Protection of Information Bill: deliberations on Clauses 13 to 19

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

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

The Office of the Chief State Law Advisor summarised the changes that were contained in the latest draft of the Protection of Information Bill, as contained in Working Document, No 5, from clause 3 to clause 10(2). Members suggested further minor wording changes to clauses 8(1) to (3), clause 9 and clause 10(2). The Committee then proceeded to deliberate on further clauses, commencing at clause 13. Members agreed on new wording for subclause 13(b), the insertion of a new subclause (c) and deletion of (d).

In clause 14, the ANC proposed the removal of “a departmental” from clause 14(c) and insertion of a cross reference to clause 9(2). The DA proposed the deletion of subclause 14(2), as it was opposed to classification of information in file blocks. The IFP said it would be proposing that clause 16(6) should be deleted, because its contents were covered under 14(2), and then proposed new wording to the effect that information should not be subject to bulk classification or classification by categories unless this was warranted for every piece of information. The ACDP supported the DA and IFP views and said that if the Minister’s overly wide discretion for block classification was not narrowed, this would result in mere lip service being paid to clause 7(3)(b). The IFP said it would be necessary to consider the definitions around classification and information very carefully. The clause was flagged for further consideration.

In clause 15, the ANC proposed the introduction of thresholds, by replacing reference to “harm” with “is likely or could reasonably be expected to cause demonstrable harm”, in clauses 15(1) and (3)(a). The IFP suggested that the thresholds needed to be discussed in some detail, to ensure consistency throughout the Bill, as this clause also linked to clause 21. The ACDP welcomed the introduction of a threshold in principle, but questioned why the test used in the promotion of Access to Information Act was not used, and why “likely or” had been added. The possible inconsistency around use of “unlawful disclosure” and “disclosure” would also need to be addressed. There was discussion whether both “security” and “national security” were needed. The ANC stressed that this Bill was not limited to intelligence matters, and Members gave examples of instances where “security” but not “national security” could be affected. The DA indicated its preference for using “likely” rather than “reasonably be expected”. It would be necessary to have an accurate definition for “confidential information” and to ensure consistency. It was agreed that this would be debated further once proposed changes had been exchanged, in writing. The ANC also proposed a new subclause (4), to note that a classifying authority must use the guidelines for classification levels as prescribed.

In respect of clause 16, the ANC proposed a grammatical alteration in clause 16(6) and new subclauses (7) to (9) to cover the position of field agents who, although not at the level of heads of organs of State, did need to classify information before transmitting it. These clauses allowed them to do so, but confirmed that the classification must be confirmed by the head of the organ of State. This would apply in limited circumstances. The DA indicated that it would like to consult on this. The ACDP suggested, and the ANC agreed, that the provisions around delegation in clause 16(2) should be amended to “a subordinate staff member at a sufficiently senior level”.

The ANC proposed that a grammatical change to clause 17(1)(i). The DA also suggested a change of “directions” to “conditions” in the clause’s title, the replacement of clause 17(1)(a) to bring it in line with international best practice, the deletion of 17(1)(b)(iv), which, although desirable, was inconsistent with the rest of the Bill, and the substitution of “the benefits of openness” for “the benefits of secrecy” in clause 17(1)(i)(iii). The ACDP supported the DA’s proposals on clause 17(1)(a), and the ANC indicated that it was likely that common ground could be found on this.

The DA proposed the deletion of clause 18, and would later propose the deletion of the offence of possession as well. The ACDP indicated that if the reference to possession were to be retained, then at the very least it must be coupled with a public interest defence. Both parties referred to a recent Ottawa Supreme Court case in which similar provisions in the Canadian law had been struck down as unconstitutional. The ANC did not agree. The IFP wished to debate the meaning of “possession” and considerable discussion ensued on this and on when information was deemed to come into the public domain, as the IFP proposed an addition to clause 18(3) to provide that classified information that fell into the public domain must be deemed no longer classifiable. The ACDP Member noted that the Promotion of Access to Information Act had already established the principle of public interest, and a public interest defence should cover this situation.

In clauses 19(1) and (2), the ANC proposed qualification of “staff member” with “at a sufficient senior level”, consistent with the amendments to clause 16. In clause 21, the ANC proposed deletion of “to cause significant harm and” and replacement with “likely or could reasonably be expected to cause a demonstrable harm..”. The IFP recommended the deletion of the whole clause, because it was felt that different criteria were being applied to classification and de-classification. The DA did not agree, but briefly questioned the rationale for clause 21(2)(f), before the meeting was adjourned owing to time constraints.

