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Grounds for refusal

VIEWS: 21 PAGES: 19

									                                                                                           1

GROUNDS OF REFUSAL: CHECKLIST TO DETERMINE WHETHER ONE OR
MORE GROUND FOR REFUSING ACCESS TO INFORMATION APPLIES TO
A RECORD


Public bodies (Chapter 4 of Part 2 of the Act)

Section 34: Mandatory protection of privacy of a third party who is a natural
person

Step 1 :         Determine whether the record involves a third party
        (a)      Is it about a person other than the requester?
        (b)      Is it about a body, which is not a public body?
If " yes " to either (a) or (b) than section 34 might apply.

Step 2 :       Determine what type of information it is
      (a)      Was the individual informed before the information was given that
               the type of information would/can be made available by/on behalf of
               the public body?
        (b)    Is it information that is already publicly available?
If "yes" to any of the above, access must be granted - section 34 (2)(b) and (c).

Step 3 :         Determine the content of a record
      (a)        (i)     Is the information about an official - current/previous?
                 (ii)    Does it relate to the position or functions of the official?
                         For example: is it about the fact that the individual is/was an
                         official?
                         Is it about the official's
                         - title?
                         - work address?
                         - work telephone number?
                         - similar particulars?
                         Is it about the official's classification?
                         - salary scale?
                         - remuneration?
                         - responsibilities of position?
                         - services performed by the person?
                         Is it about the name of the person on a record prepared in
                         the course of employment?
If "yes" to (i) and (ii) (any of the examples or other similar information), then
access may not be refused - section 34 (2) (f).
        (b)      (i)     is the information about a deceased individual?
                 (ii)    Is the requester the individual's next of kin?
                         An individual's "next of kin" means:
                         (1)     an individual to whom the individual was married
                                 immediately before the individual's death;
                                                                                       2


                      (2)    an individual with whom the individual lived as if they
                             were married immediately before the individual's
                             death;
                      (3)    a parent, child, brother or sister of the person; or
                      (4)    if there are no next of kin as referred to in paragraph
                             (1), (2) and (3), or the requester took all reasonable
                             steps to trace the so-called next of kin, but to no avail,
                             an individual that is in the second grade of
                             relatedness or blood related family; and
                      (5)    if the requester is not a next of kin, has the requester
                             the written permission of the next of kin?
If "yes" access to information may not be refused - section 34 (2)(c).

       (c)     (i)       is the request about an individual's physical/mental
                         health or well being?
                 (ii)    Is the individual under the care of the requester?
                 (iii)   Is the individual under the age of 18?
                         (1)       or - is the individual not able to understand
                                   the nature of the request?
                         (2)       and would accessible in the best interest of the
                                   individual?
If "yes" to (i), (ii) and (iii), access may not be refused - section 34 (2) (d).

       (d)     (i)       has the individual agreed to grant access to the information?
               (ii)      Is the permission in terms of section 48 granted as a third
                         party that has been notified?
                 (iii)   If not in terms of section 48, has permission been granted to
                         the requester in writing?
If "yes" to (i), (ii) and (iii), access may not be refused - section 34 (2) (a).

Step 4 :       If none of the above is applicable.
      (a)      Would a reasonable person regard the notification of the
               information as an unreasonable notification of personal information
               about the individual?
       (b)     Is the information personal information about a third party?
               Personal information includes the following information (and similar
               information) about an identifiable individual, but does not include
               information about an individual that is deceased more than 20
               years, including but not limited to -
               (i)     information about the race, sex, pregnancy, marital status,
                       national, ethnical or social origin, colour, sexual orientation,
                       age, physical or mental health, well-being, disability, religion,
                       conscience, belief, culture, language or birth of the
                       individual;
                                                                                    3


              (ii)     information on the education or the medical, criminal or
                       employment history of the individual or information regarding
                       financial transactions in which the individual is involved;
                (iii)  any identifiable number, symbol or other particulars that can
                       be attributed to the individual;
                (iv)   the address, fingerprints or blood type of the individual;
                (v)    the personal opinions, views or preferences of the individual
                       or about a proposal for a grant, an award or a prize to be
                       made to another individual;
                (vi)   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;
                (vii) the views or opinions of another individual about the
                       individual;
                (viii) 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
                (ix)   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
                       he individual.
If "yes" to (a) and (b), notify the third party of the request - section 34(1)
(notification - section 47)

