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

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The main exceptions are set out in Chapter 4. The South African Law is somewhat unique in that it is both
an access law and a secrecy law. This is achieved by providing that for some exceptions, the public body
must refuse access, whereas for others the more usual language of may refuse access is used. The Law
sets out very detailed and narrow exceptions, in many cases carving out exceptions to exceptions to further
limit the scope of non-disclosure.
Section 34 sets out an exception where granting access to a record would involve the “unreasonable
disclosure of personal information about a third party”. However, this exception does not apply in a number
of circumstances, including where the individual has consented, the individual was informed upon providing
the information that it belonged to a class of information that might be disclosed or the information is
already publicly available. Importantly, the exception also does not apply to information about a public
offi cial in his or her offi cial capacity.
An unusual exception relates to information obtained by the South African Revenue Service for the purposes
of enforcing tax collection legislation (section 35). This exception is not subject to any harm test.
Section 36 protects commercial information including trade secrets, information the disclosure of which
would be likely to harm the commercial interests of the third party who provided it and information
provided in confi dence, the disclosure of which could “reasonably be expected” to put the third party at
a disadvantage. Section 37 further exempts information where disclosure would constitute an actionable
breach of confi dence, as well as information supplied in confi dence where disclosure could reasonably
be expected to prejudice the future supply of such information, and it is in the public interest that such
information continue to be supplied.
The section 36 and 37 exceptions do not apply where the third party consents to disclosure or the
information is already publicly available. Importantly, the section 36 exception also does not apply where
the information contains the results of product or environmental testing which discloses a serious public
safety or environmental risk.
Information the disclosure of which could reasonably be expected to endanger life or physical safety, the
security of a building, system, other property or means of transport, or systems for protecting individuals,
property or systems is also the subject of an exception (section 38).
Section 39 provides in some detail for an exception related to law enforcement and legal proceedings,
including where disclosure could reasonably be expected to undermine law enforcement techniques, or
the prosecution, investigation or prevention of crime. This does not, however, apply to information about
general conditions of detention of persons in custody. This is welcome but it is not clear why it was deemed
to be necessary, since this information should not affect law enforcement in the fi rst place. Information
covered by legal privilege is also exempt, unless the benefi ciary of the privilege has waived it (section 40).
Section 41 deals with security and international relations, exempting information the disclosure of
which “could reasonably be expected to cause prejudice to” defence, security or international relations.
It also exempts information which is required to be held in confi dence under international law or an
international agreement, or which would reveal information supplied in confi dence by or to another State
or intergovernmental organisation, although this does not apply to information which has been in existence
for more than 20 years. The latter part of this exception does not include a harm test, which is unfortunate.
The same section includes a detailed but non-exclusive list of what this exception covers, in particular
as regards military information, no doubt in an attempt to limit the scope of what is otherwise always a
highly problematical exception. At the same time, this list includes impossibly broad categories, such as
information on the vulnerability of weapons, which may well be the subject of not only legitimate but indeed
important public debate.
Section 42 exempts information the disclosure of which “would be likely to materially jeopardise the
economic interests or fi nancial welfare of the Republic or the ability of the government to manage the
economy”. Once again, an indicative list is provided, which is somewhat narrower that the list for military
information. The same section exempts State trade secrets or information the disclosure of which would
be likely to cause harm to the commercial interests of a public body, or which could reasonably be expected
to put the body at a disadvantage in negotiations or competition. This latter part of the exception does not