Protection of Information Bill: deliberations

Meeting report

Normal 0 The Chairperson opened the meeting and confirmed the programme of the Committee for the remainder of the parliamentary session. The tagging of the Bill raised during the last meeting had now been finalised. The gist of the opinion from the Speakers Office was as follows: 'I am satisfied that the provisions of the Bill do not in substantial measure fall within a concurrent provincial legislative competence. As such I am of the view that the Bill is indeed a Section 75 Bill.' The matter of the correct tagging of the Bill was now closed for the Committee, as it had been resolved by Parliament.

Ms M Smuts (DA) said that she accepted the ruling and requested that copies of the legal opinion from the Speaker's Office be circulated to Members. On the issue of the programme it did seem as if they were proceeding at great haste. She did not object to that for herself but the fact of the matter was that the scheduling of meetings for the Committee on Wednesdays and Tuesdays would affect some of the Members. There was surely a duty to accommodate Members. This was a Friday Committee and it was unfair to cut out some Members. For example, there was the Constitutional Review Committee meeting on 12 November.

Mr S Swart (ACDP) said that the Committee on Justice and Constitutional Development of which he was a part was dealing with very important legislation at the moment however he would try to accommodate both committees.

Mr L Landers (ANC) commented that it was the norm with Ad Hoc Committees that they would clash with other Committees; this was just the nature of Ad Hoc Committees. It was extremely difficult to try and accommodate every single person who served on the Ad Hoc Committee. He proposed that they proceed with the programme as best they could.

Ms V Mentor (ANC) agreed with Mr Landers. Any difficulties that Members might have should be noted as the Committee went along.

The Chairperson said that he did not agree with Ms Smuts that this was a "Friday Committee". It was never a resolution of any sort that the Committee should meet on Fridays only. By now he thought that the Members had an idea of what the issues were and they should not have any fears. Should they, they could always call him. There was nothing that Members would want to be raised at meetings that could not be raised even in their absence. Moving on to the Bill, a query had been raised about the title of the Bill, which seemed to clash with the title of the Protection of Personal Information Bill. The Department of Justice and Constitutional Development (DOJ&CD) had contacted the Minister of State Security and himself requesting that the name of the Bill be changed to the Protection of State Information Bill.

Mr Landers said that the proposal made sense. There was confusion and the ANC was in agreement.

Ms Smuts agreed and said that the name change could be Classification of State Information Bill.

Dr Oriani-Ambrosini (IFP) disagreed with Ms Smuts, saying that the Bill seemed to go beyond the classification of state information but he had to check the Bill to be sure.

The Chairperson asked Ms Smuts if she was considering withdrawing the proposal.

Ms Smuts replied in the negative. It was the view of the DA that intelligence services carried out duties way beyond those appropriate for intelligence services. In the Bill specifically this would include inspecting, monitoring or guiding state departments and entities on how they looked after documents and information. The issue should be only about classification and not the care of records. This should be the prerogative of the Information Regulator that was envisaged in the Protection of Personal Information Bill. Departments seized with state security should be excluded however.

Mr Swart said that he had no qualms with either suggestion. At the end of the day it all depended on the final draft, which, if it were on classification then the proposal by Ms Smuts would be appropriate. If the final draft were broader, then the Protection of State Information title would be acceptable.

The Chairperson said that the Bill covered two areas at the moment, the protection of information from loss, destruction and alteration and then there was the secrecy part. Ms Smuts was proposing that the clauses that dealt with loss, destruction and alteration of information should be deleted. The Committee should focus on those areas that it felt there was agreement for the present moment. There seemed to be consensus that the Bill would survive in its present form if it focused on state information rather than just information.

Ms Mentor said that she agreed with the proposals for the name change but for the meantime, the preferred title would be Protection of State Information and the other title should be kept in mind. 

Dr Oriani-Ambrosini said that the title should come at the end of deliberations once what should be in the Bill was already decided upon. He was in agreement with the need for a Bill that protected national information. The Bill would complete the circle started by the Promotion of Access to Information Act (PAIA) and the Protection of Personal Information Bill, which also made it mandatory for information, which was not necessary to be destroyed. He had the same problem as Ms Smuts that intelligence services should not be involved in the safekeeping of documents by state departments.

