Promotion of Access to Information Act, 2000/2001-12-07

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as amended by

Judicial Matters Amendment Act, No. 42 of 2001

Section

Definitions Interpretation of Act

Act applies to record whenever it came into existence Records held by official or independent contractor of public or private body Application of other legislation prohibiting or restricting disclosure Application of other legislation providing for access Act not applying to records requested for criminal or civil proceedings after commencement of proceedings Part applicable when performing functions as public or private body

Objects of Act Guide on how to use Act

Right of access to records of public bodies Act not applying to certain public bodies or officials thereof Body determined to be part of another public body

Manual on functions of, and index of records held by, public body Voluntary disclosure and automatic availability of certain records Information in telephone directory

Designation of deputy information officers, and delegation Form of requests Duty to assist requesters Transfer of requests Preservation of records until final decision on request Fees Records that cannot be found or do not exist Deferral of access Decision on request and notice thereof Extension of period to deal with request Deemed refusal of request Severability Access and forms of access Access to health or other records Language of access Reports to Human Rights CommiSsion

Interpretation Mandatory protection of privacy of third party who is natural person Mandatory protection of certain records of South African Revenue Service Mandatory protection of commercial information of third party Mandatory protection of certain confidential information, and protection of certain other confidential information, of third party Mandatory protection of safety of individuals, and protection of property Mandatory protection of police dockets in bail proceedings, and protection of law enforcement and legal proceedings Mandatory protection of records privileged from production in legal proceedings Defence, security and international relations of Republic Economic interests and financial welfare of Republic and commercial activities of public bodies Mandatory protection of research information of third party, and protection of research information of public body Operations of public bodies Manifestly frivolous or vexatious requests, or substantial and unreasonable diversion of resources Mandatory disclosure in public interest

Notice to third parties Representations and consent by third parties Decision on representations for refusal and notice thereof

Right of access to records of private bodies

Manual Voluntary disclosure and automatic availability of certain records

Form of request Fees Records that cannot be found or do not exist Decision on request and notice thereof Extension of period to deal with request Deemed refusal of request Severability Form of access Access to health or other records

Interpretation Mandatory protection of privacy of third party who is natural person Mandatory protection of commercial information of third party Mandatory protection of certain confidential information of third party Mandatory protection of safety of individuals, and protection of property Mandatory protection of records privileged from production in legal proceedings Commercial information of private body Mandatory protection of research information of third party, and protection of research information of private body Mandatory disclosure in public interest

Notice to third parties Representations and consent by third parties Decision on representations for refusal and notice thereof

Right of internal appeal to relevant authority Manner of internal appeal, and appeal fees Notice to and representations by other interested parties Decision on internal appeal and notice thereof

Applications regarding decisions of information officers or relevant authorities of public bodies or heads of private bodies Procedure Disclosure of records to, and non-disclosure by, court Proceedings are civil Decision on application

Additional functions of Human Rights Commission Report to National Assembly by Human Rights Commission Expenditure of Human Rights Commission in terms of Act

Application of other legislation providing for access Extended periods for dealing with requests during first two years Correction of personal information

Liability Offences Amendment of Public Protector Act 23 of 1994 Regulations Short title and commencement

Definitions

1. In this Act, unless the context otherwise indicates— “access fee” means a fee prescribed for the purposes of section 22(6) or 54(6), as the case may be;

“application” means an application 10 a court in terms of section 78;

“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

“court” means—

the Constitutional Court acting in terms of section 167(6)(a) of the Constitution; or

a High Court or another court of similar status; or

a Magistrate's Court, either generally or in respect of a specified class of decisions in terms of this Act, designated by the Minister, by notice in the Gazette, and presided over by a magistrate designated in writing by the Minister, after consultation with the Magistrates Commission,

within whose area of jurisdiction—

the decision of the information officer or relevant authority of a public body or the head of a private body has been taken;

the public body or private body concerned has its principal place of administration or business; or

the requester or third party concerned is domiciled or ordinarily resident;

“evaluative material” means an evaluation or opinion prepared for the purpose of determining—

the suitability, eligibility or qualifications of the person to whom or which the evaluation or opinion relates—

for employment or for appointment to office;

for promotion in employment or office or for continuance in employment or office;

for removal from employment or office; or

for the awarding of a scholarship, award, bursary, honour or similar benefit; or

whether any scholarship, award, bursary, honour or similar benefit should be continued, modified, cancelled or renewed;

“head” of, or in relation to, a private body means—

in the case of a natural person, that natural person or any person duly authorised by that natural person;

in the case of a partnership, any partner of the partnership or any person duly authorised by the partnership;

in the case of a juristic person—

the chief executive officer or equivalent officer of the juristic person or any person duly authorised by that officer; or

the person who is acting as such or any person duly authorised by such acting person;

