Protection of Information Bill [B6-2010]: Public hearings

Meeting report

Protection of Information Bill (the Bill): Public hearings
Open Democracy Advice Centre (ODAC) submission
Mr Fola Adeleke, Research Manager, Open Democracy Advice Centre, described this centre (ODAC)  as being a specialist law centre that worked in the areas of access to information and whistle blowing. There were five major areas in the Bill that warranted attention. The first was that certain concepts in the Bill had to be redefined. “National interest”, as set out in Clause 11, was the first concern, as its description of “the advancement of the public good” was too broad. The effects of Clause 11 as currently worded would give every officer of any organ of State the authority to classify information, provided that it was deemed to be in the “national interest”. Any and every government service could be regarded as a public good. The broad definition of this concept would lead to unintended consequences. He said the concept of national interest did not exist in other jurisdictions. The State Secrets Protection Act of the United States of America (USA) used the term “State secrets” as opposed to “national interest”. State secrets referred to any information disclosed publicly that would reasonably be likely to cause harm to the national defence or foreign relations of the USA. The USA Act set out areas that were eligible for classification. This included military plans, special operations, and foreign government information and intelligence activities. The United Kingdom of Great Britain (UK) Official Secrets Act made the disclosure of information unlawful if it concerned secrets and intelligence, defence, international relations, crime and special investigative powers. 

The USA and UK jurisdictions were consistent with Sections 34 to 42 of the Promotion of Access to Information Act (PAIA). In Independent Newspapers v Minister of Intelligence Services Constitutional court case, Judge Sachs noted the dangers of equating security practices and policies with the justification of national interest.

Mr Adeleke recommended that national interests should be defined in terms of Clause 3(g) of the Bill in order to harmonise the Bill and PAIA, as well as to make the Bill more consistent with other jurisdictions. Clause 3(g) provided that matters of national interest were matters subject to the mandatory protection in terms of Section 34 to 42 of PAIA. Those sections of PAIA granted mandatory protection was granted to South African Revenue Services (SARS)records, natural persons, commercial information, and police dockets.

Mr Adeleke noted that the second concept that would have to be redefined in the Bill was Clause 12. Clause 12 would give undue advantage to State entities that were in direct competition with private entities, including access to information relating to tenders. Clause 12 created an anomaly in terms of whistle-blowing for those in the public and private sector. Section 169(4) of the Companies Act provided that whistle blowers who made a protected disclosure were immune from any civil, criminal or administrative liability. This section also supplemented the Protected Disclosures Act. Employees were actively discouraged under this  Bill from making disclosures. He recommended that Clause 12 should be deleted entirely. He recommended that disclosure that would be in the public interest, as set out in PAIA, should be allowed.

The third area that required attention was the need for an independent oversight body. The Bill did not create an adjudicative body, as all refusals of records had to be referred to the High Court. This created an obstacle for accessing justice and would raise similar problems to those that were currently being experienced under PAIA. ODAC believed that there had to be a dedicated Information Commissioner, such as one that would be created under the Protection of Personal Information Bill (PPI). In Bulgaria, the law for the protection of classified information created a State commission for the security of information. This Commission provided training for the handling of classified information. In Hungary, under the Secrecy Act of 1995, the Parliamentary Commissioner for Data Protection and Freedom of Information was entitled to change the classification of State and official secrets. ODAC’s recommendation was that either the Public Protector, Inspector General of Intelligence or the Information Protection Regulator (to be established according to the PPI Bill) should be given powers in terms of this Bill.

The fourth area requiring attention was to synchronise the Bill with PAIA and the Protected Disclosures Act. Clause 18 of the Bill had the effect of criminalising whistle-blowing. ODAC recommended that a “public interest” defence should be aligned with the usage and provisions of the Protected Disclosures Act. 

Clauses 38 and 39 of the Bill recommended dual sentencing for the disclosure and failure to disclose the possession of classified information. This victimised whistle blowers and media practitioners. In Georgia, the law of freedom and expression held that those who disclosed State secrets were not liable to prosecution if the purpose of the disclosure of a secret was for the protection of the lawful interests of society. ODAC believed that Clauses 38 and 39 of the Bill should be deleted, as they contravened Constitutional principles that were in the public interests. The risks of over-classification were equal to or greater than the risks associated with the release of classified information. Over-classification prevented the sharing and collection of information. Sharing and collecting information would thus be limited within and outside an organisation, and at an international level. There was also the possibility of repetitive information-gathering by more than one organisation.

ODAC felt that Parliament should reconsider the classification rules in the Bill. The Bill, in its current form would be costly for the country because of its negative impact on national security. Narrowing the classifications should be more consistent with the provisions in PAIA. The ‘public interest’ override and defence should be available with regard to classified records that were disclosed. 

Discussion
The Chairperson asked if ODAC was suggesting that a person other than the Information Officer designated in PAIA should make the information available. The environment in PAIA was a controlled one as the Information Officer decided what information could or could not be made available according to Section 46 of that Act. He asked if ODAC was satisfied wit this control mechanism.

Ms Alison Tilley, Chief Executive Officer, ODAC, replied that where access to information was refused, there should be a less costly appeal mechanism that did not require a person to approach the Court. It was important that there be an independent appeal structure that was trustworthy and capable of dealing with sensitive information.

Ms T Sunduza (ANC) commented that the presentation’s proposals had drawn on foreign legal jurisdictions but had not emphasised South African sources, such as the Constitution. She enquired as to ODAC's position on the need for the State to protect citizens against matters such as espionage.

Mr Adeleke replied that foreign sources were cited to demonstrate how information was classified in other countries. Defence and intelligence information was almost always limited. Even if this Bill were to limit classified information to what was already protected in PAIA, then defence and intelligence would still be protected. The Bill was not anti-democratic. ODAC welcomed it in general. However, it still believed that the classification of information in the current Bill, being based on “national interest” was too broad. For this concept to be narrowed it would be necessary to introduce a “public interest” over-ride, which would then allow certain disclosures of information if this would be in the interest of South African citizens.

Ms H Mgabadeli (ANC) lamented the lack of reference to the Constitution in the presentation.

Mr T Coetzee (DA) asked for ODAC’s opinion on the authority allowed to classify information. He also enquired how the Bill would affect freedom of speech.

