CHAPTER 2 GROUNDS FOR REFUSAL OF ACCESS TO RECORDS Personal privacy 28. (1) Subject to subsection (2), the information officer of a governmental body shall refuse a request for access to a record of the governmental body the disclosure of which would constitute an invasion of the privacy of an identifiable individual (including an individual who died less than 10 years before the request is received) other than the requester. (2) Subsection (1) does not apply to a record insofar as it consists of information - (a) already publicly available; (b) about an individual who has consented to its disclosure to the requester; (c) about an individual's physical or mental health, or well-being, who is - (i) under the age of 18 years; (ii) under the parental care of the requester; and (iii) is incapable of understanding the nature of the request, and if giving access would be in the individual's best interests; (d) about an individual who is deceased and the requester is, or is requesting with the consent of, the individual's next of kin; or (e) about an individual who is or was an official of a governmental body and relates to the position or functions of the individual, including - (i) the fact that the individual is or was an official of the governmental body; (ii) the title, work address and work phone number of the individual; (iii) the classification, salary scale or remuneration and responsibilities of the position held or services performed by the individual; (iv) the name of the individual on a record prepared by the individual in the course of employment. Health of requester 29. (1) The information officer of a governmental body may refuse a request for access to a record of the governmental body about the requester's physical or mental health, or well-being, which was provided by a health practitioner in his or her capacity as such if - (a) the disclosure of the record to the requester is likely to cause serious harm to his or her physical or mental health, or well-being; (b) the information officer has disclosed the record to, and consulted with, a health practitioner who - (i) [who] 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 (c) the health practitioner so consulted is of the reasonable opinion that the serious harm contemplated in paragraph (a) is likely to result. (1A) If the requester referred to in subsection (1)(b)(ii) is - (a) under the age of 16 years, the nomination under that subsection shall be by a person having parental responsibilities for the requester; or (b) incapable of managing his or her affairs, the nomination under that subsection shall be by a person appointed by the court to manage those affairs. (2) Where - (a) access has been given to a record of a governmental body containing information about the requester's physical or mental health, or well-being, which was provided by, or originated from, a health practitioner; (b) such access was given without the health practitioner's knowledge; and (c) the health practitioner can be located with reasonable effort and inquiry, the information officer concerned shall notify the health practitioner that access has been so given. Third party commercial information 30. (1) Subject to subsection (2), the information officer of a governmental body shall refuse a request for access to a record of the governmental body containing - (a) (i) trade secrets of a third party; or (ii) financial, commercial, scientific or technical information, other than trade secrets, supplied in confidence by a third party and treated consistently as confidential by the third party, the disclosure of which would be likely to cause substantial harm to the commercial or financial interests of the third party; or (b) information supplied by a third party the disclosure of which would be likely to put the third party at a substantial and unfair disadvantage in contractual or other negotiations or cause it substantial and unfair prejudice in commercial competition. (2) Subsection (1) [shall] does not apply to a record insofar as it consists of information - (a) already publicly available; (b) about a third party who has consented to its disclosure to the requester; (c) about the quality, suitability or the safety of goods or services supplied by a third party and the disclosure of the information would be likely to result in [the exercise of more] better informed choices by persons seeking to acquire those goods or services; or (d) supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a public safety risk. (3) Where a request for access to a record contemplated in subsection (2)(d) is granted in terms of this Act, the information officer concerned shall at the same time as access to the record is given under section 23 provide the requester with a written explanation of the methods used in conducting the test or other investigation in question. Records supplied in confidence 31. (1) Subject to subsection (2), the information officer of a governmental body may refuse a request for access to a record of the governmental body supplied in confidence to the body by a third party if - (a) the disclosure of the record would be likely to prejudice the future supply of similar records, or records from the same source; (b) [there is no legal basis] the governmental body has no legal right to demand, or the third