Protection of Information Bill: harmonisation with Promotion of Access to Information Act
Ad Hoc Committee on Protection of State Information Bill (NA)
15 November 2010
Chairperson: Mr C Burgess (ANC)
The Chairperson noted that the House would be asked to extend the life of the Committee, probably to 21 January, although this date would be clarified. The Committee would meet from Tuesday to Friday in the following week.
The Office of the Chief State Law Advisor presented comments on matters that it was asked to research at the last meeting. The first presentation outlined the harmonisation between the Protection of Information Bill (the Bill) and the Promotion of Access to Information Act (PAIA). PAIA provided for mandatory protection of information under Section 33(1)(a). There was also mandatory disclosure of information, even through it may be protected, under Section 46. The provisions for appeals was contained in Section 74(1) and applications to Court could be brought under Section 82. The Bill provided for a review procedure in Clause 24 and an appeal procedure in Clause 25, and that there was also provision for applications to Court. Provisions were made for declassification and release in Clauses 28(1) and (4). Those requesting information were not limited to bringing applications under the Bill, but could apply under PAIA. The provisions of Clause 23 allowed any member of society to make a request for declassification of any classified information, by submitting it to the head of an organ of State. However, this was separate from the request for access to information, if that information had been classified.
The second presentation set out the relevant sections of PAIA, and the relevant clauses in the Bill. The time periods set out in PAIA were intended to assist the requester by allowing sufficient time to lodge an appeal, while recognising that all matters should be expedited as far as possible. Under PAIA there could be a time lapse of 180 days for publicly held information, or up to 120 days for privately held information. The Bill also provided for a delay of up to 180 days. PAIA did not provide for any acceleration in case of an urgent application. However, PAIA did restrict the right to appeal against the internal appeal decision to the requester and third parties, so disclosure could not be delayed or presented by an appeal.
The third presentation outlined the decision of the Constitutional Court in the matter of Brummer v Minister for Social Development and others SA 323 (6) 2009 (CC), which had considered whether the 30 day time period prescribed in Section 78(2) of PAIA was consistent with Sections 32(2) and 34(3) of the Constitution. The Court had discussed whether the time bar of 30 days to lodge an application to the Court limited the rights of access to court and access to information. Although time bars did limit the right to seek judicial redress, the Court pointed out that they served an important purpose in preventing inordinate delays that could be detrimental to the interests of justice, and gave some guidelines on when they might be acceptable. The State Law Advisor noted that the Bill and PAIA must be seen as two separate pieces of legislation, so it was not necessary to prescribe the same time frames for each. The Bill’s time frames did not relate to the right of access to court, but merely for the times within which reasons for refusal must be given, and a time bar for the internal appeal. The State Law Advisor was of the opinion that the time periods in the Bill did not impact on the access to information.
Members questioned what might happen if an official received a request under PAIA for information that could not be withheld in terms of those exclusions, found that it was marked top secret, and how that declassification could then take place. They discussed whether the Bill’s provisions would override those of PAIA, or whether Section 5 of PAIA would take precedence. However, the Chairperson then suggested that a possible solution to the concerns might be to provide that access to anything information in the hands of the State, be it classified, or mandatory, should be sought through PAIA only, and whether all reviews and appeals should also be done through this Act, to create a single hierarchy of access to information. Other Members supported this and asked that the State Law Advisors research this and comment further, noting that it may be necessary to amend PAIA to some extent. This would also address the concerns of the South African Human Rights Commission. Members asked that the provisions of Clause 28 should be tightened, commented that if the Committee could agree on what was to be classified, then it would be in a better position to assess which portions of PAIA needed to be addressed. A suggestion was also made that perhaps Clauses 22 23, 24, 26 and 28 should not be brought together under a separate heading. Members were asked to consider the implications of Section 198 of the Constitution, and also to consider the PAIA reference to “security” as opposed to “national security” under Section 41(1)(a)(ii).
Protection of Information Bill [B6-2010]: Continuation of deliberations
The Chairperson noted that the House was being asked to extend the life of this Committee to 21 January 2010 to complete its work, and the time period for the final report would also be extended to that date.
Mr S Swart (ACDP) asked what would happen if the House did not sit on that date.
Mr L Landers (ANC) thought that the House should have consulted with the Chairperson beforehand.
The Chairperson responded that the lifespans of all three current ad hoc committee had been extended to 21 January, but he would raise this with the House.
The Chairperson asked the State Law Advisors (SLAs) for the results of their research into the harmonisation between the Protection of Information Bill and the Promotion of Access to Information Act (PAIA).
