OPEN DEMOCRACY BILL (B67-98)

Summary

The Open Democracy Bill (ODB) is a valuable piece of legislation that would give effect to the constitutional right of access to any information held by the state. However, the Constitution further guarantees access to any information that is held by another person and that is required for the exercise or protection of any rights. We propose a simplified approach to the inclusion of provisions that would allow the ODB to give effect to both parts of the right set out in section 32(1) of the Constitution. Proposed amendments are detailed in an appendix.

1.0 Access to privately-held information guaranteed by the Constitution

1.1 Section 32(1) of the Constitution (Act No. 108 of 1996) states:

Everyone has the right of access to —
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.

1.2 In terms of the transitional arrangements spelled out in schedule 6, item 23, section 32(1) is suspended until Parliament enacts legislation giving effect to this right, as required by section 32(2). Schedule 6 further obliges Parliament to enact such legislation by 4 February 2000. If it fails to do so, however, section 32(2) falls away. The Constitutional Court has ruled (Certification Judgement 1, para 82) that in this instance the suspended section 32(1) will automatically come into operation.

2.0 Unregulated right of access to privately-held information invites confusion

2.1 Thus, by 4 February 2000 at the latest [1], the Constitution will guarantee a right of access to any privately-held information that is required for the exercise or protection of any right. If the Open Democracy Bill offers no further clarification of the limitations on that right, the mechanism by which it can be exercised, and the manner in which it is to be enforced, confusion will ensue. Holders of information will have little guidance concerning what information they must disclose and what they may justifiably withhold. In the absence of any intermediate appeal and review mechanism, applicants seeking to challenge a refusal to disclose information will have recourse only to a High Court--a slow and costly remedy. If the review process is out of reach of most applicants, private bodies will have incentive to err on the side of non-disclosure, rejecting all but the most trivial and unthreatening requests and telling other applicants to join the lengthening queue outside the courthouse.

2.2 Recognising this problem, we have argued consistently--together with other members of the Open Democracy Campaign Group--that the bill must include more detailed provisions regulating horizontal application. As early as February of this year, we proposed extensive amendments intended to achieve this goal. At the 23-24 March 1999 hearings before the Portfolio Committee on Justice, both the South African Council of Churches and the Congress of South African Trade Unions presented similar model legislative language. These proposals appear not to have been given any serious consideration by the Portfolio Committee on Justice or the Department of Justice. At the same time, no alternative method has been proposed to manage application of the right.

2.3 We believe that the detailed approach we proposed earlier is no longer practical. With the constitutional deadline looming, there simply is not enough time to devote adequate attention to the refinement of such extensive amendments.

2.4 Consequently, we propose a fresh approach to the incorporation of horizontality. This involves three components:

• A commitment to the enactment of further legislation to regulate access to privately-held information in greater detail;
• The incorporation into the Open Democracy Bill of a simple set of provisions to govern access to privately-held information in the interim; and
• Consideration of the implications of horizontality for other aspects of the bill, especially the review and enforcement mechanisms and the whistleblower provisions.

3.0 Further legislation

3.1 The new provisions proposed below are not intended to serve as a final legislative framework for the interpretation of section 32(1)(b). Rather they aim:

1. to codify the constitutional right of access to certain privately-held information as envisaged in section 32(2) of the Constitution; and
2. to institute a set of stopgap measures to regulate access to such information until the manner of access, the obligation to disclose, and review and enforcement mechanisms can be elaborated more fully in subsequent legislation.

3.2 Further legislation should be enacted as expeditiously as possible. This might take the form of an Open Democracy Amendment Bill or a new bill governing access to privately-held information. Alternatively, it might be possible to further regulate access to privately-held information on a sectoral basis (i.e., through the incorporation of new provisions in sector-specific legislation such at the Natural Resources Management Act).

4.0 Interim provisions

4.1 Until further legislation can be enacted, basic guidelines should give greater definition to the obligations incumbent on individuals seeking access to privately-held information as well as on persons being asked to disclose information in their possession.

