The Chairperson noted that he had put in a request to extend the life of the Committee beyond 28 January.
The State Law Advisors, following a request by the Committee, clarified that there would be nothing unconstitutional in adopting either a split system, in terms of which access to information could only be sought under the Promotion of Access to Information Act (PAIA), or a dual system, in which access could be sought under either PAIA or the Protection of Information Bill (the Bill). Some of the potential problems in the latter approach had been identified, but could be solved by amending the wording. The Democratic Alliance favoured a split system, because PAIA already had override provisions in Section 46 and also allowed for appeals to be taken to a Court under original proceedings, although it noted the disadvantage that PAIA was not currently operating effectively. This, however, could be addressed in another forum and possible solutions were put forward. The ANC agreed that the split system was preferable, and noted that the Bill could not be expected to solve the conceptual or implementation difficulties of PAIA. The ACDP preferred the split system but said there was still a need for a debate on the public interest defence, and that best practices on public interest defences should be examined. An IFP Member, who had not been able to attend all previous meetings, indicated that he had not been opposed to having a dual system, and he canvassed the possible difficulties if the information officer appointed in terms of PAIA did not have the power to attend to classification. He felt that the exceptions in PAIA should be framed more broadly and suggested that a document that was unlawfully released must be released from classification, although the Committee did not think that it was apposite to debate this at present. The Chairperson then asked the Office of the Chief State Law Advisor to investigate and report back on whether Sections 74 to 76 of PAIA, requiring the notification to third parties in the case of appeals, might not pose a problem in the case of classified information, and Members briefly raised the point that references in Section 76 had, presumably deliberately, not referred to Section 41.
The Chairperson then gave the Democratic Alliance the opportunity to present its views on the application of the Bill. The DA believed that the question “What must be classified?” must be decided, and highlighted that under the current system, considerable resources were taken up in protecting information that in fact did not require protection, which had also resulted in an unstable system of classification and declassification, excessive costs and inadequate implementation. The DA noted that the original criterion of “the national interest” had now been removed, but argued that it would support the Canadian approach of limiting the Bill’s application and would support protection of legitimate national intelligence structures, legitimate operations of security structures, confidential or sensitive information in the international relations field, ongoing investigations into State security structures and criminal investigations, as well as scientific, economic or technical secrets that were vital to the stability of the country. Once a decision had been taken on what needed to be classified, then a list could be drawn of the departments or agencies who would be attending to the classification of that information, and who would be appointing security personnel, and this should form a Schedule to the Bill. The IFP indicated that intelligence and security matters should be classified, but said that there were also other issues that could be argued were vital to operational stability, and said that security matters could cut across every organ of State. It would be in support of the Minister issuing non-binding guidelines to assist every department, whose Director-General would be fully aware of exactly what issues needed to be protected. This would accord with the current limitations on the State Security Agency’s oversight, which did not currently extend to police and defence services. The ANC felt that this approach was too simplistic and argued that in reality there were national security secrets in areas outside those identified, and gave some succinct examples, although the DA responded that this did not address the problem of whether, for instance, universities or professional bodies should be covered. COPE suggested that perhaps a limited definition should be adopted, but that enabling provisions should be created whereby the head of a body could approach the Minister for protection, and added that philosophically the Committee had the duty to achieve a balancing of interests. Members agreed that the Chairperson would request the Minister to give a presentation, as offered earlier, on how other democratic countries had sought to deal with the issues, and to consider including another presentation on information issues, although there was some discussion on whether it would be preferable to follow other examples or to draft original, and perhaps more open, legislation. Members briefly commented that lessons could be learnt from the failure to share information preceding the 9/11 events.
Protection of Information Bill [B6-2010]
The Chairperson tendered apologies for ANC Members Ms H Mgabadeli, Mr M Sonto, Mr J de Lange, Ms A van Wyk and Ms L Jacobus.
The Chairperson announced that on 16 November, the House had extended the life of the ad hoc Committee to 28 January (although the original understanding was that it would be extended to 21 January). He had since requested a further extension from the House Chair, indicating that it was unlikely that the Bill would be finalised in January or February, and hoped that the House would extend its life to enable the Committee to complete its work.