“health practitioner” means an individual who carries on, and is registered in terms of legislation to carry on, an occupation which involves the provision of care or treatment for the physical or mental health or for the well-being of individuals;

“Human Rights Commission” means the South African Human Rights Commission referred to in section 181(1)(b) of the Constitution;

“individual's next of kin” means—

an individual to whom the individual was married immediately before the individual's death;

an individual with whom the individual lived as if they were married immediately before the individual's death;

a parent, child, brother or sister of the individual; or

if—

there is no next of kin referred to in paragraphs (a), (b) and (c); or

the requester concerned took all reasonable steps to locate such next of kin, but was unsuccessful,

an individual who is related to the individual in the second degree of affinity or consanguinity;

“information officer” of, or in relation to, a public body—

in the case of a national department, provincial administration or organisational component—

mentioned in Column 1 of Schedule 1 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), means the officer who is the incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule 1 or 3 opposite the name of the relevant national department, provincial administration or organisational component or the person who is acting as such; or

not so mentioned, means the Director-General, head, executive director or equivalent officer, respectively, of that national department, provincial administration or organisational component, respectively, or the person who is acting as such;

in the case of a municipality, means the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), or the person who is acting as such; or

in the case of any other public body, means the chief executive officer, or equivalent officer, of that public body or the person who is acting as such;

“internal appeal” means an internal appeal to the relevant authority in terms of section 74;

“international organisation” means an international organisation—

of states; or

established by the governments of states;

“Minister” means the Cabinet member responsible for the administration of justice;

“notice” means notice in writing, and “notify” and “notified” have corresponding meanings;

“objects of this Act” means the objects of this Act referred to in section 9;

“official”, in relation to a public or private body, means—

any person in the employ (permanently or temporarily and full-time or part-time) of the public or private body, as the case may be, including the head of the body, in his or her capacity as such; or

a member of the public or private body, in his or her capacity as such;

“person” means a natural person or a juristic person;

“personal information” means information about an identifiable individual, including, but not limited to—

information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the individual;

information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;

any identifying number, symbol or other particular assigned to the individual;

the address, fingerprints or blood type of the individual;

the personal opinions, views or preferences of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;

correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;

the views or opinions of another individual about the individual;

the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and

the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,

but excludes information about an individual who has been dead for more than 20 years;

“personal requester” means a requester seeking access to a record containing personal information about the requester;

“prescribed” means prescribed by regulation in terms of section 92;

“private body” means—

a natural person who carries or has carried on any trade, business or profession, but only in such capacity;

a partnership which carries or has carried on any trade, business or profession;

any former or existing juristic person,

but excludes a public body;

“public safety or environmental risk” means harm or risk to the environment or the public (including individuals in their wmkplace) associated with—

a product or service which is available to the public;

a substance released into the environment, including, but not limited to, the workplace;

a substance intended for human or animal consumption;

a means of public transport; or

an installation or manufacturing process or substance which is used in that installation or process;

“public body” means—

any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or

any other functionary or institution when—

exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or

exercising a public power or performing a public function in terms of any legislation;

“record” of, or in relation to, a public or private body, means any recorded information—

regardless of form or medium;

in the possession or under the control of that public or private body, respectively; and

whether or not it was created by that public or private body, respectively;

“relevant authority”, in relation to—

a public body referred to in paragraph (a) of the definition of “public body” in the national sphere of goveriment, means—

in the case of the Office of the Presidency, the person designated in writing by the President; or

in any other case, the Minister responsible for that public body or the person designated in writing by that Minister;

a public body referred to in paragraph (a) of the definition of “public body” in the provincial sphere of government, means—

in the case of the Office of a Premier, the person designated in writing by the Premier; or

in any other case, the member of the Executive Council responsible for that public body or the person designated in writing by that member; or

a municipality, means—

the mayor;

the speaker; or

any other person,

designated in writing by the Municipal Council of that municipality;

“request for access”, in relation to—

a public body, means a request for access to a record of a public body in terms of section 11; or

a private body, means a request for access to a record of a private body in terms of section 50;

“requester”, in relation to—

a public body, means—

any person (other than a public body contemplated in paragraph (a) or (b)(i) of the definition of “public body”, or an official thereof) making a request for access to a record of that public body; or

a person acting on behalf of the person referred to in subparagraph (i);

a private body, means—

any person, including, but not limited to, a public body or an official thereof, making a request for access to a record of that private body; or

a person acting on behalf of the person contemplated in subparagraph (i);

“subversive or hostile activities” means—

aggression against the Republic;

sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic;

an activity aimed at changing the constitutional order of the Republic by the use of force or violence; or

a foreign or hostile intelligence operation;

“third party”, in relation to a request for access to—

a record of a public body, means any person (including, but not limited to, the government of a foreign state, an international organisation or an organ of that government or organisation) other than—

the requester concerned; and

a public body; or

a record of a private body, means any person (including, but not limited to, a public body) other than the requester,

but, for the purposes of sections 34 and 63, the reference to “person” in paragraphs (a) and (b) must be construed as a reference to “natural person”;

“this Act” includes any regulation made and in force in terms of section 92;

“transfer”, in relation to a record, means transfer in terms of section 20(1) or (2), and “transferred” has a corresponding meaning;

“working days” means any days other than Saturdays, Sundays or public holidays, as defined in section 1 of the Public Holidays Act, 1994 (Act No. 36 of 1994).

