Protection of Information Bill: State Security Agency briefing

Ad Hoc Committee on Protection of State Information Bill (NA)

27 May 2010
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The State Security Agency briefed the Committee on the Protection of Information Bill [B6—2010]. The Agency highlighted Chapters Three, Four, Five, Six and Eleven. Chapter Three was concerned with national information standards and procedures and departmental policies and procedures.  Chapter Four was concerned with information which required protection against alteration, destruction or loss. Chapter Five was concerned with information which required protection against disclosure. Chapter Six was the core of the Bill as it focused on the classification and declassification of information. It was important to note that the Bill had cross references to sections and definitions throughout. This Bill would repeal the Protection of Information Act 1982.

The Agency explained Clauses 1 to 29. Clause 3 dealt with the application of the proposed act. Clause 4 was to protect state information from unlawful disclosure.  The important clause in section 6 was Clause 6(j), which provided that “the national security of the Republic may not be compromised.”  Clause 14 provided the method for classifying information. Clause 15 dealt with the three levels of classified information. These were “Confidential”, “Secret” and “Top Secret”. Clause 16(6) provided that anything that related to the main restricted document would also be classified. Clause 20 provided that the maximum protection period for a classified document was normally 20 years, but Clause 22 provided for regular reviews of classified information. Once a document was declassified it would be transferred to the National Archives and become part of the public records.

The Chairperson highlighted Chapter One as of importance because it contained the definitions. Members wanted to know more on why the 1982 Protection of Information Bill was being repealed, and were concerned that there were apparently no financial implications to the state as noted in the Memorandum on the Objects of the Protection of Information Bill, paragraph 4, page 28. Was this really so? The Committee feared potential impediments to Parliament’s oversight role over the executive. The Committee was even more concerned about this since Parliament’s oversight role was a constitutional mandate.  Members also asked how the state would, under the proposed act, handle sensitive information that was classified. It was felt that this was a politically sensitive matter that needed more discussion. A further meeting would be held the following week.

Meeting report

The Chairperson opened the meeting and announced the apologies for those members who were absent. They were Ms A Dlodlo (ANC); Mr J De Lange (ANC); Ms T Sunduza (ANC); Ms M Mentor (ANC). Ms Mentor was tasked with other parliamentary work; Mr De Lange was in Uganda on parliamentary work. Ms Sunduza was at another meeting that was on international relations.  

Presentation: Protection of Information Bill [B6 – 2010]
Advocate Premjith Supersad, Senior Legal Advisor, State Security Agency, told the Committee that the Bill had 13 Chapters. Chapter One dealt with the definitions, objects and the application of the Act. Chapter Two referred to the general principles of state information. Chapter Three was on national information security standards and procedures and departmental policies and procedures. This chapter was important for organs of state; the national standards and procedures would be developed by the Minister of State Security and would be guidelines for departmental policies and procedures. Chapter Four dealt with information which required protection against alteration, destruction or loss; this was a very important chapter as it covered the process of determining information as valuable and how this information was to be protected. Chapter Five was on information which required protection against disclosure. This chapter was in two parts:  A - sensitive information which had bearings on the national interest of the Republic; and B – commercial information. Chapter Six was the crux of the Bill: this chapter dealt with the classification and declassification of information; it was in two parts – A and B – dealing with classification and declassification respectively.  Chapter Seven’s focus was the criteria for continued classification of information. Chapter Eight dealt with the transfer of records to the national archives. Once documents were declassified they became public documents. The Department was currently reviewing documents that were unnecessarily classified as well as making them publicly available. Chapter Nine was concerned with the Release of Declassified Information to the Public. Chapter Ten dealt with implementation and monitoring, and contained Clause 30 which defined the responsibilities of the State Security Agency.  Chapter Eleven was an especially important part of the Bill and it dealt with offences and penalties. Chapter Twelve was a prescription for the protection of state information in Courts. Chapter 13 contained the Bill’s general provisions.  

The Bill had various cross references of sections and definitions.

Clause 1 contained definitions and interpretation.

Clause 2 dealt with the objects of the proposed act. Clause 2(m) was important in that it provided for the repeal of the Protection of Information Act 1982, which was outdated and unconstitutional.

Clause 3 spelt out the application of the Act. Clause 3(2)(a) held that “The Minister may… exempt an organ of state or a group of class of organs of state from the application of the duty to establish departmental standards and procedures in terms of section 8.” Clause 8 dealt with departmental policies and procedures and made reference to Clause 7, which spelt out national standards and procedures. Clause 3(2)(c) allowed the Minister to grant to an organ of state an extension of the 18 months’ period referred to in section 23(5).

