Protection of Information Bill: New clause deliberations

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

09 June 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

Members continued to discuss the proposals made by the ANC, for the creation of a review panel, and the Chairperson again asked Members to consider whether it would be preferable to draft an entirely separate portion of the Bill dealing with reviews and appeals, and thought it was necessary to separate out the appeal process and the review process. At the last meeting, some questions and concerns had been highlighted by the opposition parties, and the ANC gave its response. The ANC had not taken a strong view, either way, on the necessity to spell out what would happen if the State refused or failed to conduct a view, although the DA believed that in this case, the information must immediately be declassified. The ANC did not believe that the panel would be permanently appointed, and saw “independence” as meaning that it should be independent of the classification function. In answer to concerns that the panel would report to the Joint Standing Committee on Intelligence (JSCI), which met in closed session, the ANC still believed that this was the appropriate body to whom the panel should report, and pointed out that the JSCI had the authority to issue reports in appropriate circumstances. Suggestions for the RICA judge to be included on the panel could be considered. The DA reiterated that it believed the appointment process used for the Independent Electoral Commission would be a good model to ensure independent appointments, and emphasised that the RICA judge should be appointed in relation to clauses 23 and 25. Members agreed on the need to reach clarity on what the panel would be doing. One possibility was that it would be checking compliance with the manual, in which case it may need to use a procedure similar to that of the Auditor-General, with sampling and reports on compliance. However, there was also the question whether it could conduct reviews if there were doubts about compliance, and whether the public should also be entitled to approach it to question classification. Members agreed that it would be desirable to include more specifics about the suitability of candidates to serve as panellists, the standard conditions around solvency and legal and mental status, and possibly also to specify the term of office and removal procedures. The IFP was concerned about the status that the “manual” would have, and also cited problems in the panel being able to create its own “rules”, and suggested that perhaps what was envisaged for the manual should rather be put into regulations. It was also necessary to look at who would draft the manual, and to ensure that the function of the panel did not conflict with what had been stated already in other clauses, particularly clause 7, and the oversight of Parliament. The DA again questioned how often the panel would need to meet, and stressed that the Bill should contain a provision that everything formerly classified under the Minimum Information Security Standards must immediately be reconsidered when this Bill came into operation, failing which the information must be declassified. Members also discussed whether the members of the panel would need to be security-cleared, with the ANC maintaining that they would, but the DA in disagreement. It was noted that members serving on the JSCI required clearance, although the DA did not believe this was necessary, and the IFP was of the view that it was incorrect for the NIA to attend to the clearances. The position in other countries was outlined. Members agreed that they would put into writing their specific proposals for the new clause, and exchange these by 14 June.

The Chairperson confirmed that he had requested the House Chairperson for an extension of the life of the Committee but still awaited a formal response.

Meeting report

Protection of Information Bill: Continuation of deliberations
New Clause: Review Panel
The Chairperson reminded Members that at the last meeting the Committee was dealing with the ANC’s proposals around the review panel. He had asked Members to consider whether it would not be better to include a separate section dealing with reviews and appeals.

Mr L Landers (ANC) gave the ANC’s responses to the questions posed by the opposition parties at the end of the last meeting. Dr M Oriani-Ambrosini (IFP) had posed the question as to what would happen if an organ of State refused or failed to conduct a review, and suggested the need to include sanctions or penalties for this. The ANC had not taken a strong view either way on this point.

Mr D Maynier (DA) had raised queries about the independence of the panel. The ANC was not envisaging that the panel would be permanently appointed, but would be called in when necessary to conduct reviews. This was not intended to be similar to a Chapter 9 institution. Their “independence” meant that they would be independent from the classifying function, since this would still be done by the head of the organ of State.

