“OPEN DEMOCRACY” BILL
(Revised working draft - 11 January 2000)
 
EXPLANATORY NOTE:
# 	Proposed deletions are in square brackets and in bold.
#	Proposed insertions or alternative wordings are underlined or in { } or [ ] but not in bold.
#	Changes to cross-references and the table of content are not underlined or in bold.
 
To give effect to the constitutional right of access to any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith.

PREAMBLE
OPTION 1
Whereas the Bill of Rights in the Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996), enshrines the rights of all people in the Republic and affirms the democratic values of human dignity, equality and freedom;

And whereas the Constitution places a duty on the state to respect, protect, promote and fulfil the rights in the Bill of Rights;

And whereas the system of Government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in state institutions which often led to an abuse of power and human rights violations;

And whereas section 32(1)(a) of the Constitution provides that everyone has the right of access to any information held by the state and that national legislation must be enacted to give effect to this right;

And whereas it is necessary to create a culture of transparency and accountability of all organs of state in order to promote a society in which the people of South Africa have access to information held by the state which will assist the public in understanding the powers, duties and operations of governmental bodies;

And bearing in mind that national legislation may, in terms of section 32(2) of the Constitution, provide for reasonable measures to alleviate the administrative and financial burden on the state, good governance, privacy and commercial confidentiality should not be jeopardised in giving effect to the right of access to information;

And whereas section 32(1)(b) of the Constitution provides that 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 rights [, and that right may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom];

And bearing in mind that the regulated society of the past was not conducive to a responsive culture and the accessibility of information amongst its members;

And whereas it is also necessary to create a culture of transparency in the private sphere in order to promote a society in which the people of South Africa have access to information that is held by another person and that is required for the protection for the exercise or protection of any rights;

And bearing in mind that the right of access to any information held by the state and the right of access to any information that is held by another person may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution:

OPTION 2
RECOGNISING THAT—
*	the system of Government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in state institutions which often led to an abuse of power and human rights violations;

*	the Constitution of the Republic of South Africa, 1996, commits South Africa and its people to the values of human dignity, equality and freedom;

AND BEARING IN MIND THAT—
*	the state must respect, protect, promote and fulfil the rights in the Bill of Rights which is the cornerstone of democracy in South Africa;

*	in terms of section 32 of the Constitution national legislation must be enacted to give effect to the right of access to information;

*	reasonable legislative measures may, in terms of section 32 of the Constitution, be provided to alleviate the administrative and financial burden on the state in giving effect to its obligation to promote and fulfil the right of access to information;

AND IN ORDER TO—
*	address the secretive and unresponsive culture in state institutions of the past and to actively promote a society in which the people of South Africa have access to information held by the State;

*	create a culture of transparency and accountability of all organs of state by giving effect to the right of access to information;

*	[provide the people of South Africa with access to information held by persons other than the State that is required for the exercise of any of their rights] create a culture of transparency in the private sphere in order to promote a society in which the people of South Africa have access to information that is held by another person and that is required for the protection for the exercise or protection of any rights;

*	limit the right of access to any information held by the state and the right of access to any information that is held by another person to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution:

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, asfollows:— 

CONTENTS OF ACT 
Section 
PART 1 
INTRODUCTORY PROVISIONS 
1.	Definitions 
2.	Objects of Act 
3.	Guide on how to use Act
4.	Part applicable when performing functions as governmental or private body
4A.	Interpretation of Act
PART 2 
ACCESS TO RECORDS OF GOVERNMENTAL BODIES
CHAPTER 1
APPLICATION
5.	Act applies to record whenever it came into existence
6.	Act not applying to certain governmental bodies or officials thereof
7.	Body deemed as part of another governmental body
8.	Records held by officials or independent contractor of governmental body
9.	Application of other legislation prohibiting or restricting disclosure
10.	Application of other legislation providing for access
11.	Act not applying to records required for criminal or civil proceedings after commencement
12.	Right of disclosure of record to which access is given 
CHAPTER 2
{PUBLICATION AND} AVAILABILITY OF CERTAIN RECORDS
13.	Manuals on functions of, and index of records held by, governmental bodies 
14.	Voluntary disclosure of records
15.	Information in telephone directory 
CHAPTER 3 
RIGHT AND MANNER OF ACCESS 
16.	Right of access to records of governmental bodies 
17.	Designation of deputy information officers and delegation
18.	Form of requests 
19.	 Duty to assist requesters 
20.	Transfer of requests 
21.	Preservation of records until final decision on request 
22.	Fees
23.	Records that cannot be found or do not exist
24.	Deferral of access 
25.	Decision on request and notice thereof 
{25A.	Urgent requests}
26.	Extension of period to deal with request 
27.	Deemed refusal of request 
28.	Severability 
29.	Access and forms of access 
{29A.	Access to health records}
30.	Language of access 
31.	Reports to Human Rights Commission 
CHAPTER 4 
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS 
32.	Mandatory and discretionary grounds for refusal, and interpretation
33.	Mandatory protection of privacy {of third party}
34.	Health of requester
35.	Mandatory protection of {third party} commercial information {of third party}
36.	Records supplied in confidence {OR Confidential records}
{Tax related records}
37.	{Mandatory protection of} (S)afety of individuals, and {protection of} security of structures and systems {OR property}
38.	Law enforcement
39.	Mandatory protection of  records  privileged from production in legal proceedings
40.	Republic’s defence, security and international relations {Option 2}
{41.	International relations}
42.	Economic interests of Republic and commercial activities of governmental bodies
{42A.	Records about research}
42B.	Cabinet’s records}	
43.	Operations of governmental bodies
44.	Frivolous or vexatious requests or diversion of resources
{44A.	Necessity of harm}
45.	Mandatory disclosure in public interest
CHAPTER 5 
THIRD PARTY INTERVENTION 
46.	Notice to third parties 
47.	Representations by third parties 
48.	Decision on representations for refusal and notice thereof 
PART 3 
ACCESS TO RECORDS OF PRIVATE BODIES
CHAPTER 1
APPLICATION
49.	Part applies to record whenever it came into existence
50.	Records held by official or independent contractor of  private body
51.	Application of other legislation prohibiting or restricting disclosure
52.	Application of other legislation providing for access
53.	Act not applying to  private bodies’ records required for criminal or civil proceedings after  commencement
CHAPTER 2
PUBLICATION AND AVAILABILITY OF CERTAIN RECORDS
54.	Manual
55.	Voluntary disclosure of certain records
CHAPTER 3
RIGHT AND MANNER OF ACCESS
56.	Right of access to records of private bodies
57.	Form of request
58.	Fees
59.	Decision on request
60.	Extension of period to deal with request 
61.	Records that cannot be found or do not exist
62.	Severability
63.	Form of access
{63A.	Access to health records}
CHAPTER 4
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS 
64.	Interpretation
65.	Mandatory protection of privacy {of third party} 
66.	Health of requester
67.	Mandatory protection of third party commercial information
68.	Breach of confidence provided for by agreement
69.	{Mandatory protection of} {S}afety of individuals and {protection of} security of structures and systems {OR property} 
70.	Mandatory protection of records privileged from production in legal proceedings 
71.	Commercial information of private body 
71A.	Records about research
72.	Mandatory disclosure
72A.	Adverse effects
CHAPTER 5
THIRD PARTY NOTIFICATION
73.	Notice to third parties
74.	Representations by third parties
75.	Decision on representations for refusal and notice thereof
PART 4
APPEALS AGAINST DECISIONS 
{CHAPTER 1 
INTERNAL APPEALS 
76.	Right of internal appeal to relevant authority 
77.	Manner of internal appeal, and appeal fees 
78.	Notice to and representations by other interested parties 
79.	Decision on internal appeal and notice thereof }
CHAPTER 2 
APPLICATIONS TO COURT 
80.	Non-exclusion of other remedies 
81.	Manner of applications to court 
82.	Applications regarding decisions of information officers of governmental bodies {or head of private bodies}
83.	Jurisdiction of court 
84.	Assistance of Human Rights Commission 
85.	Production of records of governmental {and private} bodies to court 
86.	Burden of proof 
87.	Decision on application 
88.	Costs 
PART 5 
HUMAN RIGHTS COMMISSION 
89.	Additional functions of Human Rights Commission 
90.	Report to National Assembly by  Human Rights Commission 
91.	Expenditure of Human Rights Commission in terms of Act
PART 6
TRANSITIONAL ARRANGEMENTS
92.	Application of other legislation providing for access
93.	Periods for dealing with requests
93A.	Correction of personal information
PART 7
GENERAL PROVISIONS
{94.	Liability}
95.	Offences 
96.	Regulations
97.	Short title and commencement 

PART 1 
INTRODUCTORY PROVISIONS 

Definitions
	1.   In this Act, unless the context otherwise indicates— 
“access fee” means a fee prescribed for the purposes of section 22;
“application” means an application to a [High] court in terms of section 74 [or 75, as the case may be];
[“commercial requester” means a requester other than a personal or non-commercial requester;]
“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No.  108 of 1996);
“court” means—
	(a)	a High Court or another court of similar status; or
	(b)	a Magistrate's Court designated in writing {OR by notice in the Gazette} by the Minister, after consultation with the Magistrates Commission;
	“evaluative material” means an evaluation or opinion prepared for the purpose of determining— 
(a)	the suitability, eligibility or qualifications of the person to whom or which the evaluation or opinion relates— 
		(i)	for employment or for appointment to office; 
		(ii)	for promotion in employment or office or for continuance in employment or office; 
		(iii)	for removal from employment or office; or 
		(iv)	for the awarding of a scholarship, award, bursary, honour or similar benefit; or 
	(b)	whether any scholarship, award, bursary, honour or similar benefit should be continued, modified, cancelled or renewed; 
Option 1:
	“governmental body” means— 
	(a)	any department of state or administration in the national, provincial or local sphere of government or any other functionary or institution exercising a power or performing a duty in terms of the Constitution or a provincial constitution or exercising a public power or performing a public function in terms of any legislation, and includes, without limiting the generality of the foregoing, any body— 
		(i)	of which the accounts and financial statements which are required by legislation to be audited by the Auditor-General; 
		(ii)	of which the majority of the members are appointed, whether alone or on the advice or recommendation of, or in or after consultation with some other person or body, by the President, the Deputy President, a Minister, the Premier of a province, a member of the executive council of a province or of the municipal council of a municipality, another governmental body, or more than one of those authorities; 
		(iii)	in which the state, a province or a municipality is the majority or controlling shareholder; 
		(iv)	of which more than 50 per cent of its expenditure is defrayed directly or indirectly from funds voted by Parliament, a provincial legislature or a municipal council; 
		(v)	which is or was dependent for more than 50 per cent of its total permanent capital needs, including share capital, loans or other forms of permanent capital, on funds voted by Parliament, a provincial legislature or a municipal council, and in which permanent capital the state, a province or a municipality still holds a direct or indirect interest of more than 50 per cent; 
		(vi)	which supplies products or services in terms of monopolistic rights conferred on it by legislation; 
		(vii)	in respect of which the state, a province or a municipality creates the probability through contingent liability that funds voted by Parliament, a provincial legislature or a municipal council will have to be used in future to defray more than 50 per cent of the body’s expenditure or to provide more than 50 per cent of the body’s permanent capital; 
		(viii)	of which the funds, assets or other property are administered by the state, a province or a municipality on a trust basis on behalf of the inhabitants of the Republic or of a particular interest group; or 
	(b)	any other body which was a body contemplated in paragraph (a)(vi) and which exercises in a monopolistic manner substantially the same functions as it performed when it was a body contemplated in paragraph (a)(vi),} 
but does not include the Cabinet, a judicial officer [or a body regarded as being part of another body as contemplated in subsection (2) or (3)];     # Omit reference to the Cabinet if  cl 6 or 42B is included
Option 2:
	“governmental {OR public} body” means—
	(a)	any department of state or administration in the national, provincial or local sphere of government; or
(b)	any other functionary or institution—
(i)	exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or
(ii)	exercising a public power or performing a public function in terms of any legislation;
	# NB see exclusions in new cl 6 below
# Definition of “head”, in relation to a governmental body and private body omitted, but see def.  of “information officer” and def.  of “head” of ... a private body below.
Option 1:
“head” of, or in relation to, a private body means— 
(a)	in the case of a natural person {who carries on a trade, business or profession, that natural person}, that natural person or any person duly authorised by that natural person;
{(b) 	in the case of a partnership, any partner of the partnership or any person duly authorised by that partner} # Only necessary if Option 1 of def.  of “private body” is used
{(b)	in the case of a partner of a partnership, that partner or any person duly authorised by that partner} # Only necessary if Option 2 of def.  of “private body” is used
	(c)	in the case of any other private body—
(i)	the chief executive officer or equivalent officer of the private body or any person duly authorised by that officer; or
(ii)	the person who is acting as such or any person duly authorised by such acting person;
Option 2:	
	#	Omit def.  of “head” and refer to “private body”  and not “head of a private body”.

“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 for the well-being of individuals;
“Human Rights Commission” means the South African Human Rights Commission referred to in section 181(1)(b) of the Constitution; 
[“inaccurate”, in relation to a record or information contained therein, means incorrect, incomplete or misleading with respect to the purpose for which the information may used or disclosed;]
	“individual’s next of kin” means—
Option 1 for paragraph (a):
	(a)	an individual to whom the individual was married or with whom the individual lived as if they were married [or with whom the individual cohabited],  immediately before the individual’s death;
Option 2 for paragraph (a):
	(a)	an individual to whom the individual was married or with whom the individual lived as if they were married;
	(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;
	“information officer” of, or  in relation to a governmental body [means the person appointed as information officer of that governmental body in terms of section 4(1)(a)]— 
	(a)	in the case of a national department, provincial department or organisational component mentioned in Column 1 of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), means the officer who is the incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule 1 , 2 or 3 opposite the name of the relevant national department, provincial department or organisational component or the person who is acting as such;
(b)	in the case of a municipality, means the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No.117 of 1998), or the person who is acting as such;
(c)	in the case of any other governmental body, means the chief executive officer, or equivalent officer, of that governmental body or the person who is acting as such; 
{“internal appeal” means an internal appeal to [the head of a governmental body] the relevant authority  in terms of section 76(1);}
“international organisation” means an international organisation— 
	(a)	of states; or 
(b)	established by the governments of states;
“Minister” means the Minister responsible for the administration of justice;
	[“non-commercial requester” means a requester seeking access to a record for the purpose of— 
	(a)	gathering news for the production of, or disseminating news by, a printed or electronic medium; or 
(b)	research or education by a non-profit or an educational body or [a member or] an official of that body in his or her capacity as such;]
“notice” means notice in writing, and “notify” and “notified” have corresponding meanings; 
“objects of this Act” means the objects of this Act referred to in section 2;
“official”, in relation to a governmental or private body, means—
(a)	any person in the employ (permanently or temporarily and full-time or part-time) of the governmental or private body, including the head of the body, in his or her capacity as such;
(b)	a member of the governmental or private body; NB See exclusion in cl 6
“person” means an individual or a juristic person;
“personal information” means information about an identifiable [person] individual, including, but not limited to—
(a)	information relating to the race, {gender,} sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, [disability,] well-being, religion, conscience, belief, culture, language and birth of the individual;
(b)	information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
(c)	any identifying number, symbol or other particular assigned to the individual;
(d)	the address, fingerprints or blood type of the individual;
(e)	the personal opinions or views of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
(f)	correspondence sent by the individual that is implicitly  or explicitly of a private or confidential nature and replies to such correspondence that would reveal the contents of the original correspondence;
(g)	the views or opinions of another individual about the individual,
(h)	the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and
(i)	the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual, but excludes information about an individual who has been dead for more than 20 years;
[“personal information bank” means a collection or compilation of personal information that is organised or capable of being retrieved by using a person’s name or an identifying number or another particular assigned to the person;] # Used in previous def.  of “private body” & in cl 13(2)(d)(ii)
“personal requester” means a requester seeking access to a record containing information about the requester or the person on whose behalf the request is made;
“prescribed” means prescribed by regulation in terms of section 96;
	[“private body” means a person, other than a governmental body, in possession of or controlling a personal information bank;]
	Option 1:
“private body” means—
(a)	a natural person who carries {or has carried} on any trade, business or profession, but only in such capacity; or
(b)	a partnership or a juristic person, but excludes a governmental body;
Option 2:
“private body” means—
(a)	a natural person who carries {or has carried} on any trade, business or profession, the natural person, but only in such capacity;
(b)	any person that is {or was} a partner of a partnership, but only in such capacity; or
(c)	a juristic person, but excludes a governmental body;
Option 3:
	“private body” means—
(a)	a natural person who carries on any trade, business or profession, the natural person, but only in such capacity; or
(b)	a juristic person,
but excludes a governmental body;	
	{“public enterprise” means any functionary or institution contemplated in paragraph (b)(ii) of the definition of “governmental body”;}
“public safety or environmental risk” [includes] means the risk or potential risk to the environment or the public (including individuals in their place of work) associated with— 
	(a)	a product or service which is available to the public; 
	(b)	a substance which is released into the environment or workplace;
(c)	a substance which is present in food for human or animal consumption; 
(d)	a form of public transport; or
(e)	an installation or manufacturing process or substance which is used in that installation or process;
“record” means any recorded information regardless of form or medium, and includes— 
(a)	a record which is capable of being produced by means of computer equipment (whether hardware or software or both) which is used for that purpose by a governmental or private body, as the case may be; or 
	(b)	a part of a record, 
Option 1 for part below:
and, of, or in relation to, a governmental or private body, means a record in the possession or under the control of that governmental or private body, respectively, whether or not the record was created by the body;
Option 2 for second part of definition of “record”:
#	If in the Bill the words “a record held by a ... body” instead of “ a record of a ... body” are used, omit the part “and, of, or in relation to ...”

{“relevant authority”, in relation to—
(a)	governmental body in the national sphere of government, means the Minister responsible for that governmental body;
(b)	governmental body in the provincial sphere of government, means the member of the Executive Council responsible for that governmental body;
(c)	a municipality, means the mayor of the municipality; } # Omit if provision is not made for internal appeal; # Public enterprises?
“request fee” means a fee prescribed for the purposes of section 22(1);
“request {for access}”, in relation to—
(a)	a governmental body, means a request for access to a record of a governmental body in terms of section 16 [and “requester”, in relation to that request, means a person making that request];
(b)	a private body, means a request for access to a record of a private body in terms of section 56;
[“request for correction” means a request for the correction of personal information in a record of a governmental body in terms of section 52(2), and “requester”, in relation to that request, means a person making that request;]
	“requester”, in relation to—
	Option 1 for par (a):
(a)	a governmental body, means—
(i)	any person other than a governmental body or an official thereof, making a request for access to a record of that governmental body; or
{(ii)	a person acting on behalf of the person referred to in subparagraph (i)}; # OR retain cl 18(5)
Option 2 for par (a):
(a)	a governmental body, means—
(i)	any person other than a governmental body or an official thereof, but including a public enterprise or an official thereof, making a request for access to a record of that governmental body; or
{(ii)	a person acting on behalf of the person referred to in subparagraph (i)}; # OR retain cl 18(5), but cl 18(5) not wide enough?
	Option 1 for par (b):
(b)	a private body, means—
(i)	any person other than a governmental body or an official thereof, making a request for access to a record of that private body; or
(ii)	a person acting on behalf of the person referred to in subparagraph (i);
Option 2 for par (b):
(b)	a private body, means—
(i)	any person, including a governmental body, or an official thereof, when acting in the public interest, making a request for access to a record of that private body; or
(ii)	a person acting on behalf of the person referred to in subparagraph (i);
{“subversive or hostile activities” means—
(a)	aggression against the Republic; 
	(b)	sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic; 
	(c)	an activity aimed at changing the constitutional order of the Republic by the use of force or violence; or 
	(d)	a foreign or hostile intelligence operation;} # Include if option 2 for cl 40 is used.
“third party”, in relation to a request for access to—
(a)	a record of a governmental body, means any person (including the government of a foreign state, an international organisation or an organ of that government or organisation) other than— 
	(i)	the requester concerned; 
		{(ii)	a person contemplated in section 18(5);} or # Omit if par’s (a)(ii) and (b)(ii) of the def.  of “requester” are included
	(iii)	a governmental body;
	(b)	a record of a private body, means any person including a governmental body, other than the requester;
	“this Act” includes any regulation made and in force in terms of section 96;
“transfer”, in relation to a record, means transferred in terms of section 20(1) or (2), and “transferred” has a corresponding meaning.
[“urgent appeal application” means an application referred to in section 71(1); (ii) 
“urgent request application” means an application referred to in section 20(1);
“working day” means any day other than a Saturday, Sunday or public holiday].

Objects of Act
PREVIOUSLY CLAUSE 3

	2. The objects of this Act are— 
(a)	to give effect to the constitutional right of access to any information held by the state by providing public access, as swiftly, inexpensively and effortlessly as reasonably possible, to that information [without jeopardising good governance, privacy and commercial confidentiality] subject to justifiable limitations; 
	(b)	to require governmental bodies to make information available that will assist the public in understanding the powers, duties and operation of governmental bodies; 
(c)	to [provide persons with access to their personal information held by private bodies] give effect to the constitutional right of access to any information that is held by a private body and that is required for the exercise or protection of any rights subject to justifiable limitations;
[(e)	to regulate the use and disclosure of personal information held by governmental or private bodies; 
(f)	to protect persons disclosing evidence of contraventions of the law, maladministration or corruption in governmental bodies;] and 
(g)	generally, to promote transparency and accountability of all organs of state by providing the public with timely, accessible and accurate information and by empowering the public to effectively scrutinise, and participate in, governmental decision making that affect them. 

Guide on how to use Act
PREVIOUSLY CLAUSE 5

Option 1 for subsection (1):
	3. (1) The Human Rights Commission must, within [six] 18 months after the commencement of this section, [publish] compile in each official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act.
Option 2 for subsection (1):
	(1) The Human Rights Commission must, within [six] 18 months after the commencement of this [section] Act, [publish] compile in each official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act.
Option 3 for subsection (1):
	(1) The Human Rights Commission must[, within six months after the commencement of this section, publish] compile in each official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act.

	(2) The guide must, without limiting the generality of subsection (1), include a description of— 
(a)	the objects of this Act; 
	(b)	the postal and street address, phone and fax number and, if available, electronic mail address of— 
		(i)	the information officer of every governmental body; and 
		(ii)	every deputy information officer of every governmental body appointed in terms of section17(1);
(bA)	such particulars of every private body as are practicable; 
	(c)	the manner and form in which a request for— 
		(i)	access to a record of a governmental body contemplated in section 16; and
		(ii)	access to a record of a private body contemplated in section 56, [containing personal information; and
		(iii)	correction of personal information held by a private body and a governmental body, 
contemplated in sections 19, 50, 51 and 52] must be made;
	(d)	the assistance available from the information officer of a governmental body [and the Human Rights Commission] in terms of this Act;
(dA)	the assistance available from the Human Rights Commission in terms of this Act;
	[(e)	the manner of lodging— 
		{(i)	an internal appeal with the [head of a governmental body] relevant authority; and}
		(ii)	an application with a [High] court against a decision by the information officer of a governmental body {Or relevant authority} or the head of a private body;] 
	(f)	all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, [except the remedies referred to in paragraph (e)] including the manner of lodging— 
		{(i)	an internal appeal with the relevant authority; and}
		(ii)	an application with a court against a decision by the information officer of a governmental body {OR relevant authority} or the head of a private body;
	(g)	the manual to be published by every governmental body and private body in terms of sections 13 and 54, respectively, the information contained therein and how to obtain access to the manual; and 
	(h)	[the categories of records open to the public in terms of legislation as contemplated in section 43 and how to obtain access to those records] the voluntary disclosure of certain records in terms of sections 14 and 55.
	(3) The Human Rights Commission must, if necessary, update and publish the guide at intervals of not more than [one] two years. 
	(4) The guide must[— 
	(a)	if reasonably possible, be made available on the Internet by the Human Rights Commission; and 
	(b)	otherwise] be made available as prescribed.

Part applicable when performing functions as governmental or private body   NEW CLAUSE

	4.  (1) The provisions of Part 2 and other related provisions of this Act apply to a request for access to a record that relates to a power or function exercised or performed as a governmental body; or
	(2)  The provisions of Part 3 and other related provisions of this Act apply to a request for access to a record that relates to a power or function exercised or performed as a private body.

Interpretation of Act
PREVIOUSLY CLAUSE 3(2)

	4A. When interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects. 

PART 2 
ACCESS TO RECORDS OF GOVERNMENTAL BODIES 
CHAPTER 1
APPLICATION

Act  applies to record whenever it came into existence	NEW CLAUSE (def.  of “record”)

	5. This Act applies to a record of a governmental body regardless of when the record came into existence.

Act not applying to certain governmental bodies or officials thereof	NEW CLAUSE (def.  of  “governmental body” - option 2)

	6.	This Act does not apply to—
(a)	the Cabinet; 	#  Omit par (a) if cl 42B is included
(b)	the judicial functions of—
(i)	a court referred to in section 166 of the Constitution;
(ii)	a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996); or
(iii)	a judicial officer of such court or Special Tribunal; or
(c)	a member of Parliament or of a provincial legislature.

Body deemed as part of another governmental body 
PREVIOUSLY CLAUSE 1(2) & (3)

	7.(1)  For the purposes of this Act, but subject to section 6, a board, council, committee, commission or other body— 
	(a)	which is not a juristic person;
(b)	which is—
(i)	established or constituted in terms of legislation; or
	(ii)	wholly or partly constituted by [appointment made by the President, the Deputy President, a Minister, the Premier of a province, a member of the Executive Council of a province or of the Municipal Council of a municipality, a governmental body, or more than one of those authorities] one or more organs of state; and
(c)	which is so established or constituted for the purpose of  managing or administering any activity of, exercising any power of, to performing any duty of, or advising or assisting, [a] one or more governmental body, is [not a separate governmental body, but is] regarded as being part of such governmental body, or as having such information officer, as the Minister determines by notice in the Gazette.
	(1A) For the purposes of this Act, but subject to section 6, a body—
(a)	which is not a juristic person;
(b)	which consists of—
	(i)	more than one governmental body;
	(ii)	parts of more than one governmental body; or
	(iii)	one or more governmental body and one or more parts of one or more governmental bodies;
(c)	which is—
(i)	established or constituted in terms of legislation; or
	(ii)	wholly or partly constituted by one or more organs of state; and
(d)	which is so established or constituted for the purpose of  managing or administering any activity of, exercising any power of, to performing any duty of, or advising or assisting, one or more governmental body, is regarded as being part of such governmental body, or as having such information officer, as the Minister determines by notice in the Gazette.
 
Option 1 for subsection (2):
	(2) For the purposes of this Act, the Minister may, in the prescribed manner {OR by notice in the Gazette}, determine—
 (a)	that a governmental body is to be regarded as being part of another governmental body; or 
(b)	that a category of governmental bodies is to be regarded as one governmental body with such information officer as the Minister designates.
Option 2 for subsection (2):
	(2)  For the purposes of this Act, the Minister may, in the prescribed manner {OR by notice in the Gazette}, determine that two or more governmental bodies are to be regarded as one governmental body with such information officer as the Minister, after consultation with the governmental bodies concerned, designates.

NB # Similar provisions for private bodies?

Records held by official or independent contractor of governmental body 
NEW CLAUSE (see def.  of “official” & “record”)

	8.  For the purposes of this Act, but subject to section 6, a record in the possession or under the control of {OR held by}—
(a)	an official of a governmental body in his or her capacity as such; or
	(b)	an independent contractor engaged by a governmental body in the capacity as such contractor,
is regarded as being in the possession or under the control of that governmental body.
	
Application of other legislation prohibiting or restricting disclosure
PREVIOUSLY CLAUSE 2	

Option 1:
	9.(1)  Subject to section 11, this Act applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record of a governmental body and that is materially {OR substantially} inconsistent with an object, or a specific provision, of this Act.
	{(2) For the purposes of subsection (1), the manner in which access to a record of a governmental body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.} # Omit?
Option 2:
	(1)   Subject to section 11, if any conflict arises between {any provision of} this Act and {any provision of} other legislation that prohibits or restricts the disclosure of a record of a governmental body and that is materially {OR substantially} inconsistent with an object, or a specific provision, of this Act, {the provision of} this Act prevails.
	{(2) For the purposes of subsection (1), the manner in which access to a record of a governmental body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.}  # Omit?

Application of other legislation providing for access
PREVIOUSLY CLAUSE 12

Option 1:
	10.  Subject to section 92(3), this Act—
(a)	does not apply to a record of a governmental body if access to that record may be obtained {OR is provided for} in terms of any legislation referred to in Schedule 1;
	(b)	applies a record of a governmental body if access to the record may be obtained {OR is provided for} in terms of  any legislation not referred to in Schedule 1. # May be accessible by certain persons and not others
Option 2: 
	Subject to section 92(3), if any legislation providing for access to a record of a governmental body—
(a)	is referred to in Schedule 1, that legislation applies to the exclusion of this Act; or
(b)	is not referred to  in Schedule 1, this Act applies to the exclusion of that legislation.

Option 3:
Option 1 for subsection (1):
	(1)  Nothing in this Part, except subsection (2), prevents the giving of access to a record of a governmental body in terms of any other law.
Option 2 for subsection (1):
	(1)  Nothing in this Part, except subsection (2), prevents the giving of access to a record of a governmental body otherwise than in terms of this Act if that is permitted or required by any other law.

	(2) If the manner in which access may be given, including, but not limited to, the payment of fees, in terms of the other law referred to in subsection (1), is more onerous than access to that record would have been in terms of this Part, this Part applies to the exclusion of that other law.

Option 4:
	(1) This Part does not apply to a record of a governmental body if the record is—
(a)	subject to subsections (2) and (3), accessible in accordance with any other legislation; or
	(b)	described in a list published by notice in the Gazette in terms of section 6(2).
	(2) The Minister must—
(a)	on a periodic basis not less frequently than once each two years; and
	(b)	in accordance with the prescribed criteria,
review the legislation contemplated in subsection (1)(a) in order to determine whether the manner in which access may be obtained to a record or, category of records, of a governmental body in terms of any legislation is more onerous than access to that record would have been in terms of this Part.

	(3)  If the Minister has determined in terms of subsection (2) that the manner in which access may be obtained to a record or, category of records, of a governmental body in terms of such legislation is more onerous than access to that record would have been in terms of this Act, the Minister must, by notice in Gazette, determine that this Act applies to such record or category of records.

OPTION 1 FOR CL 11:
Act not applying to records required for criminal or civil proceedings after commencement 
PREVIOUSLY CLAUSE 10
Option 1 for subsection (1):
	11.(1) No person may, after the commencement of criminal or civil proceedings, knowingly request access to a record of a governmental body in terms of section 16 for the purpose of such proceedings if {the person has reason to believe that} the production of that record for that purpose is regulated by any other law .
Option 2 for subsection (1):
	(1)  No person may, after the commencement of criminal or civil proceedings, knowingly request access to a record of a governmental body in terms of section 16 for the purpose of such proceedings in order to circumvent any other law which regulates the production of that record for the purpose of such proceedings.
Option 1 for subsection (2):
	(2)  Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in the criminal or civil proceedings referred to in that subsection unless the exclusion of such record by the court in question would, in its opinion, be detrimental to the interests of justice.
Option 2 for subsection (2):
	(2)  Any person that contravenes subsection (1) is guilty of an offence and is, on conviction liable to imprisonment for a period of 12 months or a fine.

OPTION 2 FOR CL 11 - PHRASED AS AN EXEMPTION TO BE INCLUDED IN CHAPTER 4 OF PART 2 BELOW
NB SEE OPTION 2 FOR SUBSECTION (1B) IN CLAUSE 38 AS REGARDS CRIMINAL PROCEEDINGS - IF ADOPTED, INCLUDE SEPARATE CLAUSE FOR CIVIL PROCEEDINGS?

	Criminal or civil discovery
	The information officer of a governmental body may, after the commencement of criminal or civil proceedings, refuse a request for access to a record of the body if—
	(a)	the information officer has reason to believe to that the record is requested for the purpose of such proceedings; and
(b)	the production of that record for that purpose is regulated by any other law.

Right of disclosure of record to which access is given
PREVIOUSLY CLAUSE 11
Option 1:
	12. {(1)} 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 governmental body to which access is given in terms of this Act.

Option 2:
	{(1)} Subject to the common  law or any legislation referred to in Schedule 2, 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 governmental body to which access is given in terms of this Act.
#	And include transitional arrangement similar to clause 92, ie clause 12 subject to other legislation for a period of 12 months from its commencement and then only if listed in Schedule 3. 

	{(2)  The information officer of the governmental body and requester in question may conclude an agreement prohibiting or restricting the requester to publish, broadcast or otherwise disclose the relevant record as contemplated in subsection (1).}

Option 3:
#	Omit clause 12

CHAPTER 2
PUBLICATION AND AVAILABILITY OF CERTAIN RECORDS

Manual on functions of, and index of records held by, governmental body
PREVIOUSLY CLAUSE 6

	13. (1) {This section does not apply to a governmental body which is a public enterprise [that operates a system of financial administration separate from the national, provincial and local spheres of government].}
	(2) Within 12 months after the commencement of this section or the coming into existence of a governmental body, the [head] information officer of the governmental body concerned must [publish] compile in at least two official languages a manual containing— 
	(a)	a description of its structure and functions; 
	(b)	the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of the body and of every deputy information officer of the body appointed in terms of section 17(1); 
	(c)	a description of the guide referred to in section 3 and how to obtain access to it; 
	(d)	in sufficient detail to facilitate a request for access to, and for correction of personal information in, a record of the body, a description of— 
		(i)	the subjects on which the body holds records and the categories of records held on each subject; and
		{(ii)	every personal information bank held by the body, including, in respect of each bank— 
(aa)	the identification of the bank and a description of the categories of persons to whom or which the bank relates; and
			(bb)	a statement of the purposes for which the information in the bank was obtained or the bank was compiled and a statement of the purposes consistent with those purposes for which the information in the bank is used or disclosed; and}
	(e)	the latest notice, published in terms of section 14, regarding the kinds of records of the body which are available without a person having to request access in terms of this Act;
	(f)	a description of the services available to members of the public from the body and how to gain access to those services; 
	(g)	a description of any arrangement or provision for a person (other than a governmental body) by consultation, making representations or otherwise, to participate in or influence— 
		(i)	the formulation of policy; or 
		(ii)	the exercise of powers or performance of duties, by the body; 
	(h)	a description of all remedies available in respect of an act or a failure to act by the body; 
	(i)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation	
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}
NEW CLAUSE
	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.
	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}	
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}	
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}	
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory	
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 			PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}	
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}	
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}	
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}	
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory	
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory	
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	
	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}	
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi)	such other information as may be prescribed. 
	(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
	(4) Each manual must be made available as prescribed. 
	(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister  may on request or of its own accord determine that the two or more bodies [publish] compile one manual only. 
	(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.
	(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

Voluntary disclosure of records {OR Availability of certain records OR Records automatically available}		
NEW CLAUSE

	14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which—
	(a)	describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the governmental body; and
		(iii)	from the governmental body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2)  On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).
	(3)  No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
	(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.
	(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory
PREVIOUSLY CLAUSE 7 
Option 1 for subsection (1):
	15. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (1):
	(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

	(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.

CHAPTER 3 
RIGHT AND MANNER OF ACCESS 

Right of access to records of governmental bodies 		
PREVIOUSLY CLAUSE 9

	16.(1) Any person must be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.
	(2) A request contemplated  in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.
	(3)  A person’s right of access contemplated in subsection (1) is{, subject to this Act,} not affected by—
	(a)	any reasons the person gives for requesting access; or
	(b)	the information officer’s belief as to what are the person’s reasons for requesting access.

Designation of deputy information officers and delegation
PREVIOUSLY CLAUSE 4, BUT  REDRAFTED	

	17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment of personnel of the governmental body concerned, designate such number of {suitable} persons as deputy information officers as are necessary to render  the governmental body as accessible as reasonably possible for requesters of its records. 
	{(2) The information officer of a governmental body has direction and control over every deputy information officer of that body.} 
	(3) The information officer of a governmental body may delegate a power or duty conferred or imposed on that information officer by this Act to a deputy information officer of that governmental body.
	(4) In deciding  whether to delegate a power or duty in terms of subsection (3), the information officer must give due consideration to the need to render the governmental body as accessible as reasonably possible for requesters of its records.
	(5) Any power or duty delegated in terms of subsection (3) must be exercised or performed subject to such conditions as the person who made the delegation considers necessary. 
	(6) Any delegation in terms of subsection (3)— 
(a)	must be in writing; 
(b)	does not prohibit the person who made the delegation from exercising the power concerned or performing the duty concerned himself or herself; 
	(c)	may at any time be withdrawn or amended in writing by that person. 
	(7) Any right or privilege acquired, or any obligation or liability incurred, as a result of a decision in terms of a delegation in terms of subsection (3) is not affected by any subsequent withdrawal or amendment of that decision.

Form of requests 
PREVIOUSLY CLAUSE 13

	18. (1) A request for access must be made in the prescribed form to the information officer of the governmental body concerned at his or her address or fax number or electronic mail address. 
	(2) The form for a request of access prescribed for the purposes of subsection (1) must at least require from the requester concerned— 
	(a)	to provide sufficient particulars to enable an official of the governmental body concerned to identify the record or records requested; 
	(b)	to indicate which applicable form of access referred to in section 29(2) is required; 
	(c)	to state whether the record concerned is preferred in a particular language; 
	(d)	[to state whether the requester is a personal, non-commercial or commercial requester and, in the case of a commercial requester,] to include the request fee (if any); # Omit whole paragraph if option 2 for cl 22 is used - see cl 22(1)
Option 1 for (e):
	(e)	to specify a postal address or fax number and, if the request includes an urgent request application, a phone number, for the requester in the Republic;
Option 2 for  (e):
	(e)	to specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester;
	(f)	if, in addition to a written reply, the requester wishes to be informed of the decision on the request in any other manner, to state that manner and the necessary particulars to be so informed; and 
	(g)	in the case of a request for access to a record containing personal information, to state the capacity {contemplated in subsection (5)} in which the requester is making the request and to submit— 
Option 1 for (i) & (ii):
		(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.
Option 2 for  (i) and (ii):
		(i)	proof of the requester’s identity to the reasonable satisfaction of the information officer concerned; or
(ii)	if the requester is not the person to whom or which the personal information relates, proof of the capacity in which the requester is making the request, to the reasonable satisfaction of the information officer.
# Capacity relevant in case where access is sought on the basis that the public interest override (cl 45) should apply?  
	[(3) If a requester can, according to the purposes for which access is sought, be classified as a personal, non-commercial and commercial requester or as any two of those requesters, that requester is regarded, for the purposes of this Act, as being that type of requester who would, upon the request for access being granted, be liable to pay the higher or highest access fee in respect of the request.] 
	(4)(a) 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 governmental body in accordance with subsection (1), may make that request orally. 
	(b) The information officer of that body must reduce that oral request to writing in the prescribed form and provide a copy thereof to the requester. 
	{(5) 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 own affairs, by a person appointed by the court to manage those affairs; or 
		(iii)	deceased, by the executor of his or her estate.} # Omit in view of par (ii) of definition of “requester”?

Duty to assist requesters 
PREVIOUSLY CLAUSE 14
Option 1 for subsection (1):
	19. (1) If a requester informs the information officer of a governmental body that he or she wishes to make a request for access to a record of that or another governmental body, the information officer must render such assistance, free of charge, as is necessary to enable that requester to comply with section 18(1).
Option 2 for subsection  (1):
	(1) If a requester informs the information officer of—
	(a)	a governmental body that he or she wishes to make a request for access to a record of that governmental body; and
	(b)	a governmental body{, other than a public enterprise,} that he or she wishes to make a request for access to a record of another governmental body,
the information officer must render such assistance, free of charge, as is necessary to enable that requester to comply with section 18(1).
Option 3 for subsection (1):
	(1)  If a requester informs the information officer of a governmental body that he or she wishes to make a request for access to a record of that governmental body, the information officer must render such assistance, free of charge, as is necessary to enable that requester to comply with section 18(1).
	(2) If a requester has made a request for access that does not comply with section 18(1), the information officer concerned may not refuse the request because of that non-compliance unless the information officer has— 
	(a)	notified that requester of an intention to refuse the request and stated in the notice— 
		(i)	the reasons for the contemplated refusal; and 
		(ii)	that the information officer or another official identified by the information officer would assist that requester in order to make the request in a form that would remove the grounds for refusal; 
	(b)	given the requester a reasonable opportunity to seek such assistance; 
	(c)	as far as reasonably possible, furnished the requester with any information (including information about the records, other than information on the basis of which a request for access is required or permitted by [this Act] any provision of Chapter 4 of this Part to be refused, held by the body which are relevant to the request) that would assist the making of the request in that form; and 
	(d)	given the requester a reasonable opportunity to confirm the request or alter it to comply with section 18(1). 
	(3) When computing any period referred to in section 25(1), the period commencing on the date on which notice is given in terms of subsection (2) and ending on the date on which the person confirms or alters the request for access concerned must be disregarded. 
	(4) If it is apparent on receipt of a request for access that it should have been made to another governmental body, the information officer of the governmental body concerned must—
	(a)	render such assistance as is necessary to enable the person to make the request, to the information officer of the appropriate governmental body; or 
	(b)	transfer the request in accordance with section 20 to the last-mentioned information officer, 
whichever will result in the request being dealt with earlier. 

Transfer of requests 
PREVIOUSLY CLAUSE 15
	20. (1) If a request for access is made to the information officer of a governmental body in respect of which— 
	(a)	the record is not in the possession or under the control of that body but is in the possession of another governmental body; 
	(b)	the record’s subject matter is more closely connected with the functions of another governmental body than those of the governmental body of the information officer to whom the request is made; or 
	(c)	the record contains commercial information contemplated in section 42 in which any other governmental body has a greater commercial interest, 
the information officer to whom the request is made must as soon as reasonably possible, but in any event within 14 days after the request is received— 
(i)	transfer the request to the information officer of the other governmental body or, if there is in the case of paragraph (c) more than one other governmental body having a commercial interest, the other governmental body with the greatest commercial interest; and 
(ii)	if the governmental body of the information officer to whom the request is made is in possession of the record and considers it helpful to do so to enable the information officer of the other governmental body to deal with the request, send the record or a copy of the record to that information officer. 
	(2) If a request for access is made to the information officer of a governmental body in respect of which— 
	(a)	the record is not in the possession or under the control of the governmental body of that information officer and the information officer does not know which governmental body has possession or control of the record; 
	(b)	the record’s subject matter is not closely connected to the functions of the governmental body of that information officer and the information officer does not know whether the record is more closely connected with the functions of another governmental body than those of the governmental body of the information officer to whom the request is made; and 
	(c)	the record— 
		(i)	was created by or for another governmental body; or 
		(ii)	was not so created by or for any governmental body, but was received first by another governmental body, 
the information officer to whom the request is made, must as soon as reasonably possible, but in any event within 14 days after the request is received, transfer the request to the information officer of the governmental body by or for which the record was created or which received it first, as the case may be. 
	[(3) If a request for access which is to be transferred includes an urgent request application, the request must be so transferred immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event, within five working days after it is received.] 
	(4) Subject to subsection (5), the information officer to whom a request for access is transferred, must give priority to that request in relation to other requests as if it were received by him or her on the date it was received by the information officer who transferred the request. 
	(5) If a request for access is transferred, any period referred to in section 25(1) must be computed from the date the request is received by the information officer to whom the request is transferred. 
	(6) Upon the transfer of a request for access, the information officer making the transfer must immediately notify the requester of— 
	(a)	the transfer; 
	(b)	the reasons for the transfer; and 
	(c)	the period within which the request must be dealt with.

Preservation of records until final decision on request
PREVIOUSLY CLAUSE 16

	21.  If the information officer of a governmental body has received a request for access to a record of the body, the [head] information officer of the body must take the steps that are reasonably necessary to preserve the record, without deleting any information contained in it, until the information officer has notified the requester concerned of his or her decision in terms of section 19 and— 
	(a)	the periods for lodging {an internal appeal with [that head] relevant authority,} an application with a [High] court or an appeal against a decision of that court have expired; or 
	(b)	{that internal appeal,} 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.

#	OPTION 2 - COMBINING CLAUSES 17, 18 & 24 IN ORIGINAL BILL ARE USED FOR NUMBERING PURPOSES

[Payment of request fee 
	17. (1) A commercial requester must, when making his or her request for access, pay the prescribed request fee. 
	(2) If— 
	(a)	there are reasonable grounds for believing that a requester is a commercial requester; and 
	(b)	that requester has not paid the prescribed request fee, 
the information officer of the governmental body concerned must by notice require the requester to pay that fee. 
	(3) That notice must state— 
	(a)	that the requester may lodge an internal appeal with the [head of the body] relevant authority against the payment of the fee; and 
	(b)	the procedure (including the period) for lodging the internal appeal. 
	(4) If the prescribed request fee is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee is paid.]

#	THE FOLLOWING THREE OPTIONS ARE ALTERNATIVES FOR CLAUSE 17 (request fee - payable when requesting record), CLAUSE 18 (deposit - payable after requesting record but before access is given) & CLAUSE 24 (access fee - payable when access is given) IN ORIGINAL BILL
OPTION 1 - contains separate alternative for each of three clauses:
Payment of request fee

	17.  (1)  A requester, other than a personal requester, must, when making his or her request for access, pay the prescribed request fee.
	(2)  If that requester has not paid the prescribed request fee the information officer of the governmental body concerned must by notice require the requester to pay that fee.
	{(3)  That notice must state—
	(a)	that the requester may lodge an internal appeal with the relevant authority against the payment of the fee;  and
	(b)	the procedure (including the period) for lodging the internal appeal.}
	(4)  If the prescribed request fee is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee is paid.

Payment of deposit

	18. (1)  If—
	(a)	the search for a record of a governmental body in respect of which a request for access by a requester, other than a personal requester, has been made;  and
	(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)),
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
	(2)  No deposit is payable in respect of a request for access by a personal requester.
	(3)  The notice referred to in subsection (1) must state—
	(a)	the amount of the deposit;  and
	{(b)	that the requester may lodge an internal appeal with the relevant authority against the payment of a deposit, and the procedure (including the period) for lodging the internal appeal}.
	(4)  If a deposit is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the deposit is paid.
	(5)  If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.

Access fees

	24.  (1)	A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 29(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction");  and
	(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").
	(3)  A personal requester must pay an access fee for reproduction only.
	(4)  A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.
	(5)  The Minister of Justice may, by notice in the Gazette —
	(a)	exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;
	(b)	determine that any fee is not to exceed a certain maximum amount;
	(c)	the manner in which any fee is to be calculated; and
	(d)	determine the category of records in respect of which the fees referred to in this section and sections 17 and 18 does not apply; 
	(e)	exempt any person or record or category of persons or records for a stipulated period from the fees referred to in this section; and
	(f)	determine that where the cost of collecting the fees referred to in this section and sections 17 and 18 exceeds the amount charged, that those fees does not apply.

OPTION 2 - combines clauses 17, 18 and 24 in original Bill one clause: # USED FOR NUMBERING PURPOSES

Fees

	22. (1)	An information officer to whom a request for access to information is made must by notice require the requester {, other than a personal requester,} to pay the prescribed request fee, and the decision on the request in terms of section 25 may be deferred until the fee is paid.
	(2)  If — 
	(a)	the search for a record of governmental body in respect of which a request for access by a requester{, other than a personal requester,} has been made; and
	(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)),
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
	(3)  The notices referred to in subsections (1) and (2) must state — 
	(a)	the amount of the deposit payable in terms of subsection (2), if applicable;
	{(b)	that the requester may lodge an internal appeal with the relevant authority against the payment of the request fee in terms of subsection (1), or the payment of a deposit in terms of subsection (2), as the case may be; and
	(c)	the procedure (including the period) for lodging the internal appeal.}
	(4)  A personal requester is exempted from paying a request fee and deposit and must pay an access fee for reproduction only. # Omit subclause if words in { } in subs (1) and (2) are included?

	(5)  A requester whose request for access to a record of a governmental 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).
	(6)  A requester must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.
	(7)  Access fees prescribed for the purposes of subsection (6) must provide for a reasonable access fee for— 
	(a)	the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 29(2)(a) and (b)(i), (ii)(bb), (iii) and (v) and, if applicable, the postal fee (in this section referred to as an “access fee for reproduction”); and
	(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an “access fee for search and preparation”).
	(8)  The Minister may, by notice in the Gazette— # Notice separate from regulations?
	(a)	exempt any person or category of persons from paying any fee referred to in this section;
	(b)	determine that any fee is not to exceed a certain maximum amount;
	(c)	the manner in which any fee referred to in this section is to be calculated;
	(d)	determine the category of records in respect of which the fees referred to in this section does not apply;
	(e)	exempt any person or record or category of persons or records for a stipulated period from any fee referred to in subsection (7); and
	(f)	determine that where the cost of collecting any fee referred to in this section exceeds the amount charged, that such fee does not apply.
	(9)  If a deposit has been payed in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.

OPTION 3 - combines clauses 17 and 18 in one clause and retains clause 24 as separate clause:
Payment of request fee and deposit

	17.  (1)	A requester must, when making his or her request for access, pay the prescribed fee.
	(2)  If that requester has not paid the prescribed request fee, the information officer of the government body concerned must by notice require the requester to pay that fee.
	(3)  If—
	(a)	the search for a record of a governmental body in respect of which a request for access by requester has been made;  and
	(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa),
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
	(4)  No deposit is payable in respect of a request for access by a personal requester.
	(5)  The notice referred to in subsection (3) must state—
	(a) 	the amount of the deposit;  and
	(b)	that the requester may write representations to the head of the governmental body concerned against the payment of a deposit, and the procedure (including the period) for missing representations.
	(6)  If the prescribed request fee or deposit, as the case may be, is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee of deposit is paid.
	(7)  If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.

Access fees

	24. (1)	A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 29(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction");  and
	(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").
	(3)  A personal requester must pay an access fee for reproduction only.
	(4)  A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.
	(5)  The Minister of Justice may, by notice in the Gazette —
	(a)	exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;
	(b)	determine that any fee is not to exceed a certain maximum amount;  and
	(c)	the manner in which any fee is to be calculated.
	(d)	determine the category of records in respect of which the fees referred to in this section and section 17 does not apply; 
	(e)	exempt any person or record or category of persons or records for a stipulated period from the fees referred to in this section; and
	(f)	determine that where the cost of collecting the fees referred to in this section and section 17 exceeds the amount charged, that those fees does not apply.

# SEE ALTERNATIVES FOR CLAUSE 18 IN OPTIONS 1, 2 AND 3 ABOVE
[Payment of deposit 
	18. (1) If— 
	(a)	the search for a record of a governmental body in respect of which a request for access by a non-commercial or commercial requester has been made; and 
	(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)), 
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for non-commercial or commercial requesters, as the case may be, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted. 
	(2) No deposit is payable in respect of a request for access by— 
	(a)	a personal requester; or 
	(b)	a member of Parliament, a provincial legislature or a municipal council in connection with the member’s official duties. 
	(3) The notice referred to in subsection (1) must state— 
	(a)	the amount of the deposit; and 
	(b)	that the requester may lodge an internal appeal with the [head of the governmental body concerned] the relevant authority against the payment of a deposit, and the procedure (including the period) for lodging the internal appeal. 
	(4) If a deposit is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the deposit is paid. 
	(5) If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.] 

Records that cannot be found or do not exist			
PREVIOUSLY CLAUSE 41 

	23.(1) If—
(a)	all reasonable steps have been taken to find a record requested; and
(b)	there is reasonable grounds for believing that the record—
(i)	is in the governmental body’s possession but cannot be found; or
(ii)	does not exist,
the information officer of a governmental body must, by way of affidavit or affirmation, notify the requester that it is not possible to give access to that record.
	(2) The affidavit  or affirmation referred to in subsection (1) must give a full account of all steps taken to find the record in question 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 information officer.
	(3) For the purposes of this Act, the notice in terms of subsection (1) is to be regarded as a decision to refuse a request for access to the record.
	(4) If after notice is given in terms of subsection (1) the record in question is found, the requester  concerned must be given access to the record unless access is refused on a ground for refusal contemplated in Chapter 4 of this Part.

Deferral of access				
PREVIOUSLY CLAUSE 42(1)(a), (b), (d) & (e)

	24. (1) If the information officer of a governmental body decides to grant access to a request for access to a record, but that record— 
(a)	is to be published within 90 days after the receipt or transfer of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it; 
	(b)	is required by law to be published but is yet to be published; or
(c)	has been prepared for submission to Parliament {OR any legislature} or a particular person but is yet to be submitted,
the information officer may defer giving access to the record for a reasonable period.
	(2) If access to a record is deferred in terms of subsection (1), the information officer  must notify the requester concerned— 
	(a)	that the requester may, within 30 days after that notice is given, make representations to the information officer why the record is required before such publication or submission; and
(b)	of the likely period for which access is to be deferred.
	(3) If a requester makes representations in terms of subsection (2)(a) , the information officer must, after due consideration of that representations, grant the request for access only if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the record is deferred for the likely period referred to in subsection (2)(b).

Decision on request and notice thereof 
PREVIOUSLY CLAUSE 19

	25. (1) The information officer to whom a request for access is made or transferred, must, subject to section 26 and Chapter 5 of this Part, as soon as reasonably possible, but in any event, within 30 days, after the request is received or transferred— 
	(a)	decide in accordance with this Act whether to grant the request; and 
	(b)	notify the requester of the decision and, if the requester stated as contemplated in section 18(2)(f) that he or she wishes to be informed of the decision in any other manner, inform him or her in that manner if it is reasonably possible. 
(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; and 
	{(c)	that the requester may lodge an internal appeal with the [head of the governmental body concerned] relevant authority against the access fee to be paid or the form of access granted, and the procedure (including the period) for lodging the internal appeal.}
	(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state— 
	[(a)	the findings on all material questions of fact, referring to the material on which those findings were based;]
	(b)	[the] adequate reasons for the refusal (including the provisions 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 internal appeal with the head of the governmental body concerned or to utilise any other remedy in law available to the requester]; and 
	{(c)	that the requester may lodge an internal appeal with the [head of the governmental body] relevant authority against the refusal of the request, and the procedure (including the period) for lodging the internal appeal.}
[Urgent requests 
	25A. (1) A requester who wishes to obtain access to a record of a governmental body urgently must include an application to that effect in the request for access, and give reasons for the urgency. 
	(2) If a request for access includes an urgent request application, the information officer concerned must, subject to Chapter 3 of this Part, immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event within five working days, after the request for access has been received or transferred, decide on the request and give notice of the decision in accordance with section 19, unless there are reasonable grounds for believing that— 
	(a)	the nature of the reasons for the urgency furnished by the requester is such that the requester will suffer no prejudice if the request is decided upon within the applicable period contemplated in section 19(1); or 
	(b)	it is impractical to decide on the request within five working days after the request has been received or transferred. 
	(3) If the information officer refuses an urgent request application on grounds referred to in subsection (2)(a) or (b), he or she must immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event, within five working days, after the request for access has been received or transferred, notify the requester of the refusal. 
	(4) The notice in terms of subsection (3) must state— 
	(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)	the reasons for the refusal (including the provisions of this section 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 internal appeal with the head of the governmental body concerned or an application with a High Court or to utilise any other remedy in law available to the requester; and 
	(c)	that the requester may lodge an internal appeal with the head of the governmental body, or an application with a High Court, against the refusal of that urgent request application, and the procedure (including the periods) for lodging the internal appeal and the application with a High Court. 
	(5) If the notice in terms of subsection (2) or (3) of a decision is not given by fax, the requester must be informed by phone of the decision.]

Extension of period to deal with request 
PREVIOUSLY CLAUSE 21

	26.(1) [Subject to section 20, the] The  information officer to whom a request for access has been made or transferred, may extend the period of 30 days referred to in section 25(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 governmental body concerned; 
	(b)	the request requires a search for records in, or collection thereof from, an office of the governmental body not situated in the same town or city as the office of the information officer that cannot reasonably be completed within the original period; 
	(c)	consultation among divisions of the governmental body or with another governmental body is necessary or desirable to decide upon the request that cannot reasonably be completed within the original period; [or] 
	(d)	more than one of the circumstances contemplated in paragraphs (a), (b) and (c) exist in respect of the request making compliance with the original period not reasonably possible; or
(e)	the requester consents in writing to such extension. 
	(2) If a period is extended in terms of subsection (1), the information officer must, as soon as reasonably possible, but in any event, within 30 days, after the request is received or transferred, notify the requester of that extension. 
	(3) The notice in terms of subsection (2) must state— 
	(a)	the period of the extension; 
	(b)	[the] adequate reasons for the extension (including the provisions of this Act relied upon to justify the refusal) [in such manner as to enable the requester— 
		(i)	to understand the justification for the extension; and 
		(ii)	to make an informed decision about whether to lodge an internal appeal with the head of the governmental body concerned or to utilise any other remedy in law available to the requester]; and 
	(c)	{that the requester may lodge an internal appeal with the [head of the governmental body] relevant authority against the extension, and the procedure (including the period) for lodging the internal appeal.}

Deemed refusal of request 
PREVIOUSLY CLAUSE 22

	27. If an information officer fails to give [his or her] the decision on a request for access to the requester concerned within the period contemplated in section 25(1), the information officer is, for the purposes of this Act, regarded [to have] as having refused the request.

Severability 	
PREVIOUSLY CLAUSE 23

	28. (1) If a request for access to a record of a governmental body containing information which is required [by section 29 or 31,] or permitted by [section 30, 32, 33, 34, 36, 37, 38, 39 or 42,] any provision of Chapter 4 of this Part to be refused, is made, 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 25(2), apply to paragraph (a) of this section and the provisions of section 25(3) to paragraph (b) of this section. 

# SEE ALTERNATIVES FOR CLAUSE 24 IN OPTIONS 1, 2 AND 3 AFTER CLAUSE 17 ABOVE
[Access fees 
	24. (1) A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 29(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an “access fee for reproduction”); and 
	(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an “access fee for search and preparation”). 
	(3) A personal requester must pay an access fee for reproduction only. 
	(4) A non-commercial requester must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure. 
	(5) A commercial requester must pay an access fee for reproduction and for search and preparation. 
	(6) A member of Parliament, a provincial legislature or a municipal council who makes a request for access in connection with his or her work as such member does not have to pay any access fee in respect of the request.]

Access and forms of access 
PREVIOUSLY CLAUSE 24

	29. (1) If a requester has been given notice in terms of section 25(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 30. 
	(2) The forms of access to a record in respect of which a request of 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 governmental 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 governmental body concerned— 
			(aa)	by making arrangements to hear those sounds; or 
			(bb)	if the governmental 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 governmental body concerned is capable of producing a printed copy of— 
			(aa)	the record, or a part of it; or 
			(bb)	information derived from the record, 
by using computer equipment and expertise ordinarily available to the governmental 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 28, be given in that form, unless to do so would— 
	(a)	interfere unreasonably with the effective administration of the governmental body concerned; 
	(b)	be detrimental to the preservation of the record; or 
	(c)	amount to an infringement of copyright not owned by the state or the governmental 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] {sensory} 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 information officer of the 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 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 governmental body concerned; 
	(b)	be detrimental to the preservation of the record; or 
	(c)	amount to an infringement of copyright not owned by the state or the governmental body concerned. 
	(8) If the supply to a requester of a copy of a record is required by this section, the copy must, if so requested, be supplied by posting it to him or her. 
	(9) If {an internal appeal with the [head of a governmental body] relevant authority or} 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.]

{Access to health records
NEW: ALTERNATIVE FOR CLAUSES 33(4) TO (6) or 34
	29A.(1) If the information officer of a governmental body grants a request for access to a record provided by a health practitioner in his or her capacity as such about the physical or mental health, or well-being of the requester or, if the request has been made on behalf of the person to whom the record relates, that person, and that information officer is of the opinion that the disclosure of the record to that requester or person, as the case may be, might cause {serious} harm to his or her physical or mental health, or well-being, the information officer must, before giving access in terms of section 25, consult with a health practitioner who—
(a)	carries on an occupation of the same kind as the health practitioner who provided the record; and 
	(b)	subject to subsection (2), have been nominated by that requester or person, as the case may be.
	(2) If the requester or, if the request has been made on behalf of the person to whom the record relates, that person is—
(a)	under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (1)(b); or 
(b)	incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. 
	(3)(a) If, after being given access to the record concerned, the health practitioner consulted in terms of subsection (1) is of the opinion that the disclosure of the record to that requester or, if the request has been made on behalf of the person to whom the record relates, that person, would be likely {OR could reasonably be expected} to cause serious harm to his or her physical or mental health, or well-being, the information officer must only give access to the record  if the requester proves to the satisfaction of the information officer that {adequate OR appropriate} provision is made for counselling of the requester, or the person on whose behalf the request has been made, as the case may be, before, during and after {OR in the prescribed manner with regard to} the disclosure of the record.
	(b) Before access to the record is so given to the requester, the person responsible for such counselling must be given access to the record.}

Language of access 
PREVIOUSLY CLAUSE 26

	30. 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 the requester has no preference or has  not indicated a preference, be given access in any language the record exists in. 

Reports to Human Rights Commission 
PREVIOUSLY CLAUSE 27

	31. The [head] information officer of each governmental body must annually {OR every two years} submit to the Human Rights Commission a report stating in relation to the governmental body— 
	(a)	the number of requests for access received; 
	(b)	the number of requests for access granted in full; 
	(c)	the number of requests for access granted in terms of section 45; 
	(d)	the number of requests for access refused in full and refused partially and the number of times each provision of this Act relied on to refuse access was invoked to justify refusal in full and partial refusal; 
	[(e)	the number of requests for correction and the number of cases in which a correction was made;] 
	(f)	the number of cases in which the periods stipulated in section 25(1) [and 52(7), respectively], were extended in terms of section 26(1) [and that section, read with section 52(6), respectively]; 
	[(g)	the number of urgent request applications and urgent appeal applications made and the number of cases in which those applications were granted;] 
	{(h)	the number of internal appeals lodged with the [head of the body] relevant authority and the number of cases in which, as a result of an internal appeal, access was given to a record}[or a part thereof or a correction of inaccurate personal information was made]; 
	{(i)	the number of internal appeals which were lodged on the ground that[— 
		(i)]	a request for access was regarded [to have] as having been refused in terms of section 27; and}
		[(ii)	a request for correction was regarded to have been refused in terms of section 52(8);] 
	(j)	the number of applications to a [High] court which were lodged on the ground that an internal appeal was regarded  [to have] as having been dismissed in terms of section 79(7) {OR 27}; and 
	(k)	such other matters as may be prescribed. 
 
CHAPTER 4 
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS 

Mandatory and discretionary grounds for refusal, and interpretation
PREVIOUSLY CLAUSE 28
Option 1 for subsection (1):
#	References based on Option 2 of clause 45
	32.(1) The information officer of a governmental body— 
	(a)	must refuse a request for access to a record contemplated in section 33(1), 35(1), {36(1)(a) - Option 2}, 36(3), {37(a)}, 39, 40(1) {Option 2}, {42B}; 
	(b)	may refuse a request for access to a record contemplated in section 33(4) {OR 34(1)}, 36(1), 37{(a)) or (b), 38(1), 40(1) {Option 1}, {41(1)}, 42, {42A}, 43, or 44,
unless the provisions of section 45 apply.
# Clauses not subject to cl 45 still to be separated from those that are & adjust in line with options chosen.
Option 2 for subsection (1):
#	Omit subsection (1)

	(2) A provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, must not be construed as—
(a)	limited in its application in any way by any other provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused; and
	(b)	not applying to a particular record by reason that another provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, also applies to that record.

Mandatory protection of privacy {of third party} 
PREVIOUSLY CLAUSE 29
Option 1 for subsection (1):
	33. (1) Subject to subsection (2), the information officer of a governmental body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received [OR a deceased individual]) other than the requester concerned or other person contemplated in section 13(5).
#	Omit “other than the requester concerned or” if subsection (4) or  s16(2) is included and omit “or other person contemplated in section 18(5)” in view of def.  of “requester” 
Option 2 for subsection (1):
	(1)  Subject to subsections (2) and (4), the information officer of a governmental body must refuse a request for access to a record of the body if the record contains personal information the disclosure of which would involve the unreasonable disclosure of personal information about any person, including a deceased individual. #  See amended definition of “personal information” in clause 1
 
	(2) [Subsection (1) does not apply to a] A record may not be refused in terms of subsection (1) insofar as it consists of information— 
(a)	about a person that has[, in accordance with section 46(b),]  consented in terms of section 46(b) {OR in writing} to its disclosure to the requester concerned; # Previously subs (2)(b)
	(aA)	that was given to the governmental body by the person to whom or which it relates and the person was informed by or on behalf of the governmental body, before its being given, that the information belongs to a class of information that would or might be made available to the public; # Omit if general consent in writing provision is used in par (a) above?
(b)	already publically available; # Previously subs (2)(a)
Option 1 for paragraph (c):
	(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)	 incapable of understanding the nature of the request, 
and if giving access would be in the individual’s best interests;
Option 2 for paragraph (c):
	(c)	about an individual’s physical or mental health, or well-being, who is under the care of the requester and who is— 
		(i)	under the age of 18 years; or
		(ii)	incapable of understanding the nature of the request, 
and if giving access would be in the individual’s best interests;  # Include  provisions similar to those in subsections (4) to (6) below to establish “best interests? 
	(d)	about an individual who is deceased and the requester is—
(i)	the individual’s next of kin;  or
(ii)	making the request with the written consent of the individual’s next of kin.; or
Option 1 for par (e):
	(e)	about an individual who is or was an official of a governmental body  and which 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; 
	Option 1 for par (iii):
		(iii)	the classification, salary scale or remuneration and responsibilities of the position held or services performed by the individual;
Option 2 for par (iii):
#	Omit par (iii) - references to salary scale and remuneration OR whole par.
		(iv)	the name of the individual on a record prepared by the individual in the course of employment.
Option 2 for par (e):
#	Omit par (e) and amend the def. of “personal information” by adding at end that it excludes par (i) to (iv), including/excluding par (iii), above
	{(3) Subject to subsections (4) to (6), the provisions of subsections (1) and  (2) do not apply to a request for access by a person, or any person acting on behalf of that person, to a record by reason only of the inclusion in the record of information relating to the first-mentioned person.} # Omit if cl 16(2) is included
#	Subs (4) to (6) below: Alternative for cl 34 (Health of requester) below OR cl 29A above Provisions similar to subsection (5) to (7) below in Australia (Fed): s41(3) to (8); Ireland: s28(3) & (4); Queensland: s44(3) & (4)  & Western Australia: s28 
	(4) The information officer of a governmental body may refuse a request for access to a record of the body about the physical or mental health, or well-being, of the requester or,  if the request has been made on behalf of the person to whom the record relates, that person, and which was provided by a health practitioner in his or her capacity as such if— 
(a)	the disclosure of the record to the requester or, if the request has been made on behalf of the person to whom the record relates, that person, could reasonably be expected {OR would be likely} to cause serious harm to his or her physical or mental health, or well-being; and 
	(b)	the information officer 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)	subject to subsection (5), has been nominated by the requester or, if the request has been made on behalf of the person to whom the record relates, that person; and 
	(c)	that health practitioner so consulted is of the opinion that the serious harm contemplated in paragraph (a) is likely to result {OR use same test as in par (a) above: could reasonably be expected OR would be likely ...}.
	(5) If the requester or the person on whose behalf the request has been made 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. 
(6) If— 
	(a)	access has been given to a record of a governmental body containing information about the requester’s physical or mental health, or well-being, which was provided by, or originated from, a health practitioner; 
	(b)	that access was given without that health practitioner’s knowledge; and 
(c)	that health practitioner can be located by taking all necessary {OR necessary} steps, 
the information officer concerned must notify that health practitioner that access has been so given.
 
# See other options for cl 30 in cl 29A OR cl 33(4) to (6) above:
Health of requester 
PREVIOUSLY CLAUSE 30
OPTION 1:
	34. [(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 for the well-being of individuals.]   # Now in clause 1
	(2) The information officer of a governmental body may refuse a request for access to a record of the body about the [requester’s] physical or mental health, or well-being, of the requester or,  if the request has been made on behalf of the person to whom the record relates, that person, and which was provided by a health practitioner in his or her capacity as such if— 
(a)	the disclosure of the record to that requester or, if the request has been made on behalf of the person to whom the record relates, that person, would be likely to cause serious harm to his or her physical or mental health, or well-being; [and]
	(b)	the information officer 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], if the request has been made on behalf of the person to whom the record relates, that person; and 
	(c)	that health practitioner so consulted is of the opinion that the serious harm contemplated in paragraph (a) is likely to result {OR use same test as in par (a) above: could reasonably be expected OR would be likely ...}.
	(3) If the requester or the person on whose behalf the request has been made 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 governmental body containing information about the requester’s physical or mental health, or well-being, which was provided by[, or originated from,] a health practitioner; 
	(b)	that access was given without that health practitioner’s knowledge; and 
(c)	that health practitioner can be located by taking all necessary {OR reasonable} steps, 
the information officer concerned must notify that health practitioner that access has been so given.
OPTION 2:
	(1) Subject to subsection (3), the information officer of a governmental body may {OR must} refuse a request for access to a record of the body if—
(a)	the record—
(i)	contains information about the physical or mental health, or well-being, of the requester or, if the request has been made on behalf of the person to whom the record relates, that person; and
{(ii)	was provided by a health practitioner;}
{(b)	the disclosure of the record to the requester or, if the request has been made on behalf of the person to whom the record relates, that person, is prohibited by any other law;} and
(c)	a health practitioner who—
{(i)	carries on an occupation of the same kind as the health practitioner who provided the record; and} # Omit if par (a)(ii) is omitted
(ii)	subject to subsection (2), have been nominated by the requester or his or her authorised representative,
after being given access to the record concerned, is of the opinion that the disclosure of the record would be likely {OR could reasonably be expected} to cause {serious} harm to the physical or mental health, or well-being, of that requester or person, as the case may be.
	(2) If the requester or the person on whose behalf the request has been made is—
(a)	under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (1)(c)(ii); or 
(b)	incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. 		
	(3)(a) A record may not be refused in terms of subsection (1) if the health practitioner consulted in terms of subsection (1)(c) is of the opinion that the disclosure of the record could not reasonably be expected {OR would not likely} to cause {serious} harm to the physical or mental health, or well-being of the requester or, where the request has been made on behalf of the person to whom the record relates, that person, if that requester or person, as the case may be, is counselled before, during and after {OR in the prescribed manner with regard to} the disclosure of the record.
	(b) If the health practitioner is of such opinion, the information officer must only give access to the record if the requester proves to the satisfaction of the information officer that {adequate OR appropriate} provision is made for such counselling.
	(c) Before access to the record is so given to the requester, the person responsible for such counselling must be given access to the record.

OPTION 3: OMIT CL 29A, 33(4) TO (6) AND 34

Mandatory protection of {third party} commercial information {of third party}
PREVIOUSLY CLAUSE 31

	35. (1) Subject to subsection (2), the information officer of a governmental body must refuse a request for access to a record of the body if the record contains— 
	(a)	trade secrets of {OR supplied in confidence by} a third party; 
Option 1 for paragraphs (b) and (c):
(b)	financial, commercial, scientific or technical information, other than trade secrets, {supplied in confidence by} of a third party {and treated consistently as confidential by that third party}, the disclosure of which could reasonably be expected [OR would be likely] to cause unreasonable harm to the commercial {or financial} interests of that third party; or 
(c)	information {supplied in confidence by a third party} the disclosure of which would be likely {OR could reasonably be expected}—
(i)	to put that third party at a {OR an unfair} disadvantage in contractual other negotiations; or
(ii)	to [cause it] {unfairly} prejudice that third party in commercial competition; or
Option 2 - combine paragraphs (b) and (c):
	(b)	any other information {having a commercial value} {supplied in confidence by a third party} the disclosure of which could reasonably be expected {OR would be likely}—
(i)	to put a third party at a {OR an unfair} disadvantage in contractual or other negotiations;
(ii)	to {unfairly} prejudice a third party in commercial competition; or 
(iii)	to otherwise cause unreasonable harm to the commercial {or financial} interests of a third party; or
Option 3 - only paragraph (b) and not (c) of Option 1:
	(b)	financial, commercial, scientific or technical information, other than trade secrets, of {OR supplied in confidence by} a third party {and treated consistently as confidential by that third party}, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial {or financial} interests of that third party;
ALTERNATIVE FOR PAR (d) INCLUDED AS CLAUSE 42A BELOW:
Option 1 for (d):
	(d)	the results of original research {having a commercial value} undertaken by a third party {and not yet published} the disclosure of which could reasonably be expected {OR would be likely} to deprive that body or official of the benefit of first publication of those results.
Option 2 for (d):
(d)	information about research {having a commercial value} being or to be carried out by or on behalf of a third party, the disclosure of which would be likely {OR could reasonably be expected} to unreasonably expose—
(i)	the third party;
(ii)	a person that is or will be carrying out the research on behalf of the third party; or
(iii)	the subject-matter of the research,
to {serious} disadvantage.
Option 3 for (d):
(d)	information about the purpose or results of research (including research that is yet to be started or finished) {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on  the third party or a person that is or will be carrying out the research.
	(2) [Subsection (1) does not apply to a] A record may not be refused in terms of subsection (1) insofar as it consists of  information about—
	[(a)	already publicly available;]
(b)	[about] a third party who has[, in accordance with section 46(b),] consented in terms of section ... {OR in writing} 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] the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried out by or on behalf of} a third party and its disclosure would reveal a {serious} public safety or environmental risk.
[(d)	supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a public safety or environmental risk.] 
	(3) For the purposes of subsection (2)(b), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
	[(3) If a request for access to a record contemplated in subsection (2)(d) is granted, the information officer must at the same time as access to the record is given, direct the requester to the source of the original testing or other investigation to enable the requester to obtain an explanation of the methods used in conducting the test or other investigation.]
	{(4) Subsection (1) does not apply to a request for access by a person, or a person acting on behalf of that person to a record by reason only of the inclusion in the record of information contemplated in subsection (1) that relates to that person.}  # Omit since  unnecessary in view of par (a) of def. of “third party” in cl 1?

Records supplied in confidence {OR Confidential records} 
PREVIOUSLY CLAUSE 32
Option 1 for subsections (1) and (2):
	36. (1) Subject to subsection (2), the information officer of a governmental body may refuse a request for access to a record of that body containing information supplied in confidence to any governmental body by a third party if— 
	(a)	the disclosure of the record would be likely to prejudice the future supply of similar records, or records from the same source; 
(b)	the last-mentioned governmental body has no right to demand, or that third party has no obligation to supply, the record; and 
(c)	it is in the public interest that similar records, or records from the same source, should continue to be supplied. 
	(2) Subsection (1) does not apply to a record insofar as it consists of information— 
(a)	[if it has been] supplied to the governmental body concerned for the purpose of— 
		(i)	securing some advantage, grant, permit, contract or concession from any governmental body; or 
		(ii)	persuading any governmental body not to take any action against the person that supplied the record or on whose or which behalf the record was supplied; 
(b)	[insofar as it consists of information] independently obtained by the body or already publicly available; or 
(c)	[if] the third party concerned has consented in writing to its disclosure to the requester concerned. 
Option 2 for subsections (1) and (2):
	(1)  The information officer of a governmental body may refuse a request for access to a record of a body if—
	(a)	the disclosure of the record would found {OR constitute} an action for breach of a duty of confidence in terms of an agreement and which is owed to a third party; or
	(b)	the record consists of information that was supplied in confidence by a third party—
(i)	the disclosure of which could reasonably be expected {OR would be likely} to prejudice the future supply of similar information, or information from the same source; and
		(ii)	it is in the public interest that similar information, or information from the same source, should continue to be supplied.
Option 3 for subsections (1) and (2):
	(1)  The information officer of a governmental body—
	(a)	must  refuse a request for access to a record of a body if the disclosure of the record would found {OR constitute} an action for breach of a duty of confidence in terms of an agreement and which is owed to a third party; or
	(b)	may refuse a request for access to a record of a body if the record consists of information that was supplied in confidence by a third party—
(i)	the disclosure of which could reasonably be expected {OR would be likely} to prejudice the future supply of similar information, or information from the same source; and
		(ii)	it is in the public interest that similar information, or information from the same source, should continue to be supplied.
	[(3) The information officer of a governmental body may refuse a request for access to a record of the body if the record— 
	(a)	is held by a governmental body for the purpose of enforcing legislation imposing a tax, duty or levy; and 
	(b)	was supplied in confidence to a governmental body by a third party or another governmental body.] 

