitates effective citizen participation in policy debates.Popular input is vital to the formulation and implementation of policies that enhance social and economic justice, promote sustainable and broad-based human development, and enable all people to realise Christ's promise of life abundant.

1.3 The apartheid state was erected on a foundation of secrecy and exclusion. In the name of state security, the government resorted to increasingly draconian measures to suppress information and obscure the devastating impact of its policies. One of the many challenges facing our democratic government is to cultivate a new attitude of openness and transparency in both the public and private sectors. Only then can all South Africans have access to the information necessary to assess policy options, to protect and execise their rights, to fulfill their responsibilities, and to build a better future.

1.4 In this context, we welcome the Open Democracy Bill (hereafter,"the Bill") as a milestone in the construction of a culture of accountability and transparency. We commend the Minister and Department of Justice for devising legislation that gives effect to the Constitutional right of access to government information in a comprehensive and efficient manner. We appreciate the dedication of the South African Law Commission, the South African Human Rights Commission, and the countless government officials and non-governmental representatives who have worked diligently to revise and refine the Bill.

2.0 Areas of concern and scope of submission
2.1 Although the SACC strongly supports the provisions of the Bill, we are concerned that the Bill's title promises more than it delivers. In order to lay a strong foundation for an open and rights-respecting democracy, legislation must also:
* give effect to the constitutional right of access to information held by private
bodies that is needed to protect or exercise a right;
* establish a legal framework for public access to meetings of governmental
bodies;
* cultivate a culture of openness by requiring government agencies to make
certain categories of information available to the public as a matter of routine (the "right to know" principle);
* protect employees of private bodies who expose activities of their employers
that wilfully violate fundamental rights; and
* create a "user-friendly" external review and appeal mechanism that enables
ordinary citizens to be fairly heard even if they limited access to financial or legal resources.

2.2 We have already discussed many of these broad concerns--and several more specific matters--in a submission to the Select Committee on Security and Justice, dated 11 August 1998. This submission was made jointly with the Black Sash, the COSATU Parliamentary Office, the Environmental Justice Networking Forum, the Legal Resources Centre, the Human Rights Committee, IDASA, the Southern African Catholic Bishops' Conference, and the South African NGO Coalition. We reaffirm our support for the points raised in that document and commend it to the committee's attention.

2.3 At the same time, we recognise that it may be impractical for a single bill to address all of the issues associated with the establishment of open democracy. At a minimum, though, the Bill should give full effect to the right of access to information contained in Section 32(1) of the Constitution. We would also wish to see the Bill's open meeting provisions--present in early drafts but dropped from the tabled version--restored. If this is not done, then the Bill should be renamed the Freedom of Information Bill in accordance with its more limited aims.

3.0 Access to privately-held information needed to protect or enforce a right
3.1 Section 32(1) of the Constitution (Act No. 106 of 1996) states:
Everyone has the right of access to —
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
Section 32(2) of the Constitution, read with item 23(1) of Schedule 6, requires Parliament to enact national legislation to give effect to this right by 4 February 2000.

3.2 The memorandum accompanying the Bill indicates that the proposed legislation is intended:
to give effect to the right referred to in section 32(1)(a) of the Constitution, and to
partially give effect to the right mentioned in section 32(1)(b) of the Constitution ...
The memorandum also recommends that the Human Rights Commission undertake a comprehensive investigation and consultation process in order to develop recommendations regarding legislation that would give full effect to section 32(1)(b).

3.3 We appreciate the government's frank acknowledgement that the Bill fails to give full effect to the limited right of access to privately-held information set forth in section 32(1)(b) of the Constitution. We agree that additional parliamentary action would be required to fulfill the mandate contained in section 32(2) and Schedule 6 of the Constitution. However, we believe that attempting to implement these rights in separate stages would be invite confusion, frustration, and litigation and would ultimately thwart the objectives of openness and the protection of rights.
3.4 In terms of item 23(2) of Schedule 6 of the Constitution, the right of access to information is currently defined by a corresponding clause from the interim Constitution (Constitution of the Republic of South Africa, Act No. 200 of 1993):
Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.
Once parliament enacts national legislation that gives effect to section 32(1) of the Constitution, this interim clause will fall away and the right of access to information will be defined solely in terms of section 32(1).