Meeting report

Protection of Information Bill: Deliberation on clauses 13 to 21
The Committee noted the new draft working document, incorporating the changes from the previous day.

Dr M Oriani-Ambrosini (IFP) asked if Members could simply read the changes for themselves.

The Chairperson noted that it was proper procedure for the State Law Advisors to present the changes for confirmation by Members.

Ms Vuyokazi
Ngcobozi, Senior State Law Advisor, Office of the Chief State Law Advisor, took Members through the latest Working Document, No 5, from clause 3 to clause 10(2).

Dr Oriani-Ambrosini noted that the Committee had not, in clauses 8(1) and (2), discussed the removal of the word “departmental”, but was pleased that the State Law Advisors had taken the initiative, as clearly “departmental” did not apply to all organs of State. However, the same should then apply to clause 8(3).

Mr L Landers (ANC) agreed. Although this was not originally part of his proposal, it seemed to make sense. If it was to be removed from one clause, then it should be consistently removed.

Ms M Smuts (DA) noted that although she opposed the format of the Bill, this alteration would flow logically from what had been done to the Bill.

Mr S Swart (ACDP) said, in relation to the alterations to clause 9, that perhaps there should be a comma between “alteration” and “destruction” and that he would be prepared to discuss again whether the word “ against” or “from” was the better word. On balance, he agreed that the “against” proposed originally by Mr Landers was a better word to use, although he had proposed something different on the previous day.

In relation to clause 10(2), Dr Oriani-Ambrosini suggested that the word “the” be deleted so that the sentence concluded with “in regulations”.

Mr Swart said that whatever was used should be consistent. Previously, the words “as prescribed” alone were used, which meant “prescribed by regulation”.

Ms Smuts agreed that the usual wording would be “as prescribed”.

Dr Oriani-Ambrosini said that when the Committee dealt with the definitions, the problem could be addressed.

The Chairperson noted that throughout the Act there would therefore be reference to “prescribed”. A definition would be added for “prescribed”. The words “in the regulations” would therefore be deleted from clause 10(2).

The Chairperson noted that Chapter 5 had been deleted altogether. However, he noted that all references should be to the numbering of the original Bill.

Clause 13
Mr Landers noted his apology for having referred to an incorrect clause numbering on the previous day. He suggested that in clause 13(b), the words “against alteration, destruction or loss” be inserted after “unlawful disclosure” and that “as prescribed” must be added.

Ms Smuts asked that Mr Landers should look at the purpose of each sub-clause. This clause described classified information which was sensitive, and that must protected from unlawful disclosure and safeguarded. She thought that bringing the words from subclause (d) up into subclause (b) would create confusion. She asked if (b) should not refer only to safeguarding.

Dr Oriani-Ambrosini noted that “valuable information” was not classified, but was identified as “valuable”. He referred back to Chapter 4. Valuable information would need to be protected from alteration, loss or destruction. As the Bill currently stood, the classification related to disclosure. He felt that the distinction between valuable and classified information would be lost by inserting wording to do with protection against alteration, destruction and loss.  By definition, valuable information was already disclosed. He felt that clause 13(d) could be removed, as this had already been taken care of elsewhere.

Mr Landers said that Ms Smuts had made a valid point about the reference to “safeguarding” standing alone. He agreed that (d) should be removed.

The Chairperson asked if valuable information could be classified.

Dr Oriani-Ambrosini said that it was good practice not to depart from common understanding. “Classified” meant that the information would have limited disclosure. He thought that everyone was in agreement on that.

Ms Smuts suggested that (b) should remain as originally worded, and reiterated that adding any wording from (d) would result in confusion.

Mr Landers noted that protecting classified information from unlawful disclosure, and against destruction, alteration and loss were not the same.

Ms Smuts said that once information was classified, it was implicit that it must be safeguarded. She asked why the ANC might wish to take out the second part of (b).

Mr Landers suggested that perhaps it might be preferable to create a new subclause (c). He then made a new proposal: namely that (b) would read: “must be protected from unlawful disclosure, against alteration, protection and loss, as prescribed”, and that a new subclause (c) would then be added, reading: “and must be safeguarded according to the degree of harm that could result from its unlawful disclosure”. The current subclause (d) would be deleted. The remaining subclauses would be renumbered.

The Chairperson said that Bill dealt later with offences in relation to alteration or destruction of classified information. Therefore classified and valuable information should receive the same protection. He cited an example that a report might be prepared, which had been lawfully and legitimately classified, but which then might be altered to become a document that could be made available under the public interest override. Clearly that could not be allowed to happen.

