Protection of Information Bill: deliberations up to Clause 21

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

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

The State Law Advisors summarised the changes from the previous meeting. Opposition Members questioned the non-inclusion of the word “demonstrable” in the tests under clause 15(3), saying that not including this word might be lowering the thresholds. The ANC felt that the highest test of “irreparable harm” covered the situation. It was noted that two issues in the clause would remain flagged: the first being whether “security” should be retained in clause 15(1) and the second whether “demonstrable” should be included in the test under clause 15(3). A grammatical error was corrected in clause 16(7). It was noted that the Committee would not be able to define, in the Bill, who would be “at a sufficiently senior level” in terms of clause 16(2). A typographical error in clause 16(9) was corrected, and a grammatical error was amended in clause 17(1)(a). Members agreed that the wording of clause 17(1)(i) needed to be changed, to correctly reflect the weighing-up process. They also agreed to amend clause 17(1)(i)(iv) to reflect “adversaries of the Republic”. Although “Republic” was defined already in the Interpretation Act, Members would consider whether a definition needed to be included in the definitions section. It was agreed that a mistake in clause 17(1)(j) would be corrected.

Clause 18 still remained flagged for further discussion, in light of the DA’s insistence that it should be omitted. In respect of clause 19, a new clause was proposed by the IFP to specify that a person who had legitimately classified a record should have the power to declassify. It was felt that although the head of the organ of state retained responsibility when delegating, there might be situations, for instance when a field agent classified under clause 16(7), when the same person needed the power to declassify, which would otherwise have been delegated to another person. Members discussed whether the Bill was sufficiently clear on the point, but the suggestion was not supported. Members agreed to amend clause 19(4), to make a specific link to clause 19(5). They also agreed to include a clause, following the same wording as clause 19(3), as a new clause 16(10). The Chairperson noted that the DA and ACDP were not happy with the references to file blocks, and these parts of the clause would remain flagged for further discussion.

Members discussed the 20-year period under clause 20, noting that it was consistent with other legislation, although there had been a suggestion to amend it. There was not general support for prescribing different time periods for the different categories of classification. The Chairperson felt that if clause 21 was properly worded, problems should not arise under clause 20. The Chairperson, in the absence of Dr Oriani-Ambrosini, reiterated the IFP’s proposal to delete the clause, but suggested that if the first part was correctly worded, then it would be possible to remove all the following subclauses. However, this did not find general support. The DA believed that clause 21 was generally well-worded, with the exception of clause 21(2)(f), and that this formed part of the primary conditions for classification, because of the cross-references in clause 17. which the DA opposed, could be removed. All parties agreed to the removal of clause 21(2)(f). It was agreed that further consideration would be given by all parties to the apparent inconsistencies between clauses 15 and 21, and this would be raised again at the following meeting.

The ANC proposed that in clause 21(1), after the words “classified information” the rest of the sentence should be changed to read: “whether the declassification of classified information is likely or could reasonably be expected to cause demonstrable harm to the national security of the Republic. “ There was no discussion on this point.

The DA reiterated its request that the tagging issues should be debated.

Meeting report

Protection of Information Bill: Continuing Deliberations: Clauses 18 to 21
Dr M Oriani Ambrosini (IFP) asked if Members could be provided with a copy of the submissions of the Congress of South African Trade Unions (Cosatu). He thought that the Committee could take cognisance of it.

Mr L Landers (ANC) indicated that it was on the Cosatu website.

The Chairperson noted that Members could obtain and take anything into consideration when dealing with any issues, including the Cosatu statement.

Ms Xoliswa Mdludlu, Principal State Law Advisor, Office of the Chief State Law Advisor, indicated that the amendments had been made, following the previous day’s meeting. She noted the amendments to clause 15.

Ms M Smuts questioned whether “demonstrable” should not be included in the tests.

Dr Oriani-Ambrosini noted that it would not make sense for “demonstrable” to appear under the first two categories.

The Chairperson noted that “demonstrable” was not included throughout.

Dr Oriani-Ambrosini wanted to clarify whether a lower standard of threshold was intended to apply to clause 15(3).

The Chairperson said that he had attempted to explain the difference between Secret and Top Secret, which lay in the harm that information could cause if released into the public domain. “Secret” classifications still included the standard of “demonstrable harm”. Disclosure of “Top Secret” documents was likely to cause irreparable harm.

Dr Oriani-Ambrosini said this did not address the question put. Something with speculative harm could, under this wording, be clarified as Top Secret, but this did not apply to the other two lower categories.

Ms Smuts said that it must be actually demonstrated that a consequence would follow from release. She reiterated that a culture of justification must be applied. This was all the more so with Top Secret classification.

Mr Landers said that the highest test lay in “irreparable” harm, and this was a very high standard.

