COSATU made a detailed submission to the previous portfolio committee on Justice on the 23 March 1999. We hoped that the initial public hearings will translate in further drafting work being undertaken to address the substantive flaws in the bill. It is disappointing that the process is starting de novo and no serious attempt has been made to redraft the bill to address the defects which had been identified during the last hearings.

The purpose of this supplementary submission is twofold. First, to update elements of the previous submission by incorporating new developments. Second, to reiterate the positions outlined in the previous submission by way of underlining additional concerns on the of bill. We will focus on the following four issues namely:

• access to privately-held information;
• the right to know;
• whistle-blowers; and
• enforcement mechanisms.

Over the last few months we have done further research and solicited legal opinion especially on the horizontal application of the bill and the right to know paradigm. COSATU worked closely with the Open Democracy Campaign Group, which is a loose coalition of civil society organisations, comprising:

• Black Sash;
• Environmental Justice Network;
• Human Rights Committee;
• IDASA;
• Legal Resources Center;
• NADEL;
• South African NGO Coalition; and
• Southern African Catholic Bishop's Conference.

We broadly endorse the submission made by other members of the Open Democracy Campaign Group, particularly around enforcement mechanisms, the need to regulate access to meetings, and the need to review the blanket exclusion of cabinet and the judiciary. While we are not addressing these issues in detail in the submission our approach is to call for balance between making structures like cabinet to comply with the legislation and with reasonable grounds for refusing information and access to meetings. This submission, however, focuses, specifically on areas canvassed in our previous submission. It must be read in conjunction with the initial submission presented before the Justice Portfolio Committee on the 23 March 1999. Other members of the group will deal with the other issues in detail.

Section 32(1) of the Constitution provides that:

Everyone has the right of access to -

Section 32(2) demands that legislation be enacted to give effect to this right by the 4 February 2000. Until this legislation is passed the transitional arrangement remains in force. This means that the right of access to privately held information is held in abeyance until given effect in legislation or is automatically triggered by the lapsing of the requirement to pass legislation. The bill as tabled gives partial effect to privately held information limited to access to personal information. Thus, the bill substantively fails to give effect to its constitutional mandate.

The current bill is clearly flawed as it fails to give full effect to the section 32(1) right, including access to privately held information. The following analysis maps a number of likely scenarios that may arise from this flaw in the bill. In the main our belief is that if the bill is passed in its current form the right to access information will automatically come into effect. However, this will be unregulated and will depend on the court's interpretation. This scenario is undesirable for it will lead to confusion. Holders of information would not know which information they can withhold and under what grounds. Requesters would not know how to lodge requests for information. In this vein we are in favour of incorporating the right to access privately held information in the bill to create certainty.

Due to this failure a number of scenarios are possible. The following observations are premised on legal opinion provided to the Open Democracy Campaign Group. First, if no law on access to information is passed in the current parliamentary session (and consequently no such law is passed prior to the expiry of the stipulated three year period), section 32(2) will automatically fall away. Some doubts have been cast on whether section 32(1) of the constitution immediately kicks in.

Doubts were expressed on the basis that item 23(2) of Schedule 6, by virtue of which the provision is currently suspended, does not specifically say that section 32(1) revives after three years. Rather, the clause states that section 32(1) is suspended (with the wording of section 32(1) being deemed to correspond in general terms with the interim Constitution's equivalent right) "[u]ntil the legislation envisaged in sections 32(2) of the ...new Constitution is enacted." Therefore, there are views that suggests, the transitional clause enumerated in item 23(2) - which contains no reference to the access to information held by private persons - would continue to define the right of access to information in a more restrictive way).

The doubts and fear alluded to above are, however, unfounded. There are three reasons for concluding that, even if the legislation envisaged in section 32(2) is not enacted within the stipulated time period, the section 32(1) right automatically comes into operation on the expiry of the three year period provided for in items 23(1) and 23(3) of Schedule 6.

First, the constitutional court itself interpreted the transitional arrangement put in place by item 23 in the First Certification Judgement along the line enumerated above. The Constitutional Court understood that section 32(1) would come into effect after three years, at the very latest. This is therefore how section 32(1), read with item 23 of Schedule 6, must be interpreted.

The second reason for concluding that section 32(1) must come into effect after a maximum of three years is that an indefinite suspension of the section 32(1)(a) right would have meant that the section 32/item 23 scheme did not comply with the requirements of Constitutional Principle IX. Constitutional Principle IX required that the Constitution provide for access to information in order to ensure and facilitate open and accountable government. Access was not permitted to be restricted to situation where it was needed for the exercise of or protection of a right. Therefore, if the suspension of the section 32(1) right had not been restricted to a fixed, and relatively short, period under item 23(1) this would have not satisfied the requirements of Constitutional Principle IX. This is therefore not an interpretation that should, or could be adopted at the present time.

