Revised working draft - 11 January 2000

OPD

"OPEN DEMOCRACY" BILL

(Revised working draft - 11 January 2000)

EXPLANATORY NOTE:

# Proposed deletions are in square brackets and in bold.

# Proposed insertions or alternative wordings are underlined or in { } or [ ] but not in bold.

# Changes to cross-references and the table of content are not underlined or in bold.

To give effect to the constitutional right of access to any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith.

PREAMBLE

OPTION 1

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

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

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

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

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

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

And whereas section 32(1)(b) of the Constitution provides that everyone has the right of access to any information that is held by another person and that is required for the exercise or protection of any rights [, and that right may be limited to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom];

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

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

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

OPTION 2

RECOGNISING THAT-

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

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

AND BEARING IN MIND THAT-

* the state must respect, protect, promote and fulfil the rights in the Bill of Rights which is the cornerstone of democracy in South Africa;

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

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

AND IN ORDER TO-

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

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

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

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

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

CONTENTS OF ACT

Section

PART 1

INTRODUCTORY PROVISIONS

1. Definitions

2. Objects of Act

3. Guide on how to use Act

4. Part applicable when performing functions as governmental or private body

4A. Interpretation of Act

PART 2

ACCESS TO RECORDS OF GOVERNMENTAL BODIES
CHAPTER 1

APPLICATION

5. Act applies to record whenever it came into existence

6. Act not applying to certain governmental bodies or officials thereof

7. Body deemed as part of another governmental body

8. Records held by officials or independent contractor of governmental body

9. Application of other legislation prohibiting or restricting disclosure

10. Application of other legislation providing for access

11. Act not applying to records required for criminal or civil proceedings after commencement

12. Right of disclosure of record to which access is given

CHAPTER 2

{PUBLICATION AND} AVAILABILITY OF CERTAIN RECORDS

13. Manuals on functions of, and index of records held by, governmental bodies

14. Voluntary disclosure of records

15. Information in telephone directory

CHAPTER 3

RIGHT AND MANNER OF ACCESS

16. Right of access to records of governmental bodies

17. Designation of deputy information officers and delegation

18. Form of requests

19. Duty to assist requesters

20. Transfer of requests

21. Preservation of records until final decision on request

22. Fees

23. Records that cannot be found or do not exist

24. Deferral of access

25. Decision on request and notice thereof

{25A. Urgent requests}

26. Extension of period to deal with request

27. Deemed refusal of request

28. Severability

29. Access and forms of access

{29A. Access to health records}

30. Language of access

31. Reports to Human Rights Commission

CHAPTER 4

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

32. Mandatory and discretionary grounds for refusal, and interpretation

33. Mandatory protection of privacy {of third party}

34. Health of requester

35. Mandatory protection of {third party} commercial information {of third party}

36. Records supplied in confidence {OR Confidential records}

{Tax related records}

37. {Mandatory protection of} (S)afety of individuals, and {protection of} security of structures and systems {OR property}

38. Law enforcement

39. Mandatory protection of records privileged from production in legal proceedings

40. Republic's defence, security and international relations {Option 2}

{41. International relations}

42. Economic interests of Republic and commercial activities of governmental bodies

{42A. Records about research}

42B. Cabinet's records}

43. Operations of governmental bodies

44. Frivolous or vexatious requests or diversion of resources

{44A. Necessity of harm}

45. Mandatory disclosure in public interest

CHAPTER 5

THIRD PARTY INTERVENTION

46. Notice to third parties

47. Representations by third parties

48. Decision on representations for refusal and notice thereof

PART 3

ACCESS TO RECORDS OF PRIVATE BODIES
CHAPTER 1

APPLICATION

49. Part applies to record whenever it came into existence

50. Records held by official or independent contractor of private body

51. Application of other legislation prohibiting or restricting disclosure

52. Application of other legislation providing for access

53. Act not applying to private bodies' records required for criminal or civil proceedings after commencement

CHAPTER 2

PUBLICATION AND AVAILABILITY OF CERTAIN RECORDS

54. Manual

55. Voluntary disclosure of certain records

CHAPTER 3

RIGHT AND MANNER OF ACCESS

56. Right of access to records of private bodies

57. Form of request

58. Fees

59. Decision on request

60. Extension of period to deal with request

61. Records that cannot be found or do not exist

62. Severability

63. Form of access

{63A. Access to health records}

CHAPTER 4

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

64. Interpretation

65. Mandatory protection of privacy {of third party}

66. Health of requester

67. Mandatory protection of third party commercial information

68. Breach of confidence provided for by agreement

69. {Mandatory protection of} {S}afety of individuals and {protection of} security of structures and systems {OR property}