Ms Smuts wondered if it would not be useful to consider the offences at this stage. She made reference to clause 35, noting that much attention was paid to how classified information should not be intercepted, modified and so on.

Mr Landers suggested that any changes to the offences could be effected when the Committee considered clause 35.

The Chairperson asked the State Law Advisors to note that the Committee might, when considering clause 25, also need to check the wording of clause 13 again, for consistency.

Dr Oriani-Ambrosini said that the understanding should be that the Committee could always come back and refine the language in clauses where there was no difference of policy.

The Chairperson asked the State Law Advisors to effect the changes proposed by Mr Landers.

Clause 14
Mr Landers gave the ANC’s proposal for an amendment to clause 14(c). He suggested that the words “a departmental” must be removed, and that at the end of the sentence the words “contemplated in section 9(2)” must be added.

Ms Smuts pointed out that clause 9(2) dealt with valuable information.

Mr Landers agreed that the two would have to be kept separate.

Mr Swart suggested that a clause similar to clause 9(2) should then be crafted here, to make the Bill consistent.

Dr Oriani-Ambrosini said that the register of classified information would probably, in itself, be classified whereas the register of valuable information would be regarded merely as valuable information.

Ms Smuts then outlined the DA’s proposal to delete subclause 14(2), because it provided for the classification not only of items, but also whole categories and integral file blocks, in which case all individual items within that block would be considered as classified. As she had argued yesterday, this was contrary to the South African information law, and many judgments. Section 28 of the Promotion of Access to Information Act (PAIA) dictated that severability of information would apply, so that it was possible to withhold only certain pieces of information, but not a whole file block, such as had been done in the Independent Newspapers case.

Dr Oriani-Ambrosini asked that the Committee should also consider clause 16(6) in conjunction with this clause. This also noted that when State information was classified, all items within a classification would be regarded as classified. There was a possible overlap. The IFP would be proposing the deletion of clause 16(6) because it contents were covered under clause 14(2). The IFP suggested that wording be inserted to provide that: “Information shall not be subject to bulk classification or classification by categories unless the applicable classification is warranted in respect of each piece of information”. He cited an example that the entire telephone book could not be classified if it contained the telephone number of the President. He said that there were real risks attached to the current wording. It was very easy to put a “top secret” label on to everything.

Mr Swart supported both the DA and IFP views. He noted that the ANC had itself already expressed a concern about overly-wide discretions. He suggested that block categorisation would indeed grant an overly-broad discretion to the Minister. If this was not narrowed down it had further implications. Clause 7(3)(b) referred to the Minister prescribing categories of information, in which case the Minister had to give notice about the categories that he intended to classify, and take into account comments from the public arising from the notice. He questioned how the Minister would be able to consider public comments, if such broad classification was allowed, and suggested that since he would be precluded from doing so, this would result in mere lip service being paid to clause 7(3)(b).

Dr Oriani-Ambrosini commented on the additional element. He noted that although the Committee had not attended to the definitions yet, it was critical to consider what was being classified. It would not be the bearer of information, but the information itself, that was being classified. Once information was classified, even an erasure of the “top secret” tag would not alter its nature. “Information” was defined broadly and it was necessary to consider what the boundaries were. The notion of “bulk classification” was not required. He suggested that the current wording caused unnecessary complications.

Mr Landers said that it seemed the problem lay with “integral file block”. This was defined as “a distinct component of a file series that must be maintained as a separate unit to ensure the integrity of the records, and may include a set out records covering either a specific topic or a period of time”. There was no suggestion that absolutely everything would be classified.

The Chairperson said that this issue would take a considerable time to resolve. Unless the classification processes were understood it would be difficult to consider this. However, in the intelligence community, these documents were dealt with in quite a complex way. He proposed that this clause be flagged so that more time could be spent on the explanations, and assurances could be offered to those who were concerned about possible abuses.

Mr Landers agreed.

The Chairperson asked that Members then proceed with the other clauses.

Clause 15
Mr Landers indicated that the ANC proposals on this clause related to the introduction of the threshold. Instead of referring only to “harm” there would instead be use of a qualifying phrase of “is likely or could reasonably be expected to cause demonstrable harm”. So, in clause 15(1), the ANC was suggesting that the wording should read: “stated information may be classified as confidential if the information is sensitive information, the unlawful disclosure of which is likely or could reasonably be expected to cause demonstrable harm to the security or national security of the Republic, or could reasonably be expected to prejudice the Republic in its international relations”.

