Chapter 8 provided for review and appeal procedures for classified information. The purpose of this chapter was to facilitate the manner in which classified information could be obtained or to provide the requester with alternative processes to obtain information via PAIA. A requester could obtain the information via PAIA or the Bill. Clause 24 held that the request for the declassification of information must be submitted to the head of an organ of state by a non-governmental party or person and this must be done for research purposes or a legitimate public interest. Organs of state must comply with the standards and procedures set out in the Bill. Clause 28 was collapsed for this purpose and was now clause 27. It provided for the information to be obtained via PAIA. Clause 27(3) held that the head of an organ of state must consider the classification of a record and must declassify information if the information required mandatory disclosure according to Section 46 of PAIA. Clause 27(4) provided for an appeal if the information was refused and not declassified. Clause 27(5) provided that a requester could appeal a refusal for declassification within 60 days. Clause 27(6) allowed a requestor to lodge an appeal in court within 180 days if they were still refused the information.
The Committee noted that clause 27 was taken word for word from Section 46 of the Promotion of Access to Information Act. This was deemed unnecessary as a mere reference to the section would suffice. The opposition requested the ANC consider making a decision on what had to be classified and proceed from there (since the Committee was unanimous in its view that there was information that had to be classified). Limiting the powers of classification to a level “not lower than a Deputy Director General” was a problem as many organs of state, such as universities and Telkom, did not have such a designated incumbent. The Committee debated at length where an Information Officer would fit in the Bill, as this was a position that was mentioned in the Promotion of Access to Information Act. The Democratic Alliance again made the point that it was unconstitutional to limit the kind of person who could request information as well as the grounds for the request. The point was raised in Chapter 8, that clause 24(1) excluded Members of Parliament - they could not request that information be declassified.
The Chairperson recapped from the last meeting that the state law advisors had been given specific tasks. They had to consider the Bill in its current form and how it could be synchronised with the Promotion of Access to Information Act (PAIA). Towards the end of that meeting, he had made a second request that the state law advisors consider drafting a provision where there would be one process for the accessing of information via PAIA alone. This would then mean that the Bill would not have provisions for requests for information; all requests for information would be done through PAIA.
Mr S Swart (ACDP) commented that his understanding was that the Committee would be dealing with PAIA as an access to information tool. The Committee would not consider information that is not accessible in terms of PAIA, to be classified by the Bill.
The Chairperson said that the understanding was that the Bill would be used to classify information. But if there were a challenge to the classified information, this would be done through PAIA. Currently the Committee was considering the issue of harmonizing the Bill with PAIA. This was what the state law advisors had to consider.
Mr Swart said that it was clear to him that information was accessed via PAIA.
The Chairperson said that the aim of this exercise was to protect information, classify the secrets and create penalties for those who did not comply. This was how the Bill should look at the end of the day.
Presentation: Draft Proposal for Chapter 8: Review and Appeal Proceedings
Ms Ayesha Johaar, Acting Chief State Law Advisor, said that the document before them was a consideration of all the provisions in the Bill that dealt with appeals and reviews in one chapter. The wording was carefully considered to determine whether it achieved the objectives of the Bill and what the Committee wanted. Clause 28 was considered for the purposes of harmonisation with PAIA. The time frames for the application to receive information remain unchanged and were in accordance with those specified in PAIA. It appeared that there was some confusion surrounding clauses 7 (National standards and procedures) and 8 (Departmental policies and procedures) as they had different time frames: 12 months and 18 months respectively.
Ms Carin Booyse, Deputy Chief State Law Advisor, said Chapter 8 prescribed the manner in which classified information could be obtained. The Bill provided for review and appeal procedures for the classified information. The purpose of this chapter was to facilitate the manner in which classified information could be obtained or to provide the requester with alternative processes to obtain information via PAIA. A requester could obtain the information via PAIA or the Bill. She noted in clause 23 that at least once every 10 years the head of an organ of state must review the classified status of all classified information in the possession of that organ of state. There was a provision in the Bill that the head of an organ of state could review the classified state of information at any time. The status of classified information must be reviewed when there was a renewed proposal to use the information in a public forum such as a court or tribunal proceedings. When conducting a review, the head of an organ of state must apply the criteria for the continued classification of information as stated in Chapter 7 (Criteria for continued classification of information).