Mr D Maynier (DA) made a formal proposal to include the word “demonstrable” in clause 15(3)

Dr Oriani-Ambrosini added that “irreparable” qualified the type of harm. The word “demonstrable” was qualifying the probability of the harm happening. This was relevant in security information and intelligence. Without inclusion of “demonstrable” it would be possible to classify on a remote possibility of harm.

Dr Oriani-Ambrosini suggested that there was an error of understanding on this. Members had agreed on the wording, in the previous day, in good faith, assuming that what was announced under clauses 15(1) and (2) would be carried also for (3).

Ms Smuts said that she had specifically moved for the insertion of “demonstrable” and she thought that Mr Landers had agreed. She suggested that this should remain flagged and be dealt with on the final round. This whole clause was vital and the agreement of all parties was equally important. Perhaps some other way could be found to capture this.

Mr Landers spoke inaudibly.

The Chairperson asked all Members to note that there were now two issues flagged. The first was whether “security” in clause 15(1) should be retained, and the second was whether “demonstrable” should be included in the test under clause 15(3). He also asked Members to record that, but for those two issues, there was agreement on the other issues in clause 15.

The State Law Advisors continued with their presentation of the amendments to clause 16.

Members pointed out a grammatical alteration that needed to be made in clause 16(7). “Who” referred to people, not institutions and either “which” or “that” should be used if it was intended to refer to the Chapter 11 institutions who dealt with this information.

Mr S Swart (ACDP) noted that, in principle, Members had agreed to clauses 16(7) to (9). He suggested that the grammar of the whole Bill could be checked later. There was no reason to deal with it in depth now.

Mr Landers thought that these matters should be corrected as the meeting went along. This clause spoke to a person, and therefore he agreed that “deal” should be changed to “deals” and “their” to “his or her”.

Dr Oriani-Ambrosini suggested that perhaps “handles” was a better word than “deals”.

The Chairperson allowed Members to discuss it, but said that the final wording would be fixed later.

Mr T Coetzee (DA) raised a point about the delegation. From the start, he had been concerned about the wide classification of documents, and the application to all organs of State. He asked how wide clause 16(2) would be in relation to “staff members at a sufficiently senior level”, and whether it was intended to specify the levels.

The Chairperson said that he had thought this had been finalised on the previous day. The person dealing with classification would usually be the head of the organ of State, and any delegation must be to another person of sufficiently senior level. It was not possible for the Committee to decide who would be at a “sufficiently senior level”, since different organs of State had different posts. If this became an issue it would be up to the courts to decide whether the delegation had been done responsibly. However, if better wording could be suggested, to capture the clear understanding, then Members could propose it.

Ms Mdludlu continued to present the changes to clause 16(8), and 16(9). She pointed out that there was a typographical error in 16(9), where the reference should be to subclause (7).

She then proceeded to list the changes to clause 17.

Ms M Smuts pointed out a grammatical error in 17(1)(a), and suggested that the word “the” be deleted before “national security”. This was agreed.

Ms Mdludlu then pointed out the amendments in clause 17(1)(i).

Mr Swart said that while the instruction had been correctly carried out, the wording was not correct. A weighing-up process should be done between openness and secrecy. The benefits of openness, and benefits of secrecy, were two conflicting matters.

Ms Smuts suggested that if the words “must be assessed” were removed, it was possible to adjust the rest, along the lines of: “Classification decisions must balance openness and secrecy, taking the following into account..” .

Dr Oriani-Ambrosini said that there were two aspects. Under “secrecy” there were seven elements to be taken into account. He agreed that the test was between openness and secrecy. He suggested that the wording: “Classification decisions must balance openness against secrecy, taking into account the following factors ..” He thought that this was better grammar.

Other Members indicated their agreement. The Chairperson asked the State Law Advisors to effect that change to clause 17(1)(i).

Dr Oriani-Ambrosini asked if he could address the Chairperson now on 17(1)(i)(iv). He thought that the words “adversaries” needed to be qualified. This might be language in common use in the intelligence community but was not used in the legal sense. He suggested that perhaps “adversaries of the Republic” could be used.

Mr Landers pointed out that in international relations, friends today could be adversaries tomorrow.

The Chairperson noted Members’ agreement to insert “of the Republic” into clause 17(1)(i)(iv). He added that “Republic” must be defined in the definition section, as it should also incorporate other areas over which South Africa had jurisdiction, including all the islands.

Ms Mdludlu indicated that “Republic” was already defined in the Interpretation Act.

The Chairperson asked that it still be discussed again when the Committee came to the definition sections.

Ms Mdludlu read out the amendment to clause 17(1)(j).

Mr Landers said that the ANC’s version should have read: “scientific and research information not clearly related to the national security may not be classified”.

Ms Smuts spoke to this, but the first part of her comment was inaudible. She questioned if economic information relating to development should be classified. She thought that it might be necessary to ventilate policy on this. She gave the example of the electricity black outs a few years ago, when it then emerged that the main reason was the failure of Cabinet to plan properly over the years.

