Protection of (State) Information Bill: Nelson Mandela Foundation briefing on archive management, new Working Draft 12

Meeting report

Archive management: Briefing by Dr Verne Harris, Nelson Mandela Foundation
Dr Verne Harris, Head of the Memory Programme at the Nelson Mandela Foundation's Centre of Memory and Dialogue and former Deputy Director of the National Archives, noted that the Nelson Mandela Foundation had reviewed the Protection of State Information Bill (the Bill), from the perspective of archives. He was pleased to see the direction that the revisions were taking, but still would like to make some input in relation to archival matters.

He noted that the fundamental provisions in the National Archives and Records Services of South Africa Act (the Archives Act) and equivalent provincial archival legislation applied. Public records of archival value must be transferred to a public archive service, unless another Act of Parliament determined otherwise. One obvious example of “another Act” was the Defence Act, which provided for a Defence Archive Repository. He noted that public records beyond 20 years of age were considered to have archival value and should be transferred to the National Archives.

During earlier submissions there had been concerns that the focus was on “National Archives”, without consideration of the many other records that fell outside that purview. The Bill was attempting to draw all those records in. He said that although the intention behind the new definition of “archive” was correct, this definition still needed to be re-worked. He suggested that “Archives” should refer to “the National Archives and Records Service of South Africa or any archives established under another national or provincial law”. This would, for example cover the Defence Archives, and there might be other examples in the future. He then also said that the last part of the current definition, relating to an archive kept by an organ of state, needed to be tightened. He would argue that an “archive” related to an accumulation of records which were older than 20 years of age, and said that there were a number of examples of this. The National Archivist had already, in terms of the legislation, given permission for a range of public bodies to retain records older than 20 years. The South African Weather Service (SAWS) needed to retain weather records for its ongoing functions and, because it did have the expertise to manage a specialised database of weather, permission was granted to it to keep such records indefinitely. The same applied to the Department of Home Affairs, in relation to births, marriage and death records. “Archive” therefore also had to be defined to include something along the lines of “an accumulation of public records older than 20 years with a definite functional value”, to avoid loopholes.

Dr Harris commented also on clause 3(2)(d), on page 16. This gave the Minister the power to exempt an organ of State from declassifying information before it was transferred to the National Archives. The assumption was that such records should be automatically declassified, unless the public body used the provisions in the Bill for prolonging classification. It was therefore not clear what the intention of this clause was. If there was a presumption that all such records should be declassified, it seemed contradictory to given the Minister the power to exempt an organ from declassification.

The opening sentence of clause 20 then spoke directly to his comment in respect of clause 3(2)(d), since it basically said that if the head of the organ of state wanted to prolong classification beyond 20 years, then certain procedures (set out in the subclauses) must be done. He added that this should apply in the case of other archives as well. He thought that clause 3(2)(d) could be removed, as the two seemed to contradict.

Dr Harris then noted that the heading to Chapter 8 was “Transfer of records to National Archives” but, given the content, and in light of his earlier comments, he recommended that this be changed to “Transfer of records to Archives”. The subheading should be similarly changed. This would need to apply to other archives, apart from the National Archives.

Dr Harris said that the Nelson Mandela Foundation was not sure about the intention behind clauses 26(1) and (2). He asked what the purpose would be of the head of the organ of state “reviewing” the classification, because clause 26(2) said that records were deemed “automatically declassified”. The review was presumably done to position the head of the organ of state to identify records that required prolonged protection, but he thought that the wording could be clarified.

Dr Harris said that the current wording of Clause 29 required the National Archives to establish a national declassification database, in conjunction with organs of state who were the originators of the classification. The Nelson Mandela Foundation had some reservations whether National Archives was the best body of the state to take on this responsibility. The National Archives was desperately under-resourced, as illustrated by the fact that the Truth and Reconciliation Commission (TRC) Archive, transferred to National Archives in 1999/2000 had still been catalogued, so it was hard to imagine how they would take on such a huge responsibility.

Discussion
The Chairperson noted that clause 50 of the original Bill referred to the repeal of section 83(3)(c) of the Defence Act, and commented that this section of the Defence Act said that records my not be transferred to National Archives.