Mr Mukelani Dimba, Deputy Director, ODAC, said that the input in the presentation was drawn entirely from the Constitution, such as Section 198 of the Constitution. It was accepted that national security had to be protected but it was also accepted that the right of access to information was guaranteed in the Constitution. These were not competing obligations within the Constitutional framework, as each supported the other. However, the current wording of the Bill would also discourage freedom of expression within and outside the workplace.

Mr N Fihla (ANC) asked how ODAC believed the Bill exceeded the government’s obligations to implement laws.

Mr Adeleke referred to Clause 11 of the Bill, highlighting that every form of classification in that clause was substantiated through the concept of “national interest”. The current statement of “national interest” was too broad. ODAC recognised that the security of the State was crucial but it was not desirable to have a situation where public officers would have the discretion to classify whatever they thought would be in the national interest.

Mr D Maynier (DA) commented that ODAC had correctly pointed out problems with the definitions in the Bill, as they were too broad. He wondered if it would not be preferable to delete the concept of national interest, and replace it with something else, rather than attempting to redefine this concept. He also asked if this was the only broad concept of concern for ODAC.

Mr Adeleke said that the deletion of Clause 11, with the exception of Clause 11(g), would be welcomed. He noted that ODAC was concerned with other definitions in the Bill; for example the definition of “commercial information” in Clause 12 should be deleted in its entirety.

Southern African Catholic Bishops’ Conference (SACBC) Submission:
Ms Daisai Taderera, Researcher, Southern African Catholic Bishops Conference (SACBC), noted that the SACBC was pleased that two of its concerns, that were raised during discussions on the previous version of the Bill, had been answered. These had related to the ‘Intrinsic Value Approach’, which determined what State information had to be protected, and a revised definition for “national security”.

There were, however, still some concerns. Anything that impacted negatively on the right of access to information had to be approached with caution. The Bill was not convincing in the extent to which it sought to protect State information in the country’s national interests. It erred on the side of excessive secrecy. The legislature had to strike a balance between the competing interests of access to information and safeguarding genuine national interest and security.

SACBC also felt that the definition of “national interest” was too broad and all-encompassing, and was not practicable. The notion of “national interest” was also tied to ideologically-loaded values such as economic growth, free trade and a stable monetary system. The definition of national interest sought to protect prevailing State interest and not genuine national interests. There was a danger that the current definition of national interest would lead to State information being classified too readily, denying the public access to State information.

Clause 16(2) provided that the head of an organ of State may delegate authority to classify to subordinate staff members, and Clause 16(3) provided that classification that was ‘secret or top secret’ may only be done by designated staff. There was no clarity on who could be designated. SACBC however regarded the principles of classification as sound and reasonable and Clause 17(1)(b) was commendable.

SACBC believed that the appeal procedure was problematic. An appeal to the Minister was not ideal as he or she would be an interested party. There should be an independent review board to handle all appeals.

Discussion
Mr Landers referred to Page 3 of the written submission, where SACBC had suggested that Clause 11(1) should be removed, yet said that on Page 5, in paragraph 1, there was a suggestion that the wording should be included in another separate and new clause, which he thought was a contradiction.

Ms Taderera replied that SACBC had suggested only that Clause 11(1), which was seen as too broad and therefore useless, should be removed. The remainder of Clause 11 was acceptable.

Ms Sunduza noted that South Africa did not currently have sufficient laws to cover this type of situation although other countries did. She asked for comment why South Africa should not have such legislation, especially since espionage was the becoming a norm.

Ms Taderera replied that SACBC had acknowledged that the Bill was a necessity but still felt that certain provisions were not acceptable. It should state clearly what State information would be classified, and by whom.

Ms Mgabadeli asked if ODAC believed that there should not be a concept such as national interest.

Ms Taderera replied that ODAC had conceded that there were certain matters that were in the national interest. However, to define national interest as synonymous with matters such as free trade was not ideal.

Mr Maynier referred to Page 2, paragraph 3 of the submission and asked why SACBC asserted that the definition of national interest was useful, and to whom it would be useful.

Ms Taderera replied that in the original version of the Bill there was no definition of national interest. The current version of the Bill currently had a definition, which SACBC welcomed in principle, but felt still needed to be more narrowly defined.

The Chairperson noted SACBC’s concerns that Clause 16 was too vague. He asked whether the regulations to be drawn by the Minister of State Security would not address this.

Ms Taderera replied that it would be useful, but that SACBC maintained that the clause was still too vague.

Mr Fihla said that government had to enact laws that were suited for the conditions of the time.

Submission: South African Media and Gender Institute (SAMGI)
Ms Christina Mitchell, Representative, South African Media and Gender Institute, said that the Institute  (SAMGI) was a non-profit, non-governmental agency that promoted human rights in Southern Africa. Access to information meant the right to know. This was guaranteed under the Constitution. The Bill clamped down on access to information. Basic freedom of information legislation specified that the burden of proof for not releasing information fell upon the party responsible for it, not the one asking for the information. The Bill placed the onus of the proof on the citizen and not the State.

SAMGI also believed that it was problematic that the Minister of State Security was the sole overseer for the exemption of information that could be made available to the public, as well as the fact that he or she would adjudicate in any dispute resolutions. SAMGI was also concerned that the Bill failed to specify who could classify information.

“National interest” was not clearly defined, nor were there any consistencies in defining the various classification levels. Declassification procedures were not clearly spelt out. Accessing information was a timely and costly exercise that was simply not affordable to many. She questioned who would actually be able to challenge the government if the Bill were to be passed in its current form.

Discussion
Mr Landers asked if SAMGI held the view that the Bill should be withdrawn, or if there was no need for it.

Ms Mitchell replied that SAMGI understood that there was a need for the Bill, but there were matters that needed to be taken into consideration. The Bill denied access to information for private citizens. She recommended that the Bill should go back to the drafters for further consideration.

Ms Sunduza said that the Constitution placed a duty on the State to protect its citizens and information. She asked if SAMGI agreed that the government must therefore undertake this responsibility. She said government also had a duty to protect citizens from parties who sold personal information.

Ms Mitchell reiterated that SAMGI accepted that there was a need for the Bill, and said that there were already laws to protect information that belonged to citizens. However, a problem could arise if a private citizen asked for information such as rape statistics from the government. These statistics were vital, yet since the Bill did not properly define the levels of classification such statistics on rape or domestic violence might not be accessible.

