Protection of Information Bill: input on latest version and ANC proposed amendments

Meeting report

Protection of Information Bill: further deliberations
The Chairperson tabled the latest draft of the Protection of Information Bill, and noted that this was the first amendment being tabled, which would be referred to as PI 2, and the original Bill would be numbered PI 1.

Mr L Landers (ANC) noted that he had drafted a summary of the amendments proposed by the ANC, and asked that it be distributed. He noted that Ms D Smuts (DA) had another document, but that the new document he was now handing was the “official” statement.

Mr S Swart (ACDP) noted that he too had handed in a provisional set of amendments.

Dr M Oriani-Ambrosini (IFP) also noted that he had done the same. Although his document encapsulated what he had spoken to on the previous day, it was not a complete document, and would be supplemented.

The Chairperson said that there had been some problems in e-mailing the documents required, so there should not be any problem with that document being completed by the following day.

Mr Landers suggested that the submissions should also be numbered.

The Chairperson suggested that the numbering be assigned once the completed or supplemented documents were submitted.

Ms M Mentor (ANC) asked that the completed documents should be e-mailed to other Members.

Dr Oriani-Ambrosini added that a summary of the proposals should be drawn.

The Chairperson asked that the amended and revised documents from the parties should be e-mailed to the Committee Secretary, and that the Committee would consider whether it was necessary to compile a summary once all final submissions were received.

The Chairperson said that on the previous day the drafters had been instructed to remove from the Bill the words “national interest” and “commercial information”. He asked the drafters to indicate what they had done.

Ms Xoliswa Mdludlu, Principal State Law Advisor, Office of the Chief State Law Advisor, said that her instructions were to remove Clause 11, dealing with national interest, and Clause 12, dealing with commercial information, from the Bill, and to deal with consequential amendments. This had been done. She then took Members through the amendments on the document PI 2.

The first amendment was on page 5 (but was not underlined), where the references to “commercial information” had been deleted. The definition for “commercial information” had been deleted from page 9, under the definitions clause.

The words “or to further the national interest” had been deleted from the definition of “intelligence”, on page 11.

Under the definition for “foreign intelligence”, on page 12, the words “national interest” had been replaced with “national security”.

Under the definition of “national intelligence structure”, on page 13, the words “national interest of the Republic has the meaning assigned to it in Section 11” had been removed, since Clause 11 was also deleted.

The first part of the definition for “national security” had been deleted.

On page 14, under the definition for “sensitive information”, the words “national interest” had been replaced with “national security”

On page 16, in the clause dealing with the objects of the Act, the same amendment had been made. 

On page 22, Clauses 11 and 12.had been deleted entirely.

On page 24, the reference to “commercial information” had been deleted. On page 25, in Clause 15 (1)(a) the words “national interest had been deleted but not replaced. Sub-clause (b) had been deleted. Clause 15(2) also contained deletions of “national interest” and sub-paragraph (b) was also deleted.

In Clause 13(3) “national interest” had been replaced with “national security” and paragraph (b) had been deleted.

She explained that at this stage the numbering of clauses had not been changed, as this would be brought in line once the Bill was closer to finality.

On page 26, under Clause 17(1)(a), “national interest” had been replaced with “national security”. The same applied to Clause 17(1)(d). However, in Clause 17(1)(j) “the national interest” was deleted but not replaced.

On page 28, the references to “national interest” had also been deleted from Clause 20(a).

On page 29, in Clause 21(1), the words “national interest” had been replaced with “national security”. Subclause 21(2)(a) had a similar amendment. There was a consequential amendment to Clause 21(3), by the deletion of the reference to Section 11.

On page 41, the references to “national interest” and the references to Section 11 had been deleted, and there were consequential numbering amendments.

On page 42, in Clauses 46(9)(a) and (10), the words “national interest” had been replaced with “national security”.

On page 39, the reference to Section 11 was removed from Clause 38.

On page 44, Clause 48(1)(f) was deleted, as it had referred to commercial information.

Ms Mentor (ANC) said that these amendments were mostly in accordance with what was suggested on the previous day. However, she wanted to check whether the Committee wanted to review or delete Chapter 5 altogether. She also noted that in respect of Clause 38, she had asked the drafters to check the possibility of referring to the Protected Disclosures Act.

The Chairperson said the instruction from the Committee was to delete Clauses 11 and 12 from Chapter 5. He agreed that there was still a heading for Chapter 5. He asked if there was any significance in this

Ms Mdludlu said that it could be deleted if the Committee wished. She had left in the heading for Chapter 5, as her instructions were to delete clauses, not chapters.

Mr Landers agreed that the Committee might want to put something in to replace what had been deleted. The Committee had not given an instruction to the drafters to delete the heading as well.