SUBCLAUSES (3) & (4) BELOW in CL 36 or in other existing section or new section (eg “Tax related records”)?
Option 1:
	(3) Subject to subsection (4), the information officer of a governmental body must refuse a request for access to a record of the body if it contains information which was obtained or is held by the body for the purpose of enforcing legislation imposing taxes, duties, levies and additional tax, including penalties and interest in connection with such moneys.
Option 2:
	(3) Subject to subsection (4), the information officer of a governmental body must refuse a request for access to a record of the body if it contains information which was obtained or is held by the body for the purpose of enforcing legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No.  34 of 1997).
Note:	“‘revenue’ is defined in the South African Revenue Service Act, 1997, as “income derived from taxes, duties, levies, fees, charges, additional tax and any other moneys imposed in terms of legislation, including penalties and interest in connection with such moneys”.
Option 3:
	(3) Subject to subsection (4), the information officer of a governmental body must refuse a request for access to a record of the body if it reveals information that was obtained on a tax return or for the purpose of determining tax liability or collecting tax.
Option 4:
	(3) Subject to subsection (4), the information officer of a governmental body must refuse a request for access to a record of the body if it reveals information obtained or held for the purpose of enforcing legislation imposing taxes, levies or duties as contemplated in section 77(1) of the Constitution.
Option 5:
	(3) Subject to subsection (4), the information officer of a governmental body must refuse a request for access to a record of the body if it consists of information obtained or held for the purpose of enforcing legislation imposing income tax, value-added tax, general sales tax, rates on property or customs duties.
Option 6:
	(3) Subject to subsection (4), the information officer of a governmental body must refuse a request for access to a record of the body if its disclosure could reasonably be expected to prejudice the assessment or collection of  “any tax or duty or of an imposition of a similar nature” {OR income tax, value-added tax, general sales tax, rates on property or customs duties}.
	(4) A record may not refused in terms of subsection (3) insofar as it consists of information about the requester or the person on whose behalf the request is made.

{Mandatory protection of} (S)afety of individuals, and {protection of} security of structures and systems {OR property}
PREVIOUSLY CLAUSE 33
Option 1:
	37. The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely {OR could reasonably be expected}— 
(a)	to endanger the life or physical safety of an {identifiable} 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.
Option 2:
	The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to— 
	(a)	endanger the life or physical safety of an {identifiable} individual; or 
	(b)	prejudice or impair the security of—
		(i)	a building, structure or system, including, but not limited to, a computer or communication system;
(ii)	a mode of transport; or
(iii)	any other property; or	
	(c)	prejudice or impair methods, systems, plans or procedures for the protection of—
		(i)	an individual in accordance with a witness protection scheme;
(ii)	the safety of the public, or any part of the public; or
(iii)	the security of  property {referred to in paragraph (b)}.

Option 3:
	The information officer of a governmental body— 
(a)	must refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to endanger the life or physical safety of an [identifiable] individual; or 
(b)	may refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to prejudice or impair the security of—
(i)	a building, structure or system, including, but not limited to, a computer or communication system;
(ii)	a mode of transport; or
(iii)	any other property; or
	(c)	prejudice or impair methods, systems, plans or procedures for the protection of—
		(i)	an individual in accordance with a witness protection scheme;
(ii)	the safety of the public, or any part of the public; or
(iii)	the security of  property {referred to in paragraph (b)}.

Law enforcement 	
PREVIOUSLY CLAUSE 34

	38. (1) The information officer of a governmental body may refuse a request for access to a record of the body if— 
	(a)	the record contains methods, techniques, procedures or guidelines for— 
		(i)	the {lawful} prevention, detection, suppression {OR curtailment} or investigation of [offences] a contravention or possible contravention of the law; or  
		(ii)	the prosecution of alleged offenders, 
and the disclosure of those methods, techniques, procedures or guidelines would be likely {OR could reasonably be expected} to prejudice the effectiveness of those methods, techniques, procedures or guidelines or lead to the circumvention of the law or facilitate the commission of an offence; 
	(b)	the prosecution of an alleged offender is being prepared or about to commence or pending and the disclosure of the record would be likely {OR could reasonably be expected}— 
		(i)	to impede that prosecution; or 
		(ii)	to result in a miscarriage of justice in that prosecution;
	(c)	the disclosure of the record would be likely {OR could reasonably be expected}— 
		(i)	to prejudice the investigation of [any offence or possible offence] a contravention or possible contravention of the law which is about to commence or is in progress or, if it has been suspended or terminated, is likely to be resumed; 
		(ii)	to reveal, or enable a person to ascertain, the identity of a confidential source of information in [respect of a law enforcement matter] relation to the enforcement or administration of the law; 
		(iii)	to result in the intimidation or coercion of a witness, or a person who might be or has been called as a witness, in criminal proceedings or other proceedings to enforce the law[, or to endanger the life or physical safety of that witness or person]; # Omitted because already in cl 37
		(iv)	to [result in] facilitate the commission of an offence {OR a contravention of the law};
#	Note - par (iv):
(1) Canada: 16(2): ... information that could reasonably be expected to facilitate the commission of an offence, including, without limiting the generality of the foregoing, any such information—
	(a)	on criminal methods or techniques;
	(b)	that is technical information relating to weapons or potential weapons; or
	(c)	on the vulnerability of a particular building or other structures or systems ....”.
(2) Ireland: 23(1)(c): “ could ... reasonably be expected to ... facilitate the commission of an offence .”.
(3) Ontario: 14(1)(l): “could reasonably be expected to ... facilitate the commission of an unlawful act or hamper the control of crime.”
	
		(v)	subject to subsection (2), to facilitate escape from lawful detention; or
# Note - par (v):
(1) Ontario 14(1)(j): “... facilitate the escape from custody of a person who is under lawful detention;” - discretionary exemption
(2) Queensland  42(1)(i): “... facilitate a person’s escape from lawful custody; or ...”;  New South Wales Sch 1: par 4(1)(i); South Australia Sch 1: par 4(1)(i); Western Australia Sch 1: par 5(1)(h)
Proposal: omit par (v) and insert “subject to subsection (2) in par (iv) if par (iv) is retained (as amended) since “escape from lawful detention” would also be “the commission of offence {OR a contravention of the law}”.

Option 1 for par (vi):
		(vi)	to deprive {OR prejudice OR prejudice or impair} a person of a right to a fair trial or an impartial adjudication; or 
Option 2 for par (vi):
# Insert par (vi) in separate subclause making it a mandatory exemption, but see note hereafter.
#	Note on par (vi): Countries using mandatory & discretionary exemptions: Canada (no such exemption); and in Ireland (prejudice or impair) & in Ontario (“deprive”) not mandatory exemption.
Proposal: Retain as discretionary exemption but use “prejudice” or “prejudice or impair” instead of “deprive”. 

[(d)	the record contains arrangements for the protection of an individual in accordance with a witness protection scheme.]   # Now in 37(c)(i) - Options 2 & 3
#	Note: proposed (1A) and (1B) below should be read with clauses 11 & 38(1)(b) above
Option 1 for subsection (1A) - if option 1 of clause 11 is adopted:
	(1A)  The information officer of a governmental body must refuse a request for access to a record of the body
	Option 1:
by an accused, or any person acting on his or behalf, for the purpose of bail proceedings, if the record is contained in, or forms part of, a police docket, including any  record or which is held by any police official charged with the investigation in question, unless the prosecutor concerned otherwise directs. 
	Option 2
	if access to that record may be denied {OR prohibited} in terms of section 60(14) of the Criminal Procedure Act, 1977 (Act No.  51 of 1977).    {ie “Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docket, including any information, record or document which is held by any police official charged with the investigation in question, unless the prosecutor otherwise directs: Provided that this subsection shall not be construed as denying an accused access to any information, record or document to which he or she may be entitled for purposes of his or her trial.”}
Option 2 for subsection (1A) - if - if option 2 of clause 11 is adopted:	
	(1A)  The information officer of a governmental body—
(a)	must refuse a request for access to a record of the body
		Option 1:
by an accused, or any person acting on his or behalf, for the purpose of bail proceedings, if the record is contained in, or forms part of, a police docket, including any  record or which is held by any police official charged with the investigation in question, unless the prosecutor concerned otherwise directs;
		Option 2
		if access to that record may be denied {OR prohibited} in terms of section 60(14) of the Criminal Procedure Act, 1977 (Act No.  51 of 1977); 
(b)	may, after the commencement of criminal proceedings, refuse a request for access to a record to a record of the body if—
	(a)	the information officer has reason to believe to that the record is requested for the purpose of such proceedings; and
(b)	the production of that record for that purpose is regulated by any other law.

	(1B) A request for access by an accused, or any person  acting on his or her behalf,  may not be refused in terms of subsection (1) or (1A){(a)} if—
	(a)	the request is made before the commencement of criminal proceedings concerned; and
(b)	the accused is {,in terms of any other law,} entitled to that record for the purpose of his or her trail .

	(2) A record may not be refused in terms of subsection (1)(c)(v) {OR (iv)} [does not apply to a record] insofar as it consists of information about the general conditions of detention of persons in custody. 
	(3)(a) If a request for access to a record of a governmental body may be refused in terms of subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in any provision of subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record. 
	(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3), must— 
	(i)	state that fact; 
	(ii)	identify the provision of subsection (1) in terms of which access would have been refused if the record had existed; 
(iii)	state [the findings and the] adequate reasons for the refusal, as required by section 25(3), in so far as they can be given without causing the harm contemplated in any provision of subsection (1); and 
{(iv)	state that the requester concerned may lodge an internal appeal with the [head of the governmental body concerned] relevant authority  {OR lodge an application with a court} against the refusal as required by section 25(3).}

Mandatory protection of  records  privileged from production in legal proceedings 
PREVIOUSLY CLAUSE 35
	39. The information officer of a governmental body [may] must 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]. 

Republic’s defence and security[, including intelligence matters] 	PREVIOUSLY CLAUSE 36
OPTION 1:
	40. (1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely {OR could reasonably be expected} [substantially] to {substantially} harm the defence or security of the Republic by— 
	(a)	[frustrating] jeopardising the effectiveness of any measure for the prevention, detection or suppression {OR curtailment} of— 
		(i)	aggression against the Republic; 
		(ii)	sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic; 
		(iii)	an activity aimed at changing the constitutional order of the Republic by the use of force or violence {or coercion}; or 
		(iv)	a foreign or hostile intelligence operation; 
(b)	jeopardising the effectiveness of a governmental body, branch of that body or person responsible for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv) by disclosing its or his or her capabilities, deployment or performance; 
(c)	jeopardising the effectiveness of— 
(i)	arms; or 
		(ii)	other equipment, including, but not limited to, communication or cryptographic systems, 
used, or intended to be used, or being developed, designed, produced or investigated for preventing, detecting or suppressing an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv) by disclosing their or its capabilities, quantity, deployment or performance; 
(d)	jeopardising the effectiveness of methods or equipment for collecting, assessing or handling information used for the prevention, detection or suppression {OR curtailment} of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv); or 
(e)	disclosing the identity of a confidential source of information used for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv). 
	(2)(a) If a request for access to a record of a governmental body may be refused in terms of subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in any provision of subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record. 
	(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3), must— 
	(i)	state that fact; 
	(ii)	identify the provision of subsection (1) in terms of which access would have been refused if the record had existed; 
	(iii)	state [the findings and the] adequate reasons for the refusal, as required by section 25(3), in so far as they can be given without causing the harm contemplated in any provision of subsection (1); and 
	{(iv)	state that the requester may lodge an internal appeal with the [head of the governmental body concerned] relevant authority against the refusal as required by section 25(3)}. 

OPTION 2 - CERTIFICATE SYSTEMS and COMBINING CLAUSES 40 AND 41:

Republic’s defence, security and international relations

	40. (1) The information officer of a governmental body must refuse a request for access to a record of the body which is subject to a certificate issued in terms of subsection (2).
Option 1 for subsections (2) &  (3):
	(2)   A Minister {OR functionary} designated by the President {for this purpose} may, for the purposes of subsection (1), sign {OR issue} a certificate if—
	(a)	the disclosure of that record could reasonably be expected {OR would be likely} to cause harm {OR damage OR prejudice} to—
(i)	the defence of the Republic, ;
(ii)	the security of the Republic; or
(iii)	the international relations of the Republic {OR the conduct of relations by the Republic with another state or an international organisation}; or
	(b)	the disclosure of that record would divulge information—
(i)	supplied in confidence by or on behalf of another state or an international organisation; or
Option 1 for (ii):
(ii)	supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement {OR international agreement} with that state or organisation which requires the information to be held in confidence;
Option 2 for (ii):	
(ii)	required to be held in confidence by an international agreement contemplated in section 231(4) of the Constitution.
# See def.  of “subversive or hostile activities”  in clause 1
	(3) A record contemplated in subsection (2), without limiting the generality of that subsection, include a record containing information—
(a)	relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;
(b)	relating to the quantity, characteristics, capabilities or deployment of—
(i)	weapons or any other equipment used for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;  or
(ii)	anything being designed, developed, produced or considered for use as weapons or such other equipment;
(c)	relating to the characteristics, capabilities, performance, potential, deployment or functions of—
(i)	any military force, unit or personnel; or
(ii)	any body or person responsible for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;
(d)	held for the purpose of intelligence relating to—
(i)	the defence of the Republic;
(ii)	the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or
(iii)	another state or an international organisation used by or on behalf of the  Republic in the process of deliberation and consultation of in the conduct of international affairs;
(e)	on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to paragraph (d) and on confidential and other sources of such information;
(f)	on the positions adopted or to be adopted by the Republic, another state or an international organisation for the purpose of present or future international negotiations;
(g)	that constitutes diplomatic correspondence exchanged with another state or an international organisation or official correspondence exchanged with diplomatic missions or consular posts of the Republic. 
Option 2 for subsections (2) and (3) in one subsection:
	(2) Any Minister (OR functionary} {designated by the President for this purpose} may, for the purpose of subsection (1), sign {OR issue} a certificate if—
	(a)	the disclosure of that record—
(i)	could reasonably be expected {OR would be likely} to cause harm {OR damage OR prejudice} to—
	(aa)	the defence of the Republic;
	(bb)	the security of the Republic; or
	(cc)	 the international relations of the Republic {OR the conduct of relations by the Republic with another state or an international organisation}; or
		(ii)	would divulge information—
	(aa)	supplied in confidence by or on behalf of another state or an international organisation; or
Option 1 for (bb):
	(bb)	supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement {OR international agreement} with that state or organisation which requires the information to be held in confidence;
Option 2 for (bb):	
	(bb)	required to be held in confidence by an international agreement contemplated in section 231(4) of the Constitution; and
(b)	that Minister (OR functionary} is satisfied that a record of the governmental body contains information—
	(i)	relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;
	(ii)	relating to the quantity, characteristics, capabilities or deployment of—
	(aa)	weapons or any other equipment used for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;  or
	(bb)	anything being designed, developed, produced or considered for use as weapons or such other equipment;
	(iii)	relating to the characteristics, capabilities, performance, potential, deployment or functions of—
	(aa)	any military force, unit or personnel; or
	(bb)	any body or person responsible for the detection, prevention or suppression {OR curtailment} of subversive or hostile activities;
	(iv)	held for the purpose of intelligence relating to—
	(aa)	the defence of the Republic;
	(bb)	the detection, prevention or suppression {OR curtailment} of subversive or hostile activities; or
	(cc)	another state or an international organisation used by or on behalf of the  Republic in the process of deliberation and consultation of in the conduct of international affairs;
	(v)	on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to subparagraph (iv) and on confidential and other sources of such information;
	(vi)	on the positions adopted or to be adopted by the Republic, another state or an international organisation for the purpose of present or future international negotiations;
	(vii)	that constitutes diplomatic correspondence exchanged with another state or an international organisation or official correspondence exchanged with diplomatic missions or consular posts of the Republic.
	(4) A certificate referred to in subsection (2) must state into which of the categories  contemplated in section (2)(a) or (b) {OR (2)(b) - in case of option 2 for subsection (2)} the record in question falls.
	(5) Subject to the operation of {Chapter 2 of} Part 4, a certificate signed {OR issued} in terms of subsection (2), so long as it remains in force, establishes that the record is a record that must be refused in terms of subsection (1).
	(6) A certificate signed {OR issued} in terms of subsection (2)—
(a)	remains in force for the prescribed period{, which period may not be longer than 20 {OR 15} years since its date it was signed {OR issued}; and
(b)	may be revoke before the end of such period in the prescribed manner. 
	(7) If the Minister {designated by the President} is satisfied that information as to the existence or non-existence of a record as described in a request for access would, if contained in a record of a governmental body, cause the last-mentioned record to be a record in respect of which a certificate would have been signed {OR issued} in terms subsection (2), he or she may sign {OR issued} a certificate to that effect.
	(8)(a) If a certificate in terms of subsection (7) has been signed {OR issued} in respect of a record as described in a request for access, the information officer concerned must refuse to confirm or deny the existence or non-existence of the record. 
	(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3), must— 
	(i)	state that fact; 
	(ii)	identify the provision in terms of which access would have been refused if the record had existed; 
(iii)	state adequate reasons for the refusal, as required by section 25(3); and 
{(iv)	state that the requester concerned may lodge an internal appeal with the relevant authority {OR an application with a court} against the refusal as required by section 25(3).}

# Copy of certificate to be furnished to requester?

OPTION 1 FOR CLAUSE 41:
International relations
PREVIOUSLY CLAUSE 37

	41. (1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would {OR could reasonably} be— 
	(a)	in contravention of an obligation imposed on the Republic by—
(i)	an international agreement contemplated in section 231(4); or
(ii)	customary international law contemplated in section 232 of the Constitution; or 
Option 1 for (b):
(b)	subject to subsection (2), likely {OR expected} to cause {substantial} harm {OR damage OR prejudice} to the capacity of the Republic to maintain or conduct relations {in the best interests of the Republic} with another state or an international organisation. 
Option 2 for (b):
(b)	subject to subsection (2), likely {OR expected} to cause {substantial} harm {OR damage OR prejudice} the international relations of the Republic.
	(2) A record may not be refused in terms of subsection (1)(b) [does not apply to a record] if it came into existence more than 20 {OR 15} years before the request.

OPTION 2 FOR CLAUSE 41 - SEE OPTION 2 FOR CLAUSE 40

Economic interests of Republic and commercial activities of governmental bodies 
PREVIOUSLY CLAUSE 38
Option 1 for subsection (1):
	42.(1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely {OR could reasonably be expected} [substantially] to {substantially} jeopardise the financial welfare of the Republic or any part thereof or the ability of the government to manage the economy of the Republic or any part thereof effectively in the best interests of the Republic by prematurely disclosing— 
	(a)	a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment; 
	(b)	a contemplated change in or decision not to change— 
		(i)	credit or interest rates; 
		(ii)	customs or excise duties, taxes or any other source of revenue; 
		(iii)	the regulation or supervision of financial institutions; 
		(iv)	government borrowing; or 
		(v)	the regulation of prices of goods or services, rents or wages, salaries or other incomes; or 
	(c)	a contemplated— 
		(i)	sale or acquisition of immovable or movable property; or 
		(ii)	international trade agreement.
	(2) Subject to subsection (3), the information officer of a governmental body may refuse a request for access to a record of the body if the record contains— 
Option 2 for subsection (1) - included in existing subsection (2) as par (Aa) and new subsection (2A):
	(Aa)	information the disclosure of which would be likely {OR could reasonably be expected}—
(i)	to {substantially} jeopardise the financial welfare of the Republic {or any province} or the ability of the government to manage the economy of the Republic {or any province} effectively in the best interests of the Republic; or
(ii)	to result in an undue benefit to any person;  # As to “substantially” above see Canada: s18(d) - “materially”; New Zealand: s6(d) {relates to  premature disclosure of economic financial policy} - “seriously”
	(a)	trade secrets of the state or a governmental body; 
Option 1 for paragraphs (b) and (c):
	(b)	financial, commercial, scientific or technical information, other than trade secrets, [held by a governmental body for the purpose of conducting a commercial activity which it is authorised by law to conduct and which it does conduct or is about to conduct,] the disclosure of which could reasonably be expected {OR would be likely} to cause harm to the commercial {or financial} interests of {the state or} a governmental body;
	(c)	information the disclosure of which would be likely {OR could reasonably be expected}—
(i)	to put a governmental body at a {OR an unfair} disadvantage in contractual or other negotiations; or
(ii)	to [cause it] {unfairly} prejudice a governmental body in commercial competition; 
Option 2 - combine paragraphs (b) and (c):
	(b)	any other information {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely}—
(i)	to put a governmental body at a {OR an unfair} disadvantage in contractual or other negotiations;
(ii)	to {unfairly} prejudice a governmental body in commercial competition; or 
(iii)	to otherwise cause unreasonable harm to the commercial {or financial} interests of a governmental body; or
Option 3 - combine paragraphs (b) and (c):
	(b)	financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected {OR would be likely} to cause harm to the commercial {or financial} interests of a governmental body;
ALTERNATIVE FOR PAR (d) INCLUDED AS CLAUSE 42A BELOW:
Option 1 for paragraph (d):
	(d)	the results of original research {having a commercial value} undertaken by an official of a governmental body {and not yet published} the disclosure of which could reasonably be expected {OR would be likely } to deprive that governmental body or official of the benefit of first publication of those results; or
Option 2 for (d):
(d)	information about research {having a commercial value} being or to be carried out by or on behalf of a governmental body, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose—
(i)	a governmental body;
(ii)	a person that is or will be carrying out the research on behalf of a governmental body; or
(iii)	the subject-matter of the research,
to {serious} disadvantage; or
Option 3 for (d):
(d)	information about the purpose or results of research (including research that is yet to be started or finished) {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on a governmental body or a person that is or will be carrying out the research; or
	(e)	a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the state or a governmental body, except in so far as it is required to give access to a record to which access is granted in terms of this Act. # Could not find similar provision as par (e)  in available legislation of other countries
	(2A) The information referred to in subsection (1)(Aa) includes, without limiting the generality of that subsection, information about— 
	(a)	a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment; 
	(b)	a contemplated change in or decision not to change— 
		(i)	credit or interest rates; 
	(ii)	customs or excise duties, taxes or any other source of revenue; 
		(iii)	the regulation or supervision of financial institutions; 
		(iv)	government borrowing; or 
		(v)	the regulation of prices of goods or services, rents or wages, salaries or other incomes; or 
	(c)	a contemplated— 
		(i)	sale or acquisition of immovable or movable property; or 
		(ii)	international trade agreement. 
Option 1 for (2B):
	(2B) The information referred to in subsection (1)(b) {OR (c)} includes, without limiting the generality of that subsection, information about an agreement,  or contemplated agreement, to transfer  any interest in or right to {a substantial number of} shares in the capital of a governmental body to any person which is not a governmental body.
Option 2 for (2B):
 # Omit if option 2 of def.  of “governmental body” is adopted and/or in view of (2A)(c)(i) above.
	(3) A record may not be refused in terms of subsection (2) [does not apply to a record] insofar as it consists of  information— 
	[(a)	already publicly available;] 
	(b)	about or owned by a governmental body {,other than the governmental to which the request is made,} which has consented in writing {OR in the prescribed manner} to its disclosure to the requester concerned; 
	(c)	about [the safety of goods or services supplied by a governmental body 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]  the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried out by or on behalf of} a governmental body and its disclosure would reveal a {serious} public safety or environmental risk.
	[(d)	supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a public safety or environmental risk.]
	(3A) For the purposes of subsection (3)(c), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
	(4) If a request for access to a record contemplated in subsection (3)[(d)](c) is granted and the testing or other investigation was carried out by or on behalf of the governmental body from which the record is requested, the information officer must at the same time as access to the record is given, [direct] provide the requester [to the source of original test or other investigation to enable the requester to obtain an] with a written explanation of the methods used in conducting the testing or other investigation. 

Records about research							NEW CLAUSE
#	If cl 42A is included omit clauses 35(1)(d) and 42(2)(d) 
	42A.  The information officer of a governmental body may refuse a request for access to a record of the body if the record contains
Option 1
the results of original research undertaken by a governmental body or third party {and not yet published} the disclosure of which could reasonably be expected {OR would be likely} to deprive that governmental body, third party or the person that undertook the research of the benefit of first publication of those results.
Option 2
information about research being or to be carried out by or on behalf of a governmental body, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose—
(a)	a governmental body or third party;
(b)	a person that is or will be carrying out the research on behalf of a governmental body or third party; or
(b)	the subject-matter of the research,
to {serious} disadvantage.
Option 3:
information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on a governmental body or a third party or a person that is or will be carrying out the research.

OPTION 1 - if Cabinet is not excluded from the application of the Bill as in clause 6(a)
Cabinet’s records								NEW CLAUSE

	42B.(1) The information officer of a governmental body must refuse a request for access to a record if—
(a)	it had been submitted to Cabinet;
	(b)	it was prepared for submission to Cabinet and is proposed, or has at any time been proposed, by a Cabinet member to be submitted to Cabinet; or
(c)	it was prepared for briefing, or the use of, a Cabinet member or an official of a governmental body in relation to a matter—
(i)	submitted to Cabinet; or
	(ii)	that is proposed, or has at any time been proposed, to be submitted to Cabinet by a Cabinet member;
(d)	it is, or forms part of, a record of Cabinet, including a list {OR register} of matters submitted to Cabinet;
	(e)	its disclosure would involve the disclosure of an account of a consultation, discussion or deliberation by Cabinet that has occurred, including, but not limited to, minutes of a meeting, for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; or
(f)	it is a preliminary, working or other draft of a matter referred to in paragraphs (a) to (e).
	(2) A record may not be refused in terms of subsection (1)—
(a)	if it was officially published by decision of Cabinet;
	(b)	if the Cabinet has consented to its disclosure {to the requester concerned}; or
(c)	in so far as it consists of factual material unless—
(i)	the disclosure of that record would involve the disclosure of matter contemplated in subsection (1)(e); and
(ii)	the fact of that matter has not been officially published by decision of Cabinet; or
(d)	if the record came into existence more than 20 {OR 15} years before the request concerned.
	(3) For the purposes of this Act, a certificate signed by the Minister designated by the President stating that a record—
(a)	is a record contemplated in subsection (1); and
(b)	is not a record contemplated in subsection (2),
establishes, subject to the operation of {Chapter 2 of} Part 4, that it is a record contemplated in subsection (1) and is not a record contemplated in subsection (2).
	(4) For the purposes of this Act, a certificate signed by the Minister designated by the President stating that a record would, if it existed—
(a)	be a record contemplated in subsection (1); and
(b)	not be a record contemplated in subsection (2),
establishes, subject to the operation of {Chapter 2 of} Part 4, that, if that record exists, it is a record contemplated in subsection (1) and is not a record contemplated in subsection (2)
	(5 A certificate in terms of subsection (3) or (4)—
(a)	remains in force for the prescribed period{, which period may not be longer period than 20 {OR 15} years since its date it was signed {OR issued}; and
(b)	may be revoked before the end of such period in the prescribed manner.
	(6)(a) If a certificate in terms of subsection (3) or (4) has been signed in respect of a record as described in a request for access, the information officer concerned must refuse to confirm or deny the existence or non-existence of the record. 
	(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3), must— 
	(i)	state that fact; 
	(ii)	identify the provision in terms of which access would have been refused if the record had existed; 
(iii)	state adequate reasons for the refusal, as required by section 25(3); and 
{(iv)	state that the requester concerned may lodge an internal appeal with the relevant authority against the refusal, as required by section 25(3).}
	(6) In this section “Cabinet” includes a Cabinet committee or subcommittee.
#	Exemption subject to “public interest” override?
#	Similar exemption for Executive Council of a province?  See Australia (Fed): s35; Queensland: s37; Western Australia: Sch 1: par 1; Ontario: s12

OPTION 2 - if Cabinet is excluded from the application of the Bill as in clause 6
	#	Omit clause 42B.

Operations of governmental bodies 
PREVIOUSLY CLAUSE 39
#	Old 39(1) redrafted to enhance readability & def. of “evaluative material” in old 39(2) inserted in cl 1
	43. (1) Subject to subsections (3) and (4), the information officer of a governmental body may refuse a request for access to a record of the body—
(a)	if the record contains—
	(i)	an opinion, advice or recommendation obtained or prepared; or
	(ii)	an account of a consultation, discussion or deliberation that has occurred, including, but not limited to, minutes of a meeting,
for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; and
(b)	if—
(i)	the knowledge that disclosure of the record were possible could reasonably be expected {OR would be likely} to frustrate the deliberative process in a governmental body or between governmental bodies by inhibiting the candid— 
	(aa)	communication of that opinion, advice or recommendation; or 
	(bb)	conduct of that consultation, discussion or deliberation; or 
		(ii)	the disclosure of the record would {OR could}, by premature disclosure of a policy or contemplated policy, be likely {OR reasonably be expected} [substantially] to {substantially} frustrate the success of that policy.
	(2)  Subject to subsection (3), the information officer of a governmental body may refuse a request for access to a record of the body if—
(a)	the disclosure of the record would be likely {OR could reasonably be expected} to jeopardise the effectiveness of a testing, examining or auditing procedure or method used by a governmental body; 
(b)	the record contains evaluative material, whether or not the person who supplied it is identified in the record, and the disclosure of the material would breach an express or implied promise which was— 
		(i)	made to the person who supplied the material; and 
		(ii)	to the effect that the material or the identity of the person who supplied it, or both, would be held in confidence; or 
	(c)	the record contains a preliminary, working or other draft [or note] of an official of a governmental body.
	(3) A record may not be refused in terms of  subsections (1) or (2) [does not apply to a record] insofar as it consists of an account of, or a statement of reasons for, a decision taken in the exercise of a power or performance of a duty conferred or imposed by law.   # Link with Administrative Justice Bill?
	(4) A record may not be refused in terms of subsection (1) [(a) does not apply to a record]— 
	(a)	if the record came into existence more than 15 {OR 20} years before the request concerned; or 
	(b)	insofar as it consists of— 
		(i)	factual material, including, but not limited to, any statistical data; 
(ii)	the analysis, interpretation or evaluation of, or any projection based on, factual material referred to in subparagraph (i); 
		(iii)	a report on the performance or efficiency of a governmental body or any part thereof, or any programme, project or other activity under its supervision; 
		(iv)	a report of a scientific or technical expert; or 
		(v)	the results of[, or report on,] any {product or environmental} testing or other investigation [regarding] supplied by {AND/OR carried out by or on behalf of} a governmental body and the disclosure of the record would reveal a [serious] public safety or environmental risk.
	(4A) For the purposes of subsection (4)(b)(v), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
	(5) If a request for access to a record contemplated in subsection (4)(b)(v) is granted and the testing or other investigation was carried out by or on behalf of the governmental body from which the record is requested, the information officer must at the same time as access to the record is given, [direct] provide the requester [to the source of the original test or other investigation to enable the requester to obtain an] with a written explanation of the methods used in conducting the testing or other investigation.

Frivolous or vexatious requests or diversion of resources 	
PREVIOUSLY CLAUSE 40

	44. The information officer of a governmental body may refuse a request for access to a record of the body if—
	(a)	the request is manifestly frivolous or vexatious; or
	(b)	the work involved in processing the request would substantially and unreasonably divert the resources of the governmental body.

#  SEE CLAUSE 23 PROPOSED TO REPLACE OLD CL 41 BELOW
[Records that cannot be found or do not exist 
	41. (1) The information officer of a governmental 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 an information officer refuses a request for access to a record in terms of subsection (1), he or she must, in the notice referred to in section 19(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 information officer.]

#	SEE CLAUSE 24 PROPOSED TO REPLACE OLD 42(1)(a), (d) & (e) AND CLAUSE 14 PROPOSED TO REPLACE 42(1)(b) & (c), BELOW
[Published records and records to be published 
#	Australia (Fed): s21; Ireland: s11; Queensland: s 31; Western Australia: s25.: Subsection (1)(a), (d) & (e) below not drafted as an “exemption”, but referred to as “deferral” of access- see s18B as alternative for subsection (1)(a), (d) & (e) & related subsections.  Draft UK Bill: cl 17 - an exemption as below
	42. (1) Subject to this section, the information officer of a governmental body may refuse a request for access to a record of the body if— 
	(a)	the record is to be published within [60] 90 days after the receipt or transfer 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] is reasonably accessible to the requester concerned at a fee no greater than would be charged for access in terms of this Act;
	(c)	the record is available for purchase by the public in accordance with arrangements made by or on behalf of a governmental body at a fee no greater than would be charged for access in terms of this Act;
(d)	the publication of the record is required by law, within 90 days after the receipt or transfer of the request; or 
(e)	 the record has been prepared for submission to Parliament [OR any legislature] unless a period of 90 days after such preparation has expired and the record has not been so submitted. 
	(2) The information officer concerned must, in the notice referred to in section 19(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) and if such information is ordinarily available to the governmental body concerned, identify the title and publisher of the record[and the library concerned nearest to the requester concerned; 
	(c)	subsection (1)(c) and if such information is ordinarily available to the governmental body concerned, identify the title and publisher of the record and state where it can be purchased; or ]
(d)	subsection (1)(e), state the date on which the record is to be submitted to Parliament [OR the legislature concerned]. 
	(3) If an information officer is considering to refuse a request for access to a record in terms of subsection (1)(a), (d) or (e), 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 information officer why the record is required before publication or submission to Parliament [OR the legislature concerned]. 
Option 1 for subsection (4):
	(4) If notice is given to a requester in terms of subsection (3), the information officer 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 or submitted to Parliament [OR the legislature concerned].
Option 2 for subsection (4):
	(4) If a requester makes representations pursuant to a notice given in terms of subsection (3)(b), the information officer must, after due consideration of that representations, grant the request for access only if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the record is deferred until the record is published or submitted to Parliament [OR the legislature concerned]
	(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] 90 days after receipt or transfer 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.] 

# CLAUSES 10 & 14 PROPOSED TO REPLACE OLD 43 BELOW
[Records already open to public 
	43. The information officer of a governmental 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 request fee and access fee payable in terms of this Act.]

OPTION 1 (DP’s proposal):
Necessity of harm								NEW CLAUSE
	44A.  No provision in this Chapter may be construed to require or permit the information officer of a governmental body to refuse a request for access to a record of the governmental body if the harm that the provision is intended to guard against would not occur if the request is granted.
OPTION 2:
#	Omit clause 44A.

Mandatory disclosure in public interest
PREVIOUSLY CLAUSE 44
OPTION 1:
	45. (1) Despite any other provision of this Act, but subject to Chapter 3 of this Part, the information officer of a governmental body must grant a request for access to a record contemplated in section 29(1), 30(2), 31(1), 33(a), 34(1)(c)(ii), (iii) or (vi) or (d) or 35 if— 
	(a)	disclosure of the record would reveal evidence of substantial— 
(iA)	infringement of any right in the Bill of Rights in Chapter 2 of the Constitution;
		(i)	abuse of authority, illegality or neglect in the exercise of a power or performance of a duty of an official of a governmental body; 
		(ii)	injustice to a person, including a deceased individual; 
Option 1 for paragraph (iii):
	(iii)	danger to the environment or the health or safety of an individual or the public; or
Option 2 for paragraph (iii):
(iii)	public safety or environmental risk;
		(iv)	unauthorised use of the funds or other assets of a governmental body; and
	(b)	giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned. 
	(2) Despite any other provision of this Act, but subject to Chapter 3 of this Part, the information officer of a governmental body must grant a request for access to a record contemplated in section 32(1) or (3), 33(b), 34(1)(a), (b), (c)(i), (iv) or (v), 36(1), 37(1), 38(1) or (2) or 39(1), if giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned.

OPTION 2:
	Despite any other provision of this Part, the head of a governmental body must grant a request for access to a record of the body contemplated in section 33(1) [privacy] or (4){OR 34} [health of requester], 35(1)[third party commercial information], 36(1)(b) [certain confidential information], 37(b) [security of structures], 40(1) [defence], 41(1) [international relations], 42(1) or (2) [economic/commercial interests of state/governmental body], {42A [research]}, 43(1) or (2) [operations of governmental bodies] or  44(b) [diversion of resources] if—
(a)	the disclosure of the record would reveal evidence of—
		(i)	a substantial contravention of, or failure to comply with, the law; or
	(ii)	an imminent {and/or serious} public safety or environmental risk; and
	(b)	{giving due weight to the importance of open, accountable and participatory administration,} the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned.

CHAPTER 3
THIRD PARTY INTERVENTION 

Notice to third parties 
PREVIOUSLY CLAUSE 45

	46. (1) [If] The information officer of a governmental body [is] considering a request for access to a record that might be a record contemplated in section 33(1); [or] 35(1) or 36(1)[, the information officer] must take all reasonable [OR necessary] steps to 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 information officer must inform a third party in terms of subsection (1)— 
	(a)	as soon as reasonably possible, but in any event, within 21 days [or, if an urgent request application has been granted, within five working days,] after that request is received or transferred; and 
	(b)	by the fastest means reasonably possible. 
	(3) When informing a third party in terms of subsection (1), the information officer must— 
(a)	state that he or she is considering a request for access to a record that might be a record contemplated in section 33(1), [or] 35(1) or 36(1), as the case may be, and describe the content of the record; 
(b)	furnish the name of the requester; 
	(c)	[in the case of a record contemplated in— 
		(i)]	section 33(1),] describe the provisions of section 33, 35 or 36, as the case may be; [or]
		[(ii)	section 35(1), describe the provisions of section 35;]

(d)	in any case where the information officer believes that the provisions of section 45{(1)} might apply, describe those provisions, specify which of the circumstances referred to in section 45{(1)}(a){(i) to (iv)} in the opinion of the information officer might apply and state the reasons why he or she is of the opinion that section 45{(1)} might apply; and 
(e)	state that the third party may, within 21 days [or, if an urgent request application has been granted, within 10 working days,] after the third party is informed— 
		(i)	make written or oral representations to the information officer 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] orally of a request for access in terms of subsection (1), the information officer must[, on request,] give a written notice stating the matters referred to in subsection (3) to the third party. 

Representations by third parties 
PREVIOUSLY CLAUSE 46

	47. (1)  A third party that is informed in terms of section 46(1) of a request [for access], may, within 21 days [or, if an urgent request application has been granted, within 10 working days] after the third party has been informed— 
	(a)	make written or oral representations to the information officer concerned why the request should be refused; or 
	(b)	give written consent for the disclosure of the record to the requester concerned.
	(2) A third party that obtains knowledge about a request for  access other than in terms of section 46(1) may—
(a)	make written or oral representations to the information officer 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 	
PREVIOUSLY CLAUSE 47

	48. (1) The information officer of a governmental body must, as soon as reasonably possible, but in any event within 30 days [or, if an urgent request application has been granted, within 15 working days,] after every third party is informed as required by section 45— 
	(a)	decide, after giving due regard to any representations made by a third party in terms of section 47[(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 terms of section 46(1), but that [can, after taking all necessary steps, be] made representations in terms of section 47 or is located before the decision is taken, of the decision. 
	(2) If, after all reasonable {OR necessary} steps have been taken as required by section 46(1),  a third party [cannot be located as contemplated in section 46(1)] is not informed of the request in question and the third party did not make any representations in terms of section 47, 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 47 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 findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)]	[the] adequate  reasons for granting the request (including the provisions 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 internal appeal with the head of the governmental body concerned or to utilise any other remedy in law available to the third party; and] 
(c)	that the third party may lodge an internal appeal against the decision with the [head of the governmental body]  relevant authority[— 
		(i)]	within 30 days[; or] 
		[(ii)	if an urgent request application has been granted, within 10 working days,] 
after notice is given, and the procedure for lodging the internal appeal; and} 
	(d)	that the requester will be given access to the record after the expiry of the applicable period contemplated in paragraph (c), unless an internal appeal is lodged within that period {OR an application with a court within ....}. 
	(4) If the information officer of a governmental 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[— 
	(a)]	30 days[; or 
	(b)	if an urgent request application has been granted, 10 working days,]
after notice is given in terms of subsection (1)(b), unless an internal appeal with the [head of the governmental body] relevant authority {OR an application is lodged against the decision within the [applicable] such period [contemplated in paragraph (a) or (b) of this subsection] {OR an application with a court within ....}. 

# Part 4 in the (original) Bill omitted.
PART 3
ACCESS TO RECORDS OF PRIVATE BODIES
CHAPTER 1
APPLICATION
	
Part applies to record whenever it came into existence 

	49. This Part applies to a record of a private body regardless of when the record came into existence.

Records held by official or independent contractor of  private body

	50.  For the purposes of this Act, a record in the possession or under the control of [OR held by]—
(a)	an official of a private body, in his or her capacity as such; or
	(b)	an independent contractor engaged by a private body in his or her or its capacity as such,
is regarded as being in the possession or under the control of that private body.

Application of other legislation prohibiting or restricting disclosure

Option 1:
	51.(1)  Subject to section 53, this Act applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record of a private body and that is materially {OR substantially} inconsistent with an object, or a specific provision, of this Act.
	{(2) For the purposes of subsection (1), the manner in which access to a record of a private body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.} # Omit?
Option 2:
	(1)   Subject to section 53, if any conflict arises between {any provision of} this Act and {any provision of} other legislation that prohibits or restricts the disclosure of a record of a private body and that is materially {OR substantially} inconsistent with an object, or a specific provision, of this Act, {the provision of} this Act prevails.
	{(2) For the purposes of subsection (1), the manner in which access to a record of a private body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.}  # Omit?

Application of other legislation providing for access

Option 1:
	52.  Subject to section 92, this Act—
(a)	does not apply to a record of a private body if access to that record may be obtained {OR is provided for} in terms of any legislation contained in Schedule 2;
	(b)	applies a record of a private body if access to the record may be obtained {OR is provided for} in terms of any legislation not contained in Schedule 2.
Option 2: 
	Subject to section 92, if any legislation providing for access to a record of a private body—
(a)	is contained in Schedule 2, that legislation applies to the exclusion of this Act; or
(b)	is not contained in Schedule 2, this Act applies to the exclusion of that legislation.

Option 3:
Option 1 for subsection (1):
	(1)  Nothing in this Part, except subsection (2), prevents the giving of access to a record of a private body in terms of any other law.
Option 2 for subsection (1):
	(1)  Nothing in this Part, except subsection (2), prevents the giving of access to a record of a private body otherwise than in terms of this Act if that is permitted or required by any other law.
	(2) If the manner in which access may be given, including, but not limited to, the payment of fees, in terms of the other law referred to in subsection (1), is more onerous than access to that record would have been in terms of this Part, this Part applies to the exclusion of that other law.
Option 4:
	(1) This Part does not apply to a record of a private body if the record is—
(a)	subject to subsections (2) and (3), accessible in accordance with any other legislation; or
	(b)	described in a list published by notice in the Gazette in terms of section 6(2).
	(2) The Minister must—
(a)	on a periodic basis not less frequently than once each two years; and
	(b)	in accordance with the prescribed criteria,
review the legislation contemplated in subsection (1)(a) in order to determine whether the manner in which access may be obtained to a record or, category of records, of a private body in terms of any legislation is more onerous than access to that record would have been in terms of this Part.
	(3)  If the Minister has determined in terms of subsection (2) that the manner in which access may be obtained to a record or, category of records, of a private body in terms of such legislation is more onerous than access to that record would have been in terms of this Act, the Minister must, by notice in Gazette, determine that this Act applies to such record or category of records.

Option 1 for clause 53:
Act not applying to  private bodies’ records required for criminal or civil proceedings after its commencement
Option 1 for subsection (1):
	53.(1) No person may, after the commencement of criminal or civil proceedings, knowingly request access to a record of a private body in terms of section 56 for the purpose of such proceedings if {the person has reason to believe that} the production of that record for that purpose is regulated by any other law .
Option 2 for subsection (1):
	(1)  No person may, after the commencement of criminal or civil proceedings, knowingly request access to a record of a private body in terms of section 56 for the purpose of such proceedings in order to circumvent any other law which regulates the production of that record for the purpose of such proceedings.
Option 1 for subsection (2):
	(2)  Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in the criminal or civil proceedings referred to in that subsection unless the exclusion of such record by the court in question would, in its opinion, be detrimental to the interests of justice.
Option 2 for subsection (2):
	(2)  Any person that contravenes subsection (1) is guilty of an offence and is, on conviction liable to imprisonment for a period of 12 months or a fine.

Option 2 - Phrased as an exemption to be included in Chapter 2 below:
Criminal or civil discovery

	The head of a private body may, after the commencement of criminal or civil proceedings, refuse a request for access to a record of a private body if—
	(a)	the head has reason to believe to that the record is requested for the purpose of such proceedings; and
(b)	the production of that record for that purpose is regulated by any other law.
# See proposed changes to law enforcement exemption in Chapter of Part 2 - cl 38.

CHAPTER 2
{PUBLICATION} AND AVAILABILITY OF CERTAIN RECORDS

Manual
OPTION 1:
	54.(1) Within 12 months after the commencement of this section or the coming into existence of the private body concerned, the head of a private body must compile a manual containing—
	(a)	the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body; 
	(b)	a summary of the guide referred to in section 3, prepared by the Human Rights Commission, and how to obtain access to it;
	(c)	the latest list published in terms of section 55(2), if any;
(d)	a description of the records of the body which are available in accordance with any other legislation;
	(e)	in sufficient detail to facilitate a request for access to a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject; and
	(f)	such other information as may be prescribed. 
	(3) The head of a private body must on a regular basis update the manual referred to in subsection (2). 
	(4) Each manual must be made available as prescribed. 
	(5)  For security, administrative or financial reasons, the Minister  may, on request or of his or her own accord by notice in the Gazette, exempt any private body or category of private bodies from any provision of this section for such period as the Minister thinks fit. 

OPTION 2 (DP’s proposal):
	54.(1) Within 12 months after the commencement of this section or the coming into existence of the private body concerned, the head of a private body may compile a manual containing—
	(a)	the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body; 
	(b)	a summary of the guide referred to in section 3, prepared by the Human Rights Commission, and how to obtain access to it;
	(c)	the latest list published in terms of section 55(2), if any;
(d)	a description of the records of the body which are available in accordance with any other legislation;
	(e)	in sufficient detail to facilitate a request for access to a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject; and
	(f)	such other information the private body wishes to include in order to facilitate request for access to records.
	(3) The head of a private body must on a regular basis update the manual referred to in subsection (2). 
	(4) Each manual must be made available as prescribed. 

OPTION 3:
#	Omit clause 54

Voluntary disclosure of certain records
OPTION 1:
	55.(1)  The head of a private body may, on a voluntary and periodic basis, submit to the Minister a list which—
	(a)	describes the kinds of records of the private body that are available without a person having to request access in terms of this Part—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the private body;
		(iii)	from the private body free of charge; and
	(b)	specifies how to obtain access to such records.
	(2) If appropriate the Minister may, on a periodic basis and by notice in the Gazette, publish any list so submitted.
	(3) The only fee payable (if any) for access to a record described in a list so published is a prescribed fee for reproduction.
	(4) The head of a private body may delete any part of a record contemplated subsection (1)(a) which is required or permitted by Chapter 4 of this Part to be refused
	(5) No person may be required to make a request in terms of this Act for any record of a private body described in a list published by notice in the Gazette in terms of subsection (2).

OPTION 2:
#	Omit clause 55

CHAPTER 3
RIGHT AND MANNER OF ACCESS

Right of access to records of private bodies

	56.(1) Any person must be given access to any record of a private body if—
Option 1 for (a):
(a)	that record is required for the exercise or protection of any right{s};
Option 2 for (a):
	(a)	that record is required for the exercise or protection of any right of that person;
Option 3 for (a):
(a)	that record could reasonably be required for the exercise or protection a right {of that person};
Option 4 for (a):
(a)	that record is likely to be required for the exercise or protection a right {of that person};
Option 5 for (a):
	(a)	that  record could reasonably be expected to advance the exercise or protection a right {of that person};
Option 6 for (a):
(a)	that record is, in the opinion of the head of the private body, required for the exercise or protection of a right {of that person};

	(b)	that person complies with the procedural requirements in this Act relating to a request for access to that record; and
(c)	access to that record is not refused in terms of any ground for refusal [OR exemption] contemplated in Chapter 4 of this Part.
	(2) A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made.

Form of request
OPTION 1:
	57.(1) A request for access to a record of a private body must be made in the prescribed from to the private body concerned at its address, fax number or electronic mail address.
	(2) The form for a request for access prescribed for the purposes of subsection (1) must at least require—
	(a)	provide sufficient particulars to enable the head of the private body to identify the record requested; 
	(b)	specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester; and
	(c)	identify the right the requester is seeking to exercise or protect and provide an explanation of why the requested record is required for the exercise or protection of that right.
#	See cl 18(2)(g) above
OPTION 2 (DP’s proposal):
	(1) A request for access to a record of a private body must—
(a)	be made in writing to the head of the private body at any office address, fax number or electronic mail address where that private body carries on its trade, business or profession;
	(b)	specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester.
	(2) The head of a private body may require the requester to—
(a)	provide sufficient particulars to enable the head of the private body to identify the record requested; and
	(b)	identify the right the requester is seeking to exercise or protect and provide an explanation of why the requested record is required for the exercise or protection of that right, if such particulars were not included or sufficiently included in the request for access to the record.

Fees

	58.(1) The head of a private body to whom a request for access to information is made must by notice require the requester to pay the prescribed request fee, and the decision on the request may be deferred until the fee is paid.
	(2)  A requester whose request for access to a record of a governmental body has been granted may be given access to the record only if he or she has paid the prescribed access fee (if any).
	{(3)  A requester must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure. # cl 29 in Part applying to government records  - see also references below
	(4)  Access fees prescribed for the purposes of subsection (2) must provide for a reasonable access fee for— 
	(a)	the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 29(2)(a) and (b)(i), (ii)(bb), (iii) and (v) and, if applicable, the postal fee (in this section referred to as an “access fee for reproduction”); and
	(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an “access fee for search and preparation”).
	(5)  If — 
	(a)	the search for a record of private body in respect of which a request for access by a requester, other than a personal requester, has been made; and
	(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 29(2)(a) and (b)(i) and (ii)(aa)),
would, in the opinion of the head of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
	(6)  The notices referred to in subsection (5) must state — 
	(a)	the amount of the deposit payable in terms of subsection (5);
	{(b)	that the requester may lodge an application with a court against the payment of the request fee in terms of subsection (1), or the payment of a deposit in terms of subsection (5), as the case may be; and
	(c)	the procedure (including the period) for lodging the application.}
	(7)  If a deposit has been paid in respect of a request which is refused, the head concerned must repay the deposit to the requester.
	(8)  A personal requester is exempted from paying a request fee and deposit, and must pay an access fee for reproduction only.
	(9)  The Minister may, by notice in the Gazette — {#IN NOTICE SEPARATE FROM REGULATIONS?}
	(a)	exempt any person or category of persons from paying any fees in terms of this section;
	(b)	determine that any fee is not to exceed a certain maximum amount;
	(c)	the manner in which any fee is to be calculated;
	(d)	determine the category of records in respect of which the fees referred to in this section does not apply; 
	(e)	exempt any person or record or category of persons or records for a stipulated period from the fees referred to in subsection (4); and
	(f)	determine that where the cost of collecting the fees referred to in this section exceeds the amount charged, that those fees does not apply.

Decision on request
Option 1 for subsection (1):
	59. (1) Subject to Chapter 5 of this Part, the head of the private body to whom the request is made must, as soon as reasonably possible, but in any event, within 30 days, after the request has been received —
	(a)	decide in accordance with this Part whether to grant the request; and
	(b)	notify the requester of the decision.
Option 2 for subsection (1) - if Option 2 (DP’s proposal) for cl 57 is adopted:
	(1) Subject to Chapter 5 of this Part, the head of the private body to whom the request is made must, as soon as reasonably possible, but in any event, within 30 days, after the request has been received or after the particulars required in terms of section 57(2) have been received—
	(a)	decide in accordance with this Part whether to grant the request; and
	(b)	notify the requester 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; and
	(b)	the form in which access will be given.
	(3)  If the request for access is refused, the notice in terms of subsection (1)(b)—
(a)	must state the adequate reasons for the refusal;
(b)	may {OR must} exclude any reference to the content of the record on the basis of which the request is refused.
	(4)  If the head of a private body fails to give—
(a)	the decision on a request for access to a record of the body within the period contemplated in subsection (1); {or
(b)	reasons for the decision in accordance with subsection (3)}.
 the head is, for the purposes of this Act, regarded as having refused the request.
	(5) In awarding costs in any court proceedings pursuant to a request regarded, in terms of subsection (4), as having been refused, the relevant court may take into account the failure of the head of the private body concerned to give—
(a)	the decision within the required period; {or
(b)	reasons for the decision in accordance with subsection (3)}.

Extension of period to deal with request 

	60. (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 59(1) (in this section referred to as the “original period”) once for a further period of not more than 30 days, if there exists reasonable grounds for such extension.
	(2) If a period is extended in terms of subsection (1), the head of the private body must, as soon as reasonably possible, but in any event, within 30 days, after the request is received, notify the requester of that extension, the period of the extension and the reasons for the extension. 

Records that cannot be found or do not exist

	61.(1) If—
(a)	all reasonable steps have been taken to find a record requested; and
(b)	there is reasonable grounds for believing that the record—
(i)	is in the private body’s possession but cannot be found; or
(ii)	does not exist,
the head of a private body must, by way of affidavit or affirmation, notify the requester that it is not possible to give access to that record.
	(2) The  affidavit or affirmation referred to in subsection (1) must give a full account of all steps taken to find the record in question 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 head.
	(3) For the purposes of this Act, the notice in terms of subsection (1) is to be regarded as a decision to refuse a request for access to the record concerned.
	(4) If after notice is given in terms of subsection (1) the record in question is found, the requester  concerned must be given access to the record unless access is refused on a ground for refusal contemplated in Chapter 4 of this Part.

Severability

	62.  (1) If a request for access to a record of a private body containing information which is required or permitted by Chapter 4 of this Part, to be refused, is made, 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 59(2), apply to paragraph (a) of this section and the provisions of section 59(3) to paragraph (b) of this section.

Form of access

	63.  If access is granted to a record of a private body, the head of that body must, as soon as reasonably possible after notification in terms of section 59, give access in—
	(a)	such form as the requester reasonably requires; or
	(b)	if no specific form of access is required by the requester, such form as the head reasonably determines.

{Access to health records
#	Alternative for cl 65(4) to (6) OR cl 66
	63A.(1) If the head of a private body grants a request for access to a record provided by a health practitioner in his or her capacity as such about the physical or mental health, or well-being of the requester or, if the request has been made on behalf of the person to whom the record relates, that person, and that head is of the opinion that the disclosure of the record to that requester or person, as the case may be, might cause {serious} harm to his or her physical or mental health, or well-being, the head must, before giving access in terms of section 48N, consult with a health practitioner who—
(a)	carries on an occupation of the same kind as the health practitioner who provided the record; and 
	(b)	subject to subsection (2), have been nominated by that requester or person, as the case may be.
	(2) If the requester or, if the request has been made on behalf of the person to whom the record relates, that person is—
(a)	under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (1)(b); or 
(b)	incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. 
	(3)(a) If, after being given access to the record concerned, the health practitioner consulted in terms of subsection (1) is of the opinion that the disclosure of the record to that requester or, if the request has been made on behalf of the person to whom the record relates, that person, would be likely {OR could reasonably be expected} to cause serious harm to his or her physical or mental health, or well-being, the head must only give access to the record  if the requester proves to the satisfaction of the head that {adequate OR appropriate} provision is made for counselling of the requester, or the person on whose behalf the request has been made, as the case may be, before, during and after the disclosure of the record {in the prescribed manner}.
	(b) Before access to the record is so given to the requester, the person responsible for such counselling must be given access to the record.}

CHAPTER 4
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

Interpretation

	64.  A provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, must not be construed as—
(a)	limited in its application in any way by any other provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused; and
	(b)	not applying to a particular record by reason that another provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, also applies to that record.

Mandatory protection of privacy {of third party} 
			
Option 1 for subsection (1):
	65. (1) Subject to subsections (2) and (4), the head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received [OR a deceased individual]) other than the requester concerned. # Omit “other than ...”  if subsection (3) or cl 56(2) is included?
Option 2 for subsection (1):
	(1)  Subject to subsections (2) and (4), the head of a private body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about any person, including a deceased individual. # See amended definition of “personal information” in clause 1
	(2) A record may not be refused in terms of subsection (1) insofar as it consists of information— 
(a)	about a person that has consented in terms of section 74(3)(b) {OR in writing} to its disclosure to the requester concerned;
	(b)	already publically available;
(c)	that was given to the private body by the person to whom or which it relates and the person was informed by or on behalf of the private body, before its being given, that the information belongs to a class of information that would or might be made available to the public;
(d)	about an individual’s physical or mental health, or well-being, who is under the care of the requester and who is— 
		(i)	under the age of 18 years; or
		(ii)	 incapable of understanding the nature of the request, 
and if giving access would be in the individual’s best interests;  # Use “process” similar to one in subsection (4) to (6) below? 
	(e)	about an individual who is deceased and the requester is—
(i)	the individual’s next of kin;  or
(ii)	making the request with the written consent of the individual’s next of kin.
	(3) Subject to subsections (4) to (6) {OR section 63A}, the provisions of subsections (1) and (2) do not apply to a request for access by a person, or any person acting on behalf of that person, to a record by reason only of the inclusion in the record of information relating to the first-mentioned person.
#	Alternatives for (4) to (6) in cl 63A or 66
	(4) The head of a private body may refuse a request for access to a record of the body about the physical or mental health, or well-being, of the requester or,  if the request has been made on behalf of the person to whom the record relates, that person, and which was provided by a health practitioner in his or her capacity as such if— 
(a)	the disclosure of the record to the requester or, if the request has been made on behalf of the person to whom the record relates, that person, could reasonably be expected {OR would be likely} to cause serious harm to his or her physical or mental health, or well-being; and 
	(b)	the head 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)	subject to subsection (5), has been nominated by the requester or, if the request has been made on behalf of the person to whom the record relates, that person; and 
	(c)	that health practitioner so consulted is of the opinion that the serious harm contemplated in paragraph (a).
	(5) If the requester or the person on whose behalf the request has been made is— 
	(a)	under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (4)(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. 
{(6) 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; 
	(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 concerned must notify that health practitioner that access has been so given.}
 
# See alternatives for cl 48R below in cl 63A & cl 65(4) to (6):
Health of requester 
OPTION 1:
	66.(1) The head of a private body may refuse a request for access to a record of the body about the physical or mental health, or well-being, of the requester or,  if the request has been made on behalf of the person to whom the record relates, that person, and which was provided by a health practitioner in his or her capacity as such if— 
(a)	the disclosure of the record to that requester or, if the request has been made on behalf of the person to whom the record relates, that person, could reasonably be expected {OR would be likely} to cause serious harm to his or her physical or mental health, or well-being; and 
	(b)	the head 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}, if the request has been made on behalf of the person to whom the record relates, that person; and 
	(c)	that health practitioner so consulted is of the opinion that the serious harm contemplated in paragraph (a).
	(3) If the requester or the person on whose behalf the request has been made 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; 
	(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 concerned must notify that health practitioner that access has been so given.}
OPTION 2:
	(1) The head of a private body may {OR must} refuse a request for access to a record of the body if—
(a)	the record—
(i)	contains information about the physical or mental health, or well-being, of the requester or, if the request has been made on behalf of the person to whom the record relates, that person; and
{(ii)	was provided by a health practitioner;}
{(b)	the disclosure of the record to the requester or, if the request has been made on behalf of the person to whom the record relates, that person, is prohibited by any other law;} and
(c)	a health practitioner who—
(i)	carries on an occupation of the same kind as the health practitioner who provided the record; and
(ii)	subject to subsection (2), have been nominated by the requester or his or her authorised representative,
after being given access to the record concerned, is of the opinion that the disclosure of the record could reasonably be expected {OR would be likely} to cause {serious} harm to the physical or mental health, or well-being, of that requester or person, as the case may be.
	(2) If the requester or the person on whose behalf the request has been made is—
(a)	under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (1)(c)(ii); or 
(b)	incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. 		
	(3)(a) A record may not be refused in terms of subsection (1) if the health practitioner consulted in terms of subsection (1)(c) is of the opinion that the disclosure of the record could not reasonably be expected {OR would not be likely} to cause {serious} harm to the physical or mental health, or well-being of the requester or, where the request has been made on behalf of the person to whom the record relates, that person, if that requester or person, as the case may be, is counselled before, during and after the disclosure of the record {in the prescribed manner}.
	(b) If the health practitioner is of such opinion, the head must only give access to the record if the requester proves to the satisfaction of the head that {adequate OR appropriate} provision is made for such counselling.
	(c) Before access to the record is so given to the requester, the person responsible for such counselling must be given access to the record.

OPTION 3:
# Omit cl 63A, cl 65(4) to (6) and cl 66

Mandatory protection of third party commercial information 

	67. (1) The head of a private body must refuse a request for access to a record of the body if the record contains— 
	(a)	trade secrets of {OR supplied in confidence by} a third party; 
Option 1 for paragraphs (b) and (c):
(b)	financial, commercial, scientific or technical information, other than trade secrets, of {supplied in confidence by} a third party, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial {or financial} interests of that third party; or 
(c)	information {supplied in confidence by a third party} {and having a commercial value} the disclosure of which could reasonably be expected {OR would be likely} to—
(i)	put that third party at a {OR an unfair} disadvantage in contractual other negotiations; or
(ii)	{unfairly} prejudice that third party in commercial competition; or
Option 2 - combine paragraph (b) and (c):
	(b)	any other information {having a commercial value} {supplied in confidence by a third party} the disclosure of which could reasonably be expected {OR would be likely} to—
(i)	put a third party at an {unfair} disadvantage in contractual or other negotiations;
(ii)	{unfairly} prejudice a third party in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial {or financial} interests of a third party; or
Option 3 - only paragraph (b) (wide enough) and not (c) of Option 1:
	(b)	financial, commercial, scientific or technical information, other than trade secrets, of {OR supplied in confidence by} a third party {and treated consistently as confidential by that third party}, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial or financial interests of that third party;

Option 1 for (d):
	(d)	the results of original research {having a commercial value} undertaken by a third party {and not yet published} the disclosure of which could reasonably be expected {OR would be likely} to deprive that body or official of the benefit of first publication of those results.
Option 2 for (d):
(d)	information about research {having a commercial value} being or to be carried out by or on behalf of a third party, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose—
(i)	the third party;
(ii)	a person that is or will be carrying out the research on behalf of the third party; or
(iii)	the subject-matter of the research,
to [serious] disadvantage.
Option 3 for (d):
(d)	information about the purpose or results of research, including research that is yet to be started or finished, {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on  the third party or a person that is or will be carrying out the research.
	(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about— 
	(a)	a third party who has consented in terms of section 74(2)(b) {OR in writing} to its disclosure to the requester concerned;
	(b)	the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried by or on behalf of} a third party and its disclosure would reveal a {serious} public safety or environmental risk.
	(3) For the purposes of subsection (2)(b), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
	(4) Subsection (1) does not apply to a request for access by a person, or a person acting on behalf of that person to a record by reason only of the inclusion in the record of information contemplated in subsection (1) that relates to that person. # See definition of “third party”

{Breach of confidence provided for by agreement
# 	Still busy with further research
	68.  The head of a private body may {OR must} refuse a request for access to a record of a body if its disclosure would found {OR constitute} an action for breach of a duty of confidence in terms of  a provision of an agreement.}

{Mandatory protection of} safety of individuals and {protection of security of structures and systems {OR property} 

Option 1:
	69. The head of a private body may refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to— 
	(a)	endanger the life or physical safety of an {identifiable} individual; or 
	(b)	prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system. 
Option 2:
	The head of a private body— 
	(a)	must refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to endanger the life or physical safety of an {identifiable} individual; or 
	(b)	may refuse a request for access to a record of the body if its disclosure could reasonably be expected {OR would be likely} to prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system.

Mandatory protection of records privileged from production in legal proceedings 

	70. The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings.

Commercial information of private body 

	71. (1)  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; 
Option 1 for paragraphs (b) and (c):
(b)	financial, commercial, scientific or technical information, other than trade secrets, of the private body, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial {or financial} interests of the body; or 
(c)	information {supplied in confidence by a third party} {and having a commercial value} the disclosure of which could reasonably be expected {OR would be likely } to—
(i)	put the private body  at a {OR an unfair} disadvantage in contractual other negotiations; or
(ii)	{unfairly} prejudice the body in commercial competition; or
Option 2 - combine paragraph (b) and (c):
	(b)	any other information {having a commercial value} {supplied in confidence by a third party} the disclosure of which could reasonably be expected {OR would be likely} to—
(i)	put the private body at an {unfair} disadvantage in contractual or other negotiations;
(ii)	{unfairly} prejudice the body in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial {or financial} interests of the body; or
Option 3 - only paragraph (b) and not (c) of Option 1:
	(b)	financial, commercial, scientific or technical information, other than trade secrets, of {treated consistently as confidential by the private body}, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial or financial interests of the private body;

Option 1 for (d):
	(d)	the results of original research {having a commercial value} undertaken by the private body {and not yet published} the disclosure of which could reasonably be expected {OR would be likely} to deprive the body, or official thereof, of the benefit of first publication of those results.
Option 2 for (d):
(d)	information about research {having a commercial value} being or to be carried out by or on behalf of the private body, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose—
(i)	the private body;
(ii)	a person that is or will be carrying out the research on behalf of the body; or
(iii)	the subject-matter of the research,
to {serious} disadvantage.
Option 3 for (d):
(d)	information about the purpose or results of research, including research that is yet to be started or finished, {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on  the private body or a person that is or will be carrying out the research.
	(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried by or on behalf of} the private body and its disclosure would reveal a {serious} public safety or environmental risk.
	(3) For the purposes of subsection (2)(b), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
	
Records about research
#	If cl 71A is included omit 67(1)(d) and 71(1)(d) 
	71A.  The head of a private body may refuse a request for access to a record of the body if the record contains
Option 1
the results of original research undertaken by the private body or a third party the disclosure of which could reasonably be expected {OR would be likely} to deprive that the private body or third party or a person that is or will be carrying out the research on behalf of the private body or third party of the benefit of first publication of those results.
Option 2
information about research being or to be carried out by or on behalf of the private body or a third party, the disclosure of which could reasonably be expected {OR would be likely} unreasonably to expose—
(a)	the private body or third party;
(b)	a person that is or will be carrying out the research on behalf of the private body or third party; or
(c)	the subject-matter of the research,
to {serious} disadvantage.
Option 3:
information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on the private body or a third party or a person that is or will be carrying out the research.

Mandatory disclosure
Option 1:
	72.   Despite any other provision of this Part, the head of a private body must grant a request for access to a record of the body contemplated in section 65{privacy}, 67{third party’s commercial information}, 69{safety} or 71{body’s commercial information}—
(a)	if the disclosure of the record would reveal evidence of—
		(i)	a substantial {OR serious} contravention of, or failure to comply with, the law; or
		(ii)	imminent {and serious} public safety or environmental risk; and
	(b)	the right sought to be exercised or protected clearly outweighs the harm contemplated in the provision in question.

Option 2:
	Despite any other provision of this Part, the head of a private body must grant a request for access to a record contemplated in section 65{privacy}, 67{third party’s commercial information}, 69{safety} or 71{body’s commercial information}—
(a)	if the disclosure of the record would reveal evidence of —
		(i)	a serious contravention of, or failure to comply with, the law;
(ii)	a serious miscarriage of justice; or
		(iii)	a  imminent and serious public safety or environmental risk; and
(b)	the probable adverse effects of the non-disclosure of such record will clearly outweigh the possible adverse effects disclosure will have for any person whose interest is protected by the provisions of {the above-mentioned sections.

Adverse effects
Option 1 (DP’s proposal):
	72A.(1)  The head of a private body must, in all requests for access to a record not covered by the provisions of sections 65 to 71, have regard to the possible adverse effects that the granting of access may have on the right of any other person and access shall be given only if the adverse effects non-disclosure may have for the requester outweighs the adverse effects disclosure may have for that other person.
	(2) In weighing up the adverse effects disclosure and non-disclosure of a record may have, the nature of the relevant rights, the importance of the record for the exercise or protection of the relevant rights and the nature, extent and permanence or otherwise of the adverse effects, must be taken into account.

Option 2:
#	Omit section 72A

CHAPTER 5
THIRD PARTY NOTIFICATION

Notice to third parties 

	73. (1) The head  of a private body considering a request for access to a record that might be a record contemplated in section 65, 67 {or 68} [privacy, 3P commercial and confidential info clauses] must take all reasonable {OR necessary} steps to inform a third party to whom or which the record relates of the request. 
	(2) The head 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 must— 
	(a)	state that he or she is considering a request for access to a record that might be a record contemplated in section 65, 67 {or 68}, as the case may be, and describe the content of the record; 
	(b)	furnish the name of the requester; 
	(c)	describe the provisions of section 65, 67 {or 68}, as the case may be;
	(d)	in any case where the head believes that the provisions of section 72 [override]  might apply, describe those provisions, specify which of the circumstances referred to in section 72[override] in the opinion of the head might apply and state the reasons why he or she is of the opinion that section 72 [override] 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 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 informed orally of a request for access in terms of subsection (1), the head must give a written notice stating the matters referred to in subsection (3) to the third party.

Representations by third parties 

	74. (1)  A third party that is informed in terms of section 73(1) of a request for access, may, within 21 days after being so informed— 
	(a)	make written or oral representations to the head concerned why the request should be refused; or 
	(b)	give written consent for the disclosure of the record to the requester concerned.
 	(2) A third party that obtains knowledge about a request for access other than in terms of section 73(1) may—
(a)	make written or oral representations to the head 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 

	75. (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 73— 
	(a)	decide, after giving due regard to any representations made by a third party in terms of section 74, whether to grant the request for access; and 
	(b)	notify the third party so informed and a third party not informed in terms of section 73, but that made representations in terms of section 74 or is located before the decision is taken, of the decision. 
	(2) If, after all reasonable{[OR necessary} steps have been taken as required by section 73, a third party is not informed of a request, 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 74 why the request should be refused. 
	(3) If the request s granted, the notice in terms of subsection (1)(b) must state—
(a)	adequate the reasons for granting the request (including the provisions of this Act relied upon to justify the granting); and
{(b)	that the third party may lodge an application with a court against the decision of the head, and the procedure for lodging the application.}
	{(4) If the head of the private body decides in terms of subsection (1) to grant the request concerned, the requester must be given access to the record concerned after the expiry of the period within which an application with a court may be lodge against such decision, unless such application is lodged within that period.}

#	Require reporting to Human Rights Commission and report by Commission to Parliament?

{PREVIOUS PART 5 
# PROTECTION OF WHISTLE-BLOWERS - TO BE INCLUDED IN SEPARATE BILL}

PART 4
APPEALS AGAINST DECISIONS 
OPTION 1 - provide for internal appeals - include Chapter 1 below

#	References to the exemptions in Chapter 2 of Part [3]2 will be revised after the finalisation of the content of that Chapter.  As regards third party notification, the inclusion of all provisions of that Chapter where a third party is involved, must still be considered. 

CHAPTER 1
INTERNAL APPEALS 

Right of internal appeal to [head of governmental body] relevant authority 

	76. (1) A person may lodge an internal appeal against any decision of the information officer of a governmental body in relation to that person with the [head of the body] relevant authority. 
	(2) Subsection (1) may not be construed to limit any other right a person has in terms of the law to remedy a matter in respect of which an internal appeal may be lodged.

Manner of internal appeal, and appeal fees 

	77. (1) An internal appeal— 
	(a)	must be lodged in the prescribed form— 
	(i)	within 60 days; 
	(ii)	if notice to a third party is required by section 48(1)(b), within 30 days[; or 
	(iii)	if the internal appeal is against the granting of a request for access and an urgent request application has been granted in respect of the request, within 10 working days], 
after notice is given to the appellant of the decision appealed against or, if notice to the appellant is not required, after the decision was taken; 
	(b)	must be delivered or sent to the information officer of the governmental body concerned at his or her address, fax number or electronic mail address; 
	(c)	must identify the subject of the internal appeal and state the reasons for the internal appeal and may include any other relevant information known to the appellant; 
	(d)	if, in addition to a written reply, the appellant wishes to be informed of the decision on the internal appeal in any other manner, must state that manner and provide the necessary particulars to be so informed; 
	(e)	if applicable, must be accompanied by the prescribed appeal fee referred to in subsection (4); and 
	(f)	must specify a postal address or fax number [and, if the internal appeal includes an urgent appeal application], a phone number for the appellant in the Republic. 
	(2) A person who wishes to lodge an internal appeal, but, because of illiteracy, poor literacy or [physical] sensory disability, is unable to comply with subsection (1), may request the Human Rights Commission to assist him or her to so comply. 
	(3)(a) If an internal appeal is lodged after the expiry of the period referred to in subsection (1), the [head of the governmental body concerned] relevant authority must, upon good cause being shown, allow the late lodging of the internal appeal. 
	(b) If that [head] relevant authority disallows the late lodging of the internal appeal, he or she must give notice of that decision to the person that lodged the internal appeal. 
	(4)(a) A [commercial] requester lodging an internal appeal against the refusal of his or her request for access must pay the prescribed appeal fee (if any). 
	(b) If the prescribed appeal fee is payable in respect of an internal appeal, the decision on the internal appeal may be deferred until the fee is paid. 
	(5) As soon as reasonably possible, but in any event, within 10 working days, or, if an [appeal application has been granted, immediately,] after receipt of an internal appeal in accordance with subsection (1), the information officer of the governmental body concerned must submit to the [head of that body] relevant authority— 
	(a)	the internal appeal together with his or her reasons for the decision concerned; and 
	(b)	if the internal appeal is against the refusal or granting of a request for access, the name, postal address, phone and fax number and electronic mail address, whichever is available, of any third party that must be notified in terms of section 46(1) of the request.
 
Notice to and representations by other interested persons 

	78. (1) If [the head of a governmental body] a relevant authority is considering an internal appeal against the refusal of a request for access to a record contemplated in section 33(1) or 35(1) {OR 36(1)}, the [head] authority must inform the third party to whom or which the record relates of the internal appeal, unless all necessary steps to locate the third party have been unsuccessful. 
	(2) The [head] relevant authority must inform a third party in terms of subsection (1)— 
	(a)	as soon as reasonably possible, but in any event, within 30 days [or, if an  appeal application has been granted, within five working days,] after the receipt of the internal appeal; and 
	(b)	by the fastest means reasonably possible. 
	(3) When informing a third party in terms of subsection (1), the [head concerned] relevant authority must— 
	(a)	state that he or she is considering an internal appeal against the refusal of a request for access to a record contemplated in section 29(1), [or] 31(1), as the case may be, and describe the content of the record; 
	(b)	furnish the name of the appellant; 
	(c)	in the case of a record contemplated in— 
		[(i)	section 29(1),] describe the provisions of section 33 , 35(1) {OR 36(1), as the case may be; or 
		[(ii)	section 31(1), describe the provisions of section 31;]
	(d)	in any case where that [head] authority believes that the provisions of section 45(1) might apply, describe those provisions, specify which of the circumstances referred to in section 45(1)(a)in the opinion of the head might apply and state the reasons why he or she is of the opinion that section 45(1) might apply; and 
	(e)	state that the third party may, within 21 days [or, if an appeal application has been granted, within 10 working days,] after the third party is informed, make written representations to  [head] authority that  why the request for access should not be granted. 
	(4)  If a third party is [not] informed [in writing] orally of an internal appeal in terms of subsection (1), the [head of the governmental body concerned] relevant authority must, on request, give a written notice stating the matters referred to in subsection (3) to the third party. 
	(5) A third party that is informed of an internal appeal in terms of subsection (1), may[— 
	(a)]	within 21 days[; or 
	(b)	if an urgent appeal application has been granted, within 10 working days,] 
after the third party has been informed, make written representations to the [head of the governmental body concerned] relevant authority why the request for access should not be granted. 
	(5A) A third party that obtains knowledge about an internal appeal other than in terms of subsection (1) may—
(a)	make written or oral representations to the relevant authority why the request for access should be refused; or
	(b)	give written consent for the disclosure of the record to the requester concerned. 
	(6) If the [head of a governmental body] relevant authority is considering an internal appeal against the granting of a request for access, the [head] authority must give notice of the internal appeal to the requester. 
	(7) The [head] relevant authority must— 
(a)	notify a third party in terms of subsection (6) as soon as reasonably possible, but in any event, within 30 days [or, if an appeal application has been granted, within five working days,] after the receipt of the internal appeal; and 
	(b)	state in that notice that the third party may within 21 days after notice is given, make written representations to that [head] authority why that request should be granted. 
	(8) A requester to whom or which notice is given in terms of subsection  (6) may within 21 days after that notice is given, make written representations to the [head of the governmental body] relevant authority why the request for access should be granted. 

