Protection of Information Bill: State Law Advisor opinion on 3rd party notification under Promotion of Access to Information Act

Ad Hoc Committee on Protection of State Information Bill (NA)

26 January 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

[Update: The Speaker has extended the life of the Committtee for 3 months]

The Chairperson tabled, but ruled that no discussion currently be conducted on, a list that had been prepared by the Institute for Democracy in South Africa (IDASA) of the organs of State to which the Protection of Information Bill (the Bill) would apply. The Members noted that the Committee would cease to function after 28 January, but the Chairperson indicated that he would brief the Committee fully on the developments on the following day. A request from an IFP Member that the Committee must compile a report on the work done to date, possibly including assurances on the public interest issues, would also be answered on the following day. However, the Chairperson fully set out the processes and procedures followed by the Committee, and was satisfied that they were constitutionally correct.

The Office of the Chief State Law Advisor (OCSLA) reported back on the research it had conducted on the references to third parties in the Promotion of Access to Information Act (PAIA), which focused on the procedures for internal appeal set out in Sections 74 to 77, and in particular the circumstances in which a third party must be informed of, and given the opportunity to object to, an appeal for release of information that was previously refused.   The definitions of “relevant authority”, “public body”, and “third party” were set out and discussed. It was noted that a third party could, in the case of information about a public body, include the government of a foreign state, an international organisation or organ of that government or organisation, but would exclude the requestor and the public body, whilst in respect of information about a private body, it referred to any person other than the requestor, with the exception that only a natural person was contemplated under Sections 34 and 63. Section 76 set out the relevant sections in respect of which the authority must inform a third party, and what information would be given to the third party. The grounds on which information could be withheld were set out, and the internal limitations where an information officer must refuse access to a record, as set out in Section 76, were described. It was noted that the doctrine of privilege was well established, that internal appeal procedures provided a relatively rapid and cheap procedure, and there was a previous proposal that guidelines and written policies must be drawn by organs of State. The mandatory and discretionary grounds for refusal of access to a record of a public body, under Sections 34 and 35, were set out, and it was noted that Section 46 provided a limited public interest override. The Bill provided that no classified information could be made available until declassified. An information officer could refuse access to any information relating to records that could reasonably be expected to cause prejudice in the defence, security and international relations arenas. Severance was provided for under Section 28 so it would be possible to release parts of records only.

Members from the DA and ACDP were not sure that there would necessarily be a problem, in light of Section 41, and the narrow limitations contained in Section 46. The DA enquired if a problem had been raised by any state security agency, and the ACDP enquired if any practical examples could be given of current problems. They thought there was probably sufficient protection, that third parties should usually be aware of the information already, and the position of police informants was catered for in other legislation. The IFP believed the crux of the matter to lie with the necessity to declassify information before it could be disclosed, and the position of information officers who may not have the required security clearance was briefly raised. The IFP reiterated its view that it made sense to adopt a dual system, because of the nature of classification, and that it might be necessary to clarify the wording, although other parties had indicated their preference for a split system (with all requests for access to information to be brought under PAIA) if possible.  The Chairperson asked the State Law Advisors to continue further whether it was possible that a third party might be unaware of the original request, whether a third party could include an informant, and whether it was possible to have multiple third parties, and whether, in the Mail and Guardian case, the investigating judges and foreign government officials could have been included, and pointed out that it did not necessarily follow that whenever information was refused, it would be secret or classified. This opinion would be delivered on the following day. A request to discuss public domain and public interest issues would be granted, at an appropriate time, and Members would also, at the appropriate time, be given the opportunity to discuss the list of organs of State.

Meeting report

Protection of Information Bill [B6-2010]: Continuation of deliberations
The Chairperson noted that the Institute for Democracy in South Africa (IDASA) had requested, and been granted, permission to distribute a document that it had prepared containing a list of organs of State. This may not necessarily change the views of the parties on the limitation of the Protection of Information Bill (the Bill), but he stressed that this argument was not closed, and Members could address it again.

He reported back that he had spoken to the Minister, who had in principle indicated willingness to give a presentation on the practice of granting access to information in other countries, which was likely to be given soon.