Step 5 : Consideration of representations
      (a)   On receipt of representations by a third party:
            (i)    If a third party consents to access being given, then access
                   must be granted - section 34 (2) (a)
            (ii)   If a third party make representations for the refusal of access
                   - consider representation:
                   (1)      Does it contain a justifiable/rational reason for
                            refusal?
                            (a)    If yes, consider refusing access, taking the
                                   content of the record into account .
                            (b)    If no, consider granting access, taking the
                                   content of the record into account .
                   (2)      If no answer were received at all, would it be
                            reasonable to grant/refuse access to the record,
                            taking the content of the record into account? Would a
                            reasonable person grant or refuse access?
                   (3)      Determine whether there are any other ground in
                            terms of which access must be granted or refused
                            and determine specifically section 46 applies before
                                                                                         4


                             any access is granted or refused - if section 46
                             applies, than access must be granted.


Section 35: Mandatory protection of certain records of the South African
Revenue Services (SARS)

Step 1 :        Determine who is the requester.
        (a)     Is it a personal requester?
        (b)     Is the request made on behalf of another person by the requester?
        (c)     In which capacity is the request made?
If "yes" to (a) and (b), access must be granted - section 35 (2). If no, to all of the
above, follow Step 2.

Step 2 : Determine the content of the record.
        (a)     Does the record contain information that must be obtained or kept
                by the SARS?
        (b)     Is the information obtained or is the information being kept with the
                purpose of applying legislation relating to the recovery of income in
                terms of section 1 of the Income Services Act of S.A?
If "yes" to the above, inform the third party (See section 47)
Access must be refused unless the third party grants permission for the
furnishing of information - section 35 (1).
If "no" to the above, access must be granted unless there is another ground for
refusal.

Section 36: Mandatory protection of commercial information of the third
party.

Step 1 : Determine if the record involves a third party.
      (a)    Is it about a person besides the requester?
      (b)    Is it about a body that is not a public body?

If "yes", to (a) or (b), section 36 may be applicable.

Step 2 : Determine what type of information it is.
        (a)    Is it information that is already publicly available?
               (i)      Did the third party consent to giving access?
               (ii)     Did the third party consent in terms of section 48?
               (iii)    Or, if not in terms of section 48, is written consent given to
                        the requester?
If "yes", to any of the above, access must be granted - section 36 (c).

      (b)   (i)     Does the record contain the results of any product or
environmental testing or other investigation
                                                                                              5


               (iii)   Is this information supplied by or carried out by or on behalf
                       of a third party?
               (iv)    Does the publication involve a risk for public safety or the
                       environment?
                       To determine a public safety or environmental risk:
                       (a)      Does it involve a risk or harm to the environment or
                                the public (including individuals in their workplace)
                       (b)      Is the risk or harm associated with a product or
                                service that is available for the public?
                       (c)      Is this risk or harm associated with a substance that
                                can be released in the environment or workplace?
                       (d)      Is this risk associated with a substance that is meant
                                for human or animal use?
                       (e)      Is this risk or harm associated with a vehicle?
                       (f)      Is this risk or harm associated with an installation
                                process or substance that is used in that installations
                                process?
                       (g)      Is this risk or harm associated with a manufacturing
                                process or substance, which is used in that,
                                manufacturing process?
                                Are the results the results of a final or preliminary
                                testing or investigation?

If "yes" to (i), (ii) and (iii) and final tests, access may not be refused - section
36(20)(c) and section 36(3).

If "yes" to (i), (ii) and (iii) and a preliminary test, use (e) or (f) to decide whether it
is reasonable to either grant or refuse access - section 36(3).
                                  Was the investigation conducted for the purpose of
                                  developing methods of testing or other investigation?
                                  If preliminary testing or investigation, or to develop
                                  methods, will it be reasonable to grant access?