Harmonisation presentation: Section 46 of PAIA
Mr Enver Daniels, Chief State Law Advisor, Office of the Chief State Law Advisor, outlined the provisions of Section 46 of PAIA, which was a fairly complex piece of legislation, and tabled a diagram showing how PAIA and the Bill were linked. He noted that PAIA provided for mandatory protection of information under Section 33(1)(a). There was also mandatory disclosure of information, even though it may be protected, under Section 46. Therefore, there was provision for discretionary access to information. Appeals against decisions could be made in terms of Section 74(1). Applications to Court could be brought under Section 78(1) and Section 82.
The Bill provided for a review procedure (Clause 24) and an appeal procedure (Clause 25). He noted that classification and safeguarding of information under the Bill also allowed for applications to Court. The Bill also made provisions for declassification and release in the Bill, in Clauses 28(1) and (4).
Mr Daniels said that people wanting to obtain classified information would not be limited to bringing applications under the Bill, but could apply under PAIA. PAIA provided for mandatory disclosure, but also for protection. PAIA remained the primary source of access to information The Bill recognised that, by allowing for applications to be brought under PAIA.
Mr Daniels reiterated that mandatory disclosure in the public interest was set out in Section 46 of PAIA. On the one hand, PAIA spoke of mandatory refusal to make information available, and then on the other hand spoke of a limited public interest override of the mandatory protection of information. An information officer would be obliged to grant a request for access to a record only in the instances listed in that section. An information officer must grant a request for access to a record of a public body if the disclosure of that record would reveal evidence of (i) a substantial contravention of, or failure to comply with, the law, or (ii) an imminent and serious public safety or environmental risk, and if the public interest in disclosure clearly outweighed the harm contemplated under the grounds for refusal. However, this was not a blanket or wide-ranging public interest override.
He then outlined that the discretionary disclosure under Section 33(1), which stated that the information officer of a public body may refuse a request for access to a record, unless the provisions of Section 46 applied. The grounds for refusal were set out in Section 33(1)(a). He highlighted the mandatory protection grounds (see presentation, slide 8).
Mr Daniels stated that PAIA also contained appeal provisions, set out in Part 4. Internal appeals could be made to the relevant authority, in terms of Section 74(1), if there has been a refusal of the request for access in terms of Section 22, 26(1) or 29(3). A third party could also lodge an internal appeal against a decision of the officer of a public body to refuse to grant a request for access. In addition, Section 78(1) allowed a requester to apply to court for appropriate relief under Section 82, but only after the internal remedies had been exhausted. This was in line with the general principles of administrative law.
Section 46(1) stated that classified information that was placed before a court may not be disclosed to anyone not authorised to receive it, unless the court ordered full disclosure, with or without conditions. In terms of the amendments proposed. The court would consider the interests of justice, national security and national interest. He mentioned that “national interest” was no longer included in the Bill.
He then set out the provisions of the Bill. A request for review of the classified status of information was set out in Clause 24(1). A request for review must describe the document with sufficient clarity for it to be easily located, and the head of an organ of State who received such request must make a determination and, if refused, provide reasons, within 90 days. This short period was specifically intended to expedite matters and let the requester know of the decision. The appeal procedure was set out in Clause 25. If the head of the organ of State refused a request for declassification then the requester could appeal to the Minister within 30 days, and the Minister must then make a finding and provide reasons in 90 days.
Mr Daniels stressed that Clause 28(1) said that a request for access to a classified record made in terms of PAIA must be dealt with under that Act. If a head of an organ of state was requested for a record that contained classification, that person must consider the classification and may declassify it. If access was granted, the head of the organ of state must declassify the information before releasing it. He added that the right to declassify was also contained in PAIA. If the refusal to grant access was then taken on appeal through PAIA, the relevant appeal authority must also consider the classification and may declassify the document. He noted that a requester of information did not firstly have to go through the Bill, but may elect to use PAIA.
Mr Daniels noted that the provisions of Clause 23, which allowed any member of society to make a request for declassification of any classified information, by submitting it to the head of an organ of State, was separate from the request for access to information, if that information had been classified.
He summarised that PAIA played a very important role in access.
Time frames presentation
Ms Xoliswa Mdludlu, Principal State Law Advisor, Office of the Chief State Law Advisor, tabled a diagram showing the time frames in respect of PAIA and the Bill.