Clause 4 held that “State information may, in terms of this Act, be protected against unlawful disclosure, destruction, alteration or loss”. This was important, as state information was often unlawfully disclosed to the detriment of that particular state organisation.

Clause 5 dealt with individuals who had the necessary security clearance to be allowed to be in possession of a classified document or individuals who did not have the necessary security clearance.

Clause 6 provided for the general principles of state information and served as a guideline. The important Clause was 6(j), which held that “paragraphs (a) to (i) are subject to the security of the Republic, in that the national security of the Republic may not be compromised.” 

Clause 9 provided guidelines for the determination of what constituted valuable information.

Clause 10 was on the protection of valuable information.

Clause 11 defined the national interest of the Republic with regard to sensitive information.

Clause 12 provided an explanation of the nature of commercial information.

Clause 13 defined what constituted classified information. There was a cross reference to section 15 in clause 13(e).

Clause 14 provided the method for classifying information and made reference to Clause 17.

Clause 15 dealt with the three levels of classified information. These were “Confidential”, “Secret” and “Top Secret”. The nature of classified information in Clause 13 derived its guidelines from Clause 15.

Clause 16 dealt with the relevant classification authority. Clause 16(1) provided that “Any head of an organ of state may classify or reclassify information using the classification levels set out in section 15”. The point that the Bill highlighted under Clause 16(6) was that anything that related to the main restricted document would also be classified. 

Clause 17 provided the guiding principles for the method of classifying information. 

Clause 17(b)(i) to (v) was very important. The Bill also created an offence for the improper classification of information (Clause 42).

Clause 18 provided that “A person who is in possession of a classified record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act, except where such possession is for any purpose and in any manner authorised by law, must report such possession and return such record to a member of the South African Police Service or the Agency.” This Clause dealt with the report and return of classified records.  The Department intended that only persons that had the requisite classification authority and those that were legally allowed to be in possession of a document would be able to handle it. This Clause also addressed information peddling.

Clause 19 dealt with the authority to declassify information.

Clause 19(1) provided that “The organ of state that classified information is responsible for tits declassification and downgrading.”  This Clause was especially important.

Clause 20 dealt with the maximum protection periods. This clause did not preclude individuals from requesting a classified document whilst the protection period was still applicable.

Clause 22 provided a better understanding of Clause 21, which dealt with the continued classification of information. The maximum protection period was 20 years under Clause 20, “unless the head of the organ of state that classified the information, certifies to the satisfaction of his or her Minister, having regard to the criteria contained in Chapter 8, that the continued protection of the information from unlawful disclosure
is— (a) crucial to the safeguarding of the national security of the Republic; (b) necessary to prevent significant and demonstrable damage to the national interest; or (c) necessary to prevent demonstrable physical or life-threatening harm to a person or persons.” However, Clause 22 provided for regular reviews of classified information.

Clause 23 dealt with the Request for status review of classified information. It provided procedures to be followed where a request for classified information had been made. Clause 21(2), section 11 and Clause 17(1)(i) had to be considered by a Minister when authorising the classification or declassification of any category or class of classified information. Once a document was declassified it would be transferred to National Archives and become part of the public records. Once a document was declassified it could not be reclassified again.

The transfer of public records to the National Archives was dealt with in Clause 26. The meaning of Clause 26(2) was that if a Government department did not conduct a status review on a document before it was transferred to the National Archives then that document would be regarded as declassified. The openness and secrecy had to be balanced, as this was a serious matter.

Clause 27 dealt with the release of declassified information to the public.

Clause 28 dealt with the request for classified information in terms of the Promotion of Access to Information Act.

Clause 29 dealt with the Establishment of a National Declassification Database. When the Bill was being read it was important to cross reference.

Discussion
Ms A van Wyk (ANC) asked if it was expected that the police would provide security for all classified documents and if they would be part of the process for determining how classified documents would be kept.

Adv Supersad referred to Clause 7(2)(d) which provided for “physical security for the protection of information in consultation with the Minister of Police”. Police dealt with all sorts of sensitive information and they formed part of the security cluster. Therefore there was a common understanding with the Department of State Security and there was no difference of opinion.

Mr D Maynier (DA) said that the Bill applied to organs of state as defined in the Bill. Could clarification be given as to how many organs of state there were?

Adv Supersad replied that there were 140 including the parastatals.