Step 3: Determine the content of the record

If any of the following, then the third party must be notified (see section 47) and
access must be refused, unless the third part consented (see Step 2(a) or unless
section 46 applies - section 36 (1)
        (a)    Does the record contain trade secrets of a third party?
        (b)    (i)    Does the record contain financial, commercial, scientific or
               technical information of the third party?
               (II)   Would the disclosure be likely to cause harm to the
                      commercial or financial interest of the third party?
        (c)    (i)    is the information supplied in confidence by the third party?
               (v)    Is it reasonable to expect that disclosure would put the third
                      party at a disadvantage in contractual or other negotiations?
                                                                                      6


               (vi)   Or, is it reasonable to expect that disclosure will prejudice
                      the third party in commercial competition?


Section 37: Mandatory protection of certain confidential information of a
third party

Step 1         Determine whether the record involves a third party
         (a)   Is it about a person other than the requester?
         (b)   Is it about a body, which is not a public body?

If "yes", then section 37 might apply.

Step 2         Determine the type of information
         (a)   Is it information that is already publicly available?
         (b)   (i)      Did the third party consent to giving access?
               (vii) Did the third party consenting terms of section 48?
               (viii) Or, if not in terms of section 48, is written consent granted to
                        the requester?

If "yes", to any of the above, access must be granted - section 37(2)

Step 3         Determine the content of the record
         (a)   (i)     Does the body have a duty of confidence towards the third
               party in terms of an agreement?
               (iv)    Would disclosure constitute an action for breach of duty of
                       confidence?

If "yes", to the above: disclosure to the third party (see section 47) and access
must be refused, unless consent for publication was granted (see steps 2(b) or
otherwise section 46 is applicable - section 37(1)(a))

         (b)   (i)    is the information supplied in confidence by a third party?
               (ii)   Is it reasonable to expect that publication would prejudice
                      the future supply of similar information or information from
                      the same source?
               (v)    Is it in the public interest that similar information or
                      information from the same source, should continue to be
                      supplied?

If "yes", to all of the above: disclosure to the third party (see section 47) and
access must be refused, unless the third party grants consent (see steps 2(b) or
otherwise section 46 is applicable - section 37(1)(b))

Section 38: Mandatory protection of safety of an individual's property
                                                                                     7

Step 1         Determine the content of the record

         (a)   Is it reasonable to expect that disclosure would endanger the life or
               physical safety of an individual?

If "yes", access must be refused, unless section 46 is applicable - section 38(a).

         (b)   Would publication be likely to prejudice or impair the following:
               (i)   the security of a building, structure or system (e.g. computer
                     or communication system)?
               (ii)  a means of transport?
               (iii) any other property?

If "yes" to any of the above, access can be refused, unless section 46 is
applicable - section 38(b)(i).

If "no", access can be granted, unless another ground for refusal is applicable.

         (c)   Would publication be likely to prejudice or impair methods,
               systems, plans/procedures for the protection of:
               (i)   an individual in accordance with a witness protection
                     scheme?
               (ii)  The safety of the public or part of the public?
               (iii) The safety of property?

If "yes", to the above, access can be refused, unless section 46 is applicable -
section 38(b)(ii). If "no", access can be granted unless another ground for refusal
is applicable.

Section 39: Mandatory protection of police dockets in bail proceedings, law
enforcement and legal proceedings

Step 1 :      Determine the content of the record
      (a)     Is access prohibited in terms of section 60(14) of the Criminal
              Procedure Act, 1977?
If "yes", access must be refused, unless section 46 applies - section 39(1)(a).

         (b)          (i)    Does the record contains methods/techniques,
                      procedures/guidelines for the prevention/detection/
                      curtailment/investigation of a contravention/possible
                      contravention of the law?
                      (ii)   (a)    is it reasonable to suspect that disclosure
                      would prejudice the effectiveness of these
                      methods/techniques/ procedures/guidelines
                                                                                        8



                     (b)    Or is it reasonable to suspect that disclosure would
                            lead to the circumvention of the law or facilitate the
                            commission of an offence?

If "yes" to both (b)(i) and either (b)(ii)(a) or (b) then access may be refused,
unless section 46 applies - section 39(1)(b)
If "no", to both or one of the above (b)(i) and (b)(ii)(a) or (b), then access may be
granted, unless another ground for refusal applies - section 39(1)(b).