In subclause (3)(a) a similar replacement of “harm” by the phrase would also be used.

Dr Oriani-Ambrosini thought it would be useful to discuss the thresholds in more detail, pointing out that different wording was used.

Mr Swart thought that this was an improvement that brought this Bill in line with the PAIA threshold test, and introduced the standard measure of reasonableness. He asked why the PAIA test of “could reasonably be expected to cause demonstrable harm” was not simply used, and why the words “likely” had been added to this. He thought that this was in fact suggesting two different thresholds – likelihood, and reasonable expectation.

Mr Swart further noted that he was not sure why clause 15(1)(a) referred to “unlawful disclosure” whereas clause 15(1)(b) referred to “disclosure” and stressed that it was key to consider these levels in more detail.

Ms Smuts said that the DA was very concerned that the harm should not be purely speculative. The DA proposed that “probable harm” should be the test. She agreed with the raising of the thresholds, but would prefer the word “likely” to be used rather than “reasonably be expected”. She asked if Mr Swart was suggesting that “reasonable expectation” should be the level for confidential information, and “likely harm” for secret or top secret levels. She also questioned, from what Mr Landers had read out, why both “security” and “national security” had been mentioned, and suggested that this was probably unintentional. She said that “security” was different from “national security”. It was never the thinking of the Committee that classification should rest on anything other than national security. “Security”, to her mind, meant that the information needed to be protected. She was not sure whether it was appropriate to include it in this Bill.

Dr Oriani-Ambrosini agreed. “National security” was defined but “security of the Republic” was not.

The Chairperson asked if “security” had to be defined.

Dr Oriani-Abmrosini said that it was defined, and said that it was difficult to deal with the Bill without also looking at the definitions in relation to the clauses. He did not believe that “security” should be used. “National security” was defined. The amendment now proposed by the ANC had moved away from notional harm, to trying to ensure demonstrable harm, but there was also another definition of “harm” in the definition of “security”, which referred merely to “harm”. This created a circle of definitions.

Mr M Nchabaleng (ANC) said that “harm” meant harm to the individual.

Ms Smuts questioned whether the ANC would be retaining anything in this Bill to do with personal information. Certainly, names of those in the intelligence community would be regarded as sensitive information whose publication could cause harm to the national security, especially if they were sources. However, the classification arose from their occupations.

Dr Oriani-Ambrosini said he had understood that this Bill was not dealing with information about people in the intelligence services, but rather with information of people relevant to national security purposes.

Ms A van Wyk (ANC) agreed that this was the reason. She said that the database contemplated under the Forensic Services Bill would, for instance, be protected, because it was to be used for the purposes of solving crime. Databases at the Department of Home Affairs and Department of Health should also be protected. The Bill did not only apply to intelligence and security agents, but also covered information that could pose a security risk.

Dr Oriani-Ambrosini pointed out that the protection of Personal Information Bill would cover several instances. However, personal information about State witnesses would also be covered, provided that this was balanced.

Ms Smuts pointed out that the Forensic Services Bill database would not, for instance, contain medical details or familial traces, and any personal information would be “de-identified” by taking out private genetic information. The idea of such a database was not that it be classified.

Mr B Fihla (ANC) said that a tip-off about drugs being carried would be valuable information.

Ms van Wyk agreed with Ms Smuts that there were still a number of issues to be decided in relation to the Forensic Services Bill, but pointed out that it was not only the State who had DNA records. Perhaps the Department of Health was not the ideal example. The point she was trying to make was that this Bill was concerned with more than only the protection of agents, and urged that the Committee should not be looking at the Bill as if it were written purely for security services.

The Chairperson said that the discussion was essentially revolving around what was “confidential information” and this would have to be accurately defined. Definitions for different classifications should not be inconsistent.

Mr Landers extended the example raised by Mr Fihla, saying that if, as a result of a tip-off, security and intelligence services and law enforcement agencies became aware that a consignment of drugs was being flown from Bogota to a small airport such as Lanseria, and mount an operation to intercept. The outcome of that operation might not affect national security, but the question arose of how to protect information pertaining to the operation, since releasing that information might jeopardise the security of the operation.

Ms Smuts said that this was what she had been asking.

Dr Oriani-Ambrosini pleaded that the Committee should try not to argue by way of example. Notionally, there could not be anything wrong in classifying information which, if disclosed, could endanger a life or physical security of a person.

The Chairperson said that examples were the core of how points would be made.