3.5 Given that the government acknowledges that the Bill:
a. gives full effect to the right contained in section 32(1)(a);
b. gives partial effect to the right contained in section 32(1)(b); and
c. does not give full effect to the right contained in section 32(1)(b)
the constitutional impact of the Bill's enactment is unclear. Two possibilities exist:

3.5.1 Due to its inability to give full effect to the rights contained in section 32(1), the Bill fails the test contained in section 32(2). The interim constitutional provision would then remain operative until parliament enacts legislation to give full effect to section 32(1)(b) or until section 32(2) automatically lapses, in terms of item 23(3) of Schedule 6, on 4 February 2000.

3.5.2 Due to its capacity to give substantial effect to the rights contained in section 32(1), the Bill will pass the test contained in section 32(2), triggering the activation of section 32(1) and the replacement of the interim provision.

3.5.3 A third possibility—that the enactment of the Bill would activate some portion of section 32(1) in lieu of the interim provision—seems untenable. Section 32(2) contains no test for partial effect and it makes no provision for separating the rights to public and private information or enacting them at different times. Moreover, the Bill gives partial effect to section 32(1)(b), making it impossible to segregate "active" provisions from "inactive" ones. [Even if the latter objection were to be addressed by the removal of measures providing access to the records of private bodies, the former objection would still hold. We are highly concerned that any attempt to separate the activation of clause 32(1)(a) and 32(1)(b) would not only be legally dubious, it would permit parliament to postpone indefinitely further action to give effect to 32(1)(b).]

3.6 Neither of the consequences envisioned in 3.5.1 or 3.5.2 are desirable. In the first case, the right of access to government information remains intact in terms of the interim provision, without any effective legislation to regulate the application and exercise of that right. This has already created some difficulty—for instance in the case of ABBM Printing & Publishing v.Transnet where the applicant was granted access to tender documents under Section 32 of the Constitution (read with section 23(2)(a) of Schedule 6), an outcome which may well have been excluded by the Bill's exemption on the disclosure of certain commercial information. In the second case, a constitutionally-protected right of access to information would be extended to privately-held information required to protect any right, again without any legal framework to regulate that scope or method of access. This threatens to unleash a barrage of information requests to private bodies, many of which might ultimately require adjudication by the courts.

3.7 Apart from the practical arguments against the partial realisation of the rights contained in section 32(1), there is a strong moral argument to be made for the adoption of legislation that would facilitate full recognition of these rights. The current political trend is to minimise state intervention in the private sector and to permit markets, rather than legislation, to regulate commercial activity. Although deregulation can, in some instances, prompt greater efficiency and economic growth through increased competition and innovation, it also diminishes the accountability of private enterprises to elected officials. Furthermore, some private firms may use their considerable economic resources to evade government efforts to regulate their activities in the public interest, as, for example, in the cases of environmental or consumer protection.

3.8 It is therefore essential to offset this general relaxation of accountability by enabling greater public scrutiny of the private sector. No private body—whether profit-making or not-for-profit—should be permitted to violate the constitutionally-protected social and political rights of South African citizens. While the government can and should adopt laws to reduce the danger of such violations, the prompt implementation of legislation that ensures access to a clearly defined range of privately held information will encourage citizen vigilance and will form the most effective and durable bulwark against abuses by individuals whose power is not otherwise subject to popular control.

3.9 The SACC therefore recommends that the Bill be amended to incorporate a new Part, equivalent to the current Part 3 (Access to Records of Government Bodies) that gives full effect to section 32(1)(b) by providing a parallel right and manner of access to records of private bodies: a) that contain personal information about the requester, or b)are necessary to exercise or protect a right. We annex to this submission proposed language to that effect. This would:
* establish an application process similar to the one for government records
(but with the important condition that, in the case of requests for access related to the protection or exercise of any right, the applicant must include a statement of the right that he or she is seeking to exercise or protect and how the requested record would promote that objective);
* streamline the application process by eliminating urgent requests and
abandoning the variable treatment of applicants based on their commercial
status;
* define a reduced set of grounds for refusal of requests (but with additional grounds to protect the private body's own commercial information and to
permit the refusal of requests that do not make a convincing connection between the requested information and the protection or exercise of a right) and restore the "necessity of harm" override which appeared in earlier versions of the bill;
* provide for notification of and intervention by third parties affected by a
request;
* assign review functions to the High Courts (in the absence of a more
accessible and appropriate review structure)1;
* eliminate reference to personal information banks in the Bill's definition of a
private body;
* make appropriate changes to the current Part 4 (Access to, Correction of and
Control over Personal Information Held by Private and Governmental Bodies) to avoid duplication or contradictions; and
* make other technical changes necessary to the integration of the above
changes.

