OPEN DEMOCRACY BILL

(Revised draft)

(Prepared by the Task Group on Open Democracy appointed by Executive Deputy President T M Mbeki)

This draft incorporates proposed amendments and additions to the draft which was submitted to Cabinet for approval in principle after consideration of submissions received from governmental and private institutions and further deliberation.

[ ] Words in bold type in square brackets indicate omissions from existing clauses.

_______ Words underlined with solid line indicate insertions in existing clauses.

To give the public a general right of access to records held by governmental bodies subject to exemptions necessary to protect the public interest, personal privacy [or] and commercial confidentiality; to give individuals a right of access to, and to correct, information held by governmental or private bodies about themselves and to protect them against abuse of such information by governmental or private bodies; to provide for public access to the deliberative proceedings of certain important governmental bodies; to protect persons who disclose contraventions of the law, serious maladministration or corruption in governmental bodies; to establish procedures for the enforcement of any right established under the Act; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: -

ARRANGEMENT OF ACT

Section

PART I

INTRODUCTORY PROVISIONS

  1. Definitions
  2. Objects of Act
  3. Interpretation and application of Act

PART II

PUBLICATION OF AND ACCESS TO CERTAIN INFORMATION OF GOVERNMENTAL BODIES

  1. Guide on how to use Act
  2. Manuals on functions of, guidelines used by, and index of records held by, governmental bodies
  3. Distribution of guide and manuals
  4. Information in telephone directory
  5. Exclusion of exempt information [that may refused under this Act] from guide, manuals and telephone directory
  6. Obligation on [G]governmental bodies to make available [certain] records about decision-making guidelines and public safety risks

PART III

ACCESS TO RECORDS OF GOVERNMENTAL BODIES

CHAPTER 1

RIGHT AND MANNER OF ACCESS

  1. Right of access to records
  2. Form of requests
  3. Duty to assist requesters
  4. Transfer of requests
  5. Preservation of records pending decision on request, complaint and appeal
  6. Payment of request fee
  7. Payment of deposit
  8. Decision on request and notice thereof
  9. Urgent requests
  10. Extension of period to deal with request
  11. Deemed refusal of request
  12. Severability
  13. Access fees
  14. Access and forms of access
  15. Language of access
  16. Correction of personal information
  17. Compensation for inaccuracy]
  18. Reports to Commission

CHAPTER 2

GROUNDS FOR REFUSAL OF ACCESS TO RECORDS

  1. Personal privacy
  2. Health of requester
  3. Third party commercial information
  4. Records supplied in confidence
  5. Safety of individuals and security of institutions, buildings or systems
  6. Law enforcement and legal proceedings
  7. Defence and security of Republic
  8. International relations
  9. Economic interests of Republic and commercial activities of governmental bodies
  10. Operations of governmental bodies
  11. Frivolous or [vexations] vexatious requests
  12. Records that cannot be found or do not exist
  13. Published records and records to be published
  14. Records already open to public
  15. Disclosure in public interest
  16. Necessity of harm

CHAPTER 3

THIRD PARTY INTERVENTION

  1. Notice to third parties
  2. Representations by third parties
  3. Decision on representations for refusal
  4. Notice to third party of decision by head of governmental body on internal appeal
  5. Notice to third party of decision pursuant to Public Protector's recommendation

PART IV

CORRECTION AND PROTECTION OF PERSONAL INFORMATION HELD BY GOVERNMENTAL AND PRIVATE BODIES

  1. Application of Part and definition of personal information

    49A. Right of access to personal information held by private bodies
    49B. Correction of personal information held by private bodies
    49C. Correction of personal information held by governmental bodies

  2. Use [or disclosure] of personal information by governmental or private bodies

    50A. Disclosure of personal information by private bodies

  3. Disclosure of personal information [held] by governmental bodies
  4. Record of [undeclared] uses and disclosures not stipulated in manuals to be kept by governmental bodies
  5. Collection of personal information by governmental bodies
  6. Retention, accuracy and disposal of personal information held by governmental bodies
  7. [Compensation for damages] Remedies for disclosure of inaccurate personal information and a contravention of this Part