Dr Harris responded that there seemed to be some confusion. The section of the Defence Act referred to in the original Bill had related to public access. However, the section underlined in the Working Draft was section 83(3)(b). He did not believe that it was necessary to repeal anything in the Defence Act, and the Bill did ensure that records already in the custody of the Defence Archive Repository were catered for. It would not seem to be necessary to include further provisions.

Dr Harris noted that during the 1990s it was debated, and agreed, that there should be a dedicated and specialist repository, given the special nature of defence records. However, although those records were in the physical custody of defence forces, the way that records were preserved and catalogued was overseen by National Archives. The fact that they were physically separate was therefore not an issue. He reiterated that there was some question as to whether section 83(3)(c) of the Defence Act would need to be repealed.

Mr S Swart (ACDP) asked for further elaboration on that point.

Dr Harris said that the Promotion of Access to Information Act (PAIA) trumped any other piece of legislation. Section 83(3)(c) effectively said that there were certain presumptions around record of over 20 years in age, but subject to PAIA. In reality, if a member of the public requested access to records under 20 years old, PAIA would prevail, and for this reason he did not think that this needed to be addressed in this Bill.

Dr Oriani-Ambrosini said that he had been comfortable with the current definition of “Archives” and was not convinced that there was any need to change it. He also commented that private archives may contain information of public importance. He wanted clarity on whether there was any intention to make anyone holding private documents subject to the legislation, which could raise problems of constitutionality.

Dr Harris confirmed that he was not suggesting that private archives should be included. The definition’s reference to archives “established in terms of a national or provincial law” was not, in his view, tight enough to cover all the categories of records that were held in de facto archives. For instance, the Department of Home Affairs did not have an archive established in terms of the Archives Act, but it was in effect holding an archive of public records. He thought it imperative that these accumulations of public records, that effectively served the purpose of an archive, must be included and protected. Many documents not held in the National Archives still had historic value and needed to be protected by this Bill, in the same way as any other record in an archive.

Dr Oriani-Ambrosini agreed that clause 3(2)(d) could be removed. He also suggested an amendment of clause 20 so that it would simply read “information may not remain classified for longer than 20 years. He also agreed with Dr Harris’ comment on clause 26, and the replacement of the headings of Chapter 8. He thought the reference in clause 50 should be to section 83(3)(b) of the Defence Act.

Mr D Maynier (DA) wanted to address a broader policy question. In countries in transition, much of the most sensitive information was kept in the files of intelligence services. As he understood this Bill, that kind of information would have to be declassified before being transferred to archives. In cases where the organ of State was defunct, the declassification would have to be done by the Security Service Agency (the Agency), in respect of intelligence services and possibly also the TRC. He asked if the Agency, given the fact that it staff were “deeply politicised”, were best qualified to carry out this task. This kind of information was highly sensitive. If it was leaked, most notably to settle factional battles in political parties, this could have severe consequences. He asked how best this information should be held, then declassified, and made available to the public. Until now, Members had not actually confronted this debate.

Dr Harris said that he had worked in the TRC investigation into State records, and there were indeed many records that were potentially damaging to individuals. Countries like Germany, for instance, had been very careful about dealing with records of the Stasi Security Police. He was not suggesting that all records older than 20 years should automatically be put into the public domain. There were many that needed to be protected long past that period. However, he did not believe that this Bill, and the whole issue of classification and declassification, had any material bearing on the protection of those kinds of records. He cited one example. Mr Nelson Mandela had given the team at the Nelson Mandela Foundation express permission to look at his prison files, and security directorate files, and around 80% of the information in those files was classified. That had created great difficulties for the team, because when they needed to make copies of the documents, they first had to be declassified, which had taken between six and nine months. If this Bill was passed, in its current form, most of the records similar to those he had just described would be automatically declassified so the work of the Nelson Mandela Foundation and similar research bodies would be facilitated. The question was, however, still how to ensure that the interests of third parties were protected, as well as issues of national security, and who should be responsible for protecting these. The reality was that PAIA already provided that protection, as it defined categories of records that must not be put in the public domain. For instance, Mr Mandela had given permission to a research tem to access those records, but PAIA prevented the team from putting many of the records into the public domain. An example might be correspondence from Mr Mandela that contained a reference to or details about a third party, which could fall under the definition of “legitimate secret” in PAIA. The question of classification was subsidiary. Although Mr Maynier seemed to see this as a critical policy issue, Dr Harris did not think that it was, in relation to archival records. However, he reiterated that the way in which the legislation would be implemented was critical. The fact that a record was declassified might be regarded, by a bureaucrat, as meaning that less care could now be paid to how that record was managed, and to how access was granted. There must still be a responsibility to exercise proper protection.

