Access to records of private sector

Meeting report

AD HOC JOINT COMMITTEE ON OPEN DEMOCRACY BILL
24 NOVEMBER 1999
ACCESS TO RECORDS OF PRIVATE BODIES

Documents handed out:
Access to Records of Private Bodies: First Draft (OPD 90) & DP's proposal (OPD 90A) [attached to end of minutes]

SUMMARY
The committee discussed Clauses 5, 6, 7 and 14 of the first draft of a section dealing with access to records of private bodies. The DP have reservations over legislating for private bodies by means of a clause-by-clause mirroring of the legislation on the public sphere and the DP withdrew from the meeting after a heated exchange with the chairperson.

Chairperson de Lange opened the afternoon session with comments regarding the mornings events between Adv Schmidt and himself. The meeting was a continuation of the morning's debate on Clause 14 as well as Clause. The Committee agreed that all of these clauses should flow together, but they still need to decide if the test in Clause 14 must be met before Clause 15 and 16 would kick in. The issue of personal requesters needs to be addressed more clearly, and there was much debate on the term "unreasonable." Further, there was discussion on the drafting of both Clause 15 subsection (2) and (3). Finally, there was the suggestion made that natural persons be excluded from having to give access to information due to the array of problems that would be associated with giving those persons that obligation.

MINUTES
Clause 6 Availability of certain records
The committee discussed the 'right to know' clause as it had been touched on yesterday in relation to Clause 4(1)(a)(ii).

The Chairperson, Adv de Lange, once again stressed that Clause six was not a 'right to know' clause in the strictest terms. There is no right to know in the private sphere, instead the onus is always on the requester to prove that they have a right to access information. The reason for Clause six is rather to provide an empowering clause whereby private bodies can voluntarily make information available and avoid the administrative burdens and mechanisms of the Bill. This clause will only cover juristic bodies.

Adv Schmidt (DP) felt that this must not be called a 'right to know' clause as it creates a false impression of what it does.

Adv de Lange pointed out that it was only referred to as the 'right to know' clause and was actually called 'availability of records'. However he accepted that the voluntary nature of the clause be captured in its name.

Ms Smuts (DP) did not support the inclusion of the clause because unlike the public sphere, the private sphere has no duty to make information available.

Adv de Lange once again stressed the voluntary nature of this clause and the fact that it creates no obligation. If the clause is never used he could not foresee a problem. It was merely a way for companies to avoid the Information Officer structure or to continue with existing mechanisms that make information available. Conceptually this is not a 'right to know' clause. However he accepted that, as the clause was not enormously important, it could be removed.

Mr Smith (IFP) agreed that it did not matter if the clause was or was not included. However he thought that the information private bodies could make available in this way would not be the information needed to exercise or protect a right. If this was the case then even a reproduction charge should not be made.

Adv de Lange believed that stating that a fee would be charged 'as prescribed' would allow fees to be captured in the regulations.

Clause 5 Use of Part for criminal or civil discovery of private bodies' records excluded
As discovery proceedings have become crystallized this clause will ensure that they are not changed. Records can be acquired before legal proceedings have been set in motion or will be obtained at the established time for the swapping of documents during proceedings.

Ms Chohan-Khota felt that this clause seemed to undermine a person's right to exercise or protect their rights. She also wished to know whether a person could request records prior to proceedings and exactly when this right would be circumvented.

Adv de Lange said that this clause was crucial to protect existing practices. The right of access to documents is never lost, it is just established through existing practices. He said the exact moment when requests through this Act must stop must be made clearer. Once litigation has begun it is clear that you cannot make a request through this Act but the term 'proceedings' needs more clarity.

Dr Delport (DP) felt that through preventing access to documents before a certain time, the clause would affect whether a person could exercise or protect a right.

Adv de Lange felt that the development of a person's course of action would not be affected. Access prior to litigation was possible and litigation would only begin once you were exercising or protecting a right.

Mr Masutha (ANC) raised the issue noted by Ms van Schoor following Clause five of the draft: whether information can be made inadmissible if it has been previously obtained for reasons other than use in civil or criminal proceedings or if another person obtained it and furnished it to a person for use in civil or criminal proceedings.

Adv de Lange accepted that possible sanctions against misuse of this Act must be considered.

Mr Masutha thought that it would be dangerous to make documents acquired wrongly, inadmissible. Guilty parties could knowingly give out documents according to this Act to ensure that they could not be used against them.

Adv de Lange felt that this would be avoided by the acquisition of documents through the discovery process. The importance of protecting established practice and ensuring that the discovery process does provide people with the information they need makes the drafting of Clause two of the Bill crucial. Clause two must not exclude laws regulating access through discovery.