Ms Mgabadeli asked SAMGI to reflect on how feasible it would be for the Minister of Security to centralise power, as asserted in the submission. She noted that South Africa had an active civil society.

Mr Maynier asked SAMGI to share its concerns on what categories of information would not be obtainable if the Bill were passed, and how would this impact on the rights of women.

Ms Mitchell replied that the categories of information that would not be easily accessible would include rape statistics and domestic violence statistics.

The Chairperson said that the Bill dealt with sensitive and valuable information, and envisaged that State entities should be careful that data in their possession was not be destroyed or altered. The impression created by SAMGI’s presentation was that the Bill should be withdrawn entirely. He asked if SAMGI was still of the opinion that the parts of the Bill that placed a burden on the State to protect valuable and sensitive information should also be done away with.

Ms Mitchell replied that SAMGI was in support of the safeguarding of information, but was not in support of the Bill in its current form, and was recommending that it be re-drafted.

The Chairperson said that PAIA also provided for exceptions to the public being entitled to receive information. He asked whether SAMGI had a problem with this aspect of PAIA, and what its view would be if this Bill were merely to classify the type of information that was already, under PAIA, not available for release to the public.

Ms Mitchell replied that PAIA had its own short-comings and there were flaws in this system that prevented access to information. However the present submission related to the Protection of Information Bill. The government had to substantiate to the public why information had to be classified and how it would be classified.

The Chairperson said that he was not sure that the question had been answered, and asked again if SAMGI would have a problem if this Bill was trying to classify information that already was not accessible.

Ms Mitchell replied in the affirmative.

The Chairperson responded that in that case SAMGI’s difficulties lay not with this Bill, but with PAIA.

Ms Mitchell replied that SAMGI’s concerns were that citizens should be able to access necessary information and having an open and transparent government.

The Chairperson repeated that by implication the problem then lay not with this Bill, but PAIA.

Ms Mitchell said the Protection of Information Bill, in addition to PAIA, would have the effect of making information even more inaccessible.

The Chairperson asked why this Bill was any worse than PAIA.

Ms Mitchell replied that SAMGI’s arguments were directed to with the Protection of Information Bill. She noted that PAIA was an existing barrier.

The Chairperson asked who the Minister of Information was as referred to in the submission.

Ms Mitchell replied that she understood that the Bill would set up a Minister of Information who was going to be the sole entity to consider all disputes and oversee all implementations of the Bill.

The Chairperson said that the Bill did not make provision for a Minister of Information.

Mr Landers asked if SAMGI agreed that whilst Section 32 of the Constitution guaranteed access to information, and that was provided for by PAIA, such access was not absolute. This was provided for in Section 36 of the Constitution. He noted that SAMGI was applying to the Constitutional Court to force Parliament to amend PAIA.

Ms Mitchell replied that SAMGI was indeed applying to the Constitutional Court.

Mr Landers replied that there had been other applications made previously concerning PAIA. He thought that if the judges of the Constitutional Court had had problems with PAIA, they would surely have said so.

Mr Maynier expressed concern over the tone of questioning at the hearings.

The Chairperson noted that Mr Maynier was a little too sensitive, as he was a new Member of Parliament. Robust engagements were the norm in Parliament and some of the older members were aware of this. The members were trying to get the best out of the hearings.

Letsema Centre for Development and Democracy (LCDD) submission:
Mr Bennito Motitso, Volunteer Member, Letsema Centre for Development and Democracy, submitted that this Bill was a tremendous achievement on the part of government. The Centre (LCDD) believed that there had to be a balance between access to information and protection of information. This was certainly an improvement on the previous Act. Members of the community where LCDD worked felt that the government, as opposed to the media, would better protect them. The Bill was transformative and the fears were based on the fact that people were not familiar with the territory that it covered.

LCDD believed that the State had to be empowered in order to combat terrorism, crime and espionage. The State had to work within acceptable human rights norms. The Bill was not anti-democratic. The State, as well as the media, had to be empowered. The question must be asked whether there was anything really unconstitutional about the Bill. LCDD did see the Bill as progressive as the State had to be empowered to tackle such issues as crime and the Bill would assist in this. It would be a worry if there were no checks and balances in the implementation of the Bill to ensure that fundamental rights were not infringed upon. The Bill would strengthen the Protected Disclosures Act as well as PAIA. The security of all persons was important and the Bill would achieve this.

Discussion
Mr S Swart (ACDP) asked if it was wise for the State to withhold crime statistics and how LCDD believed that this could assist in combating crime. He asked whether it would not be better for the media to portray crime statistics to give an indication of the crime levels.

Mr Motitso said that the community where LCDD worked had stated that they did not need the media to protect them, but only the State. Its citizens voted in the government, which had the duty to protect them. The community members had also said that individuals owned the media, that they were foreigners, and that they did not trust them. PAIA allowed the public to access information such as crime statistics. Requesting statistics and information did not automatically mean that one would get them immediately. Persons had to operate within acceptable regulations.

Reverend Paul Vilakazi, representative for LCDD, commented that South Africa had a developing democracy. There had to be trust that the State had learnt from its past mistakes. The developmental media on the ground had the integrity to properly interrogate members of the community, as opposed to the commercial media. The media posed the potential danger of infringing on individual rights. The commercial media focused on profit making. This was not a banana republic that would suddenly start clamping down on the media. Regulation and freedom of speech had to be weighed and balanced.

Professor M Mabase, representative for LCDD, added that sometimes information that was disclosed could be misinformation, which the media would use, and that this was very detrimental to all parties concerned.

Mr Maynier commented that Rev Vilikazi was correct in saying that there had to be trust between the State and its citizens. However, he asked what would happen if the government that was elected by citizens broke that trust.

Mr Motitso replied that any Bill proposed by the government would have to have something seriously sinister in it to raise the concerns of the electorate. The electorate was not naïve and knew what they wanted.

Mr Coetzee commented that the presenter seemed, in his view, to have missed the objective of the discussions which was supposed to be about the Bill. Trust was not built on democracy but democracy was built on trust. He asked how crime would be combated through the protection of information, particularly if certain information was to be made secret. He also pointed out that this was not a forum for the presenter to attack the media, as it protected citizens against criminals. 

Mr Motitso replied that LCDD believed that there had to be a balance between access to information and the protection of information. From a developmental and community-based media’s perspective, the commercial media did not seem to be protecting people at grassroots level. It was not the intention of LCDD to “knock” the media, but it must point out that it was also not assisting the community. For example, it had not reported that, for instance, prior to 1994 people had not been employed, but were now employed.