       (c)    (i)    Does the record contain methods/techniques/procedures/
              guidelines for the prosecution of alleged offenders?
              (ii)   (a)    is it reasonable to suspect that disclosure would
                     prejudice the effectiveness of these methods/techniques/
                     procedures/ guidelines?
                     (b)    Or, is it reasonable to suspect that disclosure would
                     lead to the circumvention of the law or facilitate the
                     commission of an offence?

If "yes" to both (c)(i) and (c)(ii)(a) or (b) then access may be refused, unless
section 46 applies - section 39(1)(b)
If "no", to both or one of the above (c)(i) and (c)(ii)(a) or (b), then access may be
granted, unless another ground for refusal applies - section 39(1)(b).

       (d)    (i)   is the prosecution of an alleged offender being
              prepared/about to commence/pending?
              (ii)  (a)     is it reasonable to expect that disclosure could
                    impede prosecution? OR
                    (b)     Is it reasonable to expect that disclosure will result in
                            a miscarriage of justice in that prosecution? OR
                    (c)     Is it reasonable to expect that disclosure could
                            prejudice the investigation of a contravention/possible
                            contravention of the law that is about to commence/in
                            progress/if suspended or terminated, likely to
                            resume?
                    (d)     Is it reasonable to expect that disclosure could reveal
                            or enable a person to ascertain the identity of a
                            confidential source of information in relation to the
                            enforcement or administration of law (for example an
                            informer)?
                    (e)     Will it be reasonable to expect that disclosure could
                            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?
                                                                                     9


                      (f)    Will it be reasonable to expect that disclosure could
                             facilitate the commission of or contravention of the
                             law (for example, escape from lawful detention)?

                      (g)    Will it be reasonable to expect that disclosure could
                             prejudice or impair the fairness of a trail or the
                             impartiality of an adjudication?

If "yes" to both (d)(i) and any of (d)(ii), access may be refused, unless section 46
applies - section 39(1)(b)(iii)
If "no", to (d)(i) or the entire (d)(ii), then access may be granted, unless another
ground for refusal applies - section 39(1)(b)(iii).

         (d)   Does the record contain information regarding the general
               conditions of detention of persons in custody?

If "yes", then access may not be refused, unless another ground for refusal
applies - section 39(2).

Step 2         Determine whether the existence or non-existence of a record
               must be denied

         (a)   Must or may access to the record be refused in terms of section
               39(i)(a) or (b)?
         (b)   Will the disclosure of the existence or non-existence of the record
               be likely to cause the harm contemplated in Step 1?

If "yes" on both questions, the Deputy Information Officer may refuse to confirm
or deny the existence or non-existence of the record - section 39(3).
Make sure that the further requirements of the section (25)(3) notice are met -
section 39(3)(b).

Section 40: Mandatory protection of records privileged production in legal
proceedings.

Step 1         Determine the contents of the record.
         (a)   Is it a privileged record in legal proceedings?
         (b)   Is it an attorney/client privilege?
         (c)   Did the client waive the privilege?

If "yes", to (a) and (b) and no to (c) then access must be refused, unless section
46 applies - section 40
                                                                                   10



Section 41: Defence Security and international relations of the RSA.

Step 1         Determine the contents of the record.

         (a)   Does the records relates to military tactics or strategy of military
               exercises or operations undertaken in preparation of hostilities or in
               connection with defection, prevention, suppression or curtailment of
               subversive or hostile activities?
         (b)    Does the record relate to the quantity, characteristics, capabilities,
               vulnerabilities or deployment of:
                      (i)     weapons or any other equipment used for the
                              detection, prevention, suppression or curtailment of
                              subversive or hostile activities?
                      (ii)    anything being designed, developed, produced or
                              considered for use as weapons or such equipment?

         (c)   Does the record relate to the quantity, characteristics, capabilities,
               vulnerabilities, performance, potential, deployment or functions of:
               (i)   any military force, unit or personnel?
               (ii)  any body or person responsible for the detection, prevention,
                     suppression or curtailment of subversive or hostile activities?
                     To determine whether it is subversive or hostile activities:
                     • Does the information relates to aggression against the
                          RSA
                     • Does the information relates to sabotage or terrorism
                          aimed at the people of the RSA, whether inside or
                          outside of the RSA?
                     • Does the information relates to sabotage or terrorism
                          aimed at a strategic asset of the inside or outside of the
                          RSA
                     • Does the information relates to an activity aimed at
                          changing the constitutional order of the RSA by the use
                          of force or violence?

