«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
271 Section 22.
Freedom of Information: A Comparative Legal Survey A requester must normally be given access immediately once any access fee is paid. The Act provides for some detail in terms of the forms of access that may be requested, including a copy, inspection or viewing of the record, a transcript, an electronic copy or by extraction of the information from the record by a machine. The requester must be given access in the form requested unless this would unreasonably interfere with the operations of the public body, be detrimental to the preservation of the record or would infringe copyright. The Act also provides for special forms of access to persons with disabilities, at no extra charge.
Finally, requesters may request the record in a certain language and access must be provided in this language if the record exists in that language.272 The South African Act contains details provisions on third party notice and intervention, which is the subject of the whole of Chapter 5.
These provisions are complicated and do not need to be spelt out in detail here. It may be noted that, overall, they ensure that all reasonable efforts must be made to ensure that third parties are notified at every relevant stage of the proceedings and given an effective opportunity to provide input. These provisions impact on the timelines for disclosure, as well as for appeals.
The Act also provides for the correction of personal data, where this is not already catered for by another law.273 Duty to Publish The Act does not list which records a public body must publish.
Rather, it requires each public body to provide, at least annually, a report to the responsible minister, who is the minister responsible for the administration of justice, detailing which categories of records are automatically available in the absence of a request, including for inspection, for purchase or free of charge. The minister, in turn, must publish this information in the Gazette.
The South Africa Act also includes a unique provision which requires the government to ensure that the name and contact details of every information officer of every public body is published in every general use telephone book.274 It remains to be seen how effective this provision will be in practice.
272 Sections 29 and 31.
273 Section 88.
274 Section 16.
Exceptions Most exceptions in the Act contain a form of harm test and all are subject to a form of public interest override. The override applies whenever the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law or an imminent and serious risk to public safety or the environment and the public interest in disclosure "clearly outweighs" the harm.275 This is in some ways a limited override, but it has the virtual of avoiding potentially messy debates about how to balance different public interests. Significantly, pursuant to section 5, the Act applies to the exclusion of any other legislation that prohibits or restricts disclosure of information and which is materially inconsistent with the objects or a specific provision of the Act.
Where a record is to be published within the next 90 days, access to that record may be deferred "for a reasonable period", provided that the requester may make representations as to why he or she needs the record before that time and access shall be provided where otherwise the requester is likely to suffer substantial prejudice.276 In addition, requests which are "manifestly frivolous or vexatious" or the processing of which would "substantially and unreasonably divert the resources of the public body" may be refused.277 The main exceptions are set out in Chapter 4. The South African Act is unique in that it is both an access law and a secrecy law. This is achieved by providing that for some exceptions, the public body must refuse access, whereas for others the more usual language of may refuse access is used. The Act sets out very detailed and narrow exceptions, in many cases carving out exceptions to exceptions to further limit the scope of non-disclosure.
Section 34 sets out an exception where granting access to a record would involve the "unreasonable disclosure of personal information about a third party". However, this exception does not apply in a number of circumstances, including where the individual has consented, the individual was informed upon providing the information that it belonged to a class of information that might be disclosed or the information is already publicly available. Importantly, the exception also does not apply to information about a public official in his or her official capacity.
275 Section 46.
276 Section 24.
277 Section 45.
Freedom of Information: A Comparative Legal Survey An unusual exception relates to information obtained by the South African Revenue Service for the purposes of enforcing tax collection legislation, perhaps based on the fact that tax collection is a particular problem in South Africa.278 Section 36 protects commercial information including trade secrets, information the disclosure of which would be likely to harm the commercial interests of the third party who provided it and information provided in confidence, the disclosure of which could "reasonably be expected" to put the third party at a disadvantage. This is narrower than most confidence-related exceptions, which except all information provided in confidence. Section 37 also exempts information where disclosure would constitute an actionable breach of confidence, as well as information supplied in confidence where disclosure would be likely to prejudice the future supply of such information and it is in the public interest that such information continue to be supplied.
The section 36 and 37 exceptions do not apply where the third party consents to disclosure, the information is already publicly available.
Importantly, the section 36 exception also does not apply where the information contains the results of product or environmental testing which discloses a serious public safety or environmental risk.
Information the disclosure of which would be likely to endanger life or physical safety, the security of a building, system, other property or means of transport, or systems for protecting individuals, property or systems is also the subject of an exception.279 Section 39 provides in some detail for an exception related to law enforcement and legal proceedings, including law enforcement techniques, prosecution, investigations and the prevention of crime. This does not, however, apply to information about the general conditions of detention of persons in custody. Information covered by legal privilege is also exempt, unless the beneficiary of the privilege has waived it.280 Section 41 deals with security and international relations, exempting information the disclosure of which "could reasonably be expected to cause prejudice to" defence, security or international relations. It also exempts information which is required to be held in confidence under international law or which would reveal information supplied in 278 Section 35.