Institute for Democracy in South Africa (IDASA) submission:
Mr Gary Pienaar, Researcher, Institute for Democracy in South Africa, submitted that IDASA accepted the necessity for the legislation, that it was an important replacement for the previous Act and was a necessary compliment to PAIA. However, it was concerned that the effect of the Bill as currently worded would be to restrict legitimate access. “National interest”, as set out in the Bill, was excessively vague and broad, there was an absence of a public interest override, and there was an absence of an affordable remedy by an independent arbiter. The Bill would also have a prejudicial effect on whistle blowers and investigative journalism.

The Bill placed the burden of proof on the person accessing the information whereas under general principles it was the State that must prove why a particular document had to be classified. IDASA believed that there must be a guaranteed right to appeal to an independent authority that was able to make binding and enforceable decisions. There was a link between legitimate national interest, public interest and the sanctions in the Bill. The Bill was also in conflict with PAIA, which was supposed to take precedence to the exclusion of all other pieces of legislation. There were also inconsistencies in the sense that the improper classification of information with the intention to deceive carried a sentence of three years as opposed to five.

IDASA submitted that there was a need for independent review. The Constitutional Court, in the Dawood case, held that if Constitutional rights were to be restricted, this had to be done in a very clear and specific manner. Clear guidance had to be given to officials. It could not be envisaged that State officials would be able to adequately balance the right to security and the right to access to information. The Bill had to provide detailed guidance for State officials when they classified information.

Discussion
Mr Maynier asked for a comment from IDASA regarding the effect of the Bill on Parliament’s oversight role.

Mr Pienaar replied that this issue had been raised by IDASA previously. It was possible that a Member of Parliament could be severely constrained by the Bill from sharing vital information.

Ms Sunduza said that South Africa was the only country in the world that did not have a law that protected State information, and she asked if it was IDASA’s view that this position should remain.

Mr Pienaar pointed out that he had already said that the Bill provided a positive step forward and supplemented PAIA. IDASA was of the view that the State had to protect its citizens, as well as protecting certain information, but that this should be done without encroaching on the territory already demarcated by the Constitution through PAIA and the Protected Disclosures Act.

Mr Swart asked if IDASA could provide a written draft of what changes it believed should be crafted in this Bill.

Mr Maynier asked for IDASA to expand on the previous question that he had asked, as the organisation had a special interest in the work of Parliament.

Mr Landers said a Member of Parliament was protected, even if there was disclosure of a classified document. He wondered if the concern of IDASA related to a Member of Parliament not being able to disclose the same document to the media.

Mr Pienaar replied that PAIA set out to provide mechanisms for protected disclosures. IDASA was not suggesting that Members of Parliament should prefer going to the media as opposed to raising their concerns within the House. However, the Bill could be interpreted to pose a risk, even within Parliament itself, that Parliamentary privilege could be constrained and circumscribed.

Submission: Freedom of Expression Institute (FXI)
Ms Melissa Moore, Head of the Law Clinic, Freedom of Expression Institute, informed the Committee that FXI’s main objective was to fight for the right to freedom of expression, to promote access to information and access to the media and the free press. FXI did not contest the necessity of the Bill but was concerned about the Bill’s presumption of what could be withheld from the public.

The main question was whether the Bill provided clarity and direction on the classification of documents. Section 7 of the Constitution made it mandatory for the government to guard against abuse and improper interference of the State and individuals. If the Bill was passed in its current form then the government would have failed in its task of upholding the Constitution. 

Section 16(1) of the Constitution guaranteed freedom of expression. In the Constitutional Court case of Khumalo and Others v Holomisa the Court held that the print, broadcast and electronic media had a particular role to play in the freedom of expression in South African society. Every citizen had the right to freedom of expression and the right to receive information. The media were free agents that ensured the exercise of these rights. In a democratic society the mass media played a massive role in the exchange of information and ideas. This was crucial to the development of a democratic culture.

Access to information was essential for the exercise of any other right as contained in the Bill of Rights. Sections 41(1), 42 and 198 of the Constitution made it mandatory for the State to protect its citizens. However, it was important to note that these rights could be limited under Section 36 of the Constitution. The Bill applied to all organs of the State, and thus had extremely broad parameters. The definition of “national interest” was of concern as it was too broad. FXI suggested that the Bill should apply only in relation to matters of national security.

Another concern was that the Bill did not provide for an external review apparatus. It was also disturbing that there had not been an inclusion of a public interest defence in the Bill.  The penalties were also very harsh and would have a powerful and discouraging effect on investigative journalism. There was no provision in the Bill that dealt with guidelines for classification and anybody could be given the power of classification. It would be useful if the Bill provided for an ombudsman, since the Bill made it impossible to challenge the State to obtain information that was classified, nor was there a judicial avenue for seeking relief.

Discussion
Ms Sunduza asked Ms Moore if she agreed that the right to freedom of expression could be potentially open to abuse.

Ms Moore replied that the Bill was not reasonable and justifiable in accordance with the requirements of Section 36 of the Constitution. There were other provisions and mechanisms in the common law that protected individuals against abusers of the right to freedom of expression.

Ms Sunduza asked Ms Moore if she did not think that the Bill would protect the citizens of South Africa.

Ms Moore replied that the Bill would protect citizens only if it was drafted narrowly and precisely. The FXI did not believe that the Bill would pass constitutional muster in its present form.

Ms Mgabadeli asked how the Bill would dull the critical faculties of the public as alleged in the presentation.

Ms Moore replied that the suppression of information that would allow for criticism of the government and all individuals involved would dull intellectual thought. Without information a person would not be able to challenge government, nor advance thoughtful debates.

Mr Coetzee asked for the opinion of FXI as to what information should be withheld from the public, what criteria could be used in determining this.

Ms Moore replied that only information that should be withheld was information to do with national security.

Mr Maynier asked if the Bill as a whole was likely to pass Constitutional muster, and why it might not.

Ms Moore replied that the Bill did have the potential to pass a Constitutionality test, provided that certain of the definitions and provisions were narrowed.

The Chairperson asked if the FXI felt that the Constitution’s Chapter 9 institutions would not be able to protect South Africa’s democracy if the Bill were to become law.