4.0 Open meetings
4.1 Section 195(1) of the Constitution states, in part:
Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:
...
(e) People's needs must be responded to, and the public must be encouraged to participate in policy-making.
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with timely, accessible and accurate information.
Section 195(2) of the Constitution requires national legislation be enacted to promote these principles.

4.2 Section 41(1)(c) of the Constitution further requires that:
All spheres of government and all organs of state within each sphere must—
...
(c) provide effective, transparent, accountable and coherent government for the Republic as a whole;

4.3 One of the most obvious methods of ensuring the transparency and accountability of organs of state and the timeliness and accuracy of information about their deliberations is to guarantee public access to meetings of these bodies. Currently, the Constitution only explicitly provides for public access to meetings of the National Assembly, the National Council of Provinces, provincial legislatures, and municipal councils (sections 59(1), 72(1), 118(1) and 160(7), respectively). However, more comprehensive legislation, comparable to the "government in the sunshine" laws in other jurisdictions, is essential to ensure that the provisions of sections 41 and 195 are applied consistently and comprehensively to all state policy-making bodies. In addition, such legislation should provide for the regulation of access to meetings, including the establishment of more detailed criteria for the closure of meetings and notice of meetings.

4.4 Early drafts of the Bill included an "open meetings" chapter that guaranteed public access to all meetings of state policy-making bodies (except the Cabinet) and governed the related matters such as notification of meetings, the publication of agendas and minutes. and the grounds for closure of meetings. This section was deleted from the Bill during Cabinet consideration. We understand that the omission of this section was prompted, in part, by concerns about its complexity and workability.

4.5 We share the government's eagerness to ensure that the implementation of the Bill does not impose unnecessary burdens on state officials. However, we believe that the right of public access to meetings of state policy-making bodies is not only consistent with the spirit and letter of the Constitution, but also an essential component of open democracy. We believe further that the protection of this right need not place onerous responsibilities on government officials. We urge the simplification and reincorporation of this chapter in a manner that establishes, in principle, the right of access and leaves many of the details of implementation to regulations. We are prepared to make specific proposals to this effect if asked to do so. Should the committee decide not to reincorporate this material into the current bill, we would strongly recommend that the title of the legislation be changed to the "Freedom of Information Bill", thereby more accurately reflecting the scope of its effect.

APPENDIX
Proposed amendments to Open Democracy Bill to give effect to Sec. 32(1)(b) of the Constitution
1. In the initial description of the bill, prior to the table of contents, insert the following language:

To give effect to the constitutional right of access to any information held by the state; to give effect to the constitutional right to any information held by another person and which is required for exercising or protecting any right; to make available ...

2. In section 1, amend the definition of "private body" as follows:

(xxiv) "private body" means a person, other than a governmental body [in possession of or controlling a personal information bank];

3. In section 3, insert a new clause after the current clause (1)(b):

(b2) to give effect to the constitutional right of access to information held by another person and which is required for the exercise or protection of any right;

4. To insert a new section following the current section 4:

Delegation of powers by head of private body
4A. The head of a private body may, subject to the conditions determined by the head, delegate a power conferred or a duty imposed on the head by this Act to any employee of the private body.

5. In section 5(2)(c)(ii), make the following amendment:

(ii) access to a record of a private body [containing personal information]; and

6. Following section 47, insert a new Part 4, as follows:

PART 4: LIMITED ACCESS TO RECORDS OF PRIVATE BODIES

CHAPTER 1: RIGHT AND MANNER OF ACCESS

Right of access to records of private bodies
47A. Any person must, on request, but subject to this Act, be given access to any record of a private body that--
(a) contains personal information about that person; or
(b) is required for the exercise or protection of any right.

Use of Act for criminal or civil discovery of private bodies' records excluded
47B. No request for access to a record of a private body may be made in terms of this Act for the purpose of criminal or civil discovery provided for in any other law.

Right of disclosure of record to which access is given
47C. Subject to the common law, any person, whether or not he or she is the relevant requester, may publish, broadcast or otherwise disclose information contained in a record of a private body to which access is given in terms of this Act.

Access to records in terms of other law
47D. Nothing in this Act, except section 55, prevents a private body from giving access to a record of that body in accordance with any other law or authorises a private body to deny access to a record of that body that any other law requires to be made available.