70. Mandatory protection of records privileged from production in legal proceedings

71. Commercial information of private body

71A. Records about research

72. Mandatory disclosure

72A. Adverse effects

CHAPTER 5

THIRD PARTY NOTIFICATION

73. Notice to third parties

74. Representations by third parties

75. Decision on representations for refusal and notice thereof

PART 4

APPEALS AGAINST DECISIONS
{CHAPTER 1

INTERNAL APPEALS

76. Right of internal appeal to relevant authority

77. Manner of internal appeal, and appeal fees

78. Notice to and representations by other interested parties

79. Decision on internal appeal and notice thereof }

CHAPTER 2
APPLICATIONS TO COURT

80. Non-exclusion of other remedies

81. Manner of applications to court

82. Applications regarding decisions of information officers of governmental bodies {or head of private bodies}

83. Jurisdiction of court

84. Assistance of Human Rights Commission

85. Production of records of governmental {and private} bodies to court

86. Burden of proof

87. Decision on application

88. Costs

PART 5

HUMAN RIGHTS COMMISSION

89. Additional functions of Human Rights Commission

90. Report to National Assembly by Human Rights Commission

91. Expenditure of Human Rights Commission in terms of Act

PART 6

TRANSITIONAL ARRANGEMENTS

92. Application of other legislation providing for access

93. Periods for dealing with requests

93A. Correction of personal information

PART 7

GENERAL PROVISIONS

{94. Liability}

95. Offences

96. Regulations

97. Short title and commencement

PART 1

INTRODUCTORY PROVISIONS

Definitions

1. In this Act, unless the context otherwise indicates-

"access fee" means a fee prescribed for the purposes of section 22;

"application" means an application to a [High] court in terms of section 74 [or 75, as the case may be];

["commercial requester" means a requester other than a personal or non-commercial requester;]

"Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

"court" means-

(a) a High Court or another court of similar status; or

(b) a Magistrate's Court designated in writing {OR by notice in the Gazette} by the Minister, after consultation with the Magistrates Commission;

"evaluative material" means an evaluation or opinion prepared for the purpose of determining-

(a) the suitability, eligibility or qualifications of the person to whom or which the evaluation or opinion relates-

(i) for employment or for appointment to office;

(ii) for promotion in employment or office or for continuance in employment or office;

(iii) for removal from employment or office; or

(iv) for the awarding of a scholarship, award, bursary, honour or similar benefit; or

(b) whether any scholarship, award, bursary, honour or similar benefit should be continued, modified, cancelled or renewed;

Option 1:

"governmental body" means-

(a) any department of state or administration in the national, provincial or local sphere of government or any other functionary or institution exercising a power or performing a duty in terms of the Constitution or a provincial constitution or exercising a public power or performing a public function in terms of any legislation, and includes, without limiting the generality of the foregoing, any body-

(i) of which the accounts and financial statements which are required by legislation to be audited by the Auditor-General;

(ii) of which the majority of the members are appointed, whether alone or on the advice or recommendation of, or in or after consultation with some other person or body, by the President, the Deputy President, a Minister, the Premier of a province, a member of the executive council of a province or of the municipal council of a municipality, another governmental body, or more than one of those authorities;

(iii) in which the state, a province or a municipality is the majority or controlling shareholder;

(iv) of which more than 50 per cent of its expenditure is defrayed directly or indirectly from funds voted by Parliament, a provincial legislature or a municipal council;