Ms Moore replied that some of these institutions had been failing, such as for example the Independent Communications Authority of South Africa (ICASA).

Mr Swart interrupted and raised a point of order, stating that he believed the question from the Chairperson was perhaps unfair .

The Chairperson retorted that Mr Swart was out of order.

Mr Swart said that he was merely raising a point of order, which was that the question was put within the framework of the Constitution but omitted that freedom of the press was also guaranteed in the Constitution.

The Chairperson interrupted and said that this was not a point of order as it had nothing to do with procedure. Mr Swart should not continue further.

The Chairperson said that he did not wish the impression to be created that he was attempting to harass Ms Moore. His question was attempting to gauge the concerns.

Ms Moore said that the concern was that the role of the media as a public watchdog would be undermined by the Bill. There was also a concern that there would be abuse of power.

South African Institute for Security Studies (ISS) and Open Society Justice Initiative submission
Ms Lauren Hutton, Researcher, Institute for Security Studies, noted that she would concentrate on a few points around the Protection of Information Bill B6-2010 (the Bill) that were more fully explained in the written submission (see attached document). The Institute for Security Studies, although it welcomed the move to improve access to transformation, nonetheless felt that some aspects of the current Bill could be interpreted as contrary to the constitutional rights of access to information and freedom of expression, and thus recommended that the Bill should be withdrawn to correct significant drafting problems.
 
The first concern related to the definitions in the Bill. Several showed inconsistencies with intelligence policy and other intelligence legislation. Problematic definitions – for reasons more fully outlined in the written submission – included the definitions of “intelligence”, “counter-intelligence”, “domestic intelligence”, “foreign intelligence”, all of which it recommended should be standardised to align with existing definitions.
The ISS further recommended that a process to review the 1994 White Paper on Intelligence would be useful, which may require wider dialogue on the role of intelligence in South Africa currently and in future.

The institutions recommended that “national security” and “national interest” – both of which were also problematically defined, should not be used as the criteria for justification for protection. In Chapter 6, the classification criteria needed to be more clearly stated and there was a need to define the terms “harmful” and “endanger”. There was also a need to align Clauses 15 and 17 into one clause that listed the classification criteria. The criteria outlined in Chapter 7 were clearer and more concise.
 
The institutions believed that the clauses relating to the protection of commercial information should be removed from the Bill, and that there should not be powers to allow for the classification of this type of information. The justification of secrecy in order to prevent “reputational injury” appeared to be contrary to the principles of public accountability, openness and transparency. It also did not appear to be supported by other international examples.

The institutions had raised some concerns on Chapter 10, noting that if the purpose of the Bill was to decrease classification and excessive secrecy, then the National Intelligence Agency (NIA) may not be the best body to attend to implementation and monitoring of the Act. Instead, it was recommended that an independent authority should be assigned those tasks associated with implementation and monitoring of the use of classification.

It was suggested that “hostile activity offences” should be limited through the inclusion of a public interest clause, which would provide a remedy to potential restrictions on investigative journalism and public accountability. This had been suggested by the Freedom of Expression Institute. Concerns were also expressed about the criminal offences created by Clauses 18 and 39, as well as Clause 42. Protection for whistleblowers should be provided.

Examples of international practice were quoted by way of comparison in the written submission. Finally, there was a recommendation that Clause 40 should be removed. 

Discussion
Ms T Sunduza (ANC) questioned why there was a recommendation that the Bill be withdrawn from Parliament.

Ms Hutton responded that this recommendation was made because it was believed that the Bill in its current form contained so many inconsistencies that it would be preferable to re-draw it entirely rather than attempt to “tweak” each clause individually.

Ms H Mgabadeli (ANC) asked for comment on whether South Africa was currently protected from or exposed to potential harm through communication of information. She pointed out that it was virtually impossible to check on the type of information that was, for instance, being communicated by trade missions, and there appeared to be substantial espionage activities. She asked for clarity on protection of personal information.
She asked for some clarity on the reasons why a joint submission was made with the Open Society Justice Initiative.

Ms Hutton clarified that the arrangement with the Open Society Justice Initiative had enabled each organisation to draw on international expertise. She further clarified that clearly South Africa would need protection. In regard to espionage, she clarified that the examples given indicated that some countries had admitted that they could not secure 70% of the information that had been classified, and in this sense the classification had created vulnerability. If a country had less information to secure it would allow that more resources could be directed towards properly securing that limited information. She agreed that espionage was an issue. In relation to personal information, she noted that there was other legislation that did cover the protection of personal information.

Ms Mgabadeli  noted that there was a need to protect information in order to address issues of poverty. She did not agree that commercial issues should not enjoy the protection of this Bill, and asked for a further explanation on this. If the protection for commercial information were to be removed from the Bill, then this would have implications for companies, and she asked where then that company could seek protection.

Ms Hutton responded that she was unsure about the link between protecting commercial information and fighting poverty. If there was less information being released about the use of State funding, then this would more likely be detrimental. She noted that it was necessary to make a distinction between the type of information that this Bill sought to protect and trade secrets and to determine which were the responsibility of government. Not all information requiring protection should be protected through State security services.

Ms Mgabadeli asked why the institutions believed that it was necessary to have an independent authority, who would likely be assigned to that task, and why the present situation did not suffice.

Ms Hutton responded that it was a moot point whether any person or institution was truly “independent”. Accountability followed from maintaining a whole system, and she was not suggesting that any part of the current system was not functioning, but rather that better oversight and accountability would result from a system that was independent. This was more fully explained under paragraph 7 of the written submission, where the point was also made that having an independent authority had been recognised internationally as good practice, and went a long way to allay some public fears about the potential for infringements of human rights.

Mr N Fihla (ANC) made the point that national security was a priority in every country, and asked for comment why it had been suggested that this should not be used as the basis for justification for protection.

The Chairperson added that the Constitution also covered this point.

Ms Hutton responded that the Promotion of Access to Information Act (PAIA) covered many issues around access to information, including access to commercial information. There was a need to differentiate between information that the State was tasked to protect, and other information where this obligation did not apply, to avoid directing State security resources to protection of every type of information. The submission made the point that  “national security” and “national interest” were not properly defined in this Bill so as to create a proper yardstick and the Bill did not currently give clear guidance was to what was and what was not protected. 

The Chairperson noted that this had been a concern expressed by many presenters.