Ms Smuts suggested that the Committee should have a session with the Technical Committee on the Protection of Personal Information Bill at some stage. It was a misrepresentation on the part of Dr Oriani-Ambrosini to say that the entire import of the Protection of Personal Information Bill was the destruction of personal information; this was one of many of its features. It was the job of the Regulator in this Bill to inspect filing records; he or she would have the expertise.

Mr Swart said that what Ms Smuts said highlighted the principle of the harmonistion of legislation.  PAIA had to be kept in mind during the deliberations of the Committee.

The Chairperson said that the Committee would have to debate the matter at some stage.

Mr Landers proposed that the clauses that dealt with national interest and commercial interest should be deleted. Chapters 4,5,6,7 and 8 should be reviewed or amended. Those details, which were not amended that, related to classification, declassification and review of information should be moved to regulations. This was because the chapters at the moment made for heavy reading.

Mr Swart said that the ACDP supported the proposed amendments. 

Dr Oriani-Ambrosini said that the idea of regulations might have unintended consequences. He was against the idea as regulations were often of a lesser quality than the laws of Parliament and also tended to be longer. He was not in support of this proposal but the IFP supported the idea of the deletion of the clauses that dealt with national interest and commercial interest. He would like to propose that there should be a judicial review of every single piece of classified information. A judicial officer could hold the deliberations in camera. There should be guidelines for the classifying of information. The test for classification should be that classification would happen if there was clear and present danger. There was a need for periodic reviews of classified information. There had to be an 'erroneous classification' defence in the Bill. The sentences for wrongful classification should be increased. There also had to be a public interest override.

Ms Smuts agreed that the national interest and commercial interest clause should be deleted. The proposal for Chapters 4,5,6,7 and 8 should be in writing and she shared the same view as Dr Oriani-Ambrosini on this matter. The Committee must decide on the law rather than leaving it up to Ministries and Departments after the fact.

The Chairperson commented that the removal of commercial interest and national interest would have consequences in the Bill as they were mentioned throughout. The Chapters that Mr Landers was referring to were the same Chapters that Ms Smuts felt should be removed in the Bill so there was consensus there.

Ms Smuts agreed but said that there was a big difference between removing the Chapters altogether and leaving them as regulations at the end of the Bill. 

Mr Landers interrupted and said that it was his intention to say that the regulations should be placed before Parliament for approval.

Ms Smuts said that the proposal was surely not to remove Chapter 6, as this was the entire gist of the Bill. 

Ms Mentor seconded the notion that the regulations should be tabled before Parliament before the enactment of the Bill but the Committee should specify the time frame within which the regulations should be tabled.

Mr Swart supported the idea of the clauses going into the regulations provided that they were tabled before Parliament for approval.

Mr Landers clarified his position as being that the proposed Chapters to be deleted and included in the regulations were Chapters 4, 5, 7 and 8.

Dr Oriani-Ambrosini changed his position on commercial interest and said that it should not be deleted as it might have some value for the protection of genuine commercial information.

Ms Smuts felt that the Committee was not dealing with the substance of the Bill such as the application of the Bill; this should be the starting point.

The Chairperson responded that there would be plenty of opportunities for debate around the substance of the Bill. 

Mr Landers continued with his proposals. The two-part test for classification was that classification ought to be done if there was a clear justifiable and legitimate need to justify.  Secondly there should be a demonstrable need to protect information once it was classified. Those who wrongfully classified information should receive harsh penalties for doing so. Chapter 2 should be reviewed and it should focus on the protection of valuable information against loss, alteration and destruction. The definition of 'national security' ought to be reviewed so that it was clear, narrowly focused and addressed legitimate national security interest that could justify the limitation of rights to access and freedom of expression.  There would have to be a redraft of 'national security'. Clause 38 should be strengthened so that it was in line with the Protected Disclosures Act should there be a need.

Ms Mentor referred to Chapter 4, 5, 7 and 8. These chapters had a lot of information but the Committee should be careful in that there might be clauses, which were not appropriate for the regulations but appropriate for purpose of the Bill.  Chapter 8 for example dealt with the transfer of information to the National Archives and if this was removed then this whole aspect of the Bill would be lost. Instead of deleting the chapters, she would urge that the Committee retain the essence of what each individual chapter was all about. She would like to formally propose a public interest defence under clauses 42 and 43.