Adv Schmidt thought it wrong to include sanctions against wrongly acquiring evidence within the Bill. He felt that it should be up to the party the document was requested from to refuse requests. They should know what they should and should not disclose.

Adv de Lange thought that this would not be the case in large companies that had many divisions.

Adv Schmidt disagreed saying all would know of litigation that was in progess. Instead of wording Clause five so that a requester could be in the wrong it should be reworded so that the requested party has the option to refuse access to information if a possibility exists that it is to be used in civil or criminal proceedings.

Adv de Lange felt that this might make the clause an exemption and even if carefully worded it would change the emphasis of the clause. However he directed Ms Van Schoor to look in to this suggestion.

Clause 7 Manual
Private bodies which are not natural persons will have to produce a manual detailing their location, how to obtain access to records, which records are readily available and what the records are about.

Ms Smuts felt that such a manual was not appropriate for the private sphere. The private sphere has no duty of accountability and so the burden of such a manual should not be placed on it.

Mr Lever also agreed that this was an unnecessary burden as a person exercising or protecting a right should know whether a records exists.

Adv de Lange said that if access was to be given in any form, a manual would be needed. If this would prove a huge burden, exclusion was provided for in sub-clause 5(5).

Ms Jana supported the need for a manual. A person may only become aware of their rights through a manual's detail on information that exists.

Following comments by Ms Chohan-Khota and Mr Lever it was agreed that although automatic exemptions would not be possible, sub-clause 5(5) must be reworded so that it allows the minister to exempt not only categories of private bodies but individual bodies as well. The regulations would then cater for an appropriate mechanism to allow exemption and a possible appeal process against decisions.

Mr Delport felt that even with these provisions there was no point in forcing private bodies to produce manuals as it is unlikely they will be used.

Adv de Lange accepted that this was true. However he supported the inclusion of what is a very broad and flexible clause instead of simply scrapping manuals totally. The clause merely allows for regulations to create a basic framework. Once the Act is in place these regulations can easily be adapted and further legislation is possible following the SAHRC reports to Parliament. The manuals do not oblige private bodies to be accountable, they simply cater for the inclusion of private bodies within the Constitution and allow individuals to exercise and protect their rights. A minimal approach is needed but this minimal approach cannot be no approach.

Adv Schmidt disagreed that obliging bodies to produce manuals was a minimal approach. He spoke of the fact that all members agreed that this Act must take on best international practices. These practices do include the production of manuals but not for the private sphere. The idea of manuals, just like the whole concept of freedom of information, is to increase accountability and transparency yet the committee is agreed that private bodies have no duty to be accountable to the public. In this way a manual should not be a duty placed on private bodies and is an encroachment on their rights to privacy.

Adv de Lange felt that arguments based on best international practices have no value when discussing the private sphere because no other country has legislated on access to the information of private bodies - Clause 32(1)(b) is unique. He suggested that Adv Schmidt's argument appeared to be wishing away the right given by 32(1)(b). Whilst it is accepted that only the public sphere must be accountable, the private sphere must provide access so that people can exercise or protect their rights. The inclusion of 32(1)(b) in the Constitution was to promote individual rights and he felt that Adv Schmidt was implying the rights of private bodies should be held above these.

Adv Schmidt attempted to follow up his point as he believed that Adv de Lange was misinterpreting his views but in doing so he repeatedly interrupted Adv de Lange. A row broke out about Adv Schmidt talking out of line and following numerous threats Adv de Lange was forced to rule Adv Schmidt out of order and asked him to leave the meeting. At this point Dr Delport (the leader of the DP team in this committee) left the meeting whilst Adv Schmidt remained, refusing to go. The meeting continued in Dr Delport's absence during which time Ms Taljaard stated that the DP is fully committed to 32(1)(b), a clause which they had helped to formulate. However she said that the DP have reservations over legislating for 32(1)(b) through a clause-by-clause mirroring of the legislation on the public sphere. She also referred to the Companies Act and the fact that this already obliges companies to register their details. She felt that amendments and extensions to this might stop the need for a manual. At this point Dr Delport returned and stated that the DP would excuse themselves from the meeting to contemplate their position and would not return until they had discussed matters with Adv de Lange. Adv de Lange said that he respected this position but that the meeting must continue in their absence. Dr Delport, Adv Schmidt, Ms Taljaard and Mr Lever then left.

Ms Camerer (NNP) accepted that exemptions were possible but expressed concern over one-person juristic bodies that she felt could be automatically removed from the provisions of the clause.