Mr Maynier had also expressed concern that the Joint Standing Committee on Intelligence (JSCI), to whom the panel would be reporting, met behind closed doors. The ANC maintained that Parliament in general should not deal with these matters. Mr Landers noted that he had served on the JSCI since inception, and could vouch for its integrity and its excellent work. At the very least, the JSCI had the authority to issue reports on matters if it felt that this was appropriate, notwithstanding the sensitivity of the information.

Mr Landers continued that Ms M Smuts (DA) had also made some important points. He had already answered the question on whether the panel would be full or part-time. However, she had also suggested that at least one member of the panel should be expert in media freedom and access to information, and had also suggested that the judge who handled applications for interception under the Regulation of Interception of Communications Act (RICA) could be included. The Committee could look at including this in the Act.

Ms M Smuts (DA) wished to clarify a couple of points. Firstly, she wanted it to be noted that she had mentioned that one of the best models for appointment was the mechanism used for the Independent Electoral Commission, where a separate committee started the process, and a Parliamentary committee was also involved. She had thought that this was a good way to ensure “independence” of the appointees. She had also emphasised the DA’s consistent view that a RICA judge be appointed in relation to clauses 23 and 25, and should be the “appeal authority” of clause 25, as opposed to the Minister.

Ms Smuts then asked for clarity on what the panel would do. The ANC had suggested, under the proposed clause 22(1)(a), that the panel must “conduct the application (sic) of the classification manual contemplated in section 13(4) of all organs of State”. She asked if this was the manual dealing with standards for classification, as now added in to clause 15.

Mr Landers confirmed this.

Ms Smuts wondered if “implementation” implied “compliance” with the manual. She and Mr Landers agreed that “application” was not the correct word. It would be quite an onerous task to study each department’s compliance. She suggested that the panel may conduct the work similar to the Auditor-General (AG), who looked at regularity and used sampling. She further pointed out that the Protection of Information Bill (the Bill) provided that a review would be required every ten years, from commencement of the Bill, so this panel would not be receiving reviews once a year on the status of classification.

Mr S Swart (ACDP) thought this proposal was a step in the right direction. The ACDP was grateful for the opportunity to further explore what the panel would be doing. He noted that the organ of State would still conduct reviews and appeals, but he wondered if this body would, of its own accord, be able to review if there were doubts about compliance with the manual. He thought that its powers, under clause 22(1)(c) needed to be more clearly stated. Although “conduct the application” might cover this, he would prefer that the power to conduct a further review be explicitly stated.

Mr Swart said that some time ago the Open Democracy Advice Centre (ODAC) had prepared some useful suggestions about the classification board, stressing that the appointment process should be transparent. He also reminded Members that he had suggested that a South African Human Rights Commissioner should be included. ODAC had also suggested that panellists be chosen on the basis of their knowledge and involvement in constitutional law, access to information and democracy, and the crux would be to get the right wording in the Bill. In addition, he indicated that the words “must be available to fulfil his or her role”, under subclause (3)(c), could be amplified by the fairly standard wording used in other legislation, to the effect that a person must be of sound mind, fit and proper, and not an unrehabilitated insolvent.

Ms Smuts asked what the function of the panel proposed by ODAC would be.

Mr Swart said this proposal was made in relation to a declassification board, but he thought that some of the principles suggested would be useful for this panel.

Dr M Oriani-Ambrosini (IFP) thought that there was not sufficient differentiation between, on the one hand, government ensuring sufficient compliance by its own entities, and, on the other, ensuring interface between government and the citizenry. This clause was essentially allowing a body to ensure that organs of state followed rules, but did not allow a citizen to challenge them. He believed that there was still a need to ensure that a citizen could challenge first or ongoing classification, calling for justification against a need. He wondered if the Committee would discuss how these functions could be merged in a single body.

He said that the manual was referred to in the original proposals for clause 15(4), but he still thought that there was a need to discuss the status of a manual. The former apartheid government had regarded manuals as internal documents that were never made public. This historic fondness for manuals persisted in the intelligence community, because of the Minimum Information Security Standards (MISS), which was classified as “restricted” and created conditions under which people could be punished. The manual was not a law, regulation or guideline, and he believed that whatever was said in the manual should rather be put in regulations.

