Submission to the Ad Hoc Joint Committee on the Open Democracy Bill (B67-98) prepared by the SOUTH AFRICAN COUNCIL OF CHURCHES
13 October 1999
1.0 Access to privately-held information guaranteed by the Constitution 1.1 Section 32(1) of the Constitution (Act No. 108 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.
1.2 In terms of the transitional arrangements spelled out in schedule 6, item 23, section 32(1) is suspended until Parliament enacts legislation giving effect to this right, as required by section 32(2). Schedule 6 further obliges Parliament to enact such legislation by 4 February 2000. If it fails to do so, however, section 32(2) falls away. The Constitutional Court has ruled (Certification Judgement 1, para 82) that in this instance the suspended section 32(1) will automatically come into operation. (See further Appendix 1, p. 4)
2.0 Unregulated right of access to privately-held information invites confusion
2.1 Thus, by 4 February 2000 at the latest, the Constitution will guarantee a right of access to any privately-held information that is required for the exercise or protection of any right. If the Open Democracy Bill offers no 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 and costly remedy. If the review process is out of reach of most applicants, private bodies will have 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.
2.2 Recognising this problem, we have argued consistently--together with other members of the Open Democracy Campaign Group--that the bill must include more detailed provisions regulating horizontal application. As early as February of this year, we proposed extensive amendments intended to achieve this goal. At the 23-24 March 1999 hearings before the Portfolio Committee on Justice, both the South African Council of Churches and the Congress of South African Trade Unions presented similar model legislative language. These proposals appear not to have been given any serious consideration by the Portfolio Committee on Justice or the Department of Justice. At the same time, no alternative method has been proposed to manage application of the right.
2.3 We believe that the detailed approach we proposed earlier is no longer practical. With the constitutional deadline looming, there simply is not enough time to devote adequate attention to the refinement of such extensive amendments.
2.4 Consequently, we propose a fresh approach to the incorporation of horizontality. This involves three components:
* A commitment to the enactment of further legislation to regulate access to privately-held information in greater detail;
* The incorporation into the Open Democracy Bill of a simple set of provisions to govern access to privately-held information in the interim; and
* Consideration of the implications of horizontality for other aspects of the bill, especially the review and enforcement mechanisms and the whistleblower provisions.
3.0 Further legislation
3.1 The new provisions proposed below are not intended to serve as a final legislative framework for the interpretation of section 32(1)(b). Rather they aim:
a) to codify the constitutional right of access to certain privately-held information as envisaged in section 32(2) of the Constitution; and
b) to institute a set of stopgap measures to regulate access to such information until the manner of access, the obligation to disclose, and review and enforcement mechanisms can be elaborated more fully in subsequent legislation.
3.2 Further legislation should be enacted as expeditiously as possible. This might take the form of an Open Democracy Amendment Bill or a new bill governing access to privately-held information. Alternatively, it might be possible to further regulate access to privately-held information on a sectoral basis (i.e., through the incorporation of new provisions in sector-specific legislation such at the Natural Resources Management Act).
4.0 Interim provisions
4.1 Until further legislation can be enacted, basic guidelines should give greater definition to the obligations incumbent on individuals seeking access to privately-held information as well as on persons being asked to disclose information in their possession.
4.2 Individuals seeking access to privately-held information would be expected at least to make a formal request to the holder of the information with sufficient clarity to enable the holder to identify the desired records.
4.3 The right of access to privately-held information is more limited than the right of access to government information. The former extends only to information required for the exercise and protection of any right. A requester would therefore be required to identify the specific right to be exercised or protected and to establish a reasonable connection between the records requested and the exercise or protection of that right. [In the case of a request to a private body for personal information about the requester (as envisaged in section 50), it would be assumed that the requester had an automatic right to ensure the accuracy of records concerning him or herself. Consequently, there would be no need to identify the right involved.]
4.4 A person who receives a request for information that fulfills these requirements would be obliged to disclose the information requested unless:
* doing so would compromise the privacy or physical safety of a third party;
* doing so would reveal trade secrets or other commercially damaging information
* the records are already publicly available; or
* the request is vague or otherwise unreasonable. and there is no overriding public interest compelling the disclosure of the information.
4.5 The Minister of Justice would be authorised to introduce further regulations governing requests for access to privately-held information, following a period of public comment.
4.6 In response to a brief from the Open Democracy Campaign Group, the law firm of Cheadle, Thompson and Haysom has prepared model legislative language intended to accomplish these objectives. The proposed language appears in an appendix to this submission (pp. 5-7).
5.0 Other considerations
5.1 Section 32(1)(b) also has implications for other aspects of the Open Democracy Bill, especially those sections dealing with whistleblowing and with the review and enforcement of decisions made in terms of the legislation. To a large extent, these synergies will be examined in greater detail by the submissions of other members of the Open Democracy Campaign Group. We broadly support the proposals contained in these submissions. At the same time, we wish to highlight particular concerns in the context of our remarks on horizontality.
