MOGOENG CJ
[22]
“Any information” includes information about the private funding of political
parties or independent candidates.
[23]
And when access is sought to information in the possession of the State, then it
must be readily availed. A challenge is, generally speaking, likely to arise when
information is “held by another person”. There, information is accessible only when
“required”. And “required” implies the need to demonstrate that there is a legitimate
reason to grant access to that information. That ostensibly serves the purpose of
ruling out unnecessary or spurious requests. For, some information might indeed be
such as to render it necessary for a requester to explain why it is really said to be
required. That is an internal qualifier. Information would thus be accessible only if
the requester is able to demonstrate that it is reasonably needed or required “for the
exercise or protection of any rights”. To meet this requirement, it would be necessary
to disclose the right(s) that the requester seeks to exercise or protect. Only when so
satisfied would the custodian of that information have to give it to the requester.
[24]
What then is the reasonable or best form in which certain information must be
held? Should it be discretionary or obligatory that all or some information be held?
How best should information be “held” to facilitate disclosure when required? For
example, funding is generally given to a political party for the benefit of the collective
membership not an individual. Such information must be held or recorded. Similarly,
the use of funding for independent candidates would ordinarily have to be accounted
for. To do so requires record-keeping and the preservation of that record. But that
still begs the question which Parliament might wish to reflect on. And that is a
possible need for a rights-sensitive approach to holding and disclosing information.
Who should hold and disclose which information? Must it necessarily or ideally be
held by the one who first received it and about whom enlightenment might be
(b)
in the possession or under the control of that public or private body, respectively; and
(c)
whether or not it was created by that public or private body, respectively.”
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