Protection of Information Bill [B6-2010]: State Law Advisor opinion on three matters

Meeting report

Protection of Information Bill [B6-2010]
The Chairperson noted apologies from ANC members Ms H Mgabadeli, Mr L Diale, Professor L Ndabandaba, Mr M Sonto, and Ms L Jacobus, and Mr M Nchabaleng. Dr M Oriani-Ambrosini (IFP) had also noted an apology.

He reminded Members that one very important aspect was the need to harmonise the Protection of Information Bill (the Bill) with the Promotion of Access to Information Act (PAIA), and asked the Office of the Chief State Law Advisor (OCSLA) to present the opinion it had prepared.

Chief State Law Advisor’s opinion relating to Promotion of Access to Information Act and Protection of Information Bill
Mr Enver Daniels, Chief State Law Advisor, Office of the Chief State Law Advisor, tabled an opinion on three questions – firstly whether legislation could provide for a dual system of access to information under the Protection of Information Bill (the Bill) and Promotion of Access to Information Act (PAIA), secondly, whether a person responsible for classifying information under the Bill could also properly be the information officer who would consider requests for access to information under PAIA, and thirdly, to which organs of State the Bill would apply.

Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, noted that the Constitutional Court, in the case of Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd and others, had said that interpreters should favour an interpretation of legislation that fell within constitutional bounds. However, limits must be placed on the application of this principle. . It was the duty of a judicial officer to interpret legislation in conformity with the Constitution, if reasonably possible, but the legislature also had a duty to pass legislation that was reasonably clear and precise, and a balance often had to be struck when considering the constitutionality of legislation. In the case of Affordable Medicines Trust and Others v Minister of Health, the doctrine of vagueness was examined and discussed, and it was stated that this was founded on the rule of law which required that laws should be written in a clear and accessible manner. This did not require absolute certainty of laws, but reasonable certainty, and must recognise and not impede the role of government to further legitimate social and economic objectives.  These statements indicated that legislation should be clear and precise enough to enable citizens and officials to understand what was expected of them.

The provisions of PAIA indicated that it was never intended to be the only piece of legislation under which access to information may be granted. Section 5 of PAIA said that PAIA would supersede the provisions of any other piece of legislation that attempted to restrict or prohibit the disclosure of a record of a public or private body, and that was materially inconsistent with PAIA. Section 6 provided that nothing in PAIA would prevent the granting of access to a record of a public body, in terms of legislation referred to in Part 1 of the Schedule of PAIA, or a private body in terms of legislation referred to in Part 2 of the Schedule. Mr Makabeni indicated that the Committee would thus need to take a policy decision whether it wished to provide for a dual system of access, and said that there was nothing constitutionally wrong with granting dual access, although he cautioned that it could result in forum shopping if people sought access first under one Act, then another, which could increase the administrative burden on State officials. There was also the possibility that officials may be confused which legislation applied. If the Committee took that route, the schedule to PAIA must be amended to include the Bill. Alternatively, the Committee could decide to provide for access to information, including information protected by the Bill, to be done through PAIA, whilst the Bill could deal with classification and declassification and information protection only.

Mr Makabeni then turned to the question whether a person classifying information under the Bill could also be the information officer under PAIA who would consider requests for access to information. He tabled the PAIA definition of an “information officer”, which in turn made reference to schedules of the Public Service Act, which listed information officers as heads of national departments, provincial administration or organisational components.  Section 17 of PAIA required every public body to designate as many deputy information officers as necessary to deal effectively with requests for records, and contained provisions about the manner of delegation and control over deputy information officers.