party has no legal obligation to supply, the record; and (c) it is in the public interest that a similar record, or record from the same source, should continue to be supplied. (2) Subsection (1) does not apply to a record - (a) if it has been supplied to the governmental body for - (i) payment, whether in money or not; or (ii) the purpose of - (aa) securing some advantage, grant, permit, contract or concession from a governmental body; or (bb) dissuading the body from taking any action against the person who supplied the record or on whose behalf the record was supplied. (b) insofar as it consists of information already publicly available; or (c) if the third party in question has consented to its disclosure to the requester. (3) For the purposes of this section, "third party" includes the Government of a foreign state, an international organisation or an institution of any such a government or international organisation. Safety of individuals and security of institutions, buildings and systems 32. The information officer of a governmental body may refuse a request for access to a record of the governmental body containing information the disclosure of which would be likely - (a) to endanger the life or physical safety of an individual; (b) seriously to endanger the security of a prison as defined in section 1 of the Correctional Services Act, 1959 (Act No. 8 of 1959); or (c) seriously to prejudice the maintenance or enforcement of methods for the protection of a particular building, installation or information storage, computer or communication system. Law enforcement and legal proceedings 33. (1) The information officer of a governmental body may refuse a request for access to a record of the governmental body held for the purposes of enforcing the law - (a) containing methods, techniques, procedures or guidelines for - (i) the prevention, detection, suppression or investigation of offences; or (ii) the prosecution of alleged offenders, if the disclosure of those methods, techniques, procedures or guidelines would be likely seriously to prejudice the effectiveness of those methods, techniques, procedures or guidelines or lead to the circumvention of the law or facilitate the commission of an offence; (b) the disclosure of which would - (i) substantially impede; or (ii) result in a miscarriage of justice [with respect of] in, the prosecution of an alleged offender, if [the proceedings for] the prosecution [are] is being prepared or about to commence or pending; or (c) the disclosure of which could reasonably be expected to - (i) [to] prejudice the investigation of any contravention or possible contravention of the law[,] which is about to commence or is in progress or, if it has been suspended or terminated, is likely to be resumed; (ii) [to disclose] reveal, or enable a person to ascertain, the identity of a confidential source of information; (iii) [to] result in the intimidation or coercion of a witness, or a person who might be called as a witness, in criminal proceedings or other proceedings to enforce the law, or endanger his or her life or physical safety; (iv) [to] result in the commission of an offence; (v) [to] facilitate [the] escape from legal custody; or (vi) [to] deprive an individual of a right to a fair trial or an impartial adjudication. (2)(a) Where a request for access to a record of a governmental body may be refused under subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in paragraph (a), (b) or (c) of subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record. (b) Where the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice required to be given in terms of section 17(2)(b) shall - (i) state that fact; (ii) identify the provision of subsection (1) under which access would have been refused if the record existed; [and] (iii) [give] state the findings and the reasons for the refusal as required by section 17(2)(b)(i) and (ii), respectively, so far as they can be given without causing the harm contemplated in paragraph (a), (b) or (c) of subsection (1); and (iv) state that the requester may lodge an internal appeal with the head of the governmental body, or a complaint with the Public Protector, against the refusal as required by section 17(2)(b)(iii). (3) The information officer of a governmental body may refuse to grant a request for access to a record of the governmental body which would be privileged from production in legal proceedings on the ground of legal professional privilege unless - (a) the person entitled to the privilege has waived the privilege; or (b) the legal proceedings to which the record relates have been finally determined. Defence and security of Republic 34. (1) The information officer of a governmental body may refuse a request for access to a record of the governmental body if its disclosure would be likely substantially to harm the national defence or security of the Republic by - (a) frustrating any measure for the prevention, detection or suppression of - (i) aggression against the Republic; (ii) sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic; or (iii) an activity aimed at changing the constitutional order of the Republic by the use of force or violence; (b) jeopardising the effectiveness of a body, branch of that body or person responsible for the prevention, detection or