         (d)   Is the record held for the purpose of intelligence relating to:
               (i)     the defence of the republic?
               (ii)    the detection, prevention, suppression or curtailment of
                       subversive or hostile activities? OR
               (iii)   another state or an international organisation used by or on
                       behalf of the Republic in the process of deliberating and
                       consultation in the conduct of international affairs?

         (e)   Does the record contain information on methods of, and scientific or
               technical equipment for collecting assessing or handling information
               referred to in paragraph (d)?
                                                                                       11


         (f)   Does the record contain information on the identity of a confidential
               source and any other source of information referred to in paragraph
               (d)?
        (g)    Does the record contain information 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?
        (h)    Does the record constitutes lawful diplomatic correspondence
               exchange with another state or an international organisation or
               official correspondence exchange with diplomatic missions or
               consular posts of the Republic?
If "yes", to any of the above, if the record relates to any similar information, then
section 41 applies.

Step 2         Determine the type of record

         (a)   Is it reasonable to except that the disclosure will prejudice the
               defence of the RSA?
         (b)   Is it reasonable to except that the disclosure will prejudice the
               security of the RSA?

If "yes", access may be refused, unless section 46 applies - section 41(1)(a)

         (c)   (i)     is it reasonable to expect that the disclosure will prejudice
                       the international relations of the RSA?
               (ii)    How old is the record?

If "yes", to (c)(i) and if the record is less than 20 years, than access may be
refused, unless section 46 applies - section 41(1)(a)(iii).
If the record is older than 20 years, access may not be refused - section 41(3)

         (d)   (i)     Will the record reveal information that is supplied in
                       confidence by or on behalf of another state?
               (ii)    (a)    Will the record reveal information that is supplied in
                              confidence by an international organisation?
                       (b)    Is the international organisation an organisation of
                              states?
                       (c)    Or is it an organisation that has been established by
                              the governance of states?

               (iii)   (a)    Will the record reveal information that has been
                               supplied by or on behalf of the Republic to another
                              state or an international organisation (see (ii)(b) and
                              (d) or (c))?
                       (b)    Has it been supplied by or on behalf of the Republic in
                                                                                 12


                             terms of an international agreement (see section 231
                             of the Constitution)with that state or international
                             organisation which requires the information to be held
                             in confidence.
               (iv)   Will the record reveal information that must be held in
                      confidence in terms of an international agreement or
                      customary law (see section 231 or 232 of the Constitution)?

If "yes", to any of the questions under (c), access may be refused unless section
46 applies - section 41(I)(b).

STEP 3         Determine if the existence or non-existence of the record can
               be denied.

(a)            Can access to the record be refused in terms of section 41(i)(a) or
               (b)?
(b)            Would the disclosure of the existence or non-existence of the
               record be likely to cause the harm contemplated in step 1?

If "yes", to both questions, the Deputy Information Officer may refuse to confirm
or deny the existence or non-existence of the record - section 39(3)
Make sure that the further requirements for the section 25(30 notice are adhered
to - section 39(3)(b)

Section 42: Economic interest and financial welfare of the RSA and
commercial activities of public bodies.

Step 1         Determine the contents of the record

         (a)   Does the record contains information about a contemplated change
               in or maintenance of a policy substantially affecting the:
               (i)    currency?
               (ii)   coinage?
               (iv)   legal tender?
               (v)    exchange rate?
               (vi)   foreign investment?
         (b)   Does the record contains information regarding a contemplated
               change in or a decision not to change?
               (i)    credit or interest rates?
               (ii)   customs and excise duties?
               (iv)   taxes?
               (v)    another source of revenue?
               (vi)   regulation/supervision of financial institutions?
               (vii) government borrowing?
               (viii) the regulation of prices of goods or services?
               (ix)   the regulation of rents?
                                                                                     13