He then reminded Members that at the last meeting the Office of the Chief State Law Advisor (OCSLA) had presented opinions on the harmonisation of The Protection of Information Bill (the Bill) with the Promotion of Access to Information Act (PAIA), and Members would present their views. The Committee would also deal with Ms Smuts’ request to address the Committee on the application of the Bill.
Mr S Swart (ACDP) said that the opinion of OCSLA had suggested that the Committee had two options – either to adopt a split system, that provided for access requests to be directed via PAIA, with the Bill then dealing with protection and classification of information, or a dual system of access through PAIA and the Bill. He asked OCSLA to confirm that there would be nothing incorrect in the latter option, although caution had been expressed that this might result in forum shopping, increasing the administrative burden on officials, and possibly raising confusion amongst State officials.
Mr Enver Daniels, Chief State Law Advisor, OCSLA, said that the original version of the Bill did contain a clause to the effect that nothing in the Bill would preclude a person from bringing an application under PAIA. There was nothing constitutionally incorrect in having a dual system. However, should the Committee take a policy decision to adopt that route, then he cautioned that there could be some unintended consequences, which could perhaps be addressed by the Committee clarifying the position and, for instance, providing that a person seeking information had the choice of following one or the other route.
Ms D Smuts (DA) presented the views of her party The DA found the split system preferable, as it locked into the statute giving right to the access of information. Adopting such a system of all requests for access through PAIA offered two advantages; firstly PAIA already had override provisions in Section 46, to the effect that in certain circumstances, information must be released in the public interest. Secondly, a person who had exhausted all internal remedies in PAIA could then appeal to a Court, and these proceedings would be original, rather than review or appeal proceedings, requiring the official denying access had to show justification for the decision. The one disadvantage was that PAIA was not really working properly. There had been instances of “mute refusal”, where people asking for information were not getting an answer, and the system was slow and cumbersome. However, this could be cured if, outside of this Committee, the appeal body provisions were re-examined. Currently, the appeal body was defined as “the relevant authority”, which would include the Minister, or the provincial or municipal equivalent, but did not contain anything about who the “relevant authority” would be in bodies outside State organs. She noted that the committee dealing with the Protection of Personal Information Bill had heard a proposal that the information regulator being created under that Bill should also be the appeal authority for PAIA, and, although she was not sure of the position of other parties, the DA would support this. The information regulator would oversee privacy protection and security of electronic information. She suggested that perhaps the relevant authority may even be, for instance, the judge dealing with applications under the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), who would be working with national security. She agreed that forum shopping was prevalent by the public, and agreed that there could also be confusion. She pointed out that the rule of law required that legislation must be clear, precise, and understood fully by the public and implementers.
The Chairperson said that the Committee was trying to achieve this.
Mr L Landers (ANC) reported that the ANC agreed that access to information should be sought, in all cases, through PAIA, and said that a dual system had the potential to be “messy”. It could not expected that the Bill could solve the conceptual or implementation problems of PAIA. He too noted that the public interest defence was already provided for in PAIA, and if a request for information was denied, there was already a mechanism, and there would therefore not be the need to provide this in the Bill.
Mr Swart also indicated that the ACDP agreed with a split system. He pointed out that there was a public interest override in PAIA, but distinguished this from a public interest defence, on which he believed there should be a full debate. He also agreed that any problems with PAIA could be dealt with in a separate forum. The judgment in the President of RSA v Mail and Guardian had discussed the matter. He also suggested that there was a need to look into the international best practice on public interest defences. The Minister of State Security had indicated, when addressing the Committee on 22 October 2010, a preference for the Canadian model. The ACDP still would support a public interest defence to protect the public and journalists, and he cited the developments in the WikiLeaks matters, where the media had not been charged at all. This, however, could be debated more fully at a later meeting.
Mr D Maynier (DA) agreed that even if all parties were in agreement with the split system, the public interest defence and disclosure debates must still be held.