Interpretation of Act

2. (1) When interpreting a provision of this Act, every court must prefer any reasonable interpretation of the provision that is consistent with the objects of this Act over any alternative interpretation that is inconsistent with those objects.

(2) Section 12 must not be construed as excluding—

the Cabinet and its committees; or

an individual member of Parliament or of a provincial legislature,

from the operation of the definition of “requester” in relation to a private body in section 1, section 50 and all other provisions of this Act related thereto.

(3) For the purposes of this Act, the South African Revenue Service, established by section 2 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997), and referred to in section 35(1), is a public body.

Act not applying to records requested for criminal or civil proceedings after commencement of proceedings

7. (1) This Act does not apply to a record of a public body or a private body if—

that record is requested for the purpose of criminal or civil proceedings;

so requested after the commencement of such criminal or civil proceedings, as the case may be; and

the production of or access to that record for the purpose referred to in paragraph (a) is provided for in any other law.

(2) Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in the criminal or civil proceedings referred to in that subsection unless the exclusion of such record by the court in question would, in its opinion, be detrimental to the interests of justice.

Guide on how to use Act

10. (1) The Human Rights Commission must, within 18 months after the commencement of this section, compile in each official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act.

(2) The guide must, without limiting the generality of subsection (1), include a description of—

the objects of this Act;

the postal and street address, phone and fax number and, if available, electronic mail address of—

the information officer of every public body; and

every deputy information officer of every public body designated in terms of section 17(1);

such particulars of every private body as are practicable;

the manner and form of a request for—

access to a record of a public body contemplated in section 11; and

access to a record of a private body contemplated in section 50;

the assistance available from the information officer of a public body in terms of this Act;

the assistance available from the Human Rights Commission in terms of this Act;

all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, including the manner of lodging—

an internal appeal; and

an application with a court against a decision by the information officer of a public body, a decision on internal appeal or a decision of the head of a private body;

the provisions of sections 14 and 51 requiring a public body and private body, respectively, to compile a manual, and how to obtain access to a manual;

the provisions of sections 15 and 52 providing for the voluntary disclosure of categories of records by a public body and private body, respectively;

the notices issued in terms of sections 22 and 54 regarding fees to be paid in relation to requests for access; and

the regulations made in terms of section 92.

(3) The Human Rights Commission must, if necessary, update and publish the guide at intervals of not more than two years.

(4) The guide must be made available as prescribed.

Act not applying to certain public bodies or officials thereof

12. This Act does not apply to a record—

of the Cabinet and its committees;

relating to the judicial functions of—

a court referred to in section 166 of the Constitution;

a Special Tribunal established in terms of section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996); or

a judicial officer of such court or Special Tribunal; or

of an individual member of Parliament or of a provincial legislature in that capacity.

Body determined to be part of another public body

13. For the purpose of this Act, the Minister may, on his or her own accord or on the request of the relevant public body or bodies or a body referred to in paragraph (c), by notice in the Gazette—

determine that a public body is to be regarded as part of another public body;

determine that a category of public bodies is to be regarded as one public body with such information officer as the Minister designates; and

if there is doubt as to whether a body is a separate public body or forms part of a public body, determine that the body—

is a separate public body; or

forms part of a public body.

Manual on functions of, and index of records held by, public body

14. (1) Within six months after the commencement of this section or the coming into existence of a public body, the information officer of the public body concerned must compile in at least three official languages a manual containing—

a description of its structure and functions;

the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of the body and of every deputy information officer of the body designated in terms of section 17(1);

a description of the guide referred to in section 10, if available, and how to obtain access to it;

sufficient detail to facilitate a request for access to a record of the body, a description of the subjects on which the body holds records and the categories of records held on each subject;

the latest notice, in terms of section 15(2), if any, regarding the categories of records of the body which are available without a person baving to request access in terms of this Act;

a description of the services available to members of the public from the body and how to gain access to those services;

a description of any arrangement or provision for a person (other than a public body referred to in paragraph (a) or (b)(i) of the definition of “public body” in section 1) by consultation, making representations or otherwise, to participate in or influence—

the formulation of policy; or

the exercise of powers or performance of duties, by the body;

a description of all remedies available in respect of an act or a failure to act by the body; and

such other information as may be prescribed.

