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:

RECOGNISING THAT—

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

Section

INTRODUCTORY PROVISIONS

GUIDE ON ACT AND MANUALS ABOUT FUNCTIONS OF GOVERNMENTAL BODIES

[PART 5

INTRODUCTORY PROVISIONS

1. (1) In this Act, unless the context otherwise indicates—

"this Act" includes any regulation made and in force in terms of section 86;

(2) For the purposes of this Act, a board, council, committee, commission or other body—

(a) established or constituted in terms of legislation; or

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.

(3) For the purposes of this Act, the [Human Rights Commission] Minister may, in the prescribed manner, determine—

3. (1) The objects of this Act are—

(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.

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—

(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[—

PART 3

9.(1) Any person must[, on request, but subject to this Act,] be given access to any record of a governmental body if—

(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—

Use of Act for criminal or civil discovery of governmental bodies’ records excluded

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.

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

(2) The form for a request of access prescribed for the purposes of subsection (1) must at least require from the requester concerned—

(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—

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).

(1) If a requester informs the information officer of—

(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—

(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—

whichever will result in the request being dealt with earlier.

15. (1) If a request for access is made to the information officer of a governmental body in respect of which—

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—

(2) If a request for access is made to the information officer of a governmental body in respect of which—

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—

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—

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—

the information officer of the governmental body concerned must by notice require the requester to pay that fee.

(3) That notice must state—

(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.

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).

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.

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

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).

18. (1) If—

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—

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

(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.

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—

(3) If the request for access is refused, the notice in terms of subsection (1)(b) must state—

[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—

(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—

(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—

(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—

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

any such information must, despite any other provision of this Act, be disclosed.

(2) If a request for access to—

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.

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—

(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)—

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:

(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—

(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—

(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.

Language of access

26. A requester whose request for access to a record of a governmental body has been granted must, if the record—

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—

28.(1) The information officer of a governmental body—

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

(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:

1. 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;
2. 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;
3. any identifying number, symbol or other particular assigned to the individual;
4. the address, fingerprints or blood type of the individual;
5. 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;
6. 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;
7. the views or opinions of another individual about the individual,

1. 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
2. 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—

3. information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual;
4. 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;
5. any identifying number, symbol or other particular assigned to the individual;
6. the address, fingerprints or blood type of the individual;
7. 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;
8. 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;
9. the views or opinions of another individual about the individual,
10. 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
11. 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,

Mandatory protection of third party commercial information

Safety of individuals and security of structures and systems

Privileged from production in legal proceedings

Exclusion of liability if disclosing information after publication

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—

(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—

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)—

(3) When informing a third party in terms of subsection (1), the [head concerned] relevant authority must—

(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[—

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.

(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—

(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.

70. (1) The decision on an internal appeal must be made with due regard to—

(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—

(4) The [head of the governmental body] relevant authority must, immediately after the decision on an internal appeal—

(5) The notice in terms of subsection (4)(a) must state—

(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—

(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.

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.

73. (1) An application in terms of this Chapter must be lodged[—]

74. (1) A person—

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[—

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—

76. A [High C]court has jurisdiction in respect of—

in the area of jurisdiction of the [High C]court.

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].

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—

(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.

79. In any legal proceedings the burden of establishing that—

is justified in terms of this Act is on the party claiming that it is so justified.

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—

(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.

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

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.

73.(1) An application in terms of this Chapter must be lodged[—]

(3) If the interests of justice so require, a High Court having jurisdiction may extend the period within which an application may be lodged].

74. (1) A person—

may [appeal against the decision by way of an application] apply for appropriate relief in terms of section 80.

(3) The Human Rights Commission may [appeal by way of an application] apply for appropriate relief against a decision of[—]

76. A [High C]court has jurisdiction in respect of—

in the area of jurisdiction of the [High C]court.

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].

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—

(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.

79. In any legal proceedings the burden of establishing that—

is justified in terms of this Act is on the party claiming that it is so justified.

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—