Adv de Lange still felt that automatic exclusion of more than natural persons would not be possible. However he directed Ms van Schoor to draft a resolution that would demand the Minister to pass a gazette on categories and individual bodies to be immediately exempted at the same time as this clause comes in to practice. This would effectively lead to automatic exemption but still allow for review.

Ms Jana felt that the automatic inclusion of partnerships should be ensured. In excluding natural persons the draft would also exclude partnerships.

Ms van Schoor said that she would look in to how partnerships might be made to fall under the 'juristic person' and not 'natural person'.

Mr Durr (ACDP) felt that Dr Delport was right in expressing the worthlessness of the manual. There will be numerous exemptions whilst those manuals that are produced will not be used. He felt the best way to deal with the obligation created by 32(1)(b) was to amend the Companies Act. Further the Director of Companies and the Companies Office should deal with the production of manuals and who should be exempted as they possessed specialised knowledge.

Adv de Lange felt that the decisions on who to exempt must remain a responsibility of the Minister of Justice because this legislation deals with a right. Further as this legislation deals with the right of 32(1)(b) it must be this legislation that implements this right and not other Acts. With the proposed resolution to pass a gazette with the legislation, this clause will be incredibly flexible.

Mr Smith agreed that the clause was flexible and even suggested it might be too flexible. The details demanded could be printed on a single piece of paper. He felt that the HRC summary of the guide referred to in Clause five of the Bill must be included under sub-clause 7(2)(b). He went on to suggest that either the clause be included with the possibility hat it could be removed if the manual proved worthless or that the clause be scrapped but could be re-introduced if a need for manuals emerged.

Adv de Lange accepted these points and said that they could be discussed further once it became clear what the manual would actually contain following decisions made on the private sphere chapter.

Ms Chohan-Khota felt that it was wrong to expect private bodies to provide a description of records already available in accordance with other legislation [7(d)(i)] if government was unwilling to produce an audit on existing legislation affected by the Act. She suggested that 7(e) was badly worded. She also felt that the 'must' in 7(4) should be removed. Making manuals available on the internet should be an option so 7(4)(a) should be governed by a 'may' whilst making manuals available as prescribed should remain a 'must' in 7(4)(b).

Ms van Schoor agreed to look again at the drafting of Clause 7.

CHAPTER 2 GROUNDS FOR REFUSAL OF ACCESS TO RECORDS
As the end of Chapter One is mainly technical, Adv de Lange felt the committee should proceed to the exemptions of Chapter Two.

Clause 14 No right exercised or protected
This exemption tries to capture the extent of the constitutional right of 32(1)(b), that access to information of private bodies is allowed but only if the information is required to exercise or protect a right. Access can be refused on the basis of two different tests. Firstly if a requester fails to identify that they are exercising or protecting a right and secondly if the requested record could not be used to exercise or protect a right - four options have been drafted for the second test.

Adv de Lange directed Ms van Schoor to note that the request form for private bodies would be different to that for public bodies because the requester must fully explain the right they are trying to exercise or protect. He then described tests within the four options as he saw them. Option one is a standard objective test. Option two provides a tougher test for private bodies to pass before refusing access - it shifts from 'not reasonably' to 'not likely'. Option three is subjective, depending on the opinion of the head of a private body to determine whether a document would be needed to exercise or protect a right. Option four sets out a different test, whether a document might 'advance' the exercise or protection of a right.

Ms Chohan-Khota felt that Option three should be dismissed as a subjective test should not even be an option.

Adv de Lange pointed out that all tests will ultimately be subjective as the head of a private body will always effectively decide whether to release or refuse a document, only guidance for refusal could ever be given.

Iman Solomon felt that the clause would be better worded if it was not worded as an exemption and did not include two tests. Iman Solomon proposed that the clause simply read that a private body 'may not refuse' access if a requester identifies a right they are seeking to exercise or protect. He thought this was not only clearer but would mean that the various options drafted would not be needed.

Adv de Lange supported the simplicity of this proposal but said it was problematic because it would exclude all the other proposed exemptions. Although it is a constitutional right to have access if you are exercising or protecting a right, exemptions are still needed to protect things such as privacy and third party commercial information.

Ms Chohan-Khota felt that there should be some way to separate this clause from the other exemptions. This clause is the key difference between the public and the private sphere. The routing of the Bill should be changed so that if you pass the test of this clause you then move on to the other exemptions.