Mr Swart also thought that giving examples assisted in understanding the application in practice. The difficulty in the different levels, from confidential to top secret, lay in following the progressive classification. At the moment this was not quite clear. He repeated his request from the previous day that the ANC should give its proposals in writing. There would need to be debate on the words “unlawful”, “is likely” and then on what tests would be applied at the higher levels, and whether “serious” would be inserted at higher levels, to “serious or irreparable harm” for the top levels. It would be crucial for everyone to have the same understanding.

Dr Oriani-Ambrosini, in an attempt to help the Committee move forward, noted that this was one of the most important clauses in the Bill, and that all new proposals should therefore be given in writing, and the further discussion on it deferred to the next meeting, to allow all Members to apply their minds to the issue.

Ms Smuts agreed, saying it was very important that all parties were in agreement on the fundamentally important principle that the thresholds must rest not on speculative harm, but real and demonstrable harm. She also said that Members would, in addition, need to consider whether definitions for “harm” or the different levels of harm, and “prejudice” were required. The Canadian Information Security Act contained a definition of “prejudice to the State” which was useful. She added that definitions would in any event be needed if the “hostile activity” offence were to be included, as it rested on causing prejudice to South Africa. Mr Maynier, her DA colleague, felt strongly that a definition of “harm” was needed, but she had an open mind on this.

The Chairperson agreed that this was a crucial clause. These were not entirely new changes, as proposals had been put forward previously, including some from Mr Swart, and a suggestion of change to categories by the Minister. The wording now proposed was similar to other jurisdictions. He thought that Members were close to reaching consensus.

Mr Landers said that the new threshold seemed to find favour, but, having listened to the further debate, he still believed that “is likely or could” should remain. However, Members seemed to have some difficulty with the reference to “security” in clause 15(2)(a). The example he had given of monitoring and mounting operations to stop drugs would fall under the category of “security”, both physical and otherwise, although it could also be argued that illegal drug imports could also constitute a threat to “national security”. The Committee could discuss whether it was apt to refer to “security” here, although he could not immediately think of another appropriate word to use.

Mr Swart commented that it was correct that his party had suggested the objectivity test, but “could reasonably be expected” was introduced from PAIA. The difficulty was, however, to check how this would fit into each of the clauses.

Mr Landers clarified that this test would be inserted in both subclauses 15(2)(a) and (c). Sources would be considered under “personal information”.

Mr Swart suggested that Members could probably reach consensus on the issue.

Ms Smuts said she had wondered if it was possible to have classification of sources unless there was inclusion of references to personal information. The problem, under the Minimum Information Security Standards (MISS) lay with “confidential” and “restricted” information. It was possible to achieve classification if the information was likely to “inconvenience” a person, and this posed a very strong risk of cover-ups. It was desirable to stop protecting a person for the wrong reasons, in order to hide information, and ensure that protection was done only to ensure “national security”.

The Chairperson said that in fact the Bill would result in far less classification than MISS, because there was no longer a category for “restricted” and the “confidential” level would also be stricter. Many documents that would previously have been classified would no longer be classified.

Mr Landers then noted that in addition to the amendments already proposed, the ANC was also proposing a new subclause 15(4), to read “A classifying authority must use the guidelines for classification levels as prescribed”.

The Chairperson noted that the original clause (b), dealing with commercial information, had been deleted.

Ms Smuts asked again that this submission be made in writing.

Mr Swart also asked whether the Members could see the remainder of the ANC proposals on other clauses in writing, although clearly they would not be regarded as binding. It was difficult to follow the verbal presentations only.

Mr Landers indicated that the proposed changes would be provided in writing. However, there was not a great deal left to table.

The Chairperson suggested that the ANC proposals on clauses 16, 17, 19 and 21 be briefly outlined.

Clause 16
Mr Landers pointed out that this clause dealt with the authority to classify information.. The ANC proposed that the words “automatically regarded”, in subclause 16(6), should be removed and substituted with “deemed.

The ANC also proposed a new subclause (7), which would read:  “Where a person is a member of the security services, as contemplated in Chapter 11 of the Constitution, who by the nature of their work deals with information that may fall within the ambit of this Act, that person must classify such information in accordance with the classification levels as set out in section 13”.

New subclauses (8) and (9) were also proposed, reading as follows:

”(8) A member of the security services must submit the classified information to the head of an organ of State in question for confirmation of the classification,

(9) The information classified in terms of subsection (6) must remain classified until the head of an organ of State in question decides otherwise.”.

Ms Smuts noted the DA’s proposal that clauses 16(5) and (6) must be deleted, following its argument that it did not wish information to be classified in “file-blocks”, as referred to earlier.

