Protection of Information Bill: deliberations on Clauses 14 to 21

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

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

The State Law Advisors summarised the changes from the previous meeting. A minor grammatical alteration was made to the new definition of “prescribed”. Both a comma and the word “and” were inserted after “disclosure” in clause 13(c). Clause 14 had been flagged for further consideration. In clause 15, after debate, suggestions were made to delete the reference to “unlawful disclosure” and replace it with “disclosure”, to change the classification levels, tighten the standards, and make the wording consistent in clauses 15(1) to (3). These were approved by the ANC, DA, ACDP and COPE. It was, however, recorded that the parties still wished to debate, when considering the definitions, how to deal with the reference to “security” and “national security”, which were juxtaposed, possibly either by noting that the ordinary dictionary definition for “security” would apply, or to formulate a broad and all-encompassing wording for “national security”. The IFP did not agree with the suggestions made. The IFP disputed whether it was necessary to make any reference to “serious”, believed that the subclauses (1) to (3) appeared to be setting two standards, and that the reference to “international relations” was not necessary and was confusing. If two tests were to be included, then they should be joined by “and” and not “or”, otherwise it was impossible to tell which would prevail. The DA urged that a definition of “prejudice” might answer the difficulties. The ANC had proposed the introduction of a new subclause 15(4). The DA thought there was no problem in its content, but agreed with the IFP that it was a repetition. This would be debated and confirmed later. The IFP specifically recorded its objections to the clause.

The ANC proposed the addition of new subclauses 16(7) to (9), which were agreed upon by the ACDP. The DA had no objection to these, but restated its opposition to subclauses 16(5) and (6), reasserting the principles of severability. COPE similarly recorded its opposition to 16(5) and (6). The IFP proposed new wording in the place of clause 16(6), to the effect that block classifications should not apply unless the classification was warranted in respect of each piece of information separately. Members discussed under what circumstances information that, on the face was not classifiable, might yet pose a risk. The ANC’s proposal was carried by a majority of Members.

Members agreed to a minor grammatical replacement in clause 17(1)(i), the replacement of the title of the clause with “Conditions for classification” and the replacement of “principles” with “conditions” in clause 17(2), new wording for clause 17(1)(a), and replacement of “benefits of openness” for “benefits of secrecy” in the introductory portions of 17(1). The IFP proposed another amendment dealing with a public domain defence, which was supported in principle by the ACDP and DA, but not by the ANC. This would be further debated when Members considered the offences clause.

The DA proposed that clause 18 be removed entirely, and the IFP also wished to raise comments. It was flagged for later debate. In respect of clause 19(2), the ANC proposed, and the DA and ACDP concurred, that the words “staff member at a sufficiently senior level within the organ of State” should be used, in addition to inserting this in clause 16(2). The IFP thought that this was less clear than the original wording and proposed that “a specified sufficiently senior-level staff member” should be used. In addition, the IFP wanted to discuss the situation around erroneous classifications. This clause was flagged for further discussion.

The ANC proposed, in clause 20(b) that “national interest” should be replaced with “national security”.  The IFP proposed the reduction of the 20-year period to 15 years, and although this was supported by the DA, the State Law Advisors were asked to clarify where the 20-year period emanated. There was some debate whether the clause applied only to documents in possession of the National Archives, as the wording was unclear. The IFP further argued that this clause, dealing with continued classification, set out criteria different to those set for first classification in clause 15, and that the inconsistencies must be addressed. The clause was flagged for further discussion.

The ANC proposed the replacement of “national interest” in clauses 21(1) and (2)(a), and the introduction of similar wording as used in clause 15, on the thresholds. The IFP moved for the deletion of the whole of clause 21, and objected in particular to the Minister’s powers in clause 21(3). The DA agreed with comments on the inconsistency, and noted its opposition to 21(1)(f).

The ANC gave notice of a proposed new clause about a classification review panel to review classifications, the classification manual and to report to the Joint Standing Committee on Intelligence.

The DA asked whether a response given earlier on the tagging had taken into account that National Archives was a provincial competency. Answers would be provided later.

Meeting report

Protection of Information Bill: Summary of changes made at 27 May meeting
Ms Vuyokazi Ngcobozi, Senior State Law Advisor, Office of the Chief State Law Advisor, tabled Working Document 6, dated 31 May 2011. She noted the insertion of the definition of “prescribed” on page 14.