4.2 Individuals seeking access to privately-held information would be expected at least to make a formal request to the holder of the information with sufficient clarity to enable the holder to identify the desired records.

4.3 The right of access to privately-held information is more limited than the right of access to government information. The former extends only to information required for the exercise and protection of any right. A requester would therefore be required to identify the specific right to be exercised or protected and to establish a reasonable connection between the records requested and the exercise or protection of that right. [In the case of a request to a private body for personal information about the requester (as envisaged in section 50), it would be assumed that the requester had an automatic right to ensure the accuracy of records concerning him or herself. Consequently, there would be no need to identify the right involved.]

4.4 A person who receives a request for information that fulfills these requirements would be obliged to disclose the information requested unless:

1. doing so would compromise the privacy or physical safety of a third party;
2. doing so would reveal trade secrets or other commercially damaging information;
3. the records are already publicly available; or
4. the request is vague or otherwise unreasonable

and there is no overriding public interest compelling the disclosure of the information.

4.5 The Minister of Justice would be authorised to introduce further regulations governing requests for access to privately-held information, following a period of public comment.

4.6 In response to a brief from the Open Democracy Campaign Group, the law firm of Cheadle, Thompson and Haysom has prepared model legislative language intended to accomplish these objectives. The proposed language appears in an appendix to this submission.

5.0 Other considerations

5.1 Section 32(1)(b) also has implications for other aspects of the Open Democracy Bill, especially those sections dealing with whistleblowing and with the review and enforcement of decisions made in terms of the legislation. To a large extent, these synergies will be examined in greater detail by the submissions of other members of the Open Democracy Campaign Group. We broadly support the proposals contained in these submissions. At the same time, we wish to highlight particular concerns in the context of our remarks on horizontality.

5.2 With respect to the whistleblowing provisions contained in Chapter 5 of the bill, it is essential that these be expanded to protect whistleblowing in the private sphere. Clearly employees in the private sector are well placed to identify and draw attention to policies and practices that constitute a threat to the public interest and to the exercise and protection of citizens’ rights. While fraud and maladministration of public funds (say by a private contractor employed by the state) would be covered under the present language, a host of other situations equally likely to jeopardise public health and safety would not. One can imagine any number of scenarios involving product safety, for example, where the public interest would be served by the protection of whistleblowers in the private sector.

5.3 With respect to review and enforcement, we strongly endorse the call for the introduction of a cheaper, speedier, and more accessible mechanism than that presently envisaged in the bill. Currently, an applicant seeking access to government information only has recourse to the High Court once the internal departmental review process mandated by the Bill has been exhausted. Applicants seeking access to privately-held information do not even have the benefit of any intermediate review process prior to resorting to the High Court. If the Open Democracy Bill is to have any hope of achieving its objectives, it is absolutely imperative that a more accessible review and enforcement mechanism be incorporated into the bill and that applicants thwarted in their attempts to gain access to privately-held records should also have recourse to this more accessible mechanism.

FOOTNOTE

1. Some legal scholars argue that the enactment of legislation that gives even partial effect to section 32(1) is sufficient, in terms of section 32(2), to trigger the replacement of the transitional language with the suspended clause. As it seems neither possible nor justifiable to sever the public and private sector components of this right [subclauses (a) and (b), respectively], section 32(1)(b) would, on this reading, come into operation with the enactment of the current Open Democracy Bill, even if that bill contained only rudimentary provisions governing access to privately-held information. Assuming Parliament passes the Open Democracy Bill before the deadline, it is conceivable that section 32(1)(b) could become operative, as a bald right, even before 4 February 2000. However, given the proximity of the deadline, this debate is largely academic.

This information is produced by the Public Policy Liaison Office of the South African Council of Churches. The Public Policy Liaison Office monitors and analyzes key public policy issues under consideration by parliament and government ministries, alerts government to the concerns of the SACC, and assists people of faith to be more familiar with and involved in public policy debates.

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