Further questions related to who should draft the manual. In addition, this panel would be ensuring that there was compliance so it was policing the effectiveness of the manual in all organs of state. That, however, was creating a function different to what had been discussed up till now, and he reminded Members that clause 7 allowed the Minister to set up regulations, and Directors-General would be responsible for complying with them, similar to the public service regulations that applied across all departments of state. The new proposals now created another group of people and this meant that oversight over implementation was being taken away from Parliament and given to what appeared to be “a super-intelligence structure”. He said there was a need for clarity on what exactly this panel would do.

He noted that under the proposed clause 22(2), this panel would be given the power to make rules. He questioned whether “secondary regulations” could be delegated to a panel. If these were not regarded as regulations, then it was necessary to consider where the manual and rules fell and what the purpose was of the rules. These appeared to be similar to National Treasury directives, which, although having no status in law, nonetheless had to be complied with by officials.

Dr Oriani-Ambrosini said that the draft legislation must be read against the backdrop of the reality. He had heard Mr Landers’ points about the JSCI. However, there were effectively two “super”-departments – National Treasury and Department of State Security - and anyone really wanting to lobby Cabinet would be advised to use these two bodies to try to push their point.

The Chairperson interrupted and said that Dr Oriani-Ambrosini seemed to be making a suggestion as to what really happened at Cabinet level, and wanted him to clarify that this submission was only his opinion, and was not a fact.

Dr Oriani-Ambrosini said that this was very relevant.

The Chairperson said that he would not allow Dr Oriani-Ambrosini to use this platform to criticise the Executive and make allegations.

Dr Oriani-Ambrosini thought it was not the Chairperson’s role to interrupt his argument on the constitutional analysis. If Members of Parliament were to be stopped every time that they said something that was not factually correct, Parliament would come to a halt.

The Chairperson asked Dr Oriani-Ambrosini to listen to what he was saying. If Dr Oriani-Abmbrosini was going to reflect negatively on how the Cabinet operated, then he would be cautioned. If he was talking in general about his own ideas, then he should put them as a perception, but not a fact.

Dr Oriani-Ambrosini thought that the Chairperson was abusing this position, as he saw this as an attempt to censor what Members were saying. However, he wished to continue with his argument. He said that this Bill was creating an organ of State to which powers were being given. Especially given the present backdrop, this piece of legislation would be increasing the powers of intelligence operatives and their potential influence. As a matter of public record, as this had been reported by the media, the intelligence operatives had already involved themselves in the making of a new precedent. The more powerful that intelligence structures became, the greater were the legal and constitutional concerns.

Mr D Maynier (DA) wanted to support Dr Oriani-Ambrosini’s right to make any statement. The Chairperson should not censor him, but should rather persuade him, through argument, to another position.

Mr Maynier then addressed the proposed clause 22(1)(d). He was still concerned about the reports to the JSCI, because it met in closed sessions. These reports would not be reports on classified information itself, but reports on the compliance with the classification rules and status. There was some past precedent that this kind of information be publicly disclosed. The Institute of Security Studies had noted that in 2007 and 2008 the Auditor-General had reported on security information weaknesses and failure to lock down sensitive codes sufficiently, within the National Intelligence Agency (NIA) itself. It was in the public interest that this kind of information should be in the open.

Ms Smuts said that she agreed with Dr Oriani-Ambrosini that it was vital to achieve clarity on the status of the manual and the panel, and whether this would be a panel ensuring that government structures were complied with, or whether it would have a higher status of independence and be able to ensure that government departments were not abusing their powers. She thought that the ANC’s proposal went some way to ensure that classification was occurring properly, but was not sure that the correct structure and status had yet been achieved, and would like more discussion. She thought that clause 22(1)(a) should work as a check on the abuse of powers. Although the panel’s receipt of the 10-year reviews was more of a clerical function, it was still necessary to consider how often the panel would meet, and what would happen if organs of state failed to submit reviews.

