Ministry of State Security Briefing on responses to public hearings regarding Protection of Information Bill

Q: In response to Ms D Smuts (DA), at a meeting of the Ad Hoc Committee on the Protection of Information Bill, you said: “We want your real views; we don’t want foreign views through you.” How was the Bill going to deal with that and what did you mean?

Q: How was one supposed to challenge the classification of a document without citing it? If a document is classified, how does one challenge the classification if one has no access to it? How does a journalist know if a document is in the public interest and who decides that? On the point you made that the ANC will never legislate against the media, I put to you that the ANC is a group of people in a political organisation, which at this stage is a choice of the electorate to lead the country and not some sort of organic mechanism, which never makes any mistakes.

A: The Minister replied that when he was addressing Ms Smuts, it was in relation to the activities of hostile foreign spies. The government did not want the direction of political parties in South Africa to be manipulated by foreign spies. One could not talk about a document that was not known because it had been classified. The Ministry believed that as in many other democracies, South Africa should have secrets. Secrets should not be there to protect certain agendas but to protect the very democracy in which they exist. The Department of State Security had no problem with the use of a public defence override for purposes of accessing information. If a journalist happened to come across a classified document, the responsible thing to do would be to hand it to the police. The ANC government had strong resolve in protecting the constitutional rights that it fought hard for.

Q: Minister, when you speak about the provisions which criminalise heads of departments for wrongly classifying documents when they have ulterior motives, how are you going to detect or police this? What kinds of penalties were there for such individuals?

Q: The Film and Publications Bill came to Parliament and it had very strong restrictive measures against the Press-the exemption of pre-publication provision was put in that Bill. Now your Bill comes in and it is also restrictive against the press but you say you are going to protect the freedom of the press, how do these clauses find their way in the draft laws? The reason why South Africa was buying vaccines from other countries was because the main research facility was under-funded and allowed to run into the ground, how could this be industrial espionage?

A: The Minister replied that the heads of department had periodical reviews and there was also Ministerial supervision. Therefore the heads of departments were not given absolute power. The Department was of the view that the Ad Hoc Committee on the Protection of Information Bill should increase the sentences for officials who incorrectly classified documents. Other constitutional democracies were considered when the Bill was being drafted for example the United Kingdom, Canada and the United States of America. There were real threats and the government had to protect its people. The research laboratory concerned did have underfunding issues but the problem was not just limited to that. It was a known fact to government that some of the research from that facility had been stolen and removed from the countries borders.

Q: Minister, why was there no public defence override for the purposes of disclosure? 

Q: Should the government be trusted in that it will be able to detect overclassification and that it would be exposed and the perpetrators will be prosecuted? How will the public know about these prosecutions, will you expose them? Why did the Minister mention embassies as a threat during the presentation at the Committee meeting? 

A: The Minister replied that the necessary authorities could be engaged if the declassification of information was in the public interest or the courts could declare that there was a necessity that would be in the public interest. There was no recourse after information was published and the courts had declared that it was not in the public interest to publish it, this was the challenge hence the position that a public interest override should only be used for the purposes of accessing information. It was not a matter of trusting the government but the focus should rather be on the mechanisms that would inform the Bill such as the Regulations. The intention of the Bill was not to hide wrongdoing as the effect of corruption affected the poor. The mere existence of embassies did not mean that there was spying. There were declared spies in embassies, which the government was aware of and then there were undeclared spies by those embassies. The Minister clarified that he was not accusing or attacking embassies, however he admitted that the hostile activates of undeclared spies was a concern.

Q: In your statement you said that the Bill seeks to protect that information which was secret according to the Promotion of Access to Information Act, you then go on to say that the Bill will be properly aligned and re-worked. Does this mean that it will be harmonised with the Promotion of Access to Information Act and more rigorously aligned with it?

Q: Where the protection of information in databases was concerned, in many cases it was the corrupt public officials who were responsible for its destruction and alteration. How was the Bill going to address this problem?