Adv de Lange willingly accepted that this exemption is very different to all others but could not see how a framework could be created to separate this exemption from others. However he thought that the interaction that this exemption demands must be catered for. Whilst the requester must provide a reason to an Information Officer, an Information Officer should be forced to consider certain criteria before they refuse access under Clause 14. Adv de Lange also referred to the proposal made by Dr Delport (OPD 90a - attached to end of minutes as Appendix B) where there would be an 'or' between Clause 14 and the other exemptions. He directed Ms van Schoor to investigate how Clause 14 could be distinguished from the other exemptions and how it might be linked to the Public Protector and HRC's oversight functions. It might be that they could intervene over Clause 14 decisions.

Afternoon session
Chairperson de Lange opened the meeting by allowing Dr Delport (DP) to speak about what happened during the morning session between the Chair and Adv Schmidt (DP) from the Democratic Party. Dr Delport said that the DP had spoken to Chairperson de Lange during the lunch break to work out matters. He said that the morning's events were unfortunate, but the DP did want to participate in the discussions on the Open Democracy Bill. The concern is that the Chair is in a position to listen to each member's position, and the Chair needs to be objective and fair when doing so. It is bad if the Chair does not act in an objective manner or is not fair in interpreting what a member has said. He felt that they could all move past what had happened in the morning. Further, he wanted to make it clear that his party would participate in a positive manner and hey did want to contribute in getting this legislation passed.

The Chair then asked if there were any other comments from the opposition parties.

Mr Smith (IFP) concurred with Dr Delport that the mornings events were unfortunate. On the whole, he felt that the Chair does respond to comments that are made, but he sees that as a good thing. There must be input from the Chair, because it would not work having members comments going right to the drafters. He appreciated the way that the Chair fostered discussion and debate. He admitted that occasionally the Chair does not interpret someone correctly, but he felt that was to be understood. His concern was that what had happened in the morning was unprecedented. He felt that an apology should be extended to the Chair, because a colleague in his position should not have been treated the way he was this morning. Adv Schmidt's action were not in compliance with how meetings are to be conducted.

Ms Camerer (NNP) said that the Chair always does make his point very clear, but in the six years that she has worked with him she has never found that his comments were not valuable in the long run. She suggested that they put the incident behind them as soon as possible.

Another comment was made by a member of the ACDP party, who said that the morning's event had been ugly. He was worried that a precedent had been set. However, he had never felt that the Chair was being biased or unfair. He was not sure what the basis was for the ugly events that had transpired. He was sorry that it happened, and he said that he would be happy when the issue was put to rest.

The Chair then opened the floor for comments from the ANC.

Mr Nel (ANC) agreed that the events were unfortunate, especially in light of how well the Chair had been conducting the meetings thus far. He felt that Adv Schmidt's comments were uncalled for. However, he felt that the Committee should move forward, because of the fact that they are going to be working together for at least another month.

Mr Setona (ANC) said that there were two important issues relating to what had happened in the morning. First, he felt that the conduct of the Chair could not be questioned, especially in the way that Adv Schmidt questioned it. Second, there are procedures that need to be followed in meetings and the Chair has the right of asserting his authority when those procedures are not being followed. He felt that what had happened undermined not just the authority of the Chair but also the Committee in general.

Mr Mahlangu (ANC, co-chair) said that he too felt that Adv Schmidt's behaviour was uncalled for, and he felt that Mr Swart should apologize to the Chair as well as to the Committee for what had happened. He said the members were always good about following procedure, and that is how they can get things accomplished. The procedure should not be changed.

In response the Chair said that there was no doubt that the morning's events were unfortunate. He said that he works hard to create an environment in the Committee where members feel that they can say what they want to say and be heard. This environment is there to ensure that people feel that the Bill was inclusively drafted. In the end, he wants the members to feel that they had a fair chance to say what they wanted and the morning's events were counter to this. He hoped that what had happened this morning would not sour what has been happening in the meetings. He pointed out that he was not a small-minded person, and he does not hold anything against anyone. He is happy to continue his relationship with the DP as it was before, and he hopes that the relationship will be as it was. So far as how the meetings are run, he said that he is not going to change the procedure or the structure of the meetings. The procedure, if you do not agree with something that he has said or the way that he interpreted a comment, is to raise your hand and get into line and tell him. Mr Swart was in fact banned from this afternoon's meeting, but he was more than welcome to return tomorrow and participate. He said that he was not going to throw out the amendments that Mr Lever (DP) or Adv Schmidt had suggested this morning just because of what had happened.

Clause 14 No right exercised or protected
The Chair then opened discussion on Clause 14 of the draft on private bodies. He said that they were going to draw on what Dr Delport had put into his draft in ODB 90(a) regarding how discretion was going to be exercised. He pointed out that Clause 14 was not an exemption as they know other exemptions to be.

Ms Camerer (NNP) said that there were a number of options listed, but there only needed to be a structure created for some of the options, not all of them. If you have an objective test as in options (1) and (4), then structure is less necessary then if you use a subjective test as in options (2) and (3).