Mr Swart requested the submissions from the ANC to be in writing so that one could get specific wording on paper.  If national interest was to be deleted then something else had to be inserted in its place. The new definition would have to be narrow. With regards to clauses 42 and 43, he would like to formally propose a public interest defence. It should not be an offence to have information that was already in the public domain. The mechanism for assisting the Minister with appeals should be an independent oversight body under clause 25.

Ms Smuts commented that the sooner Committee Members tabled written amendments the better. In response to the submissions from the ANC, she would like to state that the original definition of 'national interest' in the 2008 Bill would suffice for purposes of the 2010 version. The DA disagreed with the appeal body being in the form of the Minister of State Security. The independent appeal mechanism should be in the form of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) judge. The RICA judge would be designated by the Minister of Justice under the Regulation of the Interception of Communications Act.

Ms Mentor requested that Ms Smuts present the submission of the DA as opposed to responding to the proposals from the ANC.

Ms Smuts said that clause 3(1)(a) which rendered the Bill applicable to all organs of state should be amended. The proposed amendment was, 'This Act shall apply to government departments charged with intelligence or divisions of departments dealing with intelligence and security related thereto including foreign affairs.' The DA believed that the Bill should deal with intelligence services and sources. There was already intelligence for the military, which was subject to PAIA, and the police also had their own crime intelligence. Therefore the Bill should only deal with intelligence agencies. The classification levels under Chapter 6 should fall under three categories. The classification levels should be (a) sensitive information: 'the unlawful disclosure of which should reasonably be expected to cause demonstrable harm to the national security or reasonably be expected to prejudice the Republic and its international relations.' There should be a probability/certainty of harm expected when classification was being undertaken.  She personally preferred 'likely' but one could also put  'demonstrable harm'. The proposal for the next classification level was (b) secret information: 'Sensitive information, the disclosure of which was likely or reasonably expected to cause serious and demonstrable harm to national security or the probability of jeopardising international relations. The last classification level was (c) top secret: 'Sensitive information could reasonably be expected or likely to cause exceptionally serious or grave or irreparable harm to the national security or could reasonably be expected to cause other states to sever diplomatic relations with the Republic.'

Ms Smuts continued that there should be a wholesale review of classified information before the Bill was enacted. It was known that in the last six years, information had been classified in an arbitrary and unregulated scale. Clauses 23 and 28 provided for an application for the review of classified information. However this was contradictory to Section 32 of the Constitution, which held that anybody had the right of access to information from the state. The Constitution did not make it mandatory to justify the request for information as clause 23 did. Section 46 of PAIA had a narrow public interest override. Clause 23 should be for the purpose of requesting a review of classified information. In section 46 of PAIA the public interest override outweighed the need for secrecy, therefore she did not see a reason why clause 23 should not have a public interest override.  This was for the purposes of accessing information in addition to an appeal opportunity to the RICA judge. There had to be a public interest defence written into the Bill. The way in which intelligence had been conducted and abused in this country made it necessary to have a public interest defence. She was sure they had all read Reverend Frank Chikane's piece on Monday where he described how intelligence operatives had been freely sharing information with comrades who were not authorised officials and for whom the laws of secrecy applied only to people outside the ruling party. He made the point that corrupt intelligence services were the most dangerous threat to the security and integrity of the state. There had to be a public interest defence and public domain defence. The revelation from Reverend Chikane threw into sharp relief some of the offences, in particular clauses 43 and 38. The clauses had to be looked at differently, firstly there had to be a public interest override for journalists. Secondly there should be aggravating sentences for operatives who went around disclosing information. Her party was opposed to minimum sentences.

The Chairperson referred to the newspaper articles by Reverend Chikane and said that Ms Smuts was raising matters at the meeting as if they were facts. The Committee should be warned that when they dealt with newspaper reports it was a source of information as opposed to facts on which decisions could based. If one knew the intelligence services, then they would be aware that certain processes should be followed before certain information could be followed. If the processes had been followed then the concerns would have been addressed in the proper manner.