(v) which is or was dependent for more than 50 per cent of its total permanent capital needs, including share capital, loans or other forms of permanent capital, on funds voted by Parliament, a provincial legislature or a municipal council, and in which permanent capital the state, a province or a municipality still holds a direct or indirect interest of more than 50 per cent;

(vi) which supplies products or services in terms of monopolistic rights conferred on it by legislation;

(vii) in respect of which the state, a province or a municipality creates the probability through contingent liability that funds voted by Parliament, a provincial legislature or a municipal council will have to be used in future to defray more than 50 per cent of the body's expenditure or to provide more than 50 per cent of the body's permanent capital;

(viii) of which the funds, assets or other property are administered by the state, a province or a municipality on a trust basis on behalf of the inhabitants of the Republic or of a particular interest group; or

(b) any other body which was a body contemplated in paragraph (a)(vi) and which exercises in a monopolistic manner substantially the same functions as it performed when it was a body contemplated in paragraph (a)(vi),}

but does not include the Cabinet, a judicial officer [or a body regarded as being part of another body as contemplated in subsection (2) or (3)]; # Omit reference to the Cabinet if cl 6 or 42B is included

Option 2:

"governmental {OR public} body" means-

(a) any department of state or administration in the national, provincial or local sphere of government; or

(b) any other functionary or institution-

(i) exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation;

# NB see exclusions in new cl 6 below

# Definition of "head", in relation to a governmental body and private body omitted, but see def. of "information officer" and def. of "head" of ... a private body below.

Option 1:

"head" of, or in relation to, a private body means-

(a) in the case of a natural person {who carries on a trade, business or profession, that natural person}, that natural person or any person duly authorised by that natural person;

{(b) in the case of a partnership, any partner of the partnership or any person duly authorised by that partner} # Only necessary if Option 1 of def. of "private body" is used

{(b) in the case of a partner of a partnership, that partner or any person duly authorised by that partner} # Only necessary if Option 2 of def. of "private body" is used

(i) the chief executive officer or equivalent officer of the private body or any person duly authorised by that officer; or

(ii) the person who is acting as such or any person duly authorised by such acting person;

Option 2:

# Omit def. of "head" and refer to "private body" and not "head of a private body".

"health practitioner" means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals;

"Human Rights Commission" means the South African Human Rights Commission referred to in section 181(1)(b) of the Constitution;

["inaccurate", in relation to a record or information contained therein, means incorrect, incomplete or misleading with respect to the purpose for which the information may used or disclosed;]

"individual's next of kin" means-

Option 1 for paragraph (a):

(a) an individual to whom the individual was married or with whom the individual lived as if they were married [or with whom the individual cohabited], immediately before the individual's death;

Option 2 for paragraph (a):

(a) an individual to whom the individual was married or with whom the individual lived as if they were married;

(b) a parent, child, brother or sister of the individual; or

(c) if-

(i) there is no next of kin referred to in paragraphs (a) and (b); or

(ii) the requester concerned took all reasonable steps to locate such next of kin, but was unsuccessful,

an individual who is related to the individual in the second degree of affinity or consanguinity;

"information officer" of, or in relation to a governmental body [means the person appointed as information officer of that governmental body in terms of section 4(1)(a)]-

(a) in the case of a national department, provincial department or organisational component mentioned in Column 1 of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), means the officer who is the incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule 1 , 2 or 3 opposite the name of the relevant national department, provincial department or organisational component or the person who is acting as such;

(b) in the case of a municipality, means the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No.117 of 1998), or the person who is acting as such;

(c) in the case of any other governmental body, means the chief executive officer, or equivalent officer, of that governmental body or the person who is acting as such;

{"internal appeal" means an internal appeal to [the head of a governmental body] the relevant authority in terms of section 76(1);}

"international organisation" means an international organisation-

(a) of states; or

(b) established by the governments of states;

"Minister" means the Minister responsible for the administration of justice;

["non-commercial requester" means a requester seeking access to a record for the purpose of-

(a) gathering news for the production of, or disseminating news by, a printed or electronic medium; or

(b) research or education by a non-profit or an educational body or [a member or] an official of that body in his or her capacity as such;]

"notice" means notice in writing, and "notify" and "notified" have corresponding meanings;