Ms Smuts hoped that Mr Landers was not arguing that the existence of the PAIA Section 46 meant that there was no need for debating the public interest matters further, since she thought this was necessary.
Dr M Oriani-Ambrosini (IFP) noted comments by other Members. He pointed out that in addition to the more straightforward issues of access and classification, a document might be requested, together with a request that the document be declassified, and said that there might be problems if the information officer appointed in terms of PAIA did not have the power to attend to classification. He agreed that the public tended to forum-shop, but did not agree that there would necessarily be problems with the dual system. However, he wished to express a concern that the exception in PAIA needed to be broader. He agreed that the definitional aspects and the exceptions must be dealt with and clarified. He expressed his view that if a document was taken out of the protected environment, then by definition it must be henceforth be in the public domain. The public interest override was important, and he agreed that there was a need for a public interest defence. Once those were in place, the PAIA issues could seem less difficult.
The Chairperson asked if he was suggesting that once a classified document was made public, whether lawfully or not, it could no longer be deemed to be classified.
Dr Oriani Ambrosini agreed.
Ms Smuts thought that this was not an apposite time for this discussion.
The Chairperson agreed that the public domain issue could be debated at another time.
Mr Swart asked if he could formally move to adopt the split system.
The Chairperson referred to Section 74 of PAIA, which dealt with appeals against decisions. The time periods were set out in the following section, and Section 76 then spoke of the “relevant authority”. In most cases this would be the relevant Minister. If the relevant authority was considering an internal appeal against the refusal for request to access, then that authority must inform a third party of the appeal, and the section set out the kind of information to be passed on to the third party, who, he pointed out, would not be the person who lodged the appeal. He asked the State Law Advisors to comment whether this might not pose a problem in the case of classified information. If the information was classified and was very sensitive, there might be a danger that the process could be abused, if the third party became aware of certain information to which he or she would not normally be privy.
Ms Carin Booyse, Deputy Chief State Law Advisor, OCSLA, responded that this would need to be considered very carefully, and OCSLA would research the issue and furnish a report.
Ms Smuts said that the reason for the PAIA wording related to the list of grounds for refusal. The third party provisions related to those requests that required mandatory refusal, which might not necessarily be limited to security issues, as free access could not be given by a State department if this would result in disclosing information about a third party. This was dealt with in the Protection of Personal Information Bill. An information officer must also refuse access to records if they contained trade secrets of a third party, or certain financial, scientific or technical information. The same would apply to confidential information, under Section 34. The DA thought that this should not be dealt with in the Bill, but such matters should be dealt with under Section 41. She agreed that the possible implications should be examined and discussed, as it was also possible that personal information might be contained in intelligence material.
The Chairperson pointed out that the third party, as referred to in PAIA, included a juristic person. It might be possible to have a document relating to informants, and he wondered whether, in this case, the informant must be notified that it had been requested.
Mr Swart pointed out that the references in Section 76 did not include Section 41, although they did refer to the override in Section 46, and this seemed to indicate that there was a clear intention not to include Section 41.
The Chairperson said that the security sector would have special concerns, but other departments might also hold information on third parties – such as foreign states – and he wondered who would take that decision and at what level.
Dr Oriani-Ambrosini wanted to remind Members of his argument, presented last year, about the conceptual differences between PAIA and this Bill. He understood the previous comments as relating to top-secret information, which meant that the only people who could get access to it would be those with top-secret security clearance. However, all the exceptions that applied to PAIA, whether mandatory or discretionary, operated at a different level. A top-secret document, even one classified incorrectly, would then need to go through a process of declassification. Perhaps the sections to which Ms Smuts had referred should become criteria for declassification. He added that there seemed to be a disconnect in the criteria between some sections of PAIA and the wording of the Bill that required classification if it threatened State security. He had not been opposed to the concept of the dual access route, but had proposed amendments that anything to be disclosed must be declassified. He said that the point made by the Chairperson had highlighted the difficulty of making the PAIA conditions apply to the situation in the Bill.
Mr Landers suggested that the State Law Advisors should be given some time to prepare and present their response, and other Members agreed.