5.2 With respect to the whistleblowing provisions contained in Chapter 5 of the bill, it is essential that these be expanded to protect whistleblowing in the private sphere. Clearly employees in the private sector are well placed to identify and draw attention to policies and practices that constitute a threat to the public interest and to the exercise and protection of citizens' rights. While fraud and maladministration of public funds (say by a private contractor employed by the state) would be covered under the present language, a host of other situations equally likely to jeopardise public health and safety would not. One can imagine any number of scenarios involving product safety, for example, where the public interest would be served by the protection of whistleblowers in the private sector.
5.3 With respect to review and enforcement, we strongly endorse the call for the introduction of a cheaper, speedier, and more accessible mechanism than that presently envisaged in the bill. Currently, an applicant seeking access to government information only has recourse to the High Court once the internal departmental review process mandated by the Bill has been exhausted. Applicants seeking access to privately-held information do not even have the benefit of any intermediate review process prior to resorting to the High Court. If the Open Democracy Bill is to have any hope of achieving its objectives, it is absolutely imperative that a more accessible review and enforcement mechanism be incorporated into the bill and that applicants thwarted in their attempts to gain access to privately-held records should also have recourse to this more accessible mechanism.
Additional Submission to the Ad Hoc Joint Committee on the Open Democracy Bill (B67-98) prepared by the SOUTH AFRICAN COUNCIL OF CHURCHES
At the Ad Hoc Joint Committee’s hearings on Friday, 15 October, Mr. De
Lange expressed concern that conflicts might arise between the application
procedure for persons seeking access to privately-held information in terms of
the amendments proposed by the SACC and the application process for
persons requesting their personal information in terms of section 50(2) of the
current bill.
We do not believe that there is substantial conflict between the two
procedures, largely because they are dealing with two distinct categories of
information. Section 50 deals only with personal information about the
requester that is held by a private body (i.e, a person, other than a
governmental body, in possession of or controlling a personal information
bank). Hence, requests for access to such information must follow the
procedures set forth in section 50(2). Our proposed section 47C deals with
any information required for the exercise or protection of any rights that is held
by a private person (natural or juristic). Requests for this type of information
would need to follow the procedure set out in 47C(1).
It is unlikely that there would be much difficulty in determining whether the
information was, in fact, personal information about the requester or not. If it
is, then the procedure in 50(2) applies. Otherwise the procedure in 47C(1)
would apply.
However, some confusion could arise due to the fact that requests for access
to personal information about one’s self could also be considered to be
requests related to the exercise or protect a right. Consequently, an applicant
might be uncertain whether to follow the procedure in 50(2) or 47C(1). (It
should be noted, however, that the requester only has the option to correct
information obtained under section 50. Thus, there would be an incentive for
individuals seeking access to their personal information to apply in terms of
this section, as intended.)
It would be a fairly simple matter to draft language to avoid any confusion
concerning the request process to be followed in any particular situation. The
easiest solution would be to include a clarifying phrase at the opening of
Section 47C, so that the text would read:
47C. Pending the promulgation of legislation envisaged by section 47B, the
following provisions shall apply to requests for information in terms of
section 47A, except for requests for access to any record of a private
body containing personal information about the requester, as
contemplated in section 50--
A possible alternative would be to consolidate the request procedures in
sections 47C(1) and 50(2) into a single paragraph. However, this would be a
less elegant solution given the need to distinguish between "private bodies" and
"persons". It would also be awkward in that it would remove the description of
the request procedure for personal information from the context of the other
provisions governing access to personal information found in section 50. A
more satisfactory solution would be to merge all of section 50 into a new part
dealing comprehensively with all requests for privately-held information, as the
SACC and COSATU proposed in our March submissions to the Portfolio
Committee on Justice.
South African Council of Churches
Public Policy Liaison Office
18 October 1999
APPENDIX 1: EXCERPTS FROM THE FIRST CERTIFICATION JUDGEMENT OF THE CONSTITUTIONAL COURT
In its First Certification Judgement, In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC) the Constitutional Court ruled unambiguously regarding the consequences of a failure to enact the legislation envisaged in section 32(2) of the Constitution before the three year deadline imposed in schedule 6, section 23.
The Court made the following determinations:
1. The interim right given in schedule 6, section 23(2)(a) does not comply with the requirements of Constitutional Principle IX. (Section H, paragraph [83] at 1291H.) Constitutional Principle IX stated that the final Constitution must make provision for "freedom of information so that there can be open and accountable administration at all levels of government."
2. Given that the right of access to information is not considered to be a "universally accepted fundamental human right", it was reasonable for the legislature to suspend section 32(1) for a period of three years to enable the drafting and enactment of legislation laying down "the practical requirements for the enforcement of the right and the definition of its limits". The court clearly linked the notion of "reasonableness" with the understanding that the period of suspension had a fixed point of termination. It further noted that three years, seemed "a long time", even if reasonable given the complexity of drafting the envisaged legislation. This implies any further extension of the period of suspension--especially an indefinite suspension--would be viewed as unreasonable and therefore a violation of Constitutional Principle IX. (See Section H, paragraphs [84] - [87] at 1292A.)