Mr Makabeni noted that in practice, under the Minimum Information Security Standards (MISS) document, the head of a State department, or a person authorised to act on his or her behalf, would prepare, generate, or initially see to the classification of a document, and would be referred to as the “author” of the document. The responsibility for the grading and re-grading of document classifications rested with the author or head of the State department in which the documents originated. He expressed the view that it was a policy decision whether or not the information officer should be the same as the classifying person, and would depend on he circumstances of each case and each organ of State. In some instances the information officer may be designated as the declassifying person, but not necessarily as the classifying person, depending on the security clearance of the person concerned, which would determine whether that person could lawfully have access to the information classified.  OCSLA recommended that the decision on who should declassify should be left to the head of the organ of State, and that the Bill could require that written policies should be created by each department to ensure that the decisions were exercised properly,  and that the information officer should work with the declassifying officer in considering requests for access. However, this sort of detail should not be contained in the legislation. Should an information officer decide to grant access to a record, then that record should be declassified.

Mr Makabeni referred to the case of President of RSA v Mail & Guardian Media, in which the Supreme Court of Appeal (SCA) had made the point that the information officer most often would not have direct knowledge of facts material to justifying secrecy, and would therefore have to rely upon documents and other hearsay sources. Section 3 of the Law of Evidence Amendment Act 45 of 1988 gave the court a wide discretion to admit hearsay evidence and would assist in overcoming any problems in that regard. It was therefore possible for the information officer to obtain facts from another officer, and it would follow that the information officer could be the classifying person if he or she was the author of the document. However, where delegation was made to an information officer who was not the author of the document, then that information officer should not be the classifying authority and this function should remain with the author of the document, for practical reasons, as it would defeat the purpose of classification if persons without the necessary security clearance had access to documents in the routing process.

In answer to the question of whether access to a document could be refused on the basis of its classification under PAIA, Mr Makabeni said that this could not be done. The only grounds for refusal of access to a record of a public body were those contained in PAIA, and Section 11 of PAIA dealt with the matter. Sections 34 and 35 of PAIA provided for mandatory and discretionary grounds for refusal of access to a record of a public body, which were subject to a limited public interest override in Section 46, and the severability provisions under Section 28.  The President of RSA v Mail and Guardian Media case made it clear that the information officer must produce information on request, unless he or she could justify withholding it, in which case adequate reasons for refusal must be given.

Mr Makabeni noted that classification of records was in place to ensure that documents were protected from unauthorised alteration, destruction, disclosure or loss, and to ensure that only those with the relevant security clearance had access to classified documents outside the procedure provided for in PAIA. Any request made under PAIA must be considered in light of the PAIA provisions. If a record was classified, the information officer would need to exercise discretion whether to grant access.

Ms Vuyokazi Ngcobozi, State Law Advisor, OCSLA, then presented the opinion on the organs of State to whom the Bill applied. Clause 3 of the Bill stated that it would apply to “all organs of state” and “organs of state” were defined in the Bill, as including any organ of state defined in Section 239 of the Constitution, including public entities defined in the Public Finance Management Act or Municipal Finance Management Act, and any facility or institution declared as a National Key Point in terms of the National Key Points Act of 1980. She then tabled the definition contained in Section 239 of the Constitution, noting that subparagraph (b) included any institution exercising a power or performing a function in terms of the Constitution, or exercising a public power or performing a public function, but excluding a court or judicial officer.  The Court, in the case of Directory Advertising Cost Cutters v Minister for Posts Telecommunications and Broadcasting” had stated that the test was whether the ultimate control of that entity ultimately vested in the State, and whether the entity performed a public function. The Court, in the case of Korf v Health Professions Council of South Africa had attempted to define it further and had adopted the dictionary definition of “engaged in the affairs and services of the public”. It was also clear that performing a public function in terms of legislation must mean that the institution derived powers from the statute, as opposed to merely being incorporated under statute, as were companies and close corporations. In Inkatha Freedom Party v Truth and Reconciliation Commission the Truth and Reconciliation Commission was held to be an organ of state, even though it was not under the direct control of government, as it was both created by statute and was designed to fulfil a public function.