Ms Smuts reminded the Committee of the DA’s concern that many of the documents formerly classified remained classified under the four levels, despite the Ministry’s own admission that the classifications had been incorrect. The DA believed that everything already classified under MISS must be considered and re-classified or de-classsified immediately, then the 10-year period should commence after this exercise, and that documents should immediately be declassified if the review did not occur.

The Chairperson noted that the ANC proposals had been put forward to address Members’ concerns about the involvement of the Minister in the review process, and to try to avoid conflicts of interest. He had not yet had any concrete proposals as to how the ANC suggestions might be reworded, although Mr Landers made it clear that the ANC would be prepared to discuss alternatives. He would have liked to have heard concrete suggestions as to what the panel should do, who should serve on it, and whether the panel itself should determine its own procedure.

Mr Landers responded that he had picked up some suggestions, although these may have been phrased as questions. For example, Dr Oriani-Ambrosini had suggested that rather than having a manual, there should be regulations, and had made some good points about the difficulties in having a manual. Another proposal was the possibility of having directives, similar to National Treasury. Mr Swart had then raised the point that perhaps the panel could conduct reviews. Dr Oriani-Ambrosini also posed the question who would monitor the conduct of reviews. It was intended that this be the role of the panel. Mr Landers wondered what would happen if the panel did not conduct its work, or did something wrong, and suggested that perhaps the Bill should contain steps for removal, rather than approaching the Court. Ms Smuts had also made an important point about the panel working in a way similar to the AG, who would audit, as opposed to doing the counting, and who would not effect the necessary changes itself, but inform departments that they must correct problems. He also thought that the points about who would draft manuals had been dealt with, but this could be looked at again.

Mr Landers agreed that Ms Smuts was correct about the morass of classified documents needing to be addressed. The current Act dated from 1982, and was derived from the British legislation. Although the British laws had undergone numerous amendments, the South African Act remained virtually unchanged and it was necessary both to address its outdated provisions, and the fact that much information had never been declassified. He was not sure whether this proposed panel would deal with this. When Minister Lindiwe Sisulu had served as the then-named Minister of Intelligence, she had come up with certain proposals, and perhaps the JSCI needed to go back and reconsider those. This was a pressing problem. Even the National Archives probably experienced problems in addressing these issues.

He reiterated that the ANC proposals were designed to stimulate discussion. Some new and interesting issues had been raised. There was certainly room for further engagement.

Mr B Fihla (ANC) raised his concerns that Dr Oriani-Ambrosini, having made some proposals, was not remaining in the meeting to hear other proposals and answers.

Mr M Sonto (ANC) thought that the opposition parties clearly understood that the ANC position had been put in good faith, and would like to see the development as a participatory process.

Mr Swart agreed that because this was such an important issue, it was important to engage fully. He had raised a number of suggestions about the wording. However, it was particularly important, as a first step, to discuss the options and decide what the panel would do. Currently, the head of the organ of state would do the review, and this panel would effectively review the head’s review work. However, the review panel then perhaps needed to have the power to look at the organ of state’s work. This then led to the need to discuss whether a citizen aggrieved by a decision could appeal to the head of the organ of state (instead of the Minister, as presently worded). He wondered if it was correct that citizens should have recourse to the panel.

Mr Swart said that he was happy to draft some formal options in relation to appointment, to be considered for addition into the proposed clause 23(2). He agreed that a person should be “suitably qualified”, but thought that this should be amplified, to include qualifications such as constitutional law, knowledge of security matters, and that there must be details added in regard to eligibility for appointment, period of service, and when a panellist may be disqualified, including being asked by the Minister to resign for good cause, failing to attend meetings, or becoming disqualified.

