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OPEN DEMOCRACY BILL (B67-98)

Proposed amendments to give effect to the constitutional right of access to privately held information required for the exercise or protection of any right

1. Insert a new Part 4, sections 47A – 47D, as follows:

ACCESS TO PRIVATELY HELD INFORMATION

47A. 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 right.

47B. Legislation further regulating this right must be enacted by 31st December 2000.

47C. Pending the promulgation of legislation envisaged by section 47B, the following provisions shall apply -

(1) A request for information in terms of section 47A must –

1. be addressed in writing to the person from whom information is required;
2. specify sufficient particulars to enable the receiver of the request to identify the information requested;
3. 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;
4. comply with any regulations promulgated in terms of section 47D below.

(2) A request for information in terms of section 47A can be refused only –

1. for the reasonable protection of personal privacy;
2. for the protection of trade secrets or other commercial information the disclosure of which could reasonably be expected to cause harm to the person from whom the information is requested;
3. if the information relates to a third party and the third party has not consented to the disclosure of the information;
4. if the granting of the information would be likely to endanger the life or physical safety of any individual;
5. if the granting of the information would be likely to endanger the security of a particular building, installation or information storage, computer or communication system;
6. if the information is already publicly available;
7. if the request is manifestly unreasonable, frivolous, vexatious, or formulated in too general a manner.

(3) Despite subsection (2) a request for access to privately held information must be granted if the public interest in the disclosure clearly outweighs the need for non-disclosure or if the disclosure of the information would reveal evidence of substantial –

1. abuse of authority, illegality or neglect in the exercise of a power or performance of a duty; or
2. injustice to a person, including a deceased person; or
3. danger to the environment or the health and safety of an individual or the public.

(4) If a request for information made in terms of this section is not granted within 30 days of the request being received, application may be made to the High Court in terms of section 73.

47D (1) The Minister, after consulting the Minister of Trade and Industry and the Human Rights Commission, may make regulations to give effect to the provisions of section 47C: provided that such regulations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

(2) The Minister must, before making regulations in terms of subsection (1) publish a notice in the Gazette –

1. setting out the draft regulations; and
2. inviting written comments to be submitted on the proposed regulations, specifying an address to which and a date before which the comments must be submitted, which date may not be earlier than 30 days after publication of the notice.

2. Amend sections 75, 77(3), 78 and 80 as follows:

75. A High Court has jurisdiction in respect of –

1. a decision of the information officer or head of a governmental body contemplated in section 74 which has its office or, if the body has more than one office, its main office;
2. a person that lodges an application in terms of section 47C (1), 74(1) or (4) or 75 and resides, carries on a business or is employed;
3. an alleged contravention referred to in section 75 which has occurred or is about to occur, in the area of jurisdiction of the High Court.

77. (3) The Human Rights Commission may, on request, appoint a person to represent an individual who has lodged an application in terms of section 47C (1), 74(1) or 75.

78. (1) Despite any other provisions of this Act, any court hearing an application or an appeal against a decision on an application may examine any record of a governmental body or any information requested in terms of section 47A to which this Act applies, and no such record or information may be withheld from that court on any grounds.

(2) Such court may, subject to subsection (3), not disclose to any person including the parties to the proceedings concerned –

1. any record of a governmental body or any information requested in terms of section 47A which is required or permitted in terms of this Act to be withheld from disclosure; or
2. if the information officer of a governmental body, or the head of that body on internal appeal, in refusing to grant access to a record in terms of section 34(2) or 36(2), refuses to confirm or deny the existence or non-existence of the record, any information as to whether the record exists.

(3) If such court considers it in the interest of justice, it may order the disclosure of such record or such information to any party to the proceedings concerned, and may, if it considers it necessary, order such party not to disclose such record or such information to another person.

80. (1) After due consideration of all written and oral evidence before a High Court in respect of an application, the Court may make any order or other decision which it considers just.

(2) An order or other decision in terms of subsection (1) includes, but is not limited to, an order or other decision –

1. which confirms, amends or sets aside the decision which is the subject of the application concerned;
2. which requires from the information officer or head of a government body or any person to whom a request for privately held information has been directed in terms of section 47A, to take such action as the High Court considers necessary within a period mentioned in the order;

3. Amend the long title to the bill by inserting:

To give effect to the constitutional right of access to any information held by the state; to give effect to the constitutional right to any information held by another person and which is required for exercising or protecting any right; to make available ...