Mr Daniels noted that the last question demonstrated how difficult it would be to provide Members with a detailed list of organs of State who might be affected by the Bill

Discussion
The Chairperson noted that it seemed to be clear that there was no “finite” list of organs of State, nor a defined or closed category.  He questioned whether commissions tasked by the executive might not also fall in the category. The final decision on the status of an institution would rest with the courts.

Mr D Maynier (DA) said that he had raised this issue because the definition was imprecise, and that if the Bill applied to all organs of State, this gave the Minister very wide powers. He had understood that OCSLA would now proceed to draw up a schedule. The Committee had to have the facts before it when debating the application of this Bill.

The Chairperson said that this was a very weighty task to put on OCSLA.

Ms M Smuts (DA) elaborated that prior to 2000 some research had been done into the numbers of organs of State, and then there were about 640, to which must be added another couple of hundred under the Public Finance and Municipal Finance Management Acts. She questioned why the organ of state definition should be used, saying that this had been formulated at a time when States had begun to relinquish powers and functions to parastatals, who, although conducting business in a way similar to private corporations, nonetheless still held public power. Especially where these were monopolies, they should not be able to  divest themselves of the obligation to act within the constraints of administrative justice, remained accountable to the public, and should also be accountable to Parliament. The point had been made that an organ of State defined in Section 239 of the Constitution might include the universities or law societies, whose functions were public powers and public functions only to the degree that they derived their powers from statute, although they were independent, and she urged that this Bill should not be applicable to universities, statutory bodies who exercised some public power, or Chapter 9 institutions.

Ms Smuts added that it made no sense to classify State secrets in bodies that did not perform such functions. She felt that there were, in practice, only very few departments who would need to classify documents in the interests of national security.

The Chairperson reminded Ms Smuts that the Bill was targeting two aspects of information. The first arose out of the obligation to protect information from being lost. If information held by State organs was not protected, the rights under PAIA would be meaningless. He stressed that this Bill was not a secrecy bill, but protected information. The other aspect was the power to classify, which did not have to be exercised. There would remain some grey areas as to whether a particular entity might be an organ of State, but it could approach the court for clarity.

Ms Smuts did not think it was the business of the Minister of State Security to be the “filing clerk of the nation”. She agreed that it was important that government departments looked after information properly, for the sake of privacy of citizens. The Inspector General would have the function of inspection. However, the Democratic Alliance (DA) felt that protection of information and security of documents had nothing to do with national security.

The Chairperson asked whether the DA would have a problem if some other department, such as the Department of Justice, were to be in charge of protection of documents.

Ms Smuts responded that every State department must look after information properly, and this would be overseen by the information regulator. She suggested that perhaps the Department of Public Service and Administration could do so, but again urged that a policy decision on this should apply to State departments, and that it was not necessary to legislate for law societies or universities, for example.

The Chairperson asked if Ms Smuts would concede that information needed to be protected, so that it could be made available when requested.

Ms Smuts agreed, but said this should not be the function of the Department of State Security, or necessarily of any other department, save perhaps that it was a function of public administration.

Mr L Landers (ANC) noted Ms Smuts’ comments about the universities and law societies, and said that if MISS applied to such bodies, it would be interesting to know whether the authorities responsible for implementation of MISS had exercised their powers in relation to those bodies, as he was sure that this would spark criticism. Ms Smuts had conceded that somebody should be responsible for overseeing proper protection of records and the Committee would need to look further into this.

Mr Landers, in relation to the request for a list of organs of State, said that neither the specific information dealing with access to information, PAIA, nor the Constitution, contained any schedules with a list. He pointed out that the DA itself could compile a list, using information that was readily available from the Auditor-General, National Treasury and the Office of the Speaker.  It was not the responsibility of OCSLA to do so.

The Chairperson said that, precisely because the situation was ever-changing, it was not possible to have a schedule.

Mr Maynier said that Mr Landers seemed to be saying that there ought to be a schedule, although it was not the responsibility of the OCSLA to do so.