279 Section 38.
280 Section 40.
confidence by or to another State or intergovernmental organisation, although this does not apply to information which has been in existence for more than 20 years. The same section includes a detailed but nonexclusive list of what this exception includes, no doubt in an attempt to limit the scope of what is otherwise always a highly problematical exception. It remains to be seen whether it will achieve that objective.
Section 42 excepts information the disclosure of which "would be likely to materially jeopardise the economic interests or financial welfare of the Republic or the ability of the government to manage the economy".
It also excepts State trade secrets or information the disclosure of which would be to cause harm to the commercial interests of a public body or which could reasonably be expected to put the body at a disadvantage in negotiations or competition. This latter part of the exception, however, does not apply to information that contains the results of product or environmental testing which discloses a serious public safety or environmental risk Another unusual exception in the South African Act applies to research, either by a third party or the public body, the disclosure of which would be likely to expose the third party or public body, or the research or the subject matter, to "serious disadvantage".281 This exception would normally be considered to fall largely within the scope of the confidentiality exception.
The South African Act, like most freedom of information laws, includes an exception designed to preserve the effectiveness of internal decision-making processes. Section 44 excepts records which contain an opinion, advice, recommendation, or account of a consultation or discussion for the purpose of assisting to formulate a policy. This is one of the few exceptions which are not subject to a harm test and, as a result, it is potentially very broad. Section 44 also excepts information the disclosure of which could reasonably be expected to frustrate the deliberative process by inhibiting the candid exchange of views and opinions within government or the success of a policy by premature disclosure. This part of the exception does not apply to records which are more than 20 years old. Finally, section 44 excepts information the disclosure of which could reasonably be expected to jeopardise testing, evaluative material supplied with a presumption of confidence and preliminary drafts.
281 Section 43.
Freedom of Information: A Comparative Legal Survey The Act includes a severability provision at section 28 which requires any part of a record which does not contain exempt information, and which can reasonably be severed from the rest to be disclosed. In this case, different notice requirements apply to the different parts of the record, namely the disclosure notice for the part that is disclosed and the refusal notice for that part that has been withheld.
Appeals The Act provides for two levels of appeal, internally within the public body and, after that avenue has been exhausted, to the courts. There is no provision for an appeal to an independent administrative body, the one serious shortcoming of the South African Act.
Either the requester or a third party may lodge an internal appeal for a range of complaints including relating to access, fees, extension of time limits or form of access. Such an appeal must be lodged in the prescribed form, within 60 days (or within 30 days if third party notice is required) and be accompanied by any applicable fees. Once again, detailed provision is made for third party intervention.282 An internal appeal must effectively be decided within thirty days and relevant written notice must be provided to both the appellant and any third parties of the decision, along with their right to appeal to the courts.283 An appeal to the courts must, like internal appeals, be lodged within 60 days (or within 30 days if third party notice is required) of receiving the decision in an internal appeal and may only be brought after the internal appeals process has been exhausted. The grounds include those available for an internal appeal, as well as any complaint relating to a refusal of a public body to entertain a late internal appeal. The Act requires public bodies to provide the court with any record it should request, but enjoins that court from disclosing document which are exempt.284 Promotional Measures The objects of the Act are set out in section 9 and include giving effect to the constitutional right to access information, subject to justifiable limitations, giving effect to the constitutional obligation to promote a human rights culture, and generally promoting transparency, 282 Sections 74-76.
283 Section 77.
accountability and good governance. This underpins the Act, giving it direction. It is also given concrete effect in section 2, dealing with interpretation. Section 2 requires courts, but apparently not others who interpret the Act, to prefer any reasonable interpretation which is consistent with the objects of the Act over any other interpretation which is inconsistent with those objects.285 No one shall be liable for anything done in good faith pursuant to the Act. On the other hand, it is a criminal offence to destroy, damage, alter, conceal or falsify a record with intent to deny a right of access, punishable by up to 2 years imprisonment.286 Every public body must, within six months of the Act coming into force, compile, in at least three official languages, a manual with information about its information disclosure processes. The precise contents of the manual are set out in section 14, including information about the structure of the body, how to make information requests, services available to the public, any consultative or participatory processes and a description of all remedies. The manual must be updated annually and disseminated in accordance with regulations to that effect.
Public bodies are also required to submit to the Human Rights Commission an annual report with detailed information about the number of information requests, whether or not they were granted, the provisions of the Act relied upon to deny access, appeals and so on.287 The Human Rights Commission is tasked with a number of promotional duties under the Act, including publishing a guide, in all eleven official languages, on how to use the Act. Section 10 sets out in some detail what must be included in the guide, including the names and contact details of every information officer of every public body, the procedures for requesting information and assistance available through the Commission. The guide must be updated every two years as necessary.
The Human Rights Commission is also tasked with providing an annual report to the National Assembly on the functioning of the Act, including any recommendations and detailed information, in relation to each public body, about requests received, granted, refused, appealed and so on.
285 Section 6.
286 Sections 89-90.
287 Section 32.
Freedom of Information: A Comparative Legal Survey