Protection of Information Bill: Committee lifespan & State Law Advisor's opinion on 3rd party notification under PAIA

Meeting report

Protection of Information Bill: Committee lifespan
The Chairperson noted that on 16 November the House had extended the life of this ad hoc Committee to 28 January, a date set by the House, not the Committee or Chairperson. The Rules of Parliament provided that if the work was not completed by the final extended date, the Committee would cease to exist. However, powers to extend the life of the Committee apparently lay with the Speaker, notwithstanding that the House would not sit before the end of the day. The necessary steps were presently being taken, and he was confident that a formal communication would be provided before the close of the day, extending the life of the Committee.

Mr S Swart (ACDP) reiterated that it was regrettable that the lifespan was extended to this date, when the House was not likely to sit. Rule 214 made it clear that if the Committee had not completed its task then it would cease to exist. He said that the parties needed to raise with the Whips whether the correct procedure had been followed and it was necessary to ensure that the Committee was totally in compliance with the Rules of Parliament. He was not sure that the Speaker extending the Committee’s life was in line with Rule 214. He would await further notification, but would consider other aspects.

The Chairperson said that at the time the resolution was taken on 16 November, the officials fixing that date must have thought that the House would sit. Presumably, since no opposition was raised in the House at the time, the resolution had gone through the Chief Whips’ Forum, and all parties seemed to have been satisfied with that date. There was a sitting originally scheduled for 27 January. He did not think that there was negligence but probably circumstances had intervened, although he could not comment fully.

Ms M Smuts (DA) felt that the extension of the life of the Committee by short and unrealistic time spans amounted almost to playing games with the Committee. She was not amenable to being treated in this way. She was aware that this was not in the control of the Chairperson, and thought that this time, the officials had been caught out, and she did not feel inclined to help them stop the gaps. In deference to the Chairperson and Members, it was necessary to fix a realistic span. She had mentioned that the matter would be discussed to the Chief Whip of the DA, and would like to revert to him.

The Chairperson said that he could not comment on what happened in the Rules Committee or the Chief Whips’ Forum, but could only assume that they were acting in good faith, not playing games. He also could not comment on the short periods of extension. However, this had not really affected the Committee since extensions had been given. He did not think that the officials had been trying to cause any prejudice nor would he like to be party to any suggestions of impropriety on their part.

Mr D Maynier (DA) asked if there was nothing that the Chairperson could do about the periods, and urged that a longer period – such as a year – be arranged.

The Chairperson said that neither he nor any other Member could determine how long this was likely to take. He quipped that he looked forward to the day when Mr Maynier was fully in agreement with everyone else.

Mr L Landers (ANC) agreed that these matters were out of the Chairperson’s hands. The ANC shared the concerns raised by Mr Swart, particularly the comment as to what might happen if the life was not extended in the proper way. He also could sympathise with frustrations felt by other Members, particularly those serving on ad hoc committees. He did not think that asking an extension for a year could be seen as the Committee trying to determine that it would take this long. Parliament should not decide, in November, that the work could be completed in January, and he was not sure that the authorities fully appreciated the complexity of the issues. At the very least he would have expected that the authorities should consult with the Chairperson. A one-year span – even if not needed – would give the Committee the chance to proceed in a manageable manner. He appealed that the Chairperson, even if he was not asked for his views, should raise this with the authorities.

The Chairperson said that the rationale between granting short life spans to ad hoc committees was probably to force them to arrange meetings regularly, as had happened to this Committee in December and January. He was confident that the decision taken would comply with the Parliamentary Rules. He added that he had already indicated in a previous letter that the Committee was unlikely to finish its work in January or even February, although he reiterated that it was not for him to say within which period this could be done. He added that other considerations may also affect the decision on dates.

Mr T Coetzee (DA) agreed with Mr Landers’ proposal and also concurred with Mr Swart and Ms Smuts. He said that, given the dedication of the Chairperson, there was no likelihood that this ad hoc Committee would have not met or not given full attention to its work.