Organs of state must submit a review to the Minister of State Security. Clause 24 held that the request for the declassification of information must be submitted to the head of an organ of state by a non-governmental party or person and this must be done for research purposes or a legitimate public interest. Organs of state must comply with the standards and procedures set out in the Bill. Clause 28 was collapsed for this purpose and was now clause 27. It provided for the information to be obtained via PAIA. Clause 27(3) held that the head of an organ of state must consider the classification of a record and must declassify information if the information required mandatory disclosure according to Section 46 of PAIA. Clause 27(4) provided for an appeal if the information was refused and not declassified. Clause 27(5) provided that a requester could appeal a refusal for declassification within 60 days. Clause 27(6) allowed a requestor to lodge an appeal in court within 180 days if they were still refused the information.
Clause 8(3) has been aligned with the date on which the Regulations in clause 7(1) would be promulgated in accordance with the Bill.
The Chairperson referred to the new proposed clause 27 which repeated Section 46 of PAIA. Would it not have been better just to refer to the section as opposed to repeating it word for word?
Ms Booyse replied that it was not necessary to repeat it word for word but it was drafted in this way in order to make it easier for the reader.
Mr D Maynier (DA) said that his understanding of the last meeting was that the Committee would look at access which was PAIA and then classification, which would be the Protection of State Information Bill. The objective was that access would be re-routed to PAIA but it seemed like the proposed amendment made this seem fuzzy. The amendment allowed for access via PAIA and the Bill. Could the state law advisors clarify this?
The Chairperson said that the state law advisors were issued with two instructions at the end of the last meeting. One was what they had now presented and the other was that there should be a parallel process where a requester could be allowed to use the Bill to request classified information. The latter in fact was the first instruction and the former was a late request by himself. The Committee still had to receive the second presentation.
Ms Johaar said that the query by Mr Maynier would be addressed in the second presentation. At this stage it was not ready as there were consequential amendments to consider.
Ms D Smuts (DA) said that she did not find any difficulties with the proposed amendment, only merit. The relevant appeal authority should be the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) judge. Would the state law advisors and Chairperson not give some further thought to this and consider the RICA judge as the relevant appeal authority in instances where the information related to classified intelligence information? The Committee should end up making a reference to Section 46 of PAIA and by the end of the Bill it would be dealing only with PAIA Section 41 matters, in other words intelligence. Could the Committee not begin with discussing the things that would be classified as the Committee was wasting a lot of drafting proposal? The ANC’s own proposal coincided with the Canadian Information Security Act and the DA was in agreement that the subject matter of the Bill should be limited to intelligence. Could the drafters not be given an instruction on how to draft the Bill so that the Bill would be limited to intelligence only? Once this was done, the Committee would know what it was dealing with, including having an access avenue like PAIA.
The Chairperson said that it would be incorrect to assume that Section 41 of PAIA referred to intelligence. One might find legal experts that would be of the view that Section 41(1)(a)(ii) of PAIA also incorporated intelligence. It would be incorrect to deal with the Bill and assume what was intended in Section 41 was for intelligence matters to be dealt therein. An understanding of the Bill would be that secrets would be classified. What would one do if the Bill was not adequately protecting the secrets? There was nothing wrong with adopting a general approach as it was safer. But if a specific view was adopted, then the Committee might not be safe because the Committee had to still debate what needed to be protected. It was not ideal to be specific now; the Committee should adopt a general approach that there would be secrets that had to be protected. The work of the state law advisors should not be complicated further. The time to debate what had to be protected would come. Contrary to what has been said, the Bill did not intend to create a hierarchy of secrets.
Ms Smuts said that the DA did not disagree that there would be things that had to be protected. However the category of information was narrow in this regard and it would largely be intelligence.
