The Department of State Security was requested to brief the Committee on salient features of the Bill to help Members in understanding the Bill and preparing them for engagement with stakeholders. This was a supplementary briefing to the introductory presentation that had been given earlier to the Committee.
There had been delays in the confirmation of membership of the Committee, necessitating an extension of time for the ad hoc Committee to report to the National Assembly, to 30 September 2010. Public hearings on the Bill were expected to be held towards the end of July 2010.
The Department briefed the Committee on the nature of the information that the Bill sought to protect. Members discussed various aspects of the Bill pertaining to important definitions such as “national interest” and “national security”. Several Members raised their concern about what they deemed as excessive Executive power to determine what was valuable information. A Member suggested that the debate on the definition of “national interest” should be conducted in Parliament. Another Member felt that the definition of “national interest” had to be clarified by the legislature and not by the judiciary.
The Committee also deliberated over the Bill’s provisions on the classification of information, focusing on the need for secrecy to protect various categories of information. A Member suggested that secrecy endangered the national interest. Another Member proposed the removal of words stating that secrecy existed to protect the national interest. The presenters said that the words could be removed, as there would still be reliance on the concept of national security. The time periods for the classification of documents was questioned, and Members asked to be provided with a copy of the National Information Security Standards guidelines on which this was based.
The Committee resolved to conduct further research on the concept of national interest and to align the concept with the provisions of the Constitution.
Protection of Information Bill: Further briefing and deliberation
Chairperson’s opening remarks
The Chairperson stated that although the original deadline for the ad hoc Committee to report to Parliament had been set as 7 May 2010, membership of the Committee had only been finalised on Tuesday 4 May 2010, rendering the resolution of the House inappropriate. The deadline for the ad hoc Committee to report to Parliament had now been extended to 30 September 2010, and the original resolution bringing this Committee into existence had therefore been amended.
Advertisements had been placed calling for submissions from interested parties on the Bill, and a deadline for written submissions was set for midday on 25 June 2010. After that the Committee would consider the submissions and shortlist them to determine who would be invited for public hearings, which should take place towards the end of July. The Committee might have to appoint a sub-Committee to deal with the short listing, depending on the numbers of submissions received.
The Chairperson reminded Members that an introductory presentation had been given on the Bill but the Committee had requested the Ministry, who had drawn the Bill, to once again take Members through some of the more important aspects of the Bill, particularly relating to the various categories of information requiring protection, de-classification of classified information, and how information was managed and stored at the archives. It was very important for Members to familiarise themselves with the content of the Bill, to allow them to have meaningful engagement with stakeholders. There were a number of issues in the Bill that required serious consideration, so that full information and understanding was required.
Department of State Security (State Security Agency) briefing
Advocate Premjith Supersad, Senior Legal Advisor, State Security Agency, briefed the Committee on the type of information that the Protection of Information Bill (the Bill) sought to protect. Firstly, he advised that the Bill referred to “State information”. Chapter 2 of the Bill dealt with the issue of what type of information required protection, and Clause 4 stated that State information could, in terms of the legislation, be protected against unlawful disclosure, destruction, alteration or loss. Chapter 1 provided a definition of “State information” as “information generated, acquired or received by organs of State or in the possession or control of organs of State”.
Chapter 5 of the Bill spoke about protected information to inform the type of State information that required protection. The concept of valuable information had been included as well under Chapter 5. It was also defined in Chapter 1, as well as Chapter 4, which described the process of determining that information was valuable.