Third party notification under Promotion of Access to Information Act: Further Opinion by Office of Chief State Law Advisor, dated 28 January 2011
The Chairperson thanked the Office of the Chief State Law Advisor (OCSLA) for always responding on such short notice.

Mr Enver Daniels, Chief State Law Advisor, OCSLA, said that the questions raised on the previous day had required some substantial research, and reiterated that the new opinion, dated 28 January, like the others, would reflect the views of his whole office.

Ms Carin Booyse, Deputy Chief State Law Advisor, OCSLA, said that OCSLA had been asked to look into some further questions around the notification to third parties of applications for requests for information made under the Promotion of Access to Information Act (PAIA).

She summarised that the first question related to whether it was possible that, when a request was made for access to information under PAIA, the third party would not know that the request was being made. OCSLA’s opinion of 27 January had set out the provisions for notice to a third party. She read out the definition of “third party” contained in PAIA. Section 47 regulated the notice to third parties. Where the information officers received a request for access to a record that might be a record contemplated by Sections 34(1), 35(1), 36(1), 37(1) or 43(1) of PAIA, that information officer must take all reasonable steps to inform a third party to whom that record related, both as soon as possible and by the fastest means possible, of the request. The information officer would need to inform the third party also of the name of the requester, describe the provisions of the Act, specify whether the provisions of Section 46 applied, and give the third party the opportunity to make written or oral representations why the request should be refused, or to give consent for disclosure. If the third party was not informed orally of the request for access, then a written notice must be sent.

Section 49(1)(b) made reference to the information to the third party, and Sections 49(3) and (4) set out the fact that if the request for access was granted it must state, inter alia, that the third party may lodge an internal appeal or application, and that the record would only be released after the expiry of the relevant time period within which the third party may object.

The information officer would also be required to deal with the administrative requirements of the internal appeal process. Where a third party had been notified, under Section 47(1), of the original request, then the information officer would, if an appeal was lodged, then also have to provide the relevant appeal authority with the details of the third party, so that the third party could also be notified of the appeal process under Section 76 of PAIA. Once again this notification would need to be given as soon as reasonably possible. Where it was impossible to trace the affected third party, the relevant authority would at least have to show that all necessary steps to locate the third party had been taken, and Section 49(2) provided that the fact that the third party was unable to make representations must be taken into account. The onus of informing the third party of an internal appeal for access to information lay with the relevant appeal authority. 

Ms Booyse then outlined that the Committee’s second question was whether a third party who was, for instance, an informant for the South African Police Services (SAPS) must be informed, by way of the PAIA third party procedures, that a request for information was made. She noted that Section 39 of PAIA provided for protection of police dockets in bail proceedings and protection of law enforcement and legal proceedings. If disclosure of records could reasonably be expected to reveal, or enable a person to ascertain, the identity of a confidential source of information in relation to law enforcement, then the information officer could refuse to confirm or deny whether that record existed. In these cases, the notice under Section 25(3) would set out the refusal, identify the provisions under which the record, if indeed it existed, could be refused, give reasons for the refusal and inform the requestor of the right to appeal. There was no necessity in these cases to give notification to a third party, since Section 39 was not included in the list of matters in which notice to third parties must be given.

(Ms Booyse said that there was a mistake, and Section 34(1) should be added to the list on page 6 of the document.)

Ms Xolile Mdludlu, Principal State Law Advisor, OCSLA, dealt with the Committee’s third question, which related to whether a foreign government could also be regarded as a third party to whom a third party notice must be given. She said that OCSLA had assumed that this question pertained to Section 41(1)(b)(i) of PAIA. She drew Members’ attention to the definition of “third party”, noting that, in relation to a request for access to the record of a public body, a third party could include, but not be limited to, the government of a foreign state, international organisation, or organ of that government or organisation. She quoted the interpretation principle that if words were given a definite or special meaning for the purposes of a particular piece of legislation, they should be regarded as having such defined meaning. The word “include” was intended to enlarge the meaning of words or phrases in the main body of the statute and was used in order to bring within the statute something that otherwise would not be included, but was relevant.