Mr Maynier, adding to his points that the panel should be able to report in open sessions, said that if a panellist was removed, this information should surely also be made public. Some interesting points had been raised for discussion.

Ms Smuts said that she could also make some proposals in regard to the panel. Form should follow function, and how the panel would be constructed would depend upon what it did. It was also necessary to bear in mind that the ANC’s proposal flowed from the concern that if the Minister had a function in review of classification, then there could be a reasonable apprehension of bias, which would preclude him from hearing appeals. If Members agreed to have a judge for the appeal function in clause 25, this would take care of that difficulty. She thought that perhaps the panel could be appointed by the Minister, but she wanted to separate out the appeal and review procedures.

The Chairperson said that last week, he had asked Members to consider exactly what they wanted, and had made the point that appeals and reviews were different. He reiterated that perhaps there was also a need to create a separate section in the Bill to deal with these. He cautioned that Members should consider what provisions were contained elsewhere in the Bill as well, so as to iron out any possible inconsistencies, and make sure that the new proposals were all-encompassing.

The Chairperson commented on Ms Smuts’ proposal for appointment of a judge, but said that there might be difficulties if it did become necessary to approach the court, and asked her to bear in mind that judges fell under the Department of Justice and Constitutional Development.

Prof L Ndabandaba (ANC) suggested that these concerns could be solved by asking a retired judge to head the review panel.

Mr Maynier agreed that this was a very positive suggestion.

Ms A van Wyk (ANC) agreed that the discussions had given the ANC the opportunity to think again and possibly implement changes to the original proposals. She agreed that the report of the review panel could well be something similar to the AG’s report, or the kind tabled to Parliament on adherence to the necessary legislation. She agreed that the panel would not be reporting on “secret” documents as such, but on compliance and any necessary corrective measures. However, if there were cases opened, these might expose documents that had been wrongly classified and this then led to the question of what would be done in respect of officials wrongly classifying.

Mr Swart asked Dr Oriani-Ambrosini for clarity on what his suggestions were for the panel. He appreciated what had been said about appeal and review. He asked whether Dr Oriani-Ambrosini was suggesting that citizens should have access to the panel, and whether he could give his reasons if he did believe this. If Members could reach consensus on that, and decide whether the panel would merely be reviewing previous decisions, or also allowing access by citizens, then the Committee could move forward.

Dr Oriani-Ambrosini said that the basic rule was that whoever who created the rights should not adjudicate them. To some extent, as proposed here, there was a regulatory function. The panellists would not only review, but would create rules under which the review took place. He believed that the panel would actually need to work with the organs of state and ensure that there was active compliance. He wished to draw an analogy with the functions of National Treasury, which was not allowed to adjudicate rights. He believed that the verification of the conditions for classification should be done on the basis of a challenge brought by any person, including one department who might want to access documents held by another department. That was a quasi-judicial appeal, and it led back to the correlation between the Promotion of Access to Information Act (PAIA) and the Bill. However, the present wording raised concerns about the power of the panel, and this made the issue of independence more crucial. He believed that there was a need to set out the conditions for appointment to the panel more clearly, and they should not be members of the intelligence community. If a panellist could not be convinced of the necessity to classify the information, then it should not remain classified.

The Chairperson moved to another point, noting that when the panel was created, the panellists would need to have the necessary vetting status.

Ms Smuts thought they would not need to be security-cleared.

Mr Landers agreed that the people serving on that panel would have to be vetted, and the ANC did not think that a person not vetted could serve.

Ms Smuts said that the DA believed that the JSCI should not be sitting beside closed doors, because the Constitution asked for transparency and accountability. The DA also believed that the legislative authority of the country should not be vetted, and thus also did not believe that people sitting on an oversight panel should be vetted.