(2) A public body must, if necessary, update and publish its manual referred to in subsection (1) at intervals of not more than one year.

(3) Each manual must be made available as prescribed.

(4)(a) If the functions of two or more public bodies are closely connected, the Minister may on request or of his or her own accord determine that the two or more bodies compile one manual only.

(b) The public bodies in question must share the cost of the compilation and making available of such manual as the Minister determines.

(5) For security, administrative or financial reasons, the Minister may, on request or of his or her own accord by notice in the Gazette, exempt any public body or category of public bodies from any provision of this section for such period as the Minister thinks fit.

Decision on request and notice thereof

25. (1) Except if the provisions regarding third party notification and intervention contemplated in Chapter 5 of this Part apply, the information officer to whom the request is made or transferred, must, as soon as reasonably possible, but in any event within 30 days, after the request is received—

decide in accordance with this Act whether to grant the request; and

notify the requester of the decision and, if the requester stated, as contemplated in section 18(2)(e), that he or she wishes to be informed of the decision in any other manner, inform him or her in that manner if it is reasonably possible.

(2) If the request for access is granted, the notice in terms of subsection (1)(b) must state—

the access fee (if any) to be paid upon access;

the form in which access will be given; and

that the requester may lodge an internal appeal or an application with a court, as the case may be, against the access fee to be paid or the form of access granted, and the procedure (including the period) for lodging the internal appeal or application, as the case may be.

(3) If the request for access is refused, the notice in terms of subsection (1)(b) must—

state adequate reasons for the refusal, including the provisions of this Act relied upon;

exclude, from such reasons, any reference to the content of the record; and

state that the requester may lodge an internal appeal or an application with a court, as the case may be, against the refusal of the request, and the procedure (including the period) for lodging the internal appeal or application, as the case may be.

Severability 28. (1) If a request for access is made to a record of a public body containing information which mayor must be refused in terms of any provision of Chapter 4 of this Part, every part of the record which—

does not contain; and

can reasonably be severed from any part that contains,

any such information must, despite any other provision of this Act, be disclosed.

(2) If a request for access to—

a part of a record is granted; and

the other part of the record is refused,

as contemplated in subsection (1), the provisions of section 25(2) apply to paragraph (a) of this subsection and the provisions of section 25(3) apply to paragraph (b) of this subsection.

Reports to Human Rights Commission

32. The information officer of each public body must annually submit to the Human Rights Commission a report stating in relation to the public body—

the number of requests for access received;

the number of requests for access granted in full;

the number of requests for access granted in terms of section 46;

the number of requests for access refused in full and refused partially and the number of times each provision of this Act was relied on to refuse access in full or partial;

the number of cases in which the periods stipulated in section 25(1) were extended in terms of section 26(1);

the number of internal appeals lodged with the relevant authority and the number of cases in which, as a result of an internal appeal, access was given to a record;

the number of internal appeals which were lodged on the ground that a request for access was regarded as having been refused in terms of section 27;

the number of applications to a court which were lodged on the ground that an internal appeal was regarded as having been dismissed in terms of section 77(7); and

such other matters as may be prescribed.

Mandatory protection of privacy of third party who is natural person

34. (1) Subject to subsection (2), the information officer of a public body must refuse a request for access to a record of the body if its disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information—

about an individual who has consented in terms of section 48 or otherwise in writing to its disclosure to the requester concerned;

that was given to the public body by the individual to whom it relates and the individual was informed by or on behalf of the public body, before it is given, that the information belongs to a class of information that would or might be made available to the public;

already publicly available;

about an individual's physical or mental health, or well-being, who is under the care of the requester and who is—

under the age of 18 years; or

incapable of understanding the nature of the request,

and if giving access would be in the individual's best interests;

about an individual who is deceased and the requester is—

the individual's next of kin; or

making the request with the written consent of the individual's next of kin; or

about an individual who is or was an official of a public body and which relates to the position or functions of the individual, including, but not limited to—

the fact that the individual is or was an official of that public body;

the title, work address, work phone number and other similar particulars of the individual;

the classification, salary scale, remuneration and responsibilities of the position held or services performed by the individual; and

the name of the individual on a record prepared by the individual in the course of employment.

Mandatory protection of commercial information of third party

36. (1) Subject to subsection (2), the information officer of a public body must refuse a request for access to a record of the body if the record contains—

trade secrets of a third party;

financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which would be likely to cause harm to the commercial or financial interests of that third party; or

information supplied in confidence by a third party the disclosure of which could reasonably be expected—

to put that third party at a disadvantage in contractual or other negotiations; or

to prejudice that third party in commercial competition.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information—

already publicly available;

about a third party who has consented in terms of section 48 or otherwise in writing to its disclosure to the requester concerned; or

about the results of any product or environmental testing or other investigation supplied by a third party or the result of any such testing or investigation carried out by or on behalf of a third party and its disclosure would reveal a serious public safety or environmental risk.