Form of requests
47E. (1) A request for access must--
(a) be made in writing to the head of the private body concerned at his or her address or fax number or electronic mail address;
(b) provide sufficient particulars to enable an official of the private body
concerned to identify the record or records requested;
(c) indicate which applicable form of access referred to in section 62(2) is
required;
(d) state whether the record concerned is preferred in a particular language;
(e) specify a postal address or fax number for the requester in the Republic;
(f) in the case of a request for access to a record containing personal
information, state the capacity contemplated in subsection (3) in which the
requester is making the request and include--
(i) the requester's identity document or a certified copy thereof or any
other reasonable proof of the requester's identity; or
(ii) if the requester is not the person to whom or which the personal
information relates, reasonable proof of the capacity in which the
requester is making the request; and
(g) in the case of a request for access to a record containing information
required to exercise or protect a right, identify the right the requester is
seeking to exercise or protect and provide a reasonable explanation of why
the requested record is required for the exercise of protection of that right.
(2) An individual who because of illiteracy, poor literacy or a physical disability is unable to make a request for access to a record of a private body in accordance with subsection (1), may request the Human Rights Commission to assist him or her to make that request.
(3) A request for access to a record containing personal information may be made--
(a) by the person to whom or which the personal information relates or that
person's authorised representative;
(b) if the individual contemplated in paragraph (a) is--
(i) under the age of 16 years, by a person having parental
responsibility for the individual;
(ii) incapable of managing his or her affairs, by a person appointed by
the court to manage those affairs;
(iii) deceased, by the executor of his or her estate.
(4) The Minister shall publish a form or forms which will satisfy the requirements of this section and which, in addition, will provide information both to the requester and to the recipient regarding their rights and duties under this Part. No person shall be required to use the form.

Preservation of records until final decision on request
47F. If the head of a private body has received a request for access to a record of the body, he or she must take the steps that are reasonably necessary to preserve the record, without deleting any information contained in it, until he or she has notified the requester in question of his or her decision in terms of section 47G and--
(a) the periods for lodging an application with a High Court or an appeal against
a decision of that Court have expired; or
(b) that application or appeal against a decision of that Court or other legal
proceedings in connection with the request has been finally determined,
whichever is the later.

Decision on request and notice thereof
47G. (1) The head of a private body to whom a request for access is made must, subject to section 47H and Chapter 3 of this Part, as soon as reasonably possible, but in any event, within 30 days, after the request is received either--
(a) produce the requested information in the form requested at a mutually
agreeable location without fee; or
(b) decide in accordance with this Act whether to grant the request and notify
the requester concerned of the decision.
(2) If the request for access is granted, the notice in terms of subsection (1)(b) must state--
(a) the access fee (if any) to be paid upon access;
(b) the form in which access will be given;
(c) in the case of a record containing personal information about the requester,
that the information may be corrected in terms of section 82, and the
procedure for making a request for correction; and
(d) that the requester concerned may lodge an application with a High Court
against the access fee to be paid or the form of access granted, and the
procedure (including the period) for lodging an application with a High
Court.
(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state--
(a) the reasons for the refusal (including the provision of this Act relied upon to
justify the refusal) in such manner as to enable the requester--
(i) to understand the justification for the refusal; and
(ii) to make an informed decision about whether to lodge an application
with a High Court to utilise any other remedy in law available to the
requester; and
(b) that the requester may lodge an application with a High Court against the
refusal of the request, and the procedure (including the period) for lodging
an application with a High Court.
(4) Failure to include complete and accurate information concerning the right to lodge an application with a High Court shall not cause any forfeiture but shall be good cause for relieving the requester of the obligation to lodge an application within the time provided in section 74A.
(5) The Minister shall publish a form or forms which will satisfy the requirements of this section. No person shall be required to use the form.

Extension of period to deal with request
47H. (1) The head of a private body to whom a request for access has been made may extend the period of 30 days referred to in section 47G(1) (in this section referred to as the "original period"), once for a further period of not more than 30 days, if--
(a) the request is for a large number of records or requires a search through a
large number of records and compliance with the original period would
unreasonably interfere with the activities of the private body concerned;
(b) the request requires a search for records in, or collection thereof from, an
office of the private body not situated in the same town or city as the office
of the head of the private body concerned that cannot reasonably be
completed within the original period;
(c) both of the circumstances contemplated in paragraphs (a) and (b) exist in
respect of the request making compliance with the original period not
reasonably possible.
(2) If a period is extended in terms of subsection (1), the information officer concerned must, as soon as reasonably possible, but in any event, within 30 days, after the request is received, notify the requester of that extension.
(3)The notice in terms of subsection (2) must state--
(a) the period of the extension; and
(b) the reasons for the extension (including the provision of this Act relied upon
to justify the extension) in such manner as to enable the requester to
understand the justification for the extension.