"objects of this Act" means the objects of this Act referred to in section 2;

"official", in relation to a governmental or private body, means-

(a) any person in the employ (permanently or temporarily and full-time or part-time) of the governmental or private body, including the head of the body, in his or her capacity as such;

(b) a member of the governmental or private body; NB See exclusion in cl 6

"person" means an individual or a juristic person;

"personal information" means information about an identifiable [person] individual, including, but not limited to-

(a) information relating to the race, {gender,} sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, [disability,] well-being, religion, conscience, belief, culture, language and birth of the individual;

(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;

(d) the address, fingerprints or blood type of the individual;

(e) the personal opinions or views of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;

(f) correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature and replies to such correspondence that would reveal the contents of the original correspondence;

(g) the views or opinions of another individual about the individual,

(h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and

(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,

but excludes information about an individual who has been dead for more than 20 years;

["personal information bank" means a collection or compilation of personal information that is organised or capable of being retrieved by using a person's name or an identifying number or another particular assigned to the person;] # Used in previous def. of "private body" & in cl 13(2)(d)(ii)

"personal requester" means a requester seeking access to a record containing information about the requester or the person on whose behalf the request is made;

"prescribed" means prescribed by regulation in terms of section 96;

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

Option 1:

"private body" means-

(a) a natural person who carries {or has carried} on any trade, business or profession, but only in such capacity; or

(b) a partnership or a juristic person,

but excludes a governmental body;

Option 2:

"private body" means-

(a) a natural person who carries {or has carried} on any trade, business or profession, the natural person, but only in such capacity;

(b) any person that is {or was} a partner of a partnership, but only in such capacity; or

(c) a juristic person,

but excludes a governmental body;

Option 3:

"private body" means-

(a) a natural person who carries on any trade, business or profession, the natural person, but only in such capacity; or

(b) a juristic person,

but excludes a governmental body;

{"public enterprise" means any functionary or institution contemplated in paragraph (b)(ii) of the definition of "governmental body";}

"public safety or environmental risk" [includes] means the risk or potential risk to the environment or the public (including individuals in their place of work) associated with-

(a) a product or service which is available to the public;

(b) a substance which is released into the environment or workplace;

(c) a substance which is present in food for human or animal consumption;

(d) a form of public transport; or

(e) an installation or manufacturing process or substance which is used in that installation or process;

"record" means any recorded information regardless of form or medium, and includes-

(a) a record which is capable of being produced by means of computer equipment (whether hardware or software or both) which is used for that purpose by a governmental or private body, as the case may be; or

(b) a part of a record,

Option 1 for part below:

and, of, or in relation to, a governmental or private body, means a record in the possession or under the control of that governmental or private body, respectively, whether or not the record was created by the body;

Option 2 for second part of definition of "record":

# If in the Bill the words "a record held by a ... body" instead of " a record of a ... body" are used, omit the part "and, of, or in relation to ..."

{"relevant authority", in relation to-

(a) governmental body in the national sphere of government, means the Minister responsible for that governmental body;

(b) governmental body in the provincial sphere of government, means the member of the Executive Council responsible for that governmental body;

(c) a municipality, means the mayor of the municipality; } # Omit if provision is not made for internal appeal; # Public enterprises?

"request fee" means a fee prescribed for the purposes of section 22(1);

"request {for access}", in relation to-

(a) a governmental body, means a request for access to a record of a governmental body in terms of section 16 [and "requester", in relation to that request, means a person making that request];

(b) a private body, means a request for access to a record of a private body in terms of section 56;

["request for correction" means a request for the correction of personal information in a record of a governmental body in terms of section 52(2), and "requester", in relation to that request, means a person making that request;]

"requester", in relation to-

Option 1 for par (a):

(a) a governmental body, means-

(i) any person other than a governmental body or an official thereof, making a request for access to a record of that governmental body; or

{(ii) a person acting on behalf of the person referred to in subparagraph (i)}; # OR retain cl 18(5)

Option 2 for par (a):

(a) a governmental body, means-

(i) any person other than a governmental body or an official thereof, but including a public enterprise or an official thereof, making a request for access to a record of that governmental body; or

{(ii) a person acting on behalf of the person referred to in subparagraph (i)}; # OR retain cl 18(5), but cl 18(5) not wide enough?