The Chairperson said that Ms Smuts might be correct that the category of information would largely be intelligence matters but there would be other categories as well such as information held by Home Affairs and who knows what information the “Natal Shark Board” would have to classify. Certainly one would not want a situation where more secrets than were necessary, would be classified or for the power to classify to be abused. Did the Committee approve of the draft amendment or not?
Mr Swart said he did not understand the Draft Proposal document as he was under the impression that the objective was to make all access to information to be under PAIA only. Under what circumstances would there be information that had to be accessed under the Bill?
Ms Johaar replied that the document presented was a picture of what the Bill would look like if two avenues for accessing information were to be provided. The state law advisors were still going to prepare a document where only PAIA would be the access avenue.
Ms Booyse added that access to information would be requested from the Information Officer and in the second draft proposal the state law advisors were considering drafting a definition that said that ‘for the purposes of this Chapter, the Information Officer would be the Information Officer contemplated under PAIA or that the head of an organ of state would be the Information Officer.’
The Chairperson asked if the Information Officer would be the person responsible for classifying information as well; seeing that the Information Officer was defined as the head of an organ of state?
Ms Smuts said that the question by the Chairperson underscored the difficulty in trying to legislate for multiple eventualities whereas if one decided now what to classify, the Committee would know which persons it would refer to. What was the head of an organ of state for all the bodies that had been classifying Minimum Information Security Standards (MISS)? The Natal Sharks Board for instance did not have a head of department or a Deputy Director General (DDG); neither did universities or Law Societies. Telkom and Transnet had their own Chief Executive Officers (CEO) who were not Directors General (DG). One was talking about economic players who had their own economic security rules. If the Committee continued to postpone the discussion on what should be classified, then it would continue to sit and have discussions on what expressions to use and so on.
The Chairperson said that Ms Smuts was also putting questions to the Chairperson. Any organ of state had an information officer and one would imagine that PAIA took particular precautions to ensure that the Information Officer was not just anybody, precisely because they would have serious obligations. PAIA defined who an Information Officer was and it did include persons such as Municipal Managers where there were no DGs or DDGs. PAIA was applicable to organs of state and the Bill would apply to any person who was the equivalent of an Information Officer.
Ms Johaar said that the head of an organ of state was defined as the Information Officers, so the DG or municipal manager was envisaged.
The Chairperson said that in terms of PAIA, each organ of state had an Information Officer. The Committee must not bring RICA in here now, as it was a complicated piece of legislation. The RICA judge was an important person who considered applications from law enforcement agencies dealing with interceptions. The judge would not want to be concerned with such matters, particularly because he was ‘retired’ in terms of RICA. The previous Act did not provide for a retired judge but a judge who was designated for that purpose. It was an actual sitting judge doing ordinary work plus RICA work who was envisaged. It was then discovered that the work was too much and so a retired judge was referred to. The judge dealt with complicated matters and one would not want him to be saddled with what the Chair was sure the judge would consider to be a nuisance. The Bill was not an intelligence Bill it was protecting information. The Natal Sharks Board might one day find itself in a position where it had to classify something.
Mr Swart said that the South African Human Rights Commission (SAHRC) had an issue with the Information Officers on page 10 of their submission, where the powers in terms of PAIA were delegated to Deputy Information Officers. SAHRC suggested that Deputy Information Officers should be given an equivalent security clearance to prevent a situation where if a Deputy Information Officer was tasked with a PAIA request, they would be less inclined to contest or query classification decisions of a higher ranking Information Officer. This issue should be flagged and the Committee should come back to it.
The Chairperson said that if one was going to deal with an Information Officer in the Bill as envisaged in PAIA, then the hierarchy in PAIA would be followed.
Ms Booyse agreed with the Chairperson and added that access to information under PAIA was being sought and one of the options being considered was an Information Office as defined in PAIA for information purposes, and not for purposes of classification.
Ms Smuts referred to clause 23, which was now clause 24 in the Draft Proposal document. It was unconstitutional to limit the kind of person who could request information as well as the grounds upon which they could request information. On what grounds did the state law advisors specify the type of person that could request plus the type of information that could be requested? The DA has proposed a review of all classified information under the MISS because one could not wait for another decade before this was done. If there was no review then all of this information should be declassified.