The Chair said that the structure would be exercising your rights plus whatever option they choose. There is a feeling that no matter if they chose an objective or subjective test that they will still need to give guidance. The structure will need to be created in such a way that it does not take the discretion away.

Clause 15 Mandatory protection of privacy
The Chair said that this section obligates a private body to refuse a request for information under certain circumstances.

Mr Smith said that the language in subsection (1) "disclosure would constitute an unreasonable invasion of the privacy" actually creates two tests. Is this necessary? Further, is there a reason why in subsection (1) they used 20 years as opposed to 10 years or something like that? Finally he said that if you want to address the third party issue here, then you want to regulate it and provide guidance. It will need to be spelled out explicitly so there will be minimum abuse of procedure.

Ms van Schoor said that they had used 20 years because it was the same number as for governmental bodies though it really was an arbitrary number.

The Chair asked Ms van Schoor to address Mr Smith's point about "unreasonable" - was it there to make access easier or harder for the requestor.

Ms van Schoor said that the use of the term "unreasonable" was to make access easier (better) for the requester. If you leave out the term unreasonable, then there would be an absolute bar to any information that invades privacy.

Regarding third party requesters, the Chair said that they are probably going to need to give guidance in the regulations, but the regulations may not be the same for the public and the private sphere.

Mr Lever said that the language in Clause 15(1) was cumbersome.

The Chair said that there was a problem with accessing personal information of the requester. The draft needs to be clear that a requester is entitled to private information unless it falls under one of the exemptions. It is true that they need a stronger third party procedure laid out there.

Ms Chohan (ANC) said that Ms van Schoor's comments on 15(1) fell into line with what Dr Delport was saying in his document (ODB 90(a)). You have a test and all of the rights have to compete with each other, and this balancing test is dealt with by the use of the term "unreasonable." She wanted to know what does "an identifiable person" mean legally? She felt that they were clearly dealing with natural persons even though the term they are using was identifiable persons. She was not sure if the right to privacy in the Constitution also extended to juristic persons.

The Chair said that last point came back to whether the problem would be solved by using the term "everyone." Perhaps using "everyone" would ensure that the right to privacy extended to juristic persons as well. He felt that identifiable persons should extend to both natural and juristic persons

Ms Chohan (ANC) commented on the wording of subsection (2)(b). The test is not necessarily "and", because that would limit who you would be including. Also under (c ) you probably would want to include the executor of the estate.

Ms Camerer (NNP) said that rather than executor you could use the term guardian.

Ms Chohan (ANC) asked what information would really need to be accessed by the estates of dead people with reference to subsection 2 (c )?

The Chair said one example would be information needed to create family trees.

Ms Camerer (NNP) said that some of these aspects should be put into the regulations. Would it not help to get input from civil society as to how they feel about this draft?

The Chair said that the problem is some things like this exemption cannot be left to regulations because some guidance needs to be given. There is nothing stopping people from giving input on this now as we do not have anything concrete yet.

The Chair also said that a suggestion had been made to add another option to Clause 14, which would use the language "which is materially and directly affected." This would be a higher test, which would create a higher barrier to access than any other options already listed.

Ms Jana (ANC) said that these sections really create a balancing act between rights. The language in Clause 15(1) essentially is saying that even if disclosure of the information is an unreasonable invasion of privacy, that you can still access it in some circumstances. How can we allow that? Further, what does "under the care of the requester" mean in subsection (2)(b)(ii)? The term "unreasonable" actually creates a kind of discretion. You cannot limit third party rights to what is unreasonable.

The Chair said that "unreasonable" actually helps the requester - it is a further exemption. By the time you get to this clause you have already established that you have a right to exercise, but then you still have to balance your right to access the information with other rights such as the right to privacy.

Ms Jana (ANC) said you are not balancing it with the right to privacy but rather the unreasonable invasion of privacy.

The Chair pointed out that if you do not have "unreasonable" then you are going to lose out when the access would invade someone's privacy. There must be some objective criteria to determining what is an unreasonable invasion of a person's privacy

Ms Jana (ANC) said that she felt that "unreasonable" tilted the scales too much in favor of access over the right to privacy.

The Chair said that is the debate, but he does not feel that it tilts it too much. He felt that the privacy interest was protected also by the use of the term "must."

Ms Jana (ANC) said that she felt that you can limit a right, but the you cannot corrode it. This test is too high. Ms Camerer agreed with Ms Jana on this point

The Chair said that there was a low threshold here, and that the language was only acting as a limitation. He did not feel that it would be unconstitutional to use it.