Deemed refusal of request
47I. If the head of a private body fails to give his or her decision on a request for access within the period contemplated in section 47G(1) he or she is, for the purposes of this Act, regarded to have refused the request.

Severability
47J. (1) If a request is made for access to a record of a private body containing information which may be refused under chapter 2 of this Part, every part of the record which--
(a) does not contain; and
(b) can reasonably be severed from any part that contains,
any such information must, despite any other provision of this Act, be disclosed.
(2) If a request for access to--
(a) a part of a record is granted; and
(b) the other part of the record is refused,
as contemplated in subsection (1), the provisions of section 47G(2) apply to paragraph (a) of this section and the provisions of section 47G(3) to paragraph (b) of this section.

Access fees
47K. (1) A requester whose request for access to a record of a private body has been granted may be given access to the record only if he or she has paid the applicable prescribed access fee (if any).
(2) Access fees prescribed for the purposes of subsection (1) must provide for a reasonable access fee for--
(a) the cost of making a copy of the record, or of a transcription of the content
of record, as contemplated in section 47L(2)(a) and (b)(i), (ii)(bb), (iii), (iv)
and (v) and, if applicable, the postal fee; and
(b) the time reasonably required to search for the record and prepare (including
making any arrangements contemplated in section 47L(2)(a) and (b)(i) and
(ii)(aa)) a record for disclosure to the requester.

Access and forms of access
47L. (1) If a requester has been given notice in terms of section 47G(1) that his or her request for access has been granted, that requester must, subject to subsections (3), (9) and (10)--
(a) if an access fee is payable, upon payment of that fee; or
(b) if no access fee is payable, immediately,
be given access in the applicable forms referred to in subsection (2) as the requester indicated in the request and in the language contemplated in section 47M.
(2) The forms of access to a record in respect of which a request for access has been granted, are the following:
(a) If the record is in written or printed form, by supplying a copy of the record
or by making arrangements for the inspection of the record;
(b) if the record is not in written or printed form--
(i) in the case of a record from which visual images or printed
transcriptions of those images are capable of being reproduced by
means of equipment which is ordinarily available to the private body
concerned, by making arrangements to view those images or be
supplied with copies or transcriptions of them;
(ii) in the case of a record in which words or information are recorded in
such manner that they are capable of being reproduced in the form of
sound by equipment which is ordinarily available to the private body
concerned--
(aa) by making arrangements to hear those sounds; or
(bb) if the private body is capable of producing a written or printed
transcription of those sounds by the use of equipment which is
ordinarily available to it, by supplying such a transcription;
(iii) in the case of a record which is held on computer, or in electronic or
machine-readable form, and from which the private body concerned
is capable of producing a printed copy of--
(aa) the record, or part of it; or
(bb) information derived from the record,
by using computer equipment and expertise ordinarily available to
the private body, by supplying such a copy;
(iv) in the case of a record available or capable of being made available in
computer readable form, by supplying a copy in that form;
(v) in any other case, by supplying a copy of the record.
(3) If a requester has requested access in a particular form, access must, subject to section 47J, be given in that form, unless to do so would--
(a) interfere unreasonably with the effective administration of the private body
concerned;
(b) be detrimental to the preservation of the record; or
(c) amount to an infringement of copyright not owned by the private body
concerned.
(4) If a requester has requested access in a particular form and for a reason referred to in subsection (3) access in that form is refused but access is given in another form, the fee charged may not exceed what would have been charged if that requester had been given access in the form requested.
(5) If a requester with a visual or auditory disability is prevented by that disability from reading, viewing or listening to the record concerned in the form in which it is held by the governmental body concerned, the head of the private body must, if that requester so requests, take reasonable steps to make the record available in a form in which it is capable of being read, viewed or heard by the requester.
(6) If a record is made available in accordance with subsection (5), the requester concerned may not be required to pay an access fee which is more than the fee which he or she would have been required to pay but for the disability.
(7) If a record is made available in terms of this section to a requester for inspection, viewing or hearing, the requester may make copies of or transcribe the record using the requester's equipment, unless to do so would--
(a) interfere unreasonably with the effective administration of the private body
concerned;
(b) be detrimental to the preservation of the record; or
(c) amount to an infringement of copyright not owned by the private body
concerned.
(8) If the supply to the requester of a copy of a record is required by this section, the copy must, if so requested, be supplied by posting it to the requester.
(9) If an application with a High Court is lodged against the granting of a request for access to a record, access to the record may be given only when the decision to grant the request is finally confirmed.
(10) If a request for access to a record is granted, but a request for correction is pending in respect thereof or a part thereof, access to the record or part thereof, as the case may be, may be given only when the decision on the request for correction has been finally determined.