Decision on internal appeal and notice thereof 

	79. (1) The decision on an internal appeal must be made with due regard to— 
	(a)	the particulars stated in the internal appeal in terms of section 77(1)(c); 
	(b)	any reasons submitted by the information officer in terms of 77(5)(a); 
	(c)	any representations made in terms of section 78(5), (5A) or (8); and 
	(d)	if a third party cannot be located as contemplated in section 69(1), the fact that the third party did not have the opportunity to make representations in terms of section 78(5) why the internal appeal should be dismissed. 
	(2) When deciding on the internal appeal the [head of the governmental body concerned] relevant authority may confirm the decision appealed against or substitute a new decision for it. 
	(3) The  [head of the governmental body concerned] relevant authority must, subject to section 71, decide on the internal appeal— 
	(a)	as soon as reasonably possible, but in any event, within 30 days after the internal appeal is received by the information officer of the body; 
	(b)	if a third party is informed in terms of section 78(1), as soon as reasonably possible, but in any event[— 
	(i)]	within 30 days; or 
	[(ii)	if an urgent appeal application has been granted, within 15 working days 
after the third party has been informed;]
	(c)	if notice is given in terms of section 78(6)— 
		(i)	within five working days after the requester concerned has made written representations in terms of section 78(8); or 
		(ii)	in any other case within 30 days after notice is so given. 
	(4) The [head of the governmental body] relevant authority must, immediately after the decision on an internal appeal— 
	(a)	give notice of the decision to— 
		(i)	the appellant; 
		(ii)	every third party informed as required by section 78(1); and 
		(iii)	the requester notified as required by section 78(6); and 
	(b)	if reasonably possible, inform the appellant about the decision in any other manner stated in terms of section 77(1)(d). 
	(5) The notice in terms of subsection (4)(a) must state— 
	[(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)]	[the] adequate reasons for the decision (including the provision of this Act relied upon to justify the decision) [in such manner as to enable the appellant, third party or requester, as the case may be— 
	(i)	to understand the justification for the decision; 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 him or her, with respect to the decision on internal appeal; and]
	(c)	that the appellant, third party or requester, as the case may be, may lodge an application with a [High Court] court against the decision on internal appeal— 
	(i)	within 60 days; or
	(ii)	if notice to a third party is required by subsection (4)(a)(ii), within 30 days; [or 
	(iii)	if that application is against the granting of a request for access on internal appeal and an urgent appeal application has been granted in respect of the internal appeal, within 10 working days,]
after notice is given, and the procedure for lodging the application; and 
	(d)	if the [head of the governmental body concerned] relevant authority decides on internal appeal to grant a request for access and notice to a third party— 
		(i)	is not required by subsection (4)(a)(ii), that access to the record will forthwith be given; or 
		(ii)	is so required, that access to the record will be given after the expiry of the applicable period for lodging an application with a [High Court] court against the decision on internal appeal referred to in paragraph (c), unless that application is lodged before the end of that applicable period. 
	(6) If the [head of the governmental body] relevant authority decides on internal appeal to grant a request for access and notice to a third party— 
	(a)	is not required by subsection (4)(a)(ii), the information officer of the body must forthwith give the requester concerned access to the record concerned; or 
	(b)	is so required, the information officer must, after the expiry of— 
	(i)	30 days; or 
	[(ii)	if an urgent appeal application has been granted in respect of the internal appeal, 10 working days,]
after the notice is given to every third party concerned, give the requester access to the record concerned, unless an application with a [High Court] court is lodged against the decision on internal appeal before the end of the applicable period referred to in subsection (5)(c) for lodging that application. 
	(7) If the [head of a governmental body] relevant authority fails to [decide on an internal appeal] give notice of the decision on an internal appeal to the appellant within the period contemplated in subsection (3), that head is, for the purposes of this Act, regarded [to have] as having dismissed the internal appeal.

[Urgent internal appeals

	71. (1) A requester who wishes— 
	(a)	his or her internal appeal against the refusal of a request for access to be decided urgently must include an application to that effect in the internal appeal; or 
	(b)	an internal appeal against the granting of his or her request for access to be decided urgently must lodge an application to that effect with the information officer concerned, 
and in that application give reasons for the urgency. 
	(2) If an urgent appeal application is included in an internal appeal or is lodged with an information officer of a governmental body, the head of that body must, subject to section 69, immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event, within five working days, after the receipt of that urgent appeal application, decide on the internal appeal and give notice of the decision as required by section 70(4), unless there are reasonable grounds for believing that— 
	(a)	the nature of the reasons for the urgency furnished by the applicant is such that the applicant will suffer no prejudice if the internal appeal is decided upon within the period contemplated in section 70(3); or 
	(b)	it is impractical to decide on the internal appeal within five working days after that urgent appeal application has been received. 
	(3) If the head of a governmental body refuses an urgent appeal application on the grounds referred to in subsection (2)(a) or (b), the head must immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event, within five working days, after that urgent appeal application has been received, notify the applicant of the refusal. 
	(4) The notice in terms of subsection (3) must state— 
	(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)	the reasons for the refusal (including the provision of this Act relied upon to justify the refusal) in such manner as to enable the applicant— 
	(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 or to utilise any other remedy in law available to the applicant, with respect to the refusal; and 
	(c)	that the applicant may lodge an application with a High Court against the refusal of the urgent appeal application, and the procedure (including the period) for lodging that application with a High Court. 
	(5) If the notice in terms of subsection (2) or (3) of a decision is not given by fax, the applicant concerned must be informed by phone of the decision.] 

OPTION 2 - Do not provide for internal appeals

#	Omit Chapter 1 of Part 4 and all other references to internal appeals

OPTION 1 - Chapter 2: Internal appeal included in Bill
Where person has a choice between the Magistrate’s Court or High Court.

CHAPTER 2
APPLICATIONS TO [HIGH] COURT

Non-exclusion of other remedies

	80.  This Chapter may not be construed to exclude or limit any other right a person has in terms of the law to remedy a matter in respect of which an application may be lodged with a [High C]court in terms of this Chapter.

[Manner of applications to [High] Court

	81. (1)	An application in terms of this Chapter must be lodged—
	(a)]	with a [High C]court having jurisdiction in terms of section 83;  and
	(b)	subject to this Chapter, in accordance with the rules regarding an urgent application by way of notice on motion applicable to that High Court.
	(2)	For the purposes of those rules of the High Court concerned, all applications are regarded [to be] as being urgent without any supporting documents required to set out the reasons for the urgency and why the applicant could not be afforded substantial redress at a hearing in due course.
	(3)	If the interests of justice so require, a High Court having jurisdiction may extend the period within which an application may be lodged.]

Applications regarding decisions of information officers or [heads] relevant authorities of governmental bodies

	82. (1)	A person—
	(a)	that has been unsuccessful in [an urgent request application,] an internal appeal to the [head] relevant authority of a governmental body [or an urgent appeal application]; [or]
	(b)	aggrieved by a decision of the [head] relevant authority of a governmental body to disallow the late lodging of an internal appeal in terms of section 77(3); or
(c)	aggrieved by a decision of the head of a private body in relation to a request for access of a record of that body,
may [appeal against the decision by way of an application] apply to a court having jurisdiction in terms of section 83 for appropriate relief in terms of section 87.
	(2)	If an application referred to in subsection (1) is against the granting of a request for access on internal appeal that application must be lodged[—
	(a)]	within 30 days; [or
	(b)	if an urgent appeal application has been granted in respect of the internal appeal, within 10 working days],
after the third party concerned has been notified of the decision to grant the request on internal appeal.
# Stipulate the period within with application against decision of the head of a private body must be lodge?
	(3)	The Human Rights Commission may [appeal by way of an application] apply to a court having jurisdiction in terms of section 83 for appropriate relief in terms of section 87 against a decision of—
	(a)	the information officer of a governmental body; 
	(b)	the [head] relevant authority of a governmental body on internal appeal; or
(c)	the head of a private body in relation to a request for access of a record of that body.
	[(4)	A third party notified of a decision of the head of a governmental body  to disclose information regarding a serious public safety or environmental risk in terms of section 8(5)(a), may appeal by way of an application against the decision within 10 days after the third party concerned has been notified of the decision.]

Jurisdiction of  [High C]court

	83. A [High C]court has jurisdiction in respect of—
	(a)	a decision of the information officer or [head] relevant authority of a governmental body or the head of a private body contemplated in section 82 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 82(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 C]court.

Assistance of Human Rights Commission

	84.  (1)	An individual who wishes to lodge an application, but, because of illiteracy, poor literacy or a [physical] sensory disability, is unable to comply with this Chapter, may request the Human Rights Commission to assist him or her to so comply.
	(2)	If the Human Rights Commission is of the opinion that an important matter of principle is involved, the Commission may appear before a [High C]court as a party to an application.
	(3)	The Human Rights Commission may, on request, appoint a [person] legal practitioner admitted to practise as an advocate or an attorney in the Republic to represent an individual who has lodged an application in terms of section 82(1) [or 75].

Disclosing records to, and precautions against disclosing, by court

	85.  (1)	Despite [any other provisions of] this Act and any other law, any court hearing an application or an appeal against a decision on an application may examine any record of a governmental body to which this Act applies, and no such record may be withheld from the court on any grounds.
	(2)	Subject to subsection (3), 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 or private body which is required or permitted in terms of this Act to be withheld from disclosure upon a request for access to that record; or
	(b)	if the information officer of a governmental body, or the [head] relevant authority of that body on internal appeal, in refusing to grant access to a record in terms of section 38(2) or 40(2) {Option 1} 40(8) {Option 2} {or 42B}, refuses to confirm or deny the existence or non-existence of the record, any information as to whether the record exists.
	(2A)  Such court may—
	(a)	receive representations ex parte;
	(b)	conduct hearings in camera;
	(c)	prohibit the publication of such information in relation to the proceedings as the court determines, including information in relation to the parties to the proceedings and the contents of orders made by the court in the proceedings; and
	(d)	examine a record or a copy of a record without giving access or information in relation thereto to a party to the proceedings.
	(3)  If [such] the 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.

Burden of proof

	86.  In any legal proceedings the burden of establishing that—
	(a)	the refusal of a  request for access; or
	(b)	any decision taken in terms of section 22, 26(1), 29(3) 58 or 60,
is justified in terms of this Act is on the party claiming that it is so justified.

Decision on application

	87.  (1)	After due consideration of all written and oral evidence before a [High C]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] relevant authority of a governmental body or the head of a private body to take such action as the [High] court considers necessary within a period mentioned in the order;
	[(c)	if the application is against the refusal of an urgent request application or urgent appeal application, on the request for access to a record in respect of which that application was made;]
	(d)	which grants an interdict, interim or specific relief, a declaratory order or compensation.
	(3)	In deciding in terms of subsection (1) which order or other decision is just, the [High] court concerned must have due regard to the desirability of a speedy and inexpensive resolution of the application concerned.

Costs

	88.	A [High C]court may make such order as to costs of an application before the court as it considers appropriate 

OPTION 2: Chapter 2 - No internal appeal procedure included in Bill

CHAPTER 2
APPLICATIONS TO [HIGH] COURT

Non-exclusion of other remedies

	80.  This Chapter may not be construed to exclude or limit any other right a person has in terms of the law to remedy a matter in respect of which an application may be lodged with a [High C]court in terms of this Chapter.

[Manner of applications to [High] Court

	81.(1)	An application in terms of this Chapter must be lodged—
	(a)	with a [High C]court having jurisdiction in terms of section 83; and
	(b)	subject to this Chapter, in accordance with the rules regarding an urgent application by way of notice on motion applicable to that High Court.
	(2)  For the purposes of those rules of the High Court concerned, all applications are regarded [to be] as being urgent without any supporting documents required to set out the reasons for the urgency and why the applicant could not be afforded substantial redress at a hearing in due course.
	(3)  If the interests of justice so require, a High Court having jurisdiction may extend the period within which an application may be lodged.]

Applications regarding decisions of information officers [or heads] of governmental bodies

	82. (1)	A person—
	[(a)	that has been unsuccessful in an urgent request application {if retained}, an internal appeal to the head of a governmental body or an urgent appeal application; or]
	(b)	aggrieved by a decision of the [head] information officer of a governmental body; or [to disallow the late lodging of an internal appeal in terms of section 68(3),]
	(c)	aggrieved by a decision of the head of a private body in relation to a request for access of a record of that body,
may [appeal against the decision by way of an application] apply to a court having jurisdiction in terms of section 83 for appropriate relief in terms of section 87.
	[(2)  If an application referred to in subsection (1) is against the granting of a request for access on internal appeal that application must be lodged—
	(a)	within 30 days;  or
	(b)	if an urgent appeal application has been granted in respect of the internal appeal, within 10 working days,
after the third party concerned has been notified of the decision to grant the request on internal appeal.]
	(3)  The Human Rights Commission may [appeal by way of an application] apply to a court having jurisdiction in terms of section 83  for appropriate relief in terms of section 87 against a decision of—
	(a)	the information officer of a governmental body;  or
	(b)	[the head of a governmental body on internal appeal] the head of a private body in relation to a request for access of a record of that body. 
	[(4)	A third party notified of a decision of the head of a governmental body  to disclose information regarding a serious public safety or environmental risk in terms of section 8(5)(a), may appeal by way of an application against the decision within 10 days after the third party concerned has been notified of the decision.]

Jurisdiction of  [High C]court

	83.	A [High C]court has jurisdiction in respect of—
	(a)	a decision of the information officer [or head] of a governmental body or the head of a private body contemplated in section 82(1) which has its office or, if the body has more than one office, its main office; or
	(b)	a person that lodges an application in terms of section 82(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 C]court.

Assistance of Human Rights Commission

	84. (1)	An individual who wishes to lodge an application, but, because of illiteracy, poor literacy or a [physical] sensory disability, is unable to comply with this Chapter, may request the Human Rights Commission to assist him or her to so comply.
	(2)  If the Human Rights Commission is of the opinion that an important matter of principle is involved, the Commission may appear before a [High C]court as a party to an application.
	(3)  The Human Rights Commission may, on request, appoint a [person] legal practitioner admitted to practise as an advocate or an attorney in the Republic to represent an individual who has lodged an application in terms of section 82(1) [or 75].

Disclosing records to, and precautions against disclosing, by court

	85. (1)	Despite [any other provisions of] this Act and any other law, any court hearing an application or an appeal against a decision on an application may examine any record of a governmental body to which this Act applies, and no such record may be withheld from the court on any grounds.
	(2)  Subject to subsection (3), 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 or private body which is required or permitted in terms of this Act to be withheld from disclosure upon a request for access to that record; or
	(b)	if the information officer of a governmental body, or the [head] relevant authority of that body on internal appeal, in refusing to grant access to a record in terms of section 38(2) or 40(2) {or 42B}, refuses to confirm or deny the existence or non-existence of the record, any information as to whether the record exists.
	(2A)  Such court may—
	(a)	receive representations ex parte;
	(b)	conduct hearings in camera;
	(c)	prohibit the publication of such information in relation to the proceedings as the court determines, including information in relation to the parties to the proceedings and the contents of orders made by the court in the proceedings; and
	(d)	examine a record or a copy of a record without giving access or information in relation thereto to a party to the proceedings.
	(3)  If [such] the 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.
		
Burden of proof

	86.	In any legal proceedings the burden of establishing that—
	(a)	the refusal of a  request for access; or
	(b)	any decision taken in terms of section 22, 26, 29(3), 58 or 60,
is justified in terms of this Act is on the party claiming that it is so justified.

Decision on application

	87. (1)	After due consideration of all written and oral evidence before a [High C]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 governmental body or the head of a private body to take such action as the [High] court considers necessary within a period mentioned in the order;
	[(c)	if the application is against the refusal of an urgent request application or urgent appeal application, on the request for access to a record in respect of which that application was made;]
	(d)	which grants an interdict, interim or specific relief, a declaratory order or compensation.
		(3)	In deciding in terms of subsection (1) which order or other decision is just, the [High] court concerned must have due regard to the desirability of a speedy and inexpensive resolution of the application concerned.

Costs

	88.	A [High C]court may make such order as to costs of an application before the court as it considers appropriate.

PART 5 
HUMAN RIGHTS COMMISSION 

Additional functions of Human Rights Commission 
 	89. (1) The Human Rights Commission must— 
	(a)	annually {OR every two years} review this Act and other legislation and the common law having a bearing on [the accountability and openness of] access to information held by governmental and private bodies, respectively [as well as private bodies which exercise substantial influence over the nature of the South African society]; 
	(b)	make recommendations for— 
		(i)	the development, improvement, modernisation, reform or amendment of this Act or other legislation or common law contemplated in paragraph (a); and
		(ii)	[the compliance with any constitutional requirements about access to information; and]
		[(iii)]	procedures in terms of which governmental {and private} bodies make information electronically available; 
	(c)	 monitor the administration of this Act; 
	(d)	develop and conduct educational programmes to advance the understanding of the public, in particular of disadvantaged communities, of this Act and of how to exercise the rights contemplated in this Act; 
	(e)	encourage governmental and private bodies to participate in the development and conduct of programmes referred to in paragraph (d) and to undertake such programmes themselves; 
	(f)	promote timely and effective dissemination of accurate information by governmental bodies about their activities; 
	(g)	publish and make available a guide on how to use this Act as contemplated in section 3; 
	(h)	if reasonably possible— 
		(i)	assist any person as required by this Act; and 
		(ii)	generally, on request, assist any person wishing to exercise a right contemplated in this Act; 
	[(i)	make the determinations as contemplated in section 43;
	(j)	supply the notice as contemplated in section 66; and]
	(k)	submit reports to the National Assembly as contemplated in section 90. 
	(2) The Human Rights Commission has all such powers as are reasonably necessary or expedient to enable it to perform its duties referred to in subsection (1), including, but not limited to, the power to— 
	(a)	recommend to a governmental or private body that the body make such changes in the manner in which it administers this Act as the Commission considers advisable; 
	(b)	train information officers of governmental bodies; 
	(c)	consult with and receive reports from governmental and private bodies on the problems encountered in complying with this Act; 
	(d)	obtain advice from, consult with, or receive and consider proposals or recommendations from, any governmental or private body, official of such a body or member of the public in connection with the Commission’s functions in terms of this Act; 
	(e)	receive money from any source to perform its functions in terms of this Act; 
	(f)	make donations to any private body participating in the development or conduct of, or undertaking, educational programmes as contemplated in subsection (1)(e); 
	(g)	for the purposes of section 90(c)(xii), request the Public Protector to submit to the Commission information with respect to— 
		(i)	the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act; 
		(ii)	the nature and outcome of those complaints; and 
	(h)	generally, inquire into any matter, including any legislation, the common law and any practice and procedure, connected with the objects of this Act. 
	(3) An official of a governmental body must afford the Human Rights Commission reasonable assistance for the effective performance of its functions in terms of this Act. 

Report to National Assembly by Human Rights Commission 

	90. The Human Rights Commission must include in its annual report to the National Assembly referred to in section 181(5) of the Constitution— 
	(a)	any recommendation in terms of section 89(1)(b); 
	(b)	a statement of all money received from any source referred to in section 89(2)(e); 
	(c)	in relation to each governmental body, particulars of— 
		(i)	the number of requests for access received; 
		(ii)	the number of requests for access granted in full; 
		(iii)	the number of requests for access granted in terms of section 45; 
		(iv)	the number of requests for access refused in full and refused partially and the number of times each provision of this Act relied on to refuse access was invoked to justify refusal in full and partial refusal; 
		[(v)	the number of requests for correction and the number of cases in which a correction was made;] 
		(vi)	the number of cases in which the periods stipulated in section[s] 25(1) [and 52(7),] respectively, were extended in terms of section 26(1) [and that section, read with section 52(6), respectively]; 
		[(vii)	the number of urgent request applications and urgent appeal applications, and the number of cases in which those applications were granted;] 
		{(viii)	the number of internal appeals lodged with the [head of the body] relevant authority and the number of cases in which, as a result of an internal appeal, access was given to a record or a part thereof and a correction of inaccurate personal information was made;}
		{(ix)	 the number of internal appeals which were lodged on the ground that— 
			(aa)	a request for access was regarded [to have] as having been refused in terms of section 27;} 
			[(bb)	a request for correction was regarded [to have] as having been refused in terms of section 52(8);] 
		(x)	the number of applications made to every [High] court and the outcome thereof and the number of decisions of every [High] court appealed against and the outcome thereof; 
		(xi)	the number of applications to every [High] court which were lodged on the ground that an internal appeal was regarded [to have] as having been dismissed in terms of section 79(7); 
		(xii)	the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act and the nature and outcome thereof; and 
		(xiii)	such other matters as may be prescribed. 

Expenditure of Human Rights Commission in terms of Act 

OPTION 1:
	91. Any expenditure in connection with the performance of the Human Rights Commission’s functions in terms of this Act must be defrayed from moneys appropriated by Parliament to the Human Rights Commission for that purpose [subject to— 
	(a)	requests being received with the changes required by the context in the form prescribed for the budgetary processes of departments of State; and 
	(b)	the Exchequer Act, 1975 (Act No. 66 of 1975), and the regulations and instructions thereunder, and the Auditor-General Act, 1995 (Act No. 12 of 1995)].
OPTION 2:
# Amend section 16(3) of the Human Rights Commission Act 54 of 1994:
	“(3) The defrayal of expenditure in connection with matters provided for in this Act, in the Access to Information Act, 2000 or in sections 115 up to and including 118 of the Constitution shall be subject to—
		(a)	requests being received mutatis mutandis in the form as prescribed for the budgetary processes of departments of State, and
		(b)	the provisions of the Exchequer Act, 1975, and the regulations and instructions issued in terms thereof, as well as the Auditor-General Act, 1989 (Act No. 52 of 1989).”.

PART 6
TRANSITIONAL PROVISIONS

Application of other legislation providing for access
Option 1 for 92:
	92.(1)  The Minister must, by notice in the Gazette and within 12 months after the commencement of —
 (a)	section 10, amend {OR add} Schedule 1 to list {all} legislation which provides for access to a record of a governmental body in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 2; and
(b)	section 52, amend {OR add} Schedule 2 to list {all} legislation which provides for access to a record of a private body, in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 3.

	(2) The amendment {OR addition} in terms of subsection (1), takes effect only immediately after it is approved by Parliament or such other date as Parliament determines.
Option 1 for subsection (3):
	(3) Until the amendment {OR addition} in terms of subsection (1)  takes effect as contemplated in subsection (2)—
(a)	in the case of Schedule 1, any legislation which provides for access to a record of a governmental body in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 2, applies to the exclusion of this Act; and
	(b)	in the case of Schedule 2, any legislation which provides for access to a record of a private body, in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 3, applies to the exclusion of this Act.
Option 2 for subsection (3):
	(3) Until the amendment {OR addition}  in terms of subsection (1)  takes effect as contemplated in subsection (2)—
(a)	in the case of Schedule 1, any legislation which provides for access to a record of a governmental body in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 2, access may given in terms of that legislation. 
	(b)	in the case of Schedule 2, any legislation which provides for access to a record of a private body, in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 3, access may be given in terms of that legislation.

#	No provision for further amendment by the Minister; further amendments through Acts amending Schedules “directly”? 
#	Constitutionality of mechanism above in view of the Premier of the Western Cape Constitutional court case of 1995?  Subsection (2) not sufficient to render it constitutional since still differs from the procedural requirements for passing legislation through both Houses of Parliament?

Option 2 for 92:
	92.(1)  The Minister must,  within 12 months after the commencement of —
 (a)	section 10, introduce a Bill in Parliament proposing the amendment of this Act, by amending {OR adding} Schedule 1 in order to list {all} legislation which provides for access to a record of a governmental body in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 2; and
(b)	section 52,  introduce a Bill in Parliament proposing the amendment of this Act, by amending {OR adding} Schedule 2 in order to list {all} legislation which provides for access to a record of a private body, in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 3
Option 1 for subsection (2):
	(2) Until the amendment of this Act contemplated in subsection (1) takes effect—
(a)	in the case of Schedule 1, any legislation which provides for access to a record of a governmental body in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 2, applies to the exclusion of this Act; and
	(b)	in the case of Schedule 2, any legislation which provides for access to a record of a private body, in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 3, applies to the exclusion of this Act.
Option 2 for subsection (2):
	(2) Until the amendment of this Act contemplated in subsection (1) takes effect—
(a)	in the case of Schedule 1, any legislation which provides for access to a record of a governmental body in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 2, access may given in terms of that legislation; and 
	(b)	in the case of Schedule 2, any legislation which provides for access to a record of a private body, in a manner which, including, but not limited to, the payment of fees,  is not substantially more onerous than {OR is substantially similar to, or more favourable than} the manner in which access may be obtained in terms of Part 3, access may be given in terms of that legislation.

Periods for dealing with requests

	93.  Despite section 25 —
(a)	for 12 months from the date that {Chapters 3, 4 and 5 of} Part 2 takes effect in respect of a governmental body, the reference to 30 days  in section 25(1)  and any other reference to that period in other provision of this Act must be construed as a reference to 90 days in respect of that governmental body;
(b)	for 12 months following the 12 months referred to in paragraph (a) from the date that {Chapters 3, 4 and 5 of} Part 2 takes effect in respect of a governmental body, the reference to 30 days  in section 25(1) and any other reference to that period in other provision of this Act must be construed as a reference to 60 days in respect of that governmental body.

#	Adjust third party notification-period (Part 2: Chapter 5) accordingly?

#	Similar transitional provision for private bodies?

Correction of personal information

	93A. If no provision for the correction of personal information about a person contained in a record of a governmental or private body exists, that governmental or private body must take reasonable steps {to establish {internal} measures} providing  for such correction.

PART 7
GENERAL PROVISIONS

{Liability

	94.  No person is criminally or civilly liable for anything done in good faith in the exercise or performance or purported exercise or performance of any power or duty in terms of  this Act.}
				
Offences 
	95. {A person who with intent to deny a right of access in terms of this Act—
(a)	destroy, damage or alter a record;
(b)	conceal a record; or
(c)	falsify a record or make a false record,
commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years.}
	#	See cl 85(c) in original Bill: discloses a record of a governmental body, which record is classified in terms of the regulations made in terms of section 86(c) and has been unlawfully obtained - refer to certificate clauses (cl 40 & 42B)?
#	Include a contravention of cl 21 as an offence?

Regulations 

	96. The Minister [of Justice] may, after consultation with the Human Rights Commission and with the approval of Parliament, by notice in the Gazette make regulations regarding— 
	(a)	any matter which is required or permitted by this Act to be prescribed; 
	(b)	any notice required by this Act; 
	(c)	[the classification of records of governmental bodies] uniform criteria to be applied by the information officer of very governmental body when deciding which kind of records are to be made available in terms of section 14;
	(d)	any administrative or procedural matter necessary to give effect to the provisions of this Act.

Short title and commencement 

	97. (1) This Act is the [Open Democracy Act, 1998,] Access to Information Act, 2000, and takes effect on a date determined by the President by proclamation in the Gazette. 
	(2) Different dates may be so determined in respect of—
(a)	different provisions of this Act;
Option 1 for (b):
	(b)	different governmental bodies in the national, provincial or local sphere of government and other categories of governmental bodies;
Option 2 for (b):
(b)	different categories of governmental bodies, including, but not limited to different governmental bodies contemplated in—
(i)	paragraph (a);
		(ii)	paragraph (b)(i); and
(iii)	paragraph (b)(ii),
of the definition of “governmental body” in section 1; # Refer to Option 2 of definition of “governmental body”.

	(c)	 different categories of private bodies.

Draft: Revised Draft of Promotion of Access to Information Bill (15/12/99)
OPD 95
"OPEN DEMOCRACY" BILL
# See new proposed short title in clause 87
(Revised draft - 15 December 1999)
EXPLANATORY NOTE:
# 	Proposed deletions are in square brackets and in bold.
#	Proposed insertions or alternative wordings are underlined or in { } or [ ] but not in bold.
CHANGES NOT YET INCORPORATED:
*	Most of the amendments proposed on 9 and 10 December with regard to the part providing for access to records of private bodies are not reflected in this draft (see new Part 4), but the changes to the override (cl 48T and 48Ta) as well as some other minor changes have been made
*	Most of the amendments proposed on 13 and 14 December with regard to the exemptions for governmental bodies (cl 28 to 44) are not reflected in this draft
*	Some of the amendments (already discussed by the Committee) in respect of clauses 13 to 27 {procedures for access to governmental records}; clauses 45 to 47 (third party notification}; clauses 82 and 83 {functions of Human Rights Commission} and clause 85 {offences} are not reflected in this draft
*	"Contents of Act" (page 3) must also be brought in line with the amended content
CROSS-REFERENCES AND OTHER REFERENCES:
^	Cross-references must still be corrected
^	References to all deleted provisions must be omitted
^	Defined words which are proposed to be amended must be changed throughout the Bill 
>	Consistency in language to be obtained, and the improvement of formulations will be undertaken
To give effect to the constitutional right of access to any information held by the state and any information that is held by another persons and that is required for the exercise or protection of any rights; [to make available to the public information about the functions of governmental bodies; to provide persons with access to their personal information held by private bodies; to provide for the correction of personal information held by governmental or private bodies and to regulate the use and disclosure of that information; to provide for the protection of persons disclosing evidence of contraventions of the law, serious maladministration or corruption in governmental bodies]; and to provide for matters connected therewith.

PREAMBLE
OPTION 1
Whereas the Bill of Rights in the Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996), enshrines the rights of all people in the Republic and affirms the democratic values of human dignity, equality and freedom;
And whereas the Constitution places a duty on the State to respect, protect, promote and fulfil the rights in the Bill of Rights;
And whereas the system of Government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in state institutions which often led to an abuse of power and human rights violations;
And whereas section 32(1)(a) of the Constitution provides that everyone has the right of access to any information held by the State and that national legislation must be enacted to give effect to this right;
And whereas it is necessary to create a culture of transparency and accountability of all organs of State in order to promote a society in which the people of South Africa have access to information held by the State which will assist the public in understanding the powers, duties and operations of governmental bodies;
And bearing in mind that national legislation may, in terms of section 32(2) of the Constitution, provide for reasonable measures to alleviate the administrative and financial burden on the State, good governance, privacy and commercial confidentiality should not be jeopardised in giving effect to the right of access to information;
And whereas section 32(1)(b) of the Constitution provides that 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 rights, and that the right may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom:
OPTION 2
RECOGNISING THAT—
*	the system of Government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in State institutions which often led to an abuse of power and human rights violations;
*	the Constitution of the Republic of South Africa, 1996, commits South Africa and its people to the values of human dignity, equality and freedom;
AND BEARING IN MIND THAT—
*	the State must respect, protect, promote and fulfil the rights in the Bill of Rights which is the cornerstone of democracy in South Africa;
*	in terms of section 32 of the Constitution national legislation must be enacted to give effect to the right of access to information;
*	reasonable legislative measures may, in terms of section 32 of the Constitution, be provided to alleviate the administrative and financial burden on the State in giving effect to its obligation to promote and fulfil the right of access to information;
AND IN ORDER TO—
*	address the secretive and unresponsive culture in State institutions of the past and to actively promote a society in which the people of South Africa have access to information held by the State;
*	create a culture of transparency and accountability of all organs of State by giving effect to the right of access to information;
*	provide the people of South Africa with access to information held by persons other than the State that is required for the exercise of any of their rights:

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, asfollows:— 
CONTENTS OF ACT 
Section 
PART 1 
INTRODUCTORY PROVISIONS 
1.	Interpretation 
[2.	Application of Act] 
3.	Objects of Act 
4.	[Designation of information officers, and] delegation of powers by information officer [and head] of governmental body
PART 2 
GUIDE ON ACT AND MANUALS ABOUT FUNCTIONS OF GOVERNMENTAL BODIES 
5.	Guide on how to use Act 
6.	Manuals on functions of, and index of records held by, governmental bodies 
7.	Information in telephone directory 
[8.	 Announcement of public safety or environmental risk] 
PART 3 
ACCESS TO RECORDS OF GOVERNMENTAL BODIES 
CHAPTER 1 
RIGHT AND MANNER OF ACCESS 
9.	Right of access to records of governmental bodies 
9A.	Part applies to record whenever it came into existence 
9B.	Application of other legislation prohibiting or restricting disclosure
9C.	Application of other legislation providing for access
10.	Use of Act for criminal or civil discovery of governmental bodies’ records excluded 
11.	Right of disclosure of record to which access is given 
[12.	Access to records in terms of other law] 
12A.	Delegation by information officer
12B.	Manual ...
12C.	Voluntary disclosure ...
12D.	Information in telephone directory
13.	Form of requests 
14	 Duty to assist requesters 
15.	Transfer of requests 
16.	Preservation of records until final decision on request 
17.	Payment of request fee 
18.	Payment of deposit
18A.	Records that cannot be found or do not exist
18B.	Records to published/deferral of access 
19.	Decision on request and notice thereof 
20.	Urgent requests 
21.	Extension of period to deal with request 
22.	Deemed refusal of request 
23.	Severability 
24.	Access fees 
25.	Access and forms of access 
{25A.	Access to health records}
26.	Language of access 
27.	Reports to Human Rights Commission 
CHAPTER 2 
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS 
28.	Mandatory and discretionary grounds for refusal 
29.	Mandatory protection of privacy 
30.	Health of requester 
31.	Mandatory protection of third party commercial information 
32.	Records supplied in confidence 
33.	Safety of individuals and security of structures and systems 
34.	Law enforcement 
35.	Privileged from production in legal proceedings 
36.	Republic’s defence and security, including intelligence matters 
37.	International relations 
38.	Economic interests of Republic and commercial activities of governmental bodies 
39.	Operations of governmental bodies 
40.	Frivolous or vexatious requests 
[41.	Records that cannot be found or do not exist]
42.	Published records and records to be published 
[43.	Records already open to public]
44.	Mandatory disclosure in public interest 
CHAPTER 3 
THIRD PARTY INTERVENTION 
45.	Notice to third parties 
46.	Representations by third parties 
47.	Decision on representations for refusal and notice thereof 
PART 4 
ACCESS TO[, CORRECTION OF AND CONTROL OVER PERSONAL INFORMATION] RECORDS [ HELD BY] OF PRIVATE [AND GOVERNMENTAL] BODIES
[48.	Application of Part 
49.	Use of Act for criminal or civil discovery of private bodies’ records excluded
50.	Access to personal information held by private bodies 
51.	Correction of personal information held by private bodies 
52.	Correction of personal information held by governmental bodies 
53.	Use of personal information by private bodies 
54.	Use of personal information by governmental bodies 
55.	Disclosure of personal information by private bodies 
56.	Disclosure of personal information by governmental bodies 
57.	Consistent purpose 
58	 Consent to use or disclose personal information 
59.	Use and disclosure of personal information held before commencement 
60.	 Register of uses and disclosures not in governmental body’s manual 
61.	 Collection of personal information by governmental bodies 
62.	Retention, accuracy and disposal of personal information by governmental bodies]
#	HEADINGS OF "ACCESS TO RECORDS OF PRIVATE BODIES" TO BE INSERTED.
[PART 5 
PROTECTION OF WHISTLE-BLOWERS 
63.	Exclusion of liability if disclosing contravention of law, corruption or maladministration 
64.	Exclusion of liability if disclosing information after publication 
65.	Protection against reprisals 
66.	Notice to officials of provisions of Part and other complaint procedure]
PART 6
APPEALS AGAINST DECISIONS 
CHAPTER 1 
INTERNAL APPEALS 
67.	Right of internal appeal to [head of governmental body] relevant authority 
68.	Manner of internal appeal, and appeal fees 
69.	Notice to and representations by other interested parties 
70.	Decision on internal appeal and notice thereof 
[71.	Urgent internal appeals] 
CHAPTER 2 
APPLICATIONS TO [HIGH] COURT 
72.	Non-exclusion of other remedies 
73.	Manner of applications to [High] court 
74.	Applications regarding decisions of information officers [or heads of] governmental bodies 
75.	Applications regarding contravention of Part 5 
76.	Jurisdiction of [High] court 
77.	Assistance of Human Rights Commission 
78.	Production of records of governmental bodies to [High] court 
79.	Burden of proof 
80.	Decision on application 
81.	Costs 
PART 7 
[MISCELLANEOUS PROVISIONS] HUMAN RIGHTS COMMISSION 
82.	Additional functions of Human Rights Commission 
83.	Report to National Assembly by Human Rights Commission 
[84.	Expenditure of Human Rights Commission in terms of Act]
PART 8
GENERAL PROVISIONS
85.	Offences 
86.	Regulations
86A.	Transitional provisions
87.	Short title and commencement 

PART 1 
INTRODUCTORY PROVISIONS 
Interpretation
1. (1) In this Act, unless the context otherwise indicates— 
"access fee" means a fee prescribed for the purposes of section 24;
"application" means an application to a [High] court in terms of section 74 [or 75, as the case may be];
["commercial requester" means a requester other than a personal or non-commercial requester;]
"Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
"court" means—
(a)	a High Court or another court of similar status; or
(b)	a Magistrate's Court designated in writing by the Minister, after consultation with the Magistrates Commission;
"employee", in relation to a governmental or private body, means—
(a)	any person in the employ (permanently or temporarily and full-time or part-time) of the governmental or private body, including the head of the body, in his or her capacity as such;
(b)	a member of the governmental or private body; # To replace definition of "official" 
Option 1:
	"governmental body" means— 
	(a)	any department of state or administration in the national, provincial or local sphere of government or any other functionary or institution exercising a power or performing a duty in terms of the Constitution or a provincial constitution or exercising a public power or performing a public function in terms of any legislation, and includes, without limiting the generality of the foregoing, any body— 
	(i)	of which the accounts and financial statements which are required by legislation to be audited by the Auditor-General; 
	(ii)	of which the majority of the members are appointed, whether alone or on the advice or recommendation of, or in or after consultation with some other person or body, by the President, the Deputy President, a Minister, the Premier of a province, a member of the executive council of a province or of the municipal council of a municipality, another governmental body, or more than one of those authorities; 
	(iii)	in which the state, a province or a municipality is the majority or controlling shareholder; 
		(iv)	of which more than 50 per cent of its expenditure is defrayed directly or indirectly from funds voted by Parliament, a provincial legislature or a municipal council; 
(v)	which is or was dependent for more than 50 per cent of its total permanent capital needs, including share capital, loans or other forms of permanent capital, on funds voted by Parliament, a provincial legislature or a municipal council, and in which permanent capital the state, a province or a municipality still holds a direct or indirect interest of more than 50 per cent; 
	(vi)	which supplies products or services in terms of monopolistic rights conferred on it by legislation; 
		(vii)	in respect of which the state, a province or a municipality creates the probability through contingent liability that funds voted by Parliament, a provincial legislature or a municipal council will have to be used in future to defray more than 50 per cent of the body’s expenditure or to provide more than 50 per cent of the body’s permanent capital; 
	(viii)	of which the funds, assets or other property are administered by the state, a province or a municipality on a trust basis on behalf of the inhabitants of the Republic or of a particular interest group; or 
	(b)	any other body which was a body contemplated in paragraph (a)(vi) and which exercises in a monopolistic manner substantially the same functions as it performed when it was a body contemplated in paragraph (a)(vi),} 
but does not include the Cabinet, a judicial officer or a body regarded as being part of another body as contemplated in subsection (2) or (3); # Omit reference to "cabinet if clause 38B is included
Option 2:
	"governmental {OR public} body" means— # If "public body" is used - move def. in line with alphabetical order & amend rest of Bill accordingly. 
	(a)	any department of state or administration in the national, provincial or local sphere of government; or
(b)	any other functionary or institution—
(i)	exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or
(ii)	exercising a public power or performing a public function in terms of any legislation, 	but does not include—
(i)	the Cabinet; or # Omit (i) if clause 38B is included
(ii)	{the judicial functions of} a judicial officer of a court referred to in section 166 of the Constitution or a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996; # Insert these exclusions in separate "application" clause/s?
"head", of, or in relation to— 
[(a)	a governmental body— 
(i)	the case of a national department, provincial [administration] department or organisational component mentioned in [the first column] Column 1 of Schedule 1, [or] 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), means the officer who is the incumbent of the post bearing the designation mentioned in [the second column] Column 2 of the said Schedule 1, [or] 2 or 3 opposite the name of the relevant national department, provincial [administration] department or organisational component or the officer who is acting as such; 
(ii)	in the case of any other governmental body, means the chief executive officer of that governmental body or the person who is acting as such; 
(b)]	a private body— 
Option 1:
(i)	in the case of a natural person, that natural person; 
(ii)	in the case of any other private body, the chief executive officer of the private body, or the equivalent thereof, or the person who is acting as such;
Option 2:
(i)	in the case of a natural person who carries on a trade, business or profession, that natural person; 
(ii)	in the case of any other private body, the chief executive officer of the private body or the person who is acting as such;
"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 for the well-being of individuals; # Previously in clause 30
"Human Rights Commission" means the South African Human Rights Commission referred to in section 181(1)(b) of the Constitution; 
["inaccurate", in relation to a record or information contained therein, means incorrect, incomplete or misleading with respect to the purpose for which the information may used or disclosed;]
	"information officer", in relation to a governmental body, [means the person appointed as information officer of that governmental body in terms of section 4(1)(a)]— 
(a)	in the case of a national department, provincial department or organisational component mentioned in Column 1 of Schedule 1, [or] 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), means the officer who is the incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule 1 , 2 or 3 opposite the name of the relevant national department, provincial department or organisational component or the officer who is acting as such; 
(b)	in the case of any other governmental body, means the chief executive officer of that governmental body, or the equivalent thereof, or the person who is acting as such; 
"internal appeal" means an internal appeal to [the head of a governmental body] the relevant authority in terms of section 67(1);
"international organisation" means an international organisation— 
(a)	of states; or 
(b)	established by the governments of states;
"Minister" means the Minister responsible for the administration of justice;
"individual’s next of kin" means— # Previously in clause 29
Option 1 for paragraph (a):
	(a)	an individual to whom the individual was married or with whom the individual lived as if they were married [or with whom the individual cohabited], immediately before the individual’s death;
Option 2 for paragraph (a):
(a)	an individual to whom the individual was married or with whom the individual lived as if they were married;
	(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. 
["non-commercial requester" means a requester seeking access to a record for the purpose of— 
(a)	gathering news for the production of, or disseminating news by, a printed or electronic medium; or 
(b)	research or education by a non-profit or an educational body or [a member or] an employee of that body in his or her capacity as such;]
"notice" means notice in writing, and "notify" and "notified" have corresponding meanings; 
"objects of this Act" means the objects of this Act referred to in section 3(1);
["official", in relation to a governmental body, means any person in the employ (permanently or temporarily and full-time or part-time) of that governmental body, including the head of the body, in his or her capacity as such; (iv)] # See def. of "employee" above
"person" means an individual or a juristic person;
"personal information" means information about an identifiable person;
	["personal information bank" means a collection or compilation of personal information that is organised or capable of being retrieved by using a person’s name or an identifying number or another particular assigned to the person;] # Now only used in Option 1 of def. of "private body" & in cl 6(2)(d)(ii)
["personal requester" means a requester seeking access to a record containing information about the requester;]
"prescribed" means prescribed by regulation in terms of section 86;
Option 1:
"private body" means a person, other than a governmental body, in possession of or controlling a personal information bank;
Option 2:
"private body" means—
(a)	if a natural person carries on any trade, business or profession, that natural person in such capacity; or
(b)	a partnership or a juristic person,
but excludes a governmental body;
"public enterprise" means any organ of state referred to in paragraph (b)(ii) of the definition of "governmental body";
"public safety or environmental risk" [includes] means the risk or potential risk to the environment or the public (including individuals in their place of work) associated with— 
(a)	a product or service which is available to the public; 
(b)	a substance which is released into the environment or workplace or is present in food for human or animal consumption; 
(c)	a form of public transport; or
(d)	an installation or manufacturing process or substance which is used in that installation or process;
"record" means recorded information regardless of form or medium, and includes— 
(a)	a record which is capable of being produced by means of computer equipment (whether hardware or software or both) which is used for that purpose by a governmental body; or 
(b)	a part of a record, 
and, of or in relation to— 
(i)	a governmental body, means a record in the possession or under the control of that governmental body [or of an official, of the body] and whether or not the record was created by the body [and whether it was created before or after the commencement of this section]; 
(ii)	a private body, means a record in the possession or under the control of that private body or any person in the employ (permanently or temporarily and full-time or part-time) of the private body (including the head of the body) in his or her capacity as such, and whether or not it was created by the body [and whether it was created before or after the commencement of this section];
#	If in the Bill the words "a record held by a ... body" instead of " a record of a ... body" are used, the def. of "record of, or in relation to a ... body" could be omitted.
"relevant authority", in relation to—
(a)	governmental body in the national sphere of government, means the Minister responsible for that governmental body;
(b)	governmental body in the provincial sphere of government, means the member of the Executive Council responsible for that governmental body;
(c)	a municipality, means the mayor of the municipality; # Omit if provision is not made for internal appeal
"request fee" means a fee prescribed for the purposes of section 17;
"request for access", in relation to—
(a)	a governmental body, means a request for access to a record of a governmental body in terms of section 9[, and "requester", in relation to that request, means a person making that request];
(b)	a private body means a request for access to a record of a private body in terms of section 48A;
["request for correction" means a request for the correction of personal information in a record of a governmental body in terms of section 52(2), and "requester", in relation to that request, means a person making that request;]
"requester", in relation to—
Option 1 for par (a):
(a)	a governmental body, any person other than a governmental body or an employee thereof, making a request for access to a record of that governmental body; or
Option 2 for par (a):
(a)	a governmental body, any person other than a governmental body or an employee thereof, but including a public enterprise or an employee thereof, making a request for access to a record of that governmental body; or
Option 1 for par (b):
(b)	a private body, any person other than a governmental body or an employee thereof, making a request for access to a record of that private body;
Option 2 for par (b):
(b)	a private body, any person including a governmental body or an employee thereof, making a request for access to a record of that private body;
"third party", in relation to a request for access—
(a)	a record of a governmental body, means any person (including the government of a foreign state, an international organisation or an organ of that government or organisation) other than— 
(i)	the requester concerned; 
(ii)	a person contemplated in section 13(5); or 
(iii)	a governmental body or an employee thereof;
(b)	a record of a private body, means any person including a governmental body or an official thereof{, other than the requester or} a person acting on his or her behalf;
"this Act" includes any regulation made and in force in terms of section 86;
"transfer", in relation to a record, means transferred in terms of section 15(1) or (2), and "transferred" has a corresponding meaning;
"urgent appeal application" means an application referred to in section 71(1); (ii) 
"urgent request application" means an application referred to in section 20(1);
"working day" means any day other than a Saturday, Sunday or public holiday.
#	Subsection (2) and (3) below in separate clause - see proposed heading?
Body regarded as part of another governmental body
(2) For the purposes of this Act, a board, council, committee, commission or other body— 
(a)	established or constituted in terms of legislation; or 
(b)	wholly or partly constituted by appointment made by the President, the Deputy President, a Minister, the Premier of a province, a member of the Executive Council of a province or of the Municipal Council of a municipality, a governmental body, or more than one of those authorities, 
to manage or administer any activity of, to exercise any power of, to perform any duty of, or to advise or assist, a body contemplated in paragraph (a) or (b) of the definition of "governmental body" in subsection (1) is regarded as being part of that body. 
Option 1 for subsection (3):
(3) For the purposes of this Act, the [Human Rights Commission] Minister may, in the prescribed manner, determine—
(a)	that a governmental body is to be regarded as being part of another governmental body; or 
(b)	that a category of governmental bodies is to be regarded as one governmental body with such information officer as the Minister designates.
Option 2 for subsection (3):
(3) For the purposes of this Act, the Minister may, in the prescribed manner, determine that two or more governmental bodies are to be regarded as one governmental body with such information officer as the Minister, after consultation with the governmental bodies concerned, designates.
# Subsection (2) and (3) above - similar provisions for private bodies?
#	Subsection (4) and (5) below in separate clause - see proposed heading?
Records held by employee of governmental or private body
(4) For the purposes of this Act, a record in the possession or under the control of [OR held by]—
(a)	an employee of a governmental body, other than a member of Parliament or a provincial legislature, or an employee of a private body, in his or her capacity as such; or
(b)	an independent contractor engaged by a governmental or private body in his or her or its capacity as such,
is regarded as being in the possession or under the control of [OR held by] that governmental or private body, as the case may be.
(5) If a body exercises a public power or performs a public function, the provisions of this Act regarding any request for access to a record of a governmental apply in respect of any request for a record held by the body in relation to the exercise of that power or the performance of that function.
[Application of Act 
2. This Act applies despite the provisions of any other legislation.
Alternative 1:
Conflict with other legislation
2. If any conflict arises between this Act and any other legislation, this Act prevails.
Alternative 2:
2. If any conflict arises between this Act and any other legislation—
(a)	which conflict relates to access to a record of a governmental or private body, the legislation most favourable to such access prevails; or {Should, in case of government records, be considered together with clause 43.}
(b)	in other case, this Act prevails over that legislation] 
# Dealt with in Parts containing provisions regarding access to government and private records. 

Objects of Act 
3. (1) The objects of this Act are— 
(a)	to give effect to the constitutional right of access to any information held by the state by providing public access, as swiftly, inexpensively and effortlessly as reasonably possible, to that information [without jeopardising good governance, privacy and commercial confidentiality] subject to justifiable limitations; 
(b)	to require governmental bodies to make information available that will assist the public in the powers, duties and operation of governmental bodies; 
(c)	to [provide persons with access to their personal information held by private bodies] give effect to the constitutional right of access to information held by a private body that is required for the exercise or protection of any rights subject to justifiable limitations;
[(e)	to regulate the use and disclosure of personal information held by governmental or private bodies; 
(f)	to protect persons disclosing evidence of contraventions of the law, maladministration or corruption in governmental bodies;] and 
(g)	generally, to promote transparency and accountability of all organs of state by providing the public with timely, accessible and accurate information and by empowering the public to effectively scrutinise, and participate in, governmental decision making that affect them. 
(2) When interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects. 
# Clause 4 now in Part 3
[PART 2 
GUIDE ON ACT AND MANUALS ABOUT FUNCTIONS OF 
GOVERNMENTAL BODIES] 
Guide on how to use Act 
5. (1) The Human Rights Commission must, within six months after the commencement of this section, publish in each official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act. 
(2) The guide must, without limiting the generality of subsection (1), include a description of— 
(a)	the objects of this Act; 
	(b)	the postal and street address, phone and fax number and, if available, electronic mail address of— 
	(i)	the information officer of every governmental body; and 
	(ii)	every deputy information officer of every governmental body appointed in terms of section 4(1)(b); 
	(c)	the manner and form in which a request for— 
	(i)	access to a record of a governmental body; and
	(ii)	access to a record of a private body [containing personal information; and
	(iii)	correction of personal information held by a private body and a governmental body, 
contemplated in sections 9 , 50, 51 and 52 must be made];
	(d)	the assistance available from the information officer of a governmental body and the Human Rights Commission in terms of this Act; 
	(e)	the manner of lodging— 
	(i)	an internal appeal with the [head of a governmental body] relevant authority; and
	(ii)	an application with a [High] court; 
	(f)	all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, except the remedies referred to in paragraph (e); 
	(g)	the manual to be published by every governmental body and private body in terms of [section 6] this Act, the information contained therein and how to obtain access to the manual; and 
	[(h)	the categories of records open to the public in terms of legislation as contemplated in section 43 and how to obtain access to those records] the provisions of section ...["right to know"]. 
(3) The Human Rights Commission must, if necessary, update and publish the guide at intervals of not more than one year. 
(4) The guide must[— 
	(a)	if reasonably possible, be made available on the Internet by the Human Rights Commission; and 
	(b)	otherwise] be made available as prescribed. 
# Clauses 6 and 7 now in Part 3 as clause 12B and 12D
[Announcement of public safety or environmental risk 
8. (1) If there are reasonable grounds for believing that— 
	(a)	a record of a governmental body reveals a serious public safety or environmental risk; and 
	(b)	it is in the public interest to disclose the record to the public or persons affected, 
the head of the body must, subject to this section, as soon as reasonably possible, so disclose the record. 
(2) If the record referred to in subsection (1) contains information contemplated in section 29(1) or 31(1) (in this section referred to as "third person information"), the head of the governmental body concerned must, before disclosing the record, inform by the fastest means reasonably possible, the person to whom or which the information relates (in this section referred to as the "third person") of the intended disclosure, unless all necessary steps to locate the third person within a reasonable period have been unsuccessful. 
(3) When informing a third person in terms of subsection (2), the head of the governmental body concerned must— 
	(a)	state that he or she intends disclosing a record that contains third person information and describe that information; and 
	(b)	inform the third person that he or she may, within the period referred to in subsection (4) after he or she is informed, make written or oral representations to the head of the body why the third person information should not be disclosed. 
(4) A third person informed in terms of subsection (2) of an intended disclosure may, within such reasonable period as the head of the relevant governmental body determines, make written or oral representations to that head why the third person information should not be disclosed. 
(5)(a) The head of the governmental body concerned must— 
	(i)	after due regard to any representations made by a third person in terms of subsection (4) and the grounds for disclosure contemplated in subsection (1)(a) and (b), decide whether the third person information should be disclosed or not; and 
	(ii)	notify the third person informed in terms of subsection (2) and a third person not located as contemplated in that subsection, but that can be located by taking all necessary steps before the decision is taken, of the decision. 
(b) If a third person cannot be located as contemplated in subsection (2), any decision whether to disclose the third person information must be made with due regard to the fact that the third person did not have the opportunity to make representations why the information should not be disclosed. 
(6) If the head of a governmental body decides in terms of subsection (5) to disclose the third person information, the notice in terms of that subsection must state— 
	(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)	the reasons for the decision in such manner as to enable the third person— 
	(i)	to understand the justification for the decision of the head of the body; 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 person; 
	(c)	that the third person may lodge an application with a High Court against the decision of the head of that body within 10 working days after notice is given, and the procedure for lodging that application; and 
	(d)	 that the third person information will be disclosed after the expiry of 10 working days after notice is given, unless such an application is lodged within that period. 
(7) If the head of a governmental body decides in terms of subsection (5) to disclose the third person information, the head must disclose that information after the expiry of 10 working days after notice is given in terms of that subsection, unless an application with a High Court is lodged against the decision within that period or an extended period granted in terms of section 73(3).
(8) Subsections (2) to (7) do not apply if the public interest in the disclosure of the third party information to the public or persons affected clearly outweighs the need for non-disclosure contemplated in subsection (2).]

PART 3 
ACCESS TO RECORDS OF GOVERNMENTAL BODIES 
CHAPTER 1 
RIGHT AND MANNER OF ACCESS 
Right of access to records of governmental bodies 
9.(1) Any person must[, on request, but subject to this Act,] be given access to any record of a governmental body if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 2 of this Part. 
Option 2 for subsection (1):
(1) Any person must, on request, be given access to any record of a governmental body, including, but not limited to, a record containing personal information about that person if—
(a)	that person complies with all the procedural requirements in this Act relating to a request for access to that record; and
(b)	access to that record is not refused in terms of any ground for refusal contemplated in Chapter 2 of this Part. . # See s29(1) & (3) below
(2) A person’s right of access contemplated in subsection (1) is, subject to this Act, not affected by—
(a)	any reasons the person gives for requesting access; or
(b)	the information officer’s belief as to what are his or her reasons for requesting access.
Part applies to record whenever it came into existence 
9A. This Part applies to a record of a governmental body regardless of when the record came into existence.
Application of other legislation prohibiting or restricting disclosure
Option 1:
9B.(1) Subject to section 5, this Part applies to the exclusion of any provision of other legislation that—
(a)	prohibits or restricts the disclosure of a record of a private body; and
(b)	is materially inconsistent with the objects of this Act or any specific provision of this Part.
{(2) For the purposes of subsection (1), the manner in which access to a record of a private body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.}
Option 2:
9B.(1) Subject to section 5, if any conflict arises between [any provision of] this Part and [any provision of] other legislation that—
(a)	prohibits or restricts the disclosure of a record of a private body; and
(b)	is materially inconsistent with the objects of this Act {r any specific provision of this Part}
[the provision of] this Part prevails.
{2) For the purposes of subsection (1), the manner in which access to a record of a private body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.}
Application of other legislation providing for access
#	NB STILL BUSY WITH REDRAFTING OF THIS CLAUSE
9C .(1) Any legislation providing for access to a record of a governmental body which is listed in the Schedule ...
(2) ....
Option 2 for subsection (1):
(1) Nothing in this Part, except subsection (2), prevents the giving of access to a record of a private body otherwise than in terms of this Act if that is permitted or required by any other law.
(2) If the manner in which access may be given, including, but not limited to, the payment of fees, in terms of the other law referred to in subsection (1), is more onerous than access to that record would have been in terms of this Part, this Part applies to the exclusion of that other law.
(3) This Part does not apply to any record of a private body described in a list published by notice in the Gazette in terms of section 6(2). # Insert in clause 12C?
Use of Act for criminal or civil discovery of governmental bodies’ records excluded 
OPTION 1:
10. No request for access to a record of a governmental body may be made in terms of this Act for the purpose of criminal or civil discovery provided for in any other law.
OPTION 2:
10.(1) A person may not request access to a record of a governmental body in terms of section 1 for the purpose of criminal or civil proceedings {after the commencement of such proceedings} if the production of that record for that purpose is regulated by any other law.
Option 1 for subsection (2):
(2) Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in such criminal or civil proceedings {unless the exclusion of such record would be detrimental to the interests of justice}.
Option 2 for subsection (2):
(2) Any person that contravenes subsection (1) is guilty of an offence and is, on conviction liable to imprisonment for a period of ... or a fine.
Option 2 - Phrased as an exemption to be included in Chapter 2 below:
The head of a governmental body may refuse a request for access to a record of a private body if—
(a)	the record is required for the purpose of criminal or civil proceedings {after the commencement of such proceedings}; and
(b)	the production of that record for that purpose is regulated by any other law.
Right of disclosure of record to which access is given 
	11. 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 governmental body to which access is given in terms of this Act. # Statutory law?
[Access to records in terms of other law 
	12. Nothing in this Act, except section [56] 2, prevents a governmental body from giving access to a record of that body in accordance with any other law.] # Included as cl 9C
[Designation of information officers, and] Delegation of powers by information officer [and head of governmental body] #	Previously clause 4
12A. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment of personnel of the governmental body concerned, designate[— 
(a)	a person as the information officer of the body; and 
(b)]	such number of suitable persons as deputy information officers as are necessary to render the governmental body as accessible as reasonably possible for requesters of its records. 
(2) The information officer of a governmental body has direction and control over every deputy information officer of that body. 
(3) The information officer of a governmental body may delegate a power or duty conferred or imposed on that information officer by this Act to a deputy information officer of that governmental body.
[(4) The head of a governmental body may delegate a power or duty conferred or imposed on the head by this Act to any official of that body who is— 
(a)	not the information officer or a deputy information officer of that body; and 
(b)	more senior than that information officer.]
(4) The decisions whether to delegate a power or duty in terms of subsection (3), the information officer must give due consideration to the need to render the governmental body as accessible as reasonably possible for requesters of its records.
(5) Any power or duty delegated in terms of subsection (3) [or (4)] must be exercised or performed subject to such conditions as the person who made the delegation considers necessary. 
(6) Any delegation in terms of subsection (3) [or (4)]— 
(a)	must be in writing; 
(b)	does not prohibit the person who made the delegation from exercising the power concerned or performing the duty concerned himself or herself; 
	(c)	may at any time be withdrawn or amended in writing by that person. 
(7) Any right or privilege acquired, or any obligation or liability incurred, as a result of a decision in terms of a delegation in terms of subsection (3) [or (4)] is not affected by any subsequent withdrawal or amendment of that decision.
Manual on functions of, and index of records held by, governmental body # Previously clause 6
12B. (1) This section does not apply to a governmental body which is a public enterprise [that operates a system of financial administration separate from the national, provincial and local spheres of government].
(2) Within 12 months after the commencement of this section or the coming into existence of a governmental body, the [head] information officer of the governmental body concerned must publish in at least two official languages a manual containing— 
(a)	a description of its structure and functions; 
(b)	the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of the body and of every deputy information officer of the body appointed in terms of section [4] 12A(1)(b); 
	(c)	a description of the guide referred to in section 5 and how to obtain access to it; 
(d)	in sufficient detail to facilitate a request for access to, and for correction of personal information in, a record of the body, a description of— 
(i)	the subjects on which the body holds records and the categories of records held on each subject; 
(ii)	every personal information bank held by the body, including, in respect of each bank— 
(aa)	the identification of the bank and a description of the categories of persons to whom or which the bank relates; 
(bb)	a statement of the purposes for which the information in the bank was obtained or the bank was compiled and a statement of the purposes consistent with those purposes for which the information in the bank is used or disclosed; and 
			(cc)	a statement of the standards of retention and disposal applied to information in the bank as contemplated in section 62(1) and (3); 
(e)	[a description of the categories of records of the body open to the public in terms of legislation as contemplated in section 43 and how to obtain access to those records] the latest notice, published in terms of section12C, regarding the kinds of records of the body which are available without a person having to request access in terms of this Part;
[(f)	a description of the duty of the head of the body to disclose in terms of section 8 records revealing a serious public safety or environmental risk; ]
(g)	a description of the services available to members of the public from the body and how to gain access to those services; 
		(h)	a description of any arrangement or provision for a person (other than a governmental body) by consultation, making representations or otherwise, to participate in or influence— 
		(i)	the formulation of policy; or 
		(ii)	the exercise of powers or performance of duties, 
by the body; 
		(i)	a description of all remedies available in respect of an act or a failure to act by the body; 
		[(j)	a description of all remedies (including the procedure contemplated in section 63) available to a member of the public or an [official] employee of the body who wishes to report or otherwise remedy an impropriety contemplated in section 63 and the protection for an [official] employee of the body against reprisals provided for in section 65;]
		(k)	such other information as may be prescribed. 
(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year. 
(4) Each manual must[— 
	(a)	if reasonably possible, be made available on the Internet by the head of the governmental body concerned; and 
	(b)	otherwise] be made available as prescribed. 
(5)(a) If the functions of two or more governmental bodies are closely connected, the [Human Rights Commission] Minister may on request or of its own accord determine that the two or more bodies publish one manual only. 
(b) The cost of that publication must be shared between the relevant bodies as determined by that Commission. 
(6) [The Human Rights Commission] For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as [it] the Minister thinks fit.
Voluntary disclosure of records/Availability of certain records/Right to know/Records automatically available
12C.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, furnish to the Minister a description of—
(a)	the kinds of records of the governmental body that are available without a person having to request access in terms of Part 3—
(i)	for inspection in terms of legislation other than this Act;
(ii)	for purchase or copying from the governmental body; and
(iii)	from the governmental body free of charge; and
(b)	specify how to obtain access to such records.
(2) On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every description furnished in terms of subsection (1).
(3) No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).
(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which is required or permitted by Chapter 2 of Part 3 to be refused.
Information in telephone directory 
Option 1 for subsection (1):
12D. (1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.
Option 2 for subsection (2):
(1) The Director-General of the national department responsible for communications must at that department’s cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.
(2) The information contemplated in subsection (1) must be published in the first telephone directory to be issued after the expiry of a period of six months after the commencement of this section and thereafter in every telephone directory that is issued.
Form of requests 
13. (1) A request for access must be made in the prescribed form to the information officer of the governmental body concerned at his or her address or fax number or electronic mail address. 
	(2) The form for a request of access prescribed for the purposes of subsection (1) must at least require from the requester concerned— 
	(a)	to provide sufficient particulars to enable an [official] employee of the governmental body concerned to identify the record or records requested; 
	(b)	to indicate which applicable form of access referred to in section 25(2) is required; 
	(c)	to state whether the record concerned is preferred in a particular language; 
	(d)	to state whether the requester is a personal, non-commercial or commercial requester and, in the case of a commercial requester, to include the request fee; 
Option 1 for par (e):
	(e)	to specify a postal address or fax number and, if the request includes an urgent request application, a phone number, for the requester in the Republic;
Option 2 for par (e):
(e)	to specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester;
	(f)	if, in addition to a written reply, the requester wishes to be informed of the decision on the request in any other manner, to state that manner and the necessary particulars to be so informed; and 
	(g)	in the case of a request for access to a record containing personal information, to state the capacity contemplated in subsection (5) in which the requester is making the request and to submit— 
	(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.
Alternative for (i) and (ii):
(i)	proof of the requester’s identity to the reasonable satisfaction of the information officer concerned; or
(ii)	if the requester is not the person to whom or which the personal information relates, proof of the capacity in which the requester is making the request, to the reasonable satisfaction of the information officer. 
	(3) If a requester can, according to the purposes for which access is sought, be classified as a personal, non-commercial and commercial requester or as any two of those requesters, that requester is regarded, for the purposes of this Act, [to be] as being that type of requester who would, upon the request for access being granted, be liable to pay the higher or highest access fee in respect of the request. 
	(4)(a) 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 governmental body in accordance with subsection (1), may make that request orally. 
	(b) The information officer of that body must reduce that oral request to writing in the prescribed form and provide a copy thereof to the requester. 
	(5) 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 own affairs, by a person appointed by the court to manage those affairs; or 
	(iii)	deceased, by the executor of his or her estate.
Duty to assist requesters 
Option 1 for subsection (1):
14. (1) If a requester informs the information officer of a governmental body that he or she wishes to make a request for access to a record of that or another governmental body, the information officer must render such assistance, free of charge, as is necessary to enable that requester to comply with section 13(1).
Option 2 for subsection (1):
(1) If a requester informs the information officer of—
(a)	a governmental body that he or she wishes to make a request for access to a record of that governmental body; and
(b)	a governmental body, other than a public enterprise, that he or she wishes to make a request for access to a record of another governmental body,
the information officer must render such assistance, free of charge, as is necessary to enable that requester to comply with section 13(1).
	(2) If a requester has made a request for access that does not comply with section 13(1), the information officer concerned may not refuse the request because of that non-compliance unless the information officer has— 
	(a)	notified that requester of an intention to refuse the request and stated in the notice— 
	(i)	the reasons for the contemplated refusal; and 
	(ii)	that the information officer or another [official] employee identified by the information officer would assist that requester in order to make the request in a form that would remove the grounds for refusal; 
	(b)	given the requester a reasonable opportunity to seek such assistance; 
	(c)	as far as reasonably possible, furnished the requester with any information (including information about the records, other than information on the basis of which a request for access is required or permitted by this Act to be refused, held by the body which are relevant to the request) that would assist the making of the request in that form; and 
	(d)	given the requester a reasonable opportunity to confirm the request or alter it to comply with section 13(1). 
	(3) When computing any period referred to in section 19(1) or 20(2) or (3), the period commencing on the date on which notice is given in terms of subsection (2) and ending on the date on which the person confirms or alters the request for access concerned must be disregarded. 
	(4) If it is apparent on receipt of a request for access that it should have been made to another governmental body, the information officer of the governmental body concerned must—
	(a)	render such assistance as is necessary to enable the person to make the request, to the information officer of the appropriate governmental body; or 
	(b)	transfer the request in accordance with section 15 to the last-mentioned information officer, 
whichever will result in the request being dealt with earlier. 
Transfer of requests 
	15. (1) If a request for access is made to the information officer of a governmental body in respect of which— 
	(a)	the record is not in the possession or under the control of that body but is in the possession of another governmental body; 
	(b)	the record’s subject matter is more closely connected with the functions of another governmental body than those of the governmental body of the information officer to whom the request is made; or 
	(c)	the record contains commercial information contemplated in section 38(2) in which any other governmental body has a greater commercial interest, 
the information officer to whom the request is made must as soon as reasonably possible, but in any event within 14 days after the request is received— 
(i)	transfer the request to the information officer of the other governmental body or, if there is in the case of paragraph (c) more than one other governmental body having a commercial interest, the other governmental body with the greatest commercial interest; and 
(ii)	if the governmental body of the information officer to whom the request is made is in possession of the record and considers it helpful to do so to enable the information officer of the other governmental body to deal with the request, send the record or a copy of the record to that information officer. 
	(2) If a request for access is made to the information officer of a governmental body in respect of which— 
	(a)	the record is not in the possession or under the control of the governmental body of that information officer and the information officer does not know which governmental body has possession or control of the record; 
	(b)	the record’s subject matter is not closely connected to the functions of the governmental body of that information officer and the information officer does not know whether the record is more closely connected with the functions of another governmental body than those of the governmental body of the information officer to whom the request is made; and 
	(c)	the record— 
	(i)	was created by or for another governmental body; or 
	(ii)	was not so created by or for any governmental body, but was received first by another governmental body, 
the information officer to whom the request is made, must as soon as reasonably possible, but in any event within 14 days after the request is received, transfer the request to the information officer of the governmental body by or for which the record was created or which received it first, as the case may be. 
	(3) If a request for access which is to be transferred includes an urgent request application, the request must be so transferred immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event, within five working days after it is received. 
	(4) Subject to subsection (5), the information officer to whom a request for access is transferred, must give priority to that request in relation to other requests as if it were received by him or her on the date it was received by the information officer who transferred the request. 
	(5) If a request for access is transferred, any period referred to in section 19(1) or 20(2) or (3) must be computed from the date the request is received by the information officer to whom the request is transferred. 
	(6) Upon the transfer of a request for access, the information officer making the transfer must immediately notify the requester of— 
	(a)	the transfer; 
	(b)	the reasons for the transfer; and 
	(c)	the period within which the request must be dealt with. 
Preservation of records until final decision on request 
	16. If the information officer of a governmental body has received a request for access to a record of the body, the [head] information officer of the body must take the steps that are reasonably necessary to preserve the record, without deleting any information contained in it, until the information officer has notified the requester concerned of his or her decision in terms of section 19 and— 
	(a)	the periods for lodging an internal appeal with [that head] relevant authority, an application with a [High] court or an appeal against a decision of that court have expired; or 
	(b)	that internal appeal, 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. 
Payment of request fee 
	17. (1) A commercial requester must, when making his or her request for access, pay the prescribed request fee. 
	(2) If— 
	(a)	there are reasonable grounds for believing that a requester is a commercial requester; and 
	(b)	that requester has not paid the prescribed request fee, 
the information officer of the governmental body concerned must by notice require the requester to pay that fee. 
	(3) That notice must state— 
	(a)	that the requester may lodge an internal appeal with the [head of the body] relevant authority against the payment of the fee; and 
	(b)	the procedure (including the period) for lodging the internal appeal. 
	(4) If the prescribed request fee is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee is paid. 
#	THE FOLLOWING THREE OPTIONS ARE ALTERNATIVES FOR CLAUSE 17 (request fee - payable when requesting record), CLAUSE 18 (deposit - payable after requesting record but before access is given) & CLAUSE 24 (access fee - payable when access is given)
OPTION 1 - contains separate alternative for each of three clauses:
Payment of request fee
17. (1) A requester, other than a personal requester, must, when making his or her request for access, pay the prescribed request fee.
(2) If that requester has not paid the prescribed request fee the information officer of the governmental body concerned must by notice require the requester to pay that fee.
{(3) That notice must state—
(a)	that the requester may lodge an internal appeal with the relevant authority against the payment of the fee; and
(b)	the procedure (including the period) for lodging the internal appeal.}
(4) If the prescribed request fee is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee is paid.
Payment of deposit
18. (1) If—
(a)	the search for a record of a governmental body in respect of which a request for access by a requester, other than a personal requester, has been made; and
(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)),
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
(2) No deposit is payable in respect of a request for access by a personal requester.
(3) The notice referred to in subsection (1) must state—
(a)	the amount of the deposit; and
{(b)	that the requester may lodge an internal appeal with the relevant authority against the payment of a deposit, and the procedure (including the period) for lodging the internal appeal}.
(4) If a deposit is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the deposit is paid.
(5) If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.
Access fees
24. (1)	A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and
(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").
(3) A personal requester must pay an access fee for reproduction only.
(4) A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.
(5) The Minister of Justice may, by notice in the Gazette —
(a)	exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;
(b)	determine that any fee is not to exceed a certain maximum amount;
(c)	the manner in which any fee is to be calculated; and
(d)	determine the category of records in respect of which the fees referred to in this section and sections 17 and 18 does not apply; 
(e)	exempt any person or record or category of persons or records for a stipulated period from the fees referred to in this section; and
(f)	determine that where the cost of collecting the fees referred to in this section and sections 17 and 18 exceeds the amount charged, that those fees does not apply.
OPTION 2 - combines clauses 17, 18 and 24 in one clause:
Fees
17. (1)	An information officer to whom a request for access to information is made must by notice require the requester to pay the prescribed request fee, and the decision on the request in terms of section 19 may be deferred until the fee is paid.
(2) A requester whose request for access to a record of a governmental 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).
(3) A requester must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.
(4) Access fees prescribed for the purposes of subsection (2) must provide for a reasonable access fee for— 
(a)	the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and
(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").
(5) If — 
(a)	the search for a record of governmental body in respect of which a request for access by a requester, other than a personal requester, has been made; and
(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)),
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
(6) The notices referred to in subsections (1) and (5) must state — 
(a)	the amount of the deposit payable in terms of subsection (5);
{(b)	that the requester may lodge an internal appeal with the relevant authority against the payment of the request fee in terms of subsection (1), or the payment of a deposit in terms of subsection (5), as the case may be; and
(c)	the procedure (including the period) for lodging the internal appeal.}
(7) A personal requester is exempted from paying a request fee and deposit and must pay an access fee for reproduction only.
(8) The Minister of Justice may, by notice in the Gazette — 
(a)	exempt any person or category of persons from paying any fees in terms of this section;
(b)	determine that any fee is not to exceed a certain maximum amount;
(c)	the manner in which any fee is to be calculated; and
(d)	determine the category of records in respect of which the fees referred to in this section does not apply; 
(e)	exempt any person or record or category of persons or records for a stipulated period from the fees referred to in subsection (4); and
(f)	determine that where the cost of collecting the fees referred to in this section exceeds the amount charged, that those fees does not apply.
(9) If a deposit has been payed in respect of a request for access which is refuse, the information officer concerned must repay the deposit to the requester.
OPTION 3 - combines clauses 17 and 18 in one clause and retains clause 24 as separate clause:
Payment of request fee and deposit
17. (1)	A requester must, when making his or her request for access, pay the prescribed fee.
(2) If that requester has not paid the prescribed request fee, the information officer of the government body concerned must by notice require the requester to pay that fee.
(3) If—
(a)	the search for a record of a governmental body in respect of which a request for access by requester has been made; and
(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa),
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
(4) No deposit is payable in respect of a request for access by a personal requester.
(5) The notice referred to in subsection (3) must state—
(a) 	the amount of the deposit; and
(b)	that the requester may write representations to the head of the governmental body concerned against the payment of a deposit, and the procedure (including the period) for missing representations.
(6) If the prescribed request fee or deposit, as the case may be, is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee of deposit is paid.
(7) If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.
Access fees
24. (1)	A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and
(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").
(3) A personal requester must pay an access fee for reproduction only.
(4) A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.
(5) The Minister of Justice may, by notice in the Gazette —
(a)	exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;
(b)	determine that any fee is not to exceed a certain maximum amount; and
(c)	the manner in which any fee is to be calculated.
(d)	determine the category of records in respect of which the fees referred to in this section and section 17 does not apply; 
(e)	exempt any person or record or category of persons or records for a stipulated period from the fees referred to in this section; and
(f)	determine that where the cost of collecting the fees referred to in this section and section 17 exceeds the amount charged, that those fees does not apply.
# SEE ALTERNATIVES FOR CLAUSE 18 IN OPTIONS 1, 2 AND 3 ABOVE
Payment of deposit 
	18. (1) If— 
	(a)	the search for a record of a governmental body in respect of which a request for access by a non-commercial or commercial requester has been made; and 
	(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)), 
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for non-commercial or commercial requesters, as the case may be, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted. 
	(2) No deposit is payable in respect of a request for access by— 
	(a)	a personal requester; or 
	(b)	a member of Parliament, a provincial legislature or a municipal council in connection with the member’s official duties. 
	(3) The notice referred to in subsection (1) must state— 
	(a)	the amount of the deposit; and 
	(b)	that the requester may lodge an internal appeal with the [head of the governmental body concerned] the relevant authority against the payment of a deposit, and the procedure (including the period) for lodging the internal appeal. 
	(4) If a deposit is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the deposit is paid. 
	(5) If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester. 
Records that cannot be found or do not exist
18A.(1) If—
(a)	all reasonable steps have been taken to find a record requested; and
(b)	there is reasonable grounds for believing that the record—
(i)	is in the governmental body’s possession but cannot be found; or
(ii)	does not exist,
the information officer of a governmental body must notify the requester that it is not possible to give access to that record.
(2) The notice referred to in subsection (1) must give a full account of all steps taken to find the record in question 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 information officer.
(3) For the purposes of this Act, the sending of a notice in terms of subsection (1) is to be regarded as a decision to refuse a request for access to the record.
Deferral of access
# To replace section 42(1)(a), (d) and (e)
18B. (1) If the information officer of a governmental body decides to grant access to a request for access to a record, but that record— 
(a)	is to be published within 90 days after the receipt or transfer of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it; 
(b)	is required by law to be published but is yet to be published; or
	(c)	has been prepared for submission to Parliament [OR any legislature] or a particular person but is yet to be submitted,
the information officer may defer giving access to the record for a reasonable period.
(2) If access to a record is deferred in terms of subsection (1), the information officer must notify the requester concerned— 
(a)	that the requester may, within 30 days after that notice is given, make representations to the information officer why the record is required before such publication or submission; and
(b)	of the likely period for which access is to be deferred.
(3) If a requester makes representations in terms of subsection (2)(a) , the information officer must, after due consideration of that representations, grant the request for access only if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the record is deferred for the likely period referred to in subsection (2)(b).
Decision on request and notice thereof 
19. (1) The information officer to whom a request for access is made or transferred, must, subject to sections 20 and 21 and Chapter 3 of this Part, as soon as reasonably possible, but in any event, within 30 days, after the request is received or transferred— 
	(a)	decide in accordance with this Act whether to grant the request; and 
	(b)	notify the requester of the decision and, if the requester stated as contemplated in section 13(2)(f) that he or she wishes to be informed of the decision in any other manner, inform him or her in that manner if it is reasonably possible. 
	(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; and 
	(c)	that the requester may lodge an internal appeal with the [head of the governmental body concerned] relevant authority against the access fee to be paid or the form of access granted, and the procedure (including the period) for lodging the internal appeal. 
	(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state— 
	[(a)	the findings on all material questions of fact, referring to the material on which those findings were based;]
	(b)	[the] adequate reasons for the refusal (including the provisions 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 internal appeal with the [head of the governmental body concerned] relevant authority or to utilise any other remedy in law available to the requester]; and 
	(c)	that the requester may lodge an internal appeal with the [head of the governmental body] relevant authority against the refusal of the request, and the procedure (including the period) for lodging the internal appeal. 
[Urgent requests 
	20. (1) A requester who wishes to obtain access to a record of a governmental body urgently must include an application to that effect in the request for access, and give reasons for the urgency. 
	(2) If a request for access includes an urgent request application, the information officer concerned must, subject to Chapter 3 of this Part, immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event within five working days, after the request for access has been received or transferred, decide on the request and give notice of the decision in accordance with section 19, unless there are reasonable grounds for believing that— 
	(a)	the nature of the reasons for the urgency furnished by the requester is such that the requester will suffer no prejudice if the request is decided upon within the applicable period contemplated in section 19(1); or 
	(b)	it is impractical to decide on the request within five working days after the request has been received or transferred. 
	(3) If the information officer refuses an urgent request application on grounds referred to in subsection (2)(a) or (b), he or she must immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event, within five working days, after the request for access has been received or transferred, notify the requester of the refusal. 
	(4) The notice in terms of subsection (3) must state— 
	(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)	the reasons for the refusal (including the provisions of this section 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 internal appeal with the head of the governmental body concerned or an application with a High Court or to utilise any other remedy in law available to the requester; and 
	(c)	that the requester may lodge an internal appeal with the head of the governmental body, or an application with a High Court, against the refusal of that urgent request application, and the procedure (including the periods) for lodging the internal appeal and the application with a High Court. 
	(5) If the notice in terms of subsection (2) or (3) of a decision is not given by fax, the requester must be informed by phone of the decision.]
Extension of period to deal with request 
	21.(1) Subject to section 20, the information officer to whom a request for access has been made or transferred, may extend the period of 30 days referred to in section 19(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 governmental body concerned; 
	(b)	the request requires a search for records in, or collection thereof from, an office of the governmental body not situated in the same town or city as the office of the information officer that cannot reasonably be completed within the original period; 
	(c)	consultation among divisions of the governmental body or with another governmental body is necessary or desirable to decide upon the request that cannot reasonably be completed within the original period; or 
	(d)	more than one of the circumstances contemplated in paragraphs (a), (b) and (c) 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 must, as soon as reasonably possible, but in any event, within 30 days, after the request is received or transferred, notify the requester of that extension. 
	(3) The notice in terms of subsection (2) must state— 
	(a)	the period of the extension; 
	(b)	[the] adequate reasons for the extension (including the provisions of this Act relied upon to justify the refusal) [in such manner as to enable the requester— 
	(i)	to understand the justification for the extension; and 
		(ii)	to make an informed decision about whether to lodge an internal appeal with the [head of the governmental body concernedy or to utilise any other remedy in law available to the requester]; and 
	(c)	that the requester may lodge an internal appeal with the [head of the governmental body] relevant authority against the extension, and the procedure (including the period) for lodging the internal appeal. 
Deemed refusal of request 
	22. If an information officer fails to give [his or her] the decision on a request for access to the requester concerned within the period contemplated in section 19(1), the information officer is, for the purposes of this Act, regarded [to have] as having refused the request. 
Severability 
23. (1) If a request for access to a record of a governmental body containing information which is required by section 29 or 31, or permitted by section 30, 32, 33, 34, 36, 37, 38, 39 or 42, to be refused, is made, 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 19(2), apply to paragraph (a) of this section and the provisions of section 19(3) to paragraph (b) of this section. 