(3) For the purposes of subsection (2)(c), the results of any product or environmental testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

Mandatory protection of police dockets in bail proceedings, and protection of law enforcement and legal proceedings

39. (1) The information officer of a public body—

must refuse a request for access to a record of the body if access to that record is prohibited in terms of section 60(14) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977); or

may refuse a request for access to a record of the body if—

the record contains methods, techniques, procedures or guidelines for—

the prevention, detection, curtailment or investigation of a contravention or possible contravention of the law; or

the prosecution of alleged offenders,

and the disclosure of those methods, techniques, procedures or guidelines could reasonably be expected 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;

the prosecution of an alleged offender is being prepared or about to commence or pending and the disclosure of the record could reasonably be expected—

to impede that prosecution; or

to result in a miscarriage of justice in that prosecution; or

the disclosure of the record could reasonably be expected—

to prejudice the investigation of a 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;

to reveal, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law;

to result in the intimidation or coercion of a witness, or a person who might be or has been called as a witness, in criminal proceedings or other proceedings to enforce the law;

to facilitate the commission of a contravention of the law, including, but not limited to, subject to subsection (2), escape from lawful detention; or

to prejudice or impair the fairness of a trial or the impartiality of an adjudication.

(2) A record may not be refused in terms of subsection (1)(b)(iii)(dd) insofar as it consists of information about the general conditions of detention of persons in custody.

(3)(a) If a request for access to a record of a public body must or may be refused in terms of subsection (1)(a) or (b), 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 subsection (1)(a) or (b), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record.

(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3) must—

state that fact;

identify the provision of subsection (1)(a) or (b) in terms of which access would have been refused if the record had existed;

state adequate reasons for the refusal, as required by section 25(3), in so far as they can be given without causing the harm contemplated in subsection (1)(a) or (b); and

state that the requester concerned may lodge an internal appeal or an application with a court, as the case may be, against the refusal as required by section 25(3).

Defence, security and international relations of Republic

41. (1) The information officer of a public body may refuse a request for access to a record of the body if its disclosure—

could reasonably be expected to cause prejudice to—

the defence of the Republic;

the security of the Republic; or

subject to subsection (3), the international relations of the Republic; or

would reveal information—

supplied in confidence by or on behalf of another state or an international organisation;

supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement or international agreement, contemplated in section 231 of the Constitution, with that state or organisation which requires the information to be held in confidence; or

required to be held in confidence by an international agreement or customary international law contemplated in section 231 or 232, respectively, of the Constitution.

(2) A record contemplated in subsection (1), without limiting the generality of that subsection, includes a record containing information—

relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention, suppression or curtailment of subversive or hostile activities;

relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of—

weapons or any other equipment used for the detection, prevention, suppression or curtailment of subversive or hostile activities; or

anything being designed, developed, produced or considered for use as weapons or such other equipment;

relating to the characteristics, capabilities, vulnerabilities, performance, potential, deployment or functions of—

any military force, unit or personnel; or

any body or person responsible for the detection, prevention, suppression or curtailment of subversive or hostile activities;

held for the purpose of intelligence relating to—

the defence of the Republic;

the detection, prevention, suppression or curtailment of subversive or hostile activities; or

another state or an international organisation used by or on behalf of the Republic in the process of deliberation and consultation in the conduct of international affairs;

on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph (d);

on the identity of a confidential source and any other source of information referred to in paragraph (d);

on the positions adopted or to be adopted by the Republic, another state or an international organisation for the purpose of present or future international negotiations; or

that constitutes diplomatic correspondence exchanged with another state or an international organisation or official correspondence exchanged with diplomatic missions or consular posts of the Republic.

(3) A record may not be refused in terms of subsection (1)(a)(iii) if it came into existence more than 20 years before the request.

(4)(a) If a request for access to a record of a public body may be refused in terms of 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 subsection (1), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record.

(b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3) must—

state that fact;

identify the provision of subsection (1) in terms of which access would have been refused if the record had existed;

state adequate reasons for the refusal, as required by section 25(3), in so far as they can be given without causing the harm contemplated in subsection (1); and

state that the requester may lodge an internal appeal or an application with a court, as the case may be, against the refusal as required by section 25(3).

Economic interests and financial welfare of Republic and commercial activities of public bodies

42. (1) The information officer of a public body may refuse a request for access to a record of the body if its disclosure 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 of the Republic effectively in the best interests of the Republic.