Dr M Oriani-Ambrosini (IFP) suggested that the word “made” needed to be inserted in this definition, as this was agreed.

Ms Ngcobozi then noted the amendments to clause 13 on page 28. She noted the alteration “against alteration, destruction or loss, as prescribed”.

Dr Oriani-Ambrosini thought that the second part of the debate on this point had not been reflected and that the concept of “destruction or loss” was to have been eliminated also from subclause (c), as valuable information was dealt with at an earlier stage in the Bill.

Ms M Smuts (DA) said that although the DA did not agree with the changes made, she did not think that Dr Oriani-Ambrosini was correct. She did however think that, at the least, a comma, or alternatively “and” should be inserted after the word “disclosure”.

The Chairperson asked that the comma and the word “and” should be inserted.

Ms Ngcobozi pointed to the changes on page 30, in clause 16(2), and changes on page 31, in subclauses 13(6), (7), (8) and (9).

The Chairperson noted a request at the previous meeting that the ANC’s document be circulated, so that other Members could familiarise themselves with the wording.

Mr S Swart (ACDP) noted that he had received the document, and thanked the ANC for this.

The Chairperson reminded Members that the new subclauses of clause 16 would apply to intelligence operatives in the field.

Ms M Smuts (DA) said that she had not had an opportunity to consult with her party, but on the face of it there seemed nothing objectionable. In addition, the Chairperson had noted the need for classification and encryption.

The Chairperson reiterated that there were international agreements and arrangements with law enforcement agencies in other countries, who would register South African agents. The information that they would send back to South African organs of state would need to be classified, despite the fact that they were geographically far distant from the heads of the relevant organs of state who would normally classify. He stressed that this would only apply to security operatives, in their job of protecting the national security of South Africa.

Members recorded their consensus on the new subclauses.

Ms Ngcobozi then noted the amendments on page 34, in clause 19(2).

Continuation of deliberations on the Bill

Clause 14
Ms Smuts noted that proposals on clause 14 had not been finalised. She noted that the reference to the Register of clause 9 was in fact the incorrect register and asked if this would be changed.

The Chairperson said that this clause was flagged for further consideration later.

Clause 15
The Chairperson noted that the classification levels had been changed and the standards tightened.

Mr Swart said he was in broad agreement with the ANC proposals, but was concerned about the wording. Clause 15(1) spoke of “unlawful” disclosure, whereas clause 15(2) referred merely to “disclosure”.

Mr L Landers (ANC) agreed with the need for consistency. However, the most important information was “Top Secret” and it made sense to provide as strong wording as possible there.

Mr Swart suggested that then perhaps the first “unlawful” was misplaced. The test in PAIA referred to “its disclosure” without any reference to “unlawful”. He therefore wondered if “unlawful” could be taken out altogether. The Bill was referring to disclosure that caused damage. It was another matter whether this disclosure was unlawful.

Mr Swart said his party would support the thresholds, but thought that there was very little difference between 15(1)(a) and (2). He asked how the test would be applied. He thought that perhaps the word “harm” should be qualified. In clause 15(3) there was reference to “serious or irreparable harm”, which was in order. However, he thought that subclause (2) needed to be improved. He wondered if “serious and irreparable harm” should be used. As it stood, there was not a distinction between classifications of Secret and Top Secret, because the same test applied. He wondered if words such as “grave” or “exceptionally” could be used, to indicate the difference in threshold.

Ms Smuts asked for another point to be noted. She was not sure why “security” and “national security” were used in conjunction with each other.

In respect of the matter raised by Mr Swart, she agreed that all parties wished to look at “probability of harm” and agreed with a formulation of “is likely”, but noted that this did not appear consistently. In some instances, only “a reasonable expectation” appeared. The DA proposed that for the category of Secret, the formulation should be “is likely or reasonably expected to cause serious and demonstrable harm to the national security of the Republic”.

Ms Smuts then indicated that in respect of international relations, there were no qualifying words for a likely or reasonable expectation. If these were unintentional omissions, then they should be corrected. She said that the DA felt that for Top Secret classifications there should be reference to “demonstrability”, which could be inserted in the second line, alongside “irreparable harm”, and she agreed that “national security” was needed.