# SEE ALTERNATIVES FOR CLAUSE 24 IN OPTIONS 1, 2 AND 3 AFTER CLAUSE 17 ABOVE
Access fees 
	24. (1) A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and 
	(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation"). 
	(3) A personal requester must pay an access fee for reproduction only. 
	(4) A non-commercial requester must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure. 
	(5) A commercial requester must pay an access fee for reproduction and for search and preparation. 
	(6) A member of Parliament, a provincial legislature or a municipal council who makes a request for access in connection with his or her work as such member does not have to pay any access fee in respect of the request.
Access and forms of access 
	25. (1) If a requester has been given notice in terms of section 19(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 26. 
	(2) The forms of access to a record in respect of which a request of 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 governmental 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 governmental body concerned— 
		(aa)	by making arrangements to hear those sounds; or 
		(bb)	if the governmental 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 governmental body concerned is capable of producing a printed copy of— 
		(aa)	the record, or a part of it; or 
		(bb)	information derived from the record, 
by using computer equipment and expertise ordinarily available to the governmental 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 23, be given in that form, unless to do so would— 
	(a)	interfere unreasonably with the effective administration of the governmental body concerned; 
	(b)	be detrimental to the preservation of the record; or 
	(c)	amount to an infringement of copyright not owned by the state or the governmental 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] sensory 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 information officer of the 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 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 governmental body concerned; 
	(b)	be detrimental to the preservation of the record; or 
	(c)	amount to an infringement of copyright not owned by the state or the governmental body concerned. 
	(8) If the supply to a requester of a copy of a record is required by this section, the copy must, if so requested, be supplied by posting it to him or her. 
	(9) If an internal appeal with the [head of a governmental body] relevant authority or 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.
Access to health records
#	Alternative for clause 29(4) to (6) OR clause 30
25A.(1) If the information officer of a governmental body grants a request for access to a record provided by a health practitioner in his or her capacity as such about the physical or mental health, or well-being of the requester or, if the request has been made on behalf of the person to whom the record relates, that person, and that information officer is of the opinion that the disclosure of the record to that requester or person, as the case may be, might cause {serious} harm to his or her physical or mental health, or well-being, the information officer must, before giving access in terms of section 25, consult with a health practitioner who—
(a)	carries on an occupation of the same kind as the health practitioner who provided the record; and 
(b)	subject to subsection (2), have been nominated by that requester or person, as the case may be.
(2) If the requester or, if the request has been made on behalf of the person to whom the record relates, that person—
(a)	under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (1)(b); or 
(b)	incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. 
(3)(a) If, after being given access to the record concerned, the health practitioner consulted in terms of subsection (1) is of the opinion that the disclosure of the record to that requester or, if the request has been made on behalf of the person to whom the record relates, that person, would be likely {OR could reasonably be expected} to cause serious harm to his or her physical or mental health, or well-being, the information officer must only give access to the record if the requester proves to the satisfaction of the information officer that {adequate OR appropriate} provision is made for counselling of the requester, or the person on whose behalf the request has been made, as the case may be, before, during and after the disclosure of the record {in the prescribed manner}.
(b) Before access to the record is so given to the requester, the person responsible for such counselling must be given access to the record.
Language of access 
	26. 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 the requester has no preference, be given access in any language the record exists in. 
Reports to Human Rights Commission 
	27. The [head] information officer of each governmental body must annually submit to the Human Rights Commission a report stating in relation to the governmental body— 
	(a)	the number of requests for access received; 
	(b)	the number of requests for access granted in full; 
	(c)	the number of requests for access granted in terms of section 44; 
	(d)	the number of requests for access refused in full and refused partially and the number of times each provision of this Act relied on to refuse access was invoked to justify refusal in full and partial refusal; 
	[(e)	the number of requests for correction and the number of cases in which a correction was made;] 
	(f)	the number of cases in which the periods stipulated in sections 19(1) [and 52(7), respectively], were extended in terms of section 21(1) and that section, read with section 52(6), respectively; 
	[(g)	the number of urgent request applications and urgent appeal applications made and the number of cases in which those applications were granted;] 
	{(h)	the number of internal appeals lodged with the [head of the body] relevant authority and the number of cases in which, as a result of an internal appeal, access was given to a record or a part thereof or a correction of inaccurate personal information was made;} 
	{(i)	the number of internal appeals which were lodged on the ground that— 
	(i)	a request for access was regarded [to have] as having been refused in terms of section 22; and }
	[(ii)	a request for correction was regarded to have been refused in terms of section 52(8);] 
	(j)	the number of applications to a [High] court which were lodged on the ground that an internal appeal was regarded [to have] as having been dismissed in terms of section 70(7); and 
	(k)	such other matters as may be prescribed. 
 
CHAPTER 2 
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS 
Mandatory and discretionary grounds for refusal 
	28.(1) The information officer of a governmental body— 
	(a)	must refuse a request for access to a record contemplated in section 29(1) or 31(1), unless the provisions of section 44(1) apply; 
	(b)	 may refuse a request for access to a record contemplated in— 
	(i)	section 30(2), 33(a), 34(1)(c)(ii), (iii) or (vi) or (d) or 35, unless the provisions of section 44(1) apply; 
	(ii)	section 32(1) or (3), 33(b), 34(1)(a), (b) or (c)(i), (iv) or (v), 36, 37(1), 38(1) or (2) or 39(1), unless the provisions of section 44(2) apply; 
	(iii)	section 40, 41(1), 42(1) or 43.
(2) A provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, must not be construed as—
(a)	limited in its application in any way by any other provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused; and
(b)	not applying to a particular record by reason that another provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, also applies to that record.
Mandatory protection of privacy {of third party} 
Option 1 for subsection (1):
29. (1) Subject to subsection (2), the information officer of a governmental body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received [OR a deceased individual]) other than the requester concerned or other person contemplated in section 13(5). # Omit "than the requester concerned or" if subsection (4) or Option 2 of s9(1) is included
Option 2 for subsection (1):
(1) Subject to subsections (2) and (4), the information officer of a governmental body must refuse a request for access to a record of the body if its disclosure of which would involve the unreasonable disclosure of personal information about any person, including a deceased individual. # Retain existing definition of "personal information" in clause 1, ie information about an identifiable person OR include following detailed definition in clause 1:
	"personal information" means information about an identifiable individual, including, but not limited to—
information relating to the race, {gender,} sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, [disability,] well-being, religion, conscience, belief, culture, language and birth of the individual;
information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
any identifying number, symbol or other particular assigned to the individual;
the address, fingerprints or blood type of the individual;
the personal opinions or views of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature and replies to such correspondence that would reveal the contents of the original correspondence;
the views or opinions of another individual about the individual,
the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and
the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
but excludes information about an individual who has been dead for more than 20 years;
	(2) [Subsection (1) does not apply to a] A record may not be refused in terms of subsection (1) insofar as it consists of information— 
(a)	already publically available;
(aA)	that was given to the governmental body by the person to whom or which it relates and the person was informed by or on behalf of the governmental body, before its being given, that the information belongs to a class of information that would or might be made available to the public;
(b)	about a person that has, in accordance with section 46(b), consented to its disclosure to the requester concerned; # Introductory wording implies that, despite consent the record may still be refused i t o another exemption. If that is not the intention, it could be included as a separate subclause that states that the information officer must disclose it if person consents. 
Option 1 for paragraph (c):
(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)	 incapable of understanding the nature of the request, 
and if giving access would be in the individual’s best interests;
Option 2 for paragraph (c):
	(c)	about an individual’s physical or mental health, or well-being, who is under the care of the requester and who is— 
	(i)	under the age of 18 years; or
	(ii)	 incapable of understanding the nature of the request, 
and if giving access would be in the individual’s best interests; # Use "process" similar to one in subsections (4) to (6) below? 
	(d)	about an individual who is deceased and the requester is the individual’s next of kin; or
	(e)	about an individual who is or was an [official] employee of a governmental body and which 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] employee 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; # Exclude public enterprises, but is sensitive information not covered by cl 38 and 39?
	(iv)	the name of the individual on a record prepared by the individual in the course of employment.
(3) Subject to subsections (4) to (6), the provisions of subsections (1) and (2) do not apply to a request for access by a person, or any person acting on behalf of that person, to a record by reason only of the inclusion in the record of information relating to the first-mentioned person.
#	Alternative for cl 30 (Health of requester) below: Provisions similar to subsection (5) to (7) below in Australia (Fed): s41(3) to (8); Ireland: s28(3) & (4); Queensland: s44(3) & (4) & Western Australia: s28 
(4) The information officer of a governmental body may refuse a request for access to a record of the body about the physical or mental health, or well-being, of the requester or, if the request has been made on behalf of the person to whom the record relates, that person, and which was provided by a health practitioner in his or her capacity as such if— 
(a)	the disclosure of the record to the requester or, if the request has been made on behalf of the person to whom the record relates, that person, would be likely to cause serious harm to his or her physical or mental health, or well-being; and 
(b)	the information officer 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)	subject to subsection (5), has been nominated by the requester or, if the request has been made on behalf of the person to whom the record relates, that person; and 
(c)	that health practitioner so consulted is of the opinion that the serious harm contemplated in paragraph (a).
(5) If the requester or the person on whose behalf the request has been made 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. 
(6) If— 
(a)	access has been given to a record of a governmental body containing information about the requester’s physical or mental health, or well-being, which was provided by, or originated from, a health practitioner; 
(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 information officer concerned must notify that health practitioner that access has been so given.
# See other option for cl 30 in cl 25A OR cl 29(4) to (6):
Health of requester 
OPTION 1:
30. [(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 for the well-being of individuals.] # Now in clause 1
(2) The information officer of a governmental body may refuse a request for access to a record of the body about the [requester’s] physical or mental health, or well-being, of the requester or, if the request has been made on behalf of the person to whom the record relates, that person, and which was provided by a health practitioner in his or her capacity as such if— 
(a)	the disclosure of the record to that requester or, if the request has been made on behalf of the person to whom the record relates, that person, would be likely to cause serious harm to his or her physical or mental health, or well-being; and 
(b)	the information officer 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], if the request has been made on behalf of the person to whom the record relates, that person; and 
(c)	that health practitioner so consulted is of the opinion that the serious harm contemplated in paragraph (a).
(3) If the requester or the person on whose behalf the request has been made 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 governmental body containing information about the requester’s physical or mental health, or well-being, which was provided by, or originated from, a health practitioner; 
(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 information officer concerned must notify that health practitioner that access has been so given.
OPTION 2:
30.(1) The information officer of a governmental body may {OR must} refuse a request for access to a record of the body if—
(a)	the record—
(i)	contains information about the physical or mental health, or well-being, of the requester or, if the request has been made on behalf of the person to whom the record relates, that person; and
{(ii)	was provided by a health practitioner;}
{(b)	the disclosure of the record to the requester or, if the request has been made on behalf of the person to whom the record relates, that person, is prohibited by any other law;} and
(c)	a health practitioner who—
(i)	carries on an occupation of the same kind as the health practitioner who provided the record; and
(ii)	subject to subsection (2), have been nominated by the requester or his or her authorised representative,
after being given access to the record concerned, is of the opinion that the disclosure of the record would be likely {OR could reasonably be expected} to cause {serious} harm to the physical or mental health, or well-being, of that requester or person, as the case may be.
(2) If the requester or the person on whose behalf the request has been made is—
(a)	under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (1)(c)(ii); or 
(b)	incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. 		
(3)(a) A record may not be refused in terms of subsection (1) if the health practitioner consulted in terms of subsection (1)(c) is of the opinion that the disclosure of the record is not likely {OR could not reasonably be expected} to cause {serious} harm to the physical or mental health, or well-being of the requester or, where the request has been made on behalf of the person to whom the record relates, that person, if that requester or person, as the case may be, is counselled before, during and after the disclosure of the record {in the prescribed manner}.
(b) If the health practitioner is of such opinion, the information officer must only give access to the record if the requester proves to the satisfaction of the information officer that {adequate OR appropriate} provision is made for such counselling.
(c) Before access to the record is so given to the requester, the person responsible for such counselling must be given access to the record.
Mandatory protection of third party commercial information 
31. (1) Subject to subsection (2), the information officer of a governmental body must refuse a request for access to a record of the body if the record contains— 
(a)	trade secrets of a third party; 
Option 1 for paragraphs (b) and (c):
(b)	financial, commercial, scientific or technical information, other than trade secrets, [supplied in confidence by] of a third party [and treated consistently as confidential by that third party], the disclosure of which could reasonably be expected [OR would be likely] to cause unreasonable 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 [OR could reasonably be expected] to—
(i)	put that third party at a [an unfair] disadvantage in contractual other negotiations; or
(ii)	[cause it] [unfairly] prejudice that third party in commercial competition; or
Option 2 - combine paragraph (b) and (c):
(b)	any other information {having a commercial value} {supplied by a third party} the disclosure of which could reasonably be expected {OR would be likely} to—
(i)	put a third party at an {unfair} disadvantage in contractual or other negotiations;
(ii)	{unfairly} prejudice a third party in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial interests of a third party; or
ALTERNATIVE FOR PARAGRAPH (D) INCLUDED AS S38A BELOW:
Option 3 - only paragraph (b) and not (c) of Option 1:
(b)	financial, commercial, scientific or technical information, other than trade secrets, of {OR supplied in confidence by} a third party {and treated consistently as confidential by that third party}, the disclosure of which could reasonably be expected {OR would be likely} to cause unreasonable harm to the commercial or financial interests of that third party;
Option 1 for (d):
(d)	the results of original research [having a commercial value] undertaken by a third party [and not yet published] the disclosure of which could reasonably be expected [OR would be likely] to deprive that body or employee of the benefit of first publication of those results.
Option 2 for (d):
	(d)	information about research [having a commercial value] being or to be carried out by or on behalf of a third party, the disclosure of which would be likely [OR could reasonably be expected] unreasonably to expose—
(i)	the third party;
(ii)	a person that is or will be carrying out the research on behalf of the third party; or
(iii)	the subject-matter of the research,
to [serious] disadvantage.
Option 3 for (d):
	(d)	information about the purpose or results of research (including research that is yet to be started or finished) [having a commercial value], the disclosure of which could reasonably be expected [OR would be likely] to have an adverse effect on the third party or a person that is or will be carrying out the research.
(2) [Subsection (1) does not apply to a] A record may not be refused in terms of subsection (1) insofar as it consists of information—
[(a)	already publicly available;]
(b)	about a third party who has, in accordance with section 46(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] the results of any [product or environmental] testing or other investigation supplied by [AND/OR carried out by or on behalf of] a third party and its disclosure would reveal a [serious] public safety or environmental risk.
[(d)	supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a public safety or environmental risk.] 
(3) For the purposes of subsection (2)(b), the results of any [product or environmental] testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
[(3) If a request for access to a record contemplated in subsection (2)(d) is granted, the information officer must at the same time as access to the record is given, direct the requester to the source of the original testing or other investigation to enable the requester to obtain an explanation of the methods used in conducting the test or other investigation.] # But see Canada: 20(3)
(4) Subsection (1) does not apply to a request for access by a person, or a person acting on behalf of that person to a record by reason only of the inclusion in the record of information contemplated in subsection (1) that relates to that person. # But unnecessary in view of par (a) of def. of "third party" in s1
Records supplied in confidence 
Option 1 for subsections (1) and (2):
32. (1) Subject to subsection (2), the information officer of a governmental body may refuse a request for access to a record of that body containing information supplied in confidence to any governmental body by a third party if— 
(a)	the disclosure of the record would be likely to prejudice the future supply of similar records, or records from the same source; 
(b)	the last-mentioned governmental body has no right to demand, or that third party has no obligation to supply, the record; and 
(c)	it is in the public interest that similar records, or records from the same source, should continue to be supplied. 
(2) Subsection (1) does not apply to a record insofar as it consists of information— 
(a)	[if it has been] supplied to the governmental body concerned for the purpose of— 
(i)	securing some advantage, grant, permit, contract or concession from any governmental body; or 
(ii)	persuading any governmental body not to take any action against the person that supplied the record or on whose or which behalf the record was supplied; 
(b)	[insofar as it consists of information] independently obtained by the body or already publicly available; or 
(c)	[if] the third party concerned has consented in writing to its disclosure to the requester concerned. 
Option 2 for subsections (1) and (2) - further research on 32(1)(a) still required:
32.(1) The information officer of a governmental body may refuse a request for access to a record of a body if—
(a)	the disclosure of the record would found [OR constitute] an action for breach of confidence owed to a person other than—
(i)	the state;
(ii)	a governmental body; or
(iii)	an employee of a governmental body; or
(b)	the record consists of information that was communicated in confidence—
(i)	the disclosure of which would be likely [OR could resaonably be expected] to prejudice the future supply of similar information, or information from the same source; and
		(ii)	and it is in the public interest that similar information, or information from the same source, should continue to be supplied.
[(3) The information officer of a governmental body may refuse a request for access to a record of the body if the record— 
	(a)	is held by a governmental body for the purpose of enforcing legislation imposing a tax, duty or levy; and 
	(b)	was supplied in confidence to a governmental body by a third party or another governmental body.] 
Option 1 (in s32 or other existing section or new section):
The information officer of a governmental body must refuse a request for access to a record of the body if it contains information which was obtained or is held by the body for the purpose of enforcing legislation imposing taxes, duties, levies and additional tax, including penalties and interest in connection with such moneys.
Option 2:
The information officer of a governmental body must refuse a request for access to a record of the body if it contains information which was obtained or is held by the body for the purpose of enforcing legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997).
Note:	"‘revenue’ is defined in the South African Revenue Service Act, 1997, as "income derived from taxes, duties, levies, fees, charges, additional tax and any other moneys imposed in terms of legislation, including penalties and interest in connection with such moneys".
Option 3:
The information officer of a governmental body must refuse a request for access to a record of the body if it reveals information that was obtained on a tax return or for the purpose of determining tax liability or collecting tax.
Option 4:
The information officer of a governmental body must refuse a request for access to a record of the body if it reveals information obtained or held for the purpose of enforcing legislation imposing taxes, levies or duties as contemplated in section 77(1) of the Constitution.
Safety of individuals and security of structures and systems 
Option 1:
33. The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected]— 
(a)	to endanger the life or physical safety of an [identifiable] 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.
Option 2:
33. The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to— 
(a)	endanger the life or physical safety of an [identifiable] individual; or 
(b)	prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system. 
Option 3:
33. The information officer of a governmental body— 
(a)	must refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to endanger the life or physical safety of an [identifiable] individual; or 
(b)	may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system.
Law enforcement 
34. (1) The information officer of a governmental body may refuse a request for access to a record of the body if— 
(a)	the record contains methods, techniques, procedures or guidelines for— 
(i)	the prevention, detection, suppression or investigation of [offences] a contravention or possible contravention of the law; or 
(ii)	the prosecution of alleged offenders, 
and the disclosure of those methods, techniques, procedures or guidelines would be likely [OR could reasonably be expected] to prejudice the effectiveness of those methods, techniques, procedures or guidelines or lead to the circumvention of the law or facilitate the commission of an offence; 
(b)	 the prosecution of an alleged offender is being prepared or about to commence or pending and the disclosure of the record would be likely— 
(i)	to impede that prosecution; or 
(ii)	to result in a miscarriage of justice in that prosecution; 
(c)	the disclosure of the record would be likely [OR could reasonably be expected]— 
(i)	to prejudice the investigation of [any offence or possible offence] a contravention or possible contravention of the law which is about to commence or is in progress or, if it has been suspended or terminated, is likely to be resumed; 
(ii)	to reveal, or enable a person to ascertain, the identity of a confidential source of information in [respect of a law enforcement matter] relation to the enforcement or administration of the law; 
(iii)	to result in the intimidation or coercion of a witness, or a person who might be or has been called as a witness, in criminal or other proceedings to enforce the law[, or to endanger the life or physical safety of that witness or person]; # Omitted because already in cl 33
(iv)	to result in the commission of an offence; 
(v)	subject to subsection (2), to facilitate escape from lawful detention; or 
(vi)	to deprive a person of a right to a fair trial or an impartial adjudication; or 
(d)	the record contains arrangements for the protection of an individual in accordance with a witness protection scheme. 
(2) A record may not be refused in terms of subsection (1)(c)(v) [does not apply to a record] insofar as it consists of information about the general conditions of detention of persons in custody. 
(3)(a) If a request for access to a record of a governmental body may be refused in terms of subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in any provision of subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record. 
(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 19(3), must— 
(i)	state that fact; 
(ii)	identify the provision of subsection (1) in terms of which access would have been refused if the record had existed; 
(iii)	state [the findings and the] adequate reasons for the refusal, as required by section 19(3)[(a) and (b)], in so far as they can be given without causing the harm contemplated in any provision of subsection (1); and 
(iv)	state that the requester concerned may lodge an internal appeal with the [head of the governmental body concerned] relevant authority against the refusal as required by section 19(3)[(c)]. 
Mandatory protection of records privileged from production in legal proceedings 
35. The information officer of a governmental body [may] must 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]. 
Republic’s defence and security[, including intelligence matters] 
OPTION 1:
36. (1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] [substantially] to harm the defence or security of the Republic by— 
(a)	[frustrating] jeopardising the effectiveness of any measure for the prevention, detection or suppression of— 
(i)	aggression against the Republic; 
(ii)	sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic; 
(iii)	an activity aimed at changing the constitutional order of the Republic by the use of force or violence [or coercion]; or 
(iv)	a foreign or hostile intelligence operation; 
(b)	jeopardising the effectiveness of a governmental body, branch of that body or person responsible for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv) by disclosing its or his or her capabilities, deployment or performance; 
(c)	jeopardising the effectiveness of— 
(i)	arms; or 
(ii)	other equipment, including, but not limited to, communication or cryptographic systems, 
used, or intended to be used, or being developed, designed, produced or investigated for preventing, detecting or suppressing an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv) by disclosing their or its capabilities, quantity, deployment or performance; 
(d)	jeopardising the effectiveness of methods or equipment for collecting, assessing or handling information used for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv); or 
(e)	disclosing the identity of a confidential source of information used for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv). 
(2)(a) If a request for access to a record of a governmental body may be refused in terms of subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in any provision of subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record. 
(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 19(3), must— 
(i)	state that fact; 
(ii)	identify the provision of subsection (1) in terms of which access would have been refused if the record had existed; 
(iii)	state [the findings and the] adequate reasons for the refusal, as required by section 19(3)[(a) and (b)], in so far as they can be given without causing the harm contemplated in any provision of subsection (1); and 
(iv)	state that the requester may lodge an internal appeal with the [head of the governmental body concerned] relevant authority against the refusal as required by section 19(3)[(c)]. 
OPTION 2
36. (1) The information officer of a governmental body must refuse a request for access to a record of the body which is subject to a certificate issued in terms of subsection (2).
(2) If—
(a)	the {OR a} Minister {designated by the President for this purpose} is satisfied that a record of the governmental body contains—
(i)	military plans, weapons systems or operations;
(ii)	foreign government information;
(iii)	information about intelligence activities;
(iv)	intelligence sources or methods, including confidential sources;
(v)	information about scientific, technological or economic matters relating to national security;
(vi)	programs of governmental bodies for safeguarding nuclear materials or facilities; or
(vii)	vulnerabilities or capabilities of systems, installations, projects or plans relating to national security; and
(b)	the disclosure of that record would be likely {OR could reasonably be expected} to cause harm to the security {or defence} of the Republic,
he or she may sign {OR issued} a certificate to that effect.
#	Provide for a maximum period of validity of a certificate and/or the periodic review of certificates signed?
(3) Subject to the operation of Chapter 2 of Part 6, a certificate signed {OR issued} in terms of subsection (2), so long as it remains in force, establishes that the record is a record that must be refused in terms of subsection (1).
(4) If the Minister {designated by the President} is satisfied that information as to the existence or non-existence of a record as described in a request for access would, if contained in a record of a governmental body, cause the last-mentioned record to be a record in respect of which a certificate would have been signed {OR issued} in terms subsection (2), he or she may sign {OR issued} a certificate to that effect.
(5)(a) If a certificate in terms of subsection (4) has been signed {OR issued} in respect of a record as described in a request for access, the information officer concerned must refuse to confirm or deny the existence or non-existence of the record. 
(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 19(3), must— 
(i)	state that fact; 
(ii)	identify the provision in terms of which access would have been refused if the record had existed; 
(iii)	state the reasons for the refusal, as required by section 19(3); and 
(iv)	state that the requester concerned may lodge an internal appeal with the relevant authority against the refusal as required by section 19(3)(c).
(6) A certificate referred to in subsection (2) or (5) must state into which of the categories contemplated in section (2)(a) the record in question falls.
# Copy of certificate to be furnished to requester?
International relations 
37. (1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would [OR could reasonably] be— 
(a)	in contravention of an obligation imposed on the Republic by international law; or 
(b)	subject to subsection (2), likely [OR expected] to cause [substantial] harm to the capacity of the Republic to maintain or conduct relations in the best interests of the Republic with another state or an international organisation. 
(2) A record may not be refused in terms of subsection (1)(b) [does not apply to a record] if it came into existence more than 20 years before the request.
Economic interests of Republic and commercial activities of governmental bodies 
Option 1 for subsection (1):
38.(1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely {OR could reasonably be expected]}{substantially} to jeopardise the financial welfare of the Republic or any part thereof or the ability of the government to manage the economy of the Republic or any part thereof effectively in the best interests of the Republic by prematurely disclosing— 
	(a)	a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment; 
	(b)	a contemplated change in or decision not to change— 
	(i)	credit or interest rates; 
	(ii)	customs or excise duties, taxes or any other source of revenue; 
	(iii)	the regulation or supervision of financial institutions; 
	(iv)	government borrowing; or 
	(v)	the regulation of prices of goods or services, rents or wages, salaries or other incomes; or 
	(c)	a contemplated— 
	(i)	sale or acquisition of immovable or movable property; or 
	(ii)	international trade agreement.
(2) Subject to subsection (3), the information officer of a governmental body may refuse a request for access to a record of the body if the record contains— 
Option 2 for subsection (1) - included in existing subsection (2) and new subsection (2A):
(Aa)	information the disclosure of which would be likely {OR could reasonably be expected} {substantially} to jeopardise the financial welfare of the Republic {or any province} or the ability of the government to manage the economy of the Republic {or any province} effectively in the best interests of the Republic or could reasonably be expected {OR would be likely} to result in an undue benefit to any person; # As to "substantially" above see Canada: s18(d) - "materially"; New Zealand: s6(d) {relates to premature disclosure of economic financial policy} - "seriously"
	(a)	trade secrets of the state or a governmental body; 
Option 1 for paragraphs (b) and (c):
	(b)	financial, commercial, scientific or technical information, other than trade secrets, [held by a governmental body for the purpose of conducting a commercial activity which it is authorised by law to conduct and which it does conduct or is about to conduct,] the disclosure of which could reasonably be expected {OR would be likely} to cause harm to the commercial [or financial] interests of [the state or] a governmental body; # Omit "the state or" in view of subsection (1)(a) above?
	(c)	information, including, but not limited to information about the transfer of any interest in or right to a share in the capital of a governmental body to any person which is not a governmental body or other information about the privatisation of a governmental body, the disclosure of which would be likely {OR could reasonably be expected} to put a governmental body at a [an unfair] disadvantage in contractual or other negotiations or [cause it] unfairly prejudice a governmental body in commercial competition; 
Option 2 - combine paragraph (b) and (c):
(b)	any other information [having a commercial value], including, but not limited to information about the transfer of any interest in or right to a share in the capital of a governmental body to any person which is not a governmental body or other information about the privatisation of a governmental body, the disclosure of which could reasonably be expected {OR would be likely} to—
(i)	put a governmental body at an {unfair}disadvantage in contractual or other negotiations;
(ii)	{unfairly} prejudice a governmental body in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial interests of a governmental body; or
Option 3 - combine paragraphs (b) and (c):
(b)	financial, commercial, scientific or technical information, other than trade secrets, {held by a governmental body for the purpose of conducting a commercial activity which it is authorised by law to conduct and which it does conduct or is about to conduct,} the disclosure of which could reasonably be expected {OR would be likely} to cause harm to the commercial interests of [the state or] a governmental body; # Omit "the state or" in view of subsection (1)(a) above?
ALTERNATIVE FOR PARAGRAPH (D) INCLUDED AS S38A BELOW:
Option 1 for paragraph (d):
	(d)	the results of original research {having a commercial value} undertaken by an [official] employee of a governmental body the disclosure of which could reasonably be expected {OR would be likely } to deprive that governmental body or [official] employee of the benefit of first publication of those results; or
Option 2 for (d):
(d)	information about research {having a commercial value} being or to be carried out by or on behalf of a governmental body, the disclosure of which would be likely {OR could reasonably be expected} unreasonably to expose—
(i)	a governmental body;
(ii)	a person that is or will be carrying out the research on behalf of a governmental body; or
(iii)	the subject-matter of the research,
to {serious} disadvantage; or
Option 3 for (d):
(d)	information about the purpose or results of research (including research that is yet to be started or finished) {having a commercial value}, the disclosure of which could reasonably be expected {OR would be likely} to have an adverse effect on a governmental body or a person that is or will be carrying out the research; or
	(e)	a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the state or a governmental body, except in so far as it is required to give access to a record to which access is granted in terms of this Act. # Could not find similar provisions in available legislation of other countries.
(2A) The information referred to in subsection (1)(Aa) includes, without limiting the generality of that subsection, information about— 
	(a)	a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment; 
(b)	a contemplated change in or decision not to change— 
(i)	credit or interest rates; 
(ii)	customs or excise duties, taxes or any other source of revenue; 
	(iii)	the regulation or supervision of financial institutions; 
	(iv)	government borrowing; or 
	(v)	the regulation of prices of goods or services, rents or wages, salaries or other incomes; or 
	(c)	a contemplated— 
	(i)	sale or acquisition of immovable or movable property; or 
	(ii)	international trade agreement. 
(3) A record may not be refused in terms of subsection (2) [does not apply to a record] insofar as it consists of information— 
	(a)	[already publicly available;] 
	(b)	about or owned by a governmental body which has consented in writing {OR the prescribed manner} to its disclosure to the requester concerned; 
	(c)	about [the safety of goods or services supplied by a governmental body 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] the results of any {product or environmental} testing or other investigation supplied by {AND/OR carried out by or on behalf of} a governmental body and its disclosure would reveal a {serious} public safety or environmental risk.
	[(d)	supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a public safety or environmental risk.]
(3A) For the purposes of subsection (3)(c), the results of any {product or environmental} testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
(4) If a request for access to a record contemplated in subsection (3)[(d)](c) is granted and the testing or other investigation was carried out by or on behalf of the governmental body from which the record is requested, the information officer must at the same time as access to the record is given, [direct] provide the requester [to the source of original test or other investigation to enable the requester to obtain an] with a written explanation of the methods used in conducting the testing or other investigation. 
Research
#	If cl 38A is included omit 31(1)(d) and 38(2)(d) 
38A. The information officer of a governmental body may refuse a request for access to a record of the body if the record contains
Option 1
the results of original research undertaken by an employee of a governmental body or a third party the disclosure of which could reasonably be expected [OR would be likely] to deprive that governmental body or employee of the benefit of first publication of those results.
Option 2
information about research being or to be carried out by or on behalf of a governmental body, the disclosure of which would be likely [OR could reasonably be expected]] unreasonably to expose—
(a)	a governmental body or third party;
(b)	a person that is or will be carrying out the research on behalf of a governmental body or third party; or
(b)	the subject-matter of the research,
to [serious] disadvantage.
Option 3:
information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected [OR would be likely] to have an adverse effect on a governmental body or a third party or a person that is or will be carrying out the research.
OPTION 1 - if Cabinet is not excluded from the application of the Bill - see definition of "governmental body" in clause 1:
Cabinet’s records
38B.(1) The information officer of a governmental body must refuse a request for access to a record if—
(a)	it had been submitted to Cabinet;
(b)	it was prepared for submission to Cabinet and is proposed, or has at any time been proposed, by a Cabinet member to be submitted to Cabinet; or
(c)	it was prepared for briefing, or the use of, a Cabinet member or an employee of a governmental body in relation to a matter—
(i)	submitted to Cabinet; or
(ii)	that is proposed, or has at any time been proposed, to be submitted to Cabinet by a Cabinet member;
(d)	it is, or forms part of, a record of Cabinet, including a list/register of matters submitted to Cabinet;
(e)	its disclosure would involve the disclosure of an account of a consultation, discussion or deliberation by Cabinet that has occurred, including, but not limited to, minutes of a meeting, for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; or
(f)	it is a preliminary, working or other draft of a matter referred to in paragraphs (a) to (e).
(2) A record may not be refused in terms of subsection (1)—
(a)	if it was officially published by decision of Cabinet;
(b)	if the Cabinet has consented to its disclosure {to the requester concerned}; or
(c)	in so far as it consists of factual material unless—
(i)	the disclosure of that record would involve the disclosure of matter contemplated in subsection (1)(e); and
(ii)	the fact of that matter has not been officially published by decision of Cabinet; or
(d)	if the record is more than 20 years old.
(3) For the purposes of this Act, a certificate signed by the Minister designated by the President stating that a record—
(a)	is a record contemplated in subsection (1); and
(b)	is not a record contemplated in subsection (2),
establishes, subject to the operation of Chapter 2 of Part 6, that it is a record contemplated in subsection (1) and is not a record contemplated in subsection (2).
(4) For the purposes of this Act, a certificate signed by the Minister designated by the President stating that a record would, if it existed—
(a)	be a record contemplated in subsection (1); and
(b)	not be a record contemplated in subsection (2),
establishes, subject to the operation of Chapter 2 of Part 6, that, if that record exists, it is a record contemplated in subsection (1) and is not a record contemplated in subsection (2).
(5)(a) If a certificate in terms of subsection (3) or (4) has been signed in respect of a record as described in a request for access, the information officer concerned must refuse to confirm or deny the existence or non-existence of the record. 
(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 19(3), must— 
(i)	state that fact; 
(ii)	identify the provision in terms of which access would have been refused if the record had existed; 
(iii)	state adequate reasons for the refusal, as required by section 19(3); and 
(iv)	state that the requester concerned may lodge an internal appeal with the relevant authority against the refusal, as required by section 19(3). 
(6) In this section "Cabinet" includes a Cabinet committee or subcommittee.
#	Exemption subject to "public interest" override?
#	Similar exemption for Executive Council of a province? See Australia (Fed): s35; Queensland: s37; Western Australia: Sch 1: par 1; Ontario: s12
OPTION 2 - if Cabinet is excluded from the application of the Bill:
#	Omit clause 38B.
Operations of governmental bodies 
39. (1) Subject to subsections (3) and (4), the information officer of a governmental body may refuse a request for access to a record of the body— 
(a)	if the record contains an opinion, advice or recommendation obtained or prepared, or an account of a consultation, discussion or deliberation that has occurred[, including, but not limited to, minutes of a meeting,] for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law and if— 
(i)	the knowledge that disclosure of the record were possible could reasonably be expected [OR would be likely] to frustrate the deliberative process in a governmental body or between governmental bodies by inhibiting the candid— 
(aa)	communication of that opinion, advice or recommendation; or 
(bb)	conduct of that consultation, discussion or deliberation; or 
(ii)	the disclosure of the record would [OR could], by premature disclosure of a policy or contemplated policy, be likely [OR reasonably be expected] {substantially} to frustrate the success of that policy; 
(b)	if the disclosure of the record would be likely [OR could reasonably be expected] to jeopardise the effectiveness of a testing, examining or auditing procedure or method used by a governmental body; 
(c)	if the record contains evaluative material, whether or not the person who supplied it is identified in the record, and the disclosure of the material would breach an express or implied promise which was— 
(i)	made to the person who supplied the material; and 
(ii)	to the effect that the material or the identity of the person who supplied it, or both, would be held in confidence; or 
(d)	if the record contains a working draft or note of an [official] employee of a governmental body. 
(2) In subsection (1)(c) "evaluative material" means an evaluation or opinion prepared— 
(a)	for the purpose of determining the suitability, eligibility or qualifications of the person to whom or which the evaluation or opinion relates— 
(i)	for employment or for appointment to office; 
(ii)	for promotion in employment or office or for continuance in employment or office; 
(iii)	for removal from employment or office; or 
(iv)	for the awarding of a scholarship, award, bursary, honour or similar benefit; or 
(b)	for the purpose of determining whether any scholarship, award, bursary, honour or similar benefit should be continued, modified, cancelled or renewed. 
(3) A record may not be refused in terms of subsection (1) [does not apply to a record] insofar as it consists of an account of, or a statement of reasons for, a decision taken in the exercise of a power or performance of a duty conferred or imposed by law. # Link with Administrative Justice Bill?
(4) A record may not be refused in terms of subsection (1)(a) [does not apply to a record]— 
(a)	if the record came into existence more than 15 {OR 20} years before the request concerned; or 
(b)	insofar as it consists of— 
(i)	factual material, including, but not limited to, any statistical data; 
(ii)	the analysis, interpretation or evaluation of, or any projection based on, factual material referred to in subparagraph (i); 
(iii)	a report on the performance or efficiency of a governmental body or any part thereof, or any programme, project or other activity under its supervision; 
(iv)	a report of a scientific or technical expert; or 
(v)	the results of[, or report on,] any [product or environmental] testing or other investigation [regarding] supplied by [AND/OR carried out by or on behalf of] a governmental body and the disclosure of the record would reveal a [serious] public safety or environmental risk.
	(4A) For the purposes of subsection (4)(b)(v), the results of any [product or environmental] testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
(5) If a request for access to a record contemplated in subsection (4)(b)(v) is granted and the testing or other investigation was carried out by or on behalf of the governmental body from which the record is requested, the information officer must at the same time as access to the record is given, [direct] provide the requester [to the source of the original test or other investigation to enable the requester to obtain an] with a written explanation of the methods used in conducting the testing or other investigation.
Frivolous or vexatious requests or diversion of resources 
40. The information officer of a governmental body may refuse a request for access to a record of the body if—
(a)	the request is manifestly frivolous or vexatious; or
(b)	the work involved in processing the request would substantially and unreasonably divert the resources of the governmental body.
# See s18A proposed to replace s41 below
[Records that cannot be found or do not exist 
41. (1) The information officer of a governmental 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 an information officer refuses a request for access to a record in terms of subsection (1), he or she must, in the notice referred to in section 19(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 information officer.]
[Published records and records to be published 
#	Australia (Fed): s21; Ireland: s11; Queensland: s 31; Western Australia: s25.: Subsection (1)(a), (d) & (e) below not drafted as an "exemption", but referred to as "deferral" of access- see s18B as alternative for subsection (1)(a), (d) & (e) & related subsections. Draft UK Bill: cl 17 - an exemption as below
42. (1) Subject to this section, the information officer of a governmental body may refuse a request for access to a record of the body if— 
(a)	the record is to be published within [60] 90 days after the receipt or transfer 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] is reasonably accessible to the requester concerned at a fee no greater than would be charged for access in terms of this Act;] # Omit par (b) in view of "right to know" clause?
[(c)	the record is available for purchase by the public in accordance with arrangements made by or on behalf of a governmental body at a fee no greater than would be charged for access in terms of this Act;] # Omit par (b) in view of "right to know" clause?
(d)	the publication of the record is required by law, within 90 days after the receipt or transfer of the request; or 
(e)	 the record has been prepared for submission to Parliament [OR any legislature] unless a period of 90 days after such preparation has expired and the record has not been so submitted. 
(2) The information officer concerned must, in the notice referred to in section 19(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) and if such information is ordinarily available to the governmental body concerned, identify the title and publisher of the record[and the library concerned nearest to the requester concerned; 
(c)	subsection (1)(c) and if such information is ordinarily available to the governmental body concerned, identify the title and publisher of the record and state where it can be purchased; or ]
(d)	subsection (1)(e), state the date on which the record is to be submitted to Parliament [OR the legislature concerned]. 
(3) If an information officer is considering to refuse a request for access to a record in terms of subsection (1)(a), (d) or (e), 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 information officer why the record is required before publication or submission to Parliament [OR the legislature concerned]. 
Option 1 for subsection (4):
(4) If notice is given to a requester in terms of subsection (3), the information officer 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 or submitted to Parliament [OR the legislature concerned].
Option 2 for subsection (4):
(4) If a requester makes representations pursuant to a notice given in terms of subsection (3)(b), the information officer must, after due consideration of that representations, grant the request for access only if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the record is deferred until the record is published or submitted to Parliament [OR the legislature concerned]
(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] 90 days after receipt or transfer 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 
43. The information officer of a governmental 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 request fee and access fee payable in terms of this Act.]
OPTION 1:
{Necessity of harm
43A. No provision in this Chapter may be construed to require or permit the information officer of a governmental body to refuse a request for access to a record of the governmental body if the harm that the provision is intended to guard against would not occur if the request is granted.}
OPTION 2:
#	Omit clause 43A.
OPTION 1:
Mandatory disclosure in public interest 
44. (1) Despite any other provision of this Act, but subject to Chapter 3 of this Part, the information officer of a governmental body must grant a request for access to a record contemplated in section 29(1), 30(2), 31(1), 33(a), 34(1)(c)(ii), (iii) or (vi) or (d) or 35 if— 
(a)	disclosure of the record would reveal evidence of substantial— 
(iA)	infringement of any right in the Bill of Rights in Chapter 2 of the Constitution;
(i)	abuse of authority, illegality or neglect in the exercise of a power or performance of a duty of an [official] employee of a governmental body; 
(ii)	injustice to a person, including a deceased individual; 
Option 1 for paragraph (iii):
(iii)	danger to the environment or the health or safety of an individual or the public; or
Option 2 for paragraph (iii):
(iii)	public safety or environmental risk;
(iv)	unauthorised use of the funds or other assets of a governmental body; and
(b)	giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned. 
(2) Despite any other provision of this Act, but subject to Chapter 3 of this Part, the information officer of a governmental body must grant a request for access to a record contemplated in section 32(1) or (3), 33(b), 34(1)(a), (b), (c)(i), (iv) or (v), 36(1), 37(1), 38(1) or (2) or 39(1), if giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned.
OPTION 2:
Mandatory disclosure
44. Despite any other provision of this Part, the head of a governmental body must grant a request for access to a record of the body contemplated in section 29(1) [privacy] or (5)[health of requester], 31(1)[third party commercial information], 32(1)(b) [certain confidential information], 33(b) [security of structures], 36(1) [defence], 37(1) [international relations], 38(1) or (2) [economic/commercial interests of state/governmental body], 38A [research] 39(1) [operations of governmental bodies], 40(b) [diversion of resources] or 42(1) [records to be published], if—
(a)	the disclosure of the record would reveal evidence of a substantial—
(i)	contravention of, or failure to comply with, the law; or
(ii)	imminent [and/or serious] public safety or environmental risk; and
(b)	{giving due weight to the importance of open, accountable and participatory administration,} the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned. 
#	s42: see alternative - s18B - inclusion not as an exemption
CHAPTER 3
THIRD PARTY INTERVENTION 
Notice to third parties 
45. (1) [If] The information officer of a governmental body [is] considering a request for access to a record that might be a record contemplated in section 29(1); [or] 31(1) or 32(1) {Option 1} (1)(a) {Option 2}[, the information officer] must take all reasonable [OR necessary] steps to 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 information officer must inform a third party in terms of subsection (1)— 
(a)	as soon as reasonably possible, but in any event, within 21 days or, if an urgent request application has been granted, within five working days, after that request is received or transferred; and 
(b)	by the fastest means reasonably possible. 
(3) When informing a third party in terms of subsection (1), the information officer must— 
(a)	state that he or she is considering a request for access to a record contemplated in section 29(1) or 31(1), as the case may be, and describe the content of the record; 
(b)	furnish the name of the requester if the requester consents thereto, or in the absence of such consent, state whether the requester is a personal, non-commercial or commercial requester; 
(c)	in the case of a record contemplated in— 
(i)	section 29(1), describe the provisions of section 29; or 
(ii)	section 31(1), describe the provisions of section 31; 
(d)	in any case where the information officer believes that the provisions of section 44(1) might apply, describe those provisions, specify which of the circumstances referred to in section 44(1)(a)(i) to (iv) in the opinion of the information officer might apply and state the reasons why he or she is of the opinion that section 44(1) might apply; and 
(e)	state that the third party may, within 21 days or, if an urgent request application has been granted, within 10 working days, after the third party is informed— 
(i)	make written or oral representations to the information officer 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 information officer must, on request, give a written notice stating the matters referred to in subsection (3) to the third party. 
Representations by third parties 
46. (1) A third party that is informed in terms of section 45(1) of a request for access, may, within 21 days or, if an urgent request application has been granted, within 10 working days after the third party has been informed— 
(a)	make written or oral representations to the information officer concerned why the request should be refused; or 
(b)	give written consent for the disclosure of the record to the requester concerned.
(2) A third party that obtains knowledge about a request for access other than in terms of section 45(1) may—
(a)	make written or oral representations to the information officer 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 
47. (1) The information officer of a governmental body must, as soon as reasonably possible, but in any event within 30 days or, if an urgent request application has been granted, within 15 working days, after every third party is informed as required by section 45— 
	(a)	decide, after giving due regard to any representations made by a third party in terms of section 46(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 45(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 45(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 46(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 findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)	the reasons for granting the request (including the provisions 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 internal appeal with the [head of the governmental body concerned] relevant authority or to utilise any other remedy in law available to the third party; and 
	(c)	that the third party may lodge an internal appeal against the decision with the [head of the governmental body] relevant authority— 
	(i)	within 30 days; or 
	(ii)	if an urgent request application has been granted, within 10 working days, 
		after notice is given, and the procedure for lodging the internal appeal; and 
	(d)	that the requester will be given access to the record after the expiry of the applicable period contemplated in paragraph (c)(i) or (ii), unless an internal appeal is lodged within that period. 
	(4) If the information officer of a governmental 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— 
	(a)	30 days; or 
	(b)	if an urgent request application has been granted, 10 working days, 
after notice is given in terms of subsection (1)(b), unless an internal appeal with the [head of the governmental body] relevant authority is lodged against the decision within the applicable period contemplated in paragraph (a) or (b) of this subsection. 
[PART 4 
ACCESS TO, CORRECTION OF AND CONTROL OVER PERSONAL INFORMATION HELD BY PRIVATE AND GOVERNMENTAL BODIES 
Application of Part 
	48. This Part, except sections 50, 51 and 52, does not apply to personal information— 
	(a)	already publicly available; 
	(b)	created or acquired and preserved solely for public reference or exhibition purposes in a library or museum; 
	(c)	placed by or on behalf of a person other than a governmental body in— 
	(i)	an archives repository established in terms of— 
			(aa)	section 11(1) of the National Archives of South Africa Act, 1996 (Act No. 43 of 1996); or 
			(bb)	an equivalent provision of provincial legislation regarding the custody of the records of governmental bodies in the relevant provincial sphere of government; or 
	(ii) a library or museum controlled by a governmental body; 
	(d)	about an individual who is or was an official of a governmental body if the information relates to the position or functions of that official, including— 
	(i)	the fact that the individual is or was an official of that governmental body; 
	(ii)	the title, work address, work phone number and other similar particulars of the individual; 
	(iii)	the classification, remuneration and responsibilities of the position held or services performed by the individual; or 
	(iv)	the name of the individual on a record prepared by the individual in the course of such employment. 
Use of Act for criminal or civil discovery of private bodies’ records excluded 
	49. 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.
Alternative:
49. No accused in criminal proceedings or party to civil proceedings, or person acting on the behalf of that accused or party, requiring the production of documents for the purposes of those criminal or civil proceedings, as the case may be, may be given access to a record of a private body in terms of this Act if that production is provided for in any other law.
Access to personal information held by private bodies 
	50. (1) Subject to section 49 and this section, a person (in this section referred to as "the requester") must, on request (in this section referred to as "the request"), be given access to any record of a private body containing personal information about that person. 
	(2) The request must— 
	(a)	be made orally or in writing to the head of the private body concerned at his or her address, fax number or electronic mail address; 
	(b)	provide sufficient particulars to enable the head of the private body to identify the record requested; 
	(c)	specify a postal address or phone number for the requester in the Republic; and
Alternative for (c):
(c)	specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester; and 
	(d)	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 his or her identity; and 
	(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.
Alternative for (i) and (ii):
(i)	proof of the requester’s identity to the reasonable satisfaction of the head of the private body; or
(ii)	if the requester is not the person to whom or which the personal information relates, proof of the capacity in which the requester is making the request, to the reasonable satisfaction of the head of the private body. 
	(3) The request may be made— 
	(a)	by the person to whom or which the personal information in the record relates or that person’s authorised representative; 
	(b)	if an 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; or 
	(iii)	deceased, by the executor of his or her estate. 
	(4) The head of the private body to whom the request is made, must, subject to subsection (6), give access to the record to the person as soon as reasonably possible, but in any event, within 30 days, after the request has been received. 
	(5) If, in accordance with this section, access is given to a record containing personal information— 
	(a)	the head of the private body must inform the person concerned that a request for the correction of the information may be made in terms of section 51; and 
	(b)	the form of access is as the head of the private body determines, provided that a copy of the record must, on request of the requester, be provided at a reasonable fee. 
	(6)(a) Subject to this subsection, the provisions requiring or permitting the refusal or granting of a request for access to a record, or part thereof, of a governmental body contained in sections 23(1) and (2), 29, 30(1), (2) and (3), 31(1) and (2), 32, 33, 34 (except subsection (3)(b)(iv)), 35, 36 (except subsection (2)(b)(iv)), 37, 38(1), (2) and (3), 39(1) to (4), 40, 41, 42(1), (2) and (5) and 43 apply, with the changes required by the context, to the request. 
	(b)	Any reference in a provision contemplated in paragraph (a) to— 
	(i)	the information officer of a governmental body; 
	(ii)	a record of a governmental body; and 
	(iii)	a notice in terms of section 19, 
must be construed as a reference to the head of a private body, a record of a private body and a notice in terms of paragraph (c) of this subsection, respectively. 
	(c) If the request is refused in accordance with paragraph (a), the head of the private body must notify the requester of the refusal and the reasons for the refusal as soon as reasonably possible, but in any event, within 30 days, after the request has been received. 
	(7) The head of a private body may, subject to the conditions determined by the head, delegate a power conferred or duty imposed on the head by this Part to any employee of the private body. 
Correction of personal information held by private bodies 
	51. (1) A record may be corrected in terms of this section by amending, supplementing or, subject to subsection (8), deleting the inaccurate information. 
	(2) If a person is given access to a record of a private body in terms of section 50, that person may request the correction of inaccurate personal information about that person in that record (in this section referred as "the request"). 
	(3) Nothing in this section prevents a private body from correcting personal information in a record of that body in accordance with other law. 
	(4) If any other law determines any requirement in respect of the correction of personal information in a record of a private body which is additional to, but consistent with, the provisions of this section, a correction requested in terms of this section must be made in accordance with this section and the requirement of that other law. 
	(5) The request must— 
	(a)	be made orally or in writing to the [head] information officer of the private body concerned at his or her address, fax number or electronic mail address; 
	(b)	provide sufficient particulars to enable the [head] information officer of the private body to identify the record which contains the information that the requester regards as inaccurate; 
	(c)	specify the respect in which the requester regards the information as inaccurate and provide any information regarding the inaccuracy that is in the possession or under the control of the requester; and 
	(d)	specify a postal address or fax number for the requester in the Republic.
Alternative:
(d)	specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester.
	(6) The [head] information officer of a private body to whom the request is made, must, as soon as reasonably possible, but in any event, within 30 days, decide on the request. 
	(7) If the [head] information officer of a private body decides that the information identified in the request is inaccurate, the head must, free of charge and within the period contemplated in subsection (6)— 
	(a)	correct the information and send a copy of the part of the record containing the correction to the requester; and 
	(b)	determine, as far as reasonably possible, whether the inaccurate information is in any other record of the private body and, if it is, make the same correction on the other record. 
	(8) If the [head] information officer of a private body decides upon the request to delete information contained in any record, the [head] information officer must, before making the deletion— 
	(a)	make a copy of the part of the record to be deleted; 
	(b)	make a note on that copy of the deletion to be made in the original record; and 
	(c)	retain that copy for as long as the record is retained. 
	(9) If the [head] information officer of a private body decides that the information referred to in a request for correction is not inaccurate and that the request is not irrelevant, frivolous or vexatious, the [head] information officer must, free of charge and within the period contemplated in subsection (6)— 
	(a)	make a note in the record as near as reasonably possible to the point where the information appears— 
	(i)	of the decision of the [head] information officer that the information is not inaccurate; 
	(ii)	that the accuracy of the information is disputed by the requester; and 
	(iii)	that the request is attached to the record, 
		and attach the request to the record; and 
	(b)	notify the requester— 
	(i)	of the decision that the information is not inaccurate; and 
	(ii)	that a note was made on the record as required by paragraph (a), 
		and send a copy of the note to the requester. 
	(10) If a record has been corrected in terms of subsection (7), any disclosure or use of the record after such correction must be in its corrected form. 
(11) If a note has been made in a record as contemplated in subsection (9)(a), any disclosure of the information concerned in the record must include— 
	(a)	that note; and 
	(b)	the relevant request attached thereto. 
Correction of personal information held by governmental bodies 
	52. (1) A record may be corrected in terms of this section by amending, supplementing or, subject to subsection (10), deleting the inaccurate information. 
	(2) If a person is given access to a record of a governmental body in terms of section 9, that person may request the correction of inaccurate personal information about that person in that record. 
	(3) Nothing in this section prevents a governmental body from correcting personal information in a record of that body in accordance with other law. 
	(4) If any other law determines any requirement in respect of the correction of personal information in a record of a governmental body which is additional to, but consistent with, the provisions of this section, a correction in terms of this section must be made in accordance with this section and the requirement of that other law. 
	(5)(a) A request for correction must be made in the prescribed form or orally to the information officer of the governmental body concerned at his or her address, fax number or electronic mail address. 
	(b) The form for a request for correction prescribed for the purposes of paragraph (a), must at least require from the requester— 
(i)	to provide sufficient particulars to enable an [official] employee of the governmental body concerned to identify the record which contains the information that the requester regards as inaccurate; 
(ii)	to specify the respect in which the requester regards the information as inaccurate and to provide any information regarding the inaccuracy that is in the possession or under the control of the requester; and 
(iii)	to specify a postal address or fax number for the requester in the Republic. 
	(6) Sections 13(4), 14, 15, 16, 20 and 21 apply with the changes required by the context to a request for correction. 
	(7) The information officer to whom a request for correction is made or transferred, must, subject to sections 20 and 21(1), read with subsection (6), as soon as reasonably possible, but in any event within 30 days, after the request is received or transferred, decide on the request. 
	(8) If the information officer fails to decide on a request for correction within the period contemplated in subsection (7), the information officer is, for the purposes of this Act, regarded to have refused the request. 
	(9) If the information officer decides that the information identified in a request for correction is inaccurate, the information officer must, free of charge and within the period contemplated in subsection (7)— 
	(a)	correct the information and send a copy of the part of the record containing the correction to the requester; 
	(b)	determine, as far as reasonably possible, whether the inaccurate information is in any other record of that governmental body and, if it is, make the same correction on the other record; 
	(c)	determine, as far as reasonably possible, whether the inaccurate information has been supplied by that governmental body to any other governmental body or person and notify any such other governmental body or person of the correction that was made; and 
	(d)	send to the requester a copy of each notice which the information officer gives in terms of paragraph (c). 
	(10) If the information officer decides upon a request for correction to delete information contained in any record, he or she must, before making the deletion— 
	(a)	make a copy of the part of the record to be deleted; 
	(b)	make a note on that copy of the fact of the deletion to be made in the original record; and 
	(c)	retain that copy for as long as the record is retained. 
	(11) A governmental body which has been notified in terms of subsection (9)(c) that such governmental body has been supplied with inaccurate information must, as soon as reasonably possible, but in any event within 30 days, after being so notified, if the body— 
	(a)	accepts that the information is inaccurate, correct that information and notify the person to whom or which the information relates that the correction has been made; or 
	(b)	is of the opinion that the information is not inaccurate, make a note and notify the requester as contemplated in subsection (12)(a) and (b). 
	(12) If the information officer decides that the information identified in a request for correction is not inaccurate and that the request is not irrelevant, frivolous or vexatious, the information officer must, free of charge and within the period contemplated in subsection (7)— 
	(a)	make a note in the relevant record as near as reasonably possible to the point where the information appears— 
	(i)	of the decision of the information officer that the information is not inaccurate; 
	(ii)	that the accuracy of the information is disputed by the requester concerned; and 
	(iii)	that the request is attached to the record, 
		and attach the request to the record; 
	(b)	notify the requester— 
	(i)	of the decision that the information is not inaccurate; 
	(ii)	that a note was made on the record as required by paragraph (a); 
	(iii)	that he or she may lodge an internal appeal with the [head of the governmental body] relevant authority against the decision that the information is not inaccurate, and of the procedure (including the period) for lodging the internal appeal, 
		and send a copy of the note to the requester; 
	(c)	take reasonable steps to enable the requester to provide a statement of any further reasons why the requester considers the information to be inaccurate; and 
	(d)	unless there are reasonable grounds for considering the statement irrelevant, defamatory or unnecessarily voluminous, attach the statement so provided to the record. 
	(13) If a record containing personal information has been corrected in terms of subsection (9) or (11), any disclosure or use of the record after such correction must be in its corrected form. 
	(14) If a note has been made in a record as contemplated in subsection (11)(b) or (12)(a), any disclosure of the information concerned in the record must include— 
	(a)	that note; 
	(b)	the request for correction concerned, if applicable; and 
	(c)	any statement attached as contemplated in subsection (12)(d), if applicable. 
Use of personal information by private bodies 
	53. Subject to section 59, a private body may not use a record of the private body containing personal information, except— 
	(a)	if the person to whom or which the information relates has consented to its use in accordance with section 58; 
	(b)	for the purpose for which the information was obtained or compiled or for a purpose consistent with that purpose; [or] 
	(c)	for a purpose for which the information may be disclosed to the private body in terms of section 55 or 56; or
(d)	for any prescribed purpose which is necessary for pursuing the legitimate interests of the private body and—
(i)	which would not pose a threat to the privacy of the person to whom or which the information relates; or
(ii)	where the public interest in the use clearly outweighs any invasion of privacy that could result from the use.
Use of personal information by governmental bodies 
	54. Subject to section 59, a governmental body may not use a record of the governmental body containing personal information, except— 
	(a)	if the person to whom or which the information relates has consented to its use in accordance with section 58; 
	(b)	for the purpose for which the information was obtained or compiled or for a purpose consistent with that purpose; [or] 
	(c)	for a purpose for which the information may be disclosed to the governmental body in terms of section 55 or 56; or
(d)	for any prescribed purpose which is necessary for pursuing the legitimate interests of the governmental body—
(i)	which would not pose a threat to the privacy of the person to whom or which the information relates; or
(ii)	where the public interest in the use clearly outweighs any invasion of privacy that could result from the use. 
Disclosure of personal information by private bodies 
	55. Subject to section 59, a private body may not disclose a record of the private body containing personal information, except— 
	(a)	in accordance with section 50 of this Act or any other law that authorises its disclosure; 
	(b)	if the person to whom or which the information relates has consented to its disclosure in accordance with section 58; 
	(c)	for the purpose for which the information was obtained or compiled or for a purpose consistent with that purpose; 
	(d)	for the purpose of complying with— 
		(i)	a subpoena, warrant issued or order made by a court or person authorised to compel the production of information; or 
		(ii)	rules of court relating to the production of information; 
	(e)	for the purpose of avoiding prejudice to the maintenance of the law, including the prevention, detection, investigation, prosecution and punishment of an offence; 
	(f)	for the purpose of averting or lessening an imminent and serious threat to the health or safety of an individual or the public; 
	(g)	for the purpose of the performance of a contract to which the person to whom or which the information relates is a party; or 
	(h)	for any prescribed purpose which would not pose a threat to the privacy of the person to whom or which the information relates and— 
	(i)	to which the person on invitation of the private body did not object; or 
	(ii)	which is necessary for pursuing the legitimate interests of the private body.
Alternative for (h):
(h)	for any prescribed purpose which is necessary for pursuing the legitimate interests of the private body—
(i)	which would not pose a threat to the privacy of the person to whom or which the information relates; or
(ii)	where the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure.
Disclosure of personal information by governmental bodies 
	56.(1) Subject to section 59, a governmental body may not disclose a record of the governmental body containing personal information, except— 
	(a)	in accordance with Part 3 of this Act or any other law that authorises its disclosure; 
	(b)	if the person to whom or which the information relates has consented to its disclosure in accordance with section 58; 
	(c) for the purpose for which the information was obtained or compiled or for a consistent purpose; 
	(d)	for the purpose of complying with— 
	(i)	a subpoena, warrant issued or order made by a court or person authorised to compel the production of information; or 
	(ii)	the rules of court relating to the production of information; 
	(e)	for the purpose of avoiding prejudice to the maintenance of the law, including the prevention, detection, investigation, prosecution and punishment of an offence; 
	(f)	for the purpose of averting or lessening an imminent and serious threat to the health or safety of an individual or the public; 
	(g)	to a prosecuting authority for the purposes of criminal proceedings or to a legal practitioner representing the state, the Government of the Republic, any functionary thereof or a governmental body in civil proceedings for the purposes of those civil proceedings; 
	(h)	to a governmental body, on the written request of that body, for the purposes of enforcing the law or carrying out an investigation in terms of the law, if the request specifies the purpose and describes the information to be disclosed; 
	(i)	in terms of an agreement between the Government of the Republic or an organ thereof and the government of a foreign state, an international organisation or an organ of that government or organisation, for the purposes of administering or enforcing the law or carrying out an investigation in terms of the law; 
	(j)	to an official of a governmental body for the purpose of an internal audit or to the Auditor-General or an official from his or her office for the purpose of audit or to a person appointed to carry out an audit in respect of a governmental body; 
	(k)	to an archives repository in accordance with— 
	(i)	section 11 of the National Archives of South Africa Act, 1996 (Act No. 43 of 1996); or 
		(ii)	an equivalent provision of a provincial law regarding the custody of records of governmental bodies in the relevant provincial sphere of government; 
	(l)	to any person for research or statistical purposes if— 
	(i)	there are reasonable grounds for believing that the purpose for which the information is disclosed cannot reasonably be accomplished unless the information is provided in a form that would identify the person to whom or which it relates; and 
	(ii)	the information officer of the governmental body obtains from the person a written undertaking that no subsequent disclosure of the information will be made in a form that could reasonably be expected to identify the person to whom or which it relates; 
	(m)	to a governmental body for the purposes of locating a person— 
	(i)	 to collect a debt owing to the state or a governmental body by that person; or 
	(ii)	to make a payment, or give any other benefit, owing to that person by the state or a governmental body; 
	(n)	to a person other than a governmental body for the purpose of locating another person in order to make a payment owing to that other person; 
	(o)	for the purpose of the performance of a contract to which the person to whom or which the information relates, is a party; or 
	(p)	for any prescribed purpose which would not pose a threat to the privacy of the person to whom or which the information relates and— 
	(i)	to which the person on invitation of the governmental body did not object; or 
	(ii)	which is necessary for pursuing the legitimate interests of the private body.
Alternative for (p):
(p)	for any prescribed purpose which is necessary for pursuing the legitimate interests of the governmental body—
(i)	which would not pose a threat to the privacy of the person to whom or which the information relates; or
(ii)	where the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure.
(2) Despite anything to the contrary in subsection (1)(e) to (p), a governmental body may not disclose a record of the governmental body containing personal information supplied to the body in compliance with legislation imposing a tax, duty or levy.
Consistent purpose 
	57. If personal information has been collected directly from the person to whom or which the information relates, the purpose of a use or disclosure of that information is a consistent purpose in terms of sections 53(b), 54(b), 55(c) and 56(c) only if [the person might reasonably have expected such a use or disclosure] such a use or disclosure could reasonably be expected. 
Consent to use or disclose personal information 
	58. (1) The consent of a person for the use or disclosure of personal information in a record of a private or governmental body contemplated in section 53(a), 54(a), 55(b) or 56(b)— 
	(a)	must be obtained by the prescribed person in the prescribed form and manner; and 
	(b)	may be withdrawn by the person giving that consent [as prescribed] in the prescribed circumstances and manner. 
	(2) Regulations made for the purposes of subsection (1) may— 
	(a) differentiate between different— 
	(i)	categories of private bodies; and 
	(ii)	categories of governmental bodies; and 
	(b)	provide for the consent for a specific purpose or a category of purposes. 
Use and disclosure of personal information held before commencement 
	59. (1) If a record containing personal information is in the possession or under the control of— 
	(a)	a private body from a date before the commencement of sections 53 and 55, those sections do not apply to that record of the private body for a prescribed period from that commencement; 
	(b)	a governmental body before the commencement of sections 54 and 56, those sections do not apply to that record of the governmental body for a prescribed period from that commencement. 
	(2) If, at the end of the prescribed period referred to in subsection (1)(a) or (b), as the case may be, the prescribed steps have been taken to obtain the consent contemplated in section 53(a), 54(a), 55(b) or 56(b), as the case may be, of the person to whom or which the personal information in the record contemplated in subsection (1)(a) or (b), as the case may be, relates, that person is regarded to have given that consent whether or not the person in fact gave consent. 
	(3) Any consent regarded to have been given in terms of subsection (2) may be withdrawn as prescribed.
Alternative for (2) and (3):
(2) If, at the end of the prescribed period referred to in subsection (1)(a) or (b), as the case may be all the prescribed steps to locate the person to whom or which the personal information in the record contemplated in subsection (1)(a) or (b), as the case may be, relates, in order to obtain the consent contemplated in section 53(a), 54(a), 55(b) or 56(b), as the case may be, have been taken, but were unsuccessful, that person is regarded as having given that consent.
(3) Any consent—
(a)	given pursuant to the prescribed steps contemplated in subsection (2); or
(b)	regarded as having been given in terms of subsection (2),
may be withdrawn as provided for in section 58(1)(b).
	(4) Regulations made for the purposes of [subsection (1) or (3)] this section may— 
		(a)	differentiate between different— 
		(i)	categories of private bodies; and 
		(ii)	categories of governmental bodies; and 
		(b) provide for the consent for a specific purpose or a category of purposes. 
Register of uses and disclosures not in governmental body’s manual 
	60. (1) If the use or purpose of personal information in a personal information bank of a governmental body is not included in the statements of uses and purposes set out in accordance with section 6(2)(d)(ii)(bb) in the manual of the body published in terms of section 6, the head of that body must— 
	(a)	keep a register of— 
	(i)	any use by the body of that personal information; and 
	(ii)	any use or purpose for which that personal information is disclosed by the body; and 
	(b)	attach that register to that personal information. 
	(2) For the purposes of this Act, a register attached in terms of subsection (1)(b) is regarded [to form] as forming part of the personal information to which it is attached. 
	(3) If the personal information in a personal information bank of a governmental body is used or disclosed for a use consistent with the purpose for which the information was obtained or compiled by the body but the use is not included in the statement of compatible uses set out in accordance with section 6(2)(d)(ii)(bb) in the manual of the body, the head of the body must ensure that the use is included in the next manual to be published. 
Collection of personal information by governmental bodies 
	61. (1) No personal information may be collected by a governmental body unless such collection is— 
	(a)	required or permitted in terms of legislation; or 
	(b)	required for carrying out the functions of that body. 
	(2) A governmental body must, if reasonably possible, collect personal information which is intended to be or may be used in taking any decision which affects a person’s right or determines its content, directly from that person unless— 
	(a)	the person authorises otherwise; or 
	(b)	personal information contained in a record may be disclosed to the body in terms of section 56. 
	(3) If a governmental body collects personal information directly from a person, the body must inform the person of— 
	(a)	the fact that, and the purpose for which, the information is being collected; 
	(b)	the name and address of the body that— 
	(i)	is collecting the information; and 
	(ii)	will hold the information; 
	(c)	if the collection of the information is required or permitted in terms of legislation— 
	(i)	the relevant provisions of that legislation; and 
	(ii	 whether the supply of the information by the person is voluntary or compulsory; 
	(d)	the rights of access to, and correction of, personal information referred to in sections 9 and 52, respectively. 
	(4) Subsections (2) and (3) do not apply if compliance therewith could reasonably be expected to defeat the purpose, or prejudice the use, for which the information is being collected. 
Retention, accuracy and disposal of personal information by governmental bodies 
	62. (1) Personal information which has been used by a governmental body to make a decision which affects a person’s right, or determines its content, must be retained by the head of that body for such prescribed period after it was so used as is necessary to ensure that the person to whom or which it relates has a reasonable opportunity to obtain access to that information. 
	(2) The head of a governmental body must take all reasonable steps to ensure that personal information which is used by the body to make a decision which affects a person’s right, or determines its content, is as accurate, up-to-date and complete as possible and that— 
	(a)	the confidentiality of that information is protected; and 
	(b)	that information is secured against unauthorised access. 
	(3) The head of a governmental body must dispose of personal information in a record of the body as prescribed.]