In regard to the future status of the Committee, he said that he would present a full and informed report to the Committee on the following day.

Mr S Swart (ACDP) noted his previous concern that the lifespan of the Committee had been extended to 28 January, which was a date on which the National Assembly was not sitting, and thus said it did not seem that the lifespan of the Committee could be extended.

Ms M Smuts (DA) agreed, adding that her party had requested a longer-term extension, and said that it was unlikely that the House could take a resolution before mid-February.

Dr M Oriani-Ambrosini (IFP) said that the Committee would effectively have no further function after 28 January, and he was not sure that any resolution of the House could revive it.

The Chairperson reiterated that he would obtain the final word on this from the authorities and would pronounce on the position on the following day. The Committee could continue with its sittings for the next two days.

Dr Oriani-Ambrosini proposed that on the following day the Committee should adopt a report, which the Committee should table in the National Assembly, describing what it had done, how far it had progressed, and indicate formally that the Committee had been unable to finish its work.

The Chairperson reiterated that he would make an announcement on the following day. He then asked the State Law Advisors to report back to the Committee on their research.

References to third parties and internal review proceedings in the Promotion of Access to Information Act: Written opinion by Office of the Chief State Law Advisor (OCSLA)
Mr Enver Daniels, Chief State Law Advisor, OCSLA, tabled an opinion on the references to third parties in the Promotion of Access to Information Act (PAIA) and said that although Ms Carin Booyse would attend to the presentation, all work done for this Committee was a joint effort, with input of all members of his staff.

Dr Oriani-Ambrosini suggested that it was not necessary for the written document to be formally presented.

The Chairperson preferred to follow the previous procedure, and asked OCSLA to present the document.

Ms Carin Booyse, Deputy Chief State Law Advisor, OCSLA noted that the opinion in particular focused on Part 4, in particular Sections 74 to 77, of the Promotion of Access to Information Act (PAIA). This part provided for a right of internal appeal by a requestor of information, if the initial request had been refused. Section 76 dealt with notice to, and receiving representation from, interested persons, and OCSLA had been asked to consider who might be a third party and what must be contained in the notice to a third party, in the case where classified information might be sought under PAIA.

Ms Booyse set out the definition of the “relevant authority” referred to in this part, as also the definition of a “public body” and of a “third party”, noting that a third party could, in the case of information about a public body, include the government of a foreign state, an international organisation or organ of that government or organisation, but would exclude the requestor and the public body. In respect of information about a private body, it would mean any person other than the requestor, with the exception that for the purposes of Sections 34 and 63, this must be a natural person. 

Section 75 of PAIA provided that an internal appeal must be lodged in the prescribed manner and time, and set out, in subsection (c), that it must contain information on the subject of the internal appeal, the reasons for the internal appeal, and could include other relevant information known to the appellant.

Section 76 noted that if an internal appeal was lodged against refusal of a request for access as contemplated in Sections 34(1), 35(1), 36(1), 37(1) or 43(1), the authority “must” inform the third party to whom the record related of the internal appeal, and describe the content of the record and the relevant provisions of the Act, give the name of the appellant, and, if Section 46 applied, describe the provisions and define what circumstances might apply, and for what reason, and allow the third party a chance to object in writing to access being granted. A third party who obtained knowledge of an appeal by some method other than being informed by the authority could also make written or oral representations on it, and could either object to the appeal being granted, or give consent for the information to be disclosed.

Section 76(9) set out what should be contained in the notice to a third party. This would include a description of the contents of the record.

Mr Swart said that he could not understand the exact problem. Section 41 made it clear that access must be refused in defined circumstances. Section 46 contained very narrow limitations relating to public interest, so there was already a high threshold provided. Currently, the Minimum Information Security Standards (MISS) and PAIA applied to requests for information, and he enquired whether, at the moment, there were any problems with the law, or whether the problem might relate to declassification.

Ms Smuts agreed that there did not seem to be a problem. She had understood the Chairperson’s possible concerns to relate to foreign governments and international organisations. However, she did not feel that they were likely to be compromised, as the information of a third party in the hands of a government department was protected from disclosure. She wondered if there was a need to add anything to Section 36. She thought that the mandatory refusal provisions, and the fact that third parties would already be aware of the information being held, were sufficient protection.