Ms a van Week (ANC) said that perhaps Mr Swart and Ms Smuts had missed the distinction. Clause 15(1)(a) spoke of “harmful” whereas subclause (2) referred to “endanger”

Mr L Landers (ANC) said that inserting “serious” before “demonstrable” would emphasise the seriousness if the information was disclosed. There would be no harm in doing so. The same applied to the comment on subclause (3).

Dr Oriani-Ambrosini put the Imp’s viewpoint that “serious” should not be inserted. Any classification should be done for “serious” reasons, since “national security” was the paramount criterion to justify classification. He agreed with the comments on the word “security” by itself. Over and above that, his concern was that subclauses (1) to (3) seemed to be setting two standards. The harm to national security was understandable. However, in addition there was reference to “international relations”. He thought that this was already covered, if it was to be interpreted as something that could also harm national security. If it was an alternative, then it was referring to something beyond “security” and “national security”. Under subclause (1), prejudice meant putting someone in a worse position than he was before. That was not the same as harm. A report that the wife of a Minister had smuggled drugs into another country might prejudice international relations, but adding language of this nature could be over-encompassing. Anything that could embarrass the Republic could be included; however, that was not a “national security” matter. He suggested that “prejudice to the Republic” and “jeopardise international relations” should be removed, but the other standards should remain.

Mr D Maynier (DA) urged that the concept of “security” should be deleted. The definition in the Bill meant “to be protected against danger, loss or harm” and was a condition that resulted from a state of inviolability against hostile acts. This was not particularly helpful. He suggested that “national security” should be the contingent context.

The Chairperson noted that when “national interest” was still included in the Bill (then changed to “national security”), the word “security” stood alongside.

Ms Smuts thanked him for this clarification.

The Chairperson thought that the two did need to stand put together. It was apparent from the presentation on international best practice, that both concepts were used. He did not agree with Dr Oriani-Ambrosini. In confidential matters, there were two issues – one of national security and the other of reasonable expectation of prejudice. The harm that a “confidential” document could cause, if leaked, had to be considered.

Dr Oriani-Ambrosini said that when two tests were listed, separated by “or”, then the two matters were different. The second aspect was not covered by definitions of either “security” or “national security”. Therefore it was necessary to consider what “prejudice to the Republic” would be, and this meant “everything that made the Republic look bad”, which was essentially any serious matter.

The Chairperson noted that there were options. “Or” could also mean “and” in certain contexts.

Dr Oriani-Ambrosini suggested that then the “or” should be changed to “and”, to make it clear.

Mr Swart asked if the danger of putting “and” might not be that it then added a second leg to the test, and inserted a higher threshold. “Or” suggested alternatives, whereas “and” was putting something else.

The Chairperson did not think it was meant to be one test.

Mr P Dexter (COPE) agreed that it would be necessary to distinguish, and define, the different levels. He would agree with either one or the other, and definitions.

Mr Maynier suggested that perhaps the answer might be to define what “prejudice the Republic” meant. In any event, it would need to be defined for the purposes of the reference, later in the Bill, to “hostile activities. The Canadian legislation included a 14-part definition of this.

The Chairperson asked whether this was not something for the judiciary to decide. In cases of fraud, where prejudice was a key element of the crime, the Courts decided if prejudice had been proved. The legislature could not determine all possible cases of prejudice that might be suffered.

Mr Maynier had confidence in the judiciary, but said he had less confidence in those who would be classifying information. For this reason a definition of “prejudice” would enable them to interpret the law.

Dr Oriani-Ambrosini said that “prejudice” had a clear meaning. Judges had interpreted it many times. Unless the judges were told to read it differently, they would be bound by stare decisis principles. “Prejudice” meant, by common understanding, being placed in a worse position. Anything that could cause the Republic to be worse off would be prejudicial. He asked that the Committee try to agree some principles. Where “or” appeared, it indicated two tests. If they were qualitatively the same, the lower term would effectively apply. He thought that crime statistics disclosure, corruption, maladaministration and similar matters would objectively be grounds to withhold the information. If not, then it must be decided what the term meant.

Ms Smuts reiterated that the answer was to define “prejudice”.

Ms Smuts then raised another point about the definition of the thresholds through the clause. She said that the international relations proposal had been included in the DA proposals. However, she was concerned that not all the clauses reflected the probability of harm (such as the last line of clause 15(1), and the fourth line of 15(2), although clause 15(3) did revert to the higher level.)