Ms Mgabedeli commented that in the past there had not been sufficient protection of certain information. It was clearly necessary to find some way to secure the information. She was not sure that the international examples were relevant to the local situation. She enquired whether certain types of information were available.

Ms Hutton clarified that, for example, information on the current state of readiness of armed forces was accessible. Commercial information was more contentious. The Bill, as currently worded, referred not to trade secrets, but to “reputational injury”, which was a very wide concept. If there was a need to protect a certain type of information then the institutions were suggesting that the clauses be more strictly curtailed.

The Chairperson asked why it was suggested that Clause 40 was problematic as he would have thought that it was not controversial. This clause simply stated that a person who provided false information to a national intelligence structure, knowing that the information was false, was guilty of an offence. He pointed out that many people providing information were being paid for doing so, and that it was a real ongoing problem.

Ms Hutton noted that there were two issues. The first was that “caveat emptor” (let the buyer beware) was a general principle of the law, and the second related to who was responsible for ensuring the correctness of information. If, as was suggested, there was a real threat of subversion, treason and espionage, then she questioned whether a penalty of three years imprisonment was sufficient for this offence.

The Chairperson noted that this clause was limited in wording, and related to the situation where the person knowingly gave false information, not where he or she may have been negligent. If the prescribed sentence was considered insufficient, he did not think that this was a good reason to oppose the entire clause. There was a history behind the inclusion of this clause and very strong arguments would be needed to persuade the Committee that it should be removed.

 Ms Hutton took the Chairperson’s point, but said that the State’s earlier briefing had not made this sufficiently clear and the way in which it was framed could be improved.

Mr S Swart (ACDP) asked if the information referring to the Chinese position was available.

Ms Hutton said that she would forward the information, which related to the new Chinese Official Secrets Act.

South African History Archive (SAHA) and the Nelson Mandela Foundation submission
Mr Sello Hatang, Communications Manager, Nelson Mandela Foundation, indicated that the background to the South African History Archive (SAHA) and the Nelson Mandela Foundation (NMF) was set out in the written submission. Both institutions were committed to developing civil society access to public and private information and managing archival records that documented past struggles and contributed to future struggles for justice.

SAHA and NMF welcomed the degree to which concerns expressed by the public had been taken into account, but had four remaining areas of concern.

Mr Verne Harris, Head: Memory Programme, Nelson Mandela Foundation, said that the NMF still found certain definitions to be imprecise, but his present submission would focus on four main points.  He questioned whether it was really the intention of the drafters that all fundamental principles in relation to information should be allowed to be “trumped” by national security, and recommended that it was necessary to amend the wording of Clause 6(j) to create a balance and to state that “paragraphs (a) to (j) are to be balanced against the security of the Republic, in that…” 

Mr Harris noted that in the previous version of the Bill, there was a provision for an automatic declassification of records, irrespective of where these might be located, after twenty years. The current version, as seen in Clauses 20 and 26, now limited the automatic declassification to records that had been transferred to the National Archives. Very few public records in fact reached the National Archives, and it had huge backlogs, meaning that many documents that should have been classified had not been. He recommended that this limitation should be removed as the practical implications would worsen the situation.

Clause 27(4) provided that automatic disclosure of information that had been declassified would only occur when the information was placed in the National Declassification Database. He suggested, once again, that this created practical problems because the custodians of the National Database were severely under resourced, which meant that the disclosure would be delayed, and the intentions of the drafters would not be realised.

Finally, SAHA and NMF remained concerned that dispute resolution was left to the Minister, similar to the process in the Promotion of Access to Information Act, which had already been seen to hamper the efficacy of this Act. It was recommended that some type of independent adjudication authority should be considered.

Discussion
Mr Fihla enquired about research done into the struggle for justice in South Africa.

Mr Hatang noted that SAHA was a non governmental organisation (NGO) that initially had collected historical information, which focused on documenting struggles against apartheid and the creation of democracy. Later it had repositioned itself as a human rights archive both documenting and contributing to continuing struggles for justice. It currently focused on using the PAIA and helping individuals to access records through this Act, in order to develop civil society access to information.

Mr Fihla asked what information was held by the Nelson Mandela Foundation Trust, noting that there was a great deal of information that did not appear to have been documented, including records of other prisoners held on Robben Island with Mr Mandela. He had been present at a guided tour of Robben Island where, for instance, no reference had been made to the quarry sites and the historical information that was provided was therefore incomplete.

Mr Harris noted that the website contained a database of information relating to Mr Mandela. In compiling this information the NMF had managed to access other information about Robben Island, including some information formerly held in the Roeland Street archives and some that was in the personal possession of a former warder. He pointed out that the old technology of faxes had already resulted in much of the information fading and that unless there were urgent interventions, it was feared that much of the information both in relation to Mr Mandela and other detainees would be lost. He reiterated that the National Archives was already struggling to perform its basic functions, and urged that the bureaucratic restrictions that this Bill sought to impose were not necessary.

The Chairperson indicated that the National Archives would be making a presentation on the following day.

Mr Fihla noted that some prisoners on Robben Island had been tortured or mistreated, but this information was not being made available. The closure of the quarry sites was also of concern.

The Chairperson added that other information that was not generally known related to the leper colonies on Robben Island, where the black lepers were not permitted to attend a church, and their graves had not been properly preserved.

Ms Mgabedeli urged that more verbal information and reminiscences should be sought from the older activists during their lifetimes.

Mr Harris reiterated that the SAHA and NMF had made a more comprehensive submission earlier and this was the reason for the limited submission today.

Ms Sunduza asked where the problems lay with backlogs, and whether these were attributable to difficulties in accessing the information in the first place.

Mr Harris replied that the concerns related to declassification. The military authorities had already indicated that they could not meet certain time limits for providing information. If there was an automatic declassification procedure, without any further requirements, then no backlogs should arise.

Ms Sunduza said that the Bill was clear as to the type of information, and asked about perceived difficulties.

Mr Hatang said that the military had recognised that there were records that would continue to require declassification, so that they should be made available after twenty years. However, the problem was that although  PAIA imposed certain time limits for the release of information, these times were not being met due to bureaucratic problems and backlogs. SAHA and NMF were suggesting that, instead of requiring the current process that records be transferred to the National Archives, another system should be found.

The Chairperson noted that procedural aspects could be problematic. However, he was concerned that there seemed to be a trend developing whereby there were invariably suggestions during public hearings that independent bodies must be set up to monitor matters. Whilst this might be a utopian situation, it was not always necessary, and would be very expensive. 