Clause 6 provided the general principles on State information. The Department had considered all the Constitutional implications and had inserted a clause setting out the general principles informing and underpinning the Act and its implementation. Unless restricted by law or by justifiable public or private considerations, State information had to be available and accessible to all persons. The basis of a transparent, open and democratic society was that information should be accessible to all. Access to information was a basic human right and promoted human dignity, freedom and the achievement of equality. The free flow of information promoted openness and responsiveness, and informed debate, accountability and good governance. The free flow of information could provide safety and security. Accessible information built knowledge and understanding and promoted creativity, education, research, the exchange of ideas and economic growth. Some confidentiality and secrecy was, however, vital to preserve life, to protect the freedom and security of persons, to bring criminals to justice, to protect national security and to engage in effective government and diplomacy. Measures to protect State information were not to infringe unduly on personal rights and liberties. They should also not make the rights and liberties of citizens unduly dependant on administrative decisions. Measures taken in terms of the Act had to have regard to freedom of expression, the right of access to information and other rights and freedoms enshrined in the Bill of Rights. They must also be consistent with Article 19 of the International Covenant on Civil and Political Rights, to comply with South Africa’s international obligations.
Adv Supersad noted that there was also a definition in Chapter 1 of “national security”.
Adv Supersad moved on to the aspect of information requiring protection against alteration, destruction or loss. He guided the Committee through the provisions of Chapter 4, particularly Clause 9 that dealt with the process of determining whether information was valuable. Clause 10 described how the protection of valuable information would be handled. Advocate Supersad pointed out that regulations relating to the authorised procedures for the protection and administrative control of valuable information would have to be gazetted by the Minister, in consultation with the Standing Committee on Intelligence.
Adv Supersad then set out the provisions of Chapter 5, relating to information requiring protection against disclosure. This issue had been dealt with by splitting such information into two broad categories - namely, sensitive information and commercial information. Sensitive information was defined in terms of the national interest of the Republic as defined in Clause 11(1)(a) and (b).
The briefing also covered the provisions of Chapter 6, on the classification and declassification of information, and Chapter 7, on the criteria for continued classification of information.
Mr N Fihla (ANC) asked what restrictions were put on the media concerning protected information. He said that the media was often seen as contributing to matters running out of control, and he was interested in knowing how the Bill could control media hype.
Adv Supersad responded that the basis of the Bill was the free flow of information and the freedom of expression. However, if there was classified State information that came into the hands of the media, when the media was not authorized to have this information, it would be an offence, in terms of the Bill, if that information was disclosed. The Bill also made provision that knowingly publishing or causing publication of restricted information or documents that a person possessed would be an offence. It was an offence, in terms of the Bill, to disclose classified and related information, or to fail to report possession of classified information. A person having such information had a duty to send the document or information to the South African Police Services (SAPS) or the particular organ of State that had generated the document. There would also be a process of reviewing what documents had been unnecessarily classified. These would become public information once they had been de-classified through the National Archives. If the media wanted to challenge any type of classification of information or documents, there was a process by which a request could be made to the Head of an organ of State for a status review regarding the document or information. The Head of the State organ had a stipulated time within which to respond with reasons why it considered that the document or information warranted classification.
Mr D Maynier (DA) asked if it was correct to infer that, in order to decide whether a document had to be classified, a determination would have to be made, in terms of Chapter 5, whether the information was sensitive information or commercial information. He wanted to check that in order to determine that the information was sensitive information, the guideline to be used would be the concept of “national interest”. He was concerned that the definition of “national interest”, as set out in Clause 11, was extraordinarily broad. He asked whether, for example, one could say that disclosing information that South Africa was attempting to sell conventional arms to a rogue state was in the national interest. If that was so, then he asked how this would be objectively decided.
Adv Supersad responded that “the national interest” concept did not only apply to sensitive information but also guided commercial aspects of information as well. He conceded that it was a broad definition, and said that the Department had consulted the case law, which showed that the concept of national interest would change as a society changed. Existing case law, through the pronouncements by the judiciary, provided guidance in that particular area. The Department had not wanted to infringe on the judiciary’s interpretation of how “national interest” could be defined.
He responded to the example given of selling arms to a rogue state, and said that the Bill contained a provision that if would be an offence for any person to make a classification for an ulterior motive that was not in line with the Constitution and national interest. Although it was not a clear-cut matter, there was a judicial standard that could guide a judicial official in a determination of what constituted “national interest”.
The Chairperson summed up this issue by saying that not only did the Bill make disclosure of classified information an offence, but it also made provision for some instances where it would be an offence to classify information that was not restricted.