Dr Oriani-Ambrosini understood that the Chairperson had asked two questions. The first was what would happen to classified documents if access was sought and obtained through PAIA, and the second related to the provisions that required the information officer to notify third parties. He thought that the main point was that the Bill provided that nothing could be disclosed unless it was declassified, although there were some concerns that the information officer may not have the required security clearance to access the information. The first issue to be addressed was classification, and the second was access under PAIA. At the point where access was sought through PAIA, the information officer must apply his or her mind to the restrictions. If that information officer had the necessary security clearance, there would not be a problem. However, if third party recipients were to receive notice, the information would have to be declassified. The differing opinions on whether or not to declassify could be dealt with in PAIA. The intelligence agency that had classified the information would surely be a third party. He reiterated his opinion that it would make sense for requests under PAIA to be dealt with under PAIA, whilst requests for classified information should be dealt with under the Bill, and if the information officer did not have the necessary security clearance then the request must fall under the Bill. This dual procedure was in his view necessary, because of the nature of classification.

The Chairperson asked if Dr Oriani-Ambrosini agreed with the Chairperson that there was a potential problem.

Dr Oriani-Ambrosini agreed that there were still problems around security clearance of the information officer and third parties. He would suggest that additional provisions could clarify the issue.

The Chairperson said that his understanding from the previous meeting was that Members had agreed that there were potentially difficulties, and suggested that perhaps Members should wait until the end of the presentation to comment further.

Mr D Maynier (DA) asked the Chairperson to reiterate where he thought the problems lay, and asked whether these concerns emanated from the State Security Agency.

Mr Swart repeated his question as to whether there was a problem with the present applicable law.

The Chairperson said that he had not made any reference to any intelligence agencies, and confirmed that he himself had identified the issues. In response to Mr Swart, he reminded the Committee that many Members had already expressed the view that if it was possible to provide a split system for access, it would be preferable. If that was adopted, classified information would now also have to be requested through PAIA, and all PAIA procedures, including appeal and review procedures, would apply.  He wondered if the mandatory notice to third parties in terms of Section 76 made it mandatory had the potential to compromise the information that was classified, particularly if the third party thereby was informed for the first time about the sensitive information.

Mr Swart said that at the last meeting he had said that he was not sure if there was a problem, but would apply his mind to it, and, having done so, he did not necessarily think that there was a problem.

Dr Oriani-Ambrosini said that he had tested this himself, by making a request, through PAIA , for Ministerial manuals. He had been told that these were confidential and could not be given to Members of Parliament. In order to receive those classified documents, he would therefore need to have them declassified, but the problem was that there was no legislation providing for this. In other jurisdictions, once information was declassified, the application procedures would follow, but no access would be given unless the information officer, third parties and all others had the requisite security clearance to get access to the information.

The Chairperson reminded the Committee that if it was satisfied that PAIA and the Bill could be harmonised, then a split system could be followed, with all requests for access being brought under PAIA, and if not, then the Committee may need to look at adopting the dual system of access under one or the other piece of legislation.

Ms Smuts said that there were huge volumes of classified information in the country. She asked whether the “mute refusals” were ascribed to the over-classification that had been ongoing for some years. Currently, documents were being classified without any set criteria. This Committee must, when drafting the Bill, ensure that the classification criteria met the Constitutional dictates and dovetailed well with PAIA. Declassification was not on the table for discussion at present, and she would prefer that the Committee continue with the discussions around the third party issues.

Ms Smuts asked if there was a concern that security agencies might currently be holding information on third parties, of which the third parties were unaware. PAIA contemplated and dealt with information that the third party would know about – such as trade secrets or personal information. She wondered what might happen to information that emerged from surveillance (which might infringe rights to privacy) and how this would be dealt with under the Bill.

Mr N Diale (ANC) pointed out that, although he had not been at the previous meeting, Members had apparently agreed that OCSLA’s opinion could address the problem.