Eskom submission
Mr Willie du Plessis, General Manager: Eskom Legal Department, noted that Eskom’s submission was largely directed to the application of this Bill to organs of State. As currently worded, the Bill applied to all organs of State, as defined in the Constitution and in various judgments and other legislation, although the current legislation did not apply to many parastatals or State Owned Enterprises (SOEs).

Whilst Eskom recognised the need to protect State information, Mr du Plessis pointed out that some SOEs were in the broad “State” arena because of government ownership, yet operated as service providers in the commercial field. He suggested that further consideration should be given to this anomalous position. It should be recognised that there should be limited application of the Bill to the types of information and narrower definitions within that context. He suggested that this could be addressed either by rewriting some definitions, or by clarifying which provisions applied to SOEs, or by broadening the Minister’s power to grant a more general exemption for such bodies. He suggested that something similar to that contained in the Companies Act of 2008 could be included, which provided that in the case of SOEs that were governed by the Public Finance Management Act, the Minister of Trade and Industry, in conjunction with the Minister responsible for the SOE would reach agreement as to the application of the legislation to each SOE and then grant the necessary exemptions. He pointed out that in general, commercial information was already sufficiently protected by the common law or PAIA. 

Mr du Plessis indicated that Eskom also wished to comment on delegation of authority. The head of an organ of State could delegate classification and declassification, but there was no similar provision for delegation of review of status of classified information. This was a mammoth task and Eskom submitted that to limit this power to the Chief Executive Officer (CEO) or Director General would make the legislation very difficult to implement. He submitted that further thought should be directed to these issues.

Mr du Plessis noted that Clause 13 was potentially problematic for Eskom. If Eskom had to classify certain information and transactions, then its counterparts in those transactions would also require to be classified and vetted in order to get access to the information. Furthermore, he pointed out that the Minimum Information Security Standards (MISS) already made it difficult that non-South African citizens to get clearance. Eskom had several foreign employees and contracted with non-South African service providers. He appealed to the Committee to recognise this problem and suggested that a possible solution could be to narrow the application of the Bill to only certain types of information.

Mr du Plessis noted that the written submission had raised certain points that he would not expand upon today, including problems around the overly-wide definition of “valuable information”, “State information” and the point previously made about the head of an organ of State, and requested that the Committee also consider the submission on these.

Discussion
Mr T Coetzee (DA ) asked for clarity whether Eskom was requesting that it be exempt from the provisions of the Bill.

Mr du Plessis confirmed that this was its request, and suggested that the points he had made applied also to other SOEs. If it was not possible to provide an exemption, then he suggested that alternatively consideration should be given to making the Bill apply only when there was interaction with a government department who might need to follow the classification process, in which case Eskom would need to comply, or by using some mechanism similar to that applying under the Companies Act, involving interaction between the relevant Ministers.

The Chairperson asked if Eskom foresaw a situation where it might be dealing with information that might need to be classified.

Mr du Plessis replied that there might be matters around national key points, but that most of Eskom’s confidential information related to commercial transactions or trade secrets, rather than State security issues. Confidential trade information would be protected by patent law or other protective mechanisms already in place. He suggested that if a situation arose where questions were asked around long-term distribution contracts, then Eskom could request assistance from Parliament. He pointed out that most requests for information followed the PAIA procedures. He reiterated that if classification of information was required under the Bill, then other parties to contracts would also require to follow the procedures.

Mr L Landers (ANC) noted that information about the contracts and costs charged by Eskom to huge players such as smelter plants would be information that it was in the public interest to disclose and he would not like to see such information being protected.

The Chairperson noted that the questions around third parties, as well as issues around contracts with foreign parastatals and governments would need to be considered.

Centre for Constitutional Rights (CCR) submission
Adv Nichola de Havilland, Director, Centre for Constitutional Rights, said that the Centre for Constitutional Rights (CCR) was concerned that the Bill ran contrary to Constitutional values of accountability, transparency and open governance. She noted that although the purported purpose of the Bill was to “promote the free flow of information” it in fact restricted access to information. CCR was also concerned specifically with what it saw as the violation of the certain basic standards endorsed by the United Nations, and commented upon in the Ministerial Commission comment in 2008.

Firstly, she noted that legislation relating to freedom of information should be guided by principles of maximum disclosure, which meant that all information held by public bodies should be disclosed, except in very limited circumstances. Those exceptions should be clearly and narrowly drawn, and should relate to legitimate aims of protecting law enforcement, public safety or national security, in circumstances where disclosure of the information would cause greater harm than the withholding of that information. Requests for information should be processed rapidly and fairly, and independent review should be made available. There should be provision for a request to the public body, an appeal to an independent body, and an appeal to a court.  Any refusals of requests should be accompanied by substantive written reasons. The appeals should include the full power to review the case on its merits.

She noted that many of the key points in the submission by CCR had also been raised by other presenters.

Ms Nyoko Muvangua, Legal Assistant, CCR, said that initially the CCR held the view that classification should be performed at Ministerial level only. However, having read further on the position in America, and having listened to the submission by Eskom, it was open to the suggestion that other levels, provided that they were properly trained, could also classify.

She noted that the CCR believed that the definition of “national interest” was too broad, and undermined the Rule of Law’s requirement for clarity. Furthermore the clause as a whole created an anomaly because although Clause 11(4)  required the determination of what fell within the national interest to be guided by Constitutional values, these were incompatible with the notion of secrecy.

She noted that the test set out for declassifying information was higher and more precise than the test for classifying information, and noted CCR’s submission that the standards should be aligned. Furthermore, CCR suggested that Clause 22(2)(a) must be amended to avoid the current inconsistencies between Clauses 21 and 22.

Ms Muvangua then commented on Clause 25, which provided for an appeal to the Minister, who was thereby placed in the position where he was required to adjudicate on the Agency, and Clause 31, which provided that the Minister should act as adjudicator in the event of a dispute between the Agency and any organ of State, which amounted to the Minister adjudicating on a matter to which he was a party. Although she was somewhat hesitant – in view of comments about independent bodies made earlier – to suggest that an independent body should deal with appeals and adjudication, she noted that the South African Human Rights Commission, an independent Chapter 9 institution, was already in place and could ideally be tasked with such matters.