Ms M Mentor (ANC) questioned whether the determination of what constituted “national interest” must be left to be decided upon by the judiciary, or whether the legislature should tighten the definition, or expand upon it in regulations.
Ms Mentor asked whether the protection of documents falling within the restricted classification, such as police dockets or information pertaining to job interviews, necessitated the retention of this category.
Adv Supersad responded that the Criminal Procedure and Evidence Act already protected certain sections of criminal dockets, such as the Investigating Officer’s diary, which could not be made available to the accused or defense counsel. He explained that the purpose of doing away with the category “restricted information” was to ease the flow of information. It had been the lowest classification, and the Department was convinced that its purpose would now be adequately catered for by the category of “confidential”.
Mr Bheki Mbili, Legal Advisor, Department of State Security, added that regulations would provide a guide on some of the aspects that Members were raising, as there was insufficient scope to exhaustively deal with all these matters in the Bill.
Mr L Landers (ANC) commented that Parliament had led a debate on the concept of “national interest”. It meant different things to different people and varied according to the economic or political situation of the time. For instance, the Americans did business with China despite strong differences about the state of democracy in China, because the American leaders described it as being “in the national interest” to do so. What the President deemed to be in the national interest today could vary in the next month or the next year. It was important for this matter to be placed before Parliament, so that Members would be allowed to express their opinions.
Mr Maynier asked what criteria would be used to determine whether documents or information were valuable.
Adv Supersad responded that Clause 9 of the Bill was instructive, as well as the National Information Security Standards. There would be regulations to supplement these criteria and provide proper guidelines as to what was valuable information. The situation varied from Department to Department across the various organs of Government.
Mr Maynier remarked that there was an enormous amount of discretion given to the Executive to determine what “valuable information” was.
Ms H Mgabadeli (ANC) asked whether it was appropriate for the definition of valuable information to be left to the discretion of the judiciary when they dealt with cases involving classified information
Adv Supersad responded that the Department had inserted provisions on the protection of information in the courts into Chapter 12. There were mechanisms built in, such as the mandatory requirement that there had to be three judicial officers dealing with the matter and the directions to the National Prosecuting Authority to place only senior and experienced prosecutors in charge of such matters.
Mr Landers corrected Adv Supersad about the statement that the Minister would make regulations in consultation with the Standing Committee on Intelligence. The Bill did not state that, and would have to be amended to reflect that position.
The Chairperson commented that the Committee would have to work on the concepts of national interest and national security. Members would have to research the available literature on these concepts and see how they were aligned to the Constitution.
Mr Maynier asked if the Clause 17(1) guidelines, which referred to the need for secrecy to protect the national interest, should not rather be phrased the other way round, to say that secrecy endangered the national interest.
Mr Landers commented that the words “secrecy exists to protect” created enormous problems, and he proposed that this phrase be removed. He asked what informed the 20-year period for which information would remain classified, and asked if there was any international best practice to compare with that.
Ms Mentor also asked about the time periods for classification of information, and in particular whether there had to be a differentiated time period for different levels of secrecy, such as confidential and top secret.
Adv Supersad responded that removal of the words “secrecy exists to protect” would not make any material impact and it would still be possible to rely on the concept of “national interest”.
Adv Supersad reported that the maximum period of 20 years was in accordance with what was contained in the National Information Security Standards (NISS). The Bill would become more cluttered and confusing if it included all these issues within its provisions. A process of reversing the NISS was under way, and the Department would consider international best practices.
Mr Landers requested that the Committee be provided with the NISS guidelines.
Adv Supersad responded that the NISS guidelines would be provided to Members by the Department.
Ms Mentor was concerned that the Bill gave great powers to State organs without adequate checks and balances to this power.
Adv Supersad responded that delegated powers came with responsibility. He assured the Committee that these powers to classify documents and protect information could not be abused to block scrutiny of departments or to hide their inefficiencies or misconduct.
The meeting was adjourned.
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