NEW PART 4
ACCESS TO RECORDS OF PRIVATE BODIES
CHAPTER 1
GENERAL PROVISIONS
Right of access to records of private bodies
Option 1:
48A. Any person must be given access to any record of a private body if—
(a)	that record is required for the exercise or protection of any rights;
(b)	that person complies with the procedural requirements relating to a request for access to that record; and
(c)	access to that record is not refused in terms of any ground for refusal [OR exemption] contemplated in Chapter 2 of this Part.
Option 2:
48A. Any person must, on request, but subject to this Part, be given access to any record of a private body, including, but not limited to, a record containing personal information about that person, if—
(a)	that record is required for the exercise or protection of any rights;
(b)	that person complies with the procedural requirements relating to a request for access to that record; and
(c)	access to that record is not refused in terms of any ground for refusal [OR exemption] contemplated in Chapter 2 of this Part.
Part applies to record whenever it came into existence 
48B. This Part applies to a record of a private body regardless of when the record came into existence.
Application of other legislation prohibiting or restricting disclosure
Option 1:
48C.(1) Subject to section 5, this Part applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record of a private body.
(2) For the purposes of subsection (1), the manner in which access to a record of a private body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.
Option 2:
48C.(1) Subject to section 5, if any conflict arises between [any provision of] this Part and [any provision of] other legislation that prohibits or restricts the disclosure of a record of a private body, [the provision of] this Part prevails.
(2) For the purposes of subsection (1), the manner in which access to a record of a private body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.
Application of other legislation providing for access
Option 1 for section 4:
Option 1 for subsection (1):
48D.(1) Nothing in this Part, except subsection (2), prevents the giving of access to a record of a private body in terms of any other law.
Option 2 for subsection (1):
(1) Nothing in this Part, except subsection (2), prevents the giving of access to a record of a private body otherwise than in terms of this Act if that is permitted or required by any other law.
(2) If the manner in which access may be given, including, but not limited to, the payment of fees, in terms of the other law referred to in subsection (1), is more onerous than access to that record would have been in terms of this Part, this Part applies to the exclusion of that other law.
(3) This Part does not apply to any record of a private body described in a list published by notice in the Gazette in terms of section 6(2). # Heading not appropriate for this subsection - adjust heading or insert in clause 6
Option 2 for section 4:
48D. (1) This Part does not apply to a record of a private body if the record is—
(a)	subject to subsections (2) and (3), accessible in accordance with any other legislation; or
	(b)	described in a list published by notice in the Gazette in terms of section 6(2).
(2) The Minister must—
(a)	on a periodic basis not less frequently than once each two years; and
(b)	in accordance with the prescribed criteria,
review the legislation contemplated in subsection (1)(a) in order to determine whether the manner in which access may be obtained to a record or, category of records, of a private body in terms of any legislation is more onerous than access to that record would have been in terms of this Part.
(3) If the Minister has determined in terms of subsection (2) that the manner in which access may be obtained to a record or, category of records, of a private body in terms of such legislation is more onerous than access to that record would have been in terms of this Act, the Minister must, by notice in Gazette, determine that this Act applies to such record or category of records.
Option 1:
Use of Part for criminal or civil discovery of private bodies’ records excluded 
48E.(1) A person may not request access to a record of a private body in terms of section 1 for the purpose of criminal or civil proceedings [after the institution/commencement of such proceedings] if the production of that record for that purpose is regulated by any other law.
Option 1 for subsection (2):
(2) Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in such criminal or civil proceedings unless the exclusion of such record would be detrimental to the interests of justice.
Option 2 for subsection (2):
(2) Any person that contravenes subsection (1) is guilty of an offence and is, on conviction liable to imprisonment for a period of ... or a fine.
Option 2 - Phrased as an exemption to be included in Chapter 2 below:
Criminal or civil discovery
The head of a private body may refuse a request for access to a record of a private body if—
(a)	the record is required for the purpose of criminal or civil proceedings; and
(b)	the production of that record for that purpose is regulated by any other law.
Voluntary disclosure of certain records
48F.(1) [This section only applies to private bodies which are juristic persons.] # Omit if definition read as set out above 
Option 1 for subsection (2):
(2) The head of a private body may, on a periodic basis, submit to the Minister a list which describes—
(a)	the kinds of records of the private body that are available without a person having to request access in terms of this Part; and
(b)	how to obtain access to such records.
Option 2 for subsection (2):
(2) The head of a private body may, on a periodic basis, submit to the Minister a list which describes—
(a)	the kinds of records of the private body that are available without a person having to request access in terms of this Part—
(i)	for inspection in terms of legislation other than this Act;
(ii)	for purchase or copying from the private body;
(iii)	from the private body free of charge; and
(b)	specify how to obtain access to such records.
(3) The Minister may, if appropriate, publish by notice in the Gazette any list so submitted.
(4) The only fee payable (if any) for access to a record described in a list so published is a prescribed fee for reproduction.
Manual
48G.(1) [This section only applies to private bodies which are juristic persons.] # Omit if definition read as set out above 
(2) Within 12 months after the commencement of this section or the coming into existence of the private body concerned, the head of a private body must compile a manual containing—
	(a)	the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body; 
	(b)	a summary of the guide referred to in section 5, prepared by the Human Rights Commission, and how to obtain access to it;
(c)	the latest list published in terms of section 6(2);
(d)	a description of the records of the body which are available in accordance with any other legislation;
(e)	in sufficient detail to facilitate a request for access to, and for correction of personal information in, a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject; 
(f)	such other information as may be prescribed. 
(3) The head of a private body must on a regular basis update the manual referred to in subsection (2). 
(4) Each manual must be made available as prescribed. 
(5) For security, administrative or financial reasons, the Minister may, on request or of his or her own accord by notice in the Gazette, exempt any private body or category of private bodies from any provision of this section for such period as the Minister thinks fit. 
Form of request and assistance
#	Provide for a prescribed form?
48H. A request for access to a record of a private body must— 
	(a)	be made in writing to the head of the private body concerned at his or her address, fax number or electronic mail address;
	(b)	provide sufficient particulars to enable the head of the private body to identify the record requested; 
	(c)	specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester; and
(d)	identify the right the requester is seeking to exercise or protect and provide an explanation of why the requested record is required for the exercise or protection of that right.
Decision on request
48I. (1) Subject to Chapter 3 of this Part, the head of the private body to whom the request is made must, as soon as reasonably possible, but in any event, within 30 days, after the request has been received—
(a)	decide in accordance with this Part whether to grant the request; and
(b)	notify the requester 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; and
	(b)	the form in which access will be given.
Option 1 for subsection (3):
(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state— 
	(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)	the reasons for the refusal (including the provisions of this Part 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 utilise any remedy in law available to the requester.
Option 2 for subsection (3):
(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state the reasons for the refusal.
Option 3 for subsection (3):
(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state the reasons for the refusal in such manner as to enable the requester— 
(a)	to understand the justification for the refusal; and 
(b)	to make an informed decision about whether to utilise any remedy in law available to the requester.
(4) If the head of a private body fails to give his or decision on a request for access to a record of the body within the period contemplated in subsection (1), the head is, for the purposes of this Act, regarded as having refused the request.
(5) In awarding costs in any court proceedings pursuant to a request regarded, in terms of subsection (4), as having been refused, the relevant court may take into account the failure of the head of the private body concerned to give his or her decision within the required period.
Extension of period to deal with request 
48J. (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 9(1) (in this section referred to as the "original period") once for a further period of not more than 30 days, if— 
Option 1:
	(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 that cannot reasonably be completed within the original period;
	(c)	both the circumstances contemplated in paragraphs (a) and (b) exist in respect of the request making compliance with the original period not reasonably possible. 
Option 2:
there exists reasonable grounds for such extension.
(2) If a period is extended in terms of subsection (1), the head of the private body must, as soon as reasonably possible, but in any event, within 30 days, after the request is received, notify the requester of that extension, the period of the extension and the reasons for the extension. 
Records that cannot be found or do not exist
11.(1) The head of a private body may notify a requester that it is not possible to give access to a record if—
(a)	all reasonable steps have been taken to find the record requested; and
(b)	there is reasonable grounds for believing that the record—
(i)	is in the private body’s possession but cannot be found; or
(ii)	does not exist.
(2) The notice referred to in subsection (1) must give a full account of all steps taken to find the record in question 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 head.
(3) For the purposes of this Act, the sending of a notice in terms of subsection (1) is to be regarded as a decision to refuse a request for access to the record concerned.
Severability
48K. (1) If a request for access to a record of a private body containing information which is required or permitted by Chapter 2 of this Part, to be refused, is made, 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 Part, 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 9(2), apply to paragraph (a) of this section and the provisions of section 9(3) to paragraph (b) of this section.
Form of access and access fee
48L. (1) If access is granted to a record of a private body, the head of that body must, as soon as reasonably possible after notification in terms of section 9, give access in—
(a)	such form as the requester reasonably requires; or
(b)	if no specific form of access is required by the requester, such form as the head reasonably determines.
(2) A requester whose request for access to a record of a private body has been granted must pay the prescribed access fee for reproduction and for search and preparation of the record (if any).
(3) The head of the private body may defer access to a record of the body until the applicable access fee is paid by the requester concerned.
CHAPTER 2
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS [or EXEMPTIONS]
Interpretation
48M. A provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, must not be construed as—
(a)	limited in its application in any way by any other provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused; and
(b)	not applying to a particular record by reason that another provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, also applies to that record.

Mandatory protection of privacy 
Option 1 for section 15:			
Option 1 for subsection (1):
48N. (1) The head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received [OR a deceased individual]) other than the requester concerned. # Omit "other than ..." if subsection (4) or Option 2 of section 1 is included.
Option 2 for subsection (1):
(1) Subject to subsection (2), the head of a private body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about any person, including a deceased individual. # Retain existing definition of "personal information": information about an identifiable person OR include following detailed definition: ...
"personal information" means information about an identifiable individual, including, but not limited to—
information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual;
information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
any identifying number, symbol or other particular assigned to the individual;
the address, fingerprints or blood type of the individual;
the personal opinions or views of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence;
the views or opinions of another individual about the individual,
the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and
the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
but excludes information about an individual who has been dead for more than twenty years;
	(2) A record may not be refused in terms of subsection (1) insofar as it consists of information— 
(a)	about a person that has, in terms of section 22(3)(b), consented to its disclosure to the requester concerned; # Wording implies that, despite consent the record may still be refused i t o another exemption. Alternatively, it may be included as a separate subclause that states that the head must disclose it if person consents.
(b)	already publically available;
(c)	that was given to the private body by the person to whom or which it relates and the person was informed by or on behalf of the private body, before its being given, that the information belongs to a class of information that would or might be made available to the public;
(d)	about an individual’s physical or mental health, or well-being, who is under the care of the requester and who is— 
	(i)	under the age of 18 years; or
	(ii)	 incapable of understanding the nature of the request, 
		and if giving access would be in the individual’s best interests; # Use "process" similar to one in subsection (5) to (7) below? 
	(e)	about an individual who is deceased and the requester is the individual’s next of kin.
(3) In subsection (2)(e) "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, # Duplication - omit? immediately before the individual’s death; 
(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.
(4) Subject to subsections (5) to (7), the provisions of subsections (1) to (3) do not apply to a request for access by a person, or any person acting on behalf of that person, to a record by reason only of the inclusion in the record of information relating to the first-mentioned person.
#	Provisions similar to subsection (5) to (7) below (for state records) in Australia (Fed): s41(3) to (8); Ireland: s28(3) & (4); Queensland: s44(3) & (4) & Western Australia: s28 
(5) 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, and which was provided by a health practitioner in his or her capacity as such if— 
	(a)	the head 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 
(b)	the health practitioner so consulted is of the opinion that the disclosure of the record to that requester would be likely to cause serious harm to his or her physical or mental health, or well-being.
(6) 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 (5)(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. 
(7) 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 for the well-being of individuals.
Mandatory protection of third party commercial information 
48O. (1) The head of a private body must refuse a request for access to a record of the body if the record contains— 
	(a)	trade secrets of a third party;
Option 1 for paragraphs (b) and (c):
	(b)	financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which could reasonably be expected to cause unreasonable 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 [OR could reasonably be expected] to—
(i)	put that third party at an [unfair] disadvantage in contractual or other negotiations; or
(ii)	[unfairly] prejudice that third party in commercial competition;
Option 2 - combine paragraphs (b) and (c):
	(b)	any other information having a commercial value the disclosure of which could reasonably be expected to—
(i)	put a third party at an [unfair] disadvantage in contractual or other negotiations;
(ii)	[unfairly] prejudice a third party in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial or financial interests of a third party;
Option 1 for (d):
(d)	the results of original research undertaken by a third party [and not yet published] the disclosure of which could reasonably be expected to deprive that body or employee of the benefit of first publication of those results.
Option 2 for (d):
	(d)	information about research being or to be carried out by or on behalf of a third party, the disclosure of which would be likely unreasonably to expose—
(i)	the third party;
(ii)	a person that is or will be carrying out the research on behalf of the third party; or
(iii)	the subject-matter of the research,
to [serious] disadvantage.
Option 3 for (d):
	(d)	information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected to have an adverse effect on the third party or a person that is or will be carrying out the research.
(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about— 
	(a)	a third party who has, in terms of section 22(2)(b) consented to its disclosure to the requester concerned; # See comment on s14(2) above
	(b)	the results of any [product or environmental] testing or other investigation supplied by [AND/OR carried by or on behalf of] a third party and its disclosure would reveal a [serious] public safety or environmental risk.
(3) For the purposes of subsection (2)(b), the results of any [product or environmental] testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
(4) Subsection (1) does not apply to a request for access by a person, or a person acting on behalf of that person to a record by reason only of the inclusion in the record of information contemplated in subsection (1) that relates to that person. # See definition of "third party"
{Confidential communications
48P. The head of a private body may refuse a request for access to a record of a body if its disclosure would found an action for breach of confidence.}
Safety of individuals and security of structures and systems 
Option 1:
48Q. The head of a private body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to— 
	(a)	endanger the life or physical safety of an individual; or 
	(b)	prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system. 
Option 2:
The head of a private body— 
	(a)	must refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to endanger the life or physical safety of an [identifiable] individual; or 
	(b)	may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system.
Privileged from production in legal proceedings 
48R. The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings.
Commercial information of private body 
48S.(1) 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; 
	(b)	financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected to cause harm to the commercial or financial interests of the private body; 
	(c)	information the disclosure of which would be likely [OR could reasonably be expected] to—
(i)	put the private body at an [unfair] disadvantage in contractual or other negotiations; or
(ii)	[unfairly] prejudice the private body in commercial competition;
Option 2 - combine paragraphs (b) and (c):
	(b)	any other information having a commercial value the disclosure of which could reasonably be expected to—
(i)	put the private body at an [unfair] disadvantage in contractual or other negotiations;
(ii)	[unfairly] prejudice the private body in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial or financial interests of the private body;
Option 1 for (d):
(d)	the results of original research undertaken by an employee of the private body [not yet published] the disclosure of which could reasonably be expected to deprive that body or employee of the benefit of first publication of those results.
Option 2 for (d):
	(d)	information about research being or to be carried out by or on behalf of the private body, the disclosure of which would be likely unreasonably to expose—
(i)	the private body;
(ii)	a person that is or will be carrying out the research on behalf of the private body; or
(iii)	the subject-matter of the research,
to [serious] disadvantage.
Option 3 for (d):
	(d)	information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected to have an adverse effect on the private body or a person that is or will be carrying out the research.
(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about the results of any [product or environmental] testing or other investigation carried out by the private body and its disclosure would reveal a [serious] public safety or environmental risk.
(3) For the purposes of subsection (2), the results of any [product or environmental] testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
Mandatory disclosure
OPTION 1:
48T. Despite any other provision of this Part, the head of a private body must grant a request for access to a record of the body contemplated in section {privacy}, {third party’s commercial information}, {safety} or {body’s commercial information}, if the disclosure of the record would reveal evidence of —
(a)	a contravention of, or failure to comply with, the law; or
(c)	an imminent [and serious] public safety or environmental risk.
OPTION 1:
48T. Despite any other provision of this Part, the head of a private body must grant a request for access to a record of the body contemplated in section 48N{privacy}, 48O{third party’s commercial information}, 48Q{safety} or 48S{body’s commercial information}—
(a)	if the disclosure of the record would reveal evidence of a substantial—
(i)	contravention of, or failure to comply with, the law; or
(ii)	imminent {and serious} public safety or environmental risk; and
(b)	the right sought to be exercised or protected clearly outweighs the harm contemplated in the provision in question.
OPTION 2:
48T. Despite any other provision of this Part, the head of a private body must grant a request for access to a record contemplated in section 48N{privacy}, 48O{third party’s commercial information}, 48Q{safety} or 48S{body’s commercial information}—
(a)	if the disclosure of the record would reveal evidence of —
(i)	a serious contravention of, or failure to comply with, the law;
(ii)	a serious miscarriage of justice; or
(iii)	a imminent and serious public safety or environmental risk; and
(b)	the probable adverse effects of the non-disclosure of such record will clearly outweigh the possible adverse effects disclosure will have for any person whose interest is protected by the provisions of {the above-mentioned sections.
OPTION 1:
48Ta.(1) The head of a private body must, in all requests for access to a record not covered by the provisions of sections 48N to 48S, have regard to the possible adverse effects that the granting of access may have on the right of any other person and access shall be given only if the adverse effects non-disclosure may have for the requester outweighs the adverse effects disclosure may have for that other person.
(2) In weighing up the adverse effects disclosure and non-disclosure of a record may have, the nature of the relevant rights, the importance of the record for the exercise or protection of the relevant rights and the nature, extent and permanence or otherwise of the adverse effects, must be taken into account.
OPTION 2:
#	Omit section 48Ta
CHAPTER 3
THIRD PARTY NOTIFICATION
Notice to third parties 
48U. (1) The head of a private body considering a request for access to a record that might be a record contemplated in section [privacy, 3P commercial and confidential info clauses] must take all reasonable [OR necessary] steps to inform a third party to whom or which the record relates of the request. 
	(2) The head 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 must— 
	(a)	state that he or she is considering a request for access to a record that might be a record contemplated in section [see (1) above], as the case may be, and describe the content of the record; 
	(b)	furnish the name of the requester {if the requester consents thereto, or in the absence of such consent, state the purpose for which the record is requested}; 
	(c)	describe the provisions of section [see (1) above], as the case may be;
	(d)	in any case where the head believes that the provisions of section [override] might apply, describe those provisions, specify which of the circumstances referred to in section [override] in the opinion of the head might apply and state the reasons why he or she is of the opinion that section [override] 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 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 must give a written notice stating the matters referred to in subsection (3) to the third party.
Representations by third parties 
48V. (1) A third party that is informed in terms of section 48U(1) of a request for access, may, within 21 days after being so informed— 
	(a)	make written or oral representations to the head concerned why the request should be refused; or 
	(b)	give written consent for the disclosure of the record to the requester concerned.
	(2) A third party that obtains knowledge about a request for access other than in terms of section 48U(1) may—
(a)	make written or oral representations to the head 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 
48W. (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 48U— 
	(a)	decide, after giving due regard to any representations made by a third party in terms of section 48V, whether to grant the request for access; and 
	(b)	notify the third party so informed and a third party not informed in terms of section 48U, but that made representations in terms of section 48V or is located before the decision is taken, of the decision. 
	(2) If, after all reasonable [OR necessary] steps have been taken as required by section 48U, a third party is not informed of a request, 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 48V 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 findings on all material questions of fact, referring to the material on which those findings were based; and
	(b)]	the reasons for granting the request (including the provisions 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 utilise any remedy in law available to the third party.
#	Deferment of access in case of court appeals/applications?
#	Require reporting to Human Rights Commission and report by Commission to Parliament?
[PART 5 
PROTECTION OF WHISTLE-BLOWERS 
Exclusion of liability if disclosing contravention of law, corruption or maladministration 
	63. (1) No person is civilly or criminally liable or may be subjected to disciplinary action in any court or administrative or other tribunal on account of having disclosed any information, if— 
	(a)	the person in good faith and reasonably believed at the time of the disclosure that he or she was disclosing evidence of a contravention of the law, corruption, dishonesty or serious maladministration in a governmental body or on the part of an official of the body (in this Part referred to as an "impropriety"); and 
	(b)	the disclosure was made in accordance with subsection (3). 
	(2) Without limiting the generality of subsection (1)(a) "impropriety" includes— 
	(a)	an abuse of power by a governmental body or an official thereof; 
	(b)	an improper or unauthorised use of the funds or other assets of the state or a governmental body; 
	(c)	negligent administration resulting or likely to result in a substantial— 
	(i)	waste of public resources; or 
	(ii)	danger to the health or safety of an individual or the public; or 
Alternative for (ii):
(ii)	public safety or environmental risk; or
	(d)	an offence referred to in section 1 of the Corruption Act, 1992 (Act No. 94 of 1992). 
	(3) Subsection (1) applies only if the person concerned— 
	(a)	disclosed the information concerned to— 
	(i)	a committee of Parliament or of a provincial legislature; 
	(ii)	the Public Protector; 
	(iii)	the Human Rights Commission; 
	(iv)	the Auditor-General; 
	(v)	[any Attorney-General or his or her successor] the National Director of Public Prosecutions or a Director of Public Prosecutions; [or]
(vi)	the inspector contemplated in section 210(b) of the Constitution; {Inspector-general of Intelligence referred to in section 7 of the Intelligence Services Control Act, 1994 (Act No. 40 of 1994)}; 
(vii)	any member {above a certain rank?} of the South African Police Service;
	(viii)	more than one of the bodies or persons referred to in subparagraph (i) to (vii); or 
	(b)	disclosed the information concerned to one or more news media and on clear and convincing grounds (of which he or she bears the burden of proof) believed at the time of the disclosure— 
	(i)	that disclosure was necessary to avert an imminent and serious threat to the safety or health of an individual or the public, to ensure that the impropriety concerned was properly and timeously investigated or to protect himself or herself against serious or irreparable harm from reprisals; or 
	(ii)	giving due weight to the importance of open, accountable and participatory administration, that the public interest in disclosure of the information clearly outweighed any need for non-disclosure; or 
	(c)	disclosed the information concerned substantially in accordance with any applicable external or internal procedure (other than the procedures contemplated in paragraph (a) or (b)) for reporting or otherwise remedying the impropriety concerned. 
	(4) Subsection (1) applies whether or not the person disclosing the information concerned has used or exhausted any other applicable external or internal procedure to report or otherwise remedy the impropriety concerned. 
Exclusion of liability if disclosing information after publication 
64. No person is civilly or criminally liable or may be subjected to disciplinary action in any court or administrative or other tribunal on account of having disclosed any information if, before the time of the disclosure of the information, it had become available to the public, whether in the Republic or elsewhere. 
Protection against reprisals 
	65. (1) Any person who made, or indicated that he or she intends making, a disclosure contemplated in section 63 or who refused to participate in an impropriety, may not as a result thereof or partly as a result thereof— 
	(a)	in respect of his or her employment, profession or office— 
	(i)	be dismissed, suspended, demoted, harassed or intimidated; 
	(ii)	be transferred against his or her will; 
	(iii)	be refused transfer or promotion; 
		(iv)	be subjected to a term or condition of employment or retirement which is altered or kept unaltered to his or her disadvantage; 
	(v)	be otherwise detrimentally affected in respect of that employment, profession or office, including, but not limited to, employment opportunities and work security; 
	(b)	be denied appointment or election to any employment, profession or office; or 
	(c)	be threatened with an action referred to in paragraph (a) or (b). 
	(2) If it is proved, in any criminal or civil proceedings or disciplinary action before a court or administrative or other tribunal with respect to an alleged contravention or threatened contravention of subsection (1), that an action contemplated in subsection (1)(a), (b) or (c) took place within two years after a disclosure, indication of an intention to disclose or refusal contemplated in subsection (1), it must be presumed, unless the contrary is proved, that such action took place as a result, or partly as a result, of that disclosure, indication of an intention to disclose or refusal. 
	(3) Subsection (1) applies whether or not the person who disclosed the information concerned has used or exhausted any other applicable external or internal procedure to report or otherwise remedy the impropriety concerned. 
	(4) A provision in a contract of employment or other agreement whereby any provision of this section is excluded, is void. 
	(5) An official of a governmental body who has made a disclosure contemplated in section 63 must, on his or her request and if reasonably possible, be transferred from the post or position occupied by him or her at the time of the disclosure to— 
	(a)	another post or position in the same division or another division of that governmental body; or 
	(b)	another governmental body. 
	(6) The terms and conditions of employment of a person transferred in terms of subsection (5) may not, without his or her written consent, be less favourable than the terms and conditions applicable to him or her immediately before his or her transfer. 
Notice to officials of provisions of Part and other complaint procedure 
	66. The head of a governmental body must give to every official of the body a copy of a notice prepared by the Human Rights Commission, which explains— 
	(a)	the provisions of this Part and section 85(b) and all external and internal procedures (other than the procedure contemplated in section 63) available to an official of the body who wishes to report or otherwise remedy an impropriety or, when those provisions or procedures are amended, that amendment; 
	(b)	that, if a contravention or threatened contravention of a provision of this Part in relation to a person is alleged, that the person may lodge an application with a High Court for appropriate relief, and the procedure (including the period) for lodging that application.] 
PART 6 
APPEALS AGAINST DECISIONS 
OPTION 1 - provide for internal appeals - include Chapter 1 below
#	References to the exemptions in Chapter 2 of Part 3 will be revised after the finalisation of the content of that Chapter. As regards third party notification, the inclusion of all provisions of that Chapter where a third party is involved, must still be considered. 
CHAPTER 1
INTERNAL APPEALS 
Right of internal appeal to [head of governmental body] relevant authority 
67. (1) A person may lodge an internal appeal against any decision of the information officer of a governmental body in relation to that person with the [head of the body] relevant authority. 
	(2) Subsection (1) may not be construed to limit any other right a person has in terms of the law to remedy a matter in respect of which an internal appeal may be lodged.
Manner of internal appeal, and appeal fees 
68. (1) An internal appeal— 
	(a)	must be lodged in the prescribed form— 
	(i)	within 60 days; 
	(ii)	if notice to a third party is required by section 47(1)(b), within 30 days[; or 
	(iii)	if the internal appeal is against the granting of a request for access and an urgent request application has been granted in respect of the request, within 10 working days], 
after notice is given to the appellant of the decision appealed against or, if notice to the appellant is not required, after the decision was taken; 
	(b)	must be delivered or sent to the information officer of the governmental body concerned at his or her address, fax number or electronic mail address; 
	(c)	must identify the subject of the internal appeal and state the reasons for the internal appeal and may include any other relevant information known to the appellant; 
(d)	if, in addition to a written reply, the appellant wishes to be informed of the decision on the internal appeal in any other manner, must state that manner and provide the necessary particulars to be so informed; 
	(e)	if applicable, must be accompanied by the prescribed appeal fee referred to in subsection (4); and 
	(f)	must specify a postal address or fax number [and, if the internal appeal includes an urgent appeal application], a phone number for the appellant in the Republic. 
(2) A person who wishes to lodge an internal appeal, but, because of illiteracy, poor literacy or [physical] sensory disability, is unable to comply with subsection (1), may request the Human Rights Commission to assist him or her to so comply. 
(3)(a) If an internal appeal is lodged after the expiry of the period referred to in subsection (1), the [head of the governmental body concerned] relevant authority must, upon good cause being shown, allow the late lodging of the internal appeal. 
(b) If that [head] relevant authority disallows the late lodging of the internal appeal, he or she must give notice of that decision to the person that lodged the internal appeal. 
(4)(a) A [commercial] requester lodging an internal appeal against the refusal of his or her request for access must pay the prescribed appeal fee (if any). 
(b) If the prescribed appeal fee is payable in respect of an internal appeal, the decision on the internal appeal may be deferred until the fee is paid. 
(5) As soon as reasonably possible, but in any event, within 10 working days, or, if an [appeal application has been granted, immediately,] after receipt of an internal appeal in accordance with subsection (1), the information officer of the governmental body concerned must submit to the [head of that body] relevant authority— 
	(a)	the internal appeal together with his or her reasons for the decision concerned; and 
	(b)	if the internal appeal is against the refusal or granting of a request for access, the name, postal address, phone and fax number and electronic mail address, whichever is available, of any third party that must be notified in terms of section 45(1) of the request.
Notice to and representations by other interested persons 
69. (1) If [the head of a governmental body] a relevant authority is considering an internal appeal against the refusal of a request for access to a record contemplated in section 29(1) or 31(1), the [head] authority must inform the third party to whom or which the record relates of the internal appeal, unless all necessary steps to locate the third party have been unsuccessful. 
(2) The [head] relevant authority must inform a third party in terms of subsection (1)— 
	(a)	as soon as reasonably possible, but in any event, within 30 days [or, if an appeal application has been granted, within five working days,] after the receipt of the internal appeal; and 
	(b)	by the fastest means reasonably possible. 
(3) When informing a third party in terms of subsection (1), the [head concerned] relevant authority must— 
	(a)	state that he or she is considering an internal appeal against the refusal of a request for access to a record contemplated in section 29(1), [or] 31(1), as the case may be, and describe the content of the record; 
	(b)	furnish the name of the appellant; 
	(c)	in the case of a record contemplated in— 
	(i)	section 29(1), describe the provisions of section 29; or 
	(ii)	section 31(1), describe the provisions of section 31; 
	(d)	in any case where that [head] authority believes that the provisions of section 44(1) might apply, describe those provisions, specify which of the circumstances referred to in section 44(1)(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 44(1) might apply; and 
	(e)	state that the third party may, within 21 days [or, if an appeal application has been granted, within 10 working days,] after the third party is informed, make written representations to [head] authority that why the request for access should not be granted. 
(4) If a third party is [not] informed [in writing] orally of an internal appeal in terms of subsection (1), the [head of the governmental body concerned] relevant authority must, on request, give a written notice stating the matters referred to in subsection (3) to the third party. 
(5) A third party that is informed of an internal appeal in terms of subsection (1), may[— 
	(a)]	within 21 days[; or 
	(b)	if an urgent appeal application has been granted, within 10 working days,] 
after the third party has been informed, make written representations to the [head of the governmental body concerned] relevant authority why the request for access should not be granted. 
(5A) A third party that obtains knowledge about an internal appeal other than in terms of subsection (1) may—
(a)	make written or oral representations to the relevant authority why the request for access should be refused; or
(b)	give written consent for the disclosure of the record to the requester concerned. 
(6) If the [head of a governmental body] relevant authority is considering an internal appeal against the granting of a request for access, the [head] authority must give notice of the internal appeal to the requester. 
(7) The [head] relevant authority must— 
(a)	notify a third party in terms of subsection (6) as soon as reasonably possible, but in any event, within 30 days [or, if an appeal application has been granted, within five working days,] after the receipt of the internal appeal; and 
	(b)	state in that notice that the third party may within 21 days after notice is given, make written representations to that [head] authority why that request should be granted. 
(8) A requester to whom or which notice is given in terms of subsection (6) may within 21 days after that notice is given, make written representations to the [head of the governmental body] relevant authority why the request for access should be granted. 
Decision on internal appeal and notice thereof 
70. (1) The decision on an internal appeal must be made with due regard to— 
	(a)	the particulars stated in the internal appeal in terms of section 68(1)(c); 
	(b)	any reasons submitted by the information officer in terms of 68(5)(a); 
	(c)	any representations made in terms of section 69(5), (5A) or (8); and 
	(d)	if a third party cannot be located as contemplated in section 69(1), the fact that the third party did not have the opportunity to make representations in terms of section 69(5) why the internal appeal should be dismissed. 
(2) When deciding on the internal appeal the [head of the governmental body concerned] relevant authority may confirm the decision appealed against or substitute a new decision for it. 
(3) The [head of the governmental body concerned] relevant authority must, subject to section 71, decide on the internal appeal— 
	(a)	as soon as reasonably possible, but in any event, within 30 days after the internal appeal is received by the information officer of the body; 
	(b)	if a third party is informed in terms of section 69(1), as soon as reasonably possible, but in any event[— 
	(i)]	within 30 days; or 
	[(ii)	if an urgent appeal application has been granted, within 15 working days 
after the third party has been informed;]
	(c)	if notice is given in terms of section 69(6)— 
	(i)	within five working days after the requester concerned has made written representations in terms of section 69(8); or 
	(ii)	in any other case within 30 days after notice is so given. 
(4) The [head of the governmental body] relevant authority must, immediately after the decision on an internal appeal— 
	(a)	give notice of the decision to— 
	(i)	the appellant; 
	(ii)	every third party informed as required by section 69(1); and 
	(iii)	the requester notified as required by section 69(6); and 
	(b)	if reasonably possible, inform the appellant about the decision in any other manner stated in terms of section 68(1)(d). 
(5) The notice in terms of subsection (4)(a) must state— 
	[(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)]	[the] adequate reasons for the decision (including the provision of this Act relied upon to justify the decision) [in such manner as to enable the appellant, third party or requester, as the case may be— 
	(i)	to understand the justification for the decision; 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 him or her, with respect to the decision on internal appeal; and]
	(c)	that the appellant, third party or requester, as the case may be, may lodge an application with a [High Court] court against the decision on internal appeal— 
	(i)	within 60 days; or
	(ii)	if notice to a third party is required by subsection (4)(a)(ii), within 30 days; [or 
	(iii)	if that application is against the granting of a request for access on internal appeal and an urgent appeal application has been granted in respect of the internal appeal, within 10 working days,]
after notice is given, and the procedure for lodging the application; and 
	(d)	if the [head of the governmental body concerned] relevant authority decides on internal appeal to grant a request for access and notice to a third party— 
	(i)	is not required by subsection (4)(a)(ii), that access to the record will forthwith be given; or 
		(ii)	is so required, that access to the record will be given after the expiry of the applicable period for lodging an application with a [High Court] court against the decision on internal appeal referred to in paragraph (c), unless that application is lodged before the end of that applicable period. 
(6) If the [head of the governmental body] relevant authority decides on internal appeal to grant a request for access and notice to a third party— 
	(a)	is not required by subsection (4)(a)(ii), the information officer of the body must forthwith give the requester concerned access to the record concerned; or 
	(b)	is so required, the information officer must, after the expiry of— 
	(i)	30 days; or 
	[(ii)	if an urgent appeal application has been granted in respect of the internal appeal, 10 working days,]
after the notice is given to every third party concerned, give the requester access to the record concerned, unless an application with a [High Court] court is lodged against the decision on internal appeal before the end of the applicable period referred to in subsection (5)(c) for lodging that application. 
(7) If the [head of a governmental body] relevant authority fails to [decide on an internal appeal] give notice of the decision on an internal appeal to the appellant within the period contemplated in subsection (3), that head is, for the purposes of this Act, regarded [to have] as having dismissed the internal appeal.
[Urgent internal appeals
	71. (1) A requester who wishes— 
	(a)	his or her internal appeal against the refusal of a request for access to be decided urgently must include an application to that effect in the internal appeal; or 
	(b)	an internal appeal against the granting of his or her request for access to be decided urgently must lodge an application to that effect with the information officer concerned, 
and in that application give reasons for the urgency. 
	(2) If an urgent appeal application is included in an internal appeal or is lodged with an information officer of a governmental body, the head of that body must, subject to section 69, immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event, within five working days, after the receipt of that urgent appeal application, decide on the internal appeal and give notice of the decision as required by section 70(4), unless there are reasonable grounds for believing that— 
	(a)	the nature of the reasons for the urgency furnished by the applicant is such that the applicant will suffer no prejudice if the internal appeal is decided upon within the period contemplated in section 70(3); or 
	(b)	it is impractical to decide on the internal appeal within five working days after that urgent appeal application has been received. 
	(3) If the head of a governmental body refuses an urgent appeal application on the grounds referred to in subsection (2)(a) or (b), the head must immediately or, if that is not reasonably possible, as soon as reasonably possible, but in any event, within five working days, after that urgent appeal application has been received, notify the applicant of the refusal. 
	(4) The notice in terms of subsection (3) must state— 
	(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)	the reasons for the refusal (including the provision of this Act relied upon to justify the refusal) in such manner as to enable the applicant— 
	(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 or to utilise any other remedy in law available to the applicant, with respect to the refusal; and 
	(c)	that the applicant may lodge an application with a High Court against the refusal of the urgent appeal application, and the procedure (including the period) for lodging that application with a High Court. 
	(5) If the notice in terms of subsection (2) or (3) of a decision is not given by fax, the applicant concerned must be informed by phone of the decision.] 
OPTION 2 - Do not provide for internal appeals
#	Omit Chapter 1 of Part 6 and all other references to internal appeals
OPTION 1 - Chapter 2: Internal appeal included in Bill
Where person has a choice between the Magistrate’s Court or High Court.
See definition of "court" in clause 1.
Reference to High Court in rest of Bill to be replaced with court.
CHAPTER 2
APPLICATIONS TO [HIGH] COURT
Non-exclusion of other remedies
72. This Chapter may not be construed to exclude or limit any other right a person has in terms of the law to remedy a matter in respect of which an application may be lodged with a [High C]court in terms of this Chapter.
Manner of applications to [High] Court
73. (1)	An application in terms of this Chapter must be lodged[—]
[(a)]	with a [High C]court having jurisdiction in terms of section 76; [and
(b)	subject to this Chapter, in accordance with the rules regarding an urgent application by way of notice on motion applicable to that High Court.
(2)	For the purposes of those rules of the High Court concerned, all applications are regarded [to be] as being urgent without any supporting documents required to set out the reasons for the urgency and why the applicant could not be afforded substantial redress at a hearing in due course.
(3)	If the interests of justice so require, a High Court having jurisdiction may extend the period within which an application may be lodged.]
Applications regarding decisions of information officers or [heads] relevant authorities of governmental bodies
74. (1)	A person—
(a)	that has been unsuccessful in [an urgent request application,] an internal appeal to the [head] relevant authority of a governmental body or an urgent appeal application; [or]
(b)	aggrieved by a decision of the [head] relevant authority of a governmental body to disallow the late lodging of an internal appeal in terms of section 68(3); or
(c)	aggrieved by a decision of a head of a private body in relation to a request for access of a record of that body,
may [appeal against the decision by way of an application] apply for appropriate relief in terms of section 80.
(2)	If an application referred to in subsection (1) is against the granting of a request for access on internal appeal that application must be lodged[—
(a)]	within 30 days; [or
(b)	if an urgent appeal application has been granted in respect of the internal appeal, within 10 working days],
after the third party concerned has been notified of the decision to grant the request on internal appeal.
(3)	The Human Rights Commission may [appeal by way of an application] apply for appropriate relief against a decision of—
(a)	the information officer of a governmental body; or
(b)	the [head] relevant authority of a governmental body on internal appeal.
[(4)	A third party notified of a decision of the head of a governmental body to disclose information regarding a serious public safety or environmental risk in terms of section 8(5)(a), may appeal by way of an application against the decision within 10 days after the third party concerned has been notified of the decision.]
[Applications regarding contraventions of Part 5
75. If a contravention or threatened contravention of a provision of Part 5 is alleged in relation to a person, that person may lodge an application for appropriate relief.]
Jurisdiction of [High C]court
76. A [High C]court has jurisdiction in respect of—
(a)	a decision of the information officer or [head] relevant authority of a governmental body or the head of a private 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 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 C]court.
Assistance of Human Rights Commission
77. (1)	An individual who wishes to lodge an application, but, because of illiteracy, poor literacy or a [physical] sensory disability, is unable to comply with this Chapter, may request the Human Rights Commission to assist him or her to so comply.
(2)	If the Human Rights Commission is of the opinion that an important matter of principle is involved, the Commission may appear before a [High C]court as a party to an application.
(3)	The Human Rights Commission may, on request, appoint a [person] legal practitioner admitted to practise as an advocate or an attorney in the Republic to represent an individual who has lodged an application in terms of section 74(1) [or 75].
Disclosing records to, and precautions against disclosing, by court
78. (1)	Despite [any other provisions of] this Act and any other law, any court hearing an application or an appeal against a decision on an application may examine any record of a governmental body to which this Act applies, and no such record may be withheld from the court on any grounds.
(2)	Subject to subsection (3), 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 body 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] relevant authority 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.
(2A) Such court may—
(a)	receive representations ex parte;
(b)	conduct hearings in camera;
(c)	prohibit the publication of such information in relation to the proceedings as the court determines, including information in relation to the parties to the proceedings and the contents of orders made by the court in the proceedings; and
(d)	examine a record or a copy of a record without giving access or information in relation thereto to a party to the proceedings.
(3) If [such] the 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.
Burden of proof
79. In any legal proceedings the burden of establishing that—
(a)	the refusal of a request for access; or
(b)	any decision taken in terms of section 17(2), 18(1), 20, 21(1), 25(3)[, 52(12(d), 65(5) or] 71, # 	References to relevant clauses of new part 4 dealing with access to records of private bodies still to be included (if any).
is justified in terms of this Act is on the party claiming that it is so justified.
Decision on application
80. (1)	After due consideration of all written and oral evidence before a [High C]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] relevant authority of a governmental body or the head of a private body to take such action as the [High] court considers necessary within a period mentioned in the order;
[(c)	if the application is against the refusal of an urgent request application or urgent appeal application, on the request for access to a record in respect of which that application was made;]
(d)	which grants an interdict, interim or specific relief, a declaratory order or compensation.
(3)	In deciding in terms of subsection (1) which order or other decision is just, the [High] court concerned must have due regard to the desirability of a speedy and inexpensive resolution of the application concerned.
Costs
81.	A [High C]court may make such order as to costs of an application before the court as it considers appropriate 

OPTION 2: Chapter 2 - No internal appeal procedure included in Bill
CHAPTER 2
APPLICATIONS TO [HIGH] COURT
Non-exclusion of other remedies
72. This Chapter may not be construed to exclude or limit any other right a person has in terms of the law to remedy a matter in respect of which an application may be lodged with a [High C]court in terms of this Chapter.
Manner of applications to [High] Court
73.(1)	An application in terms of this Chapter must be lodged[—]
[(a)]	with a [High C]court having jurisdiction in terms of section 76[;and
(b)	subject to this Chapter, in accordance with the rules regarding an urgent application by way of notice on motion applicable to that High Court.
(2) For the purposes of those rules of the High Court concerned, all applications are regarded [to be] as being urgent without any supporting documents required to set out the reasons for the urgency and why the applicant could not be afforded substantial redress at a hearing in due course.
(3) If the interests of justice so require, a High Court having jurisdiction may extend the period within which an application may be lodged].
Applications regarding decisions of information officers [or heads] of governmental bodies
74. (1)	A person—
[(a)	that has been unsuccessful in an urgent request application {if retained}, an internal appeal to the head of a governmental body or an urgent appeal application; or]
(b)	aggrieved by a decision of the [head] information officer of a governmental body; or [to disallow the late lodging of an internal appeal in terms of section 68(3),]
(c)	aggrieved by a decision of a private body in relation to a request for access of a record of that body,
may [appeal against the decision by way of an application] apply for appropriate relief in terms of section 80.
[(2) If an application referred to in subsection (1) is against the granting of a request for access on internal appeal that application must be lodged—
(a)	within 30 days; or
(b)	if an urgent appeal application has been granted in respect of the internal appeal, within 10 working days,
after the third party concerned has been notified of the decision to grant the request on internal appeal.]
(3) The Human Rights Commission may [appeal by way of an application] apply for appropriate relief against a decision of[—]
[(a)]	the information officer of a governmental body; [or
(b)	the head of a governmental body on internal appeal.]
[(4)	A third party notified of a decision of the head of a governmental body to disclose information regarding a serious public safety or environmental risk in terms of section 8(5)(a), may appeal by way of an application against the decision within 10 days after the third party concerned has been notified of the decision.]
[Applications regarding contraventions of Part 5
75.	If a contravention or threatened contravention of a provision of Part 5 is alleged in relation to a person, that person may lodge an application for appropriate relief.]
Jurisdiction of [High C]court
76.	A [High C]court has jurisdiction in respect of—
(a)	a decision of the information officer [or head] of a governmental body or the head of a private body contemplated in section 74 which has its office or, if the body has more than one office, its main office; or
(b)	a person that lodges an application in terms of section 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 C]court.
Assistance of Human Rights Commission
77. (1)	An individual who wishes to lodge an application, but, because of illiteracy, poor literacy or a [physical] sensory disability, is unable to comply with this Chapter, may request the Human Rights Commission to assist him or her to so comply.
(2) If the Human Rights Commission is of the opinion that an important matter of principle is involved, the Commission may appear before a [High C]court as a party to an application.
(3) The Human Rights Commission may, on request, appoint a [person] legal practitioner admitted to practise as an advocate or an attorney in the Republic to represent an individual who has lodged an application in terms of section 74(1) [or 75].
Disclosing records to, and precautions against disclosing, by court
78. (1)	Despite [any other provisions of] this Act and any other law, any court hearing an application or an appeal against a decision on an application may examine any record of a governmental body to which this Act applies, and no such record may be withheld from the court on any grounds.
(2) Subject to subsection (3), 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 body 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] relevant authority 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.
(2A) Such court may—
(a)	receive representations ex parte;
(b)	conduct hearings in camera;
(c)	prohibit the publication of such information in relation to the proceedings as the court determines, including information in relation to the parties to the proceedings and the contents of orders made by the court in the proceedings; and
(d)	examine a record or a copy of a record without giving access or information in relation thereto to a party to the proceedings.
(3) If [such] the 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.
Burden of proof
79.	In any legal proceedings the burden of establishing that—
(a)	the refusal of a request for access; or
(b)	any decision taken in terms of section 17(2), 18(1), 20, 21(1) or 25(3)[,(12)(d), 65(5) or 71], # References to relevant clauses of new part 4 dealing with access to records of private bodies still to be included (if any).
is justified in terms of this Act is on the party claiming that it is so justified.
Decision on application
80. (1)	After due consideration of all written and oral evidence before a [High C]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 governmental body or the head of a private body to take such action as the [High] court considers necessary within a period mentioned in the order;
[(c)	if the application is against the refusal of an urgent request application or urgent appeal application, on the request for access to a record in respect of which that application was made;]
(d)	which grants an interdict, interim or specific relief, a declaratory order or compensation.
(3)	In deciding in terms of subsection (1) which order or other decision is just, the [High] court concerned must have due regard to the desirability of a speedy and inexpensive resolution of the application concerned.
Costs
81.	A [High C]court may make such order as to costs of an application before the court as it considers appropriate.
PART 7 
[MISCELLANEOUS PROVISIONS] HUMAN RIGHTS COMMISSION 
Additional functions of Human Rights Commission 
	82. (1) The Human Rights Commission must— 
	(a)	annually review this Act and other legislation and the common law having a bearing on the accountability and openness of governmental bodies as well as private bodies which exercise substantial influence over the nature of the South African society; 
	(b)	make recommendations for— 
	(i)	the development, improvement, modernisation, reform or amendment of this Act or other legislation or common law contemplated in paragraph (a); 
	(ii)	the compliance with any constitutional requirements about access to information; and 
	(iii)	procedures in terms of which governmental bodies make information electronically available; 
	(c)	 monitor the administration of this Act; 
	(d)	develop and conduct educational programmes to advance the understanding of the public, in particular of disadvantaged communities, of this Act and of how to exercise the rights contemplated in this Act; 
	(e)	encourage governmental and private bodies to participate in the development and conduct of programmes referred to in paragraph (d) and to undertake such programmes themselves; 
	(f)	promote timely and effective dissemination of accurate information by governmental bodies about their activities; 
	(g)	publish and make available a guide on how to use this Act as contemplated in section 5; 
	(h)	if reasonably possible— 
	(i)	assist any person as required by this Act; and 
	(ii)	generally, on request, assist any person wishing to exercise a right contemplated in this Act; 
	(i)	make the determinations as contemplated in section 43; 
	(j)	supply the notice as contemplated in section 66; and 
	(k)	submit reports to the National Assembly as contemplated in section 83. 
	(2) The Human Rights Commission has all such powers as are reasonably necessary or expedient to enable it to perform its duties referred to in subsection (1), including, but not limited to, the power to— 
	(a)	recommend to a governmental or private body that the body make such changes in the manner in which it administers this Act as the Commission considers advisable; 
	(b)	train information officers of governmental bodies; 
	(c)	consult with and receive reports from governmental and private bodies on the problems encountered in complying with this Act; 
	(d)	obtain advice from, consult with, or receive and consider proposals or recommendations from, any governmental or private body, [official] employee of such a body or member of the public in connection with the Commission’s functions in terms of this Act; 
	(e)	receive money from any source to perform its functions in terms of this Act; 
	(f)	make donations to any private body participating in the development or conduct of, or undertaking, educational programmes as contemplated in subsection (1)(e); 
	(g)	for the purposes of section 83(c)(xii), request the Public Protector to submit to the Commission information with respect to— 
	(i)	the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act; 
	(ii)	the nature and outcome of those complaints; and 
	(h)	generally, inquire into any matter, including any legislation, the common law and any practice and procedure, connected with the objects of this Act. 
	(3) An [official] employee of a governmental body must afford the Human Rights Commission reasonable assistance for the effective performance of its functions in terms of this Act. 
Report to National Assembly by Human Rights Commission 
	83. The Human Rights Commission must include in its annual report to the National Assembly referred to in section 181(5) of the Constitution— 
	(a)	any recommendation in terms of section 82(1)(b); 
	(b)	a statement of all money received from any source referred to in section 82(2)(e); 
	(c)	in relation to each governmental body, particulars of— 
	(i)	the number of requests for access received; 
	(ii)	the number of requests for access granted in full; 
	(iii)	the number of requests for access granted in terms of section 44; 
	(iv)	the number of requests for access refused in full and refused partially and the number of times each provision of this Act relied on to refuse access was invoked to justify refusal in full and partial refusal; 
	[(v)	the number of requests for correction and the number of cases in which a correction was made;] 
	(vi)	the number of cases in which the periods stipulated in section[s] 19(1) [and 52(7),] respectively, were extended in terms of section 21(1) [and that section, read with section 52(6), respectively]; 
	[(vii)	the number of urgent request applications and urgent appeal applications, and the number of cases in which those applications were granted;] 
	{(viii)	the number of internal appeals lodged with the [head of the body] relevant authority and the number of cases in which, as a result of an internal appeal, access was given to a record or a part thereof and a correction of inaccurate personal information was made;}
	{(ix)	 the number of internal appeals which were lodged on the ground that— 
			(aa)	a request for access was regarded [to have] as having been refused in terms of section 22;} 
			[(bb)	a request for correction was regarded [to have] as having been refused in terms of section 52(8);] 
	(x)	the number of applications made to every [High] court and the outcome thereof and the number of decisions of every [High] court appealed against and the outcome thereof; 
	(xi)	the number of applications to every [High] court which were lodged on the ground that an internal appeal was regarded [to have] as having been dismissed in terms of section 70(7); 
	(xii)	the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act and the nature and outcome thereof; and 
	(xiii)	such other matters as may be prescribed. 
Expenditure of Human Rights Commission in terms of Act 
	84. Any expenditure in connection with the performance of the Human Rights Commission’s functions in terms of this Act must be defrayed from moneys appropriated by Parliament to the Human Rights Commission for that purpose [subject to— 
	(a)	requests being received with the changes required by the context in the form prescribed for the budgetary processes of departments of State; and 
	(b)	the Exchequer Act, 1975 (Act No. 66 of 1975), and the regulations and instructions thereunder, and the Auditor-General Act, 1995 (Act No. 12 of 1995)].
PART 8
GENERAL PROVISIONS
Liability
84A. No person is criminally or civilly liable for anything done in good faith in the course of the exercise or performance or purported exercise or performance of any power or duty in terms of this Act.
Offences 
	85. A person who— 
	[(a)	wilfully fails to comply with an undertaking contemplated in section 56(l)(ii); or] 
	[(b)	discloses information about an impropriety contemplated in section 63(1)(a) knowing it to be false{or not knowing or believing the information to be true; or]
	[(c)	discloses a record of a governmental body, which record is classified in terms of the regulations made in terms of section 86[(1)](c) and has been unlawfully obtained,] 
	commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding 12 months. 
Regulations 
	86. The Minister of Justice may, after consultation with the Human Rights Commission and with the approval of Parliament, by notice in the Gazette make regulations regarding— 
	(a)	any matter which is required or permitted by this Act to be prescribed; 
	(b)	any notice required by this Act; 
	(c)	[the classification of records of governmental bodies] uniform criteria to be applied by the information officer of very governmental body when deciding which kind of records are to be made available in terms of section 12C;
	(d)	any administrative or procedural matter necessary to give effect to the provisions of this Act.
Transitional provisions
86A. Despite section 19 —
(a)	for 12 months from the date that Part 3 takes effect in respect of a governmental body, the reference to 30 days in section 19(1) and any other reference to that period in other provision of this Act must be construed as a reference to 90 days in respect of that governmental body;
(b)	for 12 months following the 12 months referred to in paragraph (a) from the date that Part 3 takes effect in respect of a governmental body, the reference to 30 days in section 19(1) and any other reference to that period in other provision of this Act must be construed as a reference to 60 days in respect of that governmental body.
#	Similar transitional provision for private bodies?
#	Provision for existing arrangements, etc of governmental & private bodies for the correction of personal information and provision thereof if not in existence to be drafted
"Direct" amendment of other legislation:
#	Possible amendment of Public Protector Act to provide for mediation in relation to matters provided for in this Bill
Short title and commencement 
87. (1) This Act is the [Open Democracy Act, 1998,] Access to Information Act, 2000, and takes effect on a date determined by the President by proclamation in the Gazette. 
(2) Different dates may be so determined in respect of—
(a)	different provisions of this Act;
Option 1:
(b)	different governmental bodies in the national, provincial or local sphere of government and other categories of governmental bodies;
Option 2:
(b)	different categories of governmental bodies, including, but not limited to different governmental bodies contemplated in—
(i)	paragraph (a);
(ii)	paragraph (b)(i); and
(iii)	paragraph (b)(ii),
of the definition of "governmental body" in section 1; # Refer to Option 2 of definition of "governmental body".
(c)	 different categories of private bodies.

Draft:  Public Interest Override: Comparision with Freedom of Information Legislation of Other Jurisdictions (15/12/99)
OPD 94
OPEN DEMOCRACY BILL [B 67—98]: PUBLIC INTEREST OVERRIDE: COMPARISON WITH FREEDOM OF INFORMATION LEGISLATION OF OTHER JURISDICTIONS

AUSTRALIA (FEDERAL) - Following exemptions subject to public interest override:
Relations with other states:  33A(5)
Financial/property interest of Commonwealth/agency: 39(2)
Operations of agencies: 40(2)

#	Internal working documents: 36(1)(b), (3) & (7) - contained in exemption

CANADA (FEDERAL)
financial/commercial/scientific/technical information supplies in confidence & treated as such, information - result in material financial loss/gain, prejudice competitive position, interfere with contractual/other negotiations, of a third party: disclose if it would be in the public interest as it relates to public health, public safety or protection of the environment and if public interest clearly outweighs in importance financial loss/gain, prejudice to competitive position or interference with contractual/other negotiations: 20(6))

IRELAND - Following exemptions subject to public interest override, (“public interest would, on balance, be better served by granting than by refusing to grant” a request): 
deliberations of public bodies: 20(1)(b)
law enforcement and public safety: 23(3)(b)
certain confidential information: 26(3)
commercially sensitive information: 27(3)
personal information: 28(5)
research & information prejudicing well-being of cultural heritage/natural resources/species, or habitat of species, of flora or fauna: 30(2)
Financial & economic interest of State & public bodies: 31(3)

NEW ZEALAND - Exemptions subject to public interest override (“withholding of ... information is outweighed by other considerations which render it desirable, in the public interest, to make that information available” - 9(1)):
privacy of natural persons
information supplied in confidence to or by government agency ...
measures protecting the health or safety of members of the public
the substantial economic interests of country
measures that prevent or mitigate material loss to members of the public
constitutional conventions for time being which protect (i) confidentiality of communications by/with Sovereign; (ii) collective & individual ministerial responsibility; (iii) political neutrality of officials; (iv) confidentiality of advice by officials
effective conduct of public affairs ...
legal professional privilege
government’s commercial activities
government’s negotiations
disclosure/use of official information for improper gain/advantage

ONTARIO - Following exemptions does not apply “where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption - 23:
relations with other governments
third party information (also tax information)
economic and other interests of Ontario
danger to safety or health of individual
personal privacy

NEW SOUTH WALES
Allow disclosure of certain law enforcement documents (eg report on success achieved in programme for dealing with offences) and if the disclosure would, on balance, be in the public interest: Schedule 1: 4(2)(b)
Exempt documents relating to inter-governmental affairs and if its disclosure would, on balance, be contrary to the public interest: Sch 1: 5
Exempt internal working documents and if its disclosure would be contrary to the public interest: Sch 1: 9(1)(b)
Exempt document containing information obtained in confidence and its disclosure could reasonably be expected to prejudice future supply of such information to government and would be contrary to the public interest: Sch 1: 13(b)
Exempt documents (i) affecting the economy of the State or financial/property interests of State/agency or (ii) operations of agencies and if its disclosure would, on balance, be contrary to the public interest: Sch 1: 14, 15 & 16

QUEENSLAND - Following exemptions subject to public interest override:
Relations between state and other government or confidential information supplied by another government: 38
Investigations by parliamentary commissioner or Auditor-General: 39
Matter concerning operations of agencies: 40
Matter relating to deliberative process: 41
Third party commercial information: 45(1)
Confidential information disclosure of which could reasonably be expected to prejudice future supply of such information to government: 46(1)
Matter affecting the economy of the State or financial or property interests: 47(1) & 49

#	Allow disclosure of certain law enforcement documents (eg report on success achieved in programme for dealing with offences) if its disclosure would, on balance, be in the public interest: 41(2)(b)

WESTERN AUSTRALIA - Following exemptions subject to public interest override:
Inter-governmental relations: Schedule 1: 2(2)
Personal information: Sch 1: 3(6)
Information about business, commercial or financial affairs and  disclosure would have adverse effect on those affairs or prejudice the future supply of similar information: Sch 1: 4(7)
Confidential information disclosure of which could reasonably be expected to prejudice future supply of such information to government: Sch 1: 8(4)
State’s economy: Sch 1: 9(2)
Financial/property affairs of agency, trade secrets of agency, commercial value to agency and disclosure would destroy/diminish value, commercial affairs of agency, research by or on behalf of agency and disclosure would expose agency to disadvantage: Sch 1: 10(6)
Effective operations of agency (eg methods of testing): 11(2)

#	Matter exempt if it relates to deliberative process and disclosure would be contrary to the public interest: Sch 1: 6(1)
#	Allow disclosure of certain law enforcement documents (eg report on success achieved in programme for dealing with offences) if its disclosure would, on balance, be in the public interest: Sch 1: 5(4)

Draft: Alternative for Clause 36 (15/12/99)
Alternative For Clause 36 (Defence And Security) - 'Classification' System

Security {OR defence} of Republic
36.	
(1)	The information officer of a governmental body must refuse a request for access to a record of the body which is subject to a certificate issued in terms of subsection (1).
(2)	If-
(a)	the {OR a} Minister {designated by the President for this purpose} is satisfied that a record of the governmental body contains-
(i)	military plans, weapons systems or operations;
(ii)	foreign government information;
(iii)	information about intelligence activities;
(iv)	intelligence sources or methods, including confidential sources;
(v)	information about scientific, technological or economic matters relating to national security;
(vi)	programs of governmental bodies for safeguarding nuclear materials or facilities; or
(vii)	vulnerabilities or capabilities of systems, installations, projects or plans relating to national security; and
(b)	the disclosure of that record would be likely {OR could reasonably be expected} to cause harm to the security {or defence} of the Republic, he or she may sign {OR issued} a certificate to that effect.
# Provide for a maximum period of validity of a certificate and/or the periodic review of certificates signed?
(3)	Subject to the operation of Chapter 2 of Part 6, a certificate signed {OR issued} in terms of subsection (2), 50 long as it remains in force, establishes that the record is a record that must be refused in terms of subsection (1).
(4)	If the {OR a} Minister {designated by the President for this purpose} is satisfied that information as to the existence or non-existence of a record as described in a request for access would, if contained in a record of a governmental body, cause the last mentioned record to be a record in respect of which a certificate would have been signed {OR issued} in terms subsection (2), he or she may sign {OR issued} a certificate to that effect.
(5)(a) If a certificate in terms of subsection (4) has been signed {OR issued} in respect of a record as described in a request for access, the information officer concerned must refuse to confirm or deny the existence or non-existence of the record.
(b)	If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 19(3), must-
(i)	state that fact;
(ii)	identify the provision in terms of which access would have been refused if the record had existed;
(iii)	state the reasons for the refusal, as required by section 19(3); and
(iv)  state that the requester concerned may lodge an internal appeal with the
relevant authority against the refusal as required by section 19(3)(c).
(6)	A certificate referred to in subsection (2) or (S) must state under which of the categories contemplated in section (2)(a) the record in question falls.

# Copy of the certificate to be furnished to the requester?

Draft: Grounds for Refusal of Access to Records (13/12/99)
OPEN DEMOCRACY BILL [B 67—98]:
DRAFT REVISED CHAPTER 2 
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS 

#	Proposed deletions are in square brackets
#	Proposed insertions and alternative wording are underlined or in brackets but not bold
#	Notes are inserted in bold and italic next to #
#	Certain cross-references must still be corrected

Mandatory and discretionary grounds for refusal 
	28.(1) The information officer of a governmental body— 
	(a)	must refuse a request for access to a record contemplated in section 29(1) or 31(1), unless the provisions of section 44(1) apply; 
	(b)	 may refuse a request for access to a record contemplated in— 
	(i)	section 30(2), 33(a), 34(1)(c)(ii), (iii) or (vi) or (d) or 35, unless the provisions of section 44(1) apply; 
	(ii)	section 32(1) or (3), 33(b), 34(1)(a), (b) or (c)(i), (iv) or (v), 36, 37(1), 38(1) or (2) or 39(1), unless the provisions of section 44(2) apply; 
	(iii)	section 40, 41(1), 42(1) or 43.
(2) A provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, must not be construed as—
(a)	limited in its application in any way by any other provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused; and
(b)	not applying to a particular record by reason that another provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, also applies to that record.

Mandatory protection of privacy 
Option 1 for subsection (1):
29. (1) Subject to subsection (2), the information officer of a governmental body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received [OR a deceased individual]) other than the requester concerned or other person contemplated in section 13(5). . # Omit “than the requester concerned or” if subsection (4) or Option 2 of s9(1) is included
Option 2 for subsection (1):
(1)  Subject to subsections (2) and (4), the information officer of a governmental body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about any person, including a deceased individual. #  Retain existing definition of “personal information” in s1, ie information about an identifiable person OR include following detailed definition in s1:
 	“personal information” means information about an identifiable individual, including, but not limited to—
information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, [disability,] well-being, religion, conscience, belief, culture, language and birth of the individual;
information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
any identifying number, symbol or other particular assigned to the individual;
the address, fingerprints or blood type of the individual;
the personal opinions or views of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
correspondence sent by the individual that is implicitly  or explicitly of a private or confidential nature and replies to such correspondence that would reveal the contents of the original correspondence;
the views or opinions of another individual about the individual,
the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and
the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
but excludes information about an individual who has been dead for more than 20  years;
	(2) [Subsection (1) does not apply to a] A record may not be refused in terms of subsection (1) insofar as it consists of information— 
Option 1 for paragraph (a):
(a)	already publically available;
Option 2 for paragraph (a) or include as separate paragraph:
(a)	that was given to the governmental body by the person to whom or which it relates and the person was informed by or on behalf of the governmental body, before its being given, that the information belongs to a class of information that would or might be made available to the public;
(b)	about a person that has, in accordance with section 46(b),  consented to its disclosure to the requester concerned;  # Introductory wording implies that, despite consent the record may still be refused i t o another exemption.  If that is not the intention, it could be included as a separate subclause that states that the information officer must disclose it if person consents. 
Option 1 for paragraph (c):
(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)	 incapable of understanding the nature of the request, 
and if giving access would be in the individual’s best interests;
Option 2 for paragraph (c):
	(c)	about an individual’s physical or mental health, or well-being, who is under the care of the requester and who is— 
	(i)	under the age of 18 years; or
	(ii)	 incapable of understanding the nature of the request, 
and if giving access would be in the individual’s best interests;  # Use “process” similar to one in subsection (5) to (7) below? 
	(d)	about an individual who is deceased and the requester is the individual’s next of kin; or
	(e)	about an individual who is or was an [official] employee of a governmental body  and which 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] employee 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;  # Exclude public enterprises, but is sensitive information not covered by s38(2)?
	(iv)	the name of the individual on a record prepared by the individual in the course of employment.
# Move definition in subsection (3) below to s1 (definition section).
(3) In subsection (2)(d) “individual’s next of kin” means— 
Option 1 for paragraph (a):
	(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;
Option 2 for paragraph (a):

(a)	an individual to whom the individual was married, with whom the individual lived as if they were married;
	(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.
(4) Subject to subsections (5) to (7), the provisions of subsections (1) to (3) do not apply to a request for access by a person, or any person acting on behalf of that person, to a record by reason only of the inclusion in the record of information relating to the first-mentioned person.
#	Alternative for s30 (Health of requester) below: Provisions similar to subsection (5) to (7) below in Australia (Fed): s41(3) to (8); Ireland: s28(3) & (4); Queensland: s44(3) & (4)  & Western Australia: s28 
 (5) The information officer of a governmental body  body may refuse a request for access to a record of the body about the requester’s physical or mental health, or well-being, and which was provided by a health practitioner in his or her capacity as such if— 
(a)	the information officer has disclosed the record to, and [at the cost of the governmental body], 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 
(b)	the health practitioner so consulted is of the opinion that the disclosure of the record to that requester would be likely [OR could reasonably be expected] to cause serious harm to his or her physical or mental health, or well-being.
(6) 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 (5)(a)(ii); or 
(b)	incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. 
(7) 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 for the well-being of individuals.

# See other option for s30 in s29(5) to (7):
Health of requester 
30. (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 for the well-being of individuals. 
(2) The information officer of a governmental 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 would be likely to cause serious harm to his or her physical or mental health, or well-being; and] 
(b)	the information officer has disclosed the record to, and [at the cost of the governmental body] 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)] the disclosure of the record to that requester would be likely [OR could reasonably be expected] to cause serious harm to his or her physical or mental health, or well-being is likely to result.
(3) If the requester {reconsidering reference to “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 governmental body containing information about the requester’s physical or mental health, or well-being, which was provided by, or originated from, a health practitioner; 
(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 information officer concerned must notify that health practitioner that access has been so given. 

Mandatory protection of third party commercial information 

31. (1) Subject to subsection (2), the information officer of a governmental body must refuse a request for access to a record of the body if the record contains— 
(a)	trade secrets of a third party; 
Option 1 for paragraphs (b) and (c):
(b)	financial, commercial, scientific or technical information, other than trade secrets, [supplied in confidence by] of a third party [and treated consistently as confidential by that third party], the disclosure of which could reasonably be expected [OR would be likely] to cause unreasonable 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 [OR could reasonably be expected] to—
(i)	put that third party at a [an unfair] disadvantage in contractual other negotiations; or
(ii)	[cause it] [unfairly] prejudice that third party in commercial competition; or
Option 2 - combine paragraph (b) and (c):
(b)	any other information [having a commercial value] [supplied by a third party] the disclosure of which could reasonably be expected  [OR would be likely] to—
(i)	put a third party at an [unfair] disadvantage in contractual or other negotiations;
(ii)	[unfairly] prejudice a third party in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial  interests of a third party; or
ALTERNATIVE FOR PARAGRAPH (D) INCLUDED AS S38A BELOW:
Option 3 - only paragraph (b) and not (c) of Option 1:
(b)	financial, commercial, scientific or technical information, other than trade secrets, [supplied in confidence by] of a third party [and treated consistently as confidential by that third party], the disclosure of which could reasonably be expected [OR would be likely] to cause unreasonable harm to the commercial or financial interests of that third party;
Option 1 for (d)/(c):
(d)	the results of original research [having a commercial value] undertaken by a third party [and not yet published] the disclosure of which could reasonably be expected [OR would be likely to] to deprive that body or employee of the benefit of first publication of those results.
Option 2 for (d)/(c):
	(d)	information about research [having a commercial value] being or to be carried out by or on behalf of a third party, the disclosure of which would be likely [OR could reasonably be expected]  unreasonably to expose—
(i)	the third party;
(ii)	a person that is or will be carrying out the research on behalf of the third party; or
(iii)	the subject-matter of the research,
to [serious] disadvantage.
Option 3 for (d)/(c):
	(d)	information about the purpose or results of research (including research that is yet to be started or finished) [having a commercial value], the disclosure of which could reasonably be expected [OR would be likely] to have an adverse effect on  the third party or a person that is or will be carrying out the research.
(2) [Subsection (1) does not apply to a] A record may not be refused in terms of subsection (1) insofar as it consists of  information—
[(a)	already publicly available;]
(b)	about a third party who has, in accordance with section 46(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] the results of any [product or environmental] testing or other investigation supplied by [AND/OR carried out by or on behalf of] a third party and its disclosure would reveal a [serious] public safety or environmental risk.
[(d)	supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a public safety or environmental risk.] 
(3) For the purposes of subsection (2)(b), the results of any [product or environmental] testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
[(3) If a request for access to a record contemplated in subsection (2)(d) is granted, the information officer must at the same time as access to the record is given, direct the requester to the source of the original testing or other investigation to enable the requester to obtain an explanation of the methods used in conducting the test or other investigation.]  # But see Canada: 20(3)
(4) Subsection (1) does not apply to a request for access by a person, or a person acting on behalf of that person to a record by reason only of the inclusion in the record of information contemplated in subsection (1) that relates to that person.  # But unnecessary in view of par (a) of def. of “third party” in s1

Records supplied in confidence 
Option 1 for subsections (1) and (2):
32. (1) Subject to subsection (2), the information officer of a governmental body may refuse a request for access to a record of that body containing information supplied in confidence to any governmental body by a third party if— 
(a)	the disclosure of the record would be likely to prejudice the future supply of similar records, or records from the same source; 
(b)	the last-mentioned governmental body has no right to demand, or that third party has no obligation to supply, the record; and 
(c)	it is in the public interest that similar records, or records from the same source, should continue to be supplied. 
(2) Subsection (1) does not apply to a record insofar as it consists of information— 
(a)	[if it has been] supplied to the governmental body concerned for the purpose of— 
(i)	securing some advantage, grant, permit, contract or concession from any governmental body; or 
(ii)	persuading any governmental body not to take any action against the person that supplied the record or on whose or which behalf the record was supplied; 
(b)	[insofar as it consists of information] independently obtained by the body or already publicly available; or 
(c)	[if] the third party concerned has consented in writing to its disclosure to the requester concerned. 
Option 2 for subsections (1) and (2) - further research on 32(1)(a) still required:
32.(1)  The information officer of a governmental body may refuse a request for access to a record of a body if—
(a)	the disclosure of the record would found [OR constitute] an action for breach of confidence owed to a person other than—
(i)	the state;
(ii)	a governmental body; or
(iii)	an employee of a governmental body; or
(b)	the record consists of information that was communicated in confidence—
(i)	the disclosure of which would be likely [OR could resaonably be expected] to prejudice the future supply of similar information, or information from the same source; and
		(ii)	it is in the public interest that similar information, or information from the same source, should continue to be supplied.
[(3) The information officer of a governmental body may refuse a request for access to a record of the body if the record— 
	(a)	is held by a governmental body for the purpose of enforcing legislation imposing a tax, duty or levy; and 
	(b)	was supplied in confidence to a governmental body by a third party or another governmental body.] 
Option 1 (in s32 or other existing section or new section):
The information officer of a governmental body must refuse a request for access to a record of the body if it contains information which was obtained or is held by the body for the purpose of enforcing legislation imposing taxes, duties, levies and additional tax, including penalties and interest in connection with such moneys.
Option 2:
The information officer of a governmental body must refuse a request for access to a record of the body if it contains information which was obtained or is held by the body for the purpose of enforcing legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No.  34 of 1997).
Note:	“‘revenue’ is defined in the South African Revenue Service Act, 1997, as “income derived from taxes, duties, levies, fees, charges, additional tax and any other moneys imposed in terms of legislation, including penalties and interest in connection with such moneys”.
Option 3:
The information officer of a governmental body must refuse a request for access to a record of the body if it reveals information that was obtained on a tax return or for the purpose of determining tax liability or collecting tax.
Option 4:
The information officer of a governmental body must refuse a request for access to a record of the body if it reveals information obtained or held for the purpose of enforcing legislation imposing taxes, levies or duties as contemplated in section 77(1) of the Constitution.

Safety of individuals and security of structures and systems 
Option 1:
33. The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely  [OR could reasonably be expected]— 
(a)	to endanger the life or physical safety of an [identifiable] 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.
Option 2:
33. The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to— 
(a)	endanger the life or physical safety of an [identifiable] individual; or 
(b)	prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system. 
Option 3:
The information officer of a governmental body— 
(a)	must refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to endanger the life or physical safety of an [identifiable] individual; or 
(b)	may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system.

Law enforcement 

34. (1) The information officer of a governmental body may refuse a request for access to a record of the body if— 
(a)	the record contains methods, techniques, procedures or guidelines for— 
(i)	the prevention, detection, suppression or investigation of [offences] a contravention or possible contravention of the law; or  
(ii)	the prosecution of alleged offenders, and the disclosure of those methods, techniques, procedures or guidelines would be likely [OR could reasonably be expected] to prejudice the effectiveness of those methods, techniques, procedures or guidelines or lead to the circumvention of the law or facilitate the commission of an offence; 
(b)	 the prosecution of an alleged offender is being prepared or about to commence or pending and the disclosure of the record would be likely— 
(i)	to impede that prosecution; or 
(ii)	to result in a miscarriage of justice in that prosecution; 
(c)	the disclosure of the record would be likely [OR could reasonably be expected]— 
(i)	to prejudice the investigation of [any offence or possible offence] a contravention or possible contravention of the law which is about to commence or is in progress or, if it has been suspended or terminated, is likely to be resumed; 
(ii)	to reveal, or enable a person to ascertain, the identity of a confidential source of information in [respect of a law enforcement matter] relation to the enforcement or administration of the law; 
(iii)	to result in the intimidation or coercion of a witness, or a person who might be or has been called as a witness, in criminal or other proceedings to enforce the law[, or to endanger the life or physical safety of that witness or person]; # Omitted because slready in s33
(iv)	to result in the commission of an offence; 
(v)	subject to subsection (2), to facilitate escape from lawful detention; or 
(vi)	to deprive a person of a right to a fair trial or an impartial adjudication; or 
(d)	the record contains arrangements for the protection of an individual in accordance with a witness protection scheme. 
(2) A record may not be refused in terms of subsection (1)(c)(v) [does not apply to a record] insofar as it consists of information about the general conditions of detention of persons in custody. 
(3)(a) If a request for access to a record of a governmental body may be refused in terms of subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in any provision of subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record. 
(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 19(3), must— 
(i)	state that fact; 
(ii)	identify the provision of subsection (1) in terms of which access would have been refused if the record had existed; 
(iii)	state the findings and the reasons for the refusal, as required by section 19(3)(a) and (b), in so far as they can be given without causing the harm contemplated in any provision of subsection (1); and 
(iv)	state that the requester concerned may lodge an internal appeal with the [head of the governmental body concerned] relevant authority against the refusal as required by section 19(3)(c). 

Mandatory protection of  records  privileged from production in legal proceedings 

35. The information officer of a governmental body [may] must 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]. 

Republic’s defence and security[, including intelligence matters] 
# Second option providing for classification system still being drafted.
36. (1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] [substantially] to harm the defence or security of the Republic or may by— 
(a)	[frustrating] jeopardising the effectiveness of any measure for the prevention, detection or suppression of— 
(i)	aggression against the Republic; 
(ii)	sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic; 
(iii)	an activity aimed at changing the constitutional order of the Republic by the use of force or violence [or coercion]; or 
(iv)	a foreign or hostile intelligence operation; 
(b)	jeopardising the effectiveness of a governmental body, branch of that body or person responsible for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv) by disclosing its or his or her capabilities, deployment or performance; 
(c)	jeopardising the effectiveness of— 
(i)	arms; or 
(ii)	other equipment, including, but not limited to, communication or cryptographic systems, 
used, or intended to be used, or being developed, designed, produced or investigated for preventing, detecting or suppressing an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv) by disclosing their or its capabilities, quantity, deployment or performance; 
(d)	jeopardising the effectiveness of methods or equipment for collecting, assessing or handling information used for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv); or 
(e)	disclosing the identity of a confidential source of information used for the prevention, detection or suppression of an activity contemplated in paragraph (a)(i), (ii), (iii) or (iv). 
(2)(a) If a request for access to a record of a governmental body may be refused in terms of subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in any provision of subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record. 
(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 19(3), must— 
(i)	state that fact; 
(ii)	identify the provision of subsection (1) in terms of which access would have been refused if the record had existed; 
(iii)	state the findings and the reasons for the refusal, as required by section 19(3)(a) and (b), in so far as they can be given without causing the harm contemplated in any provision of subsection (1); and 
(iv)	state that the requester may lodge an internal appeal with the [head of the governmental body concerned] relevant authority against the refusal as required by section 19(3)(c). 

International relations 

37. (1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be [OR could reasonably] be— 
(a)	in contravention of an obligation imposed on the Republic by international law; or 
(b)	subject to subsection (2), likely [OR expected] to cause [substantial] harm to the capacity of the Republic to maintain or conduct relations in the best interests of the Republic with another state or an international organisation. 
(2) A record may not be refused in terms of subsection (1)(b) [does not apply to a record] if it came into existence more than 20 years before the request.

Economic interests of Republic and commercial activities of governmental bodies 

Option 1 for subsection (1):
38.(1) The information officer of a governmental body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] substantially to jeopardise the financial welfare of the Republic or any part thereof or the ability of the government to manage the economy of the Republic or any part thereof effectively in the best interests of the Republic by prematurely disclosing— 
	(a)	a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment; 
	(b)	a contemplated change in or decision not to change— 
	(i)	credit or interest rates; 
	(ii)	customs or excise duties, taxes or any other source of revenue; 
	(iii)	the regulation or supervision of financial institutions; 
	(iv)	government borrowing; or 
	(v)	the regulation of prices of goods or services, rents or wages, salaries or other incomes; or 
	(c)	a contemplated— 
	(i)	sale or acquisition of immovable or movable property; or 
	(ii)	international trade agreement.
(2) Subject to subsection (3), the information officer of a governmental body may refuse a request for access to a record of the body if the record contains— 
Option 2 for subsection (1) - included in existing subsection (2) and new subsection (2A):
(Aa)	information the disclosure of which would be likely [OR could reasonably be expected] substantially to jeopardise the financial welfare of the Republic [or any province] or the ability of the government to manage the economy of the Republic [or any province] effectively in the best interests of the Republic or could reasonably be expected [OR would be likely] to result in an undue benefit to any person;  # As to “substantially” above see Canada: s18(d) - “materially”; New Zealand: s6(d) {relates to  premature disclosure of economic financial policy} - “seriously”
	(a)	trade secrets of the state or a governmental body; 
Option 1 for paragraphs (b) and (c):
	(b)	financial, commercial, scientific or technical information, other than trade secrets, [held by a governmental body for the purpose of conducting a commercial activity which it is authorised by law to conduct and which it does conduct or is about to conduct,] the disclosure of which could reasonably be expected [OR would be likely] to cause harm to the commercial [or financial] interests of [the state or] a governmental body; # Omit “the state or” in view of subsection (1)(a) above?
	(c)	information, including, but not limited to information about the transfer of any interest in or right to a share in the capital of a governmental body to any person which is not a governmental body  or other information about the privatisation of a governmental body, the disclosure of which would be likely [OR could reasonably be expected] to put a governmental body at a [an unfair] disadvantage in contractual or other negotiations or [cause it] unfairly prejudice a governmental body in commercial competition; 
Option 2 - combine paragraph (b) and (c):
(b)	any other information [having a commercial value], including, but not limited to information about the transfer of any interest in or right to a share in the capital of a governmental body to any person which is not a governmental body  or other information about the privatisation of a governmental body, the disclosure of which could reasonably be expected [OR would be likely] to—
(i)	put a governmental body at an [unfair] disadvantage in contractual or other negotiations;
(ii)	[unfairly] prejudice a governmental body in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial interests of a governmental body; or
Option 3 - combine paragraphs (b) and (c):
(b)	financial, commercial, scientific or technical information, other than trade secrets, [held by a governmental body for the purpose of conducting a commercial activity which it is authorised by law to conduct and which it does conduct or is about to conduct,] the disclosure of which could reasonably be expected [OR would be likely] to cause harm to the commercial interests of [the state or] a governmental body; # Omit “the state or” in view of subsection (1)(a) above?
ALTERNATIVE FOR PARAGRAPH (D) INCLUDED AS S38A BELOW:
Option 1 for paragraph (d):
	(d)	the results of original research [having a commercial value] undertaken by an [official] employee of a governmental body the disclosure of which could reasonably be expected [OR would be likely to] to deprive that governmental body or [official] employee of the benefit of first publication of those results; or
Option 2 for (d):
(d)	information about research [having a commercial value] being or to be carried out by or on behalf of a governmental body, the disclosure of which would be likely  [OR could reasonably be expected] unreasonably to expose—
(i)	a governmental body;
(ii)	a person that is or will be carrying out the research on behalf of a governmental body; or
(iii)	the subject-matter of the research,
to [serious] disadvantage; or
Option 3 for (d):
(d)	information about the purpose or results of research (including research that is yet to be started or finished) [having a commercial value], the disclosure of which could reasonably be expected [OR would be likely] to have an adverse effect on a governmental body or a person that is or will be carrying out the research; or
	(e)	a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the state or a governmental body, except in so far as it is required to give access to a record to which access is granted in terms of this Act. # Could not find similar provisions in available legislation of other countries.
(2A) The information referred to in subsection (1)(Aa) includes, without limiting the generality of that subsection, information about— 
	(a)	a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment; 
(b)	a contemplated change in or decision not to change— 
(i)	credit or interest rates; 
(ii)	customs or excise duties, taxes or any other source of revenue; 
	(iii)	the regulation or supervision of financial institutions; 
	(iv)	government borrowing; or 
	(v)	the regulation of prices of goods or services, rents or wages, salaries or other incomes; or 
	(c)	a contemplated— 
	(i)	sale or acquisition of immovable or movable property; or 
	(ii)	international trade agreement. 
(3) A record may not be reused in terms of  [Ssubsection (2) [does not apply to a record] insofar as it consists of  information— 
	(a)	[already publicly available;] 
	(b)	about or owned by a governmental body which has consented in writing [OR the prescribed manner] to its disclosure to the requester concerned; 
	(c)	about [the safety of goods or services supplied by a governmental body 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]  the results of any [product or environmental] testing or other investigation supplied by [AND/OR carried out by or on behalf of] a governmental body and its disclosure would reveal a [serious] public safety or environmental risk.
	[(d)	supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a public safety or environmental risk.]
(3A) For the purposes of subsection (3)(c), the results of any [product or environmental] testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
(4) If a request for access to a record contemplated in subsection (3)[(d)](c) is granted and the testing or other investigation was carried out by or on behalf of the governmental body from which the record is requested, the information officer must at the same time as access to the record is given, [direct] provide the requester [to the source of original test or other investigation to enable the requester to obtain an] with a written explanation of the methods used in conducting the testing or other investigation. 