The Chairperson agreed. He was not sure on what Ms Smuts’ allegations of over-classification were based. There was provision for additional classification, in a category lower than confidential, but which was restricted. Some government departments had been obliged to classify documents, although he did not concede that there was a general view that over-classification had occurred.

Continuation of OCSLA presentation
Ms Booyse set out the Constitutional Court’s remarks about the reason for entrenchment of access to information rights, set out in the 1996 case of Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa.  The Act must be interpreted as promoting the objectives of access to information, although even under PAIA there were limitations, exemptions and grounds for refusal to disclose information. Withholding of information would only be permitted on grounds explicitly set out in PAIA, and access should only be denied where clearly justified.

Ms Booyse then set out the internal limitations to the provisions of PAIA, as set out in Section 76, where an information officer must refuse access to a record. This included unreasonable disclosure of personal information (Section 34(1)), some records of South African Revenue Services (Section 35(1)), trade secrets or of financial, commercial, scientific or technical information that could cause harm to a third party (Section 36(1)), anything that would breach a duty of confidence to a third party owed under an agreement, or which might prejudice similar information being proffered where it was in the public interest that this flow of information continue from that source (Section 37(1)), and records containing information about current or future research that could expose a third party to serious disadvantage (Section 43(1))).

Ms Booyse noted that privilege was well established in South African law, and a United States case had confirmed a qualified right of confidentiality of communications among high government officials. Constitutional law experts had expressed the view that, in appropriate and genuine circumstances, laws restricting access to information, such as national security, privacy, trade secrets or confidential business information and legal professional privilege, would be justifiable.

The internal appeal provisions of PAIA provided a relatively rapid and cheap procedure, in respect of information held by a department of state or administration in the national or provincial sphere, or any municipality in the local sphere. Internal appeals would be heard by a higher authority, so where the information officer was the Director General, appeals against his or her decision would go to the Minister responsible for the department. Internal appeals applied in respect of refusals of requests for access, refusal to provide access in the requested form, decisions about the levying of fees and decisions to extend time periods for requests of access. A third party, however, may lodge an internal appeal only against decisions to grant access.

Ms Booyse noted that third party information generally was information that, if disclosed, would affect someone other than the requestor, and the third party would not have been involved in the initial request. She reiterated that Sections 47 to 49 of PAIA required an information officer to inform third parties of requests, and the fact that a request was being considered, the name of the requester and the potential application of the public interest override, which may, despite the mandatory refusal provisions, authorise disclosure. The third party could waive the protection.

If a third party filed an internal appeal against the granting of access to information, that appeal would suspend the original application for access. It thus appeared that notice must, under PAIA, be given to a third party in any case that dealt with requests under Sections 24(1), 35(1), 36(1), 37(1) and 43(1) of PAIA.

Ms Booyse then outlined the objects of the Protection of Information Bill, and said that the application of that Bill was presently regulated by Clause 3, which also provided for some exemptions. She referred to the previous opinion of OCSLA, dated 20 January 2011, which had set out the current procedure, and in which OCSLA suggested that the head of the organ of state should decide who could declassify information, and that written policies and guidelines should be drawn. If a document was requested under PAIA, then only the PAIA grounds for refusal would apply. Sections 34 and 35 of PAIA set out the mandatory and discretionary grounds for refusal to access of a record of a public body. These grounds were then subject to a limited public interest override in terms of Section 46, in respect of information that disclosed evidence of a breach of law, or serious risk to public safety or the environment.

However, she confirmed also that Clause 27(2) of the Bill provided that no classified information could be made available to the public, unless declassified. Classification would be done by the head of the organ of State, who could also approach the Minister for guidance. The functions of the head of the organ of State, and the Supreme Court of Appeal’s remarks in the President of the Republic of South Africa v Mail & Guardian Media Ltd case (the M&G case), would suggest that a court would consider the grounds on which secrecy was claimed in order to decide whether classification or declassification was justified.