The third reason for reaching the conclusion outlined above is that the alternative reading would result in an absurdity - something that should always be avoided when construing legislation. The absurdity would be this: Item 23(2) suspends the operation of the section 32(1) right until the legislation envisaged in section 32(2) is enacted. But after three years, such legislation can never be enacted. Therefore section 32(1) would never come into effect, something that would surely never have been intended as (i) section 32(1) is a fully-fledged constitutional provision that can only be amended with difficulty, and (ii) item 23 is clearly intended merely as a "transitional provision". Therefore, the alternative reading cannot be adopted for this reason as well.

The second scenario is a case where a law that partially protects the right in section 32(1) is passed. On the basis of the preceding argument, it is clear that no matter what legislation is passed, and no matter what the extent of the compliance with section 32(1), the right in section 32(1) will come into forces at the latest by February 2000. It is not, however, as clear whether part of section 32(1) can come into effect prior to that date, as a result of the enactment of legislation giving effect to that right.

On the one hand, it could be argued that there is no reason why the right in section 32(1) could not be given effect to on a piecemeal basis. For, the term "national legislation" can, in terms of section 239 of the Constitution, include more than one law. So, section 32(1) could be given effect to by more than one parliamentary statute, or an Act of Parliament and subordinate legislation. And these could be enacted at different times.

On the other hand, one might contend that, although legislation can be enacted at different times to give effect to the right, until such legislation is enacted (or until three year period expires), the section 32(1) right remains suspended. The practical effect of this would be that, if such legislation is wider than the provision in item 23(2)(a), one could claim access to information under the statute that was not previously available in terms of item 23(2)(a); although one could not demand more information than is permitted by the statute in terms of section 32(1).

Whichever of the view expressed above are favoured, there is no doubt that part of section 32(1)(b) (or most of section 32(1)(a) cannot come into effect prior to February 2000. Either the whole of section 32(1)(b) is activated, or none of it is. Consequently, one would, after the enactment of the ODB in its current form, only have access to information held by non-governmental parties in accordance with that statute. And one might be confined to the statute when requesting access to information held by the state.

Whether or not section 32(1) is activated by any legislation enacted in the current parliamentary session, section 32(1) will be in full force and effect from February 2000. But there still remains the question of whether legislation like the ODB which only gives partial effect to the section 32(1) right will have the status of section 32(2) legislation if, by the end of the three year period, the whole section 32(1) right has not been given effect to by national legislation. Again the question is a difficult one, and therefore one which cannot be answered with any confidence.

However, it can be proposed that where there is clearly a lacuna in the legislation, the Court will step into the breach until such time as there is legislation regulating that area. Therefore, if the ODB is passed in its current form, access to privately held information will be left to the court to interpret. However, it is desirable that national legislation be passed to give effect to the constitutional right to access privately-held information. As argued in the SACC's submission if the ODB offers not further clarification of the limitations on that right, the mechanism by which it can be exercised, and the manner in which it is to be enforced, confusion will ensue. Holders of information will have little guidance concerning what information they must disclose and what they may justifiably withhold.

In the absence of any intermediate appeal and review mechanism, applicants seeking to challenge a refusal to disclose information will have recourse only to a High Court - a slow, costly and adversarial remedy. If the review process is out of reach of most applicants, private bodies will have the incentive to err on the side of non-disclosure, rejecting all but the most trivial and unthreatening requests and telling other applicants to join the lengthening queue outside the courthouse.

Against this background and in recognition of the complications that will arise from giving partial effect, we have argued for detailed provisions regulating access to privately held information. Pursuant to this objective, alongside the SACC we submitted a model to give effect to the right to access privately held information. Detailed provisions regulating access to privately held information remains our preference. Nonetheless we recognise the complexities that may well arise for instance the need to differentiate between natural and juristic persons. Secondly, on pragmatic grounds we realise that there may be time constraints to incorporate a detailed section to regulate access to privately held information.

Consequently, we propose a fresh approach to the incorporation of access to privately held information. This would at the minimum:

• incorporate in the bill a simple set of provisions to govern access to privately held information in the interim;
• a commitment to the enactment of further legislation to elaborate the provisions regulating access to privately held information; and
• extending horizontal application to other aspects of the bill, especially, the review and enforcement mechanism and the whistle blower provisions.

The proposed framework is not intended to serve as a final legislative framework for the interpretation of section 32(1)(b). It serves to at least provide for access to privately held information until details regarding the manner of access, the obligation to disclose, and review and enforcement mechanisms can be elaborated more fully in subsequent legislation. Further, legislation should be enacted possibly in the form of an Open Democracy Amendment Bill or a new bill governing access to privately held information. Sectoral legislation (such as the Environmental Management Act) will also assist in regulating access to privately held information. However, it is important that the ODB as the overarching information disclosure law take precedence over sectoral legislation.