Dr Oriani-Ambrosini added that this applied if there was a public interest defence that addressed it.

The Chairperson responded that the Pebble Bed Modular Reactor matters were not kept secret. The fact that there was a need for the country to address other forms of power was clearly in the House. He thought this might not be a good example. However, this would take a different meaning if there was a need to protect installations, as attacks to the institutions could cripple the country. South Africa did not currently need to take this line.

The Chairperson asked the State Law Advisors to correct the mistake.

Ms Mdludlu noted the amendment on page 34, to subclause 17(2).

Clause 18
The Chairperson asked if there was consensus that this clause remain.

Ms Smuts said the DA was insistent that it be omitted.

The Chairperson noted that the clause would remain flagged.

Clause 19
Dr Oriani-Ambrosini noted that he had moved an amendment, which was not supported, on clause 19(2). However, he proposed another new subclause, reading: “Subject to clauses (1) to (6) a person who legitimately classified a record should have the power to declassify it.” This would cater for the situation where someone may have classified something erroneously, which would enable it to be rectified. In addition, he pointed out that a person who classified, perhaps under the new clause 16(7), would be the first person to know that an operation had been concluded and that the need for secrecy no longer existed. Administratively, it would make sense for this person to be able to declassify, to avoid the delay of someone else having to go into the whole matter.

The Chairperson noted that a person doing an erroneous classification would be subject to imposition of penalties.

Dr Oriani-Ambrosini agreed that someone who classified to cover a crime would be punished, but not if there was a genuine error.

The Chairperson said that the criminalisation suggested that the person had the intent that would prove the crime. If there was no intent to classify under the Act, then the person would not be guilty of an offence.

Dr Oriani-Ambrosini agreed, but said that the information would still remain classified, which would affect openness. He reiterated his view that whoever classified should have the power to declassify. There appeared to be no reasons why this should not be so. It was not necessary in all cases to wait for the annual review.

The Chairperson asked if the proposal referred to someone who legitimately classified. He questioned if it was not stating the obvious to allow that person the power to declassify.

Dr Oriani-Ambrosini did not think that this was made sufficiently clear in the Bill.

The Chairperson read out the introductory wording to the clause.

Dr Oriani-Ambrosini said that this was giving the responsibility to the entire “organ of State”. However, the revised clauses 16(7) to (9) said that a person such as a field agent would have the power, with confirmation from a senior person, to classify. Therefore he would suggest that the wording in clause 19 should be qualified with a reference to clause 16(1). The power to declassify would stay with the head of the organ of state, but in terms of clause 16(7), that power could be delegated to a field agent, and the information would, under clause 16(9) remain classified until another person declared otherwise. All these clauses, read together, meant that unless the head of the organ of State declassified the information, it could not be declassified. The problem was that both clauses 16(9) and 19(2) referred only to classification and not to declassification. The language of clause 16 was clearer, therefore perhaps it should be corrected in that clause.

He expanded on this by saying that the head of the organ of state could delegate the classification power to someone like a Director-level agent in the field. The power to declassify, however, may only be delegated to a Deputy Director General. Therefore the Director who had classified could not declassify. This would be unnecessary and unjustified. The power to declassify was no greater than the power to classify. In practice, he reiterated that the person classifying would be familiar with the subject matter, and he was concerned to avoid delays in declassifying.

The Chairperson thought that the Bill already covered this. Clause 19(3) said that the head ultimately remained responsible.

Dr Oriani-Ambrosini said that this related to accountability, as was correct. Nowhere, however, did the Bill say that the same person who classified could also declassify. He thought it was necessary to make this clear.

A DA Member (Joint Standing Committee on Intelligence) noted that clauses 16(7) to (9) related to those in the security services, and that was where the problem arose, since in most other organs of state it would be the head of the organ who would both classify and declassify.

The Chairperson said that there did not seem to be agreement on this point from other Members.

Dr Oriani-Ambrosini believed that his argument was rational, and asked Members for their motivation for rejecting it.

The Chairperson asked Members to move on to clauses 19(4) and (5). Clause 19(4) said that if there was an organ of State or agency that had become defunct, and had previously classified, the Agency must then take control of the classified information. Clause 19(5) said, although it did not follow clearly, that the Agency must consult with other organs of State who might have an interest in that information, before making a final decision. He suggested that subclause(4) should include the phrase: “subject to subsection (5)”, at the beginning, to make the relationship clear.

Ms Smuts asked for examples of agencies having an interest.

Dr Oriani-Ambrosini suggested that the erstwhile governments of the TBVC states might be an example.

The Chairperson said that the Agency would not consult anyone who did not have the authority to deal with classified information. It would depend on the type of information.

All parties accepted the Chairperson’s proposal to amend clause 19(4).

