The FXI was mandated to establish an advisory body which would liase with Executive Deputy President Thabo Mbeki's office about the drafting of the Open Democracy Act at a seminar held recently in Johannesburg. Over 70 organisations attended the seminar organised by the FXI and the Task Group drafting the Act, held on 23 May 1995. A wide range of institutions were represented, including provincial governments, the SANDF, business, trade unions, church groups and NGO's.
The 150 page first draft of the Open Democracy Act has been published for comment by the Task Group, which consists of Adv Mojanku Gumbi as the Convenor, Adv Vincent Maleka, Prof Etienne Mureinik, Prof Mandla Mchunu, Adv Empie van Schoor and Mr Adriaan Nortje. The FXI has in the past criticised the composition of the Task Group, stating that it was not representative of civil society in South Africa, and that this would as adversely affect the drafting of the Bill.
It was with this in mind that the delegates to the Open Democracy Act seminar voted to establish a forum which would give voice to the concerns and needs of other sectors of civil society. To this end, the FXI will be overseeing the setting up of an advisory forum to Deputy President Mbeki's office, which will be able to draw to his attention the kinds of questions raised by participants at the seminar. Some included the mechanisms envisaged by the Act to enable rural dwellers to have access to government information, the role of libraries in SA in assisting those requiring information to access it, and how computer literacy could enhance efficient retrieval of information.
The published first draft does deals with some of these matters. According to the bill, some of its objects are to give the public a right of access to information held by governmental bodies, so far as that can be done without jeopardising good governance, personal privacy and commercial confidentiality; to give individuals stronger rights of access to information held by governmental bodies about themselves and the right to bring about the correction of that information, and to protect persons who disclose contraventions of the law, serious maladministration or corruption in governmental bodies. Generally, the bill states, its object is to empower the public effectively to scrutinise governmental decision making, to promote open and accountable administration at all levels of government and to empower individuals to participate in governmental decision making processes that affect them.
The bill provides for the establishment of an Open Democracy Act Commission, and an Information Court, which would deal with matters related to access to official information. The Commission would consist of five members who are nominated by a joint committee of the Houses of Parliament and approved by the National Assembly and the Senate. The Commission's tasks include an annual review of the Act and any other law having a bearing on the accountability, responsiveness and openness of governmental bodies as well as other bodies, institutions or organisations which exercise substantial influence over the nature of the SouthAfrican society.
The Commission is also required to produce a guide on how to use the Open Democracy Act. This guide would have to contain such information as may be reasonably required by a person who wishes to exercise any right in terms of the Act, including the postal and street addresses, phone and fax number and email address of the information officer of every governmental body to whom a request for information should be made. It would be the task of such officers to determine whether an individual's request for information from a governmental body does not fall within one of the exemptions created by the bill, and if it did not, to furnish him or her with the required information. People who request information for commercial purposes may be obliged to pay a fee if it is. Further access charges will be charged for all requests, covering the basic administrative costs. Again, access fees are higher for business purposes. A response to a request may take from 7 days in the case of an urgent request to 30 days.
If a request for information is granted, the person making the request must then pay an access fee, which varies depending on the type of information sought. If the information is of a personal nature, the person need pay only reproduction and postage fees. If it is for the purposes of newsgathering for the media, educational or scientific research or legal proceedings, he/she should pay for reproduction, search and preparation for any time in excess of two hours. If one's motives are commercial, the access fee is higher.
Several grounds on which access to information may be refused by an information officer are set out in the bill. A request for information may be refused if the disclosure of information would constitute an invasion of the privacy of an identifiable individual other than the requester. An interesting exception is the one which states that the information officer may refuse a request for access to a record about the person's physical or mental health, or well-being, if the disclosure of the record is likely to cause serious harm to his or her physical or mental health, or well-being. The information officer must have consulted with a health practitioner before making this decision, and the practitioner must be of the opinion that serious harm is likely to result.
There are a number of other exceptions in the bill, including those relating to third party commercial information, records supplied in confidence, law enforcement and legal proceedings, defence and security, international relations and operations of governmental bodies. The defence and security exemption states that a request for information may be refused if, inter alia, disclosure of such information would be likely to substantially harm the national defence or security of the Republic.
The bill also provides for the protection of "whistleblowers", a person who in good faith, reasonably believes that he or she is disclosing evidence of a contravention of the law, corruption or dishonesty or serious maladministration in government. Such evidence may have been disclosed to the media, as long as the person believes that is in the public interest or will ensure the safety of an individual. The individual concerned would bear the burden of proof. The bill offers protection for whistleblowers by prohibiting the dismissal, suspension, demotion, harrassment, intimidation or unfavourable change of conditions of employment of such a person.