CHAPTER 2 GROUNDS FOR CLOSURE OF MEETINGS Personal privacy 65. (1) Subject to subsection (2), a governing body shall, if a meeting of the body is likely to disclose information the disclosure of which would constitute an invasion of the privacy of an identifiable individual (including a person who died less than 10 years before the date of the meeting), close the meeting to all persons (other than the individual concerned). (2) Subsection (1) does not apply to a meeting insofar as it would disclose information - (a) already publicly available; (b) to a person about an individual who has consented to the disclosure of the information to the person; (c) to an individual about another 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 first-mentioned individual; and (iii) is incapable of understanding the nature of the request, and if the presence of the first-mentioned individual at the meeting would be in the best interests of the last-mentioned individual; or (d) to an individual about another individual who is deceased and the first-mentioned individual is, or would be so present with the consent of, the next of kin of the last-mentioned individual; 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 individual 66. (1) A governing body may close a meeting of the body to an individual, if the meeting is likely to disclose information about the individual'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 information to the individual is likely to cause serious harm to his or her physical or mental health, or well-being; (b) the body has disclosed the information 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 information; and (ii) has been nominated by the individual 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 individual 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 individual; 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) information about an individual's physical or mental health, or well-being, which was provided by, or originated from, a health practitioner, has been disclosed at a meeting of a governing body to the individual concerned; (b) such disclosure was made without the health practitioner's knowledge; and (c) the health practitioner can be located with reasonable effort and inquiry, the information officer of the governing body shall notify the health practitioner of such disclosure. Third party commercial information 67. (1) Subject to subsection (2), a governing body shall close a meeting of the body to all persons, if the meeting is likely to disclose - (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 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 meeting insofar as it would disclose information - (a) already publicly available; (b) to a person about a third party who has consented to its disclosure to the person; (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 information contemplated in subsection (2)(d) is disclosed at a meeting of a governing body, the chairperson of the body shall at the same time make available or cause to made available a written explanation of the methods used in conducting the test or the other investigation in question. Records supplied in confidence 68. (1) Subject to subsection (2), a governing body may close a meeting of the body to all persons, if - (a) the meeting is likely to disclose information supplied in confidence to a governmental body by a third party; (b) the disclosure of the information would be likely to prejudice the future supply of similar information, or information from the same source; (c) [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 (d) it is in the public interest that similar information, or information from the same source, should continue to be supplied. (2) Subsection (1) does not apply if the information has been supplied to a governmental body for - (a) payment, whether in money or not; or (b) the purpose of - (i) securing some advantage, grant, permit, contract or concession from a governmental body; or (ii) dissuading the body from taking action against the person who supplied the information or on whose behalf the information was supplied. (3) For the purposes of this section "third party" includes the Government of a foreign state, an international organisation of states, an international organisation established by the governments of states or an institution of any such a government or international organisation. Safety of individuals and security of institutions, buildings and systems 69. A governing body may close a meeting of the body to all persons, if the meeting is likely to disclose 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 70. (1) A governing body may close a meeting of the body to all persons, if the meeting is likely to disclose - (a) 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) information the disclosure of which would - (i) substantially impede; or (ii) result in a miscarriage of justice [with respect to] 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) information 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 governing body may close a meeting of the body to all persons, if the meeting is likely to disclose information 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 information relates have been finally determined. Defence and security of Republic 71. A governing body may close a meeting of the body to all persons, if the meeting is likely to disclose information the disclosure of which 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. International relations 72. (1) A governing body may close a meeting of the body to all persons, if the meeting is likely to disclose information 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 information if it came into existence more than 15 years before the date of the meeting. Economic interests of Republic and commercial activities of governmental bodies 73. (1) A governing body may close a meeting of the body to all persons, if the meeting is likely to disclose information the disclosure of which 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), a governing body may close a meeting of the body to all persons, if the meeting is likely to disclose - (a) (i) trade secrets of the State or a 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 the 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) information about a computer program owned by any governmental body. (3) Subsection (2) [shall] does not apply to a meeting insofar as it would disclose information - (a) already publicly available; (b) to a person about or owned by a governmental body which has consented to its disclosure to the person; (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 information contemplated in subsection (3)(d) is disclosed at a meeting of a governing body, the chairperson of the body shall at the same time make available or cause to made available a written explanation of the methods used in conducting the test or other investigation in question. Operations of governmental bodies 74. (1) Subject to subsections (3) and (4), a governing body may close a meeting of the body to all persons, if the meeting is likely to disclose information - (a) 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 information came into existence less than 10 years before the date of the meeting; (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) about evaluative material, [including information identifying] whether or not the person who supplied it is identified in the material, if the disclosure of which 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, and if the closing of the meeting would be in the public interest [and the information came into existence less than 10 years before the date of the meeting]. (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 meeting insofar as it would disclose - (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 meeting insofar as it would disclose - (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 information contemplated in subsection (3)(f) is disclosed at a meeting of a governing body, the chairperson of the body shall at the same time make available or cause to made available a written explanation of the methods used in conducting the test or other investigation in question. Disclosure in public interest 75. (1) Notwithstanding any other provision of this Act, but [S]subject to section 78, a governing body shall not close a meeting to all persons, if the meeting is likely to disclose information contemplated in section 65(1), 66(1), 67(1), 69(a), 70(1)(c)(ii), (iii) or (vi) or (2) if - (a) disclosure of the information 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 information 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 78, a governing body shall not close a meeting to all persons, if the meeting is likely to disclose information contemplated in section 68(1), 69(b) or (c), 70(1)(a), (b) or (c)(i), (iv) or (v), 71, 72(1) or 73(1) or (2), if giving due weight to the importance of open, accountable and participatory administration, the public interest in disclosure of the information clearly outweighs the need for non-disclosure contemplated [in] by the provision in question. Necessity of harm 76. No provision in this Chapter shall be interpreted to require or permit a governing body to close a meeting of the body if the harm that that provision is intended to guard against would not occur if the meeting were not closed in terms of this Part. Closing of meeting to person or class of persons only 77. Where - (a) a governing body votes to close a meeting; and (b) the harm that the provision in terms of which the body is required or permitted to close the meeting is intended to guard against would not occur if - (i) the meeting is closed only to a particular person or class of persons; or (ii) only a portion of the meeting is closed, the meeting shall [only] be so closed only to that person or class of persons, or only that portion of the meeting shall be closed, as the case may be.