(2) The information referred to in subsection (1) includes, without limiting the generality of that subsection, information about—

a contemplated change in, or maintenance of, a policy substantially affecting the currency, coinage, legal tender, exchange rates or foreign investment;

a contemplated change in or decision not to change—

credit or interest rates;

customs or excise duties, taxes or any other source of revenue;

the regulation or supervision of financial institutions;

government borrowing; or

the regulation of prices of goods or services, rents or wages, salaries or other incomes; or

a contemplated—

sale or acquisition of immovable or movable property; or

international trade agreement.

(3) Subject to subsection (5), the information officer of a public body may refuse a request for access to a record of the body if the record—

contains trade secrets of the State or a public body;

contains financial, commercial, scientific or technical information, other than trade secrets, the disclosure of which would be likely to cause harm to the commercial or financial interests of the State or a public body;

contains information, the disclosure of which could reasonably be expected—

to put a public body at a disadvantage in contractual or other negotiations; or

to prejudice a public body in commercial competition; or

is a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the State or a public body, except insofar as it is required to give access to a record to which access is granted in terms of this Act.

(4) The information referred to in subsection (2)(c)(i) includes, without limiting the generality of that subsection, information about an agreement, or contemplated agreement, to transfer any interest in or right to shares in the capital of a public body to any person which is not a public body referred to in paragraph (a) or (b)(i) of the definition of “public body” in section 1.

(5) A record may not be refused in terms of subsection (3) insofar as it consists of information—

already publicly available;

about or owned by a public body, other than the public body to which the request is made, which has consented in writing to its disclosure to the requester concerned; or

about the results of any product or environmental testing or other investigation supplied by a public body or the results of any such testing or investigation carried out by or on behalf of a public body, and its disclosure would reveal a serious public safety or environmental risk.

(6) For the purposes of subsection (5)(c), the results of any product or environmental testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

(7) If a request for access to a record contemplated in subsection (5)(c) is granted and the testing or other investigation was carried out by or on behalf of the public body from which the record is requested, the information officer must at the same time as access to the record is given, provide the requester with a written explanation of the methods used in conducting the testing or other investigation.

Operations of public bodies

44. (1) Subject to subsections (3) and (4), the information officer of a public body may refuse a request for access to a record of the body—

if the record contains—

an opinion, advice, report or recommendation obtained or prepared; or

an account of a consultation, discussion or deliberation that has occurred, including, but not limited to, minutes of a meeting,

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; or if—

the disclosure of the record could reasonably be expected to frustrate the deliberative process in a public body or between public bodies by inhibiting the candid—

communication of an opinion, advice, report or recommendation; or

conduct of a consultation, discussion or deliberation; or

the disclosure of the record could, by premature disclosure of a policy or contemplated policy, reasonably be expected to frustrate the success of that policy.

(2) Subject to subsection (4), the information officer of a public body may refuse a request for access to a record of the body if—

the disclosure of the record could reasonably be expected to jeopardise the effectiveness of a testing, examining or auditing procedure or method used by a public body;

the record contains evaluative material, whether or not the person who supplied it is identified in the record, and the disclosure of the material would breach an express or implied promise which was—

made to the person who supplied the material; and

to the effect that the material or the identity of the person who supplied it, or both, would be held in confidence; or

the record contains a preliminary, working or other draft of an official of a public body.

(3) A record may not be refused in terms of subsection (1) if the record came into existence more than 20 years before the request concerned.

(4) A record may not be refused in terms of subsection (1) or (2) insofar as it consists of an account or a statement of reasons required to be given in accordance with section 5 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

Decision on representations for refusal and notice thereof

49. (1) The information officer of a public body must, as soon as reasonably possible, but in any event within 30 days after every third party is informed as required by section 47—

decide, after giving due regard to any representations made by a third party in terms of section 48, whether to grant the request for access;

notify the third party so informed and a third party not informed in terms of section 47(1), but that made representations in terms of section 48 or is located before the decision is taken, of the decision; and

notify the requester of the decision and, if the requester stated, as contemplated in section 18(2)(e), that he or she wishes to be informed of the decision in any other manner, inform him or her in that manner if it is reasonably possible, and if the request is—

granted, notify the requester in accordance with section 25(2); or

refused, notify the requester in accordance with section 25(3).

(2) If, after all reasonable steps have been taken as required by section 47(1), a third party is not informed of the request in question and the third party did not make any representations in terms of section 48, any decision whether to grant the request for access must be made with due regard to the fact that the third party did not have the opportunity to make representations in terms of section 48 why the request should be refused.

(3) If the request for access is granted, the notice in terms of subsection (1)(b) must state—

adequate reasons for granting the request, including the provisions of this Act relied upon;

that the third party may lodge an internal appeal or an application, as the case may be, against the decision within 30 days after notice is given, and the procedure for lodging the internal appeal or application, as the case may be; and

that the requester will be given access to the record after the expiry of the applicable period contemplated in paragraph (b), unless such internal appeal or application with a court is lodged within that period.