A: The Minister replied that the Department wanted greater re-alignment of the Bill with the Promotion of Access to Information Act. The challenges were around the information that had to be protected against disclosure. It was hoped that the Bill would indeed be aligned with the Promotion of Access to Information Act and that it would be limited to matters of national security related information. The state databases had to be protected things such as cyber crime. The state databases would be physically protected and only the persons who were authorised to handle them would be allowed to do so. There would also be regular inspections, the escalation had been such that nowadays one spoke of company hijackings, and these were serious crimes. Alterations of information in state databases could not be allowed to continue.

Q: The Minister has disregarded COSATU’s submission that the penalties would have a “chilling effect “on whistleblowers in the work place. Where do you hope to draw the line on this issue?

Q: How do you see the difference in perception between what you say the Bill is trying to do and the 23 organisations that objected to the Bill during the Public Hearings. Are you concerned about the potential damage to South Africa’s international reputation that the Bill might cause?

A: The Minister replied that the Department was not of the view that the Bill impacted on legislation that dealt with whistle blowers but if need be this could be specifically mentioned in the Bill. The Committee during its deliberations may still find that it did. The Department was worried about the submissions and any impact on the image of the country. What was a concern was that there seemed to be view that when Parliament called for public comments it already had preconceived views. The Committee was still considering the Bill; the Department had been enriched by the submissions. The Department did not want continuous public spats on a process that was still ongoing in Parliament.

Q: You correctly pointed out that the court was a final arbiter, surely the issue of a public interest override should be left to the courts to decide? Could the sentences for wrongful publications be not made so harsh that they would serve as a deterrent as opposed to handing over a wrongfully classified document to the very people who classified it in the first place? The problem with this legislation was how do you police something that is secret, even the Joint Standing Committee on Intelligence sat in closed meetings nearly 100% of the time. There was no way to know where documents were being classified whether anyone has erred or been prosecuted.

A: The Minister replied that the internal processes were very important, the difficulty with having an independent body in the Bill was that it would make the process of appeals and applications to have information declassified take even longer. The costs of court proceedings were very high and this may not be a readily viable option. Even though the Joint Standing Committee on Intelligence sat in closed sessions they did compile reports that were released to the general public.

The media briefing was adjourned.

 

MINISTRY OF STATE SECURITY

MEDIA STATEMENT

 

17 SEPTEMBER 2010

 

On the occasion of addressing the Adhoc Committee dealing with the Protection of Information Bill in Parliament, we have provided our initial response to the many useful and critical inputs made by members of the public during the hearings on this Bill.

 

We would like, once again, to thank all those who participated during this process. Going through the body of these submissions, it became apparent  that a lot of thought was put into these. It is for this reason that we had to ask for an extension of time in order to apply our minds accordingly.

 

As the Ministry, we have indicated to the Adhoc Committee that in our view, notwithstanding some of the radical calls for this bill to be withdrawn, this Bill is a necessary tool that government requires in dealing with modern day challenges that confront our nation. These include the rising threat of espionage, information peddling and the protection of critical databases in government that enable citizens and residents to exercise their rights enshrined in the constitution.

 

We are on record indicating that it is our intention to address those areas of concern perceived to be broad and vague in the Bill. This is an effort to ensure that we emerge with a Bill that empowers us to deal with the challenges referred to herein above.

 

To give effect to our undertaking, we have made the following proposals to the Adhoc Committee, which proposals will form the basis for improving the identified weakness:

• The broad and vague definitions must be dropped from the body of this Bill. In this regard, the concepts of “national interest and “commercial information”, amongst others will be removed. Proposals will be submitted to the Adhoc Committee in this regard.

 

• The specific areas of information we seek to protect must be clearly identified and explained. In this regard, we have proposed that in terms of the Promotion of Access to Information Act, Act 2 of 2000, there is already information that cannot be made available to the public. This is the information we seek to protect. The second area of the information that requires protection is that which forms part of the state security information, which, notably, no one disputes it should be protected. This includes such information as intelligence, defence and security related information.

 

• The Bill needs to be made leaner, clear and meaner through re-arranging the Chapters and re-aligning the sections that deal with the key provisions of it. In this way, the Bill will make for easier understanding and will eliminate any confusion that might arise.

 

As we indicated, this is by no means an exhaustive process. More work lies ahead and we have pledged our support to the Committee in this regard.

 

ISSUED BY:

MINISTRY OF STATE SECURITY