Mr Landers clarified that he had not said so, and he would be opposed to insisting upon a schedule.

Mr Maynier added that if this Bill applied to several hundred institutions, this begged the question whether the State would have the capacity to implement the bill, and the Committee was under a duty to interrogate this issue. The Institute for Security Studies had cited that the Department of State Security (the Department) was not even able to look after its own documents, let alone those of other institutions, and in order to comply with Section 35 of the Public Finance Management Act, the Department would have to inform Parliament, in respect of each province, where MISS was and was not implemented, where it was not, provide a schedule of the institutions, and give the relevant cost. He thought that the drawing of a schedule was therefore unavoidable.

The Chairperson responded that any label could be attached to any document, but the only way to ensure protection in practice was to punish anyone distributing documents unlawfully. He agreed that most classifications of documents would occur in the intelligence sector, but would not necessarily be limited to this area. There was an urgent need to rectify the current position where no sanctions applied. He did not think it was correct or fair to say that the Department was unable to look after its own documents.

Mr Maynier agreed that the Bill would apply, in the main, to State security departments, but also to others, and queried whether it was not then incumbent on the Committee to decide to what institutions the Bill would apply.

Ms Smuts added that the DA would like to see a list, to assist the Members to apply their minds as to whether it was appropriate or relevant that national security requirements should apply to each institution. She thought it was inappropriate to make this Bill applicable to every institution. She thought a short schedule could be attached of the institutions which would be subject to the Bill. This was likely primarily to be intelligence institutions, as, for instance, South African Police Service had its own legislation. Perhaps, rather than using the current definition of “organ of State” consideration could be given to using the Section 238 definition of Executive organs of State.

Mr B Fihla (ANC) said that in principle the law should apply to everyone, so he could not agree with limiting the application of the Bill, since any body committing an offence should be liable to punishment.

Mr Daniels reminded Members of the original version of the Bill, in which provision was made for exemption. He wondered if that might not address Ms Smuts’ concerns. Clause 3 of the Bill, dealing with the application of the Act, had not been addressed yet by the Committee. Municipalities had a system that restricted information, and severe penalties were incurred for breaches of confidentiality.  This Bill was trying to harmonise and prescribe when and how information must be classified. It could be possible for a municipality to apply to the Minister for exemption, if it wished to have all records open. Although there was some information already available on organs of state, it would be very time consuming to consider every body.

The Chairperson said that he would like to wrap up the debate on that issue for the moment. He was aware that some of the issues may be raised again.

Ms A van Wyk (ANC) said that the ANC was not sure why a list would be relevant, given the point that opportunity existed to apply for exclusions.

Mr Landers would be opposed to asking OCSLA to produce a list of organs of state, and reiterated that it was unnecessary to include a schedule of institutions in the Bill. Anyone wanting to produce such as list could get one and use it in support of any submission.

Ms Smuts said that the reasoning behind PAIA was to give access to all information, whereas this Bill related to classification, and therefore what was apposite for PAIA did not necessarily apply here.

The Chairperson summarised that the opinion had set out that there were difficulties in determining exactly who would be an organ of State, with debate about a range of institutions. He thought that the Committee should not concern itself with this. He asked that the Committee turn to other issues in the opinion. He asked for clarity whether OCSLA believed that it was desirable for the person who classified information under the Bill also to act as information officer for the purposes of PAIA.

Mr Daniels said that the Committee would need to make a decision of principle. It was possible for the information officer who received the request to classify, but he cautioned that the principles of ensuring clarity in the legislation would apply. Some adjustments would therefore be suggested to the Bill, should the Committee wish to follow this route.

Ms Smuts commended the State Law Advisors' opinion, and said that giving a discretion to the Minister offended against the principle of certainty of application. She agreed that the Committee must take a policy decision, and was not sure what her final position would be, commenting that she did have some concerns about the possibility of forum shopping.