Language of access
47M. A requester whose request for access to a record of a governmental body has been granted must, if the record--
(a) exists in the language that the requester prefers, be given access in that
language; or
(b) does not exist in the language so preferred or that requester has no
preference, be given access in any language in which the record exists.

CHAPTER 2: GROUNDS FOR REFUSAL OF ACCESS TO RECORDS
Protection of personal privacy
47N. (1) Subject to subsection (2), the head of a private body may refuse a request for access to a record of the body if its disclosure would constitute an invasion of the privacy of an identifiable individual (including an individual who died less than 20 years before the request is received) other than the requester concerned or other person contemplated in section 47E(3).
(2) Subsection (1) does not apply to a record in so far as it consists of information--
(a) already publicly available;
(b) about a person that has, in accordance with section 47BB(b), consented to its
disclosure to the requester concerned;
(c) about an individual's physical or mental health, or well-being, who is--
(i) under the age of 18 years;
(ii) under the care of the requester; and
(iii) is incapable of understanding the nature of the request,
and if giving access would be in the individual's best interests;
(d) about an individual who is deceased and the requester is, or is requesting
with the written consent of, the individual's next of kin; or
(e) about an individual who is or was an official of a governmental body and
relates to the position or functions of the individual, including, but not
limited to--
(i) the fact that the individual is or was an official of that governmental
body;
(ii) the title, work address, work phone number of the individual and
other similar particulars of the individual;
(iii) the classification, salary scale or remuneration and responsibilities of
the position held or services performed by the individual;
(iv) the name of the individual on a record prepared by the individual in
the course of employment.
(3) In subsection (2)(d), "individual's next of kin" means--
(a) an individual to whom the individual was married, with whom the individual
lived as if they were married or with whom the individual cohabited,
immediately before the individual's death; or
(b) a parent, child, brother or sister of the individual; or
(c) if--
(i) there is no next of kin referred to in paragraphs (a) and (b); or(ii) the requester concerned took all reasonable steps to locate such next
of kin, but was unsuccessful,
an individual who is related to the individual in the second degree of affinity
or consanguinity.

Health of requesters
47O. (1)In this section "health practitioner" means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or well-being of individuals.
(2)The head of a private body may refuse a request for access to a record of the body about the requester's physical or mental health, or well-being, which was provided by a health practitioner in his or her capacity as such if --
(a) the disclosure of the record to that requester is likely to cause serious harm
to his or her physical or mental health, or well-being; and
(b) the head of the private body has disclosed the record to, and consulted with,
a health practitioner who--
(i) carries on an occupation of the same kind as the health practitioner
who provided the record; and
(ii) has been nominated by the requester or his or her authorised
representative; and
(c) that health practitioner so consulted is of the opinion that the serious harm
contemplated in paragraph (a) is likely to result.
(3) If the requester is--
(a) under the age of 16 years, a person having parental responsibilities for the
requester must make the nomination contemplated in subsection (2)(b)(ii); or
(b) incapable of managing his or her affairs, a person appointed by the court to
manage those affairs must make that nomination.
(4) If--
(a) access has been given to a record of a private body containing information
about the requester's physical or mental health, or well-being, which was
provided by, or originated from, a health practitioner; and
(b) that access was given without that health practitioner's knowledge; and
(c) that health practitioner can be located by taking all necessary steps,
the head of the private body concerned must notify that health practitioner that access has been so given.

Protection of third party commercial information
47P. (1) Subject to subsection (2), the head of a private body may refuse a request for access to a record of the body if the record contains--
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information, other than trade
secrets, supplied in confidence by a third party and treated consistently as
confidential by that third party, the disclosure of which could reasonably be
expected to cause harm to the commercial or financial interests of that third
party; or
(c) information supplied by a third party the disclosure of which would be likely
to put that third party at a disadvantage in contractual or other negotiations
or cause it prejudice in commercial competition.
(2) Subsection (1) does not apply to a record in so far as it consists of information--
(a) already publicly available;
(b) about a third party who has, in accordance with section 47BB(b), consented
to its disclosure to the requester concerned;
(c) about the safety of goods or services supplied by a third party, and the
disclosure of the information would be likely to result in better informed
choices by persons seeking to acquire those goods or services; or
(d) about the results of any test or other investigation regarding a public safety
or environmental risk.