Ms Jana (ANC) said that her other problem was with the rest of the language of subsection 2(b). The language needs to be more specific as regards to "under the care of the requester," because that language is too wide.

The Chair said that this particular language was used to cover a whole gamut of relationships rather then just parents or foster parents.

Ms Jana (ANC) again said that she felt that privacy was a high test, and that it should not be a low threshold.

The Chair said that she could not look at this exemption by itself. You have to get past the test in Clause 14 first to show that you even have the right to access the information. He made a note that Ms Jana felt that "unreasonable" should be omitted.

Mr Smith (IFP) said that he was happy with the unreasonable test. If it is anything other than an unreasonable invasion of privacy, then the information must be released. Who does the balancing of rights though? Does this Act do it for you? He sees Ms Jana's point that it seems as though a person's right to access information weighs more that a person's right to privacy. He thought that one way of rectifying this would be to change the word "invasion." Invasion denotes a strong test. As the Bill stand now anyone can trump my right to privacy provided that the invasion is not unreasonable.

The Chair said that so far as who does the balancing - that is up to the courts. You have to figure that the courts will typically lean in favor of the right to privacy, because it will get them into less trouble. What Mr Smith suggestion takes it the other way - if there is any invasion of privacy then you don't get the information so there is no balancing act, because there is no access. There may be other words to use, but we want to avoid created a provision that is an absolute bar to information when it invades privacy on any level.

Mr Lever suggested that the objective test would be more appropriate, but he had not thought through all of the consequences of using such a test. He felt that "unreasonable" denoted a subjective test.

The Chair asked him why he thought "unreasonable" was a subjective test.

Mr Lever said that what he recalled from jurisprudence was that a test was considered subjective when it required a person's opinion - such as the reasonable man test. It is easier for the court to decide when they are using an objective test. Perhaps the term "material" could be used instead of unreasonable because then the courts could decide what is material or not.

The Chair said that unreasonable was a subjective test with some objective factors in it. He was not sure if the term "material" would be appropriate, but he said that they could look at other terms to use.

Mr Lever then point out the problems with subsection 2. You need to qualify both (i) and (iii) with (ii) - "under the care of the requester."

The Chair said that there was a suggestion to change subsection 2 into two categories. The first would be a person who is under the age of 18 AND who is under the care of the requester OR a person who is incapable of understanding the nature of the request AND who is under the care of the requester. Both of these categories are subject to the best interest test in subsection 2(c ). This would prevent say a father that raped his daughter from getting any documents related to her psychological status.

Mr Masutha (ANC) raised the issue of the term "care." He felt that as far as the physical care of a person, there is a general trend that many more kids will be cared for by a host of other caregivers such as a community [in the face of the AIDS epidemic]) other then parents or foster parents. The use of the term care givers is general enough to include all such options.

Ms Jana (ANC) looked at what the effect of Clause 2(b) would be. You are talking about the mandatory invasion of privacy. You say you are trying to protect a person's privacy here, but that is not what this provision does. Until the matter comes to court the determination of what is in the best interest of the child is hard to make. She felt that advocates for children's rights were going to have a problem with this section.

The Chair said again that if they take out "unreasonable", then that would put a complete bar on any information that is deemed private.

Ms Jana (ANC) said that you can keep Clause (b), but that you could reword it so that you must respect a person's right to privacy except for a list of certain circumstances. This would then qualify the right of the requester.

The Chair said that they would look into that.

Ms Chohan (ANC) asked if by changing the language of (b) as Ms Jana suggested (taking out "unreasonable"), would you not be placing the built-in limitation from the Constitution at a level where it could not be applied. They must make it clear that Clause 14 must happen first before you even got to the tests in Clauses 15 and 16. She pointed out that this right was very different to the rights you have in the public sphere so it is likely that you will not be able to deal with them in the same way.

The Chair said that the more exemptions that they create after the Clause 14 test, the better the chance that the court is going to find it unconstitutional.

Ms Chohan (ANC) said that as a way of allaying fears about this clause, you have to test the request against the exercise and protection language from Clause 14. You test in terms of the context for which the information is being requested.

The Chair said that in the end they really needed a privacy act. This is their little attempt at dealing with the privacy issue in relation to the right to access information.

Mr Smith (IFP) said that Clause 15 (3) (a) did not address when a person has a number of ex-wives or when there has been a separation. Also he felt that what was in the brackets of 15 (1) created an absolute limitation for anyone wanting information on a dead person that was not the next of kin. Also he was wondering if the drafting could be tightened because the use of the double negative was confusing.