              (x)     the regulations of wages?
              (xi)    the regulations of wages, salaries or other incomes?
        (c)   Does the record contains information regarding a contemplated
              sale or acquisition of immovable or movable property?
        (d)   (i)     Does the record contain information regarding a
              contemplated international trade agreement?
              (vi)    Does the record contains information regarding an
                      agreement or contemplated agreement to transfer - any
                      interest in/right to shares in a public body to any person
                      which is not a public body as mentioned in paragraph (i) or
                      (b)(i) of the definition of "public body" in section 1 of the act.
              (vii) Is this public body a public body who is not in the national,
                      provincial or local sphere of government?
              (viii) Is this public body a public body who is not a functionary or
                      institution in terms of the Constitution or a provincial
                      constitution?
        (e)   Does the record contain trade secrets of the State or a public body?
        (f)   Does the record contain financial/commercial/scientific/technical
              information?
        (g)   Is the required record a computer programme owned by the State
              or a public body?
If the answer is "yes" to any of the above, then section 42 might apply.

Step 2         Determine the type of record

         (a)   Is the record already publicly available?
         (b)   (i)     Is the information in the record about or owned by a public
                        body other than the public body to which the request is
                       made?
               (ii)    Has the other public body consented in writing to its
                       disclosure to the requester?

If the answer is "yes" to (a) or (b)(i) and (ii), access may not be refused.

         (c)   (i)   Does the records consist of the results of any product or
                     environmental testing or any other investigation?
               (iii) Is the information supplied by carried out by or on behalf of a
                     public body?
               (iii) Would the disclosure thereof reveal a serious public safety
                     or environmental risk?
               How to determine a public safety or environmental risk:
               (i)   Is if a risk for the environment or the public (including
                     individuals in their workplace) or can it harm the environment
                     or public?
               (ii)  Does the risk or harm relate to a product or service that is
                     available to the public?
                                                                                      14


              (iii)       Is this risk or harm associated with a substance that can be
                          released in the environment or workplace?
                 (iv)     Is this risk or harm associated with a substance that is meant
                          for human or animal use?
                 (v)      Is this risk or harm associated with a vehicle?
                 (vi)     Is this risk or harm associated with an installation process or
                          substance that is used in that installation process?
                 (vii) Is this risk or harm associated with a manufacturing process
                          or substance that is used in that manufacturing process?
                 (viii) Are the results the results of final or preliminary testing or
                          investigation?
If "yes", to (i), (ii) and (iii) and final tests, access may not be refused - section
36(2)(c) and section 36(3).
If "yes", to (i), (ii) and (iii) and preliminary tests, used (v) and (vi) to decide
whether it is reasonable to grant or refuse access - section 36(3).
                 (ix)     Was the investigation conducted for the purpose of
                          developing methods of testing or other investigation?
                 (x)      If preliminary testing or investigation, or to develop methods,
                          will it be reasonable to grant access?
Please note, that if a request is granted and testing or other investigation is
carried out by or on behalf of the public body, the requester must be provided
with an explanation of the methods that was used in conducting the testing or
other investigation
        (c)      Is it likely that disclosure of the record would materially jeopardise
                 the economic interest or financial welfare of the RSA?
        If "yes" access may be refused - section 42(1)
        (d)      Is it likely that disclosure would materially jeopardise the ability of
                 the government to manage the economy of the RSA effectively in
                 the best interest of the RSA?
        If "yes" access may be refused - section 42(1).
        (e)      Does the record contain trade secrets of the State or a public body?
        (f)      Does the record contain financial/commercial/scientific/technical
                 information?
        (g)      Is the required record a computer programme owned by the State
                 or a public body?
        If the answer is "yes", to (f), (g) and (h) access may be refused - section
        42(3).
        (I)      Does the record contain information, which, if disclose, could
                 reasonably be expected to:
                 (i)      put a public body at a disadvantage in contractual or other
                          negotiations?
                 (ii)     prejudice a public body in commercial competition?
        If the answer is "yes", to either (I)(i) and (ii) access may be refused -
        section 42(3).
                                                                                     15

Section 43: Mandatory protection of research information of a third party,
and protection of research information of a public body.