Ms Booyse concluded that any information relating to records that could reasonably be expected to cause prejudice in the defence, security and international relations arenas may, in terms of Section 41 of PAIA, be refused by an information officer. Third party information would have to be notified of appeals directly relating to information specific to that third party as set out. She further pointed out that severance was provided for under Section 28 of PAIA, and was well established in South African law, so it would be possible to release only part of records.

Dr Oriani-Ambrosini repeated that he felt that the written opinions should not simply be read out in the meetings.

Dr Oriani-Ambrosini felt that Section 41 of PAIA, which said that information could not be released if it was classified, lay at the heart of the matter. However, there was an override even to that, if a release of information was in the public interest or could prevent calamities. This brought the Committee back to its previous discussions about which statute would prevail should there be conflict. He thought that the Committee would need to consider whether PAIA should be extended, and whether the Bill’s provisions should be subject to the mandatory disclosure requirements of PAIA. This was based on the assumption that the necessary security clearances were in place. He still thought that it might be necessary to declassify before giving notification to third parties.

The Chairperson summarised that the Committee was still debating whether all applications, no matter what type of information was sought, could be brought under PAIA, or whether some should be brought under the Bill. This Committee was not trying to amend PAIA, and was trying to simplify the procedures. If PIA posed insurmountable obstacles in its present form, then the Committee would have to provide for applications being brought under the Bill, and harmonise the two. Concerns had been raised about whether the requirements to give notice to third parties might be problematic, and he asked for Members’ views on whether, if there was a problem, it could be addressed by severance.

Ms Smuts thought that there was probably not a problem, but this could be finally answered only after the Committee had attended to re-drafting. She pointed out that PAIA itself contemplated that it should be updated, and another portfolio committee was currently addressing amendments that would address logistical problems. However, the basic values set out in PAIA – which to her mind included the concept of severability under Section 28 – should not be tampered with.  She noted that requests for disclosure could be refused if they could cause prejudice to national security, and therefore the correct definition for “prejudice” must be found; the Canadian example would be useful. After re-drafting the Bill, the Committee should check again whether there was likely to be any conflict with Section 41 of PAIA, and reminded the Committee that the General Council of the Bar had, in its submission, asked the Committee to consider whether the fact of classification was in line with Constitutional imperatives. She thought that there would be no objection provided that “national security”, what was meant by prejudice to the State, and classification, were  narrowly enough defined. Citizens had a right to access to information, but also to personal safety.

Mr Swart reiterated that he did not think there was a problem, but would engage further with the Chairperson. He agreed that there were several drafting possibilities. He still wanted clarity on whether there might be genuine security problems with giving notice to third parties and asked whether any practical examples could be provided; for instance, he wondered if there could be concern, in the M&G case, about notice to a foreign government. The police were obliged to refuse requests for information on informants, so this was not a problem. He suggested that perhaps the issue could be flagged for future discussion.

The Chairperson thought that Mr Swart had identified the right issues, and asked if it was possible that a third party, either juristic or natural, may not know of the request. He also asked if it was possible for a third party to be an informant, and whether that informant would be aware of the original request. He noted that foreign governments were included in the definition, and wondered if judges Moseneke and Khampepe, in the M&G case, and Zimbabwean government officials who might have been consulted when the document was compiled, could also be regarded as third parties, as also whether it was possible to have a multiplicity of third parties.

The Chairperson made the point that it did not necessarily follow that whenever information was refused by an information officer, it would be secret or classified, since a whole range of other reasons could be applied. However, he wondered what would be the situation if the information was classified, and did involve a third party, especially in cases where the information officer was using a discretion. The purpose of classification was to prevent disclosure, and to criminalise importer disclosure, for reasons of national security.

Mr Daniels said that the matter was quite complex, and requested some time to reflect on the issues raised before giving a full response. The M&G case judgment had provided some useful pointers, but this had of course been taken on appeal to the Constitutional Court.

Mr Swart, in answer to a question by Ms Smuts, confirmed that the report from judges Moseneke and Khampepe was classified.

The Chairperson noted that the M&G judgment essentially hinged on the technicality that the respondent had not met the test for how affidavits in application proceedings should be drafted, as decided in previous cases. The case thus had more to do with procedure than with the issue of secrecy.