Protection of commercial information
47Q. (1) Subject to subsection (2), the head of a private body may refuse a request for access to a record of the body if the record contains--
(a) trade secrets of the private body concerned; or
(b) financial, commercial, scientific or technical information about the private
body concerned the disclosure of which could reasonably be expected--
(i) to cause harm to the commercial or financial interests of the private
body concerned;
(ii) to put the private body concerned at a disadvantage in contractual or
other negotiations; or
(iii) to cause the private body concerned prejudice in commercial
competition.
(2) Subsection (1) does not apply to a record in so far as it consists of information--
(a) already publicly available;
(b) about the safety of goods or services and the disclosure of the information
would be likely to result in better informed choices by persons seeking to
acquire those goods or services; or
(c) about the results of any test or other investigation regarding a public safety
or environmental risk.

Safety of individuals and security of structures and systems
47R. The head of a private body may refuse a request for access to a record of the body if its disclosure would be likely--
(a) to endanger the life or physical safety of an individual; or
(b) seriously to endanger the maintenance or enforcement of methods for the security of a particular building, installation or information storage, computer or communication system.

Relevance to exercise or protection of a right
47S. The head of a private body may refuse a request for access to a record of the body if--
(a) the requester fails to identify a right, the exercise or protection of which would be furthered through the disclosure of the requested record; or
(b) the requested record could not reasonably be expected to further the exercise or protection of the right cited in the request.

Privileged from production in legal proceedings
47T. The head of a private body may refuse a request for access to a record of the body if the record is privileged from production in legal proceedings unless--
(a) the person entitled to the privilege has waived the privilege; or
(b) the legal proceedings to which the record relates have been finally determined.

Frivolous or vexatious requests
47U. The head of a private body may refuse a request for access to a record of the body if the request is manifestly frivolous or vexatious.

Records that cannot be found or do not exist
47V. (1) The head of a private body may refuse a request for access to a record of the body if--
(a) a thorough search to find the record has been conducted, but it cannot be
found; or
(b) there are reasonable grounds for believing that the record does not exist.
(2) If the head of a private body refuses a request for access to a record in terms of subsection (1), he or she must, in the notice referred to in section 47G(1)(b), give a full account of all steps taken to find the record or to determine whether the record exists, as the case may be, including all communications with every person who conducted the search on behalf of the body.

Published records and records to be published
47W. (1) Subject to this section, the head of a private body may refuse a request for access to a record of the body if--
(a) the record is to be published within 60 days after the receipt of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it;
(b) the record can be copied at a library to which the public has access;
(c) the record is available for purchase by the public; or
(d) the publication of the record is required by law within 90 days after the request concerned is received.
(2) The head of the private body concerned must, in the notice referred to in section 47G(1)(b), in the case of a refusal of a request for access in terms of--
(a) subsection (1)(a) or (d), state the date on which the record concerned is to be published;
(b) subsection (1)(b), identify the title and publisher of the record; or
(c) subsection (1)(c), identify the title and publisher of the record and state where it can be purchased.
(3) If the head of a private body is considering to refuse a request for access to a record in terms of subsection (1)(a) or (d), he or she must notify the requester concerned--
(a) of such consideration; and
(b) that the requester may, within 30 days after that notice is given, make representations to the head of the private body why the record is required before publication.
(4) If notice is given to a requester in terms of subsection (3), the head of the private body concerned must, after due consideration of any representations made in response to the notice, grant the request, unless there are reasonable grounds for believing that the requester will suffer no substantial prejudice if access to the record is deferred until the record is published.
(5) If the record in respect of which a request for access has been refused in terms of subsection (1)(a) is not published within 60 days after receipt of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it, the requester must be given access to the record.

Records already open to public
47X. The head of a private body may refuse a request for access to a record of the body if the record is open to public access in accordance with any other legislation, unless the Human Rights Commission determines that the manner in which access may be obtained and the fee payable for access in terms of the other legislation concerned is more onerous than the access fee payable in terms of this Act.

Mandatory disclosure in public interest
47Y. Despite any other provision of this Act, but subject to Chapter 3 of this Part, the head of a private body must grant a request for access to a record contemplated in section 47N(1), 47O(2), 47P(1), 47Q(1), 47R, 47S, or 47T if--
(a) disclosure of the record would reveal evidence of substantial--
(i) abuse of authority, illegality or neglect in the performance of the duties of an official of a governmental body;
(ii) injustice to a person, including a deceased individual;
(iii) danger to the environment or the health or safety of an individual or the public; or
(iv) unauthorised use of the funds or other assets of a governmental body;
and
(b) the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision in question.