Mr Coetzee wished to raise another point, referring to the “sufficiently senior level” comment. He noted that in terms of clause 19(3) the head of the organ of state retained accountability for any decisions taken in terms of such delegated authority. He asked that this should then also be included in clause 16, as a new clause 16(10).

Ms Smuts agreed that this seemed to make sense. She was not sure whether it should not also say that the person could not divest themselves of power.

The Chairperson said that it could do no harm. He wondered if this adjustment could be made in one clause only, with a cross-reference to the other.

Mr Landers agreed with the suggestion, saying it would be logical for it also to appear in clause 16, although he did hear the Chairperson’s concern about repetition.

Ms Mdludlu said that it would be preferable, rather than attempting to cross-reference, simply to add in a new clause 16(10), following similar wording as clause 19(3). She confirmed that this amendment would be made.

The Chairperson noted that the DA and ACDP were not happy with the references to file blocks. Therefore those parts of the clause would remain flagged for further discussion.

Clauses 20 and 21
The Chairperson submitted that the reference, in this clause, to a period of 20 years was consistent with the National Archives Act, although there had been a suggestion to lower the time period.

Mr Landers referred to section 11(2) of the National Archives Act, which provided for an Archives Repository where records that had been in existence for 20 years should be kept. In addition, he referred to the Promotion of Access Information Act (PAIA), noting that section 41, dealing with defence, security and international relations, also referred to a 20-year period. He thought that a lowering of the 20-year period may give rise to consequential difficulties, and therefore suggested that the 20-year period remain.

Ms Smuts said this argument was both logical and convenient. However, she wondered if the Committee should not give further consideration to a proposal made on the previous day for different periods for different documents. If the point of departure of this Committee was that things should, wherever possible, be open, then it was desirable that information be made available wherever possible. She suggested, that perhaps periods of review of 10, 15 and then 20 years, for the three classifications, could be inserted.

Mr Landers pointed out that the review provisions already said that the status of all classified information should be reviewed at least once every ten years.

Ms Smuts gave an inaudible response.

The Chairperson said that the maximum protection period provisions proceeded from the assumption that this information had been correctly classified, and there was no reason for it to be declassified or reclassified. The following clauses in the Bill dealt with continued classification. There should not be concerns under clause 20, because 21 (even if the intention was not quite correctly captured) would take care of the matters. When the circumstances that resulted in the original classification, under clause 15, had changed so that leaking of the document would not have the same consequences, the document would be either downgraded or declassified altogether. Those having the authority to classify would then have to deal with the matter. If this was correctly reflected in clause 21, then clause 20 must cover information that, notwithstanding anything else in the Bill, could be declassified or have its classification reduced. He suggested that if this was captured correctly, then all other subclauses under clause 21, including clause 21(2)(f), which the DA opposed, could be removed.

Ms Smuts thought that clause 21 was desirable. By virtue of the cross-references in clause 17, this formed part of the primary classification requirements, so that conditions for continued classification were also conditions for primary classification. She thought that they were well-worded and served as good examples.

The Chairperson flagged these clauses for further consideration.

Mr Landers noted that at the end of clause 21(3), there was reference to the criteria set out in clause 15. This therefore was sufficient recognition of what was contained here being incorporated. He noted that Dr Oriani-Ambrosini had suggested that this clause should be removed.

The Chairperson asked Ms Smuts if the DA would still be in disagreement with subclause (f)

Ms Smuts asked if the security services would vet people responding to tenders. If so, that might be a reason for this subclause, and she asked if it perhaps covered information about people tendering for police headquarters. If so, it was not acceptable. Certainly, anything to do with “business reputation” should not be included in this Bill.

The Chairperson noted that all Members agreed with the removal of clause 21(2)(f).

Dr Oriani-Ambrosini, who had been absent from part of the meeting, said that on the previous day, he thought it had been acknowledged that the criteria for classification and declassification were mismatched, and that the ANC would consider those points further.

The Chairperson told Dr Oriani-Ambrosini that this point had been raised from the Chair, and he had strongly argued that this should be properly captured, in light of the two different tests. After some debate, there had not been general support for the views of the IFP. He did not want this topic to be re-opened. Only clause 21(2)(f) would be removed.

Mr Swart thought that the implications of the different tests were still being discussed. He asked if perhaps Members could be given the opportunity to think about it overnight.

The Chairperson noted that this would be discussed at the next meeting.

Mr Landers put an ANC proposal that in clause 21(1), after the words “classified information” the rest of the sentence should be changed to read: “whether the declassification of classified information is likely or could reasonably be expected to cause demonstrable harm to the national security of the Republic. “

Ms Smuts asked if the Committee could speak to the tagging issues, after having received input from the State Law Advisors.

The Chairperson noted that the meeting was adjourned, until Friday morning, at 09:00.


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