The proposed legal language is contained in Annexure A and is in part derived from the model developed by for the Open Democracy Campaign Group, by the law firm Cheadle, Thompson and Haysom, albeit with modifications. The amendment seek to:

• codify the right of access to privately held information;
• define the grounds for refusing information subject to the public interest override. COSATU proposes an additional element to be included in the public interest override; namely the where the exercise or protection of a right outweighs non-disclosure information should be provided;
• require legislation to be passed by December 2000. In addition, the Minister shall issue regulations in consultation with the Human Rights Commission and the Minister of Trade and Industry.

In our view, a requester-driven approach has its inherent limitations, for instance it will be favourable to those who have the resources and the time to lodge requests for information and also have the resources to explore remedies in cases where disclosure is denied. The bill's attempt to ameliorate this situation by requiring information officers to assist requestors, notwithstanding, a requester-driven approach will still place the bill out of reach for a significant proportion of the population.

It is against this background that we argue for maximum proactive disclosure of information independent of request. Proactive disclosure or the right to know contain two aspects; (i) proactive and accessible disclosure in the public interest by government of information in its possession; and (ii) the active collection by government of information from the private sector and its proactive dissemination to the public. Active collection and dissemination of information from private bodies by governmental bodies will reinforce the right of access to privately held information. The bill contains proactive disclosure provisions albeit in a limited form.

There are important lessons to be drawn from international jurisprudence on this question. For instance, in the United States the Emergency Planning and Community Right to Know Act requires manufacturing facilities to submit annual estimates of toxic chemical releases to the air, water, and land. That data, the Toxic Releases Inventory, is then posted to the Internet for the Public to use.

To realise the objective of incorporating the right to know paradigm in the bill, COSATU proposes the following:

• mandating governmental bodies to proactively disseminate information in their possession. Governmental bodies, with the assistance of the GCIS should consider existing records that should be proactively disclosed. In addition, to mandate governmental bodies to collect information, other than environmental information, from private bodies, which they should actively disseminate.

• placing a duty on private bodies, particularly corporations to actively disseminate information in the public interest (e.g. consumer information such as labeling of goods and services),
• mandating the Government Communication and Information Systems (GCIS) after consulting the relevant civil society bodies, to assist governmental bodies to identify records that should be proactively disseminated in line with the prescriptions by the Minister of Justice;
• to empower the Minister to prescribe locations where information should be disseminated. This should meet the broad criteria of accessibility, and consideration should be given to utilising the infrastructure of the Post Office and the Tele-centres or Community Multipurpose Centres. Popular forms of media such as pamphlets, etc. should be utilised as a means to disclose information as they are easily accessible; and
• an amendment to section 8 to mandate governmental bodies to actively collect and disseminate environmental information. It must be noted that the provisions of the National Environment Management Act regarding the disclosure of information are interim pending the passing of this legislation.

In addition to the points raised in our previous submission we propose the inclusion of general principles that will guide the proactive disclosure of information. The over-arching principle should be the proactive disclosure of information that is in the public interest to know. This should be defined to include information that assists people to identify violations of their human rights as recognised in the Bill of Rights and relevant human rights treaties, and to defend these rights. In the South African context, it is particularly important that there is proactive disclosure of information that assist disadvantaged groups to gain access to socio-economic rights, and to identify the impact of private-sector activity on these rights.

In the long run, consideration should be given to passing a separate Right To Know Act. There are many aspects that can be covered in such a legislation which it is not possible to incorporate in the bill. For now, the proposed COSATU amendments combined with the additional principle to guide the drafting of regulations are essential to include in the ODB.

The concerns with the Whistle-blower section are twofold. First we believe that the section needs to be extended to the private sector. Second, some of the provisions of the bill are problematic and require adjustment. First, consideration should given to expanding the list of bodies that a person could disclose information to. The limited number of bodies to which an individual can reveal corruption in terms of the bill will not protect disclosures to the police or anybody not listed in clause 63(3). In some instances it may be desirable for an employee to disclose wrong doing to his/her trade union which can act on his/her behalf.

Second, section 85(b) undermines most of the whistle-blower provisions because it appears to say that is it a criminal offense "if the whistle-blower did not know if the information was true". At the very least the words "not knowing" must be deleted in this clause, or it must be omitted. While COSATU is not putting forward legal amendments on this section the following needs to happen:

• The provision of the bill should be extended to the private and voluntary sectors;
• Ensure it fully protects internal whistle-blowing;
• Remove the criminal sanction in clause 85.
• Scrutinise the circumstances where media disclosures should be protected, and if necessary, consider amendments;
• The range of designated bodies should be reconsidered possibly increasing them in the ODB

We reiterate our position that the High Court is an inappropriate mechanism for external review. It is very slow, costly and highly adversarial, which can serve to intimidate people from seeking lodging appeals against disclosure of information. The High Court mechanism is made more inappropriate if private bodies are to be included in the ambit of the bill. Therefore, an intermediate structure(s) such as the Open Democracy Tribunal proposed in our submission should be considered.