The Chairperson said that the debate on PAIA would not be regarded as closed. This was one of the most important aspects, and as much time as would be needed would be allowed. He would liaise later with OCSLA on what time frame might be needed, and would report back to the Committee. In the meantime, he suggested that further discussions on PAIA be postponed, and that the DA should be given the opportunity to address the Committee on other concerns.
Ms Smuts noted that the DA believed that there was a need, primarily, to answer the question “What should be classified?” The DA suggested that this should be limited to intelligence and security matters, perhaps international relations and a few other matters. She quoted from a document dated 13 June 2008, from the formerly-named Ministry of Ïntelligence, then headed by Mr Ronnie Kasrils, which outlined the need for a new information protection regime. This noted that the current system required the spending of considerable resources to protect information that in fact did not require protection, which in turn resulted in an unstable system of classification and declassification, excessive costs and inadequate implementation. Government departments were constrained by the burden of massive amounts of classified documents, and this had resulted from lack of clarity. Some of this was inherited from the apartheid regime, but there still seemed to be a default position of secrecy, which was inconsistent with the Constitution. The Ministry then noted that a statutory framework was required to deal with what may be classified, what may not, and who may classify. She assumed that exactly the same situation pertained currently.
The Bill was tabled against this backdrop. However, although the Bill set out the information to be classified it did not actually answer the questions as to what should be classified. The first version of the Bill had suggested that the “national interest” should be the determining factor. The Minister had subsequently adopted another approach. The Committee had since removed the references to “national interest” as it was considered far too wide. However, the DA had argued, when the Bill was re-tabled in 2010, that there were still problems and lack of clarity. Both the DA and some comments from civil society had proposed that the Bill should deal with national security and intelligence matters only. The Minister had subsequently adopted another approach. The DA had, in its first submission, recommended adopting the Canadian approach of listing issues of national security, to ensure that the definitions were clear, precise and limited. The DA would support protection of legitimate national intelligence structures, legitimate operations of security structures, confidential or sensitive information in the international relations field, ongoing investigations into State security structures and criminal investigations, as well as scientific, economic or technical secrets that were vital to the stability of the country. This would result in something similar to the Canadian Security of Information Act. Whilst some sections of that Act could usefully be used, this could be examined once a decision had been taken that the Bill should be about security and intelligence. Once a decision had been taken on what needed to be classified, then a list could be drawn of the departments or agencies who would be attending to the classification of that information, and who would be appointing security personnel. The DA was suggesting that a schedule should thus be attached to the Bill. In short, she requested that Committee must deal with the subject of what it wanted to classify, and who must classify, and put this into clear and precise terms. This accorded with the principles of clarity and precision outlined in the Constitution, as citizens, in order to know what they must obey, needed to be certain about the laws. Ms Smuts agreed that there had been commendable progress on the matter of national security. However, she urged the Committee to talk about what to classify, which would relate clearly to national security.
Ms Smuts then referred to a comment on 22 October 2010 that the Minister had asked the Ministry staff to prepare and present a briefing on how other democratic countries – including
Mr D Maynier (DA) added that he would also like to hear a briefing on the hostile activities defences. Although the Department had argued in support of both an espionage and information peddling offence, he was not convinced of the need for a hostile activity offence, and would like to hear the motivation.
The Chairperson reminded Members that there had been some controversy around the information peddling presentation. The Minister had been under the impression that this presentation would be given in a closed session, but after discussions with the Committee it was agreed that the presentation would be given, but that no documentation would be circulated. Subsequently a “naughty” request for these documents was, however, made to the Minister – as well as to the Chairperson. The Chairperson did not want to debate that point again. He did not have any documentation. He would canvass the possibility of re-presenting the presentation with the Ministry, but said that no doubt conditions would be attached to it, if the Ministry concurred with the request. He understood that a presentation had already been given to the Committee on classification systems, particularly those in
Mr Landers agreed that a presentation had been given by an official from State Security services.
Mr Maynier did not recall this presentation, but said it might be useful to try to get the documents on which the latter presentation was based.