The Chair clarified Mr Smith's confusion over 15(1) and said that you can get access to that document as long as it was not an invasion of privacy, because the definition extends to identifiable persons. Identifiable persons include people who died less than 20 years ago in addition to natural and juristic persons. Ms van Schoor said that removing the double negatives would render the exemptions ineffective.

The Chair then said that the more he thought about it, the more he felt that natural persons should be excluded from the private sphere. He said that they already have to be excluded from manuals and such. The Committee would not be able to contemplate all of the situations dealing with the 40 million natural persons in South Africa before 4 February 2000. Do we really want to include natural persons in the definition of private body?

Mr Lever said that they should rework the language to avoid the double negative, and he provided Ms van Schoor with a solution. Further, he agreed that they may need to exclude natural persons.

Ms Chohan said that the sensible solution to many of the problems they are having would be to exclude natural persons.

In summary
The Chair summarized the points raised in the afternoon session. He wanted to be clear that when they were talking about excluding natural persons it DID NOT mean that natural persons could not request access to information. Excluding natural persons meant that others could not request information from them. They will need to look at how Clauses 14 through 16 are drafted. They want to be sure that the test from Clause 14 has been met before any of the other exemption clauses apply. Further, there was the issue of adding clear language that says that a personal requester cannot be refused access unless it falls under one of the exemptions. Also they need to look further at the term unreasonable. They need to put subsection (2) into more positive language, and they need to change (2) so that it creates two categories. They also need to ask how subsection (2) will actually work in practice. Finally, they need to establish a more substantial third party procedure.

Appendix 1:
OPD 90: First draft of proposed new part to provide for access to records of private bodies
18 November 1999

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

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

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

Clause 5 (Guide):
On page 16, in line 14, to omit "containing personal information".

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

CHAPTER 1
GENERAL PROVISIONS

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

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

Application of other legislation prohibiting disclosure
Option 1
3. This Part applies to the exclusion of any provision of other legislation that prohibits the disclosure of a record of a private body.
Option 2
3. If any conflict arises between any provision of this Part and any provision of other legislation that prohibits the disclosure of a record of a private body, this Part prevails.

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

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

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

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

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

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

Extension of period to deal with request
10. (1) The head of a private body to whom a request for access has been made, may extend the period of 30 days referred to in section 9(1) (in this section referred to as the "original period") once for a further period of not more than 30 days, if—
Option 1:
     (a) the request is for a large number of records or requires a search through a large number of records and compliance with the original period would unreasonably interfere with the activities of the private body concerned;
     (b) the request requires a search for records in, or collection thereof from, an office of the private body not situated in the same town or city as the office of the head that cannot reasonably be completed within the original period;
(c) the record relates to a third party as contemplated in section 15(4) or 17(3);
     (d) more than one of the circumstances contemplated in paragraphs (a), (b) and (c) exist in respect of the request making compliance with the original period not reasonably possible.
Option 2:
If there exists reasonable grounds for such extension.

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

Severability
11. (1) If a request for access to a record of a private body containing information which is required or permitted by Chapter 2 [Exemptions - set out below], to be refused, is made, every part of the record which—
     (a) does not contain; and
     (b) can reasonably be severed from any part that contains,
any such information must, despite any other provision of this Part, be disclosed.
(2) If a request for access to—
     (a) a part of a record is granted; and
     (b) the other part of the record is refused,
as contemplated in subsection (1), the provisions of section 9(2), apply to paragraph (a) of this section and the provisions of section 9(3) to paragraph (b) of this section.

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

CHAPTER 2
GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

No right exercised or protected

14. The head of a private body may refuse a request for access to a record of the body if—
(a) the requester fails to identify a right he or she seeks to exercise or protect; or
Option 1 for (b):
(b) the requested record could not reasonably be required for the exercise or protection of a right.
Option 2 for (b):
(b) the requested record is not likely to be required for the exercise or protection of a right.
Option 3 for (b):
(b) the requested record is, in the opinion of that head, not required for the exercise or protection of a right.
Option 4 for (b):
(b) the requested record could not reasonably be expected to advance the exercise or protection of a right.