Research

38A.  The information officer of a governmental body may refuse a request for access to a record of the body if the record contains
Option 1
the results of original research undertaken by an employee of a governmental body or a third party the disclosure of which could reasonably be expected [OR would be likely to] to deprive that governmental body or employee of the benefit of first publication of those results.
Option 2
information about research being or to be carried out by or on behalf of a governmental body, the disclosure of which would be likely  [would be likely to] unreasonably to expose—
(a)	a governmental body or third party;
(b)	a person that is or will be carrying out the research on behalf of a governmental body or third party; or
(b)	the subject-matter of the research,
to [serious] disadvantage.
Option 3:
information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected [OR would be likely] to have an adverse effect on a governmental body or a third party or a person that is or will be carrying out the research.
	
Operations of governmental bodies 

39. (1) Subject to subsections (3) and (4), the information officer of a governmental body may refuse a request for access to a record of the body— 
(a)	if the record contains an opinion, advice or recommendation obtained or prepared, or an account of a consultation, discussion or deliberation that has occurred[, including, but not limited to, minutes of a meeting,] for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law and if— 
(i)	the knowledge that disclosure of the record were possible could reasonably be expected [OR would be likely] to frustrate the deliberative process in a governmental body or between governmental bodies by inhibiting the candid— 
(aa)	communication of that opinion, advice or recommendation; or 
(bb)	conduct of that consultation, discussion or deliberation; or 
(ii)	the disclosure of the record would [OR could], by premature disclosure of a policy or contemplated policy, be likely [OR could reasonably be] substantially to frustrate the success of that policy; 
(b)	if the disclosure of the record would be likely [OR could reasonably be expected] to jeopardise the effectiveness of a testing, examining or auditing procedure or method used by a governmental body; 
(c)	if the record contains evaluative material, whether or not the person who supplied it is identified in the record, and the disclosure of the material would breach an express or implied promise which was— 
(i)	made to the person who supplied the material; and 
(ii)	to the effect that the material or the identity of the person who supplied it, or both, would be held in confidence; or 
(d)	if the record contains a working draft or note of an [official] employee of a governmental body. 
(2) In subsection (1)(c) “evaluative material” means an evaluation or opinion prepared— 
(a)	for the purpose of determining the suitability, eligibility or qualifications of the person to whom or which the evaluation or opinion relates— 
(i)	for employment or for appointment to office; 
(ii)	for promotion in employment or office or for continuance in employment or office; 
(iii)	for removal from employment or office; or 
(iv)	for the awarding of a scholarship, award, bursary, honour or similar benefit; or 
(b)	for the purpose of determining whether any scholarship, award, bursary, honour or similar benefit should be continued, modified, cancelled or renewed. 
(3) A record may not be refused in terms of  subsection (1) [does not apply to a record] insofar as it consists of an account of, or a statement of reasons for, a decision taken in the exercise of a power or performance of a duty conferred or imposed by law.   # Link with Administrative Justice Bill?
(4) A record may not be refused in terms of subsection (1)(a) [does not apply to a record]— 
(a)	if the record came into existence more than 15 years before the request concerned; or 
(b)	insofar as it consists of— 
(i)	factual material, including, but not limited to, any statistical data; 
(ii)	the analysis, interpretation or evaluation of, or any projection based on, factual material referred to in subparagraph (i); 
(iii)	a report on the performance or efficiency of a governmental body or any part thereof, or any programme, project or other activity under its supervision; 
(iv)	a report of a scientific or technical expert; or 
(v)	the results of[, or report on,] any [product or environmental] testing or other investigation [regarding] supplied by [AND/OR carried out by or on behalf of] a governmental body and the disclosure of the record would reveal a [serious] public safety or environmental risk.
	(4A) For the purposes of subsection (4)(b)(v), the results of any [product or environmental] testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
(5) If a request for access to a record contemplated in subsection (4)(b)(v) is granted and the testing or other investigation was carried out by or on behalf of the governmental body from which the record is requested, the information officer must at the same time as access to the record is given, [direct] provide the requester [to the source of the original test or other investigation to enable the requester to obtain an] with a written explanation of the methods used in conducting the testing or other investigation.

Frivolous or vexatious requests or diversion of resources 

40. The information officer of a governmental body may refuse a request for access to a record of the body if—
(a)	the request is manifestly frivolous or vexatious; or
(b)	the work involved in processing the request would substantially and unreasonably divert the resources of the governmental body.

#  See s18A to  replace s41 below (attached as Annex A)
[Records that cannot be found or do not exist 
41. (1) The information officer of a governmental 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 an information officer refuses a request for access to a record in terms of subsection (1), he or she must, in the notice referred to in section 19(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 information officer.]

Published records and records to be published 
#	Australia (Fed): s21; Ireland: s11; Queensland: s 31; Western Australia: s25.: Subsection (1)(a), (d) & (e) below not drafted as an “exemption”, but referred to as “deferral” of access- see s18B as alternative for subsection (1)(a), (d) & (e) & related subsections - attached as Annex B.  Draft UK Bill: cl 17 - an exemption as below
42. (1) Subject to this section, the information officer of a governmental body may refuse a request for access to a record of the body if— 
(a)	the record is to be published within [60] 90 days after the receipt or transfer 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] is reasonably accessible to the requester concerned at a fee no greater than would be charged for access in terms of this Act;] # Omit par (b) in view of “right to know” clause?
[(c)	the record is available for purchase by the public in accordance with arrangements made by or on behalf of a governmental body at a fee no greater than would be charged for access in terms of this Act;] # Omit par (b) in view of “right to know” clause?
(d)	the publication of the record is required by law, within 90 days after the receipt or transfer of the request; or 
(e)	 the record has been prepared for submission to Parliament [OR any legislature] unless a period of 90 days after such preparation has expired and the record has not been so submitted. 
(2) The information officer concerned must, in the notice referred to in section 19(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) and if such information is ordinarily available to the governmental body concerned, identify the title and publisher of the record[and the library concerned nearest to the requester concerned; 
(c)	subsection (1)(c) and if such information is ordinarily available to the governmental body concerned, identify the title and publisher of the record and state where it can be purchased; or ]
(d)	subsection (1)(e), state the date on which the record is to be submitted to Parliament [OR the legislature concerned]. 
(3) If an information officer is considering to refuse a request for access to a record in terms of subsection (1)(a), (d) or (e), 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 information officer why the record is required before publication or submission to Parliament [OR the legislature concerned]. 
Option 1 for subsection (4):
(4) If notice is given to a requester in terms of subsection (3), the information officer 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 or submitted to Parliament [OR the legislature concerned].
Option 2 for subsection (4):
(4) If a requester makes representations pursuant to a notice given in terms of subsection (3)(b), the information officer must, after due consideration of that representations, grant the request for access only if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the record is deferred until the record is published or submitted to Parliament [OR the legislature concerned]
(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] 90 days after receipt or transfer 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 
43. The information officer of a governmental 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 request fee and access fee payable in terms of this Act.]

Option 1 for section 44:
Mandatory disclosure in public interest 

44. (1) Despite any other provision of this Act, but subject to Chapter 3 of this Part, the information officer of a governmental body must grant a request for access to a record contemplated in section 29(1), 30(2), 31(1), 33(a), 34(1)(c)(ii), (iii) or (vi) or (d) or 35 if— 
(a)	disclosure of the record would reveal evidence of substantial— 
(iA)	infringement of any right in the Bill of Rights in Chapter 2 of the Constitution;
(i)	abuse of authority, illegality or neglect in the exercise of a power or performance of a duty of an [official] employee of a governmental body; 
(ii)	injustice to a person, including a deceased individual; 
Option 1 for paragraph (iii):
(iii)	danger to the environment or the health or safety of an individual or the public; or
Option 2 for paragraph (iii):
(iii)	public safety or environmental risk;
(iv)	unauthorised use of the funds or other assets of a governmental body; and
(b)	giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned. 
(2) Despite any other provision of this Act, but subject to Chapter 3 of this Part, the information officer of a governmental body must grant a request for access to a record contemplated in section 32(1) or (3), 33(b), 34(1)(a), (b), (c)(i), (iv) or (v), 36(1), 37(1), 38(1) or (2) or 39(1), if giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned.

Option 2 for section 44:

Mandatory disclosure
44.  Despite any other provision of this Part, the head of a governmental body must grant a request for access to a record of the body contemplated in section 29(1) [privacy] or (5)[health of requester], 31(1)[third party commercial information], 32(1)(b) [certain confidential information], 33(b) [security of structures], 36(1) [defence], 37(1) [international relations], 38(1) or (2) [economic/commercial interests of state/governmental body], 39(1) [operations of governmental bodies], 40(b) [diversion of resources] or 42(1) [records to be published], if—
(a)	the disclosure of the record would reveal evidence of a substantial—
(i)	contravention of, or failure to comply with, the law;
(ii)	imminent [and/or serious] public safety or environmental risk; and # See definition of “public safety or environmental risk” in clause 1 of the Bill
(b)	[giving due weight to the importance of open, accountable and participatory administration,] the public interest in the disclosure of the record clearly outweighs the need for non-disclosure contemplated in the provision concerned. 

#	s42: see alternative - s18B - inclusion not as an exemption

ANNEX

Records that cannot be found or do not exist

18A.(1) If—
(a)	all reasonable steps have been taken to find a record requested; and
(b)	there is reasonable grounds for believing that the record—
(i)	is in the governmental body’s possession but cannot be found; or
(ii)	does not exist,
the information officer of a governmental body must by way of affidavit notify the requester that it is not possible to give access to that record.
(2) The affidavit referred to in subsection (1) must give a full account of all steps taken to find the record in question 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 information officer.
(3) For the purposes of this Act, the affidavit referred to in  subsection (1) is to be regarded as a decision to refuse a request for access to the record.

Deferral of access
# See note on s42 exemption: records to be published, etc
18B. (1) If the information officer of a governmental body decides to grant access to a request for access to a record, but that record— 
(a)	is required by law to be published but is yet to be published; or
	(b)	has been prepared for submission to Parliament [OR any legislature] or a particular person but is yet to be submitted, the information officer may defer giving access to the record for a reasonable period.
(2) If access to a record is deferred in terms of subsection (1), the information officer  must notify the requester concerned— 
(a)	that the requester may, within 30 days after that notice is given, make representations to the information officer why the record is required before such publication or submission; and
(b)	of the likely period for which access is to be deferred.
(3) If a requester makes representations in terms of subsection (2)(a) , the information officer must, after due consideration of that representations, grant the request for access only if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the record is deferred for the likely period referred to in subsection (2)(b).

Draft: Access to records of private bodies (08/12/99)
SECOND DRAFT - 8 December 1999 (See OPD90)
OPEN DEMOCRACY BILL [B 67—98]:
PROPOSED NEW PART TO PROVIDE FOR ACCESS TO RECORDS OF PRIVATE BODIES 

Long title:	
On page 2, in the second line, to insert:
and any information held by another person and that is required for the exercise or protection any rights

Clause 1 (Definitions):
1.	On page 10, from line 13, to omit paragraph (b) and to substitute:
{head of} a private body/person— 
(i)	in the case of a natural person who carries on a trade, business or profession, that natural person; 
(ii)	in the case of any other private body/person, the chief executive officer of the private body/person or the person who is acting as such;

2.	On page 10, in lines 52 and 53, to omit the definition of “private body” and to substitute:
Option 1:
	“private body/person” means—
(a)	a natural person insofar as he or she carries on any trade, business or profession; or
(b)	a partnership or a juristic person, but excludes a governmental body;
Option 2:
“private body/person” means—
(a)	if a natural person carries on any trade, business or profession, that natural person in such capacity; or
(b)	a partnership or a juristic person, but excludes a governmental body;

3.	Include the following definitions of “request for access” and “requester”:
“request for access”, in relation to a private body/person means a request for access to a record of a private body/person in terms of section 1;
Option 1:
 “requester”, in relation to a private body/person, any person other than a governmental body or an employee thereof, making a request for access to a record of that private body/person;
Option 2:
 “requester”, in relation to a private body/person, any person including a governmental body or an employee thereof, making a request for access to a record of that private body/person;

4.	Include the following definition of “third party”:
“third party”, in relation to a request for access to a record of a private body/person, means any person including a governmental body or an official thereof, other than the requester or a person acting on his or her behalf; # Or include Option 2 of s1 or s16(4)

Clause 3 (Objects):
On page 14, in lines 8 and 9, to omit paragraph (c) and to substitute:
(c)	to give effect to the constitutional right of access to information held by a private body/person that is required for the exercise or protection of any rights subject to justifiable limitations;
  
Clause 5 (Guide):
On page 16, in line 14, to omit “containing personal information”.

PART ...
ACCESS TO PRIVATE BODIES/PERSONS’ RECORDS
CHAPTER 1
GENERAL PROVISIONS

#	Clauses to be renumbered and, where appropriate, integrated with the provisions regarding access to governmental records, when included in the Bill

Right of access to records of private bodies
Option 1:
	1. Any person must be given access to any record of a private body if—
(a)	that record is required for the exercise or protection of any rights;
	(b)	that person complies with the procedural requirements relating to a request for access to that record; and
(c)	access to that record is not refused in terms of any ground for refusal [OR exemption] contemplated in Chapter 2 of this Part.

Option 2:
	1. Any person must, on request, but subject to this Part, be given access to any record of a private body, including, but not limited to, a record containing personal information about that person, if—
(a)	that record is required for the exercise or protection of any rights;
	(b)	that person complies with the procedural requirements relating to a request for access to that record; and
(c)	access to that record is not refused in terms of any ground for refusal [OR exemption] contemplated in Chapter 2 of this Part.

Part applies to record whenever it came into existence 

	2. This Part applies to a record of a private body regardless of when the record came into existence.
Application of other legislation prohibiting or restricting disclosure

Option 1:
	3.(1)  Subject to section 5, this Part applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record of a private body.
	(2) For the purposes of subsection (1), the manner in which access to a record of a private body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.
Option 2:
	3.(1)   Subject to section 5, if any conflict arises between [any provision of] this Part and [any provision of] other legislation that prohibits or restricts the disclosure of a record of a private  body, [the provision of] this Part prevails.
	(2) For the purposes of subsection (1), the manner in which access to a record of a private body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.

Application of other legislation providing for access

Option 1 for section 4:
Option 1 for subsection (1):
	4.(1)  Nothing in this Part, except subsection (2), prevents the giving of access to a record of a private body in terms of any other law.
Option 2 for subsection (1):
	4.(1)  Nothing in this Part, except subsection (2), prevents the giving of access to a record of a private body otherwise than in terms of this Act if that is permitted or required by any other law. 

	(2) If the manner in which access may be given, including, but not limited to, the payment of fees, in terms of the other law referred to in subsection (1), is more onerous than access to that record would have been in terms of this Part, this Part applies to the exclusion of that other law.
	(3) This Part does not apply to any record of a private body described in a list published by notice in the Gazette in terms of section 6(2). # Heading not appropriate for this subsection - adjust heading or insert in clause 6

Option 2 for section 4:
	4. (1) This Part does not apply to a record of a private body if the record is—
(a)	subject to subsections (2) and (3), accessible in accordance with any other legislation; or
	(b)	described in a list published by notice in the Gazette in terms of section 6(2).
	(2) The Minister must—
(a)	on a periodic basis not less frequently than once each two years; and
	(b)	in accordance with the prescribed criteria, review the legislation contemplated in subsection (1)(a) in order to determine whether the manner in which access may be obtained to a record or, category of records, of a private body in terms of any legislation is more onerous than access to that record would have been in terms of this Part.
	(3)  If the Minister has determined in terms of subsection (2) that the manner in which access may be obtained to a record or, category of records, of a private body in terms of such legislation is more onerous than access to that record would have been in terms of this Act, the Minister must, by notice in Gazette, determine that this Act applies to such record or category of records.

Option 1:
Use of Part for criminal or civil discovery of private bodies’ records excluded 

	5.(1)  A person may not request access to a record of a private body in terms of section 1 for the purpose of criminal or civil proceedings [after the institution/commencement of such proceedings] if the production of that record for that purpose is regulated by any other law.
Option 1 for subsection (2):
	(2)  Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in such criminal or civil proceedings unless the exclusion of such record would be detrimental to the administration of justice.
Option 2 for subsection (2):
	(2)  Any person that contravenes subsection (1) is guilty of an offence and is, on conviction liable to imprisonment for a period of ... or a fine.

Option 2 - Phrased as an exemption to be included in Chapter 2 below:
Criminal or civil discovery

	The head of a private body may refuse a request for access to a record of a private body if—
(a)	the record is required for the purpose of criminal or civil proceedings; and
	(b)	the production of that record for that purpose is regulated by any other law.

Voluntary disclosure of certain records

	6.(1) [This section only applies to private bodies which are juristic persons.] # Omit if definition read as set out above 
Option 1 for subsection (2):
	(2)  The head of a private body may, on a periodic basis, submit to the Minister a list which describes—
	(a)	the kinds of records of the private body that are available without a person having to request access in terms of this Part; and
	(b)	how to obtain access to such records.
Option 2 for subsection (2):
	(2)  The head of a private body may, on a periodic basis, submit to the Minister a list which describes—
	(a)	the kinds of records of the private body that are available without a person having to request access in terms of this Part—
(i)	for inspection in terms of legislation other than this Act;
		(ii)	for purchase or copying from the private body;
		(iii)	from the private body free of charge; and
	(b)	specify how to obtain access to such records.
	(3) The Minister may, if appropriate, publish by notice in the Gazette any list so submitted.
	(4) The only fee payable (if any) for access to a record described in a list so published is a prescribed fee for reproduction.

Manual

	7.(1) [This section only applies to private bodies which are juristic persons.] # Omit if definition read as set out above 
	(2)  Within 12 months after the commencement of this section or the coming into existence of the private body concerned, the head of a private body must compile a manual containing—
	(a)	the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body; 
	(b)	a summary of the guide referred to in section 5, prepared by the Human Rights Commission, and how to obtain access to it;
	(c)	the latest list published in terms of section 6(2);
(d)	a description of the records of the body which are available in accordance with any other legislation;
	(e)	in sufficient detail to facilitate a request for access to, and for correction of personal information in, a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject; 
	(f)	such other information as may be prescribed. 
	(3) The head of a private body must on a regular basis update the manual referred to in subsection (2). 
	(4) Each manual must be made available as prescribed. 
	(5)  For security, administrative or financial reasons, the Minister  may, on request or of his or her own accord by notice in the Gazette, exempt any private body or category of private bodies from any provision of this section for such period as the Minister thinks fit. 

Form of request and assistance
#	Provide for a prescribed form?
	8.(1)  A request for access to a record of a private body must— 
	(a)	be made in writing to the head of the private body concerned at his or her address, fax number or electronic mail address;
	(b)	provide sufficient particulars to enable the head of the private body to identify the record requested; 
	(c)	specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester; and
	(d)	identify the right the requester is seeking to exercise or protect and provide an explanation of why the requested record is required for the exercise or protection of that right.
	(2)    ... #  Assistance - nature? Eg completion of form;  direction to correct private body (if known)?

Decision on request

	9. (1) Subject to Chapter 3 of this Part, the head of the private body to whom the request is made must, as soon as reasonably possible, but in any event, within 30 days, after the request has been received—
	(a)	decide in accordance with this Part whether to grant the request; and
	(b)	notify the requester 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; and
	(b)	the form in which access will be given.
Option 1 for subsection (3):
	(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state— 
	(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)	the reasons for the refusal (including the provisions of this Part 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 utilise any remedy in law available to the requester.
Option 2 for subsection (3):
	(3)  If the request for access is refused, the notice in terms of subsection (1)(b) must state the reasons for the refusal.
Option 3 for subsection (3):
	(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state the reasons for the refusal in such manner as to enable the requester— 
	(a)	to understand the justification for the refusal; and 
	(b)	to make an informed decision about whether to utilise any remedy in law available to the requester.
	(4)  If the head of a private body fails to give his or decision on a request for access to a record of the body within the period contemplated in subsection (1), the head is, for the purposes of this Act, regarded as having refused the request.
	(5) In awarding costs in any court proceedings pursuant to a request regarded, in terms of subsection (4), as having been refused, the relevant court may take into account the failure of the head of the private body concerned to give his or her decision within the required period.

Extension of period to deal with request 

	10. (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 9(1) (in this section referred to as the “original period”) once for a further period of not more than 30 days, if— 
Option 1:
	(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 that cannot reasonably be completed within the original period;
	(c)	both the circumstances contemplated in paragraphs (a) and (b) exist in respect of the request making compliance with the original period not reasonably possible. 
Option 2:
there exists reasonable grounds for such extension.

	(2) If a period is extended in terms of subsection (1), the head of the private body must, as soon as reasonably possible, but in any event, within 30 days, after the request is received, notify the requester of that extension, the period of the extension and the reasons for the extension. 

Records that cannot be found or do not exist

	11.(1) The head of a private body may notify a requester that it is not possible to  give access to a record if—
(a)	all reasonable steps have been taken to find the record requested; and
(b)	there is reasonable grounds for believing that the record—
(i)	is in the private body’s possession but cannot be found; or
(ii)	does not exist.
	(2) The notice referred to in subsection (1) must give a full account of all steps taken to find the record in question 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 head.
	(3) For the purposes of this Act, the sending of a notice in terms of subsection (1) is to be regarded as a decision to refuse a request for access to the record concerned.

Severability

	12.  (1) If a request for access to a record of a private body containing information which is required or permitted by Chapter 2 of this Part, to be refused, is made, 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 Part, 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 9(2), apply to paragraph (a) of this section and the provisions of section 9(3) to paragraph (b) of this section.

Form of access and access fee

	13.  (1)  If access is granted to a record of a private body, the head of that body must, as soon as reasonably possible after notification in terms of section 9, give access in—
	(a)	such form as the requester reasonably requires; or
	(b)	if no specific form of access is required by the requester, such form as the head reasonably determines.
	(2) A requester whose request for access to a record of a private body has been granted must pay the prescribed access fee for reproduction and for search and preparation of the record (if any).
	(3) The head of the private body may defer access to a record of the  body until the applicable access fee is paid by the requester concerned.

CHAPTER 2
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS [or EXEMPTIONS]

Interpretation

	14.  A provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, must not be construed as—
(a)	limited in its application in any way by any other provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused; and
	(b)	not applying to a particular record by reason that another provision of this Chapter in terms of which a request for access to a record is required or permitted to be refused, also applies to that record.

Mandatory protection of privacy 
Option 1 for section 15:			
Option 1 for subsection (1):
	15. (1) The head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received [OR a deceased individual]) other than the requester concerned. # Omit highlighted words if subsection (4) or Option 2 of section 1 is included.
Option 2 for subsection (1):
	(1)  Subject to subsection (2), the head of a private body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about any person, including a deceased individual. #  Retain existing definition of “personal information”: information about an identifiable person OR include following detailed definition: ...
“personal information” means information about an identifiable individual, including, but not limited to—
information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual;
information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
any identifying number, symbol or other particular assigned to the individual;
the address, fingerprints or blood type of the individual;
the personal opinions or views of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
correspondence sent by the individual that is implicitly  or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence;
the views or opinions of another individual about the individual, the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual, but excludes information about an individual who has been dead for more than twenty years;
	(2) A record may not be refused in terms of subsection (1) insofar as it consists of information— 
(a)	about a person that has, in terms of section 24(3)(b), consented to its disclosure to the requester concerned; # Wording implies that, despite consent the record may still be refused i t o another exemption. Alternatively, it may be included as a separate subclause that states that the head must disclose it if person consents.
	(b)	already publically available;
(c)	that was given to the private body by the person to whom or which it relates and the person was informed by or on behalf of the private body, before its being given, that the information belongs to a class of information that would or might be made available to the public;
(d)	about an individual’s physical or mental health, or well-being, who is under the care of the requester and who is— 
	(i)	under the age of 18 years; or
	(ii)	 incapable of understanding the nature of the request, and if giving access would be in the individual’s best interests;  # Use “process” similar to one in subsection (5) to (7) below? 
	(e)	about an individual who is deceased and the requester is the individual’s next of kin.
	(3) In subsection (2)(e) “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, # Duplication - omit? immediately before the individual’s death; 
	(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.
	(4) Subject to subsections (5) to (7), the provisions of subsections (1) to (3) do not apply to a request for access by a person, or any person acting on behalf of that person, to a record by reason only of the inclusion in the record of information relating to the first-mentioned person.
#	Provisions similar to subsection (5) to (7) below (for state records) in Australia (Fed): s41(3) to (8); Ireland: s28(3) & (4); Queensland: s44(3) & (4)  & Western Australia: s28 
	 (5) 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, and which was provided by a health practitioner in his or her capacity as such if— 
	(a)	the head 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 
	(b)	the health practitioner so consulted is of the opinion that the disclosure of the record to that requester would be likely to cause serious harm to his or her physical or mental health, or well-being.
	(6) 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 (5)(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. 
	(7) 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 for the well-being of individuals.

Mandatory protection of third party commercial information 

	16. (1) The head of a private body must refuse a request for access to a record of the body if the record contains— 
	(a)	trade secrets of a third party;

Option 1 for paragraphs (b) and (c):
	(b)	financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which could reasonably be expected to cause unreasonable 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 [OR could reasonably be expected] to—
(i)	put that third party at an [unfair] disadvantage in contractual or other negotiations; or
(ii)	[unfairly] prejudice that third party in commercial competition;
Option 2 - combine paragraphs (b) and (c):
(b)	any other information having a commercial value the disclosure of which could reasonably be expected to—
(i)	put a third party at an [unfair] disadvantage in contractual or other negotiations;
(ii)	[unfairly] prejudice a third party in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial or financial interests of a third party;
Option 1 for (d):
	(d)	the results of original research undertaken by a third party [and not yet published] the disclosure of which could reasonably be expected to deprive that body or employee of the benefit of first publication of those results.
Option 2 for (d):
(d)	information about research being or to be carried out by or on behalf of a third party, the disclosure of which would be likely unreasonably to expose—
(i)	the third party;
(ii)	a person that is or will be carrying out the research on behalf of the third party; or
(iii)	the subject-matter of the research,
to [serious] disadvantage.
Option 3 for (d):
(d)	information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected to have an adverse effect on  the third party or a person that is or will be carrying out the research.
	(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about— 
	(a)	a third party who has, in terms of section 22(2)(b) consented to its disclosure to the requester concerned; # See comment on s14(2) above
	(b)	the results of any [product or environmental] testing or other investigation supplied by [AND/OR carried by or on behalf of] a third party and its disclosure would reveal a [serious] public safety or environmental risk.
	(3) For the purposes of subsection (2)(b), the results of any [product or environmental] testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.
	(4) Subsection (1) does not apply to a request for access by a person, or a person acting on behalf of that person to a record by reason only of the inclusion in the record of information contemplated in subsection (1) that relates to that person. # See definition of “third party”

Confidential communications

	17.  The head of a private body may refuse a request for access to a record of a body if its disclosure would found an action for breach of confidence.

Safety of individuals and security of structures and systems 

Option 1:
	18. The head of a private body may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to— 
	(a)	endanger the life or physical safety of an individual; or 
	(b)	prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system. 
Option 2:
	The head of a private body— 
	(a)	must refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to endanger the life or physical safety of an [identifiable] individual; or 
	(b)	may refuse a request for access to a record of the body if its disclosure would be likely [OR could reasonably be expected] to prejudice or impair the security of a building or other structure or system, including, but not limited to, a computer or communication system.

Privileged from production in legal proceedings 

	19. The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings.

Commercial information of private body 

	20.(1)  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; 
	(b)	financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected to cause harm to the commercial or financial interests of the private body; 
	(c)	information the disclosure of which would be likely [OR could reasonably be expected] to—
(i)	put the private body at an [unfair] disadvantage in contractual or other negotiations; or
(ii)	[unfairly] prejudice the private body in commercial competition;
Option 2 - combine paragraphs (b) and (c):
(b)	any other information having a commercial value the disclosure of which could reasonably be expected to—
(i)	put the private body at an [unfair] disadvantage in contractual or other negotiations;
(ii)	[unfairly] prejudice the private body in commercial competition; or 
(iii)	otherwise cause unreasonable harm to the commercial or financial interests of the private body;
Option 1 for (d):
	(d)	the results of original research undertaken by an employee of the private body [not yet published] the disclosure of which could reasonably be expected to deprive that body or employee of the benefit of first publication of those results.
Option 2 for (d):
(d)	information about research being or to be carried out by or on behalf of the private body, the disclosure of which would be likely unreasonably to expose—
(i)	the private body;
(ii)	a person that is or will be carrying out the research on behalf of the private body; or
(iii)	the subject-matter of the research,
to [serious] disadvantage.
Option 3 for (d):
(d)	information about the purpose or results of research (including research that is yet to be started or finished), the disclosure of which could reasonably be expected to have an adverse effect on  the private body or a person that is or will be carrying out the research.
	(2) A record may not be refused in terms of subsection (1) insofar as it consists of  information about the results of any [product or environmental] testing or other investigation carried out by the private body and its disclosure would reveal a [serious] public safety or environmental risk.
	(3) For the purposes of subsection (2), the results of any [product or environmental] testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

Mandatory disclosure

	21.  Despite any other provision of this Part, the head of a private body must grant a request for access to a record of the body contemplated in section 15(1) or (5) {privacy}, 16(1) {third party’s commercial information}, 18 [safety] or 20(1) {body’s commercial information},  if the disclosure of the record would reveal evidence of —
	(a)	a contravention of, or failure to comply with, the law;
(b)	miscarriage of justice; or
	(b)	an imminent [and serious] public safety or environmental risk. # See definition of “public safety or environmental risk” in clause 1 of the Bill.

CHAPTER 3
THIRD PARTY NOTIFICATION

Notice to third parties 

	22. (1) The head  of a private body considering a request for access to a record that might be a record contemplated in section 15, 16 or 17 {# limit to 15(1) or 16(1)?}, must take all reasonable [OR necessary] steps to inform a third party to whom or which the record relates of the request. 
	(2) The head 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 must— 
	(a)	state that he or she is considering a request for access to a record that might be a record contemplated in section 15, 16 or 17, as the case may be, and describe the content of the record; 
	(b)	furnish the name of the requester if the requester consents thereto, or in the absence of such consent, state the purpose for which the record is requested; 
	(c)	describe the provisions of section 15, 16 or 17, as the case may be;
	(d)	in any case where the head believes that the provisions of section 21 might apply, describe those provisions, specify which of the circumstances referred to in section 21 in the opinion of the head might apply and state the reasons why he or she is of the opinion that section 21 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 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 must give a written notice stating the matters referred to in subsection (3) to the third party.
 
Representations by third parties 

	23. (1)  A third party that is informed in terms of section 22(1) of a request for access, may, within 21 days after being so informed— 
	(a)	make written or oral representations to the head concerned why the request should be refused; or 
	(b)	give written consent for the disclosure of the record to the requester concerned.
 	(2) A third party that obtains knowledge about a request for access other than in terms of section 22(1) may—
(a)	make written or oral representations to the head 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 

	24. (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 22— 
	(a)	decide, after giving due regard to any representations made by a third party in terms of section 23, whether to grant the request for access; and 
	(b)	notify the third party so informed and a third party not informed in terms of section 22, but that made representations in terms of section 23 or is located before the decision is taken, of the decision. 
	(2) If, after all reasonable [OR necessary] steps have been taken as required by section 22, a third party is not informed of a request, 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 23 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 findings on all material questions of fact, referring to the material on which those findings were based; and
	(b)]	the reasons for granting the request (including the provisions 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 utilise any remedy in law available to the third party.

#	Deferment of access in case of court appeals/applications?

#	Require reporting to Human Rights Commission and report by Commission to Parliament?

Draft: Access to records of private bodies (18/11/99)
OPD 90: First draft of proposed new part to provide for access to records of private bodies
18 November 1999

Long title:	
On page 2, in the second line, to insert:
and any information held by another person and that is required for the exercise or protection any rights

Clause 1 (Definitions):
On page 10, in lines 52 and 53, to omit the definition of “private body” and to substitute:
“private body” means any natural or juristic person other than a governmental body;

Clause 3 (Objects):
On page 14, in lines 8 and 9, to omit paragraph (c) and to substitute:
(c)	to give effect to the constitutional right of access to information held by another person that is required for the exercise or protection of any rights subject to justifiable limitations;
  
Clause 5 (Guide):
On page 16, in line 14, to omit “containing personal information”.

New clauses (to be renumbered when included in the Bill):

CHAPTER 1
GENERAL PROVISIONS

Right of access to records of private bodies
1. Any person must, on request, but subject to this Act, be given access to any record of a private body that the person requires for the exercise or protection of any rights.

Part applies to record whenever it came into existence 
2. This Part applies to a record of a private body regardless of when the record came into existence.

Application of other legislation prohibiting disclosure
Option 1
3.  This Part applies to the exclusion of any provision of other legislation that prohibits the disclosure of a record of a private body.
Option 2
3. If any conflict arises between any provision of this Part and any provision of other legislation that prohibits the disclosure of a record of a private  body, this Part prevails.
 
Application of other legislation providing for access
Option 1
4.  (1) Section 1  does not apply to a record of a private body— 
	(a)	subject to subsection (2), which is available in accordance with—
(i)	any other legislation; or
(ii)	arrangements made by that private body,
whether or not such access is subject to a fee;
	(b)	described in a list published by notice in the Gazette in terms of section 6(2).
(2) The Minister must—
(a)	on a periodic basis not less frequently than once each two years; and
(b)	in accordance with the prescribed criteria,
review the legislation and arrangements contemplated in subsection (1)(a) in order to determine whether the manner in which access may be obtained to a record or, category of records, of a private body in terms of any legislation or arrangement is more onerous than access to that record would have been in terms of this Part.
(3)  If the Minister has determined in terms of subsection (2) that the manner in which access may be obtained to a record or, category of records, of a private body in terms of such legislation or arrangement is more onerous than access to that record would have been in terms of this Act, the Minister must, by notice in Gazette, determine that this Act applies to such record or category of records.
Option 2:
4.  (1) This Part does not apply to any record of a private body described in a list published by notice in the Gazette in terms of section 6(2).
(2)  Nothing in this Part prevents a private body from giving access to a record of that body in accordance with any other law.

Use of Part for criminal or civil discovery of private bodies’ records excluded 
5.  A person may not request  access to a record of a private body in terms of section 1 for the purpose of criminal or civil proceedings if the production of that record for that purpose is regulated by any other law.
Note:	This provision may be circumvented if another person obtained access in terms of the Act and furnished the information to person to use it in criminal or civil proceedings. Proposal: “any person that contravenes section 5 [above] is guilty of an offence ...”.

Availability of certain records
6.(1) The head of a private body may on a periodic basis submit to the Minister  a list which describes—
(a)	the kinds of records of the private body that are available without a person having to request access in terms of this Part; and
(b)	how to obtain access to such records.
(2) The Minister may, if appropriate, publish by notice in the Gazette any list so submitted.
(3) The only fee payable for access to a record described in a list so published is a reasonable fee for reproduction (if applicable).
Note:	“Right to know” clause for privately held information inappropriate in view of the qualification of the constitutional right, ie “... that is required for the exercise or protection of any rights”?

Manual
7.(1) This section does not apply to private bodies which are natural persons. 
(2)  Within 12 months after the commencement of this section or the coming into existence of the private body concerned, the head of a private body, which is a juristic person, must publish a manual containing—
	(a)	the postal and street address, phone and fax number and, if available, electronic mail address of the head of the body; 
	(b)	a description of the guide referred to in section 5 and how to obtain access to it;
(c)	the latest list published in terms of section 6(2);
(d)	a description of the records of the body which are available in accordance with—
(i)	any other legislation; or
(ii)	arrangements made by that private body;
	(e)	in sufficient detail to facilitate a request for access to, and for correction of personal information in, a record of the body, a description of— 
	(i)	the subjects on which the body holds records and the categories of records held on each subject; 
	[(ii)	every personal information bank held by the body, including, in respect of each bank— 
			(aa)	the identification of the bank and a description of the categories of persons to whom or which the bank relates; and 
			(bb)	a statement of the purposes for which the information in the bank was obtained or the bank was compiled and a statement of the purposes consistent with those purposes for which the information in the bank is used or disclosed.]
	(f)	such other information as may be prescribed. 
	(3) The head of a private body must on a regular basis update its manual referred to in subsection (2). 
	(4) Each manual must— 
	(a)	if reasonably possible, be made available on the Internet by the head of the private body concerned; and 
	(b)	otherwise be made available as prescribed. 
(5)  For administrative or financial reasons, the Minister  may, on request or of its own accord by notice in the Gazette, exempt any category of private bodies from any provision of this section for such period as the Minister thinks fit. 

Form of request
8.(1)  A request for access to a record of a private body in terms of section 1 must— 
	(a)	be made in writing to the head of the private body concerned at his or her address, fax number or electronic mail address; 
	(b)	provide sufficient particulars to enable the head of the private body to identify the record requested; 
	(c)	specify a phone number in the Republic and a postal address, fax number or electronic mail address for the requester; and
(d)	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 or protection of that right.

Decision on request
9. (1)  The head of the private body to whom the request is made must, as soon as reasonably possible, but in any event, within 30 days, after the request has been received
(a)	decide in accordance with this Part whether to grant the request; and
(b)	notify the requester 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; and
	(b)	the form in which access will be given.
Option 1 for (3):
	(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state— 
	(a)	the findings on all material questions of fact, referring to the material on which those findings were based; 
	(b)	the reasons for the refusal (including the provisions of this Part 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 utilise any remedy in law available to the requester.
Option 2 for (3):
(3)  If the request for access is refused, the notice in terms of subsection (1)(b) must state the reasons for the refusal. 
	(4) If the head of a private body fails to give his or decision on a request for access to a record of the body within the period contemplated in subsection (1), the head is, for the purposes of this Act, regarded as having refused the request.

Extension of period to deal with request 
10. (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 9(1) (in this section referred to as the “original period”) once for a further period of not more than 30 days, if— 
Option 1:
	(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 that cannot reasonably be completed within the original period;
(c)	the record relates to a third party as contemplated in section 15(4) or 17(3);
	(d)	more than one of  the circumstances contemplated in paragraphs (a), (b) and (c) exist in respect of the request making compliance with the original period not reasonably possible. 
Option 2:
If there exists reasonable grounds for such extension.

(2) If a period is extended in terms of subsection (1), the head of the private body must, as soon as reasonably possible, but in any event, within 30 days, after the request is received, notify the requester of that extension, the period of the extension and the reasons for the extension. 

Severability
11.  (1) If a request for access to a record of a private body containing information which is required or permitted by Chapter 2 [Exemptions - set out below], to be refused, is made, 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 Part, 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 9(2), apply to paragraph (a) of this section and the provisions of section 9(3) to paragraph (b) of this section.

Form of access and access fee
12.  (1)  If access is granted to a record of a private body, the head of that body must, as soon as reasonably possible after notification in terms of section 9, give access in—
(a)	such form as the requester reasonably requires; or
(b)	if no specific form of access is required by the requester, such form as the head reasonably determines.
(2) The head of a private body may determine a reasonable access fee for reproduction, and for search and preparation of a record of the body, not exceeding the prescribed amounts.
(3) The head of the private body may defer access to a record of the  body until the applicable access fee is paid by the requester concerned.

CHAPTER 2
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

No right exercised or protected

14.  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 he or she seeks to exercise or protect; or
Option 1 for (b):
(b)	the requested record could not reasonably be required for the exercise or protection of a right.
Option 2 for (b):
(b)	the requested record is not likely to be required for the exercise or protection of a right.
Option 3 for (b):
(b)	the requested record is, in the opinion of that head, not required for the exercise or protection of a right.
Option 4 for (b):
(b)	the requested record could not reasonably be expected to advance the exercise or protection of a right.

Mandatory protection of privacy 
15. (1) The head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received) other than the requester concerned.
	(2) Subsection (1) does not apply to a record in so far as it consists of information— 
	(a)	about a person that has consented to its disclosure to the requester concerned; 
	(b)	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)	 incapable of understanding the nature of the request, 
		and if giving access would be in the individual’s best interests; 
	(c)	about an individual who is deceased and the requester is the individual’s next of kin. 
	(3) In subsection (2)(c) “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; 
	(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. 
	(4) The head of a private body considering a request for access to a record that might be a record contemplated  in subsection (1) must give the person to whom or which that record relates a reasonable opportunity to make representations why the request must be refused.
 
[Health of requester 

16. (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 for the 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, and which was provided by a health practitioner in his or her capacity as such if— 
	(a)	the head 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 
	(b)	the health practitioner so consulted is of the opinion that the disclosure of the record to that requester would be likely to cause serious harm to his or her physical or mental health, or well-being.
	(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. ]

Mandatory protection of third party commercial information 

17. (1) The head of a private body must 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, of a third party, the disclosure of which could reasonably be expected to cause unreasonable 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)	about a third party who has consented to its disclosure to the requester concerned; 
	(b)	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 
	(c)	supplied to, or about the results of any test or other investigation carried out by, a private body regarding a public safety or environmental risk.
(3) The head of a private body considering a request for access to a record that might be a record contemplated in subsection (1) must give the third party to whom or which that record relates a reasonable opportunity to make representations why the request must be refused. 

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

Privileged from production in legal proceedings 

19. The head of a private body must refuse a request for access to a record of the body if the record is privileged from production in legal proceedings.

Commercial information of private body 
20.  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; 
	(b)	financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which could reasonably be expected to cause harm to the commercial or financial interests of the private body; 
	(c)	information the disclosure of which would be likely to put the private body at a disadvantage in contractual or other negotiations or cause it prejudice in commercial competition; or
	(d)	the results of original research undertaken by an employee of the private body the disclosure of which could reasonably be expected to deprive that body or employee of the benefit of first publication of those results.
	(2) Subsection (1) does not apply to a record in so far as it consists of information— 
	(a)	about the safety of goods or services supplied by the private body 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 
	(b)	supplied to, or about the results of any test or other investigation carried out by, the private body regarding a public safety or environmental risk. 
	
Frivolous or vexatious requests 

21. 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 
22. (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 so refuses a request, he or she must, in the notice referred to in section 9, give a full account of all steps taken to find the record in question 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 head.

Published records and records to be published 

23. (1) The head of a private body may refuse a request for access to a record of that 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 at a fee no greater than would be charged for access in terms of this Part; or 
	(c)	the publication of the record is required by law, within 90 days after the receipt of the request.
	(2) The head concerned must, in the notice referred to in section 9, in the case of a refusal of a request for access in terms of— 
	(a)	subsection (1)(a) or (c), state the date on which the record concerned is to be published; or
	(b)	subsection (1)(b) and if such information is ordinarily available to the private body concerned, identify the title and publisher of the record and the library concerned nearest to the requester concerned. 

Records publicly available
24.  The head of a private body may refuse a request for access to a record of the body if the record is already publicly available.

Right outweighing ground for refusal
25.  The head of a private body must grant a request for access to a record of the body contemplated in sections 15 to 23 if the right sought to be exercised or protected clearly outweighs the need for non-disclosure contemplated in the provision in question.

Note:  Require reporting to Human Rights Commission and report by Commission to Parliament?

Draft: Access to records of private bodies: by Dr J Delport (DP) (18/11/99)
OPD 90a: Draft proposal for access to records of private bodies made by Dr J Delport (DP)
 
Insert the following:

Right of access to records of Private bodies
1. Any person must, but subject to this Act, be given access to any record held by a private body if such record is required for the exercise or protection of any right of that person.

Access to records in terms of other laws
2. Nothing in this Act, except section 56, prevents a private body from giving access to a record of that body in accordance with any other law.

Use of Act for criminal or civil discovery excluded
A litigant in civil or an accused in criminal proceedings shall not be given access to any record of a private body in the course of litigation if such record is subject to the process of discovery provided for in the law and practice applicable to civil or criminal proceedings.

Grounds for refusing access to records
4. A request for access to a record of a private body may be refused if-
(a) The interests of the requester, taking into account the nature of the right which such requester wishes to exercise or protect and the importance of access to the relevant record for the exercise or protection of such record, is outweighed by the possible adverse effect disclosure may have on the interests of any other person emanating from -
(I)	a right in terms of the Bill of Rights;
(ii)	a claim or obligation against any other person, including a contractual or delictual claim or obligation;
(iii)	a right to or in property, including immaterial property; or
(iv)	a right	in any commercial activity;

(b)	a public body would have been entitled to refuse disclosure of the record in terms of sections 30 to 43 had the request for access to the record been lodged with a public body:
Provided the grounds for refusal set out in this section shall not apply to a request for access to personal information in terms of Part 4 of this Act.

Form of request
A request for information shall -
(a)	be addressed in writing to the head of the private body 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.

Fees
6.	A requester must, when so required by the private body, pay an access fee as stipulated in section 24(2).

Form of access
7.	The forms of access to a record in respect of which a request was granted, are as set out in sections 25(2) to 25(10).

Access deemed to have been refused
If a private body fails to give a decision on a request for access within a period of 30 days, the request shall be deemed to have been refused.

Third Party Intervention
9(a)	If the interest of any third party may be affected by granting access to a record and in particular if the interests of any third party need to be taken into account for the purpose of applying section 4 above, inform such third party -
         (a)	of the name of the requester;
         (b)	of the nature and content of the request for access;
         (c)	of the nature and content of the interest of the third party which may be affected;

before any access is granted to the requester.

(b)	A third party may upon receipt of a notice as referred to in section 9(a) or if such third party suspects that access to a particular record may be requested by or granted to any person -
        (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.

Draft: Fees Section (18/11/99)
OPD 88a: Proposed amending options relating to clauses 17, 18 and 24 (fees). Includes a note of the 17 November, following the discussions of the 16 November
NOTE:
The options hereunder will require the deletion of the definitions of "commercial requester", clause 1(iii) and "non-commercial requester", clause 1(xii). Consideration may be given to the inclusion of the following definition: "requester" - means a person who is not a personal requester.
Clauses 17(3) and 18(3)(b) of options 1 and 3 and clause 17(6) of option 2 will be rendered obsolete if the head of a governmental body becomes the information officer. The relevant subclauses should either be deleted or provision should be made for representations to be made to the head of the governmental body to reconsider the decision).
OPTION 1:
Payment of request fee
17.	(1)	A requester, other than a personal requester, must, when making his or her request for access, pay the prescribed request fee.
(2)	If that requester has not paid the prescribed request fee the information officer of the governmental body concerned must by notice require the requester to pay that fee.
(3)	That notice must state-
(a)	that the requester may lodge an internal appeal with the head of the body against the payment of the fee; and
(b)	the procedure (including the period) for lodging the internal appeal.
(4)	If the prescribed request fee is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee is paid.
Payment of deposit
18.	(1)	If-
(a)	the search for a record of a governmental body in respect of which a request for access by a requester, other than a personal requester, has been made; and
(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)),
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
(2)	No deposit is payable in respect of a request for access by a personal requester.
(3)	The notice referred to in subsection (1) must state-
(a)	the amount of the deposit; and
(b)	that the requester may lodge an internal appeal with the head of the governmental body concerned against the payment of a deposit, and the procedure (including the period) for lodging the internal appeal.
(4)	If a deposit is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the deposit is paid.
(5)	If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.
Access fees
24.	(1)	A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and
(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").
(3)	A personal requester must pay an access fee for reproduction only.
(4)	A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.
(5)	The Minister of Justice may, by notice in the Gazette -
(a)	exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;
(b)	determine that any fee is not to exceed a certain maximum amount; and
(c)	the manner in which any fee is to be calculated.
OPTION 2:
Fees
17.	(1)	An information officer to whom a request for access to information is made must by notice require the requester to pay the prescribed request fee, and the decision on the request in terms of section 19 may be deferred until the fee is paid.
(2)	A requester whose request for access to a record of a governmental 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).
(3)	A requester must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.
(4)	Access fees prescribed for the purposes of subsection (2) must provide for a reasonable access fee for- 
(a)	the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and
(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").
(5)	If - 
(a)	the search for a record of governmental body in respect of which a request for access by a requester, other than a personal requester, has been made; and
(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)),
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
(6)	The notices referred to in subsections (1) and (5) must state - 
(a)	the amount of the deposit payable in terms of subsection (5);
(b)	that the requester may lodge an internal appeal with the head of the governmental body concerned against the payment of the request fee in terms of subsection (1), or the payment of a deposit in terms of subsection (5), as the case may be; and
(c)	the procedure (including the period) for lodging the internal appeal.
(7)	A personal requester is exempted from paying a request fee and deposit and must pay an access fee for reproduction only.
(8)	The Minister of Justice may, by notice in the Gazette - 
(a)	exempt any person or category of persons from paying any fees in terms of this section;
(b)	determine that any fee is not to exceed a certain maximum amount; and
(c)	the manner in which any fee is to be calculated.
(9)	If a deposit has been payed in respect of a request for access which is refuse, the information officer concerned must repay the deposit to the requester.
OPTION: 3
Payment of request fee and deposit
17.	(1)	A requester must, when making his or her request for access, pay the prescribed fee.
(2)	If that requester has not paid the prescribed request fee, the information officer of the government body concerned must by notice require the requester to pay that fee.
(3)	If-
(a)	the search for a record of a governmental body in respect of which a request for access by requester has been made; and
(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa),
would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.
(4)	No deposit is payable in respect of a request for access by a personal requester.
(5)	The notice referred to in subsection (3) must state-
(a)	the amount of the deposit; and
(b)	that the requester may write representations to the head of the governmental body concerned against the payment of a deposit, and the procedure (including the period) for missing representations.
(6)	If the prescribed request fee or deposit, as the case may be, is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee of deposit is paid.
(7)	If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.
Access fees
24.	(1)	A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and
(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").
(3)	A personal requester must pay an access fee for reproduction only.
(4)	A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.
(5)	The Minister of Justice may, by notice in the Gazette -
(a)	exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;
(b)	determine that any fee is not to exceed a certain maximum amount; and
(c)	the manner in which any fee is to be calculated.
NOTE:	17/11/99
In view of a general discussion by the Committee on 6 November 1999 with regard to the above amending options, it appeared that clause 24(5) of option 1, clause 17(8) of option 2 and clause 24(5) of option 3 should be extended to include the following:
"(d)	determine the category of records in respect of which the fees referred to in this section and sections 17 and 18 will not apply (note that "and sections 17and 18" will be deleted from clause 17(8) of option 2, and that reference to section 18 in option 3 will be deleted);
(e)	exempt any person or record or category of persons or records for a stipulated period from the fees referred to in this section (note that clause 17(8) of option 2 will refer to subsection (4)); and
(f)	determine that where the cost of collecting the fees referred to in this section and sections 17 and 18 exceeds the amount charged, that those fees will not apply (note that "and sections 17 and 18" will be deleted from clause 17(8) of option 2, and that reference to section 18 in option 3 will be deleted).

Draft: Fee Section (16/11/99)
Draft: Fee Section
PROPOSED AMENDING OPTIONS RELATING TO CLAUSES 17, 18 AND 24 (FEES):

NOTE:
The options hereunder will require the deletion of the definitions of "commercial requester", clause 1(iii) and "non-commercial requester", clause 1(xii). Consideration may be given to the inclusion of the following definition: "requester" — means a person who is not a personal requester.

Clauses 17(3) and 18(3)(b) of options 1 and 3 and clause 17(6) of option 2 will be rendered obsolete if the head of a governmental body becomes the information officer. The relevant subclauses should either be deleted or provision should be made for representations to be made to the head of the governmental body to reconsider the decision).

OPTION 1:

Payment of request fee
17.	(1)	A requester, other than a personal requester, must, when making his or her request for access, pay the prescribed request fee.

(2)	If that requester has not paid the prescribed request fee the information officer of the governmental body concerned must by notice require the requester to pay that fee.

(3)	That notice must state—

(a)	that the requester may lodge an internal appeal with the head of the body against the payment of the fee; and

(b)	the procedure (including the period) for lodging the internal appeal.

(4)	If the prescribed request fee is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee is paid.

Payment of deposit
18.	(1)	If—

(a)	the search for a record of a governmental body in respect of which a request for access by a requester, other than a personal requester, has been made; and

(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)),

would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.

(2)	No deposit is payable in respect of a request for access by a personal requester.

(3)	The notice referred to in subsection (1) must state—

(a)	the amount of the deposit; and

(b)	that the requester may lodge an internal appeal with the head of the governmental body concerned against the payment of a deposit, and the procedure (including the period) for lodging the internal appeal.

(4)	If a deposit is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the deposit is paid.

(5)	If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.

Access fees
24.	(1)	A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and

(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").

(3)	A personal requester must pay an access fee for reproduction only.

(4)	A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.

(5)	The Minister of Justice may, by notice in the Gazette —

(a)	exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;

(b)	determine that any fee is not to exceed a certain maximum amount; and

(c)	the manner in which any fee is to be calculated.

OPTION 2:

Fees
17.	(1)	An information officer to whom a request for access to information is made must by notice require the requester to pay the prescribed request fee, and the decision on the request in terms of section 19 may be deferred until the fee is paid.

(2)	A requester whose request for access to a record of a governmental 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).

(3)	A requester must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.

(4)	Access fees prescribed for the purposes of subsection (2) must provide for a reasonable access fee for— 

(a)	the cost of making a copy of a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and

(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").

(5)	If — 

(a)	the search for a record of governmental body in respect of which a request for access by a requester, other than a personal requester, has been made; and

(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)),

would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.

(6)	The notices referred to in subsections (1) and (5) must state — 

(a)	the amount of the deposit payable in terms of subsection (5);

(b)	that the requester may lodge an internal appeal with the head of the governmental body concerned against the payment of the request fee in terms of subsection (1), or the payment of a deposit in terms of subsection (5), as the case may be; and

(c)	the procedure (including the period) for lodging the internal appeal.

(7)	A personal requester is exempted from paying a request fee and deposit and must pay an access fee for reproduction only.

(8)	The Minister of Justice may, by notice in the Gazette — 

(a)	exempt any person or category of persons from paying any fees in terms of this section;

(b)	determine that any fee is not to exceed a certain maximum amount; and

(c)	the manner in which any fee is to be calculated.

(9)	If a deposit has been payed in respect of a request for access which is refuse, the information officer concerned must repay the deposit to the requester.

OPTION: 3

Payment of request fee and deposit
17.	(1)	A requester must, when making his or her request for access, pay the prescribed fee.

(2)	If that requester has not paid the prescribed request fee, the information officer of the government body concerned must by notice require the requester to pay that fee.

(3)	If—

(a)	the search for a record of a governmental body in respect of which a request for access by requester has been made; and

(b)	the preparation of the record for disclosure (including any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa),

would, in the opinion of the information officer of the body, require more than the hours prescribed for this purpose for requesters, the information officer must by notice require the requester to pay as a deposit the prescribed portion (being not more than one third) of the access fee which would be payable if the request is granted.

(4)	No deposit is payable in respect of a request for access by a personal requester.

(5)	The notice referred to in subsection (3) must state—

(a)	the amount of the deposit; and

(b)	that the requester may write representations to the head of the governmental body concerned against the payment of a deposit, and the procedure (including the period) for missing representations.

(6)	If the prescribed request fee or deposit, as the case may be, is payable in respect of a request for access, the decision on the request in terms of section 19 may be deferred until the fee of deposit is paid.

(7)	If a deposit has been paid in respect of a request for access which is refused, the information officer concerned must repay the deposit to the requester.

Access fees
24.	(1)	A requester whose request for access to a record of a governmental 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 a record, or of a transcription of the content of a record, as contemplated in section 25(2)(a) and (b)(i), (ii)(bb), (iii), (iv) and (v) and, if applicable, the postal fee (in this section referred to as an "access fee for reproduction"); and

(b)	the time reasonably required to search for the record and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure to the requester (in this section referred to as an "access fee for search and preparation").

(3)	A personal requester must pay an access fee for reproduction only.

(4)	A requester, other than a personal requester, must pay an access fee for reproduction and for search and preparation for any time reasonably required in excess of the prescribed hours to search for and prepare (including making any arrangements contemplated in section 25(2)(a) and (b)(i) and (ii)(aa)) the record for disclosure.

(5)	The Minister of Justice may, by notice in the Gazette —

(a)	exempt any person or category of persons from paying any fees in terms of this section and sections 17 and 18;

(b)	determine that any fee is not to exceed a certain maximum amount; and

(c)	the manner in which any fee is to be calculated.

Draft: "Right-to-know" Clause for Governmental Bodies (18/11/99)
OPD 87cc: Proposed "Right to Know" clause for governmental bodies
#	SEE NOTE AND OPTIONS 4 AND 5 INCLUDED PURSUANT TO COMMITTEE’S DISCUSSIONS on OPD 87c - 16 November  

Note:
(1)	Propose that the existing clause 6(2)(e) be substituted for the following:
“(e)	the latest notice, published in terms of section 7, regarding the kinds of records of the body, which are available without a person having to request access in terms of Part 3;”.
(2)	Propose to amend clause 86(c) to provide for the making of regulations relating to the classification of records for the purposes of establishing a uniform system of classifying records as available as contemplated  in the proposed clause 7.
(3)	A new proposed clause 4(1)(b) (Option 1: OPD 87a) provides that the Act does not apply to a record of a governmental body which is available in terms of section 7 (proposed right to know-clause).
(4)	If the financial year of a body is used as proposed in Option 4, a similar amendment to clause 6 (manual) should be considered and  an appropriate transitional arrangement for the first financial year for clause 6 and proposed clause 7 should be included.

See clause 5(2) (guide) and clause 6(2) (manual) of the Bill.

Insert the following clause after clause 6:

“Right to know/Records automatically available/Availability of certain records

Option 1:	
“7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, by notice in the Gazette, publish a description of—
(a)	the kinds of records of the governmental body that are available for inspection without a person having to request access in terms of Part 3; and
(b)	how to obtain access to such records.
(2) The fees payable for access to records in terms of subsection (1) may only provide for the cost of reproduction.”.

Option 2:
“7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, by notice in the Gazette—
(a)	publish an index of records of the governmental body to be open to public access without a person having to request access in terms of Part 3; and
(b)	specify how such records may be inspected, copied, purchased or otherwise accessed.
(2) The fees payable for access to records in terms of subsection (1) may only provide for the cost of reproduction.”.

Option 3:
“7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each financial year of the body, by notice in the Gazette, publish a description of—
(a)	the kinds of records of the governmental body that are available—
(i)	for inspection in terms of legislation other than this Act;
(ii)	for purchase from the governmental body;
(iii)	from the governmental body free of charge; and
(b)	how to obtain access to such records.”.

Option 4:
“7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, by notice in the Gazette, publish a description of—
Option 1 for (a):
(a)	the kinds of records of the governmental body that are available without a person having to request access in terms of Part 3; and
Option 2 for (a):
(a)	the kinds of records of the governmental body that are available—
(i)	for inspection in terms of legislation other than this Act; [Note: might impose fees conflicting with (2) below]
(ii)	for purchase from the governmental body;
(iii)	from the governmental body free of charge; and [Note: Since par (b) covers the different ways in which records are available, suggest that option 1 for (a) be used.]
(b)	specify how such records may be inspected, copied, purchased or otherwise accessed.
Option 1 for fee:
(2) The fees payable for access to records in terms of subsection (1) may only provide for a prescribed fee for reproduction (if any).”.
Option 2 for fee:
(2) If applicable, only the payment of the prescribed fee for reproduction (if any) may be required for access to a record in terms of subsection (1).” 
Option 3 for fee:
(2)  No fee other than the prescribed fee for reproduction (if any and if applicable) is payable for access to a record in terms of subsection (1).”

Option 5:

“7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, furnish to the Minister of Justice a description of—
(a)	the kinds of records of the governmental body that are available without a person having to request access in terms of Part 3; and
(b)	specify how such records may be inspected, copied, purchased or otherwise accessed.
(2) The Minister of Justice must, on a periodic basis not less frequently than once each year, publish in one notice in the Gazette all the descriptions furnished in terms of subsection (1).
(3)  No fee other than the prescribed fee for reproduction (if any and if applicable) is payable for access to a record in terms of subsection (1).” 

#	Following subclause proposed to be included in respect of all 5 options:
“The head of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, on a request to that record in terms of this Act, is required or permitted by this Act to be refused.”.

Draft: "Right-to-know" Clause for Governmental Bodies (16/11/99)
Draft: Proposed Right-to-know Clause for Governmental Bodies

#	See clause 5(2) (guide) and clause 6(2) (manual) of the Bill.

Insert the following clause after clause 6:

"Right to know/Records automatically available/Availability of certain records

Option 1:	
"7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, by notice in the Gazette, publish a description of—

(a)	the kinds of records of the governmental body that are available for inspection without a person having to request access in terms of Part 3; and

(b)	how to obtain access to such records.

(2) The fees payable for access to records in terms of subsection (1) may only provide for the cost of reproduction.".

Option 2:
"7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, by notice in the Gazette—

(a)	publish an index of records of the governmental body to be open to public access without a person having to request access in terms of Part 3; and

(b)	specify how such records may be inspected, copied, purchased or otherwise accessed.

(2) The fees payable for access to records in terms of subsection (1) may only provide for the cost of reproduction.".

Option 3:
"7.(1) The head of a governmental body must, on a periodic basis not less frequently than once each year, by notice in the Gazette, publish a description of—

(a)	the kinds of records of the governmental body that are available—

(i)	for inspection in terms of legislation other than this Act;

(ii)	for purchase from the governmental body;

(iii)	from the governmental body free of charge

(b)	how to obtain access to such records.".

#	Following subclause proposed to be included in respect of all 3 options:

"The head of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, on a request to that record in terms of this Act, is required or permitted by this Act to be refused.".

Draft: Protection of Information held by Public Protector (16/11/99)
Draft: Protection of information held by Public Protector

If section 7(4), read with section 7(5), of the Public Protector Act, 1994 (quoted below), is construed to give the Public Protector the "right to demand" information, such information could not be refused under clause 32(1) of the Bill in view of clause 32(1)(b). Propose amendments to clause 34(1) to sufficiently protect information relating to investigations by the Public Protector - deletions are in [ ] and insertions are underlined:

	(1) The information officer of a governmental body may refuse a request for access to a record of the body if— 

	(a)	the record contains methods, techniques, procedures or guidelines for— 

	(i)	the prevention, detection, suppression or investigation of [offences] a contravention or possible contravention of the law; or 

	(ii)	the prosecution of alleged offenders, 

		and the disclosure of those methods, techniques, procedures or guidelines would be likely to prejudice the effectiveness of those methods, techniques, procedures or guidelines or lead to the circumvention of the law or facilitate the commission of an offence; 

	(b)	 the prosecution of an alleged offender is being prepared or about to commence or pending and the disclosure of the record would be likely— 

	(i)	to impede that prosecution; or 

	(ii)	to result in a miscarriage of justice in that prosecution; 

	(c)	the disclosure of the record would be likely— 

	(i)	to prejudice the investigation of [any offence or possible offence] a contravention or possible contravention of the law which is about to commence or is in progress or, if it has been suspended or terminated, is likely to be resumed; 

	(ii)	to reveal, or enable a person to ascertain, the identity of a confidential source of information in [respect of a law enforcement matter] relation to the enforcement or administration of the law; 

	(iii)	to result in the intimidation or coercion of a witness, or a person who might be or has been called as a witness, in criminal or other proceedings to enforce the law, or to endanger the life or physical safety of that witness or person; 

	(iv)	to result in the commission of an offence; 

	(v)	subject to subsection (2), to facilitate escape from lawful detention; or 

	(vi)	to deprive a person of a right to a fair trial or an impartial adjudication; or 

	(d)	the record contains arrangements for the protection of an individual in accordance with a witness protection scheme.

Section 7(2) to (6) of the Public Protector Act 23 of 1998 quoted below:

"(2) Notwithstanding anything to the contrary contained in any law no person shall disclose to any other person the contents of any document in the possession of a member of the office of the Public Protector or the record of any evidence given before the Public Protector, a Deputy Public Protector or a person contemplated in subsection (3) (b) during an investigation, unless the Public Protector determines otherwise.

(3) (a) The Public Protector may, at any time prior to or during an investigation, request any person- 

(i)	at any level of government, subject to any law governing the terms and conditions of employment of such person;

(ii)	performing a public function, subject to any law governing the terms and conditions of the appointment of such person; or

(iii)	otherwise subject to the jurisdiction of the Public Protector,

to assist him or her, under his or her supervision and control, in the performance of his or her functions with regard to a particular investigation or investigations in general.

(b) ...

(4) (a) For the purposes of conducting an investigation the Public Protector may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated, and may examine such person.

(b) The Public Protector or any person duly authorised thereto by him or her may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated.

(5) A direction referred to in subsection (4) (a) shall be by way of a subpoena containing particulars of the matter in connection with which the person subpoenaed is required to appear before the Public Protector and shall be signed by the Public Protector and served on the person subpoenaed either by a registered letter sent through the post or by delivery by a person authorised thereto by the Public Protector.

(6) The Public Protector may require any person appearing as a witness before him or her under subsection (4) to give evidence on oath or after having made an affirmation. 

...." (Our emphasis.)

Draft: Proposed Separate Exemption for Tax-related Information (16/11/99)
Draft: Proposed Separate Exemption for Tax-related Information

PROPOSED SEPARATE EXEMPTION FOR TAX RELATED INFORMATION TO REPLACE CLAUSE 32(3)

Revenue information

Option 1:
The information officer of a governmental body must refuse a request for access to a record of the body if it contains information which "was obtained" OR "is held by the body" for the purpose of enforcing legislation "imposing taxes, duties, levies, fees, charges, additional tax and any other moneys, including penalties and interest in connection with such moneys" OR "concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997)".

Note:	"‘revenue’ is defined in the South African Revenue Service Act, 1997, as "income derived from taxes, duties, levies, fees, charges, additional tax and any other moneys imposed in terms of legislation, including penalties and interest in connection with such moneys".

Option 2:
The information officer of a governmental body must refuse a request for access to a record of the body if it reveals information that was obtained on a tax return or for the purpose of determining tax liability or collecting tax.

Note:	Reference to "tax return" and "... tax ..." too limited? If reference is made only to tax, etc collected by SARS it would exclude levies and duties collected by other bodies (eg skills development levies collected by SETAs).

Example of "tax" secrecy provision - Income Tax Act, 1962:

"Preservation of secrecy
4.(1) Every person employed in carrying out the provisions of this Act shall preserve and aid in preserving secrecy with regard to all matters that may come to his knowledge in the performance of his duties in connection with those provisions, and shall not communicate any such matter to any person whatsoever other than the taxpayer concerned or his lawful representative nor suffer or permit any such person to have access to any records in the possession or custody of the Commissioner except in the performance of his duties under this Act or by order of a competent court: Provided that-

(a) 	any information obtained by the Commissioner in the performance of his duties under the provisions of this Act or any previous Income Tax Act may be used by him for the purposes of the provisions of any other fiscal law administered by him;

(b)	the Auditor-General shall in the performance of his duties in terms of section 3 of the Auditor-General Act, 1995 (Act 12 of 1995), have access to documents in the possession or custody of the Commissioner;

(c)	the provisions of this subsection not be construed as preventing the Commissioner from disclosing to the Chief of the Central Statistical Services such information in relation to any person as may be required by such Chief in connection with the collection of statistics in complying with the provisions of the Statistics Act, 1976 (Act 66 of 1976), or any regulation thereunder.

	(1A) The Chief of the Central Statistical Services or any person acting under the direction and control of such Chief, shall not disclose any information supplied under subsection (1) (c) to any person or permit any person to have access thereto, except in the exercise of his powers or the carrying out of his duties to publish statistics in any anonymous form.

(1B)	......

(a) Every person so employed shall, before acting under this Act, take and subscribe before a magistrate or justice of the peace or a commissioner of oaths, such oath or solemn declaration, as the case may be, of fidelity or secrecy as may be prescribed.

(b) Any oath of secrecy taken and subscribed under the provisions of any previous Income Tax Act by any person who is employed in carrying out the provisions of this Act shall be deemed to be an oath taken and subscribed in terms of this subsection.

(2A) No person shall in any manner publish or make known to any other person (not being an officer carrying out his duties under the control, direction or supervision of the Commissioner) the contents or tenor of any instruction or communication given or made by the Commissioner or any such officer in the performance of his or their duties under this Act for or concerning the examination or investigation of the affairs of any taxpayer or class of taxpayers or the fact that such instruction or communication has been given or made, or any information concerning the tax matters of a taxpayer or class of taxpayers: Provided that the provisions of this subsection shall not be construed-

(i)	as preventing any taxpayer or his representative who is or may be affected by any such examination, investigation or furnishing of information from publishing or making known information concerning his own tax matters; or

(ii)	subject to the provisions of subsection (1), as in any way limiting the duties or powers of the Commissioner or any such officer; or

(iii)	as preventing any person from publishing or making known anything which has been published or made known by the taxpayer or his representative as contemplated in paragraph (i) or by the Commissioner or any such officer in the exercise of his duties or powers.

(3) Any person who contravenes the provisions of subsection (1) or (2A) shall be guilty of an offence and liable on conviction to a fine not exceeding R5 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment. 

(4) Any person who acts in the execution of his office before he has taken the prescribed oath or solemn declaration shall be guilty of an offence and liable on conviction to a fine not exceeding R50. 

SOUTH AFRICAN REVENUE SERVICE ACT 34 OF 1997: LEGISLATION ADMINISTERED BY COMMISSIONER

1.	Union and Southern Rhodesia Death Duties Act, 1933 (Act 22 of 1933) 

2.	Marketable Securities Tax Act, 1948 (Act 32 of 1948) 

3.	Transfer Duty Act, 1949 (Act 40 of 1949) 

4.	Estate Duty Act, 1955 (Act 45 of 1955) 

5.	Income Tax Act, 1962 (Act 58 of 1962) 

6.	Customs and Excise Act, 1964 (Act 91 of 1964) 

7.	Stamp Duties Act, 1968 (Act 77 of 1968) 

8.	Value-Added Tax Act, 1991 (Act 89 of 1991) 

9.	Section 60 of the Income Tax Act, 1993 (Act 113 of 1993) 

10.	Section 39 of the Taxation Laws Amendment Act, 1994 (Act 20 of 1994) 

11.	Company Tax Amendment Decree, 1994 (Decree 2 of 1994), of the former Republic of Ciskei

12.	Section 41 of the Income Tax Act, 1994 (Act 21 of 1994) 

13.	Tax Amnesty Act, 1995 (Act 19 of 1995) 

14.	Sections 56 and 57 of the Income Tax Act, 1995 (Act 21 of 1995) 

15.	Tax on Retirement Funds Act, 1996 (Act 38 of 1996) 

16.	Final Relief on Tax, Interest, Penalty and Additional Tax Act, 1996 (Act 101 of 1996) 

17.	The Sales Tax Act, 1978 (Act 103 of 1978), to the extent that it remains in force in terms of section 85 of the Value-Added Tax Act, 1991 (Act 89 of 1991) 

18.	Any regulation, proclamation, government notice or rule issued in terms of the above-mentioned legislation or any agreement entered into in terms of this legislation or the Constitution.

AND any other legislation concerning the collection of revenue that may be assigned to SARS in terms of either legislation or an agreement between SARS and the organ of state or institution entitled to the revenue.

Draft: Application access to records of Governmental Bodies (16/11/99)
Draft: Application regarding access to records of Governmental Bodies

#	To replace clauses 2, 10, 11, 12 and 43 and reference in paragraph (i) of the definition of record to "and whether it was created before or after commencement of this section".

Act applies to record whenever it came into existence 

2. This Act applies to a record of a governmental body regardless of when the record came into existence.

Application of other legislation prohibiting disclosure
Option 1

3. This Act applies to the exclusion of other legislation prohibiting or restricting access to a record of a governmental body.

Option 2
3. If any conflict arises between this Act and any other legislation that prohibits or restricts access to a record of a governmental body, this Act prevails.

Application of other legislation providing for access
Option 1
4. (1) This Act, except {correction clause}, does not apply to a record of a governmental body which is available— 

	(a)	subject to subsection (2), in accordance with—

(i)	any other legislation; or

(ii)	arrangements made by that governmental body,

whether or not such access is subject to a fee;

	(b)	in terms of section 7 [proposed "right to know"].

(2) The Minister must—

(a)	on a periodic basis not less frequently than once each two years; and

(b)	in accordance with the prescribed criteria,

review the legislation and arrangements contemplated in subsection (1)(a) in order to determine whether the manner in which access may be obtained to a record or, category of records, of a governmental body in terms of any legislation or arrangement is more onerous than access to that record would have been in terms of this Act.

(3) If the Minister has determined in terms of subsection (2) that the manner in which access may be obtained to a record or, category of records, of a governmental body in terms of such legislation or arrangement is more onerous than access to that record would have been in terms of this Act, the Minister must, by notice in Gazette, determine that this Act applies to such record or category of records.

Option 2:
4. Nothing in this Act prevents a governmental body from giving access to a record of that body in accordance with any other law.

Note:	Gives a person a choice as to which legislation he/she wishes to use, but, if this Act is used it "circumvents" established procedures for access (eg deeds) under other legislation.

Use of Act for criminal or civil discovery of governmental bodies’ 
5. No accused in criminal proceedings or party to civil proceedings, or person acting on the behalf of that accused or party, requiring the production of documents for the purposes of those criminal or civil proceedings, as the case may be, may be given access to a record of a governmental body in terms of this Act if that production is provided for in any other law.

Note:	This provision may be circumvented if another person obtains access in terms of the Act and furnished the information to person to use it in criminal or civil proceedings. Proposal: Provide in clause 85 that a contravention of clause 10 is an offence.

Right to disclose record to which access is given 
6. 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 governmental body to which access is given in terms of this Act. 

Briefing  [B67-98]
OPEN DEMOCRACY BILL [B 67—98]: BRIEFING
(Complied by Advocate Empie van Schoor)

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

2	OBJECTS OF BILL

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

4	COMPONENTS OF BILL

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

6          PROTECTION OF PERSONAL INFORMATION

7          PROTECTION OF WHISTLE-BLOWERS

8          ENFORCEMENT MECHANISMS

9          HUMAN RIGHTS COMMISSION

10        GENERAL PROVISIONS

1.	APPLICABLE CONSTITUTIONAL PROVISIONS

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

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

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

Right to privacy (section 14)

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

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

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

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

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

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

(section 239)

2.	OBJECTS OF BILL
Principal objects of Bill are to—
(a)	give effect to constitutional right of access to information held by state;
(b)	partially give effect to constitutional right of access to information held by another person and which is required for exercising or protecting any right;
(c)	generally, to promote transparency and accountability by all organs of state by—
(i)	providing the public with timely, accessible and accurate information; and
(ii)	empowering the public to effectively scrutinise, and participate in, governmental decision-making that affect them.