Mr Swart said that Mr Maynier had referred to sensitive documents still in the hands of the intelligence services, but it seemed that much of that information, pre-1994, was already in the National Archives, although his concerns were still valid. That also raised the issue of the National Archives’ resources. Many changes had been made to the original Bill by this Committee. The original version of the Bill claimed that there would be financial implications to the legislation. However, the setting up of a database would clearly carry cost implications. He was concerned at the comment about the under-resourcing of the National Archives, and commented that there may also be financial implications to other departments caused by this Bill.

Dr Harris responded that PAIA already required every public body to generate a manual that described the records in its custody. That was a “finding aid”. The database described in this Bill would be more detailed. In archival environments, (which would include any department dealing with records older than 20 years) there should be proper archival catalogues in place. It was not clear how this new database would relate to the archival databases. He could not see that state bodies would already have the resources available to general this, and he agreed that if this were to be done properly, it would absorb significant resources.

Mr Maynier asked where the TRC files were held, what sort of space they took up, who was responsible for protection and who was responsible for managing access.

Mr A Maziya (ANC) raised a point of order. Dr Harris had been asked by the Committee to comment on the Bill, and he should not be expected to deal with general matters, or answer for other offices dealing with such records.

The Chairperson said it was clear that Dr Harris had considerable knowledge in the field being discussed. The records of the TRC would also be affected by the Bill. He was himself curious on these points, and he thought that the answer could be of importance to the Committee.

Dr Harris reported that the formal archive of the TRC was transferred to the National Archives in 1999/2000. It was lodged in the form of paper-based records. Several years later, the SABC had lodged its full coverage of the event with National Archives as well. However there were also two other accumulations. The electronic records of the TRC, including e-mails, word documents and spreadsheets, were in the custody of the Department of Justice and Constitutional Development, and so was the formal TRC database of victims. The TRC website was also managed by DoJ. Although only the paper based record and the film records were with National Archives, in practice the National Archives still oversaw, and took responsibility for, all public access to any record of the TRC.

The Chairperson asked if any records of the TRC were classified, and, if so, under what legislation they were classified.

Dr Harris responded that there was not a simple answer. The TRC had “borrowed” records from the former police force – such as police dockets – for its research and investigation functions. In some cases they were not given back, and these then remained as part of the TRC Archives, although they remained classified by the police and security establishments. TRC also did extensive research into military intelligence files, and copies were made.

The Chairperson asked if the TRC itself classified documents.

Dr Harris said that in practice the TRC had done some classifications, but it was not clear whether that was done in terms of the Minimum Information Security Standards (MISS) or an internal information security policy. He could not say with certainty what the status of this would be.

Dr Oriani-Ambrosini said that he had been involved in five-year litigation against the TRC. The TRC had adopted a policy to keep some documents secret, and that was set as a condition. However, the documents were regarded as “sealed” rather than classified, and the Court had eventually ruled that unfettered access could be given to all documents, sealed and unsealed.

Dr Oriani-Ambrosini said that one of the issues was what type of society South Africa wanted to create, and how to do so, which would include a question of how much latitude there should be. The Constitution required a transparent and open society. Everyone was respectful of Mr Mandela’s private correspondence, but private correspondence of all great people would be released, because the public interest in knowing its content override the protection of privacy of anyone who became a historical figure.

Dr Harris said that after eight years of working with paper, which was being digitised, the Nelson Mandela Foundation had decided, in regard to access, that freedom of information could flourish when there was mutual agreement as to what was secret, so that appropriate protection could be in place. If there was no clarity on that point, then structures were insecure and tended to fall back on a conservative approach. He thought that PAIA defined what a “legitimate secret” was. That was used as a guideline with Mr Mandela’s papers. A party should, when revealing information or not, be guided by PAIA. He cited the example of a letter that could have been written by Mr Mandela, revealing something about another person. The Bill would not be relevant in deciding whether access should be granted to that information, but PAIA would apply.

Mr Maynier raised a question on the TRC files. He noted that these had been transferred to National Archives, and some portions of files held by the National Archives may be classified. Some documents were originally from the security services but were not repatriated. The TRC was now defunct and he enquired if the State Security Agency (the Agency) would be the repository for the declassification process.