In relation to the new proposals on the new subclauses (7) to (9), she said that this was the matter about which she had, at an earlier meeting, asked for ANC comment, when Mr Landers said that he had not made this proposal, but the Chairperson confirmed that he had made it. This seemed to confirm that the Chairperson may have drafted the ANC’s discussion document. According to that earlier ANC document, the purpose would be to close a loophole around oversight, and she asked if this was the same rationale.

Mr Landers confirmed that the rationale behind the amendments remained the same.

The Chairperson said that the ANC discussion document referred to Ms Smuts was prepared as an ANC document, and was not prepared by him, although it reflected the ANC position. He clarified that these proposals related to who could classify. He reminded Members that the head of the organ of State was named as the individual who could classify, and there had been some concerns about who would be tasked with classification and delegation of powers. He then stated that in practice, people in the security industry and Chapter 11 institutions worked in environments very different from commercial environments. He noted that the South African Secret Service had a legitimate presence in a number of other countries, would register as agents, and would be able to work on projects beneficial to both countries. The agents were not at the level of head of organ of State. However, they did gather intelligence that they would need to send to their home country, and, because of the covert environment in which they worked, where there were real threats to their lives if identified, they also needed to classify as well as encrypt the information. These new proposed clauses essentially provided that these field workers should also have the power to classify, because they were working with sensitive information. However, there was further protection, apart from their own training, because ultimately the head of the organ of State would also still need to verify whether the information had in fact been properly classified, and to verify that it would remain classified until the head determined otherwise. If these clauses were not included, then the head of the organ of State would have to fly out to all places where there were covert or overt operations in order to attend to this function.

Ms Smuts thanked the Chairperson for this explanation but said that she would need to confirm the DA’s position on this.

Mr Landers added that the information received by the operative would have to be classified immediately before it was submitted to the head of the organ of State.

The Chairperson noted that this would not apply to all organs of State, and was obviously restricted to the Chapter 11 security services.

Mr Swart said that the ANC’s previous position paper had contained a useful suggestion around the level of delegation, in relation to clause 16(2). At the moment, this clause merely read “the head … may delegate to a subordinate staff member” and he suggested that seniority should be mentioned.

Mr Landers confirmed that he would come to that point. He was intending to introduce this amendment under clause 19. However, he agreed that the words “at a sufficiently senior level” should be added after “subordinate staff member”, in clause 16(2).

Clause 17
Mr Landers said that the ANC proposed, in clause 17(1)(i), to replace the words “ought to” with “must”.

Ms Smuts noted the DA proposal, that “directions” for classification should be referred to as “conditions” for classification, in the title.

In addition, she commented on clause 17(1)(a), saying that the assertion that secrecy existed to protect the national interest was incorrect. The DA proposed that this phrase should be deleted, and replaced with “Secrecy is justifiable only when necessary to protect national security”. She submitted that this accorded better with the international best practice wording.

The DA further proposed the deletion of subclause 17(1)(b)(iv). Although this would be desirable, it was currently inconsistent with the rest of the Bill, because all other references to commercial considerations had been removed.

The DA also wished to comment on 17(1)(i)(iii). The DA held the view that it was not necessary to include references to guarding against loss, as this was implicit in the mere classification.

In addition, the DA believed that the correct wording for the introduction to this subclause was that classification should be assessed and weighed “ against the “benefits of openness” rather than the “benefits of secrecy”.

Mr Swart said the ACDP supported the DA’s proposals on clause 17(1)(a), as this would bring the clause in line with the introduction of the test around justification. This would render illegal any classification of information in order to conceal an unlawful act or omission, such as a crime or incompetence, or another incorrect act or omission, or to prevent embarrassment. The ACDP fully supported the imposition of a criminal sanction if this was done.

Mr Landers noted, in respect of clause 17(1)(a) that the ANC had agreed that “national interest” should be replaced by “security” and perhaps the parties would be able to reach common ground.

However, he was surprised by the DA’s assertion that clause 17(1)(b)(iv) should be removed.

Ms Smuts stressed that she ha emphasised that although the aim was desirable, commercial classification had been removed from the Bill and therefore the DA did not think that this was consistent to retain this clause.

Clause 18
Mr Landers indicated that the ANC had no proposals in relation to clause 18.

Ms Smuts noted that the DA proposed the deletion of clause 18. Later on, the Bill mentioned the offence of possession and this was one of the most contentious issues in the Bill. Under this clause, as it stood, a journalist who came into possession of a leaked classified document would be obliged to take it to the South African Police Service (SAPS). The DA wished both this provision, and the offence related to it, to be removed. She pointed out that in Canada, a similar provision had been struck down as unconstitutional, by the Ontario Supreme Court. Although the provision was still extant in the legislation, there had been no attempts to pursue any prosecutions.