Dr Oriani-Ambrosini said that whether or not what Reverend Chikane said was factual did not matter as the Committee had to legislate for it.  It was a concern that the knowledge of the work of the Committee would be lost as this was an Ad Hoc Committee and not a long-standing body. Where were the regulations to be tabled in Parliament? The norm was that the parliamentary review of regulations was cursory and there were no public hearings, this was discomforting. The need to classify information cut across organs of state. The Committee had to focus on the guarantees and the criteria forwarded by the ANC for classification was commendable. He would be comfortable with throwing the criteria for classifying information in the regulations. There were real sources of commercial information that had to be classified and deleting commercial interest was not ideal.  There had to be an independent review mechanism in clause 23 as well as the possibility of a court challenge on the classified information. At the end of the day only a judge should deal with rights. If there was a limitation on a right, then one could not escape judicial review. Generally reviews just did not happen. He preferred a situation where the classification lapsed after 10 years. A public domain override should be inserted in the Bill.

Ms Mentor agreed with Ms Smuts that 'national interest' should be replaced. She also agreed with the proposal from Dr Oriani-Ambrosini that commercial interest should be retained. She agreed with Dr Oriani-Ambrosini that once the Committee ceased to exist who would do the review and body work of the content that would go into the regulations? There should be a designated body to which the body of work would be transferred and there should also be a time frame attached, the Joint Standing Committee on Intelligence (JSCI) could be that body. She agreed that classification cut across all organs of state. It should not be said that the defence force and police should classify in accordance with their own laws and therefore only intelligence services should be targeted in the Bill. Once the level of classification was determined, the lapsing period should also be specified accordingly. The same should be done for sentences. If the level of classification was low, then the sentence need not be harsh. The Committee should put in some form of transitional arrangements for the review of information, as she was not sure about the whole scale review proposal from Ms Smuts.

Ms Mentor thought that Reverend Chikane was in breach of the law as he had chaired the Forum for Directors General and she did not think the two-year lapse period after exiting civil service had expired. As much as he was a reverend she was not of the opinion that everything he had said was the truth. She was saying this on the basis that she sat on the JSCI and she could say for sure that most of the things he said in the newspaper articles were untrue. He would have also been in breach of his duties if as the Director General in the Presidency, he was aware or witnessed any improper conduct and did nothing about it. She would also seek legal opinion on somebody who as a state official was privileged to secret information, exited public service and then divulged the information to which he was privy in public. He was in dereliction of his duties and he had told untruths.

The Chairperson intervened and said that the danger with newspaper reports was that one did not know if they were accurate or were indeed what the person had said. He knew for a fact that he was often misquoted in newspapers. He did not want the Members to debate newspaper articles as if they were facts.

Ms Smuts proposed that Reverend Chikane should come before the Committee and address it as he had just been defamed and branded a liar and a person who had been in dereliction of his duties. What appeared in the articles was from his own pen and it was just a question of sub-editing.  She deplored the things that Ms Mentor had said about him.

Dr Oriani-Ambrosini though that this was a good idea.

The Chairperson said that he did not want this debate to get out of hand.

Mr N Fihla (ANC) said that there were a number of countries that had minimum sentences for acts committed against the state. The minimum sentences in the Bill were deterrents and would apply to the serious nature of the crime.

The Chairperson asked if Ms Mentor would consider withdrawing some of the things said about Reverend Chikane.

Ms Mentor maintained that the things written in the article were not all accurate and it was improper for a former state official to publicly divulge classified state information that he was privy to by virtue of his former position. She proposed that Parliament should generally look into this matter of former state officials who divulged classified state information that they were privy to as a result of the position they previously held. She would not withdraw the comment that he was in dereliction of his duties.

The Chairperson said that it was labelling Reverend Chikane a liar that was concerning.

Ms Mentor said that if it was wrong to call Reverend Chikane a liar. Then she withdrew the statement, saying therefore there would be no need to have him appear before the Committee. There were a lot of inaccuracies in the articles written by Reverend Chicane. 