The Chairperson said that his understanding of clause 24 was that the information could not be obtained because it was legitimately classified but there was a special concession if there was a genuine research purpose or legitimate purpose. Then the information could be obtained but not to be put in newspapers or sold to enemies of the state.
Ms Johaar said that the state law advisors had attempted to refer to non-governmental parties and allow them also to request information. There was a court case which held that where information was requested for research purposes, then that information had to be released.
The Chairperson said that the point he was making was how could there be a question of constitutionality if the information was incorrectly classified in the first place?
Mr Maynier asked if in the new clause 24, a Member of Parliament was able to apply for the declassification of information in the public interest.
Ms Smuts said that the finding in the judgment referred to by the state law advisors was precisely that a request could not be limited to research.
The Chairperson said that Mr Maynier in his question was trying to usurp a power for himself as a Member of Parliament, that was supposed to belong to the public.
Mr Maynier said that the Chairperson had very cleverly attempted to distort his question. What he wanted was for the power to be as broad as possible. The question was: would a Member of Parliament be able to apply for the declassification of information in the public interest?
Ms Booyse referred to clause 24(2) in the Draft Proposal and said the state law advisors had attempted to make it clear that the request for information for research purposes could not be confounded. One of the legitimate interests referred to in the clause was research. A denial of a request for information for research purposes would not automatically be warranted. In the Bill a Member of Parliament would be allowed to request information, as they were not a governmental person per se but in Section 12 of PAIA as an individual Member the request would not be allowed: [12. This Act does not apply to a record of— (c) an individual member of Parliament or of a provincial legislature in that capacity.]
The Chairperson commented that Mr Maynier seemed to be in a corner.
Mr Maynier replied that the state law advisors seemed to be in a corner.
Ms Smuts said that Section 12 of PAIA was not what the state law advisor averred. Section 12 provided that PAIA did not apply to the reports of Cabinet and its Committees as well as to those of individual Members of Parliament or a provincial legislature. Section 12 made provision for Cabinet or an individual MP not divulge information with good reason.
Ms Johaar conceded to the point made by Ms Smuts and said that she had misunderstood the question.
The Chairperson said that he was also confused and asked Mr Maynier to specify what type of information a Member of Parliament would request.
Mr Maynier gave the example of an MP requesting the declassification of information about the cost of presidential flights.
The Chairperson said that Mr Maynier was talking about the request for information now. They were talking about a request for declassification. Surely the two were different?
Mr Maynier said that he wanted to know if an MP in terms of PAIA and the current clause 24 would be allowed to have access to information that was classified, as it seemed that an MP would not be able to have access to information that was classified?
Ms Johaar said that during the drafting the state law advisors did not set out to specifically cover an MP. More time would be needed to address this issue.
Mr S Fihla (ANC) said that he was worried the Committee was going around in circles and that some Members were playing for time. How long would opinions and amendments be continually brought forward? When would the Committee strip the Bill to the bone and make firm decisions. Were the state law advisors keeping track of the various opinions from the parties? How long was the opposition going to keep bringing new opinions. Were they employing delaying tactics? They were also not serious as they kept laughing all the time.
The Chairperson said that at the beginning it had been requested that unnecessary temperatures would not be allowed to rise in the meetings and this was indeed the case. Nobody would be allowed to play for time and there was a genuine understanding that the process would come to an end at some stage. The state law advisors had encountered difficulties completing the tasks given to them. Once the issue of the harmonisation of PAIA and the Bill was concluded, then the process would move faster. The concern by the Member was noted.
Ms Smuts added that she shared some of Mr Fihla’s frustrations and the DA was not employing delaying tactics. It should be remembered that the DA pleaded for the Committee to cut to the chase earlier about what had to be classified, on the basis of the ANC’s own proposal.
The Chairperson adjourned the meeting and said the next meeting of the Committee would be 25 November when the state law advisors would have completed the second task assigned to them during the last meeting.
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