(4) If the information officer of a public body decides in terms of subsection (1) to grant the request for access concerned, he or she must give the requester access to the record concerned after the expiry of 30 days after notice is given in terms of subsection (1)(b), unless an internal appeal or an application with a court, as the case may be, is lodged against the decision within that period.

Voluntary disclosure and automatic availability of certain records

52. (1) The head of a private body may, on a voluntary and periodic basis, submit to the Minister a description of—

the categories of records of the private body that are automatically available without a person having to request access in terms of this Act, including such categories available—

for inspection in terms of legislation other than this Act;

for purchase or copying from the private body; and

from the private body free of charge; and

how to obtain access to such records.

(2) If appropriate the Minister must, on a periodic basis and by notice in the Gazette—

publish any description so submitted; and

update any description so published.

(3) The only fee payable (if any) for access to a record included in a notice in terms of subsection (2) is a prescribed fee for reproduction.

(4) The head of a private body may delete any part of a record contemplated in subsection (1)(a) which, on a request for access, may or must be refused in terms of Chapter 4 of this Part.

(5) Section 50 and any other provisions in this Act related to that section do not apply to any category of records included in a notice in terms of subsection (2).

Decision on request and notice thereof

56. (1) Except if the provisions regarding third party notification and intervention contemplated in Chapter 5 of this Part apply, the head of the private body to whom the request is made must, as soon as reasonably possible, but in any event within 30 days, after the request has been received or after the particulars required in terms of section 53(2) have been received—

decide in accordance with this Act whether to grant the request; and

notify the requester of the decision and, if the requester stated, as contemplated in section 53(2)(e), that he or she wishes to be informed of the decision in any other manner, inform him or her in that manner if it is reasonably possible.

(2) If the request for access is granted, the notice in terms of subsection (1)(b) must state—

the access fee (if any) to be paid upon access;

the form in which access will be given; and

that the requester may lodge an application with a court against the access fee to be paid or the form of access granted, and the procedure, including the period allowed, for lodging the application.

(3) If the request for access is refused, the notice in terms of subsection (1)(b) must—

state adequate reasons for the refusal, including the provisions of this Act relied on;

exclude, from any such reasons, any reference to the content of the record; and

state that the requester may lodge an application with a court against the refusal of the request, and the procedure (including the period) for lodging the application.

Severability

59. (1) If a request for access is made to a record of a private body containing information which may or must be refused in terms of any provision of Chapter 4 of this Part, every part of the record which—

does not contain; and

can reasonably be severed from any part that contains,

any such information must, despite any other provision of this Act, be disclosed.

(2) If a request for access to—

a part of a record is granted; and the other part of the record is refused,

as contemplated in subsection (1), the provisions of section 56(2) apply to paragraph (a) of this subsection and the provisions of section 56(3) apply to paragraph (b) of this subsection.

Access to health or other records

61. (1) If the head of a private body who grants, in terms of section 50, a request for access to a record provided by a health practitioner in his or her capacity as such about the physical or mental health, or well-being—

of the requester; or

if the request has been made on behalf of the person to whom the record relates, of that person,

(in this section, the requester and person referred to in paragraphs (a) and (b), respectively, are referred to as the “relevant person”), is of the opinion that the disclosure of the record to the relevant person might cause serious harm to his or her physical or mental health, or well-being, the head may, before giving access in terms of section 60, consult with a health practitioner who, subject to subsection (2), has been nominated by the relevant person.

(2) If the relevant person is—

under the age of 16 years, a person having parental responsibilities for the relevant person must make the nomination contemplated in subsection (1); or

incapable of managing his or her affairs, a person appointed by the court to manage those affairs must make that nomination.

(3)(a) If, after being given access to the record concerned, the health practitioner consulted in terms of subsection (1) is of the opinion that the disclosure of the record to the relevant person, would be likely to cause serious harm to his or her physical or mental health, or well-being, the head may only give access to the record if the requester proves to the satisfaction of the head that adequate provision is made for such counselling or arrangements as are reasonably practicable before, during or after the disclosure of the record to limit, alleviate or avoid such harm to the relevant person.

(b) Before access to the record is so given to the requester, the person responsible for such counselling or arrangements must be given access to the record.

Mandatory protection of commercial information of third party

64. (1) Subject to subsection (2), the head of a private body must refuse a request for access to a record of the body if the record contains—

trade secrets of a third party;

financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which would be likely to cause harm to the commercial or financial interests of that third party; or

information supplied in confidence by a third party, the disclosure of which could reasonably be expected—

to put that third party at a disadvantage in contractual or other negotiations; or

to prejudice that third party in commercial competition.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about—

a third party who has consented in terms of section 72 or otherwise in writing to its disclosure to the requester concerned;

the results of any product or environmental testing or other investigation supplied by a third party or the results of any such testing or investigation carried out by or on behalf of a third party and its disclosure would reveal a serious public safety or environmental risk.