The Chairperson asked that Members deal with the comments in turn. Firstly, he confirmed the agreement of Members that in clause 15, the word “unlawful”, before “disclosure”, should be deleted.

The Chairperson noted that the wording in clause 15 was taken, almost word for word, from best practice. However, there were differences between “serious” “irreparable” and “demonstrable” harm. Some of the words were similar, but where a distinction must be drawn, different wording had been deliberately used to emphasise the hierarchy of classification.

Dr Oriani-Ambrosini said that this was partially correct, but partially out of context. All three categories referred to information that must be kept secret. The main purpose of the different classifications was to determine who had access to what, and to punish those who made information public, when not authorised to do so. In that context, he was not so concerned about subclauses (1) and (2) utilising the same text, and would be comfortable with not having a reference to “serious”. Putting “serious” on one side implied that anything else was “not serious” The same applied to subclause (3), as there was no point in having a higher test when everything was effectively controlled by the lower test. There was no reference to “serious AND irreparable”. When the wording “serious or irreparable” was used, this implied that something could be irreparable without being serious. He proposed therefore that “and” be substituted for “or”, or alternatively that “serious or irreparable” should be eliminated, as long as “harm to the Republic” was still included.

The Chairperson asked that Members consider what should be classified as “Top Secret”. Some countries included, in their definitions, the potential to cause warfare. This definition included something likely or reasonably expected to endanger the life of a person, or cause countries to sever diplomatic relations.

Dr Oriani-Ambrosini asked why that would not be a matter of “national security”.

The Chairperson asked that he not be interrupted at this point. Another aspect was the causing of serious harm, or irreparable harm, to national security. He did not know why Dr Oriani-Ambrosini was suggesting that there was a need to distinguish between them. Whether or not there could be recovery from the harm did not affect its seriousness in the first place. He reminded Members that very little information would be classified “Top Secret” because the test was so high.

Dr Oriani-Ambrosini raised a point of order that he did not think it correct that his understanding be questioned. His questions were asked to establish the logic of the position.

Mr Swart suggested that the parties were very close to reaching consensus. Members should look carefully at whether the whole clause had any danger of ambiguity. Ms Smuts had pointed out one or two places where the test should be added in, and he agreed that this could probably be done without the need for major debate.

Mr Landers suggested new wording for this clause, as follows:

15(1):  “State information may be classified as Confidential if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause serious demonstrable harm to the security or national security of the Republic, or is likely or reasonably could be expected to prejudice the Republic in its international relations”.

15(2) “State information may be classified as Secret if the information is:
(a) sensitive information,  the disclosure of which is likely or could reasonably  be expected to cause a serious demonstrable harm to the security or national security of the Republic, or could jeopardise the international relations of the Republic;
(b) personal information, the disclosure of which is likely or could reasonably be expected to endanger the physical security of a person”

15(3) State information may be class as Top Secret” if the information is:
(a) sensitive information, the disclosure of which is likely or could reasonable be expected to demonstrably cause serious or irreparable harm to the national security of the Republic or is likely or could reasonably be expected to cause other states to sever diplomatic relations.
(b) personal information, the disclosure of which is likely or could reasonably be expected to endanger the life of the individual concerned.”

A new subclause (4) was proposed: “The classification authority must use the guidelines for classification levels as prescribed”.

Dr Oriani Ambrosini said that this formulation was still introducing two tests: “is likely” and “or could reasonably be expected”. He had asked, at the previous meeting, what the difference was. If it was a quantitative difference, he asked which was the more stringent test.

Ms Smuts said it had already been agreed that both should be included.

Dr Oriani Ambrosini asked that she stop “pushing her weight”. He was asking a question because he did not understand the difference, and his legitimate question was not being entertained.

The Chairperson said that nobody was refusing to answer the question; they were waiting for it to be put in full. He asked if Dr Oriani-Ambrosini himself had a suggestion as to whether the difference was quantitative or qualitative.

Dr Oriani-Ambrosini said that he did not, and that was why he had asked the question. If nobody could answer it, then he thought it would be advisable to use “and” instead of “or”. The offences under this clause would be serious, up to twenty years imprisonment, and it was vital that it be properly understood. Currently, it did not make sense.