Option 1 for par (b):

(b) a private body, means-

(i) any person other than a governmental body or an official thereof, making a request for access to a record of that private body; or

(ii) a person acting on behalf of the person referred to in subparagraph (i);

Option 2 for par (b):

(b) a private body, means-

(i) any person, including a governmental body, or an official thereof, when acting in the public interest, making a request for access to a record of that private body; or

(ii) a person acting on behalf of the person referred to in subparagraph (i);

{"subversive or hostile activities" means-

(a) aggression against the Republic;

(b) sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic;

(c) an activity aimed at changing the constitutional order of the Republic by the use of force or violence; or

(d) a foreign or hostile intelligence operation;} # Include if option 2 for cl 40 is used.

"third party", in relation to a request for access to-

(a) a record of a governmental body, means any person (including the government of a foreign state, an international organisation or an organ of that government or organisation) other than-

(i) the requester concerned;

{(ii) a person contemplated in section 18(5);} or # Omit if par's (a)(ii) and (b)(ii) of the def. of "requester" are included

(iii) a governmental body;

(b) a record of a private body, means any person including a governmental body, other than the requester;

"this Act" includes any regulation made and in force in terms of section 96;

"transfer", in relation to a record, means transferred in terms of section 20(1) or (2), and "transferred" has a corresponding meaning.

["urgent appeal application" means an application referred to in section 71(1); (ii)

"urgent request application" means an application referred to in section 20(1);

"working day" means any day other than a Saturday, Sunday or public holiday].

Objects of Act
PREVIOUSLY CLAUSE 3

2. The objects of this Act are-

(a) to give effect to the constitutional right of access to any information held by the state by providing public access, as swiftly, inexpensively and effortlessly as reasonably possible, to that information [without jeopardising good governance, privacy and commercial confidentiality] subject to justifiable limitations;

(b) to require governmental bodies to make information available that will assist the public in understanding the powers, duties and operation of governmental bodies;

(c) to [provide persons with access to their personal information held by private bodies] give effect to the constitutional right of access to any information that is held by a private body and that is required for the exercise or protection of any rights subject to justifiable limitations;

[(e) to regulate the use and disclosure of personal information held by governmental or private bodies;

(f) to protect persons disclosing evidence of contraventions of the law, maladministration or corruption in governmental bodies;] and

(g) generally, to promote transparency and accountability of all organs of state by providing the public with timely, accessible and accurate information and by empowering the public to effectively scrutinise, and participate in, governmental decision making that affect them.

Guide on how to use Act
PREVIOUSLY CLAUSE 5
Option 1 for subsection (1):

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

Option 2 for subsection (1):

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

Option 3 for subsection (1):

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

(2) The guide must, without limiting the generality of subsection (1), include a description of-

(a) the objects of this Act;

(b) the postal and street address, phone and fax number and, if available, electronic mail address of-

(i) the information officer of every governmental body; and

(ii) every deputy information officer of every governmental body appointed in terms of section17(1);

(bA) such particulars of every private body as are practicable;

(c) the manner and form in which a request for-

(i) access to a record of a governmental body contemplated in section 16; and

(ii) access to a record of a private body contemplated in section 56, [containing personal information; and

(iii) correction of personal information held by a private body and a governmental body,

contemplated in sections 19, 50, 51 and 52] must be made;

(d) the assistance available from the information officer of a governmental body [and the Human Rights Commission] in terms of this Act;

(dA) the assistance available from the Human Rights Commission in terms of this Act;

[(e) the manner of lodging-

{(i) an internal appeal with the [head of a governmental body] relevant authority; and}

(ii) an application with a [High] court against a decision by the information officer of a governmental body {Or relevant authority} or the head of a private body;]

(f) all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, [except the remedies referred to in paragraph (e)] including the manner of lodging-

{(i) an internal appeal with the relevant authority; and}

(ii) an application with a court against a decision by the information officer of a governmental body {OR relevant authority} or the head of a private body;

(g) the manual to be published by every governmental body and private body in terms of sections 13 and 54, respectively, the information contained therein and how to obtain access to the manual; and

(h) [the categories of records open to the public in terms of legislation as contemplated in section 43 and how to obtain access to those records] the voluntary disclosure of certain records in terms of sections 14 and 55.