(3) For the purposes of subsection (2)(b), the results of any product or environmental testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

Commercial information of private body

68. (1) Subject to subsection (2), the head of a private body may refuse a request for access to a record of the body if the record—

contains trade secrets of the private body;

contains financial, commercial, scientific or technical information, other than trade secrets, of the private body, the disclosure of which would be likely to cause harm to the commercial or financial interests of the body;

contains information, the disclosure of which could reasonably be expected—

to put the private body at a disadvantage in contractual or other negotiations; or

to prejudice the body in commercial competition; or

is a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by the private body, except insofar as it is required to give access to a record to which access is granted in terms of this Act.

(2) A record may not be refused in terms of subsection (1) insofar as it consists of information about the results of any product or environmental testing or other investigation supplied by the private body or the results of any such testing or investigation carried out by or on behalf of the private body and its disclosure would reveal a serious public safety or environmental risk.

(3) For the purposes of subsection (2), the results of any product or environmental testing or other investigation do not include the results of preliminary testing or other investigation conducted for the purpose of developing methods of testing or other investigation.

Decision on representations for refusal and notice thereof

73. (1) The head of a private body must, as soon as reasonably possible, but in any event within 30 days after every third party is informed as required by section 71—

decide, after giving due regard to any representations made by a third party in terms of section 72, whether to grant the request for access;

notify the third party so informed and a third party not informed in terms of section 71, but that made representations in terms of section 72 or is located before the decision is taken, of the decision; and

notify the requester of the decision and, if the requester stated, as contemplated in section 53(2)(e), that he or she wishes to be informed of the decision in any other manner, inform him or her in that manner if it is reasonably possible, and if the request is—

granted, notify the requester in accordance with section 56(2); or

refused, notify the requester in accordance with section 56(3).

(2) If, after all reasonable steps have been taken as required by section 71, a third party is not informed of a request, any decision whether to grant the request for access must be made with due regard to the fact that the third party did not have the opportunity to make representations in terms of section 72 why the request should be refused.

(3) If the request is granted, the notice in terms of subsection (1)(b) must state—

adequate reasons for granting the request, including the provisions of this Act relied upon to justify the granting;

that the third party may lodge an application with a court against the decision of the head within 30 days after notice is given, and the procedure for lodging the application; and

that the requester will be given access to the record after the expiry of the applicable period contemplated in paragraph (b), unless an application with a court is lodged within that period.

(4) If the head of the private body decides in terms of subsection (1) to grant the request for access concerned, he or she must give the requester access to the record concerned after the expiry of 30 days after notice is given in terms of subsection (1)(b), unless an application with a court is lodged against the decision within that period.

Additional functions of Human Rights Commission

83. (1) The Human Rights Commission must—

compile and make available a guide on how to use this Act as contemplated in section 10; and

submit reports to the National Assembly as contemplated in section 84.

(2) The Human Rights Commission must, to the extent that financial and other resources are available—

develop and conduct educational programmes to advance the understanding of the public, in particular of disadvantaged communities, of this Act and of how to exercise the rights contemplated in this Act;

encourage public and private bodies to participate in the development and conduct of programmes referred to in paragraph (a) and to undertake such programmes themselves; and

promote timely and effective dissemination of accurate information by public bodies about their activities.

(3) The Human Rights Commission may—

make recommendations for—

the development, improvement, modernisation, reform or amendment of this Act or other legislation or common law having a bearing on access to information held by public and private bodies, respectively; and

procedures in terms of which public and private bodies make information electronically available;

monitor the implementation of this Act;

if reasonably possible, on request, assist any person wishing to exercise a right contemplated in this Act;

recommend to a public or private body that the body make such changes in the manner in which it administers this Act as the Commission considers advisable;

train information officers and deputy information officers of public bodies;

consult with and receive reports from public and private bodies on the problems encountered in complying with this Act;

obtain advice from, consult with, or receive and consider proposals or recommendations from, any public or private body, official of such a body or member of the public in connection with the Commission's functions in terms of this Act;

for the purposes of section 84(b)(x), request the Public Protector to submit to the Commission information with respect to—

the number of complaints lodged with the Public Protector in respect of a right conferred or duty imposed by this Act;

the nature and outcome of those complaints; and

generally, inquire into any matter, including any legislation, the common law and any practice and procedure, connected with the objects of this Act.

(4) For the purpose of the annual report referred to in section 84 and if so requested by the Human Rights Commission, the head of a private body may furnish to that Commission information about requests for access to records of the body.

(5) If appropriate, and if financial and other resources are available, an official of a public body must afford the Human Rights Commission reasonable assistance for the effective performance of its functions in terms of this Act.