The Chairperson said that “is likely” had a different meaning to “could reasonably be expected”. This change came about as a consequence of objections raised at the public hearings, and complaints by opposition parties. This wording was well-established in international jurisprudence.

Mr Dexter, who was not in the meeting earlier, asked for clarification why “security” and “national security” were used.

The Chairperson reiterated the reasons, but said that “security” was always in the Bill. He thought that there was a difference, since “security” would refer to the common understanding of security issues, and “national security” would be defined. Members would consider, when going through the definition section, whether “security” should be assigned its ordinary dictionary definition.

Ms Smuts said that the cornerstone of classification should be captured logically in one definition. She questioned if it was necessary to invite any confusion or extra interpretation. There was nothing particularly objectionable in the current wording, but thought that “national security” could deal with general terms.

Mr Maynier asked if the ANC would agree to delete “security” so that all classification levels were contingent on “national security”, to be defined finally when the definition section was considered.

The Chairperson asked other Members if they had further comments.

Mr B Fihla (ANC) thought that it was not be necessary to “dig” comments out of Members. He suggested that the meeting move on.

Dr Oriani-Ambrosini said that the original Bill contained two categories of “national interest” and “security”, which were clearly different. Now the distinction was not so clear. Everything, including traffic regulations and fire alarms, would be matters of “security”. He suggested that only “national security” should be used. Then, when dealing with the definition of “national security”, this should be worded widely enough to ensure that whatever fell under “security” could be included in that definition.

Ms Smuts said that the DA felt that a second definition would not add anything, because “national security” was the important point. She thought that “security” was not necessary on its own. Whilst there was no objection to retaining it, it should not be placed alongside “national security”.

Mr Landers pointed out that the Chairperson had proposed that the dictionary definition be used. For the moment both words could stay, and then, in the definitions section, “security” should be assigned its dictionary definition.

Mr Dexter noted that there would be a need to look carefully at the dictionary definition, to avoid “security” becoming a catch-all definition.

Dr Oriani-Ambrosini said that words changed their meaning when placed in juxtaposition to each other. “Security” in this context would mean “everything but national security”. The dictionary definition would encompass everything. The words would acquire the meaning of “security in the Republic”. He wanted to use one word and one category only. It was clearly not desirable that “security”, an unknown and unforeseeable category, should give rise to classification. He did not think that it was a minor semantic matter. For the record, he noted found this clause extremely problematic, and had not agreed to it. He had expressed his reservations.

Mr L Diale (ANC) pleaded that the debate on this should move on.
The Chairperson asked Members to consider the inclusion of “serious” in clause 15(1). He thought it might not be necessary to include it here, because “could reasonably be expected to cause demonstrable harm” was making a sufficient point. Stating this as “Serious demonstrable harm” would move the information closer to a higher category.

Ms Smuts and Mr Swart indicated their agreement.

The majority of Members agreed that “Serious and demonstrable harm” should be included in clause 15(2).

Dr Oriani-Ambrosini thought that both subclauses would read better if “serious” were omitted.

Dr Oriani-Ambrosini commented that the proposed new clause 15(4) was already covered in clause 7. There was no point in including it, unless the words “Subject to clause 7..” was inserted at the beginning of the entire clause 15.

Ms Smuts agreed that this was dealt with elsewhere, but did not agree that it was in clause 7. She agreed that it was a repetition, although its content was not a problem.

The Chairperson suggested that it should still be included at this stage. Personally, he did not see a problem with it.

Dr Oriani-Ambrosini wondered if this was an empowering provision that required the drafting of a manual over and above the prescription contemplated under clause 7 (for broad categories). If there were not three different procedures, then he wanted this to be made clear. He asked if this was what was what had been contemplated when the Bill was drafted.

The Chairperson confirmed that this clause was drawing the attention of the classification authorities to the fact that something else had to be taken into account.

The Chairperson asked Members whether they were happy with the wording of the new clause, as amended, subject to the fact that (4) may be removed or adjusted if duplications were found later in the Bill. Apart from the matter of “security or national security” the rest of the clause seemed to be agreed.

Dr Oriani Ambrosini repeated that he had differences of opinion, as raised. He had not agreed with the general acceptance of the clause.

Mr Landers noted the concerns and the opposition but said that this did not preclude the Committee from continuing.