(3) The Human Rights Commission must, if necessary, update and publish the guide at intervals of not more than [one] two years.

(4) The guide must[-

(a) if reasonably possible, be made available on the Internet by the Human Rights Commission; and

(b) otherwise] be made available as prescribed.

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

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

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

Interpretation of Act

PREVIOUSLY CLAUSE 3(2)

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

PART 2

ACCESS TO RECORDS OF GOVERNMENTAL BODIES
CHAPTER 1

APPLICATION

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

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

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

6. This Act does not apply to-

(a) the Cabinet; # Omit par (a) if cl 42B is included

(b) the judicial functions of-

(i) a court referred to in section 166 of the Constitution;

(ii) a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996); or

(iii) a judicial officer of such court or Special Tribunal; or

(c) a member of Parliament or of a provincial legislature.

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

7.(1) For the purposes of this Act, but subject to section 6, a board, council, committee, commission or other body-

(a) which is not a juristic person;

(b) which is-

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

(ii) wholly or partly constituted by [appointment made by the President, the Deputy President, a Minister, the Premier of a province, a member of the Executive Council of a province or of the Municipal Council of a municipality, a governmental body, or more than one of those authorities] one or more organs of state; and

(c) which is so established or constituted for the purpose of managing or administering any activity of, exercising any power of, to performing any duty of, or advising or assisting, [a] one or more governmental body,

is [not a separate governmental body, but is] regarded as being part of such governmental body, or as having such information officer, as the Minister determines by notice in the Gazette.

(1A) For the purposes of this Act, but subject to section 6, a body-

(a) which is not a juristic person;

(b) which consists of-

(i) more than one governmental body;

(ii) parts of more than one governmental body; or

(iii) one or more governmental body and one or more parts of one or more governmental bodies;

(c) which is-

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

(ii) wholly or partly constituted by one or more organs of state; and

(d) which is so established or constituted for the purpose of managing or administering any activity of, exercising any power of, to performing any duty of, or advising or assisting, one or more governmental body,

is regarded as being part of such governmental body, or as having such information officer, as the Minister determines by notice in the Gazette.

Option 1 for subsection (2):

(2) For the purposes of this Act, the Minister may, in the prescribed manner {OR by notice in the Gazette}, determine-

(a) that a governmental body is to be regarded as being part of another governmental body; or

(b) that a category of governmental bodies is to be regarded as one governmental body with such information officer as the Minister designates.

Option 2 for subsection (2):

(2) For the purposes of this Act, the Minister may, in the prescribed manner {OR by notice in the Gazette}, determine that two or more governmental bodies are to be regarded as one governmental body with such information officer as the Minister, after consultation with the governmental bodies concerned, designates.

NB # Similar provisions for private bodies?

Records held by official or independent contractor of governmental body

NEW CLAUSE (see def. of "official" & "record")

8. For the purposes of this Act, but subject to section 6, a record in the possession or under the control of {OR held by}-

(a) an official of a governmental body in his or her capacity as such; or

(b) an independent contractor engaged by a governmental body in the capacity as such contractor,

is regarded as being in the possession or under the control of that governmental body.

Application of other legislation prohibiting or restricting disclosure

PREVIOUSLY CLAUSE 2

Option 1:

9.(1) Subject to section 11, this Act applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record of a governmental body and that is materially {OR substantially} inconsistent with an object, or a specific provision, of this Act.

{(2) For the purposes of subsection (1), the manner in which access to a record of a governmental body may be obtained, including, but not limited to, the payment of fees, must not be construed as a restriction as contemplated in that subsection.} # Omit?