Mr T Coetzee (DA) asked if there would be guidelines for the determination of departmental policies and who would be responsible for this.

Adv Supersad replied that the Minister would develop the guidelines. The guidelines would also guide other departments. Each department, however, would create its own regulations.

The Chairperson summarised that the definitions in Chapter 1 were very important. 

Ms H Mgabadeli (ANC) asked for more in-depth information as to why the Protection of Information Act 1982 was being repealed and a new Bill being introduced.

The Chairperson replied that the Minister would probably reveal the answer when he briefed the Committee next week. It would be useful to hear from him the policy and political decisions that were behind the creation of this Bill.

Mr Bheki Mbili, State Law Advisor, Ministry of State Security, added that the Committee should take note when cross-references were being made as Adv Premjith Supersad was explaining them.

Mr Maynier referred to Chapter 2 and asked why state information that required protection was not referred to as protected information as opposed to valuable information. This came across as “clunky” drafting.

Adv Supersad replied that there was a category of information that dealt with personal information, which was not necessarily state-related. This was why there was a reference to valuable information where the state was concerned. The Department would welcome the guidance of the Committee but it was important to further categorise protected information as valuable information.

Mr N Fihla (ANC) asked how information that was classified would remain so in a court environment. Did the court now have to establish a classified information database?

Adv Supersad replied that the onus lay with the particular organ of state that was responsible for that document. The particular organ had to know which documents of theirs were before a court.

The Chairperson asked who would be responsible for a legitimate document that was used in court proceedings and was kept overnight. What procedures to cover this were in the Bill?

Adv Supersad replied that there was provision for regulations that still had to be drafted. These regulations would cover this.

Mr Maynier said that it seemed like some of the contingent concepts in Clause 15 that were used in the Bill in describing the classification levels were inconsistent. Clause 25 dealt with the appeal procedure. Would it be correct to say that, since the appeal was made to the Minister, it would not be made to an external or independent body. How was it possible that there were no financial implications to the State, as noted in the Memorandum on the Objects of the Protection of Information Bill, paragraph 4, page 28?

Adv Supersad replied that the opinion on the cost implications was viewed from the perspective of the Ministry of State Security. The Department was unable to answer this question in depth now. The Minister would address this. It was correct to say that there was no independent or external body and the Minister decided on appeals. Any decision by the Minister could still be challenged in a court of law. The Department was not in a position to provide further clarification on the contingent concepts in this meeting. The Committee could accept them as they stood or deliberate further on them.

The Chairperson added that in essence the Department was saying that if the Committee was not satisfied then it could make changes. 

Ms Van Wyk referred to Clause 17 and asked what the consequences would be if a Committee, during the performance of its oversight functions, detected an irregularity and requested information from a department which refused to provide the information on the basis that it was classified. The time that it would take to resolve this dispute would be a problem. The work of the Committee would be considerably delayed and hampered. What was the protection given to Parliament and its Committees regarding the oversight work, which was guaranteed under the Constitution?

Adv Supersad said that there were processes in place that dealt with the classification of information to conceal irregularities or anything that was detrimental to the state. Where there was a dispute it would take between 120 to 160 days and therefore it would take a considerable amount of time. This scenario needed further insight and the Department would reply to Ms Van Wyk.

Ms Van Wyk followed up and asked if Parliament’s obligations had been considered when the Bill was drafted. The Department did not have to answer now.

Mr Maynier asked if it would be correct that, under Clause 18, a Chairperson of a Committee who received in his or her pigeonhole a classified document, which exposed major corruption, would have to return the document. What would be the impact on Parliament’s oversight function on the Executive?

 Adv Supersad replied that Clause 18 applied to any persons irrespective of their capacity.

Mr Maynier said that Clause 18 would then result in the end of proper scrutiny and oversight by Parliament.

Ms Mgabadeli asked if there was information that came from an era prior to the advent of the Constitution that still remained classified. If so, why had such information remained classified and what was going to happen to this information?

Adv Supersad replied that provision had been made for this as documents that had been classified for less than 20 years were subject to the Bill. Normal channels for obtaining the documents could still be followed.

The Chairperson said that the issue was more on information that was classified, but wrongfully so, by the old order. The question was more of a political one and the Department officials would not be able to provide a satisfactory answer.

Ms Mgabadeli said that the Department should go back and recollect themselves, as this was a crucial issue.

The Chairperson adjourned the meeting and announced that there would be a further meeting next week.

The meeting was adjourned.



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