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

1) The information officer of a public body –

a) must refuse a request for access to a record of the body if access to that record is prohibited in terms of section 60(14) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977); or

b) may refuse a request for access to a record of the body if –

i) the record contains methods, techniques, procedures or guidelines for –

aa) the prevention, detection, curtailment or investigation of a contravention or possible contravention of the law; or

bb) the prosecution of alleged offenders,

and the disclosure of those methods, techniques, procedures or guidelines could reasonably be expected to prejudice the effectiveness of those methods, techniques, procedures or guidelines or lead to the circumvention of the law or facilitate the commission of an offence;

ii) the prosecution of an alleged offender is being prepared or about to commence or pending and the disclosure of the record could reasonably be expected –

aa) to impede that prosecution; or

bb) to result in a miscarriage of justice in that prosecution; or

iii) the disclosure of the record could reasonably be expected –

aa) to prejudice the investigation of a contravention or possible contravention of the law which is about to commence or is in progress or, if it has been suspended or terminated, is likely to be resumed;

bb) to reveal, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law;

cc) to 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;

dd) to facilitate the commission of a contravention of the law, including, but not limited to, subject to subsection (2), escape from lawful detention; or

ee) to prejudice or impair the fairness of a trial or the impartiality of an adjudication.

2) A record may not be refused in terms of subsection (1)(b)(iii)(dd) insofar as it consists of information about the general conditions of detention of persons in custody.

3)

a) If a request for access to a record of a public body must or may be refused in terms of subsection (1)(a) or (b), or could, if it existed, be so refused, and the disclosure of the existence or non-existence of the record would be likely to cause the harm contemplated in subsection (1)(a) or (b), the information officer concerned may refuse to confirm or deny the existence or non-existence of the record.

b) If the information officer so refuses to confirm or deny the existence or non-existence of the record, the notice referred to in section 25(3) must –

i) state that fact;

ii) identify the provision of subsection (1)(a) or (b) in terms of which access would have been refused if the record had existed;

iii) state adequate reasons for the refusal, as required by section 25(3), in so far as they can be given without causing the harm contemplated in subsection (1)(a) or (b); and

iv) state that the requester concerned may lodge an internal appeal or an application with a court, as the case may be, against the refusal as required by section 25(3).

[Full name of section 39: Mandatory protection of police dockets in bail proceedings, and protection of law enforcement and legal proceedings]