suppression of an activity contemplated in subparagraph (i), (ii) or (iii) of paragraph (a) by disclosing its or his or her capabilities, deployment or performance; (c) jeopardising the effectiveness of - (i) arms; or (ii) other equipment, including communication or cryptographic systems, used, or intended to be used, or being developed, designed, produced or investigated for preventing, detecting or suppressing an activity contemplated in subparagraph (i), (ii) or (iii) of paragraph (a) by disclosing their or its capabilities, quantity or deployment; or (d) jeopardising the effectiveness of methods or equipment for collecting, assessing or handling information used for the prevention, detection or suppression of an activity contemplated in subparagraph (i), (ii) or (iii) of paragraph (a), or disclosing the identity of a confidential source of information used for that purpose. (2)(a) Where a request for access to a record of a governmental body may be refused under subsection (1), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in paragraph (a), (b), (c) or (d) of subsection (1), the information officer of the governmental body concerned may refuse to confirm or deny the existence or non-existence of the record. (b) Where the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice required to be given in terms of section 17(2)(b) shall - (i) state that fact; (ii) identify the provision of subsection (1) under which access would have been refused if the record existed; [and] (iii) [give] state the findings and the reasons for the refusal as required by section 17(2)(b)(i) and (ii), respectively, so far as they can be given without causing the harm contemplated in paragraph (a), (b), (c) or (d) of subsection (1); and (iv) state that the requester may lodge an internal appeal with the head of the governmental body, or a complaint with the Public Protector, against the refusal as required by section 17(2)(b)(iii). International relations 35. (1) The information officer of a governmental body may refuse a request for access to a record of the governmental body the disclosure of which would be - (a) in contravention of an obligation imposed on the Republic by international law; or (b) subject to subsection (2), likely to cause serious and identifiable harm to the capacity of the Republic to maintain or conduct relations in the best interests of the Republic with another state or an international organisation. (2) Subsection (1)(b) [shall] does not apply to a record if it came into existence more than [15]20 years before the request. Economic interests of Republic and commercial activities of governmental bodies 36. (1) The information officer of a governmental body may refuse a request for access to a record of the governmental body if its disclosure would be likely substantially to jeopardise the financial welfare of the Republic or the ability of the Government of the Republic effectively to manage the economy of the Republic in the best interests of the Republic by prematurely disclosing - (a) a contemplated change in, or maintenance of, a policy materially affecting the currency, coinage, legal tender, exchange rates or foreign investment; (b) a contemplated change in or decision not to change - (i) credit or interest rates; (ii) customs or excise duties, taxes or any other source of revenue; (iii) the regulation or supervision of financial institutions; (iv) government borrowing; or (v) the regulation of prices of goods or services, rents or wages, salaries or other incomes; or (c) a contemplated - (i) sale or acquisition of immovable or movable property; or (ii) international trade agreement. (2) Subject to subsection (3), the information officer of a governmental body may refuse a request for access to a record of the governmental body containing - (a) (i) trade secrets of the State or any governmental body; or (ii) financial, commercial, scientific or technical information, other than trade secrets, held by any governmental body for the purpose of conducting a commercial activity which it is authorised by law to conduct and which it does conduct or is about to conduct, the disclosure of which would be likely to cause substantial harm to the commercial or financial interests of the State or [the] any governmental body; (b) information the disclosure of which would be likely to put a governmental body at a substantial and unfair disadvantage in contractual or other negotiations or cause it substantial and unfair prejudice in commercial competition; [or] (c) the results of original research undertaken by an official of a governmental body the disclosure of which could reasonably be expected to deprive the governmental body or the official of the benefit of first publication of those results; or (d) a computer program owned by any governmental body. (3) Subsection (2) [shall] does not apply to a record insofar as it consists of information - (a) already publicly available; (b) about or owned by a governmental body which has consented to its disclosure to the requester; (c) about the quality, suitability or the safety of goods or services supplied by the governmental body and the disclosure of the information would be likely to result in [the exercise of more] better informed choices by persons seeking to acquire those goods or services; or (d) supplied to, or about the results of any test or other investigation carried out by, a governmental body regarding a public safety risk. (4) Where a request for access to a record contemplated in subsection (3)(d) is granted in terms of this Act, the information officer concerned shall at the same time as access to the record is given under section 23 provide the requester with a written explanation of the methods used in conducting the test or other investigation in question. Operations of governmental bodies 37. (1) Subject to subsections (3) and (4), the information officer of a governmental body may refuse a request for access to a record of the governmental body - (a) containing an opinion, advice or recommendation obtained or prepared, or an account of a consultation or deliberation that has occurred, for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law if - (i) the knowledge that disclosure of the record were possible could reasonably be expected to have frustrated the deliberative process in a governmental body or between governmental bodies by inhibiting the candid - (aa) communication of such opinion, advice or recommendation; or (bb) conduct of such consultation or deliberation; or (ii) the disclosure of which would, by premature disclosure of a policy or contemplated policy, be likely substantially to frustrate the success of that policy, and if the record came into existence less than 10 years before the request; (b) the disclosure of which would be likely to jeopardise the effectiveness of a testing, examining or auditing procedure or method used by a governmental body; [or] (c) containing evaluative material, [including information identifying] whether or not the person who supplied it is identified in the record, if the disclosure of [which] the material would breach an express or implied promise - (i) which was made to the person who supplied the [information] material; and (ii) which was to the effect that the [information] material or the identity of the person who supplied it or both would be held in confidence; or (d) containing a working draft or note of an official of a governmental body, and if the refusal of the request for access to the record would be in the public interest [and the record came into existence less than 10 years before the request]. (2) For the purposes of subsection (1)(c) "evaluative material" means an [evaluative or opinion material] evaluation or opinion compiled [solely] - (a) for the purpose of determining the suitability, eligibility or qualifications of the individual to whom the [material] evaluation or opinion relates - (i) for employment or for appointment to office; (ii) for promotion in employment or office or for continuance in employment or office; (iii) for removal from employment or office; or (iv) for the awarding of any scholarship[s], award[s], [bursaries] bursary, honour[s] or other benefit[s]; or (b) for the purpose of determining whether any scholarship, award, bursary, honour or benefit should be continued, modified, cancelled or renewed. (3) Subsection (1) [shall] does not apply to a record insofar as it consists of - (a) a guideline which is required to be made available in terms of section 9(1); or (b) an account of, or a statement of reasons for, a decision taken in the exercise or performance of a power or duty conferred or imposed by or under law. (4) Subsection (1)(a) [shall] does not apply to a record insofar as it consists of - (a) factual material (including any statistical data [and the results of any measurement, test, study or survey]); (b) the analysis, interpretation or evaluation of, or any projection based on, factual material referred to in paragraph (a); (c) a report on the performance or efficiency of a governmental body or any program, project or activity under its supervision; (d) a report of a body contemplated in section 1(2); (e) a report of a scientific or technical expert; or (f) the results of, or report on, any test or other investigation regarding a public safety risk. (5) Where a request for access to a record contemplated in subsection (4)(f) is granted in terms of this Act, the information officer concerned shall at the same time as access to the record is given under section 23 provide the requester with a written explanation of the methods used in conducting the [investigation] test or other [test] investigation in question. Frivolous or vexatio[n]us requests 38. The information officer of a governmental body may refuse a request for access to a record of the governmental body if the request is manifestly frivolous or vexatious. Records that cannot be found or do not exist 39. (1) The information officer of a governmental body may refuse a request for access to a record of the governmental body if the information officer - (a) has searched thoroughly to find the record but it cannot be found; or (b) on reasonable grounds is satisfied that the record does not exist. (2) If the information officer of a governmental body refuses a request for access to a record under subsection (1), the information officer shall, in the notice to be given in terms of section 17(1), give a full account of all steps taken to find the record or determine whether the record exists, as the case may be, including any communication with any person conducting the