PART V 

ACCESS TO MEETINGS OF GOVERNING BODIES 

CHAPTER 1 

RIGHT OF ACCESS TO AND HOLDING OF MEETINGS

  1. Right of access to meetings of governing bodies
  2. Facilities where meetings are held
  3. [Schedule of ordinary meetings]
  4. Notice of meetings
  5. Provision of materials at, recordings of, and participation in, meetings
  6. Procedure to close meetings
  7. Disorderly conduct of persons at meetings
  8. Minutes of meetings
  9. Reports to Commission

CHAPTER 2

GROUNDS FOR CLOSURE OF MEETINGS

  1. Personal privacy
  2. Health of individual
  3. Third party commercial information
  4. Records supplied in confidence
  5. Safety of individuals and security of institutions, buildings or systems
  6. Law enforcement and legal proceedings
  7. Defence and security of Republic
  8. International relations
  9. Economic interests of Republic and commercial activities of governmental bodies
  10. Operations of governmental bodies
  11. Disclosure in public interest
  12. Necessity of harm
  13. Closing of meeting to person or class of persons only

CHAPTER 3

THIRD PARTY INTERVENTION

  1. Notice to third parties
  2. Representations by third parties
  3. Decision on representations for closed meeting

PART VI

PROTECTION OF WHISTLEBLOWERS

  1. Exclusion of liability if disclosing contravention of law, corruption or maladministration
  2. Exclusion of liability if disclosing information after publication
  3. Protection against reprisals

    83A. Notice to officials of provisions of Part and other complaint procedure

PART VII

REVIEW OF DECISIONS

CHAPTER 1

INTERNAL APPEALS

  1. Right of internal appeal to head of governmental body
  2. Manner of internal appeal and appeal fees
  3. Notice to and representations by other interested parties
  4. Decision on internal appeal
  5. Urgent internal appeals

CHAPTER 2

COMPLAINTS TO PUBLIC PROTECTOR

  1. Powers of Public Protector in addition to powers conferred by other laws
  2. Assistance by Public Protector
  3. Complaints to Public Protector
  4. Investigation of complaint
  5. Notice of intention to investigate
  6. Precautions against disclosure
  7. Findings and recommendations of Public Protector
  8. Reports to [Open Democracy] Commission
  9. Provincial public protectors

CHAPTER 3

INFORMATION COURTS

  1. Establishment of Information Courts
  2. Appeals to Information Court
  3. Applications to Information Court
  4. Extension of period within which appeal or application may be lodged
  5. Jurisdiction of Information Court
  6. Form and manner of appeal and application
  7. Notice of appeal and application
  8. Appearance as party to appeal and application
  9. Appearance on behalf of party
  10. Determination of hearing of appeal and application and urgent hearings
  11. Procedure at appeal and application
  12. Legal representation
  13. Burden of proof
  14. Decision on appeal and application
  15. Costs
  16. Proof of orders
  17. Review of proceedings of Information Court
  18. Regulations regarding appeals and applications to and proceedings before Information Court
  19. Reports to Commission

PART VIII

GENERAL AND MISCELLANEOUS PROVISIONS

  1. Designation of information officers and deputy information officers
  2. Establishment and appointment of Open Democracy Commission
  3. Functions of Commission
  4. Meetings of Commission
  5. Reports to Parliament by Commission
  6. Staff and expenditure of Commission and remuneration of Commission's members
  7. Delegation of powers and assignment of duties by Public Protector or head or information officer of governmental body
  8. Restriction of liability
  9. Offences
  10. Regulations
  11. Repeal or amendment of laws
  12. Short title and commencement

SCHEDULE

LAWS REPEALED OR AMENDED