Section 41(1)(b)(i) provided that an information officer may refuse a request for access to a record if such disclosure was supplied in confidence by or on behalf of another state or an international organisation. There was no reference to Section 41, either in Section 47 (1) or in Section 76(1) of PAIA. For this reason she concluded that there was no obligation to give third party notices to a foreign government.

Ms Mdludlu then turned to the fourth question of whether, in the instance of President of RSA v Mail and Guardian Media (Pty) Ltd (the M&G case), judges Khampepe and Moseneke would be regarded as third parties for the purposes of PAIA. She noted that Section 12(b) of PAIA specifically excluded from its ambit any record relating to judicial functions of a court, Special Tribunal or judicial officer of “such court or Special Tribunal”. It then became necessary to look at the capacity in which the two judges were commissioned. The Supreme Court of Appeal (SCA) heard assertions that the judges were dispatched on a diplomatic mission and received information from the Government of Zimbabwe on conditions of diplomatic protocol. The SCA stated that diplomacy was an executive, not a judicial function. In the case of SA Association of Personal Injury Lawyers v Heath, the courthad pointed out that certain functions were so far removed from judicial functions that if judges were allowed to perform these functions, it would blur the separation between the judiciary and other branches of government. This was not appropriate to the central mission of the judiciary. OCSLA therefore concluded that the two judges had prepared their report outside of their judicial function, and thus should not be considered as third parties for the purposes of PAIA.

Ms Vuyokazi Ngcobozi, State Law Advisor, OCSLA, then addressed the fifth question of whether it was possible to have more than one third party to whom notice must be given in terms of a specific request. The short answer was that it was possible. Although legislation was drafted in the singular, the Interpretation Act said that words in the singular would include words in the plural. There were clearly circumstances where there could be more than one third party. In addition, Section 49(1)(b) made reference to circumstances where “every third party” had been informed, and thus clearly did not intend to confine this section to one third party only.

Ms Ngcobozi then addressed the last question of whether a third party must receive notification of the request for access, as contemplated under PAIA, if the document was classified or sensitive. She pointed out that if access to a document was sought under PAIA, then the only grounds for refusal of access could be those set out in PAIA. Section 34 to 45 of PAIA provided for the mandatory and discretionary grounds for refusal of access, which were then also subject to a limited public interest override under Section 46.

However, Clause 27(2) of the Protection of Information Bill (the Bill) provided that unless a court ordered it, no classified information may be made available to the public unless that information had been declassified. The head of the organ of State would have the power to determine classification and declassification. A court, when evaluating whether classification or declassification was justified, would carefully consider the grounds on which secrecy was claimed, to ensure that there was a proper foundation for the refusal to grant access. Mandatory protection of information under PAIA would relate to information specific to a third party. If any information related to records that could reasonably be expected to cause prejudice to the defence, security and international relations arena, then Section 41 of PAIA set out that the information officer could refuse to allow access to the information. For these reasons, OCSLA was of the opinion that a third party did not have to be informed or notified of information that was classified or sensitive.

Discussion
Mr Swart wished to express his personal thanks to the OCSLA advisors for the work they had done at such short notice. The opinions seemed to suggest that Sections 41 and 46 of PAIA provided sufficient protection. He asked a specific question whether there was a genuine security problem that was causing concern. The examples he raised yesterday were covered in the opinion. He did not think that there was a problem. He asked if OCSLA foresaw any problems relating to third party notices, as envisaged by the Chairperson.

Mr Daniels responded that OCSLA did not foresee any problems, but hastened to qualify this by saying that OCSLA did not have experience on how this worked in practice. OCSLA had compared the provisions of PAIA and the Bill, and had studied the guidance given in the M&G case, and that was really as far as he could take the matter.