search on behalf of the information officer. Published records and records to be published 40. (1) Subject to subsections (2), (3) and (4), the information officer of a governmental body may refuse a request for access to a record of the governmental body - (a) which is to be published within 60 days after the date on which the request is received or such further period of time as may be necessary for printing or translating the record for the purpose of [printing] publishing it; (b) which can be copied at a library controlled by a governmental body to which the public has access at a fee no greater than would be charged for access in terms of this Act; (c) which is available for purchase at a fee no greater than would be charged for access in terms of this Act by the public in accordance with arrangements made by or on behalf of a governmental body; (d) the publication of which is required by law within [a period of] 90 days after the request concerned is received; or (e) which has been prepared for submission to Parliament unless a period of 90 days [for the submission] after such preparation has expired and the record has not been so submitted. (2) The information officer of a governmental body shall, in the notice required to be given in terms of section 17(2)(b) - (a) in the case of a refusal of a request under subsection (1)(a) or (d), state the date on which the record is to be published; (b) in the case of a refusal of a request under subsection (1)(b) or (c), identify the title and publisher of the record and, in the case of a refusal under subsection (1)(b), the library contemplated in subsection (1)(b) nearest to the requester and, in the case of a refusal under subsection (1)(c), state where it can be purchased; or (c) in the case of a refusal of a request under subsection (1)(e), state the date on which the record is to be submitted to Parliament. (3) Where the information officer of a governmental body intends to refuse a request for access to a record under subsection (1)(a), (d) or (e), he or she shall notify the requester of such intention and that the requester may, within 30 days after the notice is given, make representations to the information officer as to why the record is required before publication or submission to Parliament. (4) If notice is given to a requester under subsection (3), the information officer concerned shall, after due consideration of any representations made [upon] in response to the notice, grant the request concerned, unless he or she is satisfied on reasonable grounds that the requester will suffer no material prejudice if access to the record is deferred until the record is published or submitted to Parliament. Records already open to public 41. The information officer of a governmental body may refuse a request for access to a record of the governmental body that is open to public access in accordance with - (a) section 7 of the Deeds Registry Act, 1937 (Act No. 47 of 1937); (b) section 9 of the Archives Act, 1962 (Act No. 6 of 1962); (c) section 9 of the Companies Act, 1973 (Act No. 61 of 1973); (d) section 5 of the Close Corporations Act, 1984 (Act No. 69 of 1984); or (e) any other law, if the Commission determines that the manner in which access may be obtained and the fee payable for access in terms of any [such] law referred to in paragraph (a), (b), (c), (d) or (e), as the case may be, [would not be] is not more onerous than the manner in which access may be obtained to the record and the fee payable for access in terms of this Act. Disclosure in public interest 42. (1) Notwithstanding any other provision of this Act, but [S]subject to section 44, the information officer of a governmental body shall grant a request for access to a record contemplated in section 28(1), 29(1), 30(1), 32(a), 33(1)(c)(ii), (iii) or (vi) or (3) if - (a) disclosure of the record would reveal evidence of substantial - (i) abuse of authority, illegality or neglect in the performance of the duties of an official of a governmental body; (ii) injustice to an individual, including a deceased individual; (iii) danger to the environment or the health or safety of an individual or the public; or (iv) unauthorised use of the funds or other assets of a governmental body; and (b) giving due weight to the importance of open, accountable and participatory administration, the public interest in disclosure of the record clearly outweighs the need for non-disclosure contemplated [in] by the provision in question. (2) Notwithstanding any other provision of this Act, but [S]subject to section 44, the information officer of a governmental body shall grant a request for access to a record contemplated in section 31(1), 32(b) or (c), 33(1)(a), (b) or (c)(i), (iv) or (v), 34(1), 35(1) or 36(1) or (2), if giving due weight to the importance of open, accountable and participatory administration, the public interest in disclosure of the record clearly outweighs the need for non-disclosure contemplated [in] by the provision in question. Necessity of harm 43. No provision in this Chapter shall be interpreted to require or permit the information officer of a governmental body to refuse a request for access to a record of the governmental body if the harm that that provision is intended to guard against would not occur if the request were granted.