Mr Landers requested that the drafters should look into the consequential amendments particularly in the definitions clause. He agreed that the national security interest definition in the 2008 version of the Bill required closer scrutiny. He agreed with Ms Smut's proposal on information that was already in the public domain. They would have to interrogate and examine whether there might be a need to classify some commercial information but not to the extent that was previously found in the Bill. He was extremely uncomfortable that a head of an organ of state could delegate his classification authority to just about any subordinate. There had been a proposal that the authority should be restricted to Deputy Directors General (DDG). They would have to interrogate and examine this further.

Mr Landers said that the Honourable Johnny De Lange had made the point that PAIA dealt with access to information but the Bill dealt with classification of information, there was a world of difference between the two. PAIA also made the point that there was mandatory protection of certain categories of information. They had never heard Ms Smuts saying this about PAIA. People were saying that there was PAIA and all information had to be made available.

Ms Smuts protested that she never said what Mr Landers had just asserted.

Mr Landers responded that that was precisely the point, that was why he was saying it.

The Chairperson intervened and said that Mr Landers had the floor.

Mr Landers said that there were things which Ms Smuts should have said which he was now going to say. There were mandatory protection provisions in PAIA that the Committee had to be aware of and some dealt with national security. They needed to be aware that PAIA said there was some information, which would not be made available but did not preclude those requesting information, from approaching a court.

Dr Oriani-Ambrosini said that the Committee might consider providing empowering provisions for the review body which would hold hearings in camera. There was no correlation between classification levels and time frames.

Ms Mentor said that she would like to address the Committee at a later stage regarding clauses 42 and 43. The degree of harm should correlate with the sentence imposed. There was room for automatic lapsing if carefully considered. The period of lapsing of classification should correlate with the duration of classification.

Ms Smuts again insisted that the Committee should consider deliberations on a clause-by-clause basis. It would be interesting to hear Ms Mentor's proposals on clauses 42 and 43 especially the 'Frank Chikane clause'. She fundamentally disagreed with most of the things said by Dr Oriani-Ambrosini. The courts should not be allowed to hold hearings in camera, absolutely not. In the Masetla judgment Justice Dikgang Moseneke had laid out how classified information would be dealt with. Appeals for access to classified information should in no way be held in camera. She was opposed to minimum sentences in any form or context. That discretion should not be taken away from the judges, it was a mistake. They should be on the same page regarding Chapter 4 of PAIA. There was no need for commercial information in the Bill and she did not know why Dr Oriani-Ambrosini was re-introducing it, as it was a recipe for corruption. There were no mandatory provisions in the entire category of the section referred to by Mr Landers of PAIA; the discretion lay with the Information Officer.

The Chairperson said that Ms Smuts and Mr Landers had raised the issue of the provisions in PAIA and this was something that the Committee would have to consider more closely.  He did not agree with Ms Smuts views on PAIA with regards to the role/power of the Information Officer. However what could be noted was that PAIA did not provide for disclosure if information that had originally been denied was obtained via other means. The Bill was trying to address this type of situation. PAIA did not provide for information obtained via illegitimate processes, which had originally been refused by the Information Officer under PAIA itself.

Dr Oriani-Ambrosini said that he would like to have a reference made to PAIA in the Bill.

Ms Smuts suggested that clause 23 should be re-written so that it was comparable to Section 46 of PAIA.

Ms Mentor suggested that the state law advisors should summarise all the issues discussed by the Committee and put it down in appropriate drafting. They should also consider if reference to the Protected Disclosures Act could not be made in clause 38. This was because clause 38 had the potential of infringing upon the intended objective of the Protected Disclosures Act especially insofar as whistle blowing was concerned. 

The Chairperson said that the Committee could not legislate without having PAIA in front of it all the time. The Committee had covered enough ground for the day. As Ms Mentor suggested, the state law advisors would do the appropriate re-drafting of all the options, proposals and issues raised by the Committee summarise them and then present when they next met.

 

Members present: Mr Landers (ANC); Ms Mentor (ANC); Mr Fihla (ANC); Ms van Wyk (ANC); Ms Smuts (DA); Mr Coetzee (DA); Mr Swart (ACDP); Dr Oriani-Ambrosini (IFP).

Meeting Adjourned.