3. "If the legislation is not passed timeously the general but undefined right as formulated in NT 32(1) will come into operation. ... Although NT 32(1) is capable of being enforced by a court--and if the necessary legislation is not put in place within the prescribed time it will have to be--legislative regulation is obviously preferable." (Section H, paragraph [86] at 1292E. Note that this passage echoes a similar interpretation in paragraph [83] at 1291G.)
APPENDIX 2: PROPOSED AMENDMENTS TO GIVE EFFECT TO THE CONSTITUTIONAL RIGHT TO ACCESS PRIVATELY HELD INFORMATION REQUIRED FOR THE EXERCISE OR PROTECTION OF ANY RIGHT
*** Insert a new Part 4, sections 47A – 47D, as follows:
PART 4
ACCESS TO PRIVATELY HELD INFORMATION
47A. Everyone has the right of access to any information that is held by another person and that is required for the exercise or protection of any right.
47B. Legislation further regulating this right must be enacted by 31st December 2000.
47C. Pending the promulgation of legislation envisaged by section 47B, the following provisions shall apply -
(1) A request for information in terms of section 47A must –
(a) be addressed in writing to the person from whom information is required;
(b) specify sufficient particulars to enable the receiver of the request to identify the information requested;
(c) identify the right the requester is seeking to exercise or protect and provide a reasonable explanation of why the requested information is required for the exercise or protection of that right;
(d) comply with any regulations promulgated in terms of section 47D below.
(2) A request for information in terms of section 47A can be refused only –
(a) for the reasonable protection of personal privacy;
(b) for the protection of trade secrets or other commercial information the disclosure of which could reasonably be expected to cause harm to the person from whom the information is requested;
(c) if the information relates to a third party and the third party has not consented to the disclosure of the information;
(d) if the granting of the information would be likely to endanger the life or physical safety of any individual;
(e) if the granting of the information would be likely to endanger the security of a particular building, installation or information storage, computer or communication system;
(f) if the information is already publicly available;
(g) if the request is manifestly unreasonable, frivolous, vexatious, or formulated in too general a manner.
(3) Despite subsection (2) a request for access to privately held information must be granted if the public interest in the disclosure clearly outweighs the need for non-disclosure or if the disclosure of the information would reveal evidence of substantial –
(a) abuse of authority, illegality or neglect in the exercise of a power or performance of a duty; or
(b) injustice to a person, including a deceased person; or
(c) danger to the environment or the health and safety of an individual or the public.
(4) If a request for information made in terms of this section is not granted within 30 days of the request being received, application may be made to the High Court in terms of section 73.
47D (1) The Minister, after consulting the Minister of Trade and Industry and the Human Rights Commission, may make regulations to give effect to the provisions of section 47C: provided that such regulations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
(2) The Minister must, before making regulations in terms of subsection (1) publish a notice in the Gazette –
(a) setting out the draft regulations; and
(b) inviting written comments to be submitted on the proposed regulations, specifying an address to which and a date before which the comments must be submitted, which date may not be earlier than 30 days after publication of the notice.
*** Amend sections 75, 77(3), 78 and 80 as follows:
75. A High Court has jurisdiction in respect of –
(a) a decision of the information officer or head of a governmental body contemplated in section 74 which has its office or, if the body has more than one office, its main office;
(b) a person that lodges an application in terms of section 47C (1), 74(1) or (4) or 75 and resides, carries on a business or is employed;
(c) an alleged contravention referred to in section 75 which has occurred or is about to occur,
in the area of jurisdiction of the High Court.
77. (3) The Human Rights Commission may, on request, appoint a person to represent an individual who has lodged an application in terms of section 47C (1), 74(1) or 75.
78. (1) Despite any other provisions of this Act, any court hearing an application or an appeal against a decision on an application may examine any record of a governmental bodyor any information requested in terms of section 47A to which this Act applies, and no such record or information may be withheld from that court on any grounds.
(2) Such court may, subject to subsection (3), not disclose to any person including the parties to the proceedings concerned –
(a) any record of a governmental bodyor any information requested in terms of section 47A which is required or permitted in terms of this Act to be withheld from disclosure; or
(b) if the information officer of a governmental body, or the head of that body on internal appeal, in refusing to grant access to a record in terms of section 34(2) or 36(2), refuses to confirm or deny the existence or non-existence of the record, any information as to whether the record exists.
(3) If such court considers it in the interest of justice, it may order the disclosure of such record or such information to any party to the proceedings concerned, and may, if it considers it necessary, order such party not to disclose such record or such information to another person.
80. (1) After due consideration of all written and oral evidence before a High Court in respect of an application, the Court may make any order or other decision which it considers just.
(2) An order or other decision in terms of subsection (1) includes, but is not limited to, an order or other decision –
(a) which confirms, amends or sets aside the decision which is the subject of the application concerned;
(b) which requires from the information officer or head of a government body or any person to whom a request for privately held information has been directed in terms of section 47A, to take such action as the High Court considers necessary within a period mentioned in the order;
*** Amend the long title to the bill by inserting:
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 ….