She summarised that for a request in terms of Section 25(1), a time frame of 30 days applied, with a possibility for an extension in terms of Section 26(1), which allowed a further 30 days. If that was refused, then Section 75(1) allowed 30 days for the requester to appeal through the internal appeal procedure. In terns of Section 77 the official thereafter had 30 days to make a decision. After that was communicated, Section 78(2) provided that the requester could take the matter on appeal, within 30 days, to the Court. The Brummer case had considered this particular issue and it would be summarised in a later presentation.
She then tabled the time frames in terms of the Bill. If a request was made under Clause 24(2) that decision must be made in 90 days. If the request was refused, the requester would have 30 days to appeal to the Minister under Clause 25(2). The Minister must make a decision, in terms of Clause 25(3) within 90 days. There was no further time frame stipulated in the Bill, but the requester could then approach the Court, in terms of Section 34 of the Constitution.
Ms Mdludlu stressed that the time periods set out in PAIA were intended to assist the requester by allowing sufficient time to lodge an appeal, but tried to ensure that all matters were expedited as far as possible. She noted that under PAIA there could be a time lapse, therefore, of 180 days for publicly held information, or up to 120 days for privately held information. This was merely the time needed to exhaust the procedures and enter into court litigation. The court litigation would of course involve additional time.
PAIA's procedure did not provide for any acceleration in case of an urgent application. However, PAIA did restrict the right to appeal against the internal appeal decision to the requester and third parties, so disclosure could not be delayed or presented by an appeal.
The Bill also provided for a delay of up to 180 days. If the requester was dissatisfied with the outcome of the appeal to the Minister, the requester had an inherent right to then appeal to the Court.
Opinion on time periods
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, tabled an opinion on the time periods prescribed in PAIA and the Bill. She noted that Ms Mdludlu had summarised these, and she therefore did not present the first few pages of her opinion.
She noted that in the matter of Brummer v Minister for Social Development and others SA 323(6) 2009 (CC) the Constitutional Court had considered whether the 30 day time period prescribed under Section 78(2) of PAIA was consistent with Sections 32(2) and 34(3) of the Constitution. The Court had considered the internal appeals and applications, and noted that there was confusion between the Section 77(5)(c)(i) requirement, and that this and the requirements in Section 78 could not be harmonised. It discussed whether the time bar of 30 days to lodge an application to the Court limited the rights of access to court and access to information, and concluded that although time bars did limit the right to seek judicial redress, they nonetheless served an important purpose because they prevented inordinate delays that could be detrimental to the interests of justice. The Court then provided some guidelines on whether time periods in legislation would pass constitutional muster, and remarked that in essence the provisions must afford “an adequate and fair opportunity” and “sufficient or adequate time between the cause of action coming to the knowledge of the claimant and the time during which the litigation may be launched” and noted that even the power to condone non-compliance was not necessarily decisive. Section 78(2) was deemed to have a dual limitation. The Court reiterated its points about the importance of time bars but considered that Section 78(2) was unconstitutional, but that it would suspend the order of invalidity to allow Parliament to fulfil its constitutional mandate to cure this defect. The Court also said that the interim regime of 180 days would apply. The Court also remarked that it was not possible to overlook the time limits in other statutes which showed what Parliament considered to be an adequate and fair opportunity to institute proceedings against the State.
Ms Booyse pointed out that Parliament could pass legislation on any matter. The Constitution conferred the National Assembly power to pass legislation on any matter. Although the Bill provided that harmonisation with PAIA was one of its objects, the two were separate pieces of legislation, and therefore Parliament may prescribe different time frames in the Bill. Any legislative scheme provided for in the Bill must not infringe a constitutional right. The time frames in the Bill did not relate to the right of access to court, but merely for the times within which reasons for refusal must be given, and a time bar for the internal appeal. In view of the remarks by the Constitutional Court on the purpose of time bars, she was of the opinion that the time periods in the Bill did not impact on the access to information.
Dr M Oriani-Ambrosini (IFP) raised questions on the first presentation. He wanted to revert to the crisp issue that prompted the harmonisation discussions. There were two groups of information, namely one defined under PAIA as information that was not accessible, and one relating to information classified in terms of the Bill. The definitional language for each was different. He believed that the PAIA group was broader. However, he said that it was possible that a piece of information might be classified, yet not be amongst the type of information that could be withheld in terms of PAIA. He questioned if in this case the official would receive a request, find the document labelled “top secret”, but could not withhold it. He had understood the SLAs to say that the classification would stand. However, there was nothing in the Bill that required something to be declassified. If the authority did not wish it to be declassified, then he questioned what would happen. He said that the only legal solution seemed to be that if something was classified in terms of the Bill, and was not capable of being withheld under PAIA, then the Bill would override, in terms of the lex priori legal principle, and the classification would stand. If the Committee wished to be consistent with its stated intention that whatever was given by PAIA must not be removed by this Bill, then this must be corrected.