Mr Swart said that the ACDP agreed that ideally the whole clause should be deleted, or at the very least the portion of it dealing with “possession”. He also referred to the Ottawa Supreme Court matter, involving Juliet O’Neill, noting that the Court found similar penal provisions to be unconstitutional, because they conflicted with he constitutional rights of freedom of the press and freedom of expression, both of which were included in the South African constitution. Canadian authorities carried considerable weight in South Africa, and if the Committee was considering best practice in a consistent way, then it would need to be debate this issue.

Mr Fihla questioned why Ms Smuts was suggesting that it was inconsistent to require a person in possession of classified information to provide the information to the SAPS. It was likely that such information had been removed illegally from a safe and therefore was illegally in possession of the holder.

Mr Landers summarised that the ANC did not agree with the DA and ACDP proposals.

Dr Oriani-Ambrosini said that it was necessary to debate what “possession” meant, under clause 18. A person “in possession” of information had knowledge of it, and once this information was known, it was in the public domain. There must come a point at which the document would no longer be classified. A person could not be punished for reading a “secret” in a newspaper, although the person had presumably wilfully purchased and read the newspaper.

The Chairperson asked that Dr Oriani-Ambrosini come directly to the point, rather than raising public domain issues.

Dr Oriani-Ambrosini said that the IFP was proposing an addition to clause 18(3), to read “Any classified information, which falls in the public domain or is disclosed in a manner which can make such information accessible other than to those authorised to access it, shall be deemed no longer classified or classifiable in terms of this Act, save in respect of anyone who first caused such information to become a matter of public domain or so disclosed.”

He summarised that in the so-called “Wiki-leaks” matter, Julian Assange had not been held liable, although Bradley Manning, who released the information, was. He noted that although in other fields of law, such as privacy, the “privacy” status could be lost and gained as a person moved in and out of the public eye, this was not so with secrecy. Once a document was in the public domain it must remain.

Mr Landers noted that South Africa did not have anything similar to the USA’s law. Under this Bill, Bradley Manning would have been arrested and prosecuted. Similarly, the person to whom he had released the information would have been obliged to return it to the authorities. He questioned why Julian Assange should not have been prosecuted, when nobody seemed surprised that Bradley Manning would be. 
He did not think this was a very good example and believed that both should have been charged and prosecuted.

Ms Smuts thought that the last argument was not persuasive. Although the USA law did not apply, clause 16 did include a provision around media freedom, and the Committee should not lose sight of the important right of free speech. She then addressed the query raised by Mr Fihla, pointing out that the sections in the Canadian law that had been struck down by the court in fact addressed this point. Mr Assange was in the position of having acting for “purposes prejudicial to the interests of the State”, as set out in clause 15, and other penal provisions that could arguably have been used could have included, arguably “matters that impair or threaten the ability of the government to conduct diplomatic relations”. However, she stressed to Mr Fihla that provisions in the Canadian law that were very similar to the offences in this Bill had been struck down, and that South African courts frequently were persuaded by Canadian precedent.

Mr Nchabaleng said that possession and dissemination of information and classified information must be considered in the light of the problems both in relation to possession by an agent hostile to the country, and the known problems around sale of such information.

The Chairperson thought that one point had been missed. If Members agreed that there were legitimate secrets, that needed to be protected, with no suggestion of illegality, environmental damage, or attempts to cover up administration, then they must agree that classification was necessary to protect against disclosure of such documents. There was no point in having a law against disclosure if punishments were not included for those who did disclose. He noted Dr Oriani-Ambrosini’s suggestion that a secret document handed to someone in a sealed envelope must be regarded as in the public domain once the envelope was opened. However, that was the very same secret that people had agreed should not be in the public domain, so it did not make sense that it should now be distributed. Under common law, everyone involved in the document from the time it left protection, was an accessory after the fact.

Dr Oriani-Ambrosini thought that some of the arguments obfuscated the point, and pleaded for a straight answer to his question of where to draw the line. He said that different people may suggest that the point of “in the public domain” might be reached with the typesetter, the printer, the distributor, the editor or the journalist of the newspaper containing the “secret”. This went to the heart of the work that media people did, and the media should know at what point, between first disclosure and “monumental” knowledge, the matter became punishable. In terms of the law of defamation, each new repetition of a defamatory statement would amount to a new defaming. At some point an “open secret” could no longer be regarded as a secret requiring protection.