Mr Swart agreed. This was a structural issue. He suggested that the heading could be deleted but that other matters might be moved.

Ms Smuts agreed that Ms Mentor did ask for inclusion of the reference to the Protected Disclosures Act. She suggested that perhaps this point could be considered again later.

Ms Mentor thought that the Committee would need to consider again the consequences of deleting all the references to “national interest”. She wondered if there was any experience on this internationally.

The Chairperson noted that the public hearings had emphasised that the definition of “national interest” in the original Bill was far too wide, as it could refer to just about anything. It should be reduced to something far narrower. The Minister had also conceded that perhaps using the term “national security” was more manageable and would better serve this type of legislation. Members should consider, as they discussed the Bill further, whether there was any place where it would be apposite to refer to the “national interest”.

The Chairperson thought that the Committee had covered considerable ground. The public hearings had served a very important function, and the concessions already made in regard to “national interest” proved that Parliament and the Minister were taking the motivations seriously.

The Chairperson asked Members to check whether there were any areas of commonality across the three submissions circulated. He asked Members whether they wished to proceed to discuss the drafts, or wait for the final comment.

Dr Oriani-Ambrosini commented that more work was still required on them. He thought that the Committee should underscore its successes to date.

Ms Smuts asked whether Mr Landers could address the Committee on the ANC proposals. The opposition parties had outlined their views at a previous meeting.

The Chairperson thought the document spoke for itself. He noted that the comments on Clauses 11 and 12 had been superceded by the new draft.

Mr Swart said that there seemed to be fairly close consensus between Members on what “national security” would be defined.

ANC proposals
Mr Landers agreed that he would not deal with the comments on Clauses 11 and 12. He outlined the proposal that the short title should be amended to “the Protection of State Information Bill”, to differentiate between this Bill and the bill being considered by the Portfolio Committee on Justice and Constitutional Development. The Memorandum of Objectives was outlined. He agreed that the definition of “national security “ should be clear and crisp, and narrowly focused, to address legitimate national security issues that could justify the limitation of rights of access to information and freedom of expression. His proposed definition dealt with the use of force, and capacity of the Republic to respond to that use of threat of force, and noted the actions that threatened national security would be hostile acts of foreign intervention, terrorism, espionage, information peddling, sabotage and violence, whether directed from or committed within the Republic, and including the carrying out of the Republic’s responsibilities to any foreign country and international organisations.

Ms Smuts said that this was similar to the definitions put up by the ACDP and the DA. She asked whether the ANC was willing to take out the reference to “information peddling”, and said that she was not sure how it should be “legally” defined.

Mr Landers explained that his experience on the Joint Standing Committee on Intelligence, had shown that information peddling caused enormous difficulty, in fields beyond the narrow intelligence sector, affecting senior public representatives, and causing much difficulty to the Department of International Relations and Cooperation. Despite the fact that some might dismiss this as a minor matter, it was most serious, and he was adamant that it should be retained in the definition.

Ms Smuts wondered if “the furnishing of false information” might cover this, as she thought that “information peddling” was perhaps not the correct definition to use.

Mr Mentor thought that peddling information was the deliberate propagation of false information. She suggested that the Committee was becoming too bogged down in semantics at this stage, and asked Ms Smuts to put forward an alternative proposal if she wished.

Dr Oriani-Ambrosini said that the legalities must be considered, and that these definitions did present some difficulties and challenges. He cautioned against having a definition that allowed “national security” to cover anything. He gave an example that because the definition of ‘terrorism” included any action that breached the law and threatened life, so it could be argued that reckless driving or domestic violence fell within that definition, which was clearly not what the drafters intended. He thought that information peddling could cover malicious gossiping right through to overt selling of false information. He thought that the Committee should err on the side of caution, and perhaps leave out some matters, rather than having overly broad definitions that would hinder the free circulation of information.

The Chairperson said that the reference to information peddling appeared in the Bill as originally drafted. This phenomenon had surfaced in the intelligence sector, and the Joint Standing Committee on Intelligence had requested the Minister to give a presentation on it to the Committee, although some of the Members now serving on this Committee were not included on the Committee at that time. The Minister had provided some very strong examples of the kinds of disturbances caused, which escalated to crises. It might be useful to have a repeat of the briefing to bring all Members up to speed. He assured Ms Smuts that information peddling was a reality, and the term “information peddlers” was the usual term used in the sector. He pointed out that the Browse Mole Report had huge consequences, and had caused South Africa’s position in the Southern African Development Community (SADC) to suffer great prejudice. This was definitely an issue of great concern to national security.

Ms Smuts suggested that then perhaps a definition should be written to clarify the issues. At the moment, she was not in total agreement with Mr Landers’ proposal, but was willing to look at this in conjunction with a proposed definition.