Option 2:

(1) Subject to section 11, if any conflict arises between {any provision of} this Act and {any provision of} other legislation that prohibits or restricts the disclosure of a record of a governmental body and that is materially {OR substantially} inconsistent with an object, or a specific provision, of this Act, {the provision of} this Act prevails.

Application of other legislation providing for access
PREVIOUSLY CLAUSE 12
Option 1:

10. Subject to section 92(3), this Act-

(a) does not apply to a record of a governmental body if access to that record may be obtained {OR is provided for} in terms of any legislation referred to in Schedule 1;

(b) applies a record of a governmental body if access to the record may be obtained {OR is provided for} in terms of any legislation not referred to in Schedule 1. # May be accessible by certain persons and not others

Option 2:

Subject to section 92(3), if any legislation providing for access to a record of a governmental body-

(a) is referred to in Schedule 1, that legislation applies to the exclusion of this Act; or

(b) is not referred to in Schedule 1, this Act applies to the exclusion of that legislation.

Option 3:

Option 1 for subsection (1):

(1) Nothing in this Part, except subsection (2), prevents the giving of access to a record of a governmental body in terms of any other law.

Option 2 for subsection (1):

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

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

Option 4:

(1) This Part does not apply to a record of a governmental body if the record is-

(a) subject to subsections (2) and (3), accessible in accordance with any other legislation; or

(b) described in a list published by notice in the Gazette in terms of section 6(2).

(2) The Minister must-

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

(b) in accordance with the prescribed criteria,

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

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

OPTION 1 FOR CL 11:

Act not applying to records required for criminal or civil proceedings after commencement

PREVIOUSLY CLAUSE 10

Option 1 for subsection (1):

11.(1) No person may, after the commencement of criminal or civil proceedings, knowingly request access to a record of a governmental body in terms of section 16 for the purpose of such proceedings if {the person has reason to believe that} the production of that record for that purpose is regulated by any other law .

Option 2 for subsection (1):

(1) No person may, after the commencement of criminal or civil proceedings, knowingly request access to a record of a governmental body in terms of section 16 for the purpose of such proceedings in order to circumvent any other law which regulates the production of that record for the purpose of such proceedings.

Option 1 for subsection (2):

(2) Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in the criminal or civil proceedings referred to in that subsection unless the exclusion of such record by the court in question would, in its opinion, be detrimental to the interests of justice.

Option 2 for subsection (2):

(2) Any person that contravenes subsection (1) is guilty of an offence and is, on conviction liable to imprisonment for a period of 12 months or a fine.

OPTION 2 FOR CL 11 - PHRASED AS AN EXEMPTION TO BE INCLUDED IN CHAPTER 4 OF PART 2 BELOW

NB SEE OPTION 2 FOR SUBSECTION (1B) IN CLAUSE 38 AS REGARDS CRIMINAL PROCEEDINGS - IF ADOPTED, INCLUDE SEPARATE CLAUSE FOR CIVIL PROCEEDINGS?

Criminal or civil discovery

The information officer of a governmental body may, after the commencement of criminal or civil proceedings, refuse a request for access to a record of the body if-

(a) the information officer has reason to believe to that the record is requested for the purpose of such proceedings; and

(b) the production of that record for that purpose is regulated by any other law.

Right of disclosure of record to which access is given

PREVIOUSLY CLAUSE 11

Option 1:

12. {(1)} Subject to the common law, any person, whether or not he or she is the relevant requester, may publish, broadcast or otherwise disclose information contained in a record of a governmental body to which access is given in terms of this Act.

Option 2:

{(1)} Subject to the common law or any legislation referred to in Schedule 2, any person, whether or not he or she is the relevant requester, may publish, broadcast or otherwise disclose information contained in a record of a governmental body to which access is given in terms of this Act.

# And include transitional arrangement similar to clause 92, ie clause 12 subject to other legislation for a period of 12 months from its commencement and then only if listed in Schedule 3.