Dr Oriani Ambrosini said that at some point there was a need to get clarity and dispose of the issues. He agreed with Ms Smuts that intelligence and security matters needed to be classified. However, he was not necessarily in agreement that this would then only involve classification by the State organs dealing with intelligence and security issues. Security matters cut across each and every organ of State. It could be argued that back-ups of electronic information should be classified top secret, to prevent them from becoming corrupted by, for instance, terrorist activity, and perhaps the combinations to every safe should also be classified top secret, as this related directly to the functionality of every organisation. Agreement must be reached on this issue. However, how this was to be done was the crux of the matter. Clauses 6 and 7 of the Bill created a very onerous system under which organs of State were held accountable. The security of the Republic was paramount. Ms Smuts had argued that the Ministry tasked with security issues would effectively become the “filing clerks” of the nation. The security of the Republic must, however, be balanced against other considerations, and every Director-General was effectively performing that balancing Act. He suggested that the Minister of State Security should, in his view, issue non-binding guidelines to assist each department, and the regulations should deal with the implementation of the Act. He believed that each Department needed to have some discretion, as those dealing with the issues directly would know what areas needed to be addressed.
The Chairperson said that Ms Smuts’ argument was that there should be a distinction in respect of Clause 3 but it seemed that Dr Oriani-Ambrosini was happy with the Bill applying to organs of State as set out in Clause 3.
Mr Maynier commented on Dr Oriani-Ambrosini’s remarks, saying that he did not agree with the remarks about the organs of State engaging in functions such as protecting legitimate national intelligence structures, and this underlined the need for a naming of legitimate national intelligence structures, in order to limit the scope of the Bill. However, he agreed with Dr Oriani-Ambrosini’s suggestion that the Minister’s discretion be limited by the introduction of non-binding guidelines. He pointed out that there were already limitations on the State Security Agency’s oversight, because police and defence forces had their own mechanisms.
Dr Oriani-Ambrosini clarified that he was not suggesting that all organs of State should have the power of classify, but said that they might have the potential. The need would then give rise to the function of classification.
Mr Landers said that it had been useful to hear the DA’s position. His own view was that the approach was rather simplistic and failed to take into account some harsh realities. The DA was arguing for doing away with a system of exemptions, and the strict application of the law to limited bodies. This, however, begged the question whether there might not be national security secrets in areas outside those that had been identified by Ms Smuts. In reality, he believed that there were. Some examples of areas needing protection might include dual use of technology, particularly relating to nuclear capacity, international obligations to counter- proliferation (which may not necessarily fall within the international relations area), weapons of mass destruction, whether these could be found or not, and whether they could be produced. There were also health matters. In the post-9/11 world, people dealing with aviation security were critical to national security and public safety although they were not part of the traditional security services. All of these should, he believed, be covered by the Bill. An attempt to narrow the approach would place
The Chairperson pointed out that Mr Landers had correctly and succinctly identified some of the areas that had not been dealt with in previous presentations.
Mr P Dexter (COPE) responded to Mr Landers’ comments, pointing out that weapons of mass destruction could be created, for instance, in a person’s home, using information from the Internet. It was necessary to distinguish between what the State must do to protect its own information, from what the rest of society might do. The Bill attempted to create a broad definition and put everything in, thereby hoping to create a system for control of information, but he still believed that this ran contrary to the spirit of the Constitution. The alternative suggestion – to limit the definitions – had the danger of excluding some things that did not fall neatly into a particular category. He pointed out that when speaking of economic and scientific matters, a distinction should be drawn between things that were of proprietary interest and held economic value for an entity – such as the nuclear industry – which it would want to protect, and things which were really also matters of security. The problem lay in defining that distinction. He thought that a safer approach might be to adopt a limited definition, and then creating an enabling provision in the Bill whereby the head of the agency, who, as correctly indicated, would know what part of the information needed to be protected, would be able to approach the Minister for the necessary protection. This would also create a record of the process. The fear had been expressed that a head of local government, for instance, might classify in order to cover up maladministration, but if that person had to show cause to either the Minister, or perhaps a tribunal, then the official would have to ensure that he or she was not seeking protection of own interests under the Bill. This should be less burdensome and could also provide for resolution of disputes, as well as covering those issues that fell outside the strict confines of national security.