Dr Harris responded that the enabling legislation for the TRC contained a provision that all assets, including the intellectual property of the TRC, would devolve to the Department of Justice and Constitutional Development (DoJ). It was therefore DoJ who must consider the classification.

Mr Maynier asked why the electronic database of the TRC was already with DoJ.

Dr Harris responded that there was no clarity on that point. There was some debate, because the National Archives would generally receive public records older than 20 years. The Archives had argued that it would be correct to transfer the TRC documents, because the DoJ was not equipped to deal with them, but the compromise was that the electronic versions would go to the DoJ. The concern now, however, was that although the National Archives lacked capacity, so did the DoJ.

Mr Maynier voiced his concern that informer files were in possession of the security services, and would need to be re-classified. However, he felt that the security services were politicised and there was a danger that they could use those files to settle old scores, particularly if there were factions in the ruling party.

Mr L Landers (ANC) raised an objection at this point, noting that he wanted the opportunity to respond or engage on those opinions with Mr Maynier.

The Chairperson said that he had allowed Mr Maynier to proceed, but he now had noted that Mr Maynier was making the same point over again and he asked him to desist, since this did not add much value to the debate by way of constructive engagement.

Mr Maynier said that this was a sensitive matter, and the Committee had thus far avoided raising it.

The Chairperson pointed out that what Mr Maynier was insinuating had not been noted in the intelligence community, and he was making assumptions. He cautioned Mr Maynier not to persist in this line.

Dr Harris said that he, in his work, had seen thousands of surviving military police files. These had been put in the custody of the security services after 1994. In the early 1990s he had been a member of the ANC Committee on Archives, which had considered models to deal with these types of matters. One possible model was to have a separate structure with its own legislation, to deal with such matters. However, in South Africa there was no “revolution” in the generally accepted sense, but a negotiated settlement. For this reason, the records were vested in the existing security establishment. For three years, he had been the Director of the South African Heritage Agency, which was one of the first bodies to use PAIA extensively to access security establishment records. The most cooperative State institutions, and those who responded to requests efficiently, respecting the letter and spirit of PAIA, were the security establishments, including the military forces. He therefore did not agree with Mr Maynier that they were not the most body to hold records. In many ways they were better equipped to deal with these records. Military Intelligence structures in fact often showed a more progressive approach.

Mr Maynier said that his point was that the security services had a vested interest in not disclosing the information. After 1948, the National Party had burnt a lot of records to ensure that their informers would remain secret.

The Chairperson pointed out that this was very long ago.

Mr Landers said that he wanted to reserve his right to respond to Mr Maynier.

Mr Swart moved to another point. He had noted the various categories of information that were already in the hands of the National Archives, including Cabinet memoranda prior to 1994, security legislation, prison records, security police and TRC records. He commented that most categories thus seemed to be covered, and whether there were misunderstandings as to what was still required.

Dr Harris confirmed that all these records were already with National Archives, because the security services had destroyed some records in the early 1990s. National Archive worked with other institutions to try to secure records. However, he noted that National Archives was not necessarily comfortable with having all those records. When he had left that institution in 2001 there was thinking that the State Security Council records should be made available as widely as possible, but very quickly, and because of shifting politics, the National Archives had adopted a “fortress” approach, with a Sensitive Records section, and tended to refer decisions on whether to make information available back to the national intelligence or police structures. This caused delays in access. It may be necessary to look for alternatives to having security officials overseeing declassification.

Ms H Mgabadeli (ANC) asked if the examples that had been mentioned, of what Germany did, were really relevant.

Dr Harris said that there were many countries with a history of moving from repression to democracy. Broadly, these fell into two categories. When there was revolution producing structural change, there was a tendency to set up specially mandated bodies to look after records. However, several South American countries, in particular, showed a situation similar to South Africa, where negotiations led to a gradual transition, where it was more usual that the existing State structures took responsibility for the documents.

Ms Mgabadeli suggested that it might be warranted for the Committee to undertake a study tour. Other Members did not agree.

Mr M Sonto (ANC) noted that if one party held absolute power, there might not be revolution. In South Africa all parties to the negotiations sought to build a new society. He asked Dr Harris if, elsewhere in the world, there had been any other countries who had taken these processes through to success, similar to South Africa.