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

(See clause 3)

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

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

Exclusions: Cabinet and courts and judicial officers

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

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

Collection and retention requirements apply to governmental bodies only

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

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

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

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

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

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

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

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

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

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

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

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

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

(See clauses 17, 18 and 24)

Amount of different fees to be prescribed by regulation

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

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

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

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

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

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

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

Privileged from production in legal proceedings
(Clause 35)

Defence & security of Republic
(Clause 36)

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

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

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

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

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

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

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

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

Opportunity to make representations as to non-disclosure

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

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

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

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

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

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

(See Part 4 — clauses 48 - 62

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

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

(See Part 5 — clauses 63 - 66 )

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

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

(See Part 6  — clauses 67 - 81)

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

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

10	GENERAL PROVISIONS
Provision is made for offences in clause 85

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

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

Public Submissions [B67-98]
Public Hearings Programme (23 & 24 March)
Attorney General: Grahamstown
Attorney General: Transvaal
Banking Council
Black Sash
Centre for Applied Legal Studies
Centre for Conflict Resolution / Ceasefire Campaign
Chief Justice: Ishmael Mahomed
COSATU
Consumer Institute  South Africa
Direct Marketing Association
Direct Response Marketing
Edgars: 7 August 1998
Edgars: 28 November 1997
Eskom
Freedom of Expression Institute
Human Rights Committee
IDASA
Judge: Bloemfontein
Judge President: Durban
Judge President: Northern Cape
Judge President: Western Cape
Legal Resources Centre
Leisure Books
Ministry for Intelligence Services
NADEL
NEDCOR
National Postal Forum
Open Democracy Lobby Group (9 NGOs)
South African Catholic Bishops' Conference (SACBC)
South African Chamber of Business (SACOB)
South African Council of Churches (SACC)
South African Human Rights Commission
Telkom
Transnet
Tupperware Southern Africa

Summary of Submissions [B67-98]
EXPANDED SUMMARY OF SUBMISSIONS ON THE OPEN DEMOCRACY BILL [B67 - 98] BY DEPARTMENT
AD HOC JOINT COMMITTEE ON THE OPEN DEMOCRACY BILL

EXPLANATORY NOTE
The Open Democracy Bill, 1998, was introduced in Parliament by the Minister of Justice in July 1998.  The Portfolio Committee on Justice in the National Assembly called for written submissions on the Bill and then held public hearings on 23 and 24 March 1999.

On 25 August 1999, after the second general elections, the National Assembly adopted a resolution that the Bill be deemed to have been introduced in Parliament during the Parliamentary session which followed the general elections, and that the Bill must be referred to an Ad Hoc Joint Committee on the Open Democracy Bill (the Committee).

The Committee decided that those submissions which have already been made by interested parties will be placed before the Committee, as if they have been submitted to the Committee, together with the summary of those submissions styled “Summary of submissions on the Open Democracy Bill [B67 — 98] Portfolio Committee on Justice (National Assembly)”.

On 16 September 1999, the Joint Chairpersons of the Committee requested urgent written submissions from interested parties.  This document is the comprehensive summary of all submissions (and incorporates OPD 37 and OPD 40).

INDEX
WRITTEN SUBMISSIONS WERE RECEIVED FROM THE FOLLOWING PARTIES:
1.	OPD 2; 2A               —   The Banking Council of South Africa
2.	OPD 3    	           —   Consumer Institute 
3.	OPD 4    	           —   EDGARS
4.	OPD 5    	           —   NEDCOR Investment Bank
5.	OPD 6; 6A   	           —   South African Chamber of Business (SACOB)
6.	OPD 7    	           —   Leisure Books
7.	OPD 8    	           —   National Postal Forum
8.	OPD 9    	           —   Direct Response Marketing
9.	OPD 10  	           —   Attorney-General: Transvaal
10.	OPD 11; 11A            —   University of the Witwatersrand (WITS)
11.	OPD 12  	           —   Tupperware Southern Africa (Pty) Ltd.
12.	OPD 13  	           —   Centre for Conflict Resolution
13.	OPD 14; 14A            —   Office of the Deputy Minister for Intelligence
14.	OPD 15, 15A-D         —   South African Council of Churches
15.	OPD 16; 16A-B          —   Freedom of Expression Institute
16.	OPD 17  	           —  Judge PJJ Olivier
17.	OPD 18  	           —  Judge President: Natal Provincial Division
18.	OPD 19  	           —  Judge President: Northern cape Division
19.	OPD 20  	           —  Judge President:  Cape Provincial Division
20.	OPD 21  	           —  Chief Justice
21.	OPD 22  	           —  Attorney-General: Eastern Cape
22.	OPD 23; 23A-B        —  TRANSNET
23.	OPD 24  	           —  Direct Marketing Association
24.	OPD 25  	           —  ESKOM
25.	OPD 26; 26A	—  Environmental Justice Networking Forum
26.	OPD 27  	           —  NADEL
27.	OPD 28; 28A  	—  Human Rights Committee
28.	OPD 29  	           —  IDASA
29.	OPD 30  	           —  Black Sash Trust
30.	OPD 31  	           —  Southern African Catholic Bishop’s Conference
31.	OPD 32  	           —  Human Rights Commission
32.	OPD 33; 33A  	—  COSATU
33.	OPD 34	           — TELKOM
34.	OPD 35	           — Credit Bureau Association
35.	OPD 36; 36A-C	— Committee for Private Data Base Users
36.	OPD 37		— Summary on submissions
37.	OPD 38		— N Alant and T Uys
38.	OPD 39		— Department of Public Administration: UNISA
39.      OPD 40                   __ Summary on submissions
40.      OPD 41; 41A          __ SAHRC: Workshop
41.	OPD 42                  __ Department of Land Affairs
42.	OPD 43                  __ Legal Services
43.	OPD 44                  __ LSSA
44.	OPD 45                  __ JSE
45.	OPD 46	         __ Department of Health
46.	OPD 47                  __ Public Protector
47.	OPD 48	          __ Lawyers for Human Rights
48.	OPD 49	          __ Legal Aid Board
49.	OPD 50	          __ Public Service Commission
50	OPD 51	          __ Department of Agriculture
51.	OPD 52	          __ Office of the Premier: Mpumulanga
52.	OPD 53	          __ Provincial Administration: Western Cape
53.	OPD 54	          __ Department of Sociology: RAU
54.	OPD 55	          __ South African Association of Consulting Engineers
55.	OPD 56	          __ Minister of Home Affairs
56.	OPD 57	          __ Minister of Justice
57.	OPD 58; 58A          __ Department of Justice
58.	OPD 59	       __ Department of Finance
59.	OPD 60	       __ Department of Foreign Affairs
60.	OPD 61	       __Free State Provincial Government
61.	OPD 62	       __ South African Revenue Services
62.	OPD 63	       __ Department of Minerals and Energy
63.	OPD 64	       __ Open Democracy Campaign Group
64.	OPD 64A	       __ Opinion prepared by P Farlam
65.	OPD 65B	       __ Business Day: 12/10/99
66.	OPD 64C	       __ Cosatu
67.	OPD 65	       __ South African Society of Archivists
68.	OPD 66	       __ Department of Environmental Affairs
69.	OPD 67	       __ BLA: J Poswa, S.C.
70.	OPD 68	       __ Institute for Security Studies
71.	OPD 68A	       __ Proposal paper: Durban Conference
72.	OPD 69	       __ Financial Services Board
73.	OPD 70	       __ Office of the Premier: Northern Province

THE FIRST PART OF THIS SUMMARY WILL FOCUS ON GENERAL COMMENT WITH REGARD TO THE BILL, THE SECOND PART OF THE SUMMARY ON THE SUBMISSIONS CLAUSE BY CLAUSE:

GENERAL

OPD 2A (Banking Council of South Africa):
Information sharing:
Banks are moving in a multi-focus direction in order to more comprehensively meet consumers’ financial needs.  Financial institutions are legally required to be organised into separate legal entities and are not free to structure themselves as they may wish.  It is recommended that the definition of “private body” should be amended to include reference to “a financial services group”.  A “financial services group” should also be defined as a holding company as defined in the Companies Act, 1973, and its wholly owned subsidiaries, provided that the subsidiaries are a bank, registered insurer, unit trust scheme, scheme, stock exchange or any trustee.  This will put wholly owned subsidiaries on the same footing as other private bodies as far as information usage and consent are concerned.

OPD 3 (Consumer Institute South Africa):
Whistle-blower protection should also cover private bodies.

OPD 5 (NEDCOR):
The individual's right to object to the use or disclosure of personal information is applauded.  The creation of another statutory Authority will be costly and preference is given to the Human Rights Commission managing the piece of legislation.

OPD 7 (Leisure Books):
The international precedent of the right to object to personal information being used or disclosed is well established and entrenching the rights of the business sector and that of the individual through legislation is supported.  Support is also expressed for using the Human Rights Commission.

OPD 8 (National Postal Forum):
The wording of the Bill is more applicable to manual rather than computerised databases and does not provide for future changes in technology.  The European Union and all its trading partners are required to have adequate data protection regimes, conforming to the European Data Protection Directives, with effect from 24 October 1998.

For a balance to be struck between the interests of the individual and private bodies it is submitted that the Bill should reflect the following internationally accepted principles:
*The use and disclosure of personal information (which should include information which is already in the public domain) in pursuit of legitimate interests and which may be limited by the individuals on request.
*Control over information should be subjected to internationally accepted norms of control.  
*Individuals should be made aware of their right to limit the use of information and should be able to exercise the right in an accessible and uncomplicated way.
*The individual’s right should be subject to standard business and contractual practices.

OPD 9 (Direct Response Marketing):
It is submitted that the “opt-out” clause effectively protects the rights of the individual.

OPD 10 (Attorney-General: Transvaal):
The disclosure provisions laid down in the Shabalala-judgment leads to the submission that the Prosecuting Authority should be exempted from the provisions of the Bill.  In view of the NDPP who can be instrumental in the shaping of regulations in terms of the Criminal Procedure Act, 1977, it is recommended that the Bill should only state that the matter must be governed by regulations in terms of the Criminal Procedure Act, 1977.  Overtaxed prosecutors will to some extent be regarded as information officers which will not be in the interest of justice.  If confidential information supplied by persons is not protected it will be detrimental to the process of justice and the investigation of crimes.  Due to the complex nature of the Bill it will require Information Officers to be legal experts.  

OPD 11 (WITS):
In this submission the inclusion of clause 10 of the 1996 draft is recommended.  The Portfolio Committee’s attention is also drawn to three law review articles.  A brief summary of the three articles will be provided (the 1997 and 1998 articles are of special interest and should be perused in its entirety if time permits) after which a summary of the submission with regard to the recommendation in respect of clause 10.
L. Johannessen et al, “A Motivation for Legislation on Access to Information”, 112 SALJ 45 (1995)
This article is a summary of the proposals made by a research team in June 1994 on South African Freedom of Information legislation.  The research by the team entailed a comparative study of freedom of information legislation in the USA, Canada and Australia and draft legislation from India and the United Kingdom.

J White, “Open Democracy: Has the Window of Opportunity Closed?”, (1998) 14 SAJHR 65 — 76
The article draws attention to changes brought about to the 1996 draft by Cabinet.
The Open meetings chapter was deleted from the draft.  It is submitted that the absence of “open meetings” provisions are contra the Constitutional principles of sections 41(1)(c) and 195(1) and (3).
The Publication of decision-making guidelines principle formed part of the 1996 draft as clause 10 thereof.  Clause 10 required that binding and interpretive guidelines were to be made publicly available.  It is submitted that any administrative action which “confer any right, privilege, liability et cetera” cannot be lawful without the decision-making guidelines not being made public.  By not doing so the rule of law underpinning the Constitutional right to lawful administrative action will be violated.
The exemptions section and the necessity of harm provision are also identified as an area of concern.  It is submitted that the deletion of the “necessity of harm” provision creates the possibility that requests for information will be dealt with by way of a system of classification.
The blanket exclusion of Cabinet might be viewed as unwillingness on the part of Government to meet its obligations in respect of the principles of open democracy.  Withholding access to information will have to be justified in terms of section 36, the limitation clause of the Constitution.
The Open Democracy Commission and Information Courts were replaced by the Human Rights Commission and High Court respectively.  The ability of the Human Rights Commission to meet its proposed obligations on a budgetary and personnel level is questioned and the Bill does not expressly provide for budgetary implications.  Open democracy cases will be dealt with on the same basis as urgent applications by judges designated by their respective Judges President.  It is recommended that particular judges should be chosen as open democracy judges to ensure that they become experts in the field.

J Klaaren, “Constitutional Authority to Enforce the Rights of Administrative Justice and Access to Information”, (1997) 13 SAJHR 549 — 64
The aim with this article is to advocate a structural and institutional mode of interpretation to assess the constitutionality of the relevant legislation under discussion.  It is also recommended that a procedural test should be utilised to establish wether the legislation meets the requirements of the transitional provision (item 23).  It should be taken that item 23(1) has been satisfied, and the implications of item 23(3) avoided, where the initial legislation purports to satisfy the duty to enact the envisaged legislation.

Clause 10 of previous draft
It is submitted that the Bill in its present form fails to give effect to the right of access to information.  It is recommended that the publication of binding decision-making guidelines should be made compulsory.  The motivation for advancing the inclusion of the publication requirement is: (i) it forms part of international best practice; (ii) the state  is obliged to make the law publicly available on its own accord and to guard against the “secret law” that non-published but binding guidelines constitute; (iii) the right to lawful administrative action dictates that decision-making guidelines must be made publicly available; (iv) the infringement of a substantive right can only be justified in terms of the limitation clause where it is done on the basis of a law of general application (where a limitation is invoked on the basis of a decision-making guideline and without it being publicised it would not qualify as law of general application).

OPD 11A:
The Bill will have retrospective operation because clause 1(xxiii)(b)(i) provides that a record may be created before the commencement of the Act.
Clause 38 is an exemption for commercial activities of governmental bodies.  Intellectual property concerns and commercial competitiveness should be safeguarded and will be conducive to a level playing field for public enterprises operating on a commercial basis.
It is recommended that an alternative enforcement mechanism, such as a tribunal in the form of a specialised unit within the Human Rights Commission, should be considered.  

OPD 12 (Tupperware of Southern Africa):
Concern is raised with regard to the capacity of the Human Rights Commission to manage the Act.  However, it is still preferred to creating another "revenue draining" statutory body.  The right to object to the disclosure of personal information is supported and viewed as sufficient protection for the rights of the individual and the private body.

OPD 13 (Centre for Conflict Resolution):
The previous draft of the Bill included clause 46 which provided that “No provision in this Chapter shall be interpreted to require or permit the information officer of a governmental 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 was granted.” .  It is recommended that the provision should be included to clarify the obligation on the information officer to consider the merits of every request with regard to the potential harm which may be caused by disclosure of a particular  record.

The omission of the provisions relating to "open meetings" is supported but it is recommended that the grounds on which the National Assembly and the NCOP may exclude the public from a sitting of one their committees must be included in the Bill.

It is also recommended that any failure by an information officer to comply with the provisions of the Bill should be made an offence in terms of clause 85.

OPD 14 (Deputy Minister for Intelligence):
There is no clause in the Bill to provide the intelligence services with a remedy in the event of damage caused to a third party (i.e where information is collected, disclosed to a third party and at a future date it appears to be incorrect).

OPD 15 (South African Council of Churches):
The aim of these comments is to draw attention to two aspects of the Bill, to wit,  the Bill in relation to section 32 of the Constitution and the matter of open meetings contained in earlier drafts of the Bill.
Section 32 of the Constitution:
Section 32(2) read with item 23(1) of  Schedule 6 requires legislation to be enacted by 4 February 2000.  The Bill is intended to give effect to the right contained in section 32(1)(a) and partial effect to the right in section 32(1)(b).  The Human Rights Commission will undertake comprehensive investigation and a consultation process in order to develop recommendations regarding legislation that would give effect to section 32(1)(b).  It is submitted that the attempt to implement the sections 32(1)(a) and (b) rights in stages would lead to confusion, frustration and litigation and would impede the objectives of openness and protection of rights.

It is submitted that the Constitutional impact of the Bill’s enactment is not clear.  Two options exist, to wit, (i) lack of giving full effect to the rights contained in section 32(2) will render the interim constitutional provision operative until Parliament enacts legislation giving 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;  (ii) 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.  The opinion is held that the Bill activates a part of section 32(1) is not viable.  Section 32(2) makes no provision for separating the rights to public and private information or enacting them at different times.  It is recommended 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.
Open meetings
One of the methods of ensuring 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. It is submitted that, apart from public access to meetings of the National Assembly, NCOP, Provincial Legislators and Municipal Councils, more comprehensive legislation is needed to ensure that the provisions of sections 41 and 195 of the Constitution are applied consistently to all state policy making bodies.  Early drafts of the Bill included an “open meetings” chapter which excluded access to Cabinet meetings.  It is submitted that public access to meetings of state policy making bodies is consistent with the spirit of Constitution and an essential component of open democracy.  It is recommended that a simplified version of the relevant chapter should be included in the Bill in order to establish the right of access.  If a decision is taken against reincorporation, then the title of the Bill should be changed to the “Freedom of Information Bill” to accurately reflect scope of Act.
OPD 15A
Privately held information:
Even where legislation gives partial effect to section 32(1) it will activate the entire clause.  This will result in the entrenchment of a right to privately held information with no mechanism to regulate the form and manner of that access.

“Right to know” principle:
Important information should be actively disseminated, the majority of South Africans do not have the resources and capacity to engage in an adversarial process to obtain information.  Clauses 6 and 8 are welcomed but should be expanded to more types of governmental records and privately held information.
Whistleblowers:
Protection should be extended to the private sector and the Bill should provide for a mechanism to give practical and other support to potential whistleblowers.
Enforcement:
Provision should be made for a procedure aimed at conciliation and mediation which must be an inquisitorial procedure.  An Information Commissioner, tribunal or Ombudsman should be introduced.
Exemptions:
The exemptions should be drafted in plain language.  Exemptions with regard to information concerning individual persons and trade secrets and confidential information are too broad.  Clauses 2, 12 and 43 impact on existing statutory rights to information and should be rewritten to ensure that the legislation most favourable to access must be followed.
Necessity of harm:
It is submitted that the “necessity of harm’ test is important and should be re-introduced to prevent the unreasonable refusal of information.
Decision-making guidelines:
The clause dealing with decision-making guidelines should be re-introduced and is “particularly important if the chapter providing for open meetings is not reinstated in the Bill”.
OPD 15D
Section 32(2) falls away and suspended section 32(1) automatically comes into operation if Bill is not enacted timeously.  Holders of information on a horizontal level will have little guidance with regard to disclosure, or otherwise, of information.  Bill must include more detailed provisions regulating horizontal application.  In view of deadline the following are recommended:
Commitment to enact legislation regarding privately held information.
Incorporate set of provisions relating to privately held information.
Consider implications, such as review and enforcement mechanisms and the whistle-blower provisions with regard to horizontality.
See pages 4 to 6 for recommended amendments.

OPD  16 (Freedom of Expression Institute):
There is no reason why media companies should be treated differently to other companies.  However, journalists and their sources should be protected from unnecessary invasion and it is submitted that existing legislation and the common law are sufficient to assist an aggrieved party or someone who believes that access to information will enable them to exercise their rights.  Confidentiality is a fundamental part of ethics involved in the media and the reasons behind confidentiality are the following:
*Element of danger — a journalist being compelled to reveal sources (section 205 of the Criminal Procedure Act, 1977) can place his or her life in danger, his or her future as a journalist could be jeopardised and could be seen as doing the work of the police.
*Defamation may be an area where disputes could arise but it is argued that in a defamation suit the normal rules of discovery in the civil procedure are available to the plaintiff.
*A suspected criminal can effectively close down an investigative activity (not only for media but also for police) and stop information flowing to the public.
*Financial considerations - investigative journalism is expensive and time consuming.  Access to  information at a crucial stage could jeopardise a journalist's livelihood and eliminate the exclusive nature of an investigation.  This might have an effect on the decision of media institutions to finance future investigative reporting.

It is submitted that journalists and their sources should be protected from unnecessary invasion.  Sources can be defined as all material, the disclosure of which would either inhibit a flow of information or endanger personal security and, inter alia, include the identity of confidential sources, material which would reveal the identity of sources and material which, if disclosed, may attract retaliation.

It is recommended that in view of section 32(1)(b) of the Constitution the various types of information should not be mentioned.  It would be more acceptable if the clause outlines only the broad parameters of the right.  It should be left over for the courts to give content to the relevant right.
OPD 16A:
The “Open meetings” and “decision-making guidelines” provisions should be included in the Bill.  Cabinet should not be excluded and other clauses exempting government remain too broad.
OPD 16B:
See p 2 to 5 for recommended amendments with regard to horizontal application.
The word “must” in provisions relating to mandatory non-disclosure should be replaced with “may”.

OPD 17 (Judge PJJ Olivier):
The heading "whistle-blowers" in Chapter 5 is unusual but it is probably a term that will convey the legislator's intention to the public.  

OPD 22 (Attorney-General: Eastern Cape):
The position of information officer, will require a skilled lawyer, which will have to be a full-time position to keep track with the procedures and the great number of applications for information which are expected.  The availability of suitable candidates and adequate funding at provincial and local spheres of government is doubtful.  Administration of the cumbersome procedures of the Bill will lead to problems and will be counter-productive with regard to the line functions of departments where officials have to attend to requests for information at the expense of primary tasks that have to be attended to.

OPD 23 (Transnet):
It is submitted that due to Transnet’s unique position, access to information by its competitors may lead to such information being used against Transnet.  Uncertainty will apply with respect to information relating to existing or planned ventures between Transnet and other bodies.  Confidentiality agreements may be superceded by the precedence of legislation over contractual arrangements.  Transnet should be completely exempted from the Bill.

OPD 25 (ESKOM):
Clause 1(1)(v) includes a public enterprise in the definition of governmental body.  The inclusion is based on the “traditional” role of public enterprises.  Section 195 of the Constitution separates the terms “organ of state” and a “public enterprise”.  It is further submitted that in terms of the Draft White Paper on the Energy Policy, the government contemplates a competitive market in this sector.  A public enterprise cannot be placed in the same position as a governmental body where additional obligations are placed on it while its private sector competitors are not subjected to the same obligation. 

OPD 26 (Environmental Justice Networking Forum):
Access to government held information concerning the environment and risks thereto is contained in the National Environment Management Act, 1998, (NEMA).  It allows the Minister of Environmental Affairs and Tourism to draft regulations allowing for access to privately held information.  These provisions lapse when the Open Democracy legislation comes into effect.  The Bill will have to include certain aspects of the NEMA, namely:
*The definition of commercially confidential information.  Information about emissions and waste streams should be exempt from being described as commercially confidential.
*The right of the Minister to make regulations about the disclosure of environmental information held by private persons.
*The right of government to obtain from individuals information about the environment and emissions into the environment.
It is submitted that “public disclosure of information about the environment” will be a cost effective mechanism of government control.
OPD 26A (Legal Resources Centre):
The Bill should include the provisions of section 31(1) of the National Environmental Management Act, 1998, which lapses when the Bill becomes an Act or in the alternative the Bill should provide that section 31(1) of NEMA continues to have effect.

OPD 27 (NADEL):
In a country with limited resources the Bill should take a shift from “freedom of information” to a “right to know” model.  The need for the horizontal application of the Bill will protect whistleblowers in the private sector.  Open meetings provisions should be reincorporated in the Bill.  An alternative enforcement mechanism such as a tribunal system should be considered.  Disclosure of governmental decision-making guidelines should be included in the Bill.  Grounds for exemptions should be drafted in plain language.
Chapter 2
Exemptions must be drawn as narrowly as possible to safeguard the interests that the exemptions protect.  Only sensitive information should be exempted.  Information should only be exempted where disclosure will cause real harm.  Information which falls within the ambit of an exemption should be made subject to a public interest override.
Necessity of harm
It is an important test and will prevent unreasonable refusal of disclosure.

OPD 28 (Human Rights Committee):
The high rate of illiteracy will have to be addressed by introducing measures to actively assist citizens to obtain information.
The Bill should aim at “the greatest possible openness of government” which would require narrow and well-justified exemptions, real harm exemption only, public-interest override and a principle of maximum disclosure as interpretive guideline.  The “disclosure of governmental decision making guidelines” provision should be re-introduced.  A shorter time period for response in respect of “already packaged” information should be required.  The Bill provides for access to information on request, certain categories of information should be made automatically available (the “right to know” approach).
The “open meetings” provisions should be re-introduced.  A tribunal system, which would be a cheap, speedy and accessible enforcement procedure, is recommended.  Protection for whistleblowers in the private sector should be provided for. 

OPD 29 (IDASA):
External review by a  High Court is expensive, inaccessible and intimidating, and should be replaced by a tribunal system which are inquisitorial, informal and cheap (existing infrastructures can be used and the department who is subject to appeal should contribute to overall running costs).

OPD 30 (Black Sash Trust):
The “open meetings” provision should be included in the Bill (provisions should be made more flexible with provisions for special meetings and emergencies).
In the context of hierarchical nature of the South African government, the information officers to be appointed should be properly empowered (sufficiently senior).
The framework of the Bill of “freedom of information” should shift to the “right to know”.  The Bill should provide for the pro-active dissemination of certain categories of information and privately held information.
The external review by the High Court should be replaced by an alternative such as a tribunal.

OPD 31 (Southern African Catholic Bishops’ Conference):
Objection is made with regard to the deletion of the “open meetings” clauses.  Access to privately-held information is limited to information which is personal to the applicant and does not “do justice to section 32(1)(b) of the Constitution”.
The omission of the “necessity of harm” exemption override is criticised on the basis that it will obstruct the free flow of information.
An alternative enforcement mechanism should be considered, the High Court as forum is expensive, time-consuming and formal.

OPD 32 (Human Rights Commission):
The Bill limits access to information held “about the requester him or herself”, but any information falls within the ambit of section 32 of the Constitution.
If the Bill is passed timeously it may provide for “reasonable measures to alleviate the administrative and financial burden on the state”, if the legislation is passed after the three year period it would have to rely on the general limitation clause with regard to exemptions to the right.
Alternative enforcement mechanisms such as a tribunal system, ombudsman or information commissioner should be considered.
The provisions in the Bill relating to whistleblowing are too brief and need more clarification.
The provisions of the Bill, especially dealing with exemptions, should be drafted in plain language.
An increase in the budget of the Commission is foreseen in order to meet its responsibilities in terms of the Bill.

OPD 33 (COSATU):
The Bill should reflect the “right to know” principles to accommodate the needs of the disadvantaged communities.  It is important that the government should be obliged to disseminate certain categories of information (that goes beyond the purview of clauses 6 and 8 of the Bill), for example environmental information.
The Bill is an overarching freedom of information statute which must set standards for information disclosure in relation to other legislation, for example the Companies Act, 1973, which places limited disclosure duties on companies.
The Bill should clearly define the meaning of “any rights” referred to in section 32(1)(b) of the Constitution.  It is recommended that the definition should include constitutional, statutory and common law rights.
Protection for whistle-blowers should be extended to the private sector.
The “necessity of harm” provisions should be re-introduced.
An intermediate procedure between the internal and external review procedures should be considered.  The establishment of an Open Democracy Appeals Board based on the Water Tribunal established in terms of the National Water Act, 1998, is recommended.
The Bill should be drafted in plain language.

OPD 34 (Telkom):
Telkom was incorporated as a public company with limited liability and is governed by its Memorandum and Articles of Association.  It is submitted that Telkom is a “public enterprise” within the meaning of section 195(2)(c) of the Constitution and not a section 195(2)(b) “organ of state”.  Telkom is a juristic person and falls within the ambit of section 32(1)(b) of the Constitution.

OPD 36B (Committee for Private Data Base Users):
Opinion by B Currin on section 32(1)(b) of the Constitution.  The section 32(2) requirement does not impact on the substantive right in section 32(1) of the Constitution.  The words “give effect to the right” of the section 32(2) requirement do not imply that the section 32(1) right depends upon the legislation envisaged in section 32(2).  There is at present no constitutional right of access to private information due to the operation of the transitional arrangement (Item 23(2) of Schedule 6 to the Constitution).  Constitutional Court concluded in its certification judgment that section 32(1) of the Constitution will come into effect, irrespective of compliance with section 32(2), at the latest 3 years after the Constitution came into effect.  An absolute duty to enact the measures envisaged in section 32(2) does not exist.  The words “must be enacted” in Item 23(1) of Schedule 6 refer to the 3 year period.  The question arises as to who will have to decide what constitutes total compliance.  Parliament might be correct in its assessment.  It will, however, impact on “the extent to which the Constitutional Court will have to provide its own guidelines in giving effect to the right:  The less legislation, the greater the burden on the Court.”.  It is also possible that Parliament might be of the view that the Constitutional Court will be better equipped to give meaning to the relevant words.

OPD 36C
The Bill substantially achieves its objective in providing public access to privately-held information.
Section 32(1) will come into operation in February 2000 irrespective of whether the Bill gives full effect in section 32(1)(b).  Section 32(1) does not depend upon the provisions of the Bill.

OPD 38 (N Alant and T Uys):
Then Bill does not provide for whistleblower protection in the private sector and does not protect the identity of the whistleblower.
It is submitted that the protection of whistleblowers is specialised function which should be vested in a single body.

OPD 39 (Department of Public Administration: UNISA):
The obligation to publish “binding directives and guidelines” should be included in the Bill.
“Open meetings” provisions are internationally regarded as an essential component of open democracy legislation and its absence from the Bill will “undermine” the values that the Bill should promote.
“In developed countries such as Canada and Australia an average of only 10 requests are being received and processed by governmental departments per month.”.  It is submitted that there will not be a high demand for information and existing public officials will be able to cope with the additional workload.

OPD 41 (SAHRC workshop report):
Horizontality
One main function of Bill is to give shape and form to the horizontal application of some kind.  Private and governmental sectors are different, horizontal provisions should not be copied from provisions relating to governmental sector.
Implementation
Bill should provide for training of heads of departments.  The Independent Broadcasting Authority and tertiary institutions should fulfill educational obligations.  No consensus whether Public Protector should share duties with SAHRC.
Archive legislation should provide for a positive duty to keep accurate records.  The destruction of a record that has been requested should be criminalised.
SAHRC should draft a preamble to the Bill.
Police, Defence Force, Health and Welfare should be allowed to develop streamlined procedures.
Information should be classified (information for immediate publication without delay; automatic publication after a specified time delay; information made available upon request).
Information officer should have discretion to charge request fee and Bill should stipulate criteria.
Bill should have full retrospective effect and should be drafted in plain language which can even be done after enactment.
Exemptions
External judicial body other than High Court should decide disputes.
No governmental body should be automatically be excluded but certain information should be excluded (test: an evaluation should be made assessing the consequences or the results of information being disclosed in a particular context).
Bill should be made more accessible to non-lawyers by making use of footnotes and flow-charts.
Appeal and review
Notice to third party requirement, the harm’s test should be re-introduced in the form of “in the opinion of the person considering the appeal, there will be potential prejudice to a third party, that person should notify the third party.”.
Concern was raised that the SAHRC may not be effective in rural areas where there are no offices.  Recommends a strict duty should be imposed on all information officers to notify applicants of the role of the SAHRC where access to information is denied.  Information which is easily accessible should immediately be made available.
Norms and standards should be included in Bill regarding internal appeals, for example, legal presentation, whether representations should be written or oral.  External appeals should be located in specialised section of Magistrates’ Courts (see last paragraph on p 99).

OPD 42 (Department of Land Affairs):
Government officials can be turned into researchers for a member of the public, irrespective of motive of requester and whether there is a broader public interest in supplying the information.  Access to information is important but is not the only important function of government.

OPD 45 (Johannesburg Stock Exchange — JSE):
It is unclear whether the JSE is a “government body”.  The JSE is a voluntary association with separate juristic personality.  JSE is only licensed stock exchange but the Stock Exchanges Control Act, 1985, does not provide JSE with monopolistic rights as envisaged in clause 1(1)(v)(a)(vi) of Bill.  It is also not clear whether exercises public power or performs a public duty.
Further comments are made on presumption that JSE is a government body.

OPD 48 (Lawyers for Human Rights):
Objection is raised with regard to High Court or even Magistrates’ Court as enforcement mechanism.  Legal advice should be provided in rural areas by way of paralegals.  A paralegal-scheme is cost-effective and trustworthy and disputes may also be resolved through the intervention and advice of paralegals.
Another consideration may be to include the Public Protector who may serve as a neutral entity to review a dispute upon conclusion of an internal appeal.
It is also recommended that schedules, diagrams, footnotes or flow charts should be included in the Bill in order to render its provisions more accessible.

OPD 49 (Legal Aid Board):
Members of the public convey confidential information to the Board in attempting to receive legal aid.  Many of the Board’s employees and agents are not practising legal practitioners and the Board is not a legal firm.  Provision should be made to protect the interests of the Board’s clients.

OPD 51 (Department of Agriculture):
A penalty clause should be included for requests unnecessarily indicated as urgent.
Provision is made for assistance to the SAHRC but a similar provision does not exist with regard to state departments experiencing financial constraints.
The prescribed fees that are collected have to be paid over to State Expenditure which will place a departments under financial pressure.
No provision is made to compel private companies to give access to information and it will be impractical to obtain a court order. 

OPD 53 (Provincial Administration: Western Cape):
The appointment of information officers and the system for processing requests might “hinder the administration of the Western Cape Provincial Government” and responsibilities of the head of a governmental body will impact on the workload of the administration.  The Bill will impact on the administrative burden at the expense of primary functions, for example, responsibilities in terms of clause 6.
Too many exceptions in the Bill will lead to a “bad” system of public administration.  It is stated that this provincial government will need time to build the necessary capacity to administer the Bill.  Poorly literate persons will require assistance to such an extent that it will add to the burden imposed on the State.
The relationship between the two Bills, clauses 6, 42 and 44 of the Bill and clauses 13 and 14 of the Administrative Justice Bill, should be considered and clarified. 

OPD 57 (Minister of Justice):
Flow charts may be used to promote a better understanding of the provisions of the Bill.  Flow charts may be effective in explaining procedural matters and the interrelationship between internal appeals (clauses 67 to 71) and applications to High Court (clauses 72 to 81) may be explained in this manner.
An alternative enforcement mechanism could be too costly and could delay the implementation of the Bill.
Attention is drawn to the enforcement mechanisms provided for in the equality and administrative justice draft legislation.

OPD 58A (Department of Justice):
The use of footnotes may be considered to promote a better understanding of the Bill.  It should be provided that footnotes do not form of the legislative text and it should be limited to cross-references between relevant clauses of the Bill.

OPD 59 (Department of Finance):
Designation of information officers and the provisions relating to cost recovery will reduce financial pressure on government bodies.  A gradual implementation of the Bill will assist in capacity building in government bodies.  The time period for response to requests should be increased.
Bill does not adequately limit access to financial information concerning companies and individuals used for determining policy and regulatory measures, for example, insider trading and exchange control surveillance.  It is recommended that Committee consult with Financial Services Board and Reserve Bank. 

OPD 64A (Open Democracy Campaign):
Section 32(2) of the Constitution will automatically fall away if no legislation is passed before 4 February 2000 and the section 32(1) right automatically comes into operation.  This conclusion is based on paragraphs 82 to 87 of the certification judgment, Constitutional Principle ix would not have been satisfied if the suspension of section 32(1) had not been restricted to a fixed period and further that an alternative reading of the relevant provisions would result in an absurdity.
It is also submitted that if the legislation does not give full effect to the right in section 32(1) it will not qualify as section 32(2) legislation.

OPD 68 (Institute for security Studies):
Whistle-blower provisions should be extended to private sector and should also apply to disclosure about public safety and environmental risks.
It is recommended that there should be four types of disclosure, to wit, to obtain advice from a lawyer or union; to raise the issue with a designated body and to disclose the issue more widely.  The test for the first three disclosures are that the whistle-blower is acting in good faith and with reasonable belief.  An additional test for wider public disclosure is recommended.
Include the Public Service Commission, the national Director of Public prosecutions and any special Investigating Unit in list of designated bodies.
Internal disclosures should be protected where there is no formal reporting procedure.
OPD 68A
The UK Public Interest Disclosure Act, 1998, incorporates three important aspects, to wit, it nullifies the employee’s duty of confidentiality towards an employer (disclosure is not protected if the person commits an offence); it protects the disclosure of extra-territorial issues (multi-national companies) and it also establishes an employee’s right not to be subject to detriment. 

SUMMARY OF SUBMISSIONS CLAUSE BY CLAUSE

CLAUSE 1
(Interpretation)

OPD 2 (Banking Council of South Africa):
The definition of “inaccurate” refers to “incomplete” and disputes could arise in practice over the definition (it is submitted that all information or records are likely to be "incomplete").  It is recommended that "inaccurate" be amended to include "established under circumstances of reasonable care having regard to the purpose for which the information is prepared”.  The "reasonable care" qualification is in line with international precedents as found in Australia and New Zealand.

OPD 3 (Consumer Institute South Africa):
Clause 1(1)(v) limits the exercise of public power to governmental bodies but certain private bodies are involved in activities that pertain to matters of public interest and the definition should be extended to all such bodies.  The words “public body” should be used in the place of “governmental body”.

OPD 13 (Centre for Conflict Resolution):
The definition of “governmental body” excludes Cabinet.  Constitutional Principle IX of the Interim Constitution, the forerunner of section 32 of the 1996 Constitution and the Open Democracy Bill, states that “provision shall be made for freedom of information so that there can be open and accountable administration at all levels of government”.  Section 92(2) of the Constitution provides that “members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions”.  It is submitted that access to information is a crucial element of accountability.  Cabinet should be included in the definition of "governmental body".  It is acknowledged that full disclosure of Cabinet's business will not be in the interest of good governance but Chapter 2 of the Bill affords sufficient protection and can always be amended to address Cabinet's concerns.

OPD 23 (Transnet):
Transnet is a public enterprise which have to compete in the commercial marketplace and should be excluded from the definition of governmental body.
OPD 23A
Transnet as state owned enterprise is included in definition of government body in clause 1(v)(a)(iii) and may be compelled to disclose sensitive commercial information to competitors to its own detriment.  It is submitted that, irrespective of the protection afforded by clause 38, the administrative process as set out in the Bill of grounds for refusal may be time consuming (see p 3 for recommended inclusion of “state-owned enterprise”).

OPD 26 (Environmental Justice Networking Forum):
Environmental information should be defined and the definition should include a reference to the state of elements of the environment, factors such as substances, energy, noise, radiation and the state of human health and safety.

OPD 27 (NADEL):
The exclusion of private bodies that perform public functions, the courts and judicial officers in clause 1(2) is a matter of concern.

OPD 34 (Telkom):
The definition of “governmental body” expands the definition of “state” beyond that of an “organ of state” in section 239 of the Constitution and disregards section 195(6) of the Constitution.  It is recommended that Telkom and other similar public enterprises be exempted by regulation in terms of the Bill or be exempted from the Bill itself.

OPD 35 (Credit Bureau Association):
Clause 1(1)(viii) defines inaccurate which include the word “incomplete” which is too broad and should be defined with “having regard to the purpose for which the record or information will be used or disclosed”.

OPD 36 (Committee for Private Data Base Users):
The definition of “inaccurate” should take account of the nature and intended uses of information.  The current definition will lead to disputes as to what constitutes a “complete” record.

OPD 41 (SAHRC workshop):
Definition of “record” should distinguish between information which must be requested in the prescribed form and information which can be requested in manners other than the prescribed form.

OPD 42 (Department of Land Affairs):
Definition of “government body” is wide and it is not clear whether it includes bodies such as schools.

OPD 44 (Law Society of South Africa):
The LSSA is an institution exercising a public power or performing a public duty in terms of legislation and qualifies as a government body.
With regard to the exclusion of the judicial branch of the State the Bill is inconsistent with the draft Administrative Justice Bill.  This will lead to the inconsistent situation where the judiciary will be bound to proceed fairly and to provide reasons for its administrative actions, but will not be bound to provide access to information.
The duty of the judiciary, as branch of the State, in terms of section 32(1)(a) will have to be balanced with section 165(2) and (3) of the Constitution.  The judiciary should be included in the Bill insofar as it exercises public powers other than the judicial authority granted to it by section 165(1) of the Constitution.
Constitutional Principle ix requires freedom of information so that there can be open and accountable administration at all levels of government.  The blanket exclusion of Cabinet is a failure to give effect to the Constitution.
Horizontal application of the Bill can be achieved by amending definition of “private body” in clause 1(xxi), by deleting the words “in possession of or controlling a personal information bank”.
The open meetings chapter should be reintroduced in order to ensure that the Bill complies with the requirements of the Constitution.

OPD 45 (JSE):
JSE is entirely privately funded, no state administration has any authority to appoint JSE officers, JSE is not affiliated to any government body, administration or organisation.
Clause 1(1)(v) should be amended to read “ ... but does not include the Cabinet, a court, a judicial officer, a stock exchange licensed to carry on business as such in terms of the Stock Exchange Control Act, 1985 or a body regarded as being part of ...”.
See paragraph 3.2.1 to 3.2.3 for further motivation for exclusion, it is recommended that clause 1(1)(xxi) be amended to read “ ... a personal information bank, but does not include a stock exchange ... Stock Exchanges Control Act, 1985 ;”.

OPD 46 (Minister of Health):
Heading would reflect content of clause better if word “Definitions” is used.

OPD 50 (Public Service Commission):
Clause 1(1)(vi)(a)(i) should refer to Schedule 1 to 3 of the Public Service Law Amendment Act, 1998 (Act 86 of 1998).
Clause 1(1)(xxiv) and (xxvi) refer to requester which is not defined.  A definition of requester should include a person acting in his or her own interest; association acting in the interest of its members; person acting on behalf of another person who is not position to seek relief in own name; and a person acting as a member of or in the interest of a group or class of persons or acting in public interest.
Clause 1(1)(xxxii) defines “working day” but Bill refers to “days”.  The term “working day” should be consistently used in the Bill.

OPD 62 (South African Revenue Services):
Information protected by the secrecy provisions provided for by Acts administered by the SARS as set out in Schedule 1 of the South African Revenue Services Act, 1997 (Act 34 of 1997), should be excluded from provisions of Bill.  Disclosure in terms of the Bill will inhibit full disclosure by taxpayers, prejudice tax compliance and the broadening of the South African tax base.  Administrative impact of Bill will hamper tax administration and revenue collections.

OPD 63 (Department of Minerals and Energy Affairs):
Application of clause is too wide.  Certain issues of access to information should be dealt with in specialised legislation, for example, geological, prospecting and mining information should be addressed in legislation dealing with mineral matters.  This clause will impact negatively on State’s move towards making information publicly available.

OPD 65 (South African Society of Archivists):
Definition of non-commercial requester (clause 1(1)(xii)) should be broadened to accommodate archival researchers whose research is not for commercial purposes.
The words “in the possession or under the control of” in clause 1(1)(xxiii)(i) require clarification.  It is submitted that it cannot be the intention to include archival collections in the control and under professional control of a governmental body (a university library) but remain property of another person or organisation.

OPD 67 (J Poswa, S.C - o.b.o BLA):
Concern is raised with regard to large number of exemptions including the courts and judiciary.  BLA supports submission by NADEL.

CLAUSE 2
(Application of Act)

OPD 16B (Freedom of Expression Institute):
Other legislation dealing with access and all Acts dealing with a greater amount of access should prevail over the Bill.  Clauses 2 and 12 should be merged for the sake of legal certainty.

OPD 26A (Legal Resources Centre):
The meaning of this clause should be clarified and may be merged with clause 12 and should also state that the legislator may enact other legislation giving greater access to information.

OPD 33 (COSATU):
Clauses 2, 12 and 43 deals with the relationship between the Bill and other legislation.  Provision should be made to ensure “that where there is conflict between legislation, the legislation most favourable to access must be followed”.

OPD 47 (Public Protector):
Section 7(2) of the Public Protector Act, 1994, provides for the non-disclosure of the contents of any document in the possession of the Public Protector.  It is not clear whether clause 2 of the Bill supercedes section 7(2) of the Public Protector Act, 1994.

OPD 50 (Public Service Commission):
This clause should be revised to make it clear that “if any other Act is inconsistent with this Act, this Act will prevail.”.

OPD 53 (Provincial Administration: Western Cape):
This clause is problematic and will result in legal uncertainty, for example:
Section 16 of Labour Relations Act, 1995
Section 31 of National Environmental Management Act, 1998
Section 7 of legal Deposit Act, 1997
Protection of Information Act, 1982, as a whole
The Bill’s position in relation to other legislation should be clarified especially where the provisions dealing access to information is more user friendly in existing legislation.

OPD 65 (South African Society of Archivists):
Clauses 2 and 12 should state clearly that existing rights of access to information in terms of other legislation should not be “diminished” by the Bill.

OPD 69 (Financial Services Board):
The clause will have the effect that the Board will have to revisit legislation such as the Financial Services Board Act, 1990, and the Inspection of Financial Institutions Act, 1998, in order to establish whether any amendments or repeals have to be effected.

CLAUSE 3
(Objects of Act)

OPD 3 (Consumer Institute South Africa):
The restriction of the terms “good governance’ and “commercial confidentiality” in clause 3(1)(a) on the right to information which relates to the quality, suitability or safety of the goods or services supplied by public bodies should be considered.  A precise definition should be given to “good governance” and “commercial confidentiality” or should be deleted in the light of clause 38 that is broad enough to encompass the terms. 

OPD 34 (Telkom):
Objects of the Bill must conform with the Constitution and the limitation that “information should be provided without jeopardising the commercial and operational activities of governmental bodies” should be included in clause 3(1)(a).

OPD 46 (Minister of Health):
Clause 3(2) provides for interpretation and can be better provided for under its own heading.

CLAUSE 4
(Designation of Information Officers)

OPD 2 (Banking Council of South Africa):
Clause 4(1) imposes a duty on governmental bodies and allows for no discretion in the application of the provision.  It is recommended that “must” be replaced with “should, as may be required”.

OPD 23 (Transnet):
Productivity will be affected by the need to employ additional personnel while Transnet is in a process of transformation.  Critical operational areas of the company may be affected by an individual who is on a “fishing expedition”.

OPD 25 (ESKOM):
The Human Rights Commission should be required to review existing procedures within organisations (taking into account financial factors and substantial compliance with the Bill) and if acceptable should not require the creation of infrastructures and systems.

OPD 34 (Telkom):
Telkom has more than 58 000 employees and may need to employ numerous information officers which will add to administrative costs affecting in turn its business efficacy.  It is submitted that the clause 4(3) delegation of powers is not feasible.  It would be preferable to delegate such powers to the information officers.

OPD 41 (SAHRC workshop):
Should include a provision relating to suitability of information officer (will prevent appointment of junior persons).

OPD 46 (Minister of Health):
Structures could be simplified by creating an office in the Government Communication and Information System.  Two subsections, one dealing with designation and the other with delegation would suffice.

OPD 51 (Department of Agriculture):
Posts for an information officer and deputy information officers will have to be created and duplicated on the service establishments of those parastatals linked to the Department (suffering financial constraints).

OPD 52 (Mpumulanga Provincial Government):
Provision should be made, in the case of provincial administrations, for a central information officer to act on behalf of the 10 or 11 provincial departments which will ensure consistency within the administration and a co-ordinated approach regarding requests for access.

OPD 63 (Department of Mineral and Energy Affairs):
Department receives many requests for access to prospecting and mining potential information, designation of information officers may create a bottleneck in relaying information to respective clients (might influence views of investment climate in South Africa).

CLAUSE 5
(Guide on how to use Act)

OPD 2 (Banking Council of South Africa):
The requirement in clause 5(2)(c) relating to the manner and form in which a request for access to information must be made will be impossible to comply with in a diversified and competitive private sector.  It is recommended that clause 5(2)(c)(ii), and reference to “a private body” in clause 5(2)(c)(iii) be deleted.

OPD 23 (Transnet):
The guide should provide an explanation that the Bill is based on section 32 of the Constitution and the implications thereof so as to prevent unnecessary enquiries to a large organisation (article 10 of Human Rights and Fundamental Freedoms should be included in the guide).  The Human Rights Commission should provide proper guidelines on the provisions of the Bill, so that when an application is made the individual is “coached” in the substantive and procedural aspects of the Bill which will ensure the efficiency of the process. 

OPD 42 (Department of Land Affairs):
Guide will be volumeous and costly containing information of at least 1 000 bodies.  The 12 monthly updating will be enormous task, information will have to be obtained from government bodies and compared with existing guide.  Guide will be useful to users but to include information of every government body (clause 5(2)(b)) “seems to over-kill.”.

OPD 46 (Minister of Health):
Only requires two subsections, dealing with publication of guide and the other with ways of making it available.

OPD 51 (Department of Agriculture):
The obligation to keep SAHRC updated with new information holds personnel implications for the Department.

CLAUSE 6
(Manual on functions of governmental body)

OPD 2 (Banking Council of South Africa):
Clause 6(2)(d)(ii) refers to “personal information bank”.  It is recommended that the word “bank” be defined in clause 1 or be described with “personal information” or “data” wherever it is used.

OPD 25 (ESKOM):
Public enterprises should be excluded from all provisions of the Bill that do not apply to private bodies.
Direct input by the public into the policy of an organisation should not be allowed, the Government should give effect to its policy either by its shareholding, legislation or by way of a regulatory authority.

OPD 41 (SAHRC workshop):
A provision similar to clause 6(6) should be made applicable to entire Bill.  Transitional arrangements should be included in Bill to allow for staggering implementation.

OPD 42 (Department of Land Affairs):
Level of detail is to vast and will require a great deal of time in analysing and preparing information, for example, a description of the subjects on which the body holds records and categories of records, and a description of all remedies which will necessitate an analysis of every statute, proclamation and regulation administered by body.  The requirement of annual re-publication “is either so vague as to be ineffective, or extremely onerous.”.

OPD 46 (Minister of Health):
Requires only two subsections, dealing with publication of manuals and the other with ways of making manuals available (what manual has to provide for should be included in regulations).

OPD 50 (Public Service Commission):
The clause require a manual while clause 9 of the Administrative Justice Bill requires that every organ of state should have a register and this appears to be overlapping.  It is recommended that this Bill, the Administrative Justice Bill and Labour Relations Act should be co-ordinated in order to avoid duplication.

OPD 51 (Department of Agriculture):
Cost implications are a concern, manual will have to be compiled by departmental officials or external contractors.

OPD 52 (Mpumulanga Provincial Government):
The provision found in clause 6(2)(d) does not apply to the private sector and the Bill therefore falls short on the openness principle with regard to the private sector.

CLAUSE 7
(Information in telephone directory)

OPD 42 (Department of Land Affairs):
Places a large burden on the relevant head, every government body that qualifies will
have to be identified.  Every telephone directory will include at least 40 to 50 extra pages with the additional financial implications.  Doubt is raised whether it is necessary for a Western Cape directory to carry the details of local councils in the Northern Province. 

OPD 43 (Department of Public Works):
Printing costs with regard to every telephone directory will be immense, a special directory servicing government bodies might be considered. 

CLAUSE 8
(Announcement of public safety or environmental risk)

OPD 3 (Consumer Institute South Africa):
Clause 8 is supported because it will promote the publication of information on products that were banned or withdrawn internationally or locally.

OPD 25 (ESKOM):
The position is unclear with regard to when disclosure should take place, degree of investigation and should only additional information be disclosed.  It is recommended that disclosure should be required from the responsible Minister.

OPD 26A (Legal Resources Centre):
The voluntary disclosure of information (right to know) is limited due to the privacy concerns of “third parties”.  A greater flexibility to deal with situations in which there is an “immediate risk or serious danger to the public or serious detriment to the environment” is called for and it is recommended that a general overriding provision of the time periods and procedures should be incorporated.  Disclosure should then take place “forthwith” or at least “as soon as possible”. 

OPD 46 (Minister of Health):
This clause is not directly relevant to title of Part 2 and could be better served with its own title.

OPD 43 (Department of Public Works):
Guidelines must be provided in respect of the discretionary power given to the head when deciding what is in the interest of public safety and environmental risk.
Clause 8(4) oral representations places a burden on government with regard to keeping of such representations.

OPD 66 (Department of Environmental Affairs):
Section 24 of the Constitution requires the protection of the environment through reasonable legislative and other measures that prevent pollution, promote conservation and sustainable development.  Access to environmental information and the duty to disclose information are internationally recognised measures for the protection of the environment.  Refer to page 2 of the submission for a comparison between section 31 of NEMA and the provisions of the BIll. 

OPD 70 (Office the Premier:  Northern Province):
Clause 8(4) only provides for a “reasonable period” within which representations may be presented by a third party.  A specific period should be provided for (see clause 45(2)).

CLAUSE 9
(Right of access to records of governmental bodies)

OPD 25 (ESKOM):
A record has to be disclosed where a governmental body is in possession of a record created by a third party and where the third party cannot or does not rely on Chapter 2 protection.
Retrospective application may be unfair where a third party departs from the view that a document was created on the understanding that it should not be freely available.
The qualification requiring a purpose for the information “exercise of a right or protection of an interest” should be retained.

OPD 52 (Mpumulanga Provincial Government):
It should be clearly outlined whether one governmental body would be able to request access to information from another governmental body (or in another or the same sphere of government). 

CLAUSE 10
(Use of Act for criminal and civil discovery of governmental bodies’ records excluded)

OPD 44 (Law Society of South Africa):
This clause is a substantial limitation of the section 32(1)(a) right.  It will permit a government body to refuse access to information whenever it considers that a request for information is made for purposes of discovery.  Clause 10 should be deleted.

CLAUSE 11
(Right of disclosure)

OPD 3 (Consumer Institute South Africa):
The inclusion of this clause is welcomed.

OPD 25 (ESKOM):
The right of the recipient to publish information should be subjected to guidelines to avoid prejudice to the public.  It is submitted that a distinction may be drawn between non-commercial and personal requesters.

OPD 63 (Department of Mineral and Energy Affairs):
Those aspects of the common law to which this clause refers should be mentioned in the Bill or in the guidelines.

CLAUSE 13
(Form of requests)

OPD 43 (Department of Public Works):
The clause 13(2)(g) person must provide proof of authorisation where the requester seeks personal information on behalf of another.
An oral request for information should be accompanied by a form of identification.

OPD 46 (Minister of Health):
Clause 13(2) suggests that the words “prescribed form” relate to a form to be completed, the clause should indicate where the form can be obtained.

OPD 63 (Department of Mineral and Energy Affairs):
Due to different nature of information required by the public it is submitted that every department should have its own prescribed form and should also be permitted to prescribe what type of request should be made in terms of the Bill.  Some requests can be dealt with telephonically.

OPD 69 (Financial Services Board):
Provision should be made in clause 13(2) for the disclosure of the purpose of the request.

CLAUSE 14
(Duty to assist requesters)

OPD 25 (ESKOM):
It is recommended that an information officer should only be required to refer requests to the correct governmental body and to provide assistance in locating the correct governmental body.  An information officer should not be required to comply with clause 13 in this regard.

CLAUSE 15
(Transfer of requests)

OPD 34 (Telkom):
Placing a statutory duty on public commercial enterprises may result in “an unbearable administrative burden”.

CLAUSE 17
(Payment of request fees)

OPD 42 (Department of Land Affairs):
It is questioned why non-commercial requesters should be exempted from paying a request fee, they will have to pay an access fee in terms of clause 24.  The work to determine an access fee will be substantial.  It is submitted that there is no basis for exempting certain requesters.

OPD 43 (Department of Public Works):
How will payment take place where a request is made electronically and requester can only be contacted electronically.

OPD 46 (Minister of Health):
Clauses 17, 18 and 24 could be dealt with in one clause.

OPD 58A (Department of Justice):
Clauses 17, 18 and 22 are important clauses which will contribute to minimising financial expenditure.

OPD 70 (Office of the Premier: Northern Province):
Request and access fees (clauses 17 and 24) will have to be “spelt out” in the regulations.

CLAUSE 18
(Payment of deposit)

OPD 42 (Department of Land Affairs):
Members of parliament, provincial legislators and municipal councils will be exempted from paying deposits or access fees (clause 24 (6)).  It means that there are more than 10 000 persons who may request access to information.  Elected members have other channels for access.

OPD 43 (Department of Public Works):
Personal requester should pay a deposit if the personal information requested require a substantial amount of search hours.

OPD 63 (Department of Mineral and Energy Affairs):
It is not always possible to distinguish between personal and commercial requests, delete clause 18(2)(a) and replace with “officials in the service of a State department in the execution of their duties”.  (See clause 24(3)).

CLAUSE 19
(Decision on request and notice thereof)

OPD 42 (Department of Land Affairs):
The thirty days period is in reality not substantial.  Basic steps include: register the request; consider whether it is excluded in terms of Chapter 2; identify where in department records are likely to be found; send it to relevant part; conduct research whether information is available; estimate time necessary to collect and prepare it; submit information to information officer; consider response form line functionary; and prepare response to the request; if response is a refusal the relevant findings of fact and reasons for refusal will have to be prepared.  This work might be done at expense of relevant department’s primary functions.

OPD 46 (Minister of Health):
Does not provide for information officer to request further information from requester where a request may not be clear on the nature of the information requested.

CLAUSE 20
(Urgent requests)

OPD 25 (ESKOM):
Further options need to be provided where there is no fax or telephone.

CLAUSE 21
(Deemed refusal of request)

OPD 52 (Mpumulanga Provincial Administration):
Provision should be made in clause 21(1) for the extension of the 30 day period with a further (30 day) period within the first 30 day period “in order to avoid any delays in attending to the requests for information”.

CLAUSE 22
(Deemed refusal of request)

OPD 21 (Chief Justice):
In several places "regarded to have" is used, it should be "deemed to have".

OPD 51 (Department of Agriculture):
Presumed refusal of a request could lead to unnecessary appeal and court proceedings.

CLAUSE 23
(Severability)

OPD 25 (ESKOM):
Disclosure of the severed part of the record could indirectly divulge information that should be refused.  It is proposed that the Bill should expressly allow for refusal of the entire record where information cannot be reasonably severed.

CLAUSE 24
(Access fees)

OPD 25 (ESKOM):
A safeguard should be introduced to ensure that governmental bodies are not exploited as cheap labour to locate information.  Additional fees for commercial requesters may not justify the costs incurred by an organisation.  The Bill does not clearly define a commercial requester.

OPD 42 (Department of Land Affairs):
See comments under clause 18 in relation to clause 24(6).

OPD 63 (Department of Minerals and Energy Affairs):
Refer to comment on clause 18(2) and include “officials in the service of any State department in the execution of their duties” in clause 24(3).

CLAUSE 25
(Access and forms of access)

OPD 25 (ESKOM):
Provision is not made where information is only available in a more expensive format than the form in which it is requested.  Provision should be made for the information officer or delegate to be present during the hearing of a recording or the viewing of a video.  Publication of a transcript, where the requester wishes to do it personally, should be limited unless certified as a correct transcription.

OPD 42 (Department of Land Affairs):
The government body must be given a reasonable time to research, prepare and deliver the records once the access fee or deposit has been paid.

CHAPTER 2
(Grounds for refusal of access to records)

OPD 64 (Open Democracy Campaign Group):
Consideration should be given to an inquisitorial enforcement procedure within the magistrate Court structure.
The Minister should designate a Magistrates’ Court, after consultation with the Magistrates Commission, with the jurisdiction to hear appeals.  This structure will be more cost effective and accessible.
Candidates should be suitably qualified to be officers, meaning that they should be magistrates, lawyers, academics and other specialists who possess a broad knowledge of constitutional issues.
The powers of these court should include the power to decide on its jurisdiction, subpoena of witnesses and records, questioning of witnesses in simple language, keep records of proceedings and should be able to make interim or any other appropriate orders.
An inquisitorial procedure should be followed which allows for an informal process which will be less expensive and will enhance accessibility.
The appeal process should be the present system (section 83 of the Magistrates’ Courts Act, 1944).
Constitutional questions should be referred directly to the Constitutional Court.
(See p 5 to 9 for recommended amendment of Chapter 2).

CLAUSE 29
(Mandatory protection of privacy)

OPD 25 (ESKOM):
Failure to protect the details of the remuneration of individuals may be unconstitutional. The remuneration of individuals should be protected by the clause.

OPD 26A (Legal Resources Centre):
A request for access “must” be refused if the conditions in clauses 29(1) and 31(1) are met.  The right of access to information is subjected to interests like privacy and commercial confidentiality.  Objection is raised against the word “must” irrespective of the qualification provided for in clause 44(1).
The only requirement for a refusal of access is an “invasion of privacy” and it is submitted that the test is too weak and not in line with international presidents and section 36(1)(e) of the Constitution.  Objection is raised, on the same grounds as above, regarding the “commercial or financial interest” test of clause 31(1)(b).
Clause 44(1) limits privacy and commercial confidentiality but the standard thereof is too high.  The person refusing disclosure has to prove relatively little harm to privacy or commercial confidentiality while the requester have to show “substantial danger” to the environment and/or public safety.
It is recommended that the word “must” in clauses 2991) and 31(1) should be replaced with “may”.
The words “an invasion of privacy” in clause 29(1) should be replaced with “an unreasonable invasion of privacy”.
The words “be expected to cause harm” in clause 31(1)(b) should be replaced with “be expected to prejudice to an unreasonable degree”.
A proviso should be inserted at the end of clause 29(1) to the effect that the information officer shall not refuse a request for access to a record if the invasion of privacy that would otherwise occur can be remedied by blacking out the identifying characteristics of the person concerned.

OPD 27 (NADEL):
Private interests are strengthened by the unqualified reference to “privacy” which will undermine the right to access.  In following the American qualification of unreasonableness it is recommended that the necessity of harm exemption override should be included in the Bill. The Bill should also include an expansive definition of “personal information” such as in Canada and Sweden.

OPD 34 (Telkom):
The scope of clause 30(2)(e)(iii) would mean that employees “may acquire information about an individual’s salary and remuneration”.  Telkom expresses its concern in this regard.

OPD 41 (SAHRC workshop):
Bill should not attempt to cater for privacy concerns, another Bill should deal with privacy.  Reference to an invasion of privacy should be toughened.  The word “must” in clauses 29 and 31 could cause some confusion in the light of clause 44 and should be replaced with “may”.

OPD 46 (Minister of Health):
Clauses 29 to 35 and 37 to 39 could be provided for in one clause with 10 subsections.

OPD 63 (Department of Minerals and Energy Affairs):
Section 1.3.3.3 of the White Paper on a Minerals and Mining Policy for South Africa provides that it will be a condition of any prospecting licence or reconnaissance permission that all information and data form from prospecting shall be submitted to the State, who in turn will release the information to the public at any time after submission of the information (unless the prospector retains a prospecting, retention or mining licence).  This information will be used to create a national exploration database.
Access ti this information will promote investment in exploration and mining and this clause will make it difficult for the State to release the information. (Comment also relevant to clause 31).

CLAUSE 31
(Mandatory protection of third party commercial information)

OPD 3 (Consumer Institute South Africa):
The criteria for disclosure should be “public safety or environmental risk”.

OPD 23 (Transnet):
Transnet is in the process of finding strategic equity partners for certain business units.  The Bill may have an inhibiting effect on potential candidates, the extent to which information will be exchanged between parties and the varying ways of processing such information.  This might reflect negatively on the eventual price.  The phrase “better informed choices” in clause 31(2)(c) should be clearly defined to ensure fairness to both parties.

OPD 33 (COSATU):
The provisions of clause 31(1) are too broad and may curtail the right to access information, a narrower and more flexible approach such as in the National Environmental Management Act, 1998, is recommended.

OPD 41 (SAHRC workshop):
The word “harm” in clauses 31 and 38 should be qualified to refer to “unreasonable harm”.

CLAUSE 32
(Records supplied in confidence)

OPD 16A (Freedom of Expression Institute):
The words “another person” in clause 32(1)(b) refer to natural and juristic persons.  Juristic persons denote far more than commercial entities.  Publishing houses should be included within the ambit of the Bill but journalists and their sources should be protected.  The existing statutory and common law would assist an “aggrieved party” with regard to access to information.

OPD 23 (Transnet):
The clause should include information supplied to a governmental body for the purpose of securing some advantage, grant, permit, contract or concession from the governmental body concerned.

OPD 23B
Transnet may be compelled under this clause to provide reasons to an unsuccessful tenderer why a contract was awarded to another party.  Clause 39 cannot be used by the Transnet Tender Board to refuse access to a record (see p3 and 4 for recommended amendments).

OPD 27 (NADEL):
Exemption is overly broad.  In Canada it is limited to information obtained from within government at all levels, international organisations of state and foreign governments.  In Australia exemption is limited to cases where disclosure would found an action for breach of confidence.  It is suggested that “third party” should be narrowly defined.

CLAUSE 34
(Law enforcement)

OPD 16A (Freedom of Expression Institute):
Broadening the exemptions are unacceptable, the “substantial” qualifier should be added to the “prejudice” referred to in clauses 24(1)(a) and 34(1)(c)(i).

OPD 27 (NADEL):
It is submitted that the “necessity of harm override” should be included and exemption should only apply to information acquired by lawful methods.

OPD 41 (SAHRC workshop):
There should be a free-flow of information between agencies.

OPD 57 (Minister of Justice):
Information relating to criminal matters (including police dockets) should be excluded from the ambit of the Bill in view of the Shabalala decison.

CLAUSE 35
(Privilege)

OPD 25 (ESKOM):
Clause 35(6) should be deleted.  Professional privilege, even after legal proceedings have been finalised, ensures confidentiality which is essential for the proper functions of the legal system.

OPD 44 (Law Society of South Africa):
The “final determination” exception in clause 35 and the duty to reveal privileged information in the public interest in clause 44 affects the law of legal professional privilege to the extent that it will seriously inhibit the work of legal professionals

CLAUSE 36
(Republic's defence and security, including intelligence matters)
OPD 13 (Centre for Conflict Resolution):
The terms “frustrating” and “jeopardising” are possibly too broad, however the terms are constrained by the requirement that disclosure of information may be denied only if such disclosure “would be likely substantially to harm the defence or security of the  Republic”.  This phrase could be reworded to read “would be likely to harm substantially the defence or security of the Republic” so that “substantially” more clearly qualifies “harm” rather than “likely”.

OPD 14 (Deputy Minister for Intelligence):
 The word “substantial” in clause 36(1) is confusing in relation to intelligence or security related matters.  The intelligence services can be in possession of “information” which at the relevant time cannot be defined as “intelligence” and will cause a burden to prove that “substantial” harm is likely to be caused.
Ad the word “coercion” after “violence” to deal with passive resistance which may be a threat to the security and defence of the Republic.

OPD 16A (Freedom of Expression Institute):
The wording of the clause is broad which might lead to unnecessary suppression of information.  A distinction should be made between the current democratic order and the previous order.

OPD 26A (Legal Resources Centre):
The five factors in clause 36(1) are vague and leaves the information officer with a large discretion.  The phrases “aggression against the Republic” and “sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic” in clause 36(1)(a)(i) and (ii) and “jeopardise the effectiveness of arms” in clause 36(1)(c) are general terms and open to misuse.  The clause potentially infringes the right to freedom of expression.
It is recommended that categories of national security information should be provided for coupled with time periods in respect of classification (see footnote 8 on p 14).

OPD 52 (Mpumulanga Provincial Government):
The wording “would be likely substantially to harm” in clause 36(1) should be amended to correspond with “likely to cause substantial harm” in clause 37(1)(b).

CLAUSE 37
(International relations)

OPD 3 (Consumer Institute South Africa):
The clause is phrased in such a manner that it appears that the South African government’s obligations towards the international community are placed above those of its citizens.

OPD 16A (Freedom of Expression Institute):
Information should only be refused where “substantial” harm will be caused to relations with other states.

OPD 52 (Mpumulanga Provincial Government):
Obligation on provincial information officers will be onerous.  The information officer will firstly have to approach the Department of Foreign Affairs in order to establish whether disclosure would be in contravention of an international law obligation.  A central provincial information office might also alleviate this potential problem. 

OPD 60 (Department of Foreign Affairs):
Concern is raised regarding the clause and an alternative formulation of the clause is recommended.

CLAUSE 38
(Economic interests of the Republic and commercial activities of governmental bodies)

OPD 16A (Freedom of Expression Institute):
Clause 38(1)(c) is too broad and a provision should be included to the effect that the sub-clause will not apply where compelling public interest may require the disclosure of the information and where there is reason to believe that the sale or international trade agreement is not in the best interest of the Republic.

OPD 23 (Transnet):
See discussion under clause 31.

OPD 26A (Legal Resources Centre):
Objection is raised with regard to information officer’s discretion to refuse a request, on the same grounds as mentioned in clause 29.  It is also mentioned that the information does not even have to be confidential to be protected and will prevent corruption form being exposed.
The words “be expected to cause harm to the commercial and financial interests” in clause 38(2)(b) with “be expected to prejudice to an unreasonable degree the commercial and financial interests”.

OPD 51 Department of Agriculture):
Consent for the disclosure of information (clause 38(3)(b)) should be given by the head or his/her delegate in order to prevent unauthorised permission.

CLAUSE 39
(Operations of governmental bodies)

OPD 26A (Legal Resources Centre):
The words “could reasonably be expected to frustrate the deliberative process in a governmental body” is subjective and a more objective test is needed (see p 11 and 12 for recommendation).

OPD 50 (Public Service Commission):
Concern is raised with regard to the wording “governmental bodies” and constitutional bodies.  Governmental bodies do not include a constitutional body such as the PSC and it is unclear whether the functions of the PSC are included under clause 39(1)(b).

CLAUSE 40
(Published records and records to be published)

OPD 23B (Transnet):
The words “frivolous” and “vexatious” are not defined and will have to be given their ordinary grammatical meaning.

OPD 42 (Department of Land Affairs):
The test is objective, the request is frivolous or vexatious, and objection is raised with regard to the use of the word “manifestly”.

OPD 43 (Department of Public Works):
The nature of the words “frivolous and vexatious” must be clarified.

OPD 46 (Minister of Health):
It is not clear what constitutes a frivolous or vexatious request without reasons for the request (see comment under clause 13).

OPD 52 (Mpumulanga Provincial Government):
The clause should be amended tp prevent an information officer from making subjective decisions on whether a request is “manifestly frivolous or vexatious”.  An information officer should be obliged to supply written reasons in respect of his/her decision.  Approach will also be in line with section 33 of the Constitution.

CLAUSE 41
(Records that cannot be found or do not exist)

OPD 41 (SAHRC workshop):
Wording “records that cannot be found or do not exist” should not be a ground for refusal.

CLAUSE 42
(Published records and records to be published)

OPD 51 (Department of Agriculture):
A department will not know what a library charge for information (clause 42(1)(b)) or where the requester’s nearest library is (clause 42(2)(b)).

CLAUSE 43
(Records already open to public)

OPD 23 (Transnet):
The part of the clause dealing with costs should be deleted.  Where information is available from an alternative source the applicant should revert to the alternative at his or her own cost.

OPD 26 (Environmental Justice Networking Forum):
A clause 43A should be included relating to access to environmental information which have to include the right of every person to access to information held by the state, the right of the organs of state to have access to information and the grounds upon which a request for information may be refused.

Opd 42 (Department of Land Affairs):
The Department has a variety of deeds, survey and mapping records available to the public, not all in terms of specific legislation.  The words “or in any other manner” should be included after the words “if the record is open to public access in accordance with any other legislation”.

OPD 46 (Minister of Health):
It should be made clear at what stage the SAHRC would be required to intervene, after internal appeal has been made or before.

CLAUSE 44
(Mandatory disclosure in public interest)

OPD 3 (Consumer Institute South Africa):
Consumer confidence and the development of an information society will be promoted by the clause.

OPD 13 (Centre for Conflict Resolution):
Clause 44 deals with the mandatory disclosure of information in the public interest.  The clause provides clear guidelines to an information officer in exercising the discretion of deciding whether information should be disclosed or not.

Clause 44(1)(a) states that an information officer must provide information if such disclosure would reveal evidence of substantial abuse of power; injustice to a person; danger to the environment or health or safety of an individual or the public; or unauthorised use funds or assets.  Clause 44(1)(b) provides that the information must be made available if "the public interest in the disclosure of the record clearly outweighs the need for non-disclosure in the provision concerned.".   It is recommended that the word "and" between clause 44(1)(a) and (b) be replaced with "or", otherwise it implies that the two subclauses constitute separate considerations.

Clause 44(2) provides that the information officer must provide information and repeats the test referred to in clause 44(1)(b) but neglects to cover the conditions laid down in clause 44(1)(a).  This would have the result that the "disclosure of substantial evidence of illegality and injustice is not necessarily in the public interest".  It is recommended that the Bill be amended so that every ground for refusal of access to information be overruled if either clause 44(1)(a) or 44(1)(b) applies.

It is further recommended that if clause 44 is to serve in the public interest then the grounds for mandatory disclosure of information should include:  deviation from official policy; infringements of rights and freedoms and deviation from International Law.

OPD 41 (SAHRC workshop):
Test is too strenuous.  The two tests in clause 44(1) and (2) should be merged.

CLAUSE 45
(Notice to third parties)

OPD 16A (Freedom of Expression Institute):
Amend clause 45(2)(b) to prevent an information officer from divulging the name of a requester to a third party, unless the requester agrees, and that only the category of requester be made known.

OPD 26A (Legal Resources Centre):
The name of the requester has to be furnished to the third party in terms of clause 45(3)(b).  It is submitted that the identity of the requester may, in certain cases, for privacy or confidentiality concerns have to be kept secret.
Provision should be made in clause 45(3)(e) for an abbreviated time period in cases of urgency.
The words “unless the interests of the requester or the interests of justice militate otherwise” should be included at the end of clause 45(3)(b).

OPD 63 (Department of Minerals and Energy Affairs):
Foreign and local companies complain about difficulty in obtaining geological and prospecting information compared to other jurisdictions.  Clauses 45 to 47 reinforce section 19 of the Minerals Act, 1991 (Act 50 of 1991), the lack of accessible information and requirement for obtaining consent makes South Africa unattractive to foreign investors.  (Refer to comments on clauses 29 and 31).

CLAUSE 46
(Representations by third parties)

OPD 46 (Minister of Health):
The clause suggests that representations by third parties must be made within 10 working days after being informed, clause 20(2) decision on urgent requests must be made within 5 working days.  More days (not less than 10) should be considered with regard to urgent requests.

CLAUSE 47
(Decision on representations for refusal and notice thereof)

OPD 15D (South African Council of Churches):
Concern was raised regarding a possible conflict between the SACC’s proposed clause 47C and the current clause 30(2).
Clause 50(2) deals with personal information about the requester while the proposed 47C deals with any information required for the exercise or protection of any rights.  A satisfactory solution would have to include clause 50 in the interim and a new part dealing with privately-held information. 

CLAUSE 48
(Application of Part)

OPD 65 (South African Society of Archivists):
Exclusions defined should not apply to information gathered about individuals without their consent before the Bill comes into operation.

CLAUSE 49
(Use of Act for criminal or civil discovery of private bodies’ records excluded)

OPD 45 (JSE):
It is not clear how clause applies to discovery in disciplinary proceedings of a self-regulatory body such as JSE.

CLAUSE 50
(Access to personal information held by private bodies)

OPD 2 (Banking Council of South Africa):
The individual’s right to privacy can be placed at risk (especially where there is an existing legal obligation such as client confidentiality in the banking sector) if the information officer does not have proof that the requester is entitled to the requested information.  Documentation such as faxes, email and letters facilitate the forgery of identity and other related documentation.  It is recommended that clause 50(2)(a) be amended to state clearly that the request must be submitted in such a manner that the identity of the requester can be established beyond reasonable doubt.

OPD 24 (Direct Marketing Association):
Clause 50(2)(c) requires a requester to provide a “postal address or phone number” and is inconsistent with clause 51(5)(d) which requires, in a request for correction of personal information, a “postal address or fax number”.  The Bill should be amended to provide for a postal address, fax or telephone number, and/or e-mail address.

OPD 35 (Credit Bureau Association):
Clause 50(2)(d)(i) leaves room for fraud and the clause should make provision for a discretion in the form of “or any proof of his or her identity to the reasonable satisfaction of the head of the private body”.

OPD 36 (Committee for Private Data Base Users):
Clause 50(2)(d)(i) will lead to unauthorised persons gaining access to information.  Private bodies should be given the right to satisfy themselves that identity has been proved.

OPD 45 (JSE):
Blanket cross-reference in clause 50(6)(a) to clauses applicable to government bodies leads to uncertainty.

CLAUSE 51
(Correction of personal information held by private bodies)

OPD 24 (Direct Marketing Association):
Clause 51(5)(b) requires sufficient particulars to identify the record.  Particulars may be provided after a date the initial request was made.  To protect the information holder the words  “of receiving sufficient information to identify the record” should be included after the words “... within 30 days” in clause 51(6).

Clause 51(8) requires that copies of deleted records should be retained.  This defeats the purpose of the deletion and creates an administrative and cost burden with regard to storage facilities.  The clause should be deleted, or the requirement should be limited to specified sectors where compelling reasons exist to retain records.  If it has to be made applicable to all private bodies then a time limit (one year) should be included.

OPD 35 (Credit Bureau Association):
Keeping a deleted part of a record for as long as the entire record is retained is impractical.  It is recommended that the copy should be retained for as long as the deleted information would have been retained.
Clause 51(9)(a)(iii) provides that a request must be attached to a record but it is recommended that provision should be made for a reasonable summary where the request is voluminous.