Ms Smuts agreed that there did not seem to be a problem. She referred to “information asymmetry”, sometimes also expressed as “inequality of arms” but said that this was another matter. She asked for clarification, under question 4, on whether Judges Khampepe and Moseneke would be regarded as third parties. She did not think that the conclusion reached by OCSLA was supported by its argument. PAIA excluded records relating to judicial functions of a judicial officer. However, the judges did not seem to have been performing a judicial function. More than one version was proferred by the Presidency as to precisely what they were deemed to be doing. She would have thought therefore that they would not have been excluded from PAIA under the judicial functions exception. She said that presumably the report they had drawn belonged to the Presidency and not to themselves.

Mr Daniels clarified that the definition of “record” in PAIA meant any record of information in the possession or under the control of that public body, whether or not created by that public body. The Report was not compiled by the Presidency, but by the judges for the Presidency. For that reason they were not third parties. The SCA indicated that the two judges had not given any statements on the matter.

Ms Smuts thought that third parties would include anyone except the requestor or the public body.

Mr Daniels said that he could not, with due respect, agree. The judges were referred to as ambassadors and were thus doing a job on behalf of the Presidency.

Ms Smuts said that the difficulty was that when the judges were asked to act, they were being treated as extensions of the executive, and should not have been put on the spot in this way.

Mr Landers said that she had answered her own question. He agreed that assigning them this function was not correct.

Mr Daniels said that the SCA had also said that judges should not be used to perform what were essentially executive functions.

The Chairperson added that this point was also debated in the Personal Injury Lawyers case, where Judge Chaskalson had said that judges should not operate in fields that did not concern them. Mr Daniels was excluding the possibility that the two judges in the M&G case were performing judicial work, which then meant that the judicial record provisions would not apply. It was then necessary to look at whether they were acting in an executive capacity.

Ms Smuts confirmed that if they were acting in pursuance of the executive’s function, then she agreed with Mr Daniels.

Mr Daniels also referred to the remarks of Judge Nicholson in relation to the Erasmus Commission, which was also critical of judges performing an executive function.

The Chairperson said that the Nicholson judgment had never been tested, so the SCA judgment in the M&G casewas the current authority.

The Chairperson asked whether, if the Committee were to pass the Bill in its current form, with all the classification processes, a person who applied through PAIA and was refused and then called for a review would experience any problems with classified (rather than secret) information.

Mr Daniels said that the Committee would need to make some policy decisions. Personally, he had never been involved in applications under PAIA, nor had his office been asked to provide opinions on requests submitted to any Department. His office had been involved in the original drafting of PAIA. There were still some Constitutional writers who raised concerns about PAIA, and there were criticisms that PAIA was not ideal. The original Bill had provided for a system whereby the requestor could choose to seek information through PAIA. This may not be ideal. However, it was not constitutionally offensive. When OCSLA reconsidered the options, it had pointed out the potential for unintended consequences, and the problems of forum shopping. OCSLA had suggested that the Committee might wish to adopt a dual system, and if so, it might also want to consider writing the Bill in such a way that a person could be given the option of using one piece of legislation to access the information but, having made that option, could not then use the other route.

The Chairperson said that this was suggesting that a person choosing one or the other route would then be excluded him from using the other option. He asked if that was not a problem.

Mr Daniels said that he was not suggesting that the Committee should necessarily do this, but was merely pointing out that, as originally worded, the Bill allowed a requestor to have two bites of the cherry, which might lead to forum shopping. If the Committee wanted to stop that, it could consider giving a requestor a choice of forums but then also provide that once the requestor had exhausted all remedies under the chosen avenue, he or she could not then switch to the other forum and repeat the process.

Ms Smuts also thought that limiting a requestor could be problematic. She could not see that anyone could be denied the right to try to access information via PAIA, and the Committee would, if it adopted this route, have to examine interaction with other statutes allowing for access to information.