Ms Smuts noted a formal agreement by the DA on what had been achieved, except for “security”, on which the DA agreed that it was logical to defer further discussion until consideration of the definitions section.

Mr Swart said the ACDP would concur with the DA’s statement. However, he was concerned that the word “security” did not appear consistently. For instance, in 15(3), there was no reference to “security”, even though it was then not foreseen that “national interest” would become “national security”. Perhaps there could be consideration given to deleting it, at a later stage. However, he supported the suggestion to move forward.

Mr Dexter noted that COPE was also supporting the progress. There appeared to be consensus on the clause, except for the term “security”.

The Chairperson formally recorded that the majority of the Committee agreed on the reworded clause. He recorded that Dr Oriani-Ambrosini was not in agreement. The Committee would come back to the issue of “security” only, when it reverted to the definitions, but would not enter further substantive debate on other provisions. He requested the State Law Advisors to change the clause, to take into consideration the wording generally agreed.

Clause 16
Mr Swart noted that the ACDP had no problems with the proposals to add new subclauses 16(7), (8) and (9).

Ms Smuts restated the DA’s opposition to subclauses 16(5) and (6), and reasserted the principles of severability. She believed that the current wording may be contrary to the Constitution. The DA had no objection to the new subclauses (7), (8) and (9).

Mr Dexter also noted COPE’s opposition to subclauses (5) and (6).

Dr Oriani-Ambrosini said the IFP had no problem with what was before the Committee, but wanted to resume the discussions on the links between clauses 14 and 16. He reiterated a proposal that he had outlined earlier, to insert a provision saying: “information should not be subject to classification or classification by category unless the classification was warranted in respect of each piece of relevant information”. If there was any secrecy justification for one document in a file cabinet, this did not justify classification of the whole cabinet.

Ms Smuts supported the formulation, but asked where it should be inserted.

Dr Oriani-Ambrosini said that he was proposing this wording in place of clause 16(6).

The Chairperson cited an illustrative example that the State Security Agency might be involved with the CIA in a joint project around a dangerous criminal organisation. Information would obviously pass between the two. A letter from the head of the CIA saying “I refer to the project and call for a response” would not comply with any of the tests requiring that letter to be classified. It did, however, reveal the existence of a project and may, for this reason, require to be classified.

Mr Dexter did not think that this was a good example, as it was unlikely to happen in practice. However, the point was well made that there may be a need to classify something that did not, on its face, reveal sensitive information.

Dr Oriani-Ambrosini believed that the South African government should reveal that it was working with the CIA, although it clearly did not have to reveal details. A letter giving nothing away would not need to be classified. He did not think that the mere knowledge of a relationship with another agency was secret.

Mr Swart said that the danger with the broad classification was that documents that did not actually pass the classification tests would still become classified. For administrative expediency, the public would not be given access to those documents. The ACDP wished to record its objection to bulk classification, wherever it appeared in the Bill.

Mr Dexter noted that the broad definition would result in all correspondence of the National Intelligence Agency being regarded as something needing classification. He disagreed with Dr Oriani-Ambrosini that the relationship of agencies on a particular project was a matter for public knowledge, although it was a given that all intelligence agencies spoke to each other. However, he did not think the current wording achieved the objective sought.

Mr Landers thought that the parties would not reach consensus. He gave the formal ANC proposal that the clause be adopted, as set out in the latest draft, with clauses (4) and (5).

Dr Oriani-Ambrosini pointed out that this was not a formal adoption but was merely done for the purposes of giving an instruction to the State Law Advisors.

Ms Smuts agreed that this process was unconventional. It would be one of the grounds of challenge. She understood the process but did not agree with it.

Four votes were recorded against Mr Landers’ proposal, but it was carried by a majority of five votes from the ANC. The State Law Advisors were duly instructed.

Clause 17
Mr Landers noted that the ANC proposed that, in clause 17(1)(i) the word “must” should replace “ought to”.

Dr Oriani-Ambrosini indicated his agreement.

Mr M Nchabaleng (ANC) remarked that now the media had left the meeting, it seemed Members were willing to move on.

Dr Oriani-Ambrosini thought this remark was out of order.

Ms Smuts repeated the DA’s view that in clause 17(1)(a), 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”.