The Chairperson reiterated that the fundamental  principle was that the secret needed to be protected, and the only way to do so was to impose penalties.

Dr Oriani-Ambrosini did not think that his question had been answered.

Mr Swart thought that the nub of the issue lay in what the existing law – the Promotion of Access to Information – said. It contained an existing override on the basis of public interest, so this was already an established principle. Mr Swart emphasised that he was not suggesting that no journalist should ever be prosecuted, no matter what secret may be leaked. However, he was suggesting that if the journalist was prosecuted, then a public interest defence could be raised for consideration by the court. That, too, was already an established principle. There were circumstances, even in national security situations, where a secret could be disclosed if there was a, admittedly narrowly defined, public interest override. Therefore, a public interest defence would also cover this situation, and he appealed strongly for inclusion of this defence. He said it was not a major departure. International law had struck down provisions that infringed the freedom of the press. There was therefore a strong likelihood of constitutional problems with this Bill, if it did not include a narrow public interest defence. In relation to the public domain issues, he pointed out that PAIA also contained provisions, such as the SARS provisions, with a narrow application. The ACDP, in summary, agreed that secrets should be protected, but there should be a balance, and he appealed that the court should be allowed to reach that balance. For this reason, he was not averse to there being an offence of possession, provided that there was also a public interest defence.

Ms Smuts reiterated the DA’s request to delete all the clauses and offences to do with possession.

Dr Oriani-Ambrosini wanted to clarify the distinction between a public interest defence and a public domain defence. He noted that an “open secret” might not be a matter of public interest, yet was something that was widely known. He believed it was inconsistent to try to punish the possessor of such information. He reiterated that a classification could not stand if the information was open or know, irrespective of public interest.

Clause 19
Mr Landers noted the ANC’s proposal for clause 19(1), to add the words “at a sufficiently senior level” after “a staff member”.

In clause 19(2), the ANC proposed that the words “specified officials” should be replaced with “staff member at a sufficiently senior level”.

Clause 21
Mr Landers noted the ANC’s proposal to delete “to cause significant harm and” and to replace it with “likely or could reasonably be expected to cause a demonstrable harm..” (to the national security of the republic). This was consistent with earlier suggestions around the thresholds.

Dr Oriani-Ambrosini said that the IFP had suggested that this clause be deleted altogether. On the one hand, there were provisions determining the criteria for classification, and on the other another provision that noted that when the criteria no longer existed, the information must be declassified. Clause 21 contained a different set of criteria, which was inconsistent with clause 15, which was setting out the criteria for classification. He suggested that the information should merely be classified for as long as the criteria for classification subsisted. Once they did not, the information must be declassified. As now proposed, clause 21 set out a lower threshold for declassification than for classification, which did not make sense.

Ms Smuts said that Dr Oriani-Ambrosini’s view was clear, but, with respect, it was incorrect. Although, on the face of it, she agreed that the two sets of criteria did not carry similar weight, she disagreed that clause 21 should be defeated, because the criteria for continued classification, apart from those in subclause (f), were good. The directions for classification in clause 17 said that the primary classification decisions must be guided by clause 21. This was an odd way to approach the matter, but the two were clearly linked.

She then commented on clause 21(2)(f), which referred to “cause financial loss to a non-state institution or will cause substantial prejudice…in relation to clients, competitors or suppliers”. She did not understand why the State should be protected the commercial interests of a non-state institution.

Mr Landers noted that the clause was worded that “specific considerations may include… whether disclosure may cause and this clause dealt with continued classification. An official would have to decide whether the release of the information could cause harm.

Dr Oriani-Ambrosini said that there was a need to coordinate clauses 15 and 21.

Dr Oriani-Ambrosini thought that this did not, in any event, make sense unless there was a notion of “wrongful damage”. If the State had information about a company that could shut it down because it would be unacceptable to the public, it was not the business of the State to hold information that could prevent losses to that company.

The Chairperson said that in the intelligence community, tenders were dealt with completely differently than in other situations, and it was, for instance, necessary to be very careful about who might build an embassy or office premises.

Mr Landers cited an instance of the new American Embassy in Ottawa, which contained no material, nor any worker or contractor’s work, that was not sourced in America, in an attempt to protect security.

Dr Oriani-Ambrosini responded that he could understand the national security considerations, but subclause (f) was dealing with financial loss.

The Chairperson noted that there was no time for further discussion.

The meeting was adjourned until 14:00 on Tuesday 31 May.


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