Freedom of Information: A Comparative Legal Survey - Federation of ...

Duty to Publish
The South African RTI Law does not include a duty to publish as such, and this is a serious shortcoming.
It does, at least, require each public body to provide an annual report to the responsible minister, who
is the minister responsible for the administration of justice, detailing which categories of records are
automatically available in the absence of a request, including for inspection, for purchase or free of charge.
The minister, in turn, must publish this information in the Gazette (section 15). Private bodies may also
submit such a list to the minister, in which case he or she is required to publish the list in the Gazette
(section 52).
The South Africa Law also includes a unique provision which requires the government to ensure that the
name and contact details of every information offi cer of every public body is published in every general use
telephone book (section 16).
Exceptions
The South African RTI Law contains a very detailed, comprehensive and narrow regime of exceptions.
Signifi cantly, pursuant to section 5, the Law applies to the exclusion of any other legislation that prohibits
or restricts disclosure of information and which is materially inconsistent with the objects or a specifi c
provision of the Law. However, records requested for use in civil or criminal cases after they have been
commenced and for which access is provided in other legislation are excluded from the ambit of the Law
(section 7). This is presumably to preserve the system for accessing this information under the relevant
civil or criminal procedure rules.
Most exceptions in the Law contain a form of harm test, although a few do not. For the most part, the
standard is ‘could be reasonably expected’ to cause the harm in question, a relatively low standard,
depending on interpretation. For some exceptions, the standard is the relatively higher one of ‘would be
likely’. The Law does not provide for the issuing of certifi cates of confi dentiality.
All exceptions are subject to a form of public interest override. The override applies whenever the disclosure
of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law or an
imminent and serious risk to public safety or the environment, and where the public interest in disclosure
“clearly outweighs” the harm (section 46). This is in some ways a limited override, because of the limited
categories of public interest specifi ed, but it has the virtue of avoiding potentially messy debates about
what constitutes a public interest.
The Law includes a severability provision at section 28 which requires any part of a record which does not
contain exempt information, and which can reasonably be severed from the rest, to be disclosed. In this
case, different notice requirements apply to the different parts of the record, namely disclosure notice
rules for the part that is disclosed and refusal notice rules for the part that has been withheld.
The Law does not include a general provision on historical disclosure of records. Historical limits have,
however, been imposed in relation to some specifi c exceptions. For example, a 20-year time limit applies
to the exception in favour of international relations and the same applies to internal decision-making.
The Law provides for two general exceptions and a number of more specifi c ones. Where a record is to
be published within the next 90 days, access to that record may be deferred “for a reasonable period”,
provided that an applicant may make representations as to why he or she needs the record before that
time and access shall be provided where the applicant is otherwise likely to suffer substantial prejudice
(section 25). Second, requests which are “manifestly frivolous or vexatious” or the processing of which
would “substantially and unreasonably divert the resources of the public body” may be refused (section
45).
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