Ms Smuts referred to the comments made by Dr M Oriani-Ambrosini (IFP) on the previous day, to the effect that a requestor of information would have two bridges to cross. The clause in the Bill that required that a person seeking classified information must first get that information declassified would have to be crossed before the person even started to seek access to the (now declassified) information in terms of PAIA. Dr Oriani-Ambrosini had not thought through his proposal in detail, but this probably merited further work. She thought it would be incorrect to deny citizens the right ever to apply through PAIA. The decision was then whether to stop the forum shopping by closing the other avenue.

The Chairperson said that essentially if a requestor was applying for access to information in terms of the Bill, he or she would be applying for access to classified information. If an organ of State received a request for information that was not classified, it would be likely to advise the requestor to seek access under PAIA. The question was whether it was possible to try to get access to classified information firstly under the Bill, and then under PAIA.

Mr Swart said that the Committee seemed to be veering towards a preference for the split system where every request must be made under PAIA. The question of third parties had been raised. If there were indeed problems in relation to third parties, then these would equally apply to a dual system where the requestor had the choice of which route to follow. He thought that the Committee had to get finality on this point, so it could take a decision whether to adopt the split or dual route. He suggested that it might be useful to hear the intelligence and security sectors if they had any problems, since OCSLA had indicated that it could not give practical examples.

The Chairperson said that when he had raised the questions, he was trying to be of assistance. The question was simply whether the review procedures in PAIA could be dovetailed with the Bill. With respect it was other Members who had started asking other questions.

Mr Swart asked if the Chairperson thought that sufficient clarity had been given on the third party notice requirements.

The Chairperson said that his concern had been whether the third party notice provisions under PAIA had the potential to create problems in the appeal procedures.

Mr Swart said that that surely that if the postulated problems applied to the single system, they would also apply to the dual system

The Chairperson said that this was not a correct assumption. The Committee had agreed in principle not to amend PAIA. The review procedure as currently set out in PAIA should be used. However, as the Bill stood currently, it contained certain procedures for review, which were not the same as the PAIA procedures. It would be possible to change them. The third party problem was not apparent from the Bill. A person requiring classified information, classified under the Bill, would either get or not get the information and there was no question of third parties.

Mr Swart said that the Bill also provided that a person could opt to follow the PAIA route, but Members could debate whether this was desirable.

The Chairperson thought that these matters could be further discussed and expanded on outside the meeting, and the opinion from the State Law Advisors would assist.

Future meetings
The Chairperson said that, based on what he had said earlier, the Committee would continue with its work on the Bill. It was likely that the Committee could not meet before the following Friday, but he would keep Members informed. He noted that the Minister had been asked to give a briefing on best international practices, and he asked for confirmation that Members would be happy to receive this at the next possible meeting.

Ms Smuts said that she would not like the Committee to continue before the end of February. A number of other ad hoc committees were likely to be meeting on the following Friday. She thought that it would be useful for the Committee to commence its next span with the Ministerial briefing, but could have difficulties with the following Friday.

Mr Swart agreed on the proposed programme, although the date was of concern and he reiterated that his party would still like to consider whether the time frame was being correctly extended.

Mr Coetzee supported Ms Smuts and Mr Swart. He would have to tender apologies if the next meeting was set for the following Friday. He also requested that minutes of the most recent meetings be made available.

The Chairperson noted this request. There were still some matters that might require further clarity and he might be wanting to take up some points with OCSLA.

Ms Smuts agreed with Mr Swart’s suggestion that it would be useful to hear from the intelligence community. She would have no problem with the Chairperson raising any points with OCSLA although she thought the matters had been fully canvassed.

The Chairperson did not think it would be appropriate to invite in parties who had nothing to do with the proceedings of the Committee. Any requests would normally be directed through the Minister. He notified Members that he would advise them of the decisions of the Speaker, and of the next meeting.

The meeting was adjourned.