Mr Daniels responded that Dr Oriani-Ambrosini was proceeding on the assumption that the Bill would override PAIA, if no provision was made in PAIA to declassify. However, Ms Booyse had indicated during a previous presentation that, in spite of the presumption that later legislation took precedence over earlier legislation in the case of conflict, PAIA in fact had a special status, which was captured in Section 5, which stated that PAIA applied to the exclusion of any piece of legislation that prohibited or prevented disclosure by a public body, or that was inconsistent with an object of PAIA. The Bill said that when considering an apparent conflict between this and any other piece of legislation, any court should use the reasonable interpretation of the legislation. The SLAs believed that Section 5 of PAIA would take precedence. It might be necessary to look further at how to refine the Bill to deal with this. However, that had not been the brief to the SLAs for this meeting.
Mr Daniels added that where information was classified, a requester did not first have to use the Bill’s provisions, but could immediately use PAIA and ask for declassification, and to have access. In terms of the Bill, a person could apply in terms of PAIA for declassification. For these reasons he was not sure that the Bill would take precedence over PAIA, but he said that he would look further into this.
Dr Oriani-Ambrosini felt that there was too much approximation, and that there must be certainty on the issues. The first issue was a fundamental constitutional issue, and he asked for an expert opinion on whether a law could insulate itself from further amendments, which was what Section 5 was purporting to do. He did not understand what “special status” meant, stressing that all laws had the same status. If Section 5 was in fact doing what Mr Daniels said, then this was a different situation.
Dr Oriani-Ambrosini agreed that a person could go through PAIA first to apply for the declassification. However, if this was done, and the information officer noted that the document requested was marked “top secret” then the information could still not be given. There was nothing in the Bill saying that a document could be declassified in terms of PAIA. If the Bill said it could be given by PAIA, then it must be declassified. If the wording “may” was used, then he still believed that the Bill would override PAIA. He took note of the assurance that this would be refined, but would still like to get a more objective overview of the Bill.
The Chairperson noted that the Committee was in the midst of the process and assured Members that nothing would be finalised until the Committee was fully satisfied.
Mr Swart thanked the SLAs for their work, and also thanked Dr Oriani-Ambrosini for his input. He differed, however, with Dr Oriani-Ambrosini. He believed that Section 5 of PAIA was binding on future legislation, as it stood, although there was nothing to stop Parliament from amending that section. To that extent he thought that the issue was covered. He suggested that the Committee might wish to get a further opinion on Section 5 of PAIA, but suggested that another option might be to add into the Bill a reference to specific aspects of PAIA, which might be a short way of resolving the issues and removing any uncertainty on legal interpretations. However, he would want Clause 28 of the Bill to be tightened. Most Members were agreed on the binding nature of PAIA, but he would like this to be made very clear in Clause 28.
The Chairperson thought that the Committee did not need to discuss, at this meeting, whether Section 5 of PAIA had any special status. Members had agreed to look past that.
Mr Daniels said that the SLAs did not disagree with Dr Oriani-Ambrosini’s points that he had made at a previous meeting. Mr Daniels agreed that a law could insulate itself only to an extent, and mentioned that even the Constitution contained provisions allowing for its amendment, with the necessary safeguards. Ms Booyse had explained that Parliament had the right to pass any legislation, subject to the Constitution, and the SLAs could consider building in a provision into the Bill that would override Section 5 of PAIA.
Mr Daniels said that he would not repeat the comments that were made at previous meetings in relation to whether Clause 28 should be worded as “may” or “must”. The SLAs were still looking at Clause 28 to address the concerns raised by the IFP and ACDP, and would be able to provide the Committee with their comments in the following week.
Ms D Smuts (DA) appreciated the reference to the Constitution and how it could be amended. She agreed that it would be possible to amend PAIA. However, she pointed out that the mandatory matters in PAIA that must be withheld from disclosure in terms of Section 33 had nothing to do with the subject of this Bill. The ANC had asked for a provision setting out the information that needed to be safeguarded on the basis of national security. If the Committee could agree on what was to be classified, then it would be in a better position to assess which portions of PAIA needed to be addressed. She thought that this might be limited to Section 41, which contained no mandatory items, but only discretionary items.