Necessity of harm
47Z. No provision in this Chapter may be interpreted to require or permit the head of a private body to refuse a request for access if the harm that that provision is intended to guard against could not reasonably be expected to occur if the request were granted.

CHAPTER 3: THIRD PARTY INTERVENTION
Notice to third parties
47AA. (1) If the head of a private body is considering a request for access to a record contemplated in section 47N(1) or 47P(1), the head of the private body must inform a third party to whom or which the record relates of the request, unless all necessary steps to locate that third party have been unsuccessful.
(2) The head of a private body must inform a third party in terms of subsection (1)--
(a) as soon as reasonably possible, but in any event, within 21 days after that request is received; and
(b) by the fastest means reasonably possible.

(3) When informing a third party in terms of subsection (1), the head of a private body must--
(a) state that he or she is considering a request for access to a record contemplated in section 47N(1) or 47P(1), as the case may be, and describe the content of the record;
(b) furnish the name of the requester concerned;
(c) in the case of a record contemplated in--
(i) section 47N(1), describe the provisions of section 47N; or
(ii) section 47P(1), describe the provisions of section 47P;
(d) in any case where the head of a private body believes that the provisions of
section 47Y might apply, describe those provisions, specify which of the circumstances referred to in section 47Y(a)(i) to (iv) in the opinion of the head might apply and state the reasons why he or she is of the opinion that section 47Y might apply; and
(e) state that the third party may, within 21 days after the third party is informed--
(i) make written or oral representations to the head of the private body
why the request for access should be refused; or
(ii) give written consent for the disclosure of the record to the requester.
(4) If a third party is not informed in writing of a request for access in terms of subsection (1), the head of the private body concerned must, on request, give written notice stating the matters referred to in subsection (3) to the third party.

Representations by third parties
47BB. A third party that is informed in terms of section 47AA(1) of a request for access, may, within 21 days after the third party has been informed--
(a) make written or oral representations to the head of the private body
concerned why the request should be refused; or
(b) give written consent for the disclosure of the record to the requester
concerned.

Decision on representations for refusal and notice thereof
47CC. (1) The head of a private body must, as soon as reasonably possible, but in any event within 30 days after every third party is informed as required by section 47AA--
(a) decide, after giving due regard to any representations made by a third party
in terms of section 47BB(a), whether to grant the request for access; and
(b) notify the third party so informed and a third party not located as
contemplated in section 47AA(1), but that can, after taking all necessary
steps, be located before the decision is taken, of the decision.
(2) If a third party cannot be located as contemplated in section 47AA(1), any decision whether to grant the request for access must be made with due regard to the fact that the third party did not have the opportunity to make representations in terms of section 47BB(a) why the request should be refused.
(3) If the request for access is granted, the notice in terms of subsection (1)(b) must state--
(a) the reasons for granting the request (including the provision of this Act
relied upon to justify the granting) in such manner as to enable the third party--
(i) to understand the justification for the granting of the request; and
(ii) to make an informed decision about whether to lodge an application
with a High Court or to utilise any other remedy in law available to
the third party; and
(b) that the third party may lodge an application with a High Court within 30
days after notice is given, and the procedure for lodging that application; and
(c) that the requester will be given access to the record after the expiry of the applicable period contemplated in paragraph (b), unless an application is
lodged within that period.
(4) If the head of a private body decides in terms of subsection (1) to grant the request for access concerned, he or she must give the requester access to the record concerned after the expiry of 30 days after notice is given in terms of subsection (1)(b), unless an application with a High Court is lodged against the decision within the applicable period contemplated in subsection (3)(b).

7. Delete current sections 49 (which is incorporated in the proposed new Part 4 as section 47B) and 50 (which is replaced by provisions of the proposed new Part 4 and proposed section 4A).

8. Following section 74, insert a new section:

Applications regarding decisions of heads of private bodies
74A. (1) A person who has been--
(a) refused access to a record of a private body in terms of section 47G(3); or
(b) aggrieved by a decision of the head of a private body, in terms of section 47G(2), concerning
(i) the fee to be assessed for access; or
ii) the form of access to be granted to a requested record of that body
may appeal against the decision by way of an application.
(2) An application referred to in subsection (1) must be lodged within 30 days after the requester has been notified of the decision of the head of the private body in terms of section 47G(1)(b).