Mandatory protection of privacy
15. (1) The head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an unreasonable invasion of the privacy of an identifiable person (including an individual who died less than 20 years before the request is received) other than the requester concerned.
(2) Subsection (1) does not apply to a record in so far as it consists of information—
     (a) about a person that has consented to its disclosure to the requester concerned;
     (b) about an individual's physical or mental health, or well-being, who is—
             (i) under the age of 18 years;
             (ii) under the care of the requester; and
             (iii) incapable of understanding the nature of the request,
and if giving access would be in the individual's best interests;
     (c) about an individual who is deceased and the requester is the individual's next of kin.
(3) In subsection (2)(c) "individual's next of kin" means—
     (a) an individual to whom the individual was married, with whom the individual lived as if they were married or with whom the individual cohabited, immediately before the individual's death;
     (b) a parent, child, brother or sister of the individual; or
     (c) if—
             (i) there is no next of kin referred to in paragraphs (a) and (b); or
             (ii) the requester concerned took all reasonable steps to locate such next of kin, but was unsuccessful,
an individual who is related to the individual in the second degree of affinity or consanguinity.
(4) The head of a private body considering a request for access to a record that might be a record contemplated in subsection (1) must give the person to whom or which that record relates a reasonable opportunity to make representations why the request must be refused.

[Health of requester

16. (1) In this section "health practitioner" means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals.
(2) The head of a private body may refuse a request for access to a record of the body about the requester's physical or mental health, or well-being, and which was provided by a health practitioner in his or her capacity as such if—
     (a) the head has disclosed the record to, and consulted with, a health practitioner who—
             (i) carries on an occupation of the same kind as the health practitioner who provided the record; and
             (ii) has been nominated by the requester or his or her authorised representative; and
(b) the health practitioner so consulted is of the opinion that the disclosure of the record to that requester would be likely to cause serious harm to his or her physical or mental health, or well-being.
(3) If the requester is—
     (a) under the age of 16 years, a person having parental responsibilities for the requester must make the nomination contemplated in subsection (2)(b)(ii); or
     (b) incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination. ]

Mandatory protection of third party commercial information

17. (1) The head of a private body must refuse a request for access to a record of the body if the record contains—
     (a) trade secrets of a third party;
     (b) financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which could reasonably be expected to cause unreasonable harm to the commercial or financial interests of that third party; or
     (c) information supplied by a third party the disclosure of which would be likely to put that third party at a disadvantage in contractual or other negotiations or cause it prejudice in commercial competition.
(2) Subsection (1) does not apply to a record in so far as it consists of information—
     (a) about a third party who has consented to its disclosure to the requester concerned;
     (b) about the safety of goods or services supplied by a third party, and the disclosure of the information would be likely to result in better informed choices by persons seeking to acquire those goods or services; or
     (c) supplied to, or about the results of any test or other investigation carried out by, a private body regarding a public safety or environmental risk.
(3) The head of a private body considering a request for access to a record that might be a record contemplated in subsection (1) must give the third party to whom or which that record relates a reasonable opportunity to make representations why the request must be refused.

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

Privileged from production in legal proceedings

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

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

21. The head of a private body may refuse a request for access to a record of the body if the request is manifestly frivolous or vexatious

Records that cannot be found or do not exist
22. (1) The head of a private body may refuse a request for access to a record of the body if—
     (a) a thorough search to find the record has been conducted, but it cannot be found; or
     (b) there are reasonable grounds for believing that the record does not exist.
(2) If the head of a private body so refuses a request, he or she must, in the notice referred to in section 9, give a full account of all steps taken to find the record in question or to determine whether the record exists, as the case may be, including all communications with every person who conducted the search on behalf of the head.

Published records and records to be published

23. (1) The head of a private body may refuse a request for access to a record of that body if—
     (a) the record is to be published within 60 days after the receipt of the request or such further period as is reasonably necessary for printing and translating the record for the purpose of publishing it;
     (b) the record can be copied at a library to which the public has access at a fee no greater than would be charged for access in terms of this Part; or
     (c) the publication of the record is required by law, within 90 days after the receipt of the request.
(2) The head concerned must, in the notice referred to in section 9, in the case of a refusal of a request for access in terms of—
     (a) subsection (1)(a) or (c), state the date on which the record concerned is to be published; or
     (b) subsection (1)(b) and if such information is ordinarily available to the private body concerned, identify the title and publisher of the record and the library concerned nearest to the requester concerned.

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

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

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

OPD 90a: Draft proposal for access to records of private bodies made by Dr J Delport (DP)

Insert the following:

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

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

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

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

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

Form of request
A request for information shall -
(a) be addressed in writing to the head of the private body from whom information is required;
(b) specify sufficient particulars to enable the receiver of the request to identify the information requested.
(c) identify the right the requester is seeking to exercise or protect and provide a reasonable explanation of why the requested information is required for the exercise or protection of that right.

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

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

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

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

before any access is granted to the requester.

(b) A third party may upon receipt of a notice as referred to in section 9(a) or if such third party suspects that access to a particular record may be requested by or granted to any person -
(a) make written or oral representations to the head of the private body concerned why the request should be refused; or
(b) give written consent for the disclosure of the record to the requester concerned.