Mr Landers said that OCSLA’s opinion had made it clear that there would be occasions when the classifying officer was also the information officer, and that the parties would, in this case, need to confer, and had also made the point that there could be difficulties if a person without the requisite security clearance might have sight of documents. He was not sure whether it was necessary for the Committee to take a decision on whether the information officer and classifying officer must be the same, but the necessity for caution, and the appropriate boundaries, should be in the Bill.

The Chairperson clarified that the debate of who would exercise the functions had arisen in the context of the option of using PAIA as the sole route for access to information. 

Mr Landers felt that the difficulties could arise if the two functions were not exercised by the same person.

Ms Smuts agreed with Mr Landers, and said that this would solve the other problem that, where two functionaries were involved, an information officer may not have direct knowledge of the factors justifying the secrecy.

Mr Landers clarified that he was not suggesting that the functions must be exercised by the same person, but had indicated that he had no objection if they were, whilst recognising that there might be situations where the information officer and classifying authority were not the same person.

The Chairperson asked OCLSA to expand on the statement that PAIA was never intended to be the sole source from which access to information could be sought.  Given that PAIA was passed to give effect to a Constitutional directive, he asked whether Parliament could also draw other legislation to give effect to the rights.

Mr Daniels said that the original version of the Bill had stated that access to information could be requested under PAIA, or alternatively under Clause 28 of the Bill. However, in light of the subsequent debates, OCLSA thought it may be more appropriate to prescribe that one route or the other could be followed, but not both.

Mr Makabeni expanded that PAIA did not prohibit information being sought under other pieces of legislation – for instance, a person could apply for relevant documents under legislation applicable to home affairs issues. Section 5 of PAIA said that nothing would prevent access being given in this case, but also provided that if other legislation in regard to access to information conflicted with PAIA, then PAIA would prevail.

The Chairperson said that his question was directed more to whether the Constitution contemplated that one law, such as PAIA, could be enacted alongside another law dealing with access, such as the Bill, provided that the right to access was not interfered with.

Mr Daniels said that Section 32 of the Constitution did not prevent more than one piece of legislation being produced, with the only qualification being that it would need to be “national” legislation. Some sections of the Constitution were restrictive – such as one prescribing that the South African National Defence Force was the only lawful military force in the country. However, the Constitution neither expressly nor impliedly prevented the passing of legislation other than PAIA in regard to access to information.

Ms Smuts wished to reiterate the position of her party, who felt that when PAIA was drafted, it gave effect to Section 32 of the Constitution, but limited the rights to access so that this did not become an impossible burden on the State, and that was the reasoning behind Section 5 of PAIA.

The Chairperson reminded her that Section 36 of the Constitution said that rights could be limited.

Ms Smuts also referred to the public submission by the General Council of the Bar.

Mr Landers noted that PAIA also provided that certain information was not accessible. He did not believe that the same instrument should be used for protection of information and access to information. He thought it was appropriate that all requests should be made to the PAIA information officer, and did not think it was necessary to combine the processes. He reminded Members that a request for declassification would not automatically be granted, but there was a process for appeal.

The Chairperson said that one of the options was to deal with access under PAIA, and to deal with protection of information under the Bill. A request under PAIA could include requests for information classified under the Bill. That was the reason why the Committee needed to discuss where the tasks of classification and granting of information would lie.

The Chairperson asked Mr Daniels whether Parliament had to amend PAIA following the case of Brummer v Minister of Social Development, in which the Constitutional Court had ruled that the 30-day period provided by PAIA for appeals was too short, and noted that if Parliament did not change this time period, it would, after a time, deemed to be changed.

Mr Daniels said that the 180-day period was now in effect, but the Constitutional Court had also said that Parliament could amend that if it wished.

The Chairperson asked Members to give him permission, if necessary, to liaise with OCSLA if there was a need to clarify any of the consequential matters. The next meeting would take place on Tuesday 25 January 2011.

The meeting was adjourned.