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”. (She would not be pursuing amendments to clauses 17(1) (b)(iv) and (i)(iii), suggested on the previous day). It further suggested that the title should be “Conditions” and not “Directions” for classification.

Dr Oriani-Ambrosini agreed with the DA. He wished to propose another amendment, (although it could be included elsewhere if felt more apposite) to insert: ”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 did not wish to repeat all the reasons stated before. There must be an affirmative defence that once something was in the public domain, it must be deemed no longer classified.

Mr Swart said that the argument about the public domain was supported by the ADCP, as there was limited reference to it in subclause 17(1)(k). The ACDP also supported the DA comments. It also supported the ANC’s proposal to substitute “must” for “ought”.

However, he pointed out that one instance where the straight replacement of “national interest” with “national security” did not make sense was in clause 17(1)(d)(ii), where the word “interests of national security” should have been used. The same applied to 17(1)(j).

Ms Smuts asked if the ANC would agree to including a public domain defence.

Mr Landers said it would not.

Ms Smuts said that the DA supported the public domain defence, although she was not sure that the wording was quite right, nor that this clause was the correct place to include it.

The Chairperson noted that all Members agreed with the change to the clause’s title, and the consequent change to (2) by the replacement of “conditions” for “Directions / principles”. He also noted that all parties had agreed to the changes replacing 17(1)(a). The language in subclauses (1)(d) and (j) would be adjusted as proposed by Mr Swart.

The Chairperson said that the public domain defence arguments had been heard before, but it would be more useful to consider this under the offences clauses. Dr Oriani-Ambrosini agreed to this.

Notice of proposal of new clause
Mr Landers asked that he be given the opportunity to raise a point. It was the ANC’s intention to move for the provision of a new clause, before clause 21, that sought to establish a Classification Review Panel to review the classifications, classification manual, and, once a year, look at the status of all classifications conducted by organs of State. It would have to report its findings annually, or as otherwise directed, to the Joint Standing Committee on Intelligence (JSCI)..

Ms Smuts welcomed the proposal and wondered if there would be provision for a review of the information classified currently under the Minimum Information Security Standards (MISS)

Clause 18
Ms Smuts noted her party’s assertion that this clause should be removed entirely.

Dr Oriani-Ambrosini said he would also be making a proposal on that.

The Chairperson noted that this would be flagged for further discussions

Clause 19
Mr Landers noted the ANC’s proposal, in clause 19(2), to insert the words “a staff member at a sufficiently senior level within the organ of State” instead of “specified officials”.

Mr Swart said that the ACDP agreed. A similar amendment should also have been made to clause 16(2), where the words “at a sufficiently senior level” should have been inserted.

Mr Landers agreed, and the State Law Advisors were instructed to do this.

Dr Oriani-Ambrosini agreed that the words“specified official” were unclear. However, as presently worded, at least there was reference being made to an action by virtue of which an official would be specified. The substitute wording referred to “sufficiently senior level” but this created no greater clarity since nobody would have determined this in advance.

The Chairperson said that the ANC’s alteration had been made because of concerns that if the authority was to be delegated, it might be done to a lower-ranking official. The concern was that a “specified official” may not be qualified or be at a junior level.

Dr Oriani-Ambrosini suggested that “a specified sufficiently senior-level staff member” should be used instead.

The Chairperson wondered if this was not merely a matter of semantics. He suggested that the clause be flagged.

Mr Landers said that he would not object to the revision, but asked why this was only being questioned now, since it had been discussed and introduced in earlier parts of the Bill.

Dr Oriani-Ambrosini also wished propose another amendment. The creator of the document would classify, and choose the classification. A person who legitimately classified would also have the power to declassify, in terms of clause 19(1). This related to all classifications set out in clause 16 (7) to (9). Sanctions were given for erroneous classifications, but if something was classified legitimately, then found not to have been justified, a person may not be able to declassify.

Ms Smuts noted that in clause 19(4) the Agency was given the responsibility of declassifying defunct organs of State. She asked if there was any intention to give this function to the new Agency proposed by the ANC.

Mr Landers said that the new Agency would not be tasked at all with classification or de-classification. Therefore that change would not be considered.

It was resolved that the clause be flagged for further discussion.

Clause 20
Mr Landers noted that the ANC was proposing that “national interest” be replaced with “national security”, in subclause 20(b).