Step 1         Determine the type of record

         (a)    Does the record contain information about research being or to be
                carried out?
        (b)     Is this research being done or to be carried out on behalf of a third
                party or by a third party?
If "yes", then the third party must be notified of the request, and given an
opportunity to make representations regarding the request (notification - section
47)
        (c)     Is this research being done or to be carried out on behalf of a public
                body or by a public body?
If "yes", to (a) and (b) or (c) section 43 might apply to the record.

Step 2         Determine the content of the record

         (a)  Will it be likely that that disclosure of the record will expose the
              following to serious disadvantage:
              (i)      the third party? OR
              (ii)     a person that is or will be carrying out the research on behalf
                       of the third party? OR
              (iii)    the subject matter of the research?
If the answer is "yes", to (a) or any of (i), (ii) or (ii), access to the record must be
refused - section 43(1) - unless 46 applies or the third party has consented that
access to the record must be granted.
        (b)   Will it be likely that disclosure of the record will expose the following
              to serious disadvantage -
              (i)      the public body? OR
              (ii)     a person that is or will be carrying out the research on behalf
                       of the third party? OR
              (iii)    the subject matter of the research?
If the answer is "yes", to (b) and any of (i), (ii) or (iii) access to the record may be
refused - section 43(2), unless section 46 applies.

Section 44: Operations of public bodies

Step 1         Determine the contents of the record

         (a)     Does the record contain a report about, or a statement of reasons
                 required to be given in accordance with section 5 of the Promotions
                 of Administrative Justice Act?
         If "yes", access to the record may not be refused - section 44(4).
         (b)     Does the record contain:
                 (i)    an opinion that was obtained or prepared?
                                                                             16


        (ii)     advice that was obtained or prepared?
        (iii)    a report that was obtained or prepared?
        (iv)     a recommendation that was obtained or prepared?
If "yes", to any of the above access maybe refused - section 44(1)(a)(I),
unless section 46 applies, or if the record is older than 20 years (section
44(3), access may not be refused.
(c)     (i)      Does the record contain a report about a consultation,
                  discussion or deliberation that has occurred (including
                 minutes of a meeting)?
        (ii)     Is this report for the purpose of assisting to formulate a
                 policy?
        (iii)    Is this report for the purpose of taking a decision in the
                 execution of a power or performance of a duty instructed or
                 imposed by law?
If "yes", to (i) and (ii) or (iii) access may be refused - section 44(1)(a)(ii),
unless section 46 applies. If the record is older than 20 years (section
44(3)), access may not be refused.
(d)     (i)      Is it reasonable to expect that the disclosure of the record
                 could frustrate the deliberative process in a public body? OR
        (ii)     Is it reasonable to expect that the disclosure of the record
                 could frustrate the deliberative process between public
                 bodies?
        (iii)    Will the disclosure inhibit the candid communication of an
                 opinion/advice/report/recommendation?
        (iv)     Will the disclosure prevent a candid consultation/ discussion/
                 deliberation from happening?
If "yes", to (i) or (ii) and (iii) or (iv), access may be refused - section
44(1)(b)(i), unless section 46 applies, or if the record is older than 20
years (section 44(3)), access may not be refused.
(e)     (i)      Would the disclosure of the record means a premature
                  disclosure of a policy/contemplated policy?
        (ii)     Is it reasonable to expect that such disclosure will jeopardise
                 the success of that policy?
If "yes", to both (i) and (ii) access may be refused - section 44(1)(b)(ii),
unless section 46 applies, or if the record is older than 20 years (section
44(3)), access may not be refused.
(f)     Is it reasonable to expect the disclosure of the record will
        jeopardise the effectiveness of a testing/auditing procedure or
        method used by a public body?
If "yes", access may be refused - section 44(2)(a), unless section 46
applies.
(g)     (i)      Does the record contain evaluative material?
        (ii)     Does the evaluative material consist of an evaluation or
                 opinion that has been prepared for the purpose to determine
                 the suitability, eligibility or qualifications of the person to
                 whom the evaluation or opinion relates:
                                                                                   17


                       (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 a scholarship, award, bursary,
                                 honour or similar benefit, or
                  (iii)   Would any scholarship, award, bursary, honour or similar
                          benefit have to be continued, modified, cancelled or
                          renewed.
                  (iv)    Would the disclosure of such evaluative material breach an
                          express or implied promise?
                  (v)     Was the express or implied promise made to the person who
                          supplied the materials? And
                  (vi)    Was this express and implied promise made to the effect
                          that the material and/or identity of the person who supplied
                          it, would be held in confidence?
         If "yes", to all the above, access may be refused - section 44(2)(b), unless
         section 46 applies.
         (h)      Does the record contain a preliminary/working/other draft of an
         official or public body?
         If "yes", then access may be refused - section 44(2)(c), unless section 46
         applies.