Dr Harris responded that, offhand, he could not think of any country that had done better than South Africa. The organisation of records and archives from the TRC was outstanding. The main challenge lay in implementing any law. Legislation could provide a robust framework, but South Africa had, in the past, shown some weakness in implementation. For instance, he noted that in 1997 and 1998, there had been visits made by TRC officials, working with the police, from town to town, trying to identify surviving Security Police files. Teams drew up inventories of all that had been recovered. However, in 2002, people started to request their files on themselves, and received the response that they could not be found, although it was known that these files existed. Several years later, it emerged that the files had been moved, and disordered in this process, so that all the records also had to be reviewed and re-done. Therefore, although there was a good basis to deal with these files, there were still problems. Dr Harris confirmed that at some levels there were still problems of expertise and resources, although even with these constraints, the military establishments had been able to respond to requests for access. There were also political challenges, and these would not be addressed through legislation. He reiterated that PAIA was one of the foremost pieces of access legislation in the world. This Bill was improving all the time as the Committee worked on it. Implementation could still, however, pose challenges.

Mr Maynier noted that once documents were declassified they could be moved to the National Archives and that raised the question of the resources at National Archives. He asked if there was anything in existing legislation that the Agency, or Departments of Defence or Police could use to prevent declassified material being handed over to National Archives.

Dr Harris said that the Archives legislation already allowed the National Archives to give permission to a public body to retain custody of documents older than 20 years, as illustrated earlier by his examples of the former Secret Service and the Weather Bureau retaining their own records. He stressed that the mere fact that documents were handed to National Archives did not mean that they would be more accessible. They may well be declassified, but a person may still not gain access, because of the provisions of PAIA.

Mr Maynier said that he was concerned about this, and the question of control. Any documents that were declassified by the security services should go to National Archives, but the former may have a tendency to want to retain those documents.

Dr Oriani-Ambrosini commented on the remark by Dr Harris that declassification did not necessarily mean that there would be access. There may be lower grounds of accessibility under PAIA (such as personal information) that created a “class” of documents that was in fact narrower than unclassified documents, and he said that Members would need to consider if they really wanted this to happen.

Mr Landers said that clause 29 of the Bill dealt with the establishment of a National Declassification Database, and subclause (6) stated that information must be made available and accessible to a member of the public. It also noted that no declassified information would to on to this Database if access to it could be refused under PAIA. He was not sure why there were so many concerns.

Mr Swart agreed that PAIA would determine whether any piece of information was accessible, or not.

The Chairperson noted that clause 26(2) said that public records, including those marked “classified” would be considered automatically declassified when moved. He asked if there were any concerns about the automatic declassification process.

Dr Harris said that the intention behind this seemed to be good, but the wording was too vague. The original proposal, made by the Nelson Mandela Foundation and other institution of civil society, was that public records should be declassified automatically, once they were 20 years old, unless the need for continued classification was successfully argued, and due processes had been followed. This clause, whilst seeming to follow that principle, was linking the 20 year period to custody in the National Archives, because the Archive legislation also referred to that period. However, as he had indicated earlier, there were other records, such as those in the possession of Department of Home Affairs, that were effectively a database. The wording of this clause needed to be tighter. He suggested that wording covering records in the custody of a public body, that were older than 20 years, as well as those managing in the archives environment, had to be mentioned.

Mr Swart asked the Chairperson if Dr Harris could be asked to assist the Committee in drafting the necessary amendments.

Dr Harris said that he and other colleagues in the Nelson Mandela Foundation would be happy to assist.

The Chairperson asked Dr Harris to liaise also with the State Law Advisors, for consistency in drafting style. He also asked them to look at the 2008 version of the Bill in relation to the Defence Act sections that were to be repealed. The Chairperson commented that although, at present, much of the material was still paper-based, there were concerns that the paper was fading or being damaged, and in future it would be desirable to try to create databases that were not paper-based.

New Working Document 12
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, tabled the new Working Draft 12 and was asked to take Members through the changes.

Ms Booyse outlined the new definitions for “classified information”. There was also a proposal to define “hostile activities” to mean “aggression against the Republic, sabotage or terrorism aimed at the Republic, whether it emanated from inside or outside, an activity aimed at changing the Constitutional order of the Republic and it included references to force and violence.