OPD 36 (Committee for Private Data Base Users):
Storing deleted information is expensive and impractical.  Provision should be made for the deleted information to be held for no longer than it would have been held if not deleted (clause 51(8)(c)).
Provision should be made for requests to be summarised where they are too long to be cost-effectively stored (clause 51(9)(a)).

CLAUSE 53 
(Use of personal information by private bodies)

OPD 3 (Consumer Institute South Africa):
Increasing technological advances with regard to information makes it difficult for individuals to control the dissemination of their personal information.  Data protection is an important international guideline and article 6 of the European Union’s directives should be noted.  The provisions of the USA Fair Credit Reporting Act, 1971, may provide a guideline in this regard.

OPD 24 (Direct Marketing Association):
The clause does not reflect the same balance of interests with regard to the use of information as is the case with the disclosure of information in clauses 55(h) and 56(p).  It is suggested that the wording of clause 55(h) be included as a clause 53(d).

OPD 35 (Credit Bureau Association):
The word “to” in clause 53(c) should be “by” and reference to clause 56 should be deleted.

CLAUSE 55
(Disclosure of personal information by private bodies)

OPD 2 (Banking Council of South Africa):
The presumption is that clause 55(g) covers for example a loan contract where the withdrawal of consent can not override prior contractual obligations.  Should this not be the case , then the capacity for consent to be withdrawn in terms of contractual obligations (relating to loans, surety agreements, guarantee agreements etc.) needs to be prescribed.

OPD 6 (SACOB):
Exchange of information between companies of the same group is not allowed which will result in costly administrative difficulties for companies in retail credit operations.  Access to a common data base should be permitted.

OPD 35 (Credit Bureau Association):
The wording of clause 55(h) implies that regulations can be made which override subclauses (a) to (g) and the words “other purpose which may be prescribed and which would not pose an unreasonable threat to privacy” should be used.

OPD 36 (Committee for Private Data Base Users):
The wording of subclause (h) might lead regulations being made which conflict with subclauses (a) to (g) and should make it clear that it is there to cater for other matters not provided for in (a) to (g).

OPD 50 (Public Service Commission):
A condition of disclosure is that “the information should be disclosed for the purpose for which the information was obtained or compiled or for a purpose consistent with that purpose.”.  If the condition is met, the consent of the person to whom the information relates is not required.  The word “purpose” is not defined and it will allow for an interpretation which will nullify the right of privacy.

CLAUSE 56
(Disclosure of personal information by governmental bodies)

OPD 2 (Banking Council of South Africa):
Clause 56(m) confers privileged access by governmental bodies to information held by other governmental bodies in order to follow up on bad debts.  Private bodies have the same problems and in view hereof it is suggested that the words “or a private body” be included after every reference to “governmental body”.
Clause 56(n) favours only the recipients of payments to the exclusion of those owed unpaid debts.  If clause 56(m) is accordingly amended as suggested above then clause 56(n) can be deleted because the eventuality will be covered.

OPD 24 (Direct Marketing Association):
Clause 56(n) is unnecessarily restrictive where non-financial benefits such as goods or services are due to persons.  The words “or deliver a benefit owing to that other person” should be included after “... in order to make a payment”.

OPD 35 (Credit Bureau Association):
Clause 56(m)(i) favours governmental bodies over private bodies where debts in the private sector are larger than in the governmental sector.  It is recommended that clause 56(m)(i) should be included in clause 55.

CLAUSE 57
(Consistent purpose)

OPD 35 (Credit Bureau Association):
The subjective test is biassed against private bodies and should be reworded to an objective test in the form of “only if the person could reasonably be regarded to have expected such a use or disclosure”.

OPD 36 (Committee for Private Data Base Users):
The clause implies a subjective test and it is submitted that the test should be objective.

CLAUSE 58
(Consent to use or disclose personal information)

OPD 2A (Banking Council South Africa):
An individual may withdraw consent given in a loan application that his or her non-performance in meeting repayment terms can be listed with a credit reference bureau.  The wording of this clause is vague and it is recommended that a subclause to the effect that “where a borrower is in default or arrears in terms of loan obligations, and consent has been given to disclose this fact, consent may not be withdrawn” should be included.
 
OPD 4 (Edgars):
The “prescribed form” and “prescribed manner” requirement will result in enormous administration and cost burden with a group of in excess of 3, 6 million account holders.  It is submitted that when an obligation has to be imposed it should rather be to give effect to the instructions of a client as opposed to the data base holder being obliged to obtain the express consent of every client.

OPD 8 (National Postal Forum):
The disclosure of personal information for legitimate marketing and communication purposes should be allowed, except where the individual has registered an objection.
It is submitted that a new clause dealing with the use and disclosure of personal information for marketing purposes be included.  The provisions of which should include the following:
*All private and governmental bodies should register with a national body 	which should be a self-regulatory body with a code of conduct endorsed by the 	business Practices Committee of the Department of Trade and Industry.
*The individual is afforded the opportunity to object against the use of information 	after being informed of the intended use of the relevant information.
*The individual be allowed to register the objection directly with the relevant body 	or the nationally recognised self-regulatory body which will exclude the use of 	personal information in marketing activities.

OPD 35 (Credit Bureau Association):
Clause 58(1)(b) is open to abuse and it is recommended that the words “unless the person has a prior agreement to the contrary with the party concerned” be added to avoid situations where an in mora debtor applies for further credit at another institution in the knowledge that his or her non-payment may not be disclosed by the other creditor.

OPD 36 (Committee for Private Data Base Users):
Withdrawal of consent should not be allowed where it is done to prejudice another party to an agreement (clause 58(1)(b)).

CLAUSE 59 
(Use and disclosure of private information held before commencement)

OPD 3 (Consumer Institute South Africa):
The clause does not indicate what the duration of the “prescribed” period will be.  Objection is made with regard to the fact that unlawfully obtained information may be used for lawful purposes.

OPD 35 (Credit Bureau Association):
Clause 59(2) does not provide for persons who refuse consent when the prescribed steps were taken to obtain it.
Clause 59(4) allows for categories to be treated differently when making regulations and the opinion is expressed that reference to subclause 2 should be included.

OPD 36 (Committee for Private Data Base Users):
Provision should be made for persons who responded and actually refused consent.  Reference should be made in subclause 4 of all three subclauses and not only 1 and 3.

CLAUSE 60
(Register of uses and disclosures not in governmental body’s manual)

OPD 34 (Telkom):
The administration involved in keeping a clause 60(1) register may interfere with a body like Telkom’s commercial activities.

CLAUSE 61
(Collection of personal information by governmental bodies)

OPD 34 (Telkom):
Clause 61(3) is onerous as far as administrative procedure, cost and time are concerned.

CLAUSE 62
(Retention, accuracy and disposal of personal information by governmental bodies)

OPD 52 (Mpumulanga Provincial Government):
It is recommended that private bodies should also be required to nominate a person who will be responsible to handle requests for access and the security of personnel information. 

CLAUSE 63
(Exclusion of liability)

OPD 14 (Deputy Minister for Intelligence):
The Constitution makes provision for the appointment of the Inspector-General who will be responsible for the civilian monitoring of the intelligence services, who will have unlimited access to information held by the services.  It is important to use this institution for whistle blowing in the intelligence services as the institution will have expert knowledge and unlimited access to intelligence.

OPD 25 (ESKOM):
The clause can be abused to the detriment of the governmental body.  The encouragement of full disclosure should be balanced against the need to ensure that such protection is not relied upon to undermine legitimate internal processes.

OPD 26A (Legal Resources Centre):
Confidentiality ensures that complainants are encouraged to “come forward” and it also encourages institutions to be frank and open in their approach and correspondence with the Public Protector.
This clause does not provide for a complainant who lodges a complaint against prejudice suffered due to a decision of a government body.  The benefit of openness and frankness in correspondence with the Public Protector would be jeopardised if institutions know that complainants and the media would have access to their correspondence.  Clause 32(1) does not pose a solution to the problem because it only applies to records supplied by a third party and excludes a government body per definition.  Clause 39(1) is of assistance but is watered down by clause 36(3).  Clause 44(2) also detracts from the protection of confidential information.
It is recommended that provision should be made that the Bill does not effect the provisions of the Public Protector Act, or clause 32 can be amended by adding a subclause (4) in which reference is made to information supplied in confidence by a third party or another governmental body.

OPD 34 (Telkom):
Clause 63(3)(b) refers to the disclosing party’s “belief” at the time of disclosure and serious harm could be done to a company if such information is disclosed and the accuracy of the information has not been established by objective methods.

OPD 50 (Public Service Commission):
Bodies for reporting corruption are too many.  Public Service Commission monitors corruption and can be mandated to deal with whistle-blowing mechanisms and protection of whistle-blowers in Public Service.  Public Service Commission as designed by Cabinet plays leading role in National Anti-Corruption campaign.

OPD 54 (N Alant and Prof T Uys):
A court and a judicial commission of inquiry are not included and this may be interpreted that a person, who even may have been subpoenaed, has no protection.  Whistleblower protection should be extended to private sector.

OPD 52 (Mpumulanga Provincial Government):
It is recommended that private bodies should also be requested to nominate a person who will be responsible to handle requests for access and the security of personnel information.
Objection is raised with regard to the requirement that the whistleblower have to disclose the information to an intermediary.  It is submitted that the information should follow the shortest route to disclosure.
Bill is silent on mala fide disclosure or disclosure in return for payment.
The question is raised whether protection should also be provided to persons who disclose information which they obtained (secondary whistleblower).
Medical practitioners and lawyers who have a fiduciary duty towards their patients and clients may have to disclose information under certain circumstances and should be considered.
The term “public interest” in clause 63(3)(b) is not defined and may be problematic.
The restrictive operation of the Bill should be expressly provided for.

OPD 55 (SA Association of Consulting Engineers):
Provision relating to protection of whistle-blowers should also apply to private enterprises.

OPD 64C (Cosatu):
Whistle-blower protection needs to be extended to private sector.  List of bodies that person can disclose information to should be expanded.

OPD 65 (South African Society of Archivists):
It is not clear whether the person who supplies the information to the whistle-blower also enjoys protection.  A definition of whistle-blower is called for which have to include both the supplier and user of the information.

CLAUSE 65
(Protection against reprisals)

OPD 50 (Public Service Commission):
A whistle-blower should have an automatic right of appeal to an external complaints body in cases of retaliatory action against the whistle-blower, Further guarantees to a whistle-blower should include the right to automatic official leave of absence during duration of investigation; receive a salary while on official leave of absence; right to personal security; to receive feedback on process and outcome of investigation; temporary or permanent re-assignment and the right “to freely decide to continue or discontinue being a whistle-blower.”. 

OPD 54 (N Alant and Prof T Uys):
Clause 65(3) is supported but concern is raised in respect of cases where no internal procedure exists in an organisation and an employee raises the matter internally.  An employee will not be protected in those cases.

OPD 68 (Institute for Security Studies):
A right to claim compensation for any loss or damage suffered as a result of victimisation is recommended.

CLAUSE 66
(Notice to officials of provisions of Part and other complaint procedure)

OPD 50 (Public Service Commission):
The whistle-blowing mechanism must be documented and communicated to managers and employees for the system to be effective (see p6 to 7 for details of recommendation).

CLAUSE 67
(Right of internal appeal to head of governmental body)

OPD 23 (Transnet):
Clauses 67 to 81.  An appeal against the refusal of information may paralyse the commercial process (window of opportunity being lost) by arguing that the matter is sub iudice until a final decision is reached in terms of clauses 67 to 81.   

OPD 34 (Telkom):
Governmental bodies with existing internal administrative and control measures contemplated in clauses 67 to 71 should be exempted from its operation.

OPD 52 (Mpumulanga Provincial Government):
The words “to disclose as” should be inserted in clause 65(2) between the words “to disclose or refusal” and “contemplated in subsection (1)”.  The words “to disclose” should be added in clause 65(2) after the words “or refusal.”.

CLAUSE 68
(Manner of internal appeal, and appeal fees)

OPD 42 (Department of Land Affairs):
Appeal fee in clause 68(4)(a) should be payable by all requesters.

CLAUSE 70
(Decision on internal appeal and notice thereof)

OPD 2 (Banking Council of South Africa):
It is recommended that the word “dismissed” be replaced with the word “granted” in clause 70(7) in order to ensure that an internal appeal succeeds where a head of a governmental body fails to act on such an appeal.

CLAUSE 71
(Urgent internal appeals)

OPD 42 (Department of Land Affairs):
The word “substantial” or “material” should be included before “prejudice” in clause 71(2)(a).

CLAUSE 72
(Non-exclusion of other remedies)

OPD 3 (Consumer Institute South Africa):
In view of financial considerations it is suggested that a body such as the Ombudsman or Informational Tribunal should be considered as an alternative to the High Court.

CLAUSE 73
(Manner of applications to High Court)

OPD 19 (Judge President:  Northern Cape Division):
Paragraph (b) of subclause (1) refers to Rule 6(12) of the Uniform rules which is applicable in cases of urgent applications and bestows a judicial discretion on the Court to dispense with the prescribed rules.  The result is that the Court makes its own rules in the relevant circumstances.  It is submitted that if “subject to this Chapter” does not mean that the provisions of the Chapter may not be dispensed with as minimum requirements it would seem to be meaningless.  It would be more logical to lay down those rules that are regarded as necessary and then to provide for cases of urgency.

OPD 34 (Telkom):
Clause 73(2) should place the High Court in a position to determine the urgency of an application by supporting documents.

OPD 42 (Department of Land Affairs):
Objection is raised with regard to all applications being deemed as urgent and all other litigants will be subjected to “information” litigants.  The applicant should be able to prove urgency if the matter is urgent.

CLAUSE 74
(Applications regarding decisions of information officers)

OPD 19 (Judge President: Northern Cape Division):
Subclause (1) deals with appeals to the High Court.  Subclause (2) prescribes times for lodging the appeals.  It appears that subclause (2) does not provide for all the categories stated in subclause (1).  It is submitted that a right of appeal may exist in a certain matter without a prescribed time to lodge such an appeal.  The question is also raised whether clause 20, appeals directly to the High Court, should not also provide for internal appeals.
It is also recommended that subclause (1) should employ the same wording as subclause (3) because doubt exists wether subclause (1) provides for all kinds of detrimental decisions that can be taken.
With regard to subclause (3) it is submitted that the Human Rights Commission should also be subjected to internal appeal.

The provisions of subclause (4) should form part of subclause (2).

OPD 21 (Chief Justice):
In clause 74(1) “A person that” should be “A person who”.

CLAUSE 77
(Assistance of Human Rights Commission)

OPD 21 (Chief Justice):
If it is intended that the person referred to in clause 77(3) should have the right to appearance then the term "legal representative" should be used.

CLAUSE 78
(Production of records of governmental bodies to High Court)

OPD 23 (Transnet):
Clause 78(1).  Even where the court refuses to allow access to information, the possibility exists that the information may be obtained through the court transcript.  During oral evidence refusal to answer questions should be allowed where an answer may disclose sensitive/confidential information, indicating to the applicant the source of confidential information and prejudicing the disclosure of confidential information in any manner.
Clause 78(3).  It is suggested that the High Court should be able to refuse disclosure in the interests of justice and on the grounds of public policy.

OPD 34 (Telkom):
The ambit of clause 78(1) is too wide insofar as it allows for the production of records subject to professional legal privilege and should exempt such documents from the ambit of clause 78(1).

CLAUSE 79
(Burden of proof)

OPD 23 (Transnet):
It is recommended that where a person requests information from the State in exercising or protecting his/her rights, there should be a legal reason for doing so.  It is recommended that this test should be included in the clause as a preliminary test. 

CLAUSE 81
(Costs)

OPD 34 (Telkom):
Security for the costs of proceedings should be included.

OPD 44 (Law Society of South Africa):
The clause does not make express provision for an order requiring the provision of security for costs and High Court should be granted a discretionary power in this regard.

CLAUSE 82
(Additional functions of Human Rights Commission)

OPD 2 (Banking Council of South Africa):
The phrase “private bodies which exercise substantial influence over the nature of the South African society” is subjective and open to dispute.  It is recommended that the words “as well as private bodies ... South African society” be deleted.

OPD 6 (SACOB):
Clause provides for consultation between Human Rights Commission and private bodies but direct as opposed to diluted consultation would result in more acceptable regulations ( see also clause 86).

OPD 52 (Mpumulanga Provincial Government):
The powers of the SAHRC should be increased to include powers to investigate, intervene and litigate as required in the European Union Directive on data protection with regard to independent supervisory authorities.
No individual may be subjected to a decision which affects that individual (for example creditworthiness) where the decision is based on the automated processing of data only.

CLAUSE 84
(Expenditure of Human Rights Commission in terms of Act)

OPD 42 (Department of Land Affairs):
All other functions of government are subject to budgetary constraints.  There is no reason for dealing differently with the functions of the SAHRC under this legislation.

CLAUSE 85
(Offences)

OPD 68 (Institute for Security Studies):
Clause 85(b) will inhibit whistle-blowing and should be deleted.

OPD 70 (Office of the Premier: Northern Province):
Only imprisonment period is stated, it is recommended that monetary value of fine should also be included.

CLAUSE 86
(Regulations)

OPD 4 (Edgars):
Many issues will be embodied in the regulations.  Consultation should take place with private bodies that will be directly effected by the regulations.

OPD 6 (SACOB):
Specific provision should be made for a consultative process to be extended to private bodies.  The only requirement is that the Minister of Justice will make regulations in consultation with the Human Rights Commission.  Although provision is made for interaction and consultation with private bodies, the opinion is held that it will be in a "diluted" form.  Direct consultation will result in more practical and acceptable regulations.

OPD 7 (Leisure Books):
Consideration should be given to the inclusion of the requirement that consultation should take place with the relevant private sector bodies in the drafting of regulations.

OPD 8 (National Postal Forum):
Consultation with other governmental and private bodies in making regulations should be made compulsory.

OPD 11A (WITS):
Clause 86(c) does not serve the same purpose as clause 36.  The power of the Minister in terms of clause 86(c) should be interpreted to relate to the classification of records in terms of categories of disclosure (pro-active disclosure, mandatory refusal, discretionary refusal and disclosure after notification).  Clause 2 of the Bill overrides the Protection of Information Act.  Clause 86(c) should not be deleted. 

OPD 12 (Tupperware Southern Africa):
Consultation with private bodies that will be affected by the regulations should take place.

OPD 14A (Ministry for Intelligence Affairs):
Clause 86(c) contradicts with the objective of the whole Bill which regulates the disclosure of information as opposed to the protection thereof.  The Protection of Information Act is currently under review and recommendations will be forwarded to the South African Law Commission.  The classification of information will be more appropriate in the Protection of Information Act.  Clause 86(c) should therefor be deleted.

OPD 26A (Legal Resources Centre):
Objection is raised with regard to the Minister’s power to make regulations regarding “the classification of records of governmental bodies” in clause 86(c) and it is recommended that criteria for classification should be included.

OPD 36 (Committee for Private Data Base Users):
Provision should be made for the establishment of a consultative committee representative of private bodies with whom the Minister must consult where appropriate.

OPD 51 (Department of Agriculture):
Time periods in the Bill should rather be included in regulations which will make amendment easier.

OPD 65 (South African Society of Archivists):
Technical aspects of Bill should rather be included in the regulations in order to streamline the Bill.
Only clauses 85(c) and 86(c) refer to the classification of records.  Other provisions of the Bill implies that classification of records should not be taken into consideration when a decision is made on access.  Clauses 85(c) and 86(c) establish doubt and raise concern that classification of records could be used to undermine other provisions of the Bill.  Should be deleted or should include criteria for classification.

CLAUSE 87
(Short title and commencement)

OPD 42 (Department of Land Affairs):
Clause 87(2) is supported, the essential requirements of an open government can be introduced first, followed by more demanding measures.  The Committee should submit a phased implementation plan to the President and Minister for consideration.  Part 5 (Whistle-blowers) should be implemented first, it is an important mechanism with limited administrative burden and cost implications.  Part 4 (Access to personal information) should be implemented immediately.

REPEAL OF LAWS

OPD 14 (Deputy Minister for Intelligence):
Transitional arrangements should be included to accommodate amendments to existing legislation.  The Protection of Information Act, 1992 (Act 84 of 1992), for example defines a security matter as “any matter which is dealt with by the Agency or the Service...” and is a vague clause which might be outweighed by the Bill.

Opinion by Chief State Law Adviser on exclusion of Cabinet from "government body" Definition
CHIEF STATE LAW ADVISER

21 January 2000

Adv J H De Lange
Chairperson

CONSTITUTIONALITY OF THE EXPRESS EXCLUSION OF THE CABINET FROM THE DEFINITION OF "GOVERNMENTAL BODY" IN CLAUSE 1(v) OF THE OPEN DEMOCRACY BILL: YOUR WRITTEN REQUEST OF 25 OCTOBER 1999

The State Law Advisers remark as follows:

INTRODUCTION
1.	The Parliamentary Ad Hoc Joint Committee on Open Democracy requests our opinion concerning the constitutionality of the express exclusion of the Cabinet from the definition of "governmental body" in clause 1(v) of the Open Democracy Bill (B 67 - 93), hereinafter referred to as "the Bill". In order to answer the question posed above, two preliminary questions are addressed first for the sake of completeness:

(a)	Is the Bill of Rights as contained in Chapter 2 of the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996), hereinafter referred to as "the Constitution", applicable to the Cabinet?

(b)	Is the Cabinet included in the meaning of the term "state" as contained in  section 32(1) of the Constitution?

Thereafter, the main question that must be answered can be formulated as follows:

(c)	If the questions posed in paragraphs (a) and (b) above are answered in the affirmative, would it be constitutional to limit a person's right of access to information in the sense that such person would not be entitled to have access to information held by the Cabinet?

QUESTION (a)
2.	Section 8(1) of the Constitution provides as follows:

"The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.". (Our emphasis.)

Section 91(1) of the Constitution provides that "[t]he Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers".  Section 85 of the Constitution provides as follows:

"(1)  The executive authority of the Republic is vested in the President.

(2)	The President exercises the executive authority,  together with the other members of the Cabinet, by-

(a)	implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;

(b)	developing and implementing national policy;

(c)	co-ordinating  the  functions  of  state  departments  and administrations;

(d)	preparing and initiating legislation; and

(e)	performing any other executive function provided for in the Constitution or in national legislation.". (Our emphasis.)

3.	It is clear from section 85 read together with section 91(1) of the Constitution that the President exercises the executive authority together with the other members of the Cabinet. Therefore, we are of the view that the Cabinet, that is the President, the Deputy President and the Ministers, falls squarely within the meaning of the term "executive" as contained in section 8(1) of the Constitution. It necessarily follows, in our view, that the Bill of Rights as contained in Chapter 2 of the Constitution binds the Cabinet.

QUESTION (b)
4.	Although we are of the view that the Bill of Rights as contained in Chapter 2 of the Constitution binds the Cabinet, the second preliminary question that must be answered is whether the Cabinet is included in the meaning of the term "state" as contained in section 32(1) of the Constitution.  Section 32(1) of the Constitution provides as follows:

"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.". (Our emphasis.)

5.	The term "state" is not defined in the Constitution and it must therefore bear its ordinary meaning in the context in which it is used. L Baxter "'The State' and other basic terms in public law" 1982 The South African Law Journal at pp.225 and 226, hereinafter referred to as "Baxter", states the following concerning the term "state":

"In summary, one may say that, as a rough description, 'the State' appears to be used as a collective noun for:

(a)…;

(b)	the conglomeration of organs, instruments and institutions which have as their common purpose the 'management' of the public affairs, in the public interest, of the residents of the Republic of South Africa as well as those of her citizens abroad in their relations with the South African 'Government'.".  (Our emphasis.)

(See also Y Burns Administrative law under the 1996 Constitution (1998) at pp.9 and 1 0.) It is clear from Baxter as quoted above that the term "state" includes the functions of the management of the public affairs, in the public interest. Although the said functions are drafted in wide terms, we are of the view that if consideration is given to the provisions of section 85 of the Constitution there can be no doubt that the functions of the Cabinet include, inter alia, the management of the public affairs, in the public interest. We are therefore of the opinion that for the purposes of section 32(1) of the Constitution the meaning of the term "state" includes the Cabinet. In other words, section 32(1) of the Constitution applies to the Cabinet.

QUESTION (c)

Introduction
6.	In order to determine whether the exclusion of the Cabinet from the definition of "governmental body" in clause 1(v) of the Bill would pass constitutional muster, it is necessary 10 determine whether such exclusion complies with section 36(1) of the Constitution Section 36 of the Constitution, which relates to the limitation of the rights provided for in the Bill of Rights as contained in Chapter 2 of the Constitution, provides as follows:

(1)	The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

(a)	the nature of the right;

(b)	the importance of the purpose of the limitation;

(c)	the nature and extent of the limitation;

(d)	the relation between the limitation and its purpose; and

(e)	less restrictive means to achieve the purpose.

(2)	Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights .”.
Interpretation of section 36 of the Constitution

7.	Section 36 of the Constitution has been interpreted in several judgments of the  Constitutional Court. In this regard, see for example Beinash V Ernst & Young 1999 (2)

SA 116 (CC) and De Lange V Smuts NO 1998 (3) SA 785 (CC). Of particular
importance in this regard is the following statement made by Ackermann J in National Coalition for Gay and Lesbian Equality V Minister of Justice 1999 (1) SA 6 (CC), at p. 30E-31 E, paragraphs [33] to [35], hereinafter referred to as "the National Coalition for Gay and Lesbian Equality judgment":

"[33] Although s36(1) of the 1996 Constitution differs in various respects from s33 of the interim Constitution its application still involves a process, described in S V Makwanyane and Another [1995 (3) SA 391 (CC)) as the weighing up of competing values, and ultimately an assessment based on proportionality  which calls for the balancing of different interests'.

[34]  In Makwanyane the relevant considerations in the balancing process were stated to include

‘…the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question'.

The relevant considerations in the balancing process are now expressly stated in 5 36(1) of the 1996 Constitution to include those itemised in paras (a)-(e) thereof.  In my view, this does not in any material respect alter the approach expounded in Makwanyane, save that para (e) requires that account be taken in each limitation evaluation of 'less restrictive means to achieve the purpose (of the limitation)'.  Although s 36(1) does not expressly mention the importance of the right, this is a factor which must of necessity be taken into account in any proportionality evaluation.

[35]  The balancing of different interests must still take place. On the one hand there is the right infringed; its nature; its importance in an open and democratic society based on human dignity, equality and freedom; and the nature and extent of the limitation.  On the other hand there is the importance of the purpose of the limitation. In the balancing process and in the evaluation of proportionality one is enjoined to consider the relation between the limitation and its purpose as well as the existence of less restrictive means to achieve this purpose.".   (Our interpolation.)

The two-stage approach

8.	It is apparent from the quotation above that Ackermann J refers with approval to the evaluation process in S V Makwanyane 1995 (3) SA 391 (CC). In the last-mentioned judgment at paragraph [100] a two-stage approach was applied to the process concerning the question of the limitation of rights. In S V Williams 1995 (3) SA632 (CC) at p. 649C-F, paragraph [54], Langa J stated the following:

"The structure and content of chap 3 suggests a two-stage enquiry. The first stage is concerned with establishing whether there is a violation of a right sought to be protected by the Constitution; this has been answered in the affirmative. The second leg of the enquiry deals with the question whether the violation constitutes a permissible limitation of the right in question.".

(See also in this regard, Ferreira V Levin NO; Vryenhoek V Powell NO 1996 (1) SA 984(CC) at p.1032, paragraph [82]; BernstekJ V Bester NNO 1996 (2) SA 751 (CC) at p. 790, paragraphs[71] and [75]; 5 v Zuma 1995(2) SA 642 (CC) at p. 654, paragraph[21]; Coetzee V Government of the Republic of South Africa; Matiso V Commanding Officer, Port Elizabeth Prison 1995 (4) SA 631 (CC) at p.641 paragraph [9]; Holomisa V Argus Newspapers Ltd 1996 (2) SA 588 (W) at p. 607; and Gardener v Whitaker 1995 (2) SA 672 (E) at p. 686.)

First stage of the enquiry

9.	Concerning the first stage of the enquiry, we are of the opinion that the exclusion of the Cabinet from the definition of "governmental body" in clause 1 of the Bill would, upon the enactment of the Bill, constitute prima facie a violation of a person's right of access to information held by the state as provided for in section 32(1) of the Constitution.

Second stage of the enquiry

10.	Concerning the second stage of the enquiry, the question must be considered whether the exclusion of the Cabinet from the definition of "governmental body" in clause 1(v) of the Bill would, in terms of section 36(1) of the Constitution, constitute a permissible limitation of the right in question. This necessarily involves a proportionality evaluation which requires the balancing of different interests. According to Chaskalson P in the Makwanyane judgment at p.436, paragraph [104], proportionality "calls for the balancing of different interests". It is apparent from paragraph [35] of the National Coalition for Gay and Lesbian Equality judgment quoted above that the balancing of different interests involves the following: On the one hand one must determine (a) the nature of the right infringed and its importance in an open and democratic society based upon human dignity, equality and freedom, and (b) the nature and extent o~ the limitation. On the other hand the importance of the limitation must be determined. In applying the evaluation of proportionality one must consider the relation between the limitation and its purpose and the existence of less restrictive means to achieve that purpose. We shall now consider the different interests involved in the balancing process.

Nature of the right infringed and its importance

11.   Concerning the nature of the right infringed and its importance in an open and democratic society based upon human dignity, equality and freedom: In Ex Parte Chairperson of the Constitutional Assembly: ln re Certification of the Constitution of the Republic of South Africa, 1996  (4) SA 744 (CC) at pp.802 and 803, paragraphs [83] and [85], the Constitutional Court stated the following:

"[83]  ... What is envisaged by the CP [Constitutional Principle IX] is not access to information merely for the exercise or protection of a right, but for a wider purpose, namely to ensure that there is open and accountable administration at al levels of government.

[85]  Details governing freedom of information are not ordinarily found in a constitution, and it is unlikely that the drafters of the CPs contemplated that such provisions would be contained in the NT itself. It is also significant that freedom of information is not a 'universally accepted fundamental human right', but is directed at promoting good government. That is why it is dealt with in CP IX, as one of a series of CPs dealing specifically with government [CPs VI to X].". (Our interpolation.)

12.   Schedule 4 to the Constitution of the Republic of South Africa 1993 (Act No.200 of 1 993) contains the Constitutional Principles. Constitutional Principle IX reads as follows:

"Provision shall be made for freedom of information so that there can be open and accountable administration at all levels of government.".  (Our
emphasis.)

In Shabalala V Attorney-General 1996 (1) SA 725 (CC) at p.740, paragraph [26], Mahomed DP emphasized the principles of accountability, transparency and openness as follows:

"What is perfectly clear from these provisions of the Constitution and the tenor and spirit of the Constitution viewed historically and theologically, is that the Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. II retains from the past only what is defensible and represents a radical and decisive break from that part of the past which is unacceptable.

It constitutes a decisive break from a culture of apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours. There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of tile future is based on what is 'justifiable in an open and democratic society based on freedom and equality'. It is premised on a legal culture of accountability and transparency.". (Our emphasis.)

13.   It is apparent from what has been stated above that the purpose of the inclusion of the right of access to information in the Constitution is to ensure that there will be open and accountable administration at all levels of government. Furthermore, the right of access to information held by the State is an important and integral part of the creation and maintenance of an open and democratic society based upon human dignity, equality and freedom. According to J de Waal et alli The Bill of Rights Handbook (2nd ed) (1999) at p.460 "freedom of information combats governmental arbitrariness and contributes to the ideal of an open and democratic society, in which
power is exercised rationally and with due deliberation".  Its importance is also emphasized by its inclusion in the Bill of Rights of the Constitution despite the fact that such a right is not usually included in a Bill of Rights. S Alkema, SC, "The right of access to information: A fundamental right?" 1996 (Vol 1, No 1) The Human Rights and Constitutional Law Journal of Southern Africa at p.33 states the following:

"Having regard to the constitutional history of South Africa and the political ideals which helped to shape the interim Constitution, it is perhaps not surprising that South Africa, as far as is known, is the only country in the world which recognizes the right to State-held information as a constitutional right.".

(See also in this regard D Davis et alli Fundamental Rights in the Constitution (1997) at pp.147 et seq, hereinafter referred to as "Davis".)

Nature and extent of the limitation

14.	Concerning the nature and the extent of the limitation: The Cabinet is expressly excluded from the definition of "governmental body" in clause 1(v) of the Bill. The effect of the exclusion of the Cabinet is that upon its enactment the Bill would not apply to the Cabinet at all. In other words, the Bill contains a blanket exclusion of the Cabinet from the application of its provisions. We are of the opinion that the blanket exclusion of the Cabinet is far reaching in the sense that no one would be entitled to have access to information held by the Cabinet however innocuous such information might be. (See in this regard J White "Open democracy: Has the window of opportunity closed?" 1998 South African Journal on Human Rights (Vol 14) (1998) at pp.73 and 74.)

Purpose of the limitation and the relation between the limitation and its purpose

15.	Concerning the purpose of the limitation and the relation between the limitation and its purpose: We are of the view that at first blush the purpose of the limitation is to preclude any person from gaining access to any type of information held by the Cabinet. Davis at pp.151 and 152 refers to the Cabinet in his discussion relating to exemptions contained in freedom of information statutes. In this regard he states the following:

"The experience of countries which have freedom of information statutes reveals a fairly uniform set of exemptions. In determining the permissible limits of the right of access to information under the analysis o s 33 of the Constitution, it is

likely that the nature of these exemptions will be similar. In general, permissible limitations on the right would include limitations in the interests of national security, law enforcement (including the identity of informers, witnesses and police methods), privacy and confidential business information, the protection of the integrity of a deliberative process which requires confidentiality and candour (for example, Cabinet meetings), certain economic information which could lead to speculation or damage to the national economy (for example, interest rate fluctuation), and information supplied by a third party on the basis of an express or implied guarantee of the confidentiality of that communication.". (Our emphasis.)

It is clear from the quotation above that the process involved in meetings of the Cabinet, and presumably meetings of Cabinet Committees, requires confidentiality and candour and there should therefore be an exemption to the right of access to information held by the Cabinet.

16.   The information at our disposal also appears to indicate that in respect o1~ statutes of other countries relating to freedom of or access to information the Cabinet or institutions of a similar status are exempted in one form or another. In Australia the Freedom of Information Act, 1982, makes provision in section 34 for the exemption of certain types of Cabinet documents from the provisions of the Act. It should be noted that the provisions of section 34 are detailed and contain a number of qualifications. In Canada the Access to Information Act, 1982, provides in section 69 that the said Act does not apply to confidences of the Queen's Privy Council for Canada; certain documentation furnished to the Queen's Privy Council for Canada, committees of such Council, and the Cabinet and its committees; records recording deliberations or decisions of such Council or the Cabinet, etc. In the United Kingdom the Cabinet is not expressly mentioned in the definition of "public authority" in clause 10 of the Freedom of Information Bill [HL]. In the United States of America federal legislation does not apply to elected officials of the Federal Government, including the President, the Vice President, Senators and Congressmen. From the few examples of other countries referred to above it would appear that the approach is either to exclude certain types of information or documentation held by the Cabinet or to exclude the Cabinet altogether. In other words, no single and uniform approach is followed. This would, in our view, appear to indicate at the very least that the purpose of such exclusions would be to enable the Cabinet or a similar institution to function effectively.

17.   We are therefore of the view that the purpose of the exclusion of the Cabinet from the definition of "governmental body" in clause 1(v) of the Bill is the effective functioning of the Cabinet and its Committees. It would appear, in our view, that there is a relation between the limitation and the purpose it seeks to achieve.

18.   We need to point out, however, that the test extends to an examination of less restrictive means that could achieve such a purpose. If such means could exist the constitutionality of the Bill could be challenged. We have, however, not been provided with, nor are we aware of less restrictive means to achieve the same purposes.

CHIEF STATE LAW ADVISER
J V NURSE/ W J J NEL/ E DANIELS/ 2000-1 -11
Resolution of Promotion of Access to Information Bill [B67b-98]
RESOLUTION OF PROMOTION OF ACCESS TO INFORMATION [B67b-99] AS PUBLISHED IN THE ATC OF 24/01/00

Report of the Ad Hoc Joint Committee on Open Democracy Bill on the Open Democracy Bill [B 67 - 98] (National Assembly - sec 75), dated 24 January 2000, as follows:

The Ad Hoc Joint Committee on Open Democracy Bill, having considered the subject of the Open Democracy Bill [B 67 - 98] (National Assembly - sec 75), referred to it and classified by the JTM as a section 75 Bill, presents the Promotion of Access to Information Bill [B 67B - 98].

The Committee further wishes to report as follows:

1. This Bill, resulting from the constitutional obligation to enact legislation giving effect to the right referred to in section 32 of the Constitution, amongst others, promotes transparency and accountability of public bodies by providing the people of South Africa with timely, accessible and accurate information.
The Committee is of the opinion that proper record-keeping by all public bodies will contribute to the efficiency of public bodies in relation to their obligations in terms of the Bill. The National Archives of South Africa Act, 1996 (Act No. 43 of 1996), as a standard-setting piece of legislation for the proper management and care of records held by governmental bodies, standardises and regulates the operations of public bodies with regard to control over records. An efficient system of identification, arrangement, storage and retrieval of records will enhance the ability of public bodies to provide the public with timely and accurate information.
Various submissions were received that public bodies were more often than not in breach of the National Archives of South Africa Act, 1996, not always acting in accordance with the provisions of the Act. The Minister for Justice and Constitutional Development is, therefore, requested to inform all public bodies of the importance and necessity of proper record-keeping, to request them to once again take note of the provisions of the National Archives of South Africa Act, 1996, and to take the necessary steps to ensure that its provisions are closely followed by all public bodies to which the Act applies. Furthermore, the Minister is requested to undertake an audit as to the feasibility and desirability of existing legislation dealing with record-keeping, and to suggest appropriate remedial action.

2. Clause 6 of the Bill provides that the Bill does not prevent the giving of access to records of public or private bodies in terms of any other legislation listed in the Schedule to the Bill.
Clause 86 of the Bill requires that the Schedule to the Bill should be amended to include the provisions of legislation which provides for or promotes access to records of public and private bodies. A schedule of this nature will provide an individual who wishes to request access to a record held by a public or private body but is faced with a choice between utilising this Bill or another piece of legislation, with an efficient form of reference to enable him or her to make use of both options.
The Committee, therefore, draws the attention of the Minister for Justice and Constitutional Development to the provisions of Clause 86, which require the relevant amending legislation to be introduced in Parliament within 12 months after the commencement of Clause 6, and requests the Minister to initiate an audit amongst all public bodies as soon as possible in preparation of the relevant amending legislation.

3. Clause 5 of the Bill provides that the Bill applies to the exclusion of any other legislation that prohibits or restricts the disclosure of a record of a public or private body which is materially inconsistent with an object, or a provision, of the Bill. No audit appears to have been done in order to establish how this legislation will effect existing legislation, and vice versa. In the interim, this Clause has been provided for to reflect the intention of the legislature that this Bill applies to the exclusion of any other legislation that prohibits or restricts the disclosure of a record of a public or private body.
The Committee still finds it advisable to request the Minister for Justice and Constitutional Development to do a comprehensive audit and, if necessary, to propose appropriate remedial action. The Committee requests the Minister to interact with all departments whilst undertaking this audit.

4. This Bill, amongst others, deals with access to personal information in the public and the private sector to the extent that it includes provisions regarding the mandatory protection of the privacy of third parties.
This Bill only deals with the aspect of access to private information of an individual, be it access by that individual or another person, and does not regulate other aspects of the right to privacy, such as the correction of and control over personal information and so forth. Foreign jurisdictions with freedom of information regimes enacted separate legislation which, as an important component of democracy legislation, regulates aspects, inter alia, such as the correction of and control over personal information. Privacy legislation generally provides for more detailed mechanisms and provisions dealing with personal information in the hands of another person by empowering that individual to, amongst others, demand the correction of incorrect information. The part in the Bill that dealt with these matters, was removed, as the Committee felt that it would be dealing with the right to privacy in section 14 of the Constitution in an ad hoc and undesirable manner. Clause 88 of the Bill provides for an interim measure regarding the correction of personal information, and it is intended that South Africa, in following the international trend, should enact separate privacy legislation.
The Committee, therefore, requests the Minister for Justice and Constitutional Development to introduce Privacy and Data Protection legislation, after thorough research of the matter, as soon as reasonably possible. Furthermore, it may be noted that, when the Privacy and Data Protection legislation is passed, this Bill may have to be amended, if necessary, in accordance with that legislation.

5. Clause 51 of the Bill provides that the heads of private bodies must compile manuals within six months after the commencement of that Clause.
The manual referred to in Clause 51 must contain information which will facilitate a request for access to a record held by a private body. Provision is further made for the Minister, on receipt of a request or on the Minister's own accord, to exempt any private body or category of private bodies from any provision of the Clause for such period as the Minister thinks fit. The Committee is aware of and sensitive towards the fact that Clause 51, read with the definition of "private body" in Clause 1, might place an undue burden on certain private bodies to meet the requirements of Clause 51.
The Committee, therefore, requests the Minister for Justice and Constitutional Development to consider exempting certain private bodies in accordance with Clause 51(4) simultaneously with the implementation of Clause 51.

6. The Committee has once again become acutely aware of the various shortcomings of the Interpretation Act, 1957 (Act No. 33 of 1957), during its deliberations on the Bill. This Act was drafted during an era when we had a system of unfettered parliamentary sovereignty and regulated matters of interpretation during the height of the Apartheid era. This Act is highly anacronistic and in no way is it in line with the principles of constitutional democracy. The Committee therefore urges the Minister to consider the amendment of the Interpretation Act, 1957, to bring it in line with the principles and ethos of constitutionalism and the new principles and practices of interpretation which Parliament and the courts have used since 1994.

7. The enforcement mechanism provided for in terms of the Bill includes internal appeals against the decisions of information officers of certain public bodies, whereafter an individual may remedy the matter in a court of law by lodging an application. Application may, on the other hand, be lodged with a court by a person who is aggrieved by the outcome of a request for access to a public or private body where an internal appeal procedure is not available to that person.
The Committee is aware that it is adding further matters to the jurisdiction of Magistrate's Courts. Clause 79 of the Bill provides that the Rules Board for Courts of Law must within 12 months after the commencement of that Clause make and implement rules of procedure for a court in respect of applications in terms of Clauses 78 and 80(3)(a) of the Bill. Clause 79 further provides that applications should be lodged with the High Court or another court of similar status before the implementation of the relevant rules of procedure for Magistrate's Courts. Therefore, in the first year after the commencement of this Bill, all applications must be lodged in the High Courts, until the appropriate Rules have been drafted and approved by Parliament.
The Committee has, however, noted that other jurisdictions created an enforcement mechanism, namely an Information Commissioner, which is characterised by an accessible and inexpensive form of dispute resolution aimed at mediating disputes on an informal and speedy basis between interested parties, with the ability to adjudicate on disputes between parties. The Committee has noted further that the system enjoys great success in those jurisdictions in the sense that they have created an enforcement mechanism which tends to be widely accepted by members of the public and the relevant public authorities. However, the Committee is aware of the lack of financial and other resources, and it is not intended or advisable to allow for a proliferation of commissions, despite the desirability of such alternative less adverserial type of enforcement mechanisms in our nascent democracy. The existing court structures with its formal procedures will not be conducive to settling informal disputes of this kind between parties in our society.
The Department of Justice and Constitutional Development is requested to investigate the feasibility of establishing an enforcement mechanism like the Information Commissioner and to report back to the Committee within 12 months after the Bill has been put into operation. The Committee is considering a proposal in this regard at this moment and will forward it to the Department in due course.

8. The Committee has spent much time in looking at the implementation of the Bill in a phased manner. It is an attractive and novel concept, but the phased implementation of the Bill is problematic. On 4 February 2000, section 32(1)(a) and (b) of the Constitution will come into operation in its unrestricted form, until the Bill is put into operation. This could last for a few months whilst the regulations are being drafted. The courts will have to enforce the right without any guidelines from the legislature contained in this Act now being passed. Against this background, the Committee suggests that the Bill should be implemented in all haste. Clause 87 of the Bill is flexible and will have to be used against the background that each public body has to create an information regime afresh and, therefore, provision is made that public bodies will be allowed to deal with requests for access within a period of 90 days within the first 12 months after the commencement of the Bill, a period of 60 days within the next 12 months, and a period of 30 days within the third year.

9. The original Bill provided a chapter on the protection of whistle blowers. All parties were unanimous in their views that this legislation is vital for the fight against crime. The Committee was of the view that it is not apposite to include a chapter on whistle blower protection in legislation dealing with the right of access to information. Parliament has embarked on a process of redrafting the chapter into separate legislation. The whistle blower legislation will be the next priority of the Committee, and this task must be finalised by not later than the end of February 2000.

10. Provision was made in Clause 8 of the original Bill for a duty to disclose records of governmental bodies that reveal a serious public safety or environmental risk. However, information regimes, including our own, are request-based and, therefore, it was held to be undesirable to retain this Clause in the Bill. It was decided that it was best dealt with in those departments which administer legislation dealing with environmental and public safety issues. The Committee suggests that the various departments should review the relevant existing legislation, and those departments without such legislation should provide for a similar mechanism in new legislation to provide for this very important issue.

Report to be considered.

Prevention of Organised Crime Second Amendment Bill [B41-99]
Proposed Amendments
Justice NA Committee:  Proposed Amendments: 30/08/99
REPUBLIC OF SOUTH AFRICA
PREVENTION OF ORGANISED CRIME SECOND AMENDMENT BILL, 1999
--------------------------------
BILL WITH DRAFT AMENDMENTS
---------------------------------
(MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B   - 99]
_______________________________________________________________
ii180899
GENERAL EXPLANATORY NOTE:

[		]	Words in bold type in square brackets indicate omissions from existing enactments.
___________	Words underlined with a solid line indicate insertions in existing enactments.
_______________________________________________________________

B I L L

To amend the Prevention of Organised Crime Act, 1998, so as to make it clear that the provisions of Chapters 3, 5 and 6 are applicable in respect of instrumentalities of offences and proceeds of unlawful activities where such offences or unlawful activities occurred before the commencement of the Act; to amend certain definitions; to further regulate the seizure of certain property and the making of orders ancillary to restraint orders and preservation of property orders; to further regulate appeals against certain orders; to further regulate the exclusion of interests in property; to further regulate transitional arrangements; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa as follows:—

Amendment of section 1 of Act 121 of 1998, as amended by section 3 of Act 24 of 1999

1.	Section 1 of the Prevention of Organised Crime Act, 1998 (hereinafter referred to as the principal Act), is hereby amended—
(a)	by the substitution for the definition of "instrumentality of an offence" in subsection (1) of the following definition:
" 'instrumentality of an offence' means any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the Republic or elsewhere;";
(b)	by the substitution for the definition of "proceeds of unlawful activities" in subsection (1) of the following definition:
" 'proceeds of unlawful activities', means any property or any service, advantage, benefit or reward which was derived, received or retained, directly or indirectly, within the Republic or elsewhere, at any time before or after the commencement of this Act, in connection with or as a result of any unlawful activity carried on at any time before or after the commencement of this Act by any person, whether carried on in the Republic or elsewhere[, except for purposes of Chapter 5 where it means—
(a)	any unlawful activity carried on by any person; or
(b)	any act or omission outside the Republic which, if it had occurred in the Republic, would have constituted an unlawful activity,]
and includes any property representing property so derived;";

OPTION: 1
(c)	by the insertion after the definition of 'property' of the following definition:

"'unlawful activity' means any conduct which contravenes any law whether such conduct occurred before or after the commencement of this Act and whether such conduct occurred in the Republic or elsewhere;"; and

OPTION 2:
(c)	by the addition of the following subsection:

"(5)	In this Act 'unlawful activity' means any unlawful activity whether such activity occurred before or after the commencement of this Act and whether such activity  occurred in the Republic or elsewhere."; and

OPTION 1:
(d)	by the addition of the following subsection:

"(6)	Nothing in this Act or in any other law, shall be construed so as to exclude the application of any provision of Chapter 5 or 6 on account of the fact that any offence or unlawful activity concerned occurred before the commencement of this Act.".

OPTION 2:
(d)	by the addition of the following subsection:

"(6)	Nothing in this Act or in any other law, shall be construed so as to exclude the application of any provision of Chapter 5 or 6 on account of the fact that—
(a)	any offence or unlawful activity concerned occurred;
(b)	any instrumentality of an offence was concerned in the commission or suspected commission of an offence; or
(c)	any proceeds of unlawful activities were derived, received or retained,
before the commencement of this Act.".

OPTION 3:
(d)	by the addition of the following subsection:

"(6)	Nothing in this Act or in any other law, shall be construed so as to exclude the application of any provision of Chapter 5 or 6 on account of the fact that—
(a)	any offence or unlawful activity concerned occurred;  or
(b)	any proceeds of unlawful activities were derived, received or retained,
before the commencement of this Act.".

Amendment of section 12 of Act 121 of 1998, as amended by section 14 of Act 24 of 1999

2.	Section 12 of the principal Act is hereby amended—
(a)	by the insertion after subsection (1) of the following subsection:

"(1A)	In this Chapter 'offence' means any offence, whether committed before or after the commencement of this Act.";  and

(b)	by the substitution for subparagraph (i) of subsection (2)(a) for the following subparagraph:

“(i)	if the estate of such person has been sequestrated, also to the [executor] trustee of his or her insolvent estate; or”.

Option 1:
Insertion of section 24A into Act 121 of 1998

3.	The following section is hereby inserted into the principal Act:

“Appeal against confiscation order

24A.	(1)	Any person against whom a confiscation order is made may, within 30 days after the making thereof, appeal against such order.
(2)	On appeal the court may make such order in the matter as it deems fit.
(3)	The provisions of the Supreme Court Act, 1959 (Act 59 of 1959), and the rules made under section 43 of that Act shall, with the necessary changes, apply to an appeal made in terms of this section.
(4)	A restraint order and an order authorising the seizure of the property concerned or other ancillary order which is  in force at the time of the making of a confiscation order shall remain in force pending the outcome of an appeal made in terms of subsection (1).”.

Option 2:

“Order to remain in force pending an appeal

24A.	A restraint order and an order authorising the seizure of the property concerned or other ancillary order which is  in force at the time of any decision by the court in relation to the making of a confiscation order, shall remain in force pending the outcome of—
(a)	any application or petition for leave to appeal;  or
(b)	any appeal,
against the decision concerned.”.

Amendment of section 26 of Act 121 of 1998, as amended by section 20 of Act 24 of 1999

Option 1:

4.	Section 26 of the principal Act is hereby amended—

(a)	by the deletion of paragraph (b) of subsection (4);

(b)	by the deletion of subsection (5);

(c)	by the substitution for subsection (8) of the following subsection:

"(8)	A High Court making a restraint order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official, and any other ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

(d)	by the addition of the following subsections:

“(10)	A High Court which made a restraint order—
(a)	may on application by a person affected by that order vary or rescind the restraint order or an order authorising the seizure of the property concerned or other ancillary order if it is satisfied that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant;  [or] and
(b) 	shall rescind the restraint order [if] when the proceedings against the defendant concerned are concluded. 
(11)	When a court orders the rescission of an order authorising the seizure of property in terms of subsection (10)(a) the court shall make such other order as it considers appropriate for the proper, fair and effective execution of the restraint order concerned.”.

Option 2:

4.	Section 26 of the principal Act is hereby amended by the substitution for subsection (8) of the following subsection:

"(8)	A High Court making a restraint order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official:  Provided that if the court is satisfied that such a seizure will cause undue hardship to any person with an interest in that property, or for any other compelling reason, it may make any ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Option 3:

4.	Section 26 of the principal Act is hereby amended by the substitution for subsection (8) of the following subsection:

"(8)	A High Court making a restraint order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official, or any [ancillary orders] order that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Option 4:

4.	Section 26 of the principal Act is hereby amended—

(a)	by the deletion of paragraph (b) of subsection (4);

(b)	by the deletion of subsection (5);

(c)	by the substitution for subsection (8) of the following subsection:

"(8)	A High Court making a restraint order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official, and any other ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

(d)	by the addition of the following subsections:

“(10)	A High Court which made a restraint order—
(a)	may on application by a person affected by that order vary or rescind the restraint order or an order authorising the seizure of the property concerned or other ancillary order if it is satisfied—
(i)	 that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant;  and
(ii)	that the hardship that the applicant will suffer as a result of the order outweighs the risk that the property concerned may be destroyed, lost, damaged, concealed or transferred;  and
(b) 	shall rescind the restraint order when the proceedings against the defendant concerned are concluded.
(11)	When a court orders the rescission of an order authorising the seizure of property in terms of subsection (10)(a) the court shall make such other order as it considers appropriate for the proper, fair and effective execution of the restraint order concerned.”.

Insertion of section 29A into Act 121 of 1998

5.	The following section is hereby inserted into the principal Act:

" Variation and rescission of certain orders suspended by appeal

Option 1:

29A.	The noting of an appeal against a decision to vary or rescind any order referred to in  sections 26(5), 28(3) and 29(7) shall suspend such a variation or rescission pending the outcome of the appeal.".

Option 2:

29A.	An appeal against a decision to vary or rescind any order referred to in  sections 26(5), 28(3) and 29(7) shall suspend such a variation or rescission pending the outcome of the appeal:  Provided that the court a quo may—
(a)	on the application by any person with an interest in the property concerned;  and
(b)	if the appeal has not been decided within three months after it was noted, 
make such order regarding the further suspension of such variation or rescission as it deems appropriate.".

Option 3:

29A.	An appeal against a decision to vary or rescind any order referred to in  sections 26(5), 28(3) and 29(7) shall suspend such a variation or rescission pending the outcome of the appeal:  Provided that the court that made the order concerned may—
(a)	on the application by any person with an interest in the property concerned;  and
(b)	if the court is satisfied that such a suspension will cause undue hardship to such applicant,
grant such relief to the applicant as it deems appropriate.".

Option 4:	Delete clause altogether.

Amendment of section 38 of Act 121 of 1998

6.	Section 38 of the principal Act is hereby amended by the substitution for 	subsection (3) of the following subsection:

Option 1:

“(3)	A High Court making a preservation of property order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official, and any other ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Option 2:
"(3)	A High Court making a preservation of property order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official:  Provided that if the court is satisfied that such a seizure will cause undue hardship to any person with an interest in that property, or for any other compelling reason, it may make any ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Option 3:

"(3)	A High Court making a preservation of property order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official, or any [ancillary orders] order that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Amendment of section 42 of Act 121 of 1998

7.	Section 42 of the principal Act is hereby amended by the substitution for the words preceding paragraph (a) of subsection (1) of the following words:

“Where a High Court has made a preservation of property order, the High Court [may] shall, if it deems it appropriate, at [any] the time of the making of the order or at a later time—”.

Amendment of section 47 of Act 121 of 1998, as amended by section 25 of Act 24 of 1999

Option 1: (read with option for new clause (9))

8.	Section 47 of the principal Act is hereby amended is hereby amended—

(a)	by the deletion of subsection (1); and

(b)	by the deletion of subsection (3).

Option 2:

8.	Section 47 of the principal Act is hereby amended—

(a)	by the substitution for subsection (1) of the following subsection:

“(1)	[(a) 	Any person affected by a preservation of property order may at any time apply for the variation or rescission of the order.
(b)]	A High Court which made a preservation of property order—
[(i)](a)	may [at any time] on application by a person affected by that order vary or rescind the preservation of property order or an order authorising the seizure of the property concerned or other ancillary order if it [deems it necessary in the interests of justice] is satisfied that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant;  [or] and
[(ii)](b)	shall rescind the preservation of property order [if] when the proceedings against the defendant concerned are concluded.”;

(b)	by the insertion after subsection (1) of the following subsection:

“(1A)	When a court orders the rescission of an order authorising the seizure of property under paragraph (1)(a) the court shall make such other order as it considers appropriate for the proper, fair and effective execution of the preservation of property order concerned.”;

(c)	by the addition of the following subsection:

“(4)	The noting of an appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal.”.

Option 3

8.	Section 47 of the principal Act is hereby amended—

(a)	by the substitution for subsection (1) of the following subsection:

“(1)	[(a) 	Any person affected by a preservation of property order may at any time apply for the variation or rescission of the order.
(b)]	Subject to subsection (1A) a High Court which made a preservation of property order—
[(i)](a)		may [at any time] on application by a person affected by that order vary or rescind the preservation of property order or an ancillary order if it [deems it necessary in the interests of justice] is satisfied that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant;  or
[(ii)](b)	shall rescind the preservation of property order if the proceedings against the defendant concerned are concluded.”;

(b)	by the insertion after subsection (1) of the following subsection:

“(1A)	When a court orders the variation or rescission of a preservation of property order under paragraph (1)(a) the court shall make such order relating to the seizure in terms of section 38(3) of the property concerned as is necessary in accordance with the extent of the variation or rescission.”;

(c)	by the addition of the following subsection:

“(4)	The noting of an appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal.”.

Option 4:

8.	Section 47 of the principal Act is hereby amended by the addition of the following subsection:

“(4)	The noting of an appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal:  Provided that the court a quo may—
(a)	on the application by any person with an interest in the property concerned;  and
(b)	if the appeal has not been decided within three months after it was noted, 
make such order regarding the further suspension of such variation or rescission as it deems appropriate.”.

Option 5:

8.	Section 47 of the principal Act is hereby amended by the addition of the following subsection:

“(4)	The noting of an appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal:  Provided that the court that made the order concerned may—
(a)	on the application by any person with an interest in the property concerned;  and
(b)	if the court is satisfied that such a suspension will cause undue hardship to such applicant,
grant such relief to the applicant as it deems appropriate.".

Option 6:

8.	Section 47 of the principal Act is hereby amended—

(a)	by the substitution for subsection (1) of the following subsection:

“(1)	[(a) 	Any person affected by a preservation of property order may at any time apply for the variation or rescission of the order.
(b)]	A High Court which made a preservation of property order—
[(i)](a)	may [at any time] on application by a person affected by that order vary or rescind the preservation of property order or an order authorising the seizure of the property concerned or other ancillary order if it [deems it necessary in the interests of justice] is satisfied—
(i)	that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant;  and
(ii)	that the hardship that the applicant will suffer as result of the order outweighs the risk that the property concerned may be destroyed, lost, damaged, concealed or transferred;  [or] and
[(ii)](b)	shall rescind the preservation of property order when the proceedings against the defendant concerned are concluded.”;

(b)	by the insertion after subsection (1) of the following subsection:

“(1A)	When a court orders the rescission of an order authorising the seizure of property under paragraph (1)(a) the court shall make such other order as it considers appropriate for the proper, fair and effective execution of the preservation of property order concerned.”;

(c)	by the addition of the following subsection:

“(4)	The noting of an appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal.”.

Option: (read with option 1 for clause 8)

Insertion of section 47A into Act 121 of 1998

9.	The following section is hereby inserted into the principal Act:

“Preservation of property order not varied or rescinded

47A.	A preservation of property order or an order authorising the seizure of the property concerned or other ancillary order shall not be varied or rescinded pending the conclusion of the proceedings referred to in section 48(1).”.

Amendment of section 52 of Act 121 of 1998, as amended by section 29 of Act 24 of 1999

10.	Section 52 of the principal Act is hereby amended by the substitution for  subsection (2) of the following subsections:

"(2)	The High Court may make an order under subsection (1), in relation to the forfeiture of the proceeds of unlawful activities, if it finds on a balance of probabilities that the applicant for the order—
(a)	had acquired the interest concerned legally and for a consideration, the value of which is not significantly less than the value of that interest;  and
(b)	where the applicant had acquired the interest concerned after the commencement of this Act, that he or she neither knew nor had reasonable grounds to suspect that the property in which the interest is held is the proceeds of unlawful activities.
(2A)	The High Court may make an order under subsection (1), in relation to the forfeiture of an instrumentality of an offence referred to in Schedule I, if it finds on a balance of probabilities that the applicant for the order had acquired the interest concerned legally, and—
(a)	neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule 1;  or
(b)	where the offence concerned had occurred before the commencement of this Act, the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instrumentality of an offence referred to in Schedule 1.".

Amendment of section 54 of Act 121 of 1998, as amended by section 31 of Act 24 of 1999

11.	Section 54 of the principal Act is hereby amended by the substitution for  subsection (8) of the following subsections:

" (8)	The High Court may make an order under subsection (1), in relation to the forfeiture of the proceeds of unlawful activities, if it finds on a balance of probabilities that the applicant for the order—
(a)	had acquired the interest concerned legally and for a consideration, the value of which is not significantly less than the value of that interest;  and
(b)	where the applicant had acquired the interest concerned after the commencement of this Act, that he or she neither knew nor had reasonable grounds to suspect that the property in which the interest is held is the proceeds of unlawful activities.

(8A)	The High Court may make an order under subsection (1), in relation to the forfeiture of an instrumentality of an offence referred to in Schedule 1, if it finds on a balance of probabilities that the applicant for the order had acquired the interest concerned legally, and—
(a)	neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule 1;  or
(b)	where the offence concerned had occurred before the commencement of this Act, the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instrumentality of an offence referred to in Schedule 1.".

 Amendment of section 55 of Act 121 of 1998

12.	Section 55 of the principal Act is hereby amended by the addition of the following subsection:
“(5)	A preservation of property order and an order authorising the seizure of the property concerned or other ancillary order which is  in force at the time of the making of a forfeiture order under section 50(1) shall remain in force pending the outcome of an appeal made in terms of subsection (1) or (2).”.

Option 1:

12.	The following section is hereby substituted for section 55 of the principal Act:

"Appeal against forfeiture order

 			55.	Any preservation of property order and any order authorising the seizure of the property concerned or other ancillary order which is  in force at the time of any decision regarding the making of a forfeiture order under section 50(1) shall remain in force—
(a)	pending the outcome of an application or petition for leave to appeal;  or
(b)	an appeal,
against the decision concerned..”.

Amendment of section 80 of Act 121 of 1998, as amended by section 41 of Act 24 of 1999

13.	Section 80 of the principal Act is hereby amended by the addition of the 	following subsection:

" (3)	An investigation, or prosecution or other legal proceeding, in respect of conduct which would have constituted an offence under the Proceeds of Crime Act, 1996, and which occurred after the commencement of that Act but before the commencement of this Act, may be instituted and continued as if this Act had not been passed.".

Amendment of Preamble to Act 121 of 1998

14.	The Preamble to the principal Act is hereby amended by the substitution for the ninth paragraph thereof of the following paragraphs:

"AND WHEREAS no person convicted of an offence should benefit from the fruits of that or any related offence, whether such offence took place before or after the commencement of this Act, legislation is necessary to provide for a civil remedy for the restraint and seizure, and confiscation of property which forms the benefits derived from such offence;

AND WHEREAS [persons] no person should [not] benefit from the fruits of [organised crime and money laundering] unlawful activities, nor is any person entitled to use property for the commission of an offence, whether such activities or offence took place before or after the commencement of this Act, legislation is necessary to provide for a civil remedy for the preservation and seizure, and forfeiture of property which is derived from unlawful activities or is concerned in the commission or suspected commission of an offence;".

Amendment of Index to Act 121 of 1998
15.	The Index to the principal Act is hereby amended by the insertion, in Part 3, of the following item:

"24A.	Appeal against confiscation order
29A.	Variation and rescission of certain orders suspended by appeal".

Short title

16.	This Act is called the Prevention of Organised Crime Second Amendment Act, 1999.

Justice NA Committee: Proposed Amendments: 26/08/99
REPUBLIC OF SOUTH AFRICA
PREVENTION OF ORGANISED CRIME SECOND AMENDMENT BILL, 1999
--------------------------------
BILL WITH DRAFT AMENDMENTS
---------------------------------
(MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B   - 99]
_______________________________________________________________
ii090899

GENERAL EXPLANATORY NOTE:

[		]	Words in bold type in square brackets indicate omissions from existing enactments.
___________	Words underlined with a solid line indicate insertions in existing enactments.
_______________________________________________________________

B I L L

To amend the Prevention of Organised Crime Act, 1998, so as to amend certain definitions; to further regulate the seizure of certain property and the making of orders ancillary to restraint orders and preservation of property orders; to further regulate appeals against certain orders; to further regulate the exclusion of interests in property; to further regulate transitional arrangements; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa as follows:—

Amendment of section 1 of Act 121 of 1998, as amended by section 3 of Act 24 of 1999

1.	Section 1 of the Prevention of Organised Crime Act, 1998 (hereinafter referred to as the principal Act), is hereby amended—
(a)	by the substitution for the definition of "instrumentality of an offence" in subsection (1) of the following definition:
" 'instrumentality of an offence' means any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the Republic or elsewhere;";  and
(b)	by the substitution for the definition of "proceeds of unlawful activities" in subsection (1) of the following definition:
" 'proceeds of unlawful activities', means any property or any service, advantage, benefit or reward which was derived, received or retained, directly or indirectly, in connection with or as a result of any unlawful activity carried on at any time before or after the commencement of this Act by any person, whether carried on in the Republic or elsewhere[, except for purposes of Chapter 5 where it means—
(a)	any unlawful activity carried on by any person; or
(b)	any act or omission outside the Republic which, if it had occurred in the Republic, would have constituted an unlawful activity,]
and includes any property representing property so derived;".

Amendment of section 12 of Act 121 of 1998, as amended by section 14 of Act 24 of 1999

2.	Section 12 of the principal Act is hereby amended—

(a)	by the insertion after subsection (1) of the following subsection:

"(1A)	In this Chapter 'offence' means any offence, whether committed before or after the commencement of this Act.";  and

(b)	by the substitution for subparagraph (i) of subsection (2)(a) for the following subparagraph:

“(i)	if the estate of such person has been sequestrated, also to the [executor] trustee of his or her insolvent estate; or”.

Insertion of section 24A into Act 121 of 1998

3.	The following section is hereby inserted into the principal Act:

“Appeal against confiscation order

24A.	(1)	Any person against whom a confiscation order is made may, within 30 days after the making thereof, appeal against such order.
(2)	On appeal the court may make such order in the matter as it deems fit.
(3)	The provisions of the Supreme Court Act, 1959 (Act 59 of 1959), and the rules made under section 43 of that Act shall, with the necessary changes, apply to an appeal made in terms of this section.
(4)	A restraint order and an order authorising the seizure of the property concerned or other ancillary order which is  in force at the time of the making of a confiscation order shall remain in force pending the outcome of an appeal made in terms of subsection (1).”.

Amendment of section 26 of Act 121 of 1998, as amended by section 20 of Act 24 of 1999

Option 1:

4.	Section 26 of the principal Act is hereby amended—

(a)	by the deletion of paragraph (b) of subsection (4);

(b)	by the deletion of subsection (5);

(c)	by the substitution for subsection (8) of the following subsection:

"(8)	A High Court making a restraint order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official, and any other ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

(d)	by the addition of the following subsections:
“(10)	A High Court which made a restraint order—
(a)	may on application by a person affected by that order vary or rescind the restraint order or an order authorising the seizure of the property concerned or other ancillary order if it is satisfied that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant;  or
(b) 	shall rescind the restraint order if the proceedings against the defendant concerned are concluded. 
(11)	When a court orders the rescission of an order authorising the seizure of property in terms of subsection (10)(a) the court shall make such other order as it considers appropriate for the proper, fair and effective execution of the restraint order concerned.”.

Option 2:

4.	Section 26 of the principal Act is hereby amended by the substitution for subsection (8) of the following subsection:

"(8)	A High Court making a restraint order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official:  Provided that if the court is satisfied that such a seizure will cause undue hardship to any person with an interest in that property, or for any other compelling reason, it may make any ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Option 3:

4.	Section 26 of the principal Act is hereby amended by the substitution for subsection (8) of the following subsection:

"(8)	A High Court making a restraint order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official, or any [ancillary orders] order that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Insertion of section 29A into Act 121 of 1998

5.	The following section is hereby inserted into the principal Act:

" Variation and rescission of certain orders suspended by appeal

Option 1:

29A.	The noting of an appeal against a decision to vary or rescind any order referred to in  sections 26(5), 28(3) and 29(7) shall suspend such a variation or rescission pending the outcome of the appeal.".

Option 2:

29A.	An appeal against a decision to vary or rescind any order referred to in  sections 26(5), 28(3) and 29(7) shall suspend such a variation or rescission pending the outcome of the appeal:  Provided that the court a quo may—
(a)	on the application by any person with an interest in the property concerned;  and
(b)	if the appeal has not been decided within three months after it was noted, 
make such order regarding the further suspension of such variation or rescission as it deems appropriate.".

Option 3:

29A.	An appeal against a decision to vary or rescind any order referred to in  sections 26(5), 28(3) and 29(7) shall suspend such a variation or rescission pending the outcome of the appeal:  Provided that the court that made the order concerned may—
(a)	on the application by any person with an interest in the property concerned;  and
(b)	if the court is satisfied that such a suspension will cause undue hardship to such applicant,
grant such relief to the applicant as it deems appropriate.".

Option 4:	Delete clause altogether.

Amendment of section 38 of Act 121 of 1998

6.	Section 38 of the principal Act is hereby amended by the substitution for 	subsection (3) of the following subsection:

Option 1:

“(3)	A High Court making a preservation of property order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official, and any other ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Option 2:

"(3)	A High Court making a preservation of property order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official:  Provided that if the court is satisfied that such a seizure will cause undue hardship to any person with an interest in that property, or for any other compelling reason, it may make any ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Option 3:

"(3)	A High Court making a preservation of property order [may when it makes the order or at any time thereafter,] shall at the same time make an order authorising the seizure of all movable property concerned by a police official, or any [ancillary orders] order that the court considers appropriate for the proper, fair and effective execution of the order [, including an order authorising the seizure of the property concerned by a police official].".

Amendment of section 42 of Act 121 of 1998

7.	Section 42 of the principal Act is hereby amended by the substitution for the words preceding paragraph (a) of subsection (1) of the following words:

“Where a High Court has made a preservation of property order, the High Court [may] shall, at [any] the time of the making of the order or at a later time, and if it deems it appropriate—”.

Amendment of section 47 of Act 121 of 1998, as amended by section 25 of Act 24 of 1999

Option 1: (read with option for new clause (9))

8.	Section 47 of the principal Act is hereby amended is hereby amended—
(a)	by the deletion of subsection (1); and

(b)	by the deletion of subsection (3).

Option 2:

8.	Section 47 of the principal Act is hereby amended—

(a)	by the substitution for subsection (1) of the following subsection:

“(1)	[(a) 	Any person affected by a preservation of property order may at any time apply for the variation or rescission of the order.
(b)]	A High Court which made a preservation of property order—
[(i)](a)		may [at any time] on application by a person affected by that order vary or rescind the preservation of property order or an order authorising the seizure of the property concerned or other ancillary order if it [deems it necessary in the interests of justice] is satisfied that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant;  or
[(ii)](b)	shall rescind the preservation of property order if the proceedings against the defendant concerned are concluded.”;

(b)	by the insertion after subsection (1) of the following subsection:

“(1A)	When a court orders the rescission of an order authorising the seizure of property under paragraph (1)(a) the court shall make such other order as it considers appropriate for the proper, fair and effective execution of the preservation of property order concerned.”;

(c)	by the addition of the following subsection:

“(4)	The noting of an appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal.”.

Option 3

8.	Section 47 of the principal Act is hereby amended—

(a)	by the substitution for subsection (1) of the following subsection:

“(1)	[(a) 	Any person affected by a preservation of property order may at any time apply for the variation or rescission of the order.
(b)]	Subject to subsection (1A) a High Court which made a preservation of property order—
[(i)](a)		may [at any time] on application by a person affected by that order vary or rescind the preservation of property order or an ancillary order if it [deems it necessary in the interests of justice] is satisfied that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant;  or
[(ii)](b)	shall rescind the preservation of property order if the proceedings against the defendant concerned are concluded.”;

(b)	by the insertion after subsection (1) of the following subsection:

“(1A)	When a court orders the variation or rescission of a preservation of property order under paragraph (1)(a) the court shall make such order relating to the seizure in terms of section 38(3) of the property concerned as is necessary in accordance with the extent of the variation or rescission.”;

(c)	by the addition of the following subsection:

“(4)	The noting of an appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal.”.

Option 4:

8.	Section 47 of the principal Act is hereby amended by the addition of the following subsection:

“(4)	The noting of an appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal:  Provided that the court a quo may—
(a)	on the application by any person with an interest in the property concerned;  and
(b)	if the appeal has not been decided within three months after it was noted, 
make such order regarding the further suspension of such variation or rescission as it deems appropriate.”.

Option 5:

8.	Section 47 of the principal Act is hereby amended by the addition of the following subsection:

“(4)	The noting of an appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal:  Provided that the court that made the order concerned may—
(a)	on the application by any person with an interest in the property concerned;  and
(b)	if the court is satisfied that such a suspension will cause undue hardship to such applicant,
grant such relief to the applicant as it deems appropriate.".

Option: (read with option 1 for clause 8)

Insertion of section 47A into Act 121 of 1998

9.	The following section is hereby inserted into the principal Act:

“Preservation of property order not varied or rescinded

47A.	A preservation of property order or an order authorising the seizure of the property concerned or other ancillary order shall not be varied or rescinded pending the conclusion of the proceedings referred to in section 48(1).”.

Amendment of section 52 of Act 121 of 1998, as amended by section 29 of Act 24 of 1999

10.	Section 52 of the principal Act is hereby amended by the substitution for  subsection (2) of the following subsections:

"(2)	The High Court may make an order under subsection (1), in relation to the forfeiture of the proceeds of unlawful activities, if it finds on a balance of probabilities that the applicant for the order—
(a)	had acquired the interest concerned legally and for a consideration, the value of which is not significantly less than the value of that interest;  and
(b)	where the applicant had acquired the interest concerned after the commencement of this Act, that he or she neither knew nor had reasonable grounds to suspect that the property in which the interest is held is the proceeds of unlawful activities.
(2A)	The High Court may make an order under subsection (1), in relation to the forfeiture of an instrumentality of an offence referred to in Schedule I, if it finds on a balance of probabilities that the applicant for the order—
(a)	had acquired the interest concerned legally;  and
(b)	neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule I:  Provided that where the offence concerned had occurred before the commencement of this Act, the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instrumentality of an offence referred to in Schedule I.".

Amendment of section 54 of Act 121 of 1998, as amended by section 31 of Act 24 of 1999

11.	Section 54 of the principal Act is hereby amended by the substitution for  subsection (8) of the following subsections:

" (8)	The High Court may make an order under subsection (1), in relation to the forfeiture of the proceeds of unlawful activities, if it finds on a balance of probabilities that the applicant for the order—
(a)	had acquired the interest concerned legally and for a consideration, the value of which is not significantly less than the value of that interest;  and
(b)	where the applicant had acquired the interest concerned after the commencement of this Act, that he or she neither knew nor had reasonable grounds to suspect that the property in which the interest is held is the proceeds of unlawful activities.

(8A)	The High Court may make an order under subsection (1), in relation to the forfeiture of an instrumentality of an offence referred to in Schedule I, if it finds on a balance of probabilities that the applicant for the order—
(a)	had acquired the interest concerned legally;  and
(b)	neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule I:  Provided that where the offence concerned had occurred before the commencement of this Act, the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instrumentality of an offence referred to in Schedule I.".

 Amendment of section 55 of Act 121 of 1998

12.	Section 55 of the principal Act is hereby amended by the addition of the following subsection:

“(5)	A preservation of property order and an order authorising the seizure of the property concerned or other ancillary order which is  in force at the time of the making of a forfeiture order under section 50(1) shall remain in force pending the outcome of an appeal made in terms of subsection (1) or (2).”.

Amendment of section 80 of Act 121 of 1998, as amended by section 41 of Act 24 of 1999

13.	Section 80 of the principal Act is hereby amended by the addition of the 	following subsection:

" (3)	An investigation, or prosecution or other legal proceeding, in respect of conduct which would have constituted an offence under the Proceeds of Crime Act, 1996, and which occurred after the commencement of that Act but before the commencement of this Act, may be instituted and continued as if this Act had not been passed.".

Amendment of Preamble to Act 121 of 1998

14.	The Preamble to the principal Act is hereby amended by the substitution for the ninth paragraph thereof of the following paragraphs:

"AND WHEREAS no person convicted of an offence should benefit from the fruits of that or any related offence, whether such offence took place before or after the commencement of this Act, legislation is necessary to provide for a civil remedy for the restraint and confiscation of property which forms the benefits derived from such offence;

AND WHEREAS [persons] no person should [not] benefit from the fruits of [organised crime and money laundering] unlawful activities, nor is any person entitled to use property for the commission of an offence, whether such activities or offence took place before or after the commencement of this Act, legislation is necessary to provide for a civil remedy for the preservation and, where appropriate, forfeiture of property which is derived from unlawful activities or concerned in the commission or suspected commission of an offence;".

Amendment of Index to Act 121 of 1998

15.	The Index to the principal Act is hereby amended by the insertion, in Part 3, of the following item:

"24A.	Appeal against confiscation order
29A.	Variation and rescission of certain orders suspended by appeal".

Short title

16.	This Act is called the Prevention of Organised Crime Second Amendment Act, 1999.