Dr Oriani-Ambrosini wished to air his views on the process. He repeated his contention that the Committee, rather than the Chairperson, should submit a report to the National Assembly, indicating the need for an extension. This could indicate the progress made to date. He confirmed that the Committee was firm that whatever rights were given by PAIA would not be removed by this Bill, and that the criteria for classification would be national security, as opposed to national interest. He would like to include a reference, in that report, to the agreement to consider the two possible drafting options, and to discussions yesterday. He added that the main concern to the public lay in the public interest provisions, and what was in the public domain. He thought the Committee should give a commitment that it would not wish to criminalise publication of information that was in the public interest and fell in the public domain.

Ms Smuts expressed her support for these remarks.

The Chairperson said that part of Dr Oriani-Ambrosini’s request seemed to imply that the Bill as finally passed could have the potential to infringe rights, and that was not correct. He had earlier stressed that South Africa, and indeed no democratic government, would knowingly process legislation that was clearly unconstitutional, and this was a very high assurance, although it was possible that legislators might overlook something or lawyers argue for other interpretations. He assured everyone that the Committee followed a very democratic process, and wherever debates, of necessity, became technical, he had tried to summarise and explain issues for the benefit of the public. Members were not merely going through the motions, but diligently applied their minds to every aspect raised in public hearings, including the serious concerns about PAIA, whistleblowers, and the national interest issues.

Dr Oriani-Ambrosini wanted to clarify that he was not trying to suggest that this Committee was doing anything unconstitutional and expressed his thanks and admiration to the Chairperson for the way in which he had charted the progress and controlled the proceedings. However, he would like the Committee to be able to add further achievements. He believed that the Bill as currently worded was already constitutionally sound, but would like to go even further and deal with the public domain and public interest issues to allay the public’s concerns, and suggested that perhaps he could make some submissions now, which would allow the Committee to achieve yet another milestone before the end of the current timeframes.

The Chairperson indicated that the Committee had been prepared to accommodate all Members and would not deny Dr Oriani-Ambrosini the opportunity to make a presentation, although the time was not apposite, as he would like to firstly thoroughly dispose of the issues that OCSLA was researching.

Mr P Dexter (COPE) agreed with Dr Oriani-Ambrosini’s view, and confirmed that the deliberations to date had been thorough and extensive.

Ms Smuts said that although the Committee had not made reports when seeking extensions in the past, this could be useful. The Chairperson himself had listed the progress made by the Committee in previous meetings. She agreed that it could be appropriate to give an undertaking that the Committee would look at the public interest defence in full, even perhaps calling for more submissions.

The Chairperson said that the Committee would be dealing with the public interest issues in due course, but it was not on the table, and he would like to continue with PAIA issues to conclusion.

In respect of the proposal that the Committee draw a report, he said that he would answer this on the following day, when reporting back on the status of the Committee.

Mr Landers was not sure where these suggestions emanated. He did not agree with the implications that the Committee would not be re-appointed and said that this was likely, with the same Members, and that it could then resume its work. He did not understand the concerns and did not think that a report was necessary.

Dr Oriani-Ambrosini reiterated that he believed that the full Committee should ask for the extension and that a report would be procedurally correct and appropriate.

The Chairperson said that Mr Landers had raised the question whether the Parliamentary Rules would allow the Committee to continue to sit, and ask for condonation, and he would report fully on this and other issues on the following day.

Mr T Coetzee (DA) was concerned as to why Dr Oriani-Ambrosini’s proposal was perceived as problematic, as it was correct procedure, and since a summary of activities could support the request to extend the life of the Committee.

The Chairperson stated that he had not rejected Dr Oriani-Ambrosini’s proposal, but had said that he would pronounce on this, from an informed position, on the following day. He urged Members not to pre-empt his pronouncement.

Mr Maynier said that the document by IDASA, circulated earlier, would be useful when debating the application of the Bill.

The Chairperson asked Mr Maynier not to proceed further with this point. The matter was not on the agenda and he ruled that it would not be discussed today, but at a future and appropriate time. He reminded the State Law Advisors to present their further opinions on the following day.

The meeting was adjourned.


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