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

Option 3:

# Omit clause 12

CHAPTER 2

PUBLICATION AND AVAILABILITY OF CERTAIN RECORDS

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

13. (1) {This section does not apply to a governmental body which is a public enterprise [that operates a system of financial administration separate from the national, provincial and local spheres of government].}

(2) Within 12 months after the commencement of this section or the coming into existence of a governmental body, the [head] information officer of the governmental body concerned must [publish] compile in at least two official languages a manual containing-

(a) a description of its structure and functions;

(b) the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of the body and of every deputy information officer of the body appointed in terms of section 17(1);

(c) a description of the guide referred to in section 3 and how to obtain access to it;

(d) in sufficient detail to facilitate a request for access to, and for correction of personal information in, a record of the body, a description of-

(i) the subjects on which the body holds records and the categories of records held on each subject; and

{(ii) every personal information bank held by the body, including, in respect of each bank-

(aa) the identification of the bank and a description of the categories of persons to whom or which the bank relates; and

(bb) a statement of the purposes for which the information in the bank was obtained or the bank was compiled and a statement of the purposes consistent with those purposes for which the information in the bank is used or disclosed; and}

(e) the latest notice, published in terms of section 14, regarding the kinds of records of the body which are available without a person having to request access in terms of this Act;

(f) a description of the services available to members of the public from the body and how to gain access to those services;

(g) a description of any arrangement or provision for a person (other than a governmental body) by consultation, making representations or otherwise, to participate in or influence-

(i) the formulation of policy; or

(ii) the exercise of powers or performance of duties,

by the body;

(h) a description of all remedies available in respect of an act or a failure to act by the body;

(i) such other information as may be prescribed.

(3) A governmental body must, if necessary, update and publish its manual referred to in subsection (2) at intervals of not more than one year.

(4) Each manual must be made available as prescribed.

(5)(a) If the functions of two or more governmental bodies are closely connected, the Minister may on request or of its own accord determine that the two or more bodies [publish] compile one manual only.

(b) The governmental bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.

(6) For administrative or financial reasons, the Minister may, on request or of its own accord by notice in the Gazette, exempt any category of governmental bodies from any provision of this section for such period as the Minister thinks fit.

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

14.(1) The information officer of a governmental body must, on a periodic basis not less frequently than once each year, submit to the Minister alist {OR statement} which-

(a) describes the kinds of records of the governmental body that are available without a person having to request access in terms of this Act-

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

(ii) for purchase or copying from the governmental body; and

(iii) from the governmental body free of charge; and

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

(2) On a periodic basis not less frequently than once each year and at the cost of the relevant governmental body, the Minister must, by notice in the Gazette, publish every list submitted in terms of subsection (1).

(3) No fee other than the prescribed fee for reproduction (if any) is payable for access to a record in terms of subsection (1).

(4) The information officer of a governmental body may delete any part of a record contemplated in subsection (1)(a) which, upon a request for access, is required or permitted by Chapter 4 of this Part to be refused.

(5) No person may be required to make a request in terms of this Act for any record of a governmental body described in a list published by notice in the Gazette in terms of subsection (2).

Information in telephone directory

PREVIOUSLY CLAUSE 7
Option 1 for subsection (1):

15. (1) The Director-General of the national department responsible for communications must at that department's cost ensure the publication of the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of every governmental body in every telephone directory issued for general use by the public.

Option 2 for subsection (1):

(1) The Director-General of the national department responsible for communications must at that department's cost ensure the publication of the particulars of the information officers of such governmental bodies in such telephone directories, issued for general use by the public, as are prescribed.

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

CHAPTER 3

RIGHT AND MANNER OF ACCESS

Right of access to records of governmental bodies
PREVIOUSLY CLAUSE 9

16.(1) Any person must be given access to any record of a governmental body if-

(a) that person complies with all the procedural requirements in this Act relating to a request for access to that record; and

(b) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 3 of this Part.

(2) A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made. # Omit cl 33(3) if this is included.

(3) A person's right of access contemplated in subsection (1) is{, subject to this Act,} not affected by-

(a) any reasons the person gives for requesting access; or

(b) the information officer's belief as to what are the person's reasons for requesting access.

Designation of deputy information officers and delegation

PREVIOUSLY CLAUSE 4, BUT REDRAFTED

17. (1) For the purposes of this Act, each governmental body must, subject to legislation governing the employment oi) such other information as may be prescribed.