CCR suggested that the option of a fine be considered in relation to the offences.

She noted that more detailed explanations were contained in the written submission. 

Discussion
Mr Landers asked about the suggestions around training for classifying officials and asked who conducted the training in the USA.

Ms Muvangua noted that this was not stipulated in the document she had read, but she would research this point further and provide relevant information.

Ms Sunduza again reiterated her concerns about citing of foreign examples. She was critical of the fact that full information had not been provided by CCR.

Ms Muvangua repeated that it was common practice, not only for CCR, but also for other research institutions, as also for the Courts, and indeed the drafters of the Constitution, to cite the position in other countries. In relation to the information provided, she reiterated that the document referred to was a letter from the White House relating to the USA position on protection of information and the only information not specified in that letter, but which she had said she would make available, related to the training procedures.

Ms Sunduza noted that in every democracy there was an obligation on the State to protect its people. She commented that there were many concerns that the South African media was transgressing personal and private rights in trying to secure interviews or comment. She asked that CCR comment on allegations that had been published about public figures.

Ms Muvangua responded that there must be a balance between the State protecting its citizens, and providing information to citizens. The Constitutional provisions attempted to strike that balance. She noted that the non-disclosure set out in this Bill related to matters of national security and national interest, not personal privacy, which was dealt with in other legislation, and where other avenues of recourse were available.

Adv de Havilland added that the Constitutional values were premised on openness, whilst recognising the responsibility of the State to ensure national security. She submitted that the current Bill did not achieve the correct balance because it did not only seek to protect the information that must necessarily be protected, but went further. She was concerned that this Bill might be seen as a means to curtail irresponsible media reporting, and stressed that this Bill was supposed to protect national security, not individual privacy, which was protected in other legislation.

Mr Coetzee commended the presentation and responses to questions. He noted that concerns by CCR that the Bill undermined some fundamental Constitutional values and wondered if this Bill was attempting to change the Constitution, and what would be the next step if the Bill was to be accepted in its present form.

Adv de Havilland said that the CCR was of the opinion that the Bill would not pass Constitutional muster, because of the over-broad definitions that did not satisfy the requirement of clarity, and because of the difficulties with Clauses 25 and 31. She suggested that consideration should be given to amending the current wording. The House could also refer the Bill to the Constitutional Court for a ruling on its constitutionality, although she was not suggesting that the Bill bypass Parliament. If the Bill were to be passed, other institutions could launch a Constitutional challenge. She outlined some of the practical difficulties in running a test case.

The Chairperson noted that the point whether the definitions were over-broad was a legal issue, on which differing legal opinions could be offered.

Ms Mgabadeli asked for clarity as to what wording the Committee supported.

The Chairperson responded that the Committee still needed to consider the final wording, after hearing all comments. No wording would be finalised yet.

Adv de Havilland clarified that CCR was suggesting that the Minister should not be consulted merely on issues of physical security, but also in relation to personnel.

Mr Landers said that there was a perception that this Bill was targeting journalists and the media. He asked if the CCR was aware that many journalists were in fact information peddlers, and said the Bill was seen as a way to deal with the problem of information peddling, which was a serious threat that was not being addressed by the media houses or any other organisation.

The Chairperson clarified that Mr Landers was raising the factual issue of problems with information peddlers.

Adv de Havilland clarified that she had not alleged that the media was being directly targeted by the Bill, but had instead indicated that the effect of the Bill would be to impact negatively on investigative journalism. She believed that there was sufficient protection under PAIA, provided that the information had been lawfully obtained, and said that it was not the place of national security legislation to deal with whistleblowers.

Mr Landers conceded that the CCR probably did not have the background knowledge on information peddling that had been provided to the Committee, and the fact that PAIA had not been able to address the problem of the serious threats to State security.

The Chairperson noted that both he and Mr Landers were members of the Joint Standing Committee on Intelligence. A factual presentation had been given by the Minister of State Security on the very real threats posed by information peddlers, and it was likely that CCR did not have sufficient knowledge of these issues to comment on what an appropriate response to this problem might be. The Chairperson was not suggesting that the media were the culprits as information peddlers were spread across many sectors.

The Chairperson asked if any members of the public at the hearing wished to pose questions to the Committee.

Ms Alison Tilley, Chief Executive Officer, Open Democracy Advice Centre, asked whether the Committee might have considered calling for a briefing from the South African Law Reform Commission, who had drafted the Protection of Personal Information Bill that was currently under consideration by the Portfolio Committee on Justice. She clarified that this Bill related to protection of personal information, including health data, which was of concern to many members. A number of proposals had been made to amend the original wording of this Bill.

A representative of the Freedom for Expression Institute (FXI) commented that the protection of personal information was important. PAIA also contained provisions relating to commercial information.

The Chairperson responded that he was well aware of this Bill, and this Committee was aware of the presentations made on it. The Committee would consider whether it wished to consult with the Law Reform Commission.

The Chairperson added that during the morning session he had noted that PAIA listed information that could not be given. Many of these exceptions were repeated in Clause 46 of the Bill. In light of  both PAIA and this Bill disallowing the publication of certain information, he questioned whether the difficulties lay with PAIA or with this Bill.

Adv de Havilland said that PAIA allowed a person to challenge the refusal to make information available, by asking the Court to look at the information and rule whether the refusal to release the information was justifiable. However, the current Bill had no similar provisions, and once information had been classified as top secret, that was the end of the matter. The State was not even obliged to confirm whether any document existed, and there was no recourse to Court either to establish the existence of a document or have it reviews by the Court.

A representative from Eskom made the point that the various pieces of legislation around access to information supplemented each other.

The Chairperson noted the concerns that the Bill would need to be synchronised with other legislation and summarised the other concerns expressed during the day’s hearings. He stated that he had previously stated his opinion that “top secret” would meant that disclosure of the information had the potential to lead to war or a severing of diplomatic relations, a principle supported by MISS. On the other hand, a document containing the name of an informer, or an intelligence operator who had infiltrated a criminal ring must also clearly be classified in another category, as release of this information could threaten the safety or life of the named individual. “Top secret” would certainly not relate to personal matters. There were probably very few documents held by Government that fell into this category. It was necessary to understand the principles around the categories. In the lower categories of protected documents, there were likely to be more documents. He believed that better definitions and distinctions between the three levels must be found to allay public concerns.

The meeting was adjourned.