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

apply to information that contains the results of product or environmental testing, and which discloses a
serious public safety or environmental risk
Another unusual exception in the South African Law applies to research, either by a third party or the public
body, the disclosure of which would be likely to expose the third party or public body, or the research or
the subject matter, to “serious disadvantage” (section 43). This exception would normally be considered to
fall largely within the scope of the confi dentiality exception and the need for it to be elaborated separately
is not clear.
The South African Law, like most right to information laws, includes an exception designed to preserve the
effectiveness of internal decision-making processes. Section 44 exempts records which contain an opinion,
advice, recommendation, or account of a consultation or discussion for the purpose of assisting to formulate
a policy. This is another exception which is not subject to a harm test and, as a result, it is potentially very
broad, although it is still subject to the public interest override set out in section 46 (see above). Section 44
also exempts information the disclosure of which could reasonably be expected to frustrate the deliberative
process by inhibiting the candid exchange of views and opinions within government, or the success of a
policy by premature disclosure. This part of the exception does not apply to records which are more than 20
years old. Finally, section 44 exempts information the disclosure of which could reasonably be expected to
jeopardise testing, evaluative material supplied with a presumption of confi dence and preliminary drafts.
The South African regime of exceptions is generally a good one, in the sense that it is fairly limited. The
harm and public interest tests are not as strong as they might be, and there are a couple of apparently
unnecessary exceptions. On the other hand, the exceptions are drafted narrowly in a clear attempt to
ensure that only legitimately confi dential information is in fact kept secret.
Appeals
The South African RTI Law provides for two levels of appeal, internally within the public body and, after
that avenue has been exhausted, to the courts. There is no provision for an appeal to an independent
administrative body, a serious shortcoming since court appeals are expensive and time consuming.
Either the applicant or a third party may lodge an internal appeal regarding a range of matters, including
access to information, fees, extension of time limits or form of access. The appeal must be lodged in the
prescribed form, within 60 days (or within 30 days if third party notice is required) and be accompanied by
any applicable fees. Once again, detailed provision is made for third party intervention (sections 74-76). An
internal appeal must effectively be decided within thirty days and relevant written notice must be provided
to both the appellant and any third parties of the decision, as well as their right to appeal to the courts
(section 77).
An appeal to the courts must, like internal appeals, be lodged within 60 days (or within 30 days if third
party notice is required) of receiving the decision in an internal appeal and may only be brought after the
internal appeals process has been exhausted. The grounds include those available for an internal appeal,
as well as any complaint relating to a refusal of a public body to entertain a late internal appeal. The Law
requires public bodies to provide the court with any record the latter might request, but enjoins the court
from disclosing documents which are exempt (sections 78-80).
Sanctions and Protections
The South African Law contains both sanctions and protections. It is a criminal offence to destroy, damage,
alter, conceal or falsify a record with intent to deny a right of access, punishable by a fi ne or up to 2 years’
imprisonment (section 90). Regulations issued by the Minister of Justice in October 2006 made it an offence
for an information offi cer to fail to make the manual required by section 14 of the Law available, to charge
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