The Chairperson asked whether the Committee should not be looking at a convenient system where access to anything information in the hands of the State, be it classified, or mandatory, should be sought through PAIA only, and whether all reviews and appeals should also be done through this Act. Ultimately, a requester was left with the option of approaching the court once he had followed the processes through PAIA. If the Bill were to limit itself to deal with classification, and provide for reviews and appeals to be handled through PAIA, this would create a single hierarchy of access to information. This could cover the concerns of Ms Smuts and Dr Oriani-Ambrosini.
Mr Daniels said that the SLAs had considered this, but he noted that he had had a sense that this Committee did not wish to tinker with PAIA at all, and would rather look to refining the Bill to address the concerns. He agreed that it would be ideal to use PAIA. It was certainly possible for the Bill to deal only with things relating to classification, whilst anything related to access should be dealt with through PAIA. The SLAs would make some suggestions on this in the following week. It may be necessary to make some amendments to PAIA.
Ms Smuts noted that the Portfolio Committee dealing with the Protection of Personal Information Bill was also of the view that it may need to make amendments to PAIA.
Mr Swart said that the Chairperson’s suggestion would address the concerns of the South African Human Rights Commission (SAHRC) on the time frames for appeals and review. He noted that these had been set out on page 17 of the SAHRC submission, and were to the effect that the time frames were too lengthy and contrary to public interest, and that the Bill’s provisions were more onerous than those of PAIA, which had since been declared unconstitutional in the Brummer case. These concerns would substantiate the suggestion to use PAIA as the prime access for reviews and appeals.
The Chairperson noted that Ms Smuts had raised queries on Clauses 22, 23, 24 and 26 (and noted that Clause 28 also applied). He asked whether all these clauses should not follow on from each other, under a separate heading for “Review and Appeal Procedures”. He asked that the SLAs also consider that, and set out all the time frames consistently. He thought that there would also be no problem with changing the time periods to harmonise with PAIA. If there was a need to add an additional procedure for classifying information, then it would be possible to draw a nexus between the Bill and PAIA.
Mr Daniels agreed that this may be a useful way to deal with the issues, and the SLAs would report back in the following week.
The Chairperson asked Dr Oriani-Ambrosini if this was likely to conflict with his suggestions in the second document on IFP proposed amendments.
Dr Oriani-Ambrosini said that his preliminary thinking was to agree with the Chairperson, but he would like to consider the suggestions in more detail.
The Chairperson asked that if Dr Oriani-Ambrosini had any concerns, he must raise them with Mr Daniels directly. He commented that he had heard many statements on the status of PAIA, but he did not wish to voice an opinion on that. He asked Members to look at Section 198 of the Constitution, which set out the provisions governing the national security and the public. This made it clear that any provisions must be compliant with the law, including international law, and noted that Section 198(d) placed obligations on Parliament and the executive to ensure national security. There could be no doubt that this Bill had major implications for national security, and this was reflected in the removal of the references to “national interest” and the emphasis on “national security”. The preamble of the Bill needed to contain a reference to this, and he asked Members to ponder what “national security” comprised, since it was up to the legislature to determine the national security issues.
Ms Smuts said that the Committee seemed to be reaching a better understanding of the subject matter of the law, including international law. For the purpose of defining national security she thought that the Johannesburg Principles should be looked at and the International Covenant on Civil and Political Rights (ICCPR), rather than the Declaration of Fundamental Rights and Freedoms, because the former stipulated the rights to access to information and free speech may be limited only when necessary (not when reasonable) for national security. The Johannesburg Principles spoke of physical security, protection from terrorist activity, and other matters.
The Chairperson noted that Ms Smuts had not named all of the issues that would constitute national security.
Mr Swart suggested that it would also be useful for the Committee to think about the PAIA reference to “security”, as set out in Section 41(1)(a)(ii), in its mandatory prohibition on disclosure. This was not listed as “national security” and this may be significant. He did not think the terms were interchangeable, and the Committee may need to be quite specific, particularly if it wanted to harmonise the two pieces of legislation. He pointed out that the provisions of Section 41 were subject to the override.
Mr L Landers (ANC) pointed out that PAIA did not give a definition of security, which was perhaps one of its weaknesses, whereas the Bill did seek to define “national security”.
The Chairperson added that one of the reasons may be that PAIA was intended to cover police issues, which might not be national security related.
The Chairperson noted that the next meeting would be on Tuesday 23 November, at 09:30, in the National Assembly.
The meeting was adjourned.
Present: Mr L Landers (ANC), Mr S Swart (ACDP), Dr M Oriani-Ambrosini (IFP) Ms D Smuts (DA)
Apologies : Ms M Mgabadeli (ANC) , Ms A van Wyk (ANC), Ms A Dlodlo (ANC)
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