Mr Landers suggested that something along the lines of “propagating false information with the intention to cause serious damage or harm” might be used. However, he would think about it and provide a concrete proposal.

Mr Landers noted that his suggestion that Chapters 2 and 3 be deleted, and that, where relevant, contents of the former Chapter 3 should form part of the regulations had already been dealt with.

Mr Landers believed that there should be a provision to cater for information that needed to be safeguarded on the basis of national security. He suggested that this should include the protection of legitimate national intelligence structure sources, legitimate operational methods, doctrine, facilities and personnel of security structures, sensitive confidences in international relations, ongoing investigations of State security structures, details of criminal investigations and legitimate police and law enforcement methods, economic scientific or technological secrets vital to the Republic’s stability, security, integrity and development.

Mr Landers suggested that Chapters 6, 7, 8, 9, 10, 11, 12 and 13 must be reviewed and amended.

He noted that Clause 16 authorised the head of an organ of State to classify information. However, the ANC was concerned about the apparent ease of delegation. The ANC suggested that the delegation should be limited to a person no lower than Deputy Director General level.

Clause 22 provided for regular reviews of classified information. This should be subject to the criteria for continued classification, and the Bill must ensure clarity.

Clause 25 provided for an appeal procedure where a request for a review was denied. Any person involved in the original classification should not be part of that procedure and that the Minister should establish mechanisms for this.

Mr Landers then noted the suggestion that this Bill should be clearly aligned with the Protected Disclosures Act, and the Companies Act. The current form of Clause 38 was inadequate and should be strengthened.

Clause 42 provided for penalties, but provided for the sentence of three years for certain offences. This was inadequate, especially when measured against penalties prescribed by Clause 43. He proposed that Clause 42 also should be amended to reflect this more even approach. 

The classification process in Chapter 6 should be subjected to a two-part test, which should be set out as a means for the determination of sensitive information, followed by the determination of the classification level already provided for in the Bill

Mr Landers noted that where the replacement of the words “national security” for “national interest” had been made, the Committee may need to look again at the context, which would be done during the clause-by-clause deliberations.

Discussion
Ms Smuts referred to paragraph 6, which indicated the type of information that should be subject to classification, and asked if this was the same list that the Minister supported. She suggested that if this referred to “security” issues, then the application clause should be drafted to comply with this. She had provided a possible draft, in which she suggested that the “security” aspects should apply to government departments dealing with intelligence, or divisions dealing with security. If there was general agreement that only those concerns around security and intelligence had to be dealt with, then the Committee could work on the application clause, and address sources, documentation methods and international relations areas.

Ms Smuts noted that she had some difficulties with the provisions to be safeguarded, in particular the suggestions around criminal investigations and economic, scientific or technical secrets.

The Chairperson did not think that it necessary followed that this was limited to the intelligence community and the Bill should be reduced to that extent.

Mr Landers said that he agreed with the Chairperson. The ANC’s proposals were derived directly from the Johannesburg Principles and sought to meet their requirements.

Dr Oriani-Ambrosini also had a number of questions. He wondered if it might not be more advantageous to engage on these after all the proposals had been put forward.

Ms Mentor agreed, since it would be easier for Members to get a holistic view after having sight of all the representations, and engage on certain aspects simultaneously. 

Mr Landers said he would have no objection either to addressing the points raised now, or waiting to deal with them later. However, he commented that it was possible to have international agreements and confidences not restricted to the national level, and State organs also entered into such agreements, which created binding obligations on the country, which might contain clauses on confidentiality. Economic espionage applied not only in the private sector, but also targeted government entities, and it was a serious problem. He added that some years ago a proposal had been made by Mr Richard Calland that all Cabinet meetings should be open. He was not sure whether that had been a serious suggestion. He emphasised that there were certainly times and places where the government must be able to restrict the publication of information, and this proposal sought to address those.

The Chairperson thought that there would be merit in discussing the ANC proposals further, firstly because Mr Landers was amenable to this, and secondly because this followed the process started on the previous day.

Mr B Fihla (ANC) agreed with Ms Mentor that all inputs should be placed before Members first, to isolate common areas, and those where there was disagreement.

The Chairperson said that any inconsistencies would be isolated during the debate. The Committee had, however, reached a good stage to adjourn.

The Chairperson noted that there seemed to be some concerns about the alignment between this Bill and the Protected Disclosures Act and the Companies Act. He asked the drafters to look at that issue and make some proposals to the Committee at its next meeting.

The meeting was adjourned.

Members present: Ms M Mentor (ANC), Mr L Landers (ANC), Mr B Fihla (ANC), Ms A van Wyk (ANC), Mr S Swart (ACDP), Ms D Smuts (DA), Mr T Coetzee (DA), Dr M Oriani-Ambrosini (IFP)
Apologies: Ms M Mgabadeli and Ms T Sunduza