Section 45: Manifestly frivolous or vexatious requests, or substantial and
            unreasonable diversion of resources.

Step 1          Determine the type of request
        (a)     Is the request for access to the record(s) manifestly frivolous?
        (b)     Is the request for access to the record(s) manifestly vexatious?
If "yes" to either, access may be refused - section 45(a), unless section 46
applies.

Step 2           Determine the impact of the request
         Would the word involve in processing the request substantially and
         unreasonably divert the resources of the public body?
         If "yes", access may be refused - section 45(b), unless section 46 applies.

Section 46: Mandatory disclosure in public interest

Step 1          Determine whether access must or may be refused in terms of
                any other ground of refusal
         (a)    Must access be refused in terms of section 34(1) - protection of
                privacy of a third party who is a natural person?
         (b)    Must access be refused in terms of section 34(1) - protection of
                commercial information of a third party?
                                                                                  18


         (c)   Must access be refused in terms of section 31(1)(a) or (b) -
               protection of confidential information of a third party?
        (d)    Must or may access be refused in terms of section 38(a) or (b) -
               protection of safety of individuals, and protection of property?
        (e)    Must or may access be refused in terms of section 39(1)(a) or (b) -
               protection of police dockets in bail proceedings, and protection of
               law enforcement and legal proceedings?
        (f)    Must access be refused in terms of section 40 - protection of
               records privileged from production in legal proceedings?
        (g)    May access be refused in terms of section 41(1)(a) or (b) - defence,
               security and international relations of the RSA?
        (h)    May access be refused in terms of section 42(1) or (3) - economic
               interest and financial welfare of the RSA and commercial facilities
               of public bodies?
        (i)    Must or may access be refused in terms of section 43(1) or (2) -
               protection of research information of a third party or of a public
               body?
        (j)    May access be refused in terms of section 44(1) or (2) - activities of
               public bodies?
        (k)    May access be refused in terms of section 45 - manifestly frivolous
               or vexatious request, or substantially and unreasonable diversion of
               resources?
If "yes" to any of the above, section 46 might be applicable.

Step 2          Determine the content of the record
        (a)     Would the disclosure reveal evidence of a substantial contravention
                of the law?
        (b)     Would the disclosure reveal a failure to comply with the law?
        (c)     Does the public interest in the disclosure of the record clearly out
                weights the harm contemplated in the provision (ground of refusal)
                in question in terms of which access may or must be refused?
If "yes", to (a) or (b) and (c) access must be granted, even though access must
or may be refused in terms of another ground of refusal.
        (d)     Would the disclosure reveal evidence of an imminent and serious
                public safety risk?
        (e)     Would the disclosure reveal evidence of an imminent and serious
                environmental?
                To determine a public safety risk or environmental risk:
                (i)     Is there a risk to the environment or the public or may harm
                be done to the environment or public (including individuals in their
                workplace)
                (vii) Does this risk or harm relates to a product or service which
                        is available to the public?
                (viii) Does this risk or harm relates to a substance that could be
                        released in the environment or workplace?
                (ix)    Does this risk or harm relates to a means of transport?
                                                                          19


       (x)      Does this risk or harm relates to an installation process or
                substance which is used in that installation process?
        (xi)    Does this risk or harm relates to a manufacturing process or
                substance which issued for that manufacturing process?
                • Does the public interest in disclosure clearly outweighs
                    the harm contemplated in the provision (ground for
                    refusal) in question in terms of which access may or must
                    be refused?
If "yes", to (d) or (e), access must be granted, even though access may or
must be refused in terms of a ground of refusal.

								
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