Dr Oriani-Ambrosini queried the inclusion of references to the “foreign state” on page 10. This seemed to be new language for the “foreign state”, which makes reference to a “foreign company”, and he did not remember any discussion about this.

Ms Booyse went back to page 9. The definition was discussed. This wording was from a document received from Dr Oriani-Ambrosini himself.

Dr Oriani-Ambrosini suggested that this was not “his” document. This was a copy of the United Nations’ Definition of “espionage” for the purpose of looking at the definitions. He never thought, in his wildest dreams, that the American definition of a foreign state, inclusive of a foreign company, would be used.

The Chairperson said that this document clearly bore the name of Dr Oriani-Ambrosini.

Dr Oriani-Ambrosini said that this was given in, together with a document on the public domain. This was a document authored by the US Congress and was submitted only for purpose of the sentencing on espionage.

Ms Smuts asked how, if no instructions were given, this was incorporated.

The Chairperson noted that there were two pages on the document. Its origin was uncertain, but it was sent to the Committee Secretary by Dr Oriani-Ambrosini. The technicalities as to whether he was possessor or custodian were not relevant. There was nothing incorrect in referring to it as “Dr Oriani-Ambrosini’s document” even though he may not have been originator or architect.

The Chairperson asked Ms Booyse to comment on “foreign state”. Dr Oriani-Ambrosini had drawn attention to some issues.

Ms Booyse referred to her notes from a previous meeting. There was a discussion on hostile activity together with the definition of “foreign state”. The discussion had related to “foreign government. The SLAs were asked to look at that definition, which included “any person” and to look at the definition of “foreign government”. That was why this was incorporated in the government.

Ms Smuts made an inaudible comment.

The Chairperson asked that he be given time to go through his records.

Dr Oriani-Ambrosini said that the definition of ‘foreign state this played a role only in relation to the crimes of espionage, where the purpose was to “benefit a foreign state”. If the Committee were to adopt the definition contained in Working Document 12, it would be a crime of espionage if the benefit was to any person acting or purporting to act” on behalf of any faction, party, or bureau, or military force within a foreign country. These were classes of those who could directly or indirectly benefit. This would result in having the maximum severely-charged espionage charge, rather than the correct crime of disclosure. This was not what was intended.

The Chairperson asked if the State Law Advisors could revert to the Committee on this point. He noted that Mr Maynier had been worried about a private person who was a “non-State actor”.

Ms Booyse continued with the definition of “hostile activity”. She noted that the changes to subparagraphs (a) to (d). She started to comment on the definition of “request” on page 12. The definition of “requestor” had been taken out.

Ms Smuts said that what the Committee had instructed, on the end of page 12, made no sense. The word “and “needed to be inserted after “any person”.

The Chairperson said that the Committee would get back to this. He asked Ms Booyse to continue.

Ms Booyse continued that subclauses (2) and (3) were flagged for further debate on page 19 of her document. Subclause (6) had been removed from the Bill.

Ms Booyse then referred to the clause dealing with the functions of the Classification Review Panel (marked xx on page 30) and clause 30, dealing with the responsibilities of the Agency. Mr Sisa Makabeni, State Law Advisor, had made a proposal as to what functions should be placed with the Classification Review Panel (the Panel) and which with the Agency. The State Law Advisors thought that clauses could be removed from one and placed in the other. The Minister would be involved in the resolution of any disputes, so it was no longer necessary to include those clauses that had originally dealt with resolution of any disputes involving the Agency.

Ms Smuts noted that now she understood how this had been done. She questioned what “protection information policies” were. The references were to “organs of state” She asked that subclause (d) should be flagged or taken out.

The Chairperson said that if Members wanted the functions of the Panel to be extended to include these things, he would entertain discussion on the point now. He was not sure why Ms Smuts had proposed that (d) should be removed, as the clause was not saying that the Panel should produce policies, but only that it monitor them. Perhaps this was not the right entity. He would not expect any entity other than the Executive to be involved in policy making. The Joint Standing Committee on Intelligence (JSCI) would look at these policies. He was not sure how far the debate would go on the rest of the clauses. The reference to identifying and exploring best departmental practices seemed to imply that the entity would assist in coming up with policies, whereas he thought that the Department of State Security should attend to this. He agreed that there would be resistance in giving the Agency too much to do, but the Panel should also not be over-burdened. He asked Members to consider these points.