The Chairperson noted that the Intelligence Service Oversight Act prescribed that all Members of the JSCI must go through the necessary vetting process, and he quipped that if Ms Smuts had been part of the process that carried that Act, she seemed now to have changed her views. Similarly, all JSCI meetings had to be behind closed doors, unless otherwise decided. The appointment process for the Inspector General of Intelligence was, however, an open process. This was the position in law.

Ms van Wyk stressed that members of this body must be vetted because they must look at classified information themselves. Vetting must not be seen as a “loyalty test” for government, but was an established practice. This oversight body was expected to ensure that government departments were handling documents correctly, and they themselves must have gone through the correct processes.

Mr Landers said that he had had the privilege of participating in exhaustive debates on the type of intelligence structures that should service South Africa after 1994, and all parties unanimously agreed that it was necessary also to have oversight over the intelligence structures. He had visited the US Senate, which had one of the foremost oversight committees in the world, and all senators serving on that committee were vetted. Australia also followed this model. Canada had opted for a model using eminent persons from Canadian society as members of the oversight committee, but they too were vetted. Britain, who for many years refused to admit that it did have intelligence services, had replicated the South African model. South Africa had simply taken the best practice from other democratic nations.

Prof Ndabandaba agreed that vetting was important.

Dr Oriani-Ambrosini apologised to Mr Fihla for his absence from meetings, agreeing that it was unfortunate that he could not attend consistently because of his other duties. He commented that the issue of vetting was part of the complex formula of “independence”. This review body was currently proposed as an internal checking mechanism, and to ensure that the same person would not be both player and referee. There was constant reference to the “intelligence community”, which seemed to be a tight community with its own mindset an perceptions, wherever situated in the world. As Iraq had illustrated, mistakes were sometimes made. This was a real concern, and he believed that people from outside government should serve. He related his own experiences, when, although he had a top secret security clearance on entering the country in 1990, an NIA investigation had commenced in 1996, but was not completed by 2004. Had this been a condition of office, he would have had to wait eight years for his appointment to be confirmed. He wondered if police vetting was not sufficient. He explained that the police standard confirmed that there was no evidence or suspicion that a person had done anything wrong in the past. The NIA standard was much broader, looking at any evidence or suspicion that a person might do something wrong, or become a threat, in future. In relation to vetting of MPs, he said that every investigation might reveal something that a person would not like to have exposed. The outcome of the vetting process was really to try to achieve a certain standard of conduct and it should be possible to achieve this without a vetting procedure. He felt that in the JSCI, the idea that the MPS would be vetted by the NIA, the very institution they were responsible for scrutinising, was incorrect in principle, especially given the past history of the NIA itself leaking information.

Mr Landers raised a point of order, saying that he thought that the way in which this had been phrased was unfair. Neither the NIA, nor any other intelligence structure, set a “standard mould” of persons required to serve on the JSCI. Each of the parties was requested to submit names, and those persons presented themselves to the NIA, who conducted the security checks.

Mr Maynier commented that he remembered discussing this with the Inspector General of Intelligence in Canada years ago, and she expressed the view that the vetting of MPs before serving was absurd.

The Chairperson said that he regarded it as inappropriate for her to express a view on the South African situation. Oversight models differed from country to country. The South African model was quite unique. In some countries private investigators would investigate intelligence agencies.

He also noted that Members seemed to be creating the perception that intelligence communities had a “personality” and this was incorrect, as they were all governed by law.

Prof Ndabandaba, supported also by Mr Sonto and Mr Swart, made a proposal that all parties should put their suggestions for amendments to the proposals in writing.

The Chairperson asked that Members try to do so by 14 June.

The Chairperson, in answer to queries about the programme, noted that the next meeting was scheduled for 17 June, but he would try to arrange another meeting before then. He would report back to Members. He also confirmed that, in regard to the possible extension of the life of this Committee, he had written to the House Chairperson, and informal discussions suggested that there was probably no objection to this in principle, although he was not sure whether it had been discussed by the Chief Whips’ Forum.

The meeting was adjourned.


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