Dr Oriani-Ambrosini noted that the IFP was proposing two amendments. The first was to reduce the 20-year period to a 15-year period. Secondly, it should be noted that any further classification must continue to comply with the provisions of the Act.

Mr Landers said that different jurisdictions had different periods. Despite the USA having the First Amendment, it still regarded information about the Kennedy murder as classified information. He asked for what reason a 15-year period was suggested.

The Chairperson noted that some jurisdictions allowed for 30, or even 50 years.

Dr Oriani-Ambrosini said that the period of classification on the Kennedy papers was 15 years, but subject to renewal, which had been done. It would not be obligatory to declassify after 15 years, but people would be forced to apply their minds as to whether further classification should be enforced. He commented that he would not always like to see the USA being used as a benchmark.

Mr Maynier said that his reading of the clause was that the limitation applied only in respect of documents in the possession of the National Archives. The South African Human Rights Commission (SAHRC) had suggested, at the public hearings, that the clause should apply to all documents.

Ms Smuts agreed, and questioned whether the State Law Advisors could advise where the 20-year period was laid out. Although section 11 of the National Archives of South Africa Act noted that public records identified as having enduring value should be transferred to the Archives Repository after 20 years, this was different from classification. The DA would not be opposed to reducing the period, as it would be subject to review. There were some very good criteria now set out for continued classification. Shorter periods were generally preferable.

Dr Oriani-Ambrosini said he did not read the clause as Mr Maynier did, because “subject to” was not used. “In accordance with” was an odd expression. If it was true that only something that was referred to the National Archives would be subject to expiry, then this was not acceptable, as the simple way around the provision would be not to send the information through. Criteria for classification were included in clause 15, but this clause could be read to say that an extension of classification would be done simply by continuing to comply. If so, then exactly the same language should be used. He further pointed out an inconsistency, because 20(c) appeared to refer back to clause 15(3), but did not include the ground of prejudicing the international relations of the Republic. He suggested the addition of a phrase “in compliance with the requirements for classification set out in this Act”. A statement that “information may not remain classified” would probably then make this applicable to other legislation too.

A DA Member asked if it was not possible to put a period in for each class of information.

Ms Smuts agreed with this suggestion.

Mr Fihla thought that a statement of ‘maximum protection periods” also implied that there would be a minimum.

The Chairperson noted that clause 20 would be flagged for further discussion.

Clause 21
Mr Landers proposed that “national interest” should be replaced with “national security” in subclauses (1) and (2)(a).

In addition, the ANC wished to insert the threshold introduced elsewhere, by inserting “is likely to or could reasonably be expected to cause a demonstrable harm to the national security of the Republic” after the words “”declassification of classified information”.

Dr Oriani-Ambrosini moved a proposal for the entire deletion of clause 21. It did not work, because it set out criteria that were not the same as those of clause 15, so that different criteria then applied to first classification and continued classification. He proposed that it would be more rational to say that as long as the criteria in clause 15 subsisted, classification could continue. He illustrated how clauses 15 and 21, in respect of the various categories, were inconsistent. For instance, for Secret classifications, clause 15(2) required “serious” whereas clause 21 referred to “serious and substantial”. The introduction of the phrase “prejudice and jeopardise” in 21(1)(c) set much higher benchmarks. Clause 21(3) was even more problematic, as it required the Minister to authorise the classification, which was inconsistent with earlier assertions that the Minister would create regulations and provide a manual so that the organs of State could do their job. Even if the entire clause were not to be deleted, then at the very least the proposals of Mr Landers in respect of clause 15 must be reconciled with this clause.

The Chairperson noted that the IFP had consistently asserted that it wished the whole clause to be deleted.

Ms Smuts noted that the DA was completely opposed to clause 21(1)(f). She agreed with the comments on the inconsistency with clause 15.

Ms Smuts then raised an issue around the tagging of the Bill, noting that the Open Democracy Advice Centre had objected to this Bill being tagged as a Section 75 Bill. The DA had proposed that certain parts of the Bill should be deleted as they were dealing with ”valuable information”, which the National Archives controlled. A response had been given on the tagging aspects, but she questioned whether that response had taken into account that the National Archives were an exclusive provincial legislative competency, and some provinces had their own archives legislation. One way to deal with this would be to delete clauses, as the DA had proposed. She suggested that an answer could be given on the following day.

The meeting was adjourned.


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