Mr Dexter added that a real problem was the presumption of benevolence and competence, and he stressed that this was not a party political issue. Public perceptions had been clouded by the way in which people in these institutions, in both the apartheid and current government, had behaved. Philosophically, it was the responsibility of the Committee to balance these interests, and he thought that his suggestion would achieve the balance, and would be preferable to adopting either an all-encompassing or too-limited approach.
Mr B Fihla (ANC) did not agree that the Bill should apply only to intelligence matters, reminding the Committee that perhaps the Department of Home Affairs might also have sensitive information. He was also not happy with the suggestion that the Bill would take a considerable time to finalise, and commented that many of these points had been explained and debated before.
The Chairperson said that some repetition had been allowed, because the matters were serious and needed to be aired fully.
Mr Maynier disagreed with the suggestion that the Committee was moving in circles. He thought that the DA’s argument was consistent with the Minister’s revised approach. Mr Landers had suggested that other types of information ought to be classified. There might well be merit in this too, and he urged that the Committee should have a full debate, after applying their minds to the arguments, to say what information should be classified and what institutions should be classifying the information. He pointed out that Mr Landers’ argument had not addressed the problem that the Bill, in its present scope, might also apply to universities or other public bodies, and reminded the Committee of comments expressed previously that if the Minister and State Security Agency had wide powers in these bodies, there would be an outcry, adding that the Committee had a responsibility to ensure that this did not happen.
Dr Oriani-Ambrosini suggested that if the Committee were to move now to a clause by clause analysis, the Committee could probably deal with many of the issues raised, even if there was not agreement in advance on the concepts.
The Chairperson advised Dr Oriani-Ambrosini that the Committee had, at some of the meetings that Dr Oriani-Ambrosini was unable to attend, dealt with some of the conceptual issues identified in the public hearings, including the definitions, and had reached some working solutions. It had also dealt with the important aspects of synchronisation of this Bill with PAIA, the Protected Disclosures Act, minimum sentencing provisions, and the Criminal Law Amendment Act. The Committee would be moving on to the clause-by-clause process soon, as it would then have dealt with other major matters of concern.
The Chairperson asked the Committee to confirm what he should request from the Ministry.
Ms Smuts asked that the Chairperson should request the Ministry to give the presentation on how other democratic countries had sought to deal with the issues.
Dr Oriani-Ambrosini said that he would not personally be interested in receiving such a briefing. Much of the legislation of these countries had been drafted in the Cold War era, and it was not appropriate that this form a guideline for current legislation. Instead, he believed that
Mr Maynier pointed out that surely the jurisdictions that already had such legislation had been aware of the context in which it was being drawn, and they may well have adopted a pioneering approach.
The Chairperson said that when Dr Oriani-Ambrosini had first raised this point, he had himself looked at some of the legislation, and said it would be useful to hear whether that had recently been adjusted.
Mr Maynier asked whether the Chairperson would request a presentation on information peddlers.
Ms Smuts said that perhaps the one presentation could deal both with national security and the other jurisdictions’ legislation.
The Chairperson confirmed that he would write to the Minister with this request.
Mr T Coetzee (DA) said, in a general response to the arguments about which organs of State might hold classified information, that it was now known that had there not been over-classification in America, the 9/11 situation might have been avoided.
Mr Landers thought that perhaps this could be raised during consideration of the Bill. He agreed that the intelligence community had established that one of the factors allowing 9/11 to happen was the lack of coordinated mechanisms, which resulted in failure to share intelligence information by the relevant institutions. This, however, was different from the question of classification.
The Chairperson said he could not comment on this, although security agencies in other countries might learn from the matters.
Dr Oriani-Ambrosini felt that the discussions around 9/11 were important, because the public did not really understand all the implications, because the critical information about 9/11 was still classified. The difficulty in accessing this information was an indicator of the types of problems that this legislation could create.
The meeting was adjourned. The Committee would resume meetings on Thursday 27 January 2011.
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