Ms Smuts agreed that this should be flagged for further discussion when there was a final discussion on valuable and classified information. Some of those aspects tied in very closely with this.

Mr Swart agreed. He was also concerned about possible overlaps between the Agency and Panel. He was not sure whether, as set out under subparagraph (g), it was the role of the Panel to conduct awareness and training. The same applied to the function currently assigned to the Agency, to develop, coordinate, and promote partnerships. There were overlaps. Members needed to be clear as to what they wanted each body to do.

Dr Oriani-Ambrosini was satisfied with the text, although he did agree with Mr Swart’s concerns. There was a concern, now partially addressed, that the Agency, in exercising its functions, would make its presence felt in all departments and other organs of state, by “going through the bottom drawers”. The system could work better if some of these functions were removed from the Agency and put with the Panel, although he agreed that there was a risk of burdening the Agency. However, there seemed to be progress. The overlapping of the margins may be positive, as it might require better coordination. However, he would not like to see a conflict, where one function was actually given to two bodies, with a slightly different mission. It was part of the overall system of checks and balances.

The Chairperson said that the functions of these entities were key to what had been presented during the public hearings. The concerns expressed then could not be taken lightly. There was a clear concept of what was needed. He cautioned that Members should come back to this point, bearing in mind what had already been resolved.

Mr B Fihla (ANC) noted that sometimes, Members raised new ideas when there had already been agreement in principle of points, and urged that matters already agreed should be allowed to proceed without further revisions.

Mr Maynier agreed that it was necessary to revert on this. There were still questions about who should monitor compliance, and the functions in clause 30.

Mr Landers said that this had been discussed. The question related to who would be looking at the Agency itself, and the DA had suggested that the Panel should do so. Some Members of the Committee did not want the Agency to be involved at all. However, it was necessary to accept that there were times that the Agency would have to be involved. He suggested that some of the functions ascribed to the Panel may be removed and agreed with Mr Swart that it was necessary to look at this carefully to decide what functions should stay, and what should be removed.

Mr Maynier wished to place on record that his actual question was “Who goes through the bottom drawers of the Security Services?” He still thought that no answer had been provided. These functions were not with the Panel. In the current formulation the security services may still be an exception to the monitoring in respect of the compliance with information policies and so on. This was a real concern.

The Chairperson reminded Members that he had read out provisions of the Intelligence Oversight Act, which clearly set out that the Inspector General had oversight authority over the Agency. He had also reminded them that the JSCI had authority. That would never be extended. He understood that the work had been intensive.

Dr Oriani-Ambrosini wished to record that he still thought that this was not a problem.

Ms Booyse then continued with the revisions that had been made in Working Document 12. She pointed out, in respect of clause 32, the changes effected. A new clause, headed “Receiving State Information Unlawfully” was marked as clause Xxx, because the place where the Panel clause would be inserted still had to be decided, which would affect other numbering. She pointed to the changes in each of the subclauses, and the sliding scale in respect of the penalties, according to whether the information was Top Secret, Secret or Classified.

Ms Booyse then noted the new insertions into clause 33, in relation to the hostile activity offence. The maximum periods of imprisonments in this clause were also tiered, so that for hostile activities involving classified information, a period not exceeding 20 years applied, for secret information, a period not exceeding 15 years to secret information, and not exceeding five years for classified information.

Ms Smuts asked if the Chairperson would entertain discussion on this point now, because she thought the formulation of the hostile activity offence was incorrect.

The Chairperson confirmed that discussion on this would continue after the presentation.

Ms Booyse read out the changes to clause 41. A proposal had been inserted into clause 42, reflecting the different levels of classification information. Here the periods of imprisonment were set out as not exceeding fifteen, ten and give years respectively. That was decided by the Committee at a previous meeting.

Clause 49 had been amended, in subclauses (2) and (4).  Clause 49(2) stated that subject to this Act, any information classified under the Protection of Information Act 1982,the MISS Guidelines or any other law must remain classified, notwithstanding the repeal of such law. The provisions regarding the confirmation, classification or reclassification of information were set out in clause 49(4), in accordance with the Committee’s instructions.

Discussion on the revisions made in the Working Draft
Dr Oriani-Ambrosini thought the definition of “information” actually did not define information, but the record where the information appeared, and drew a distinction between a secret, which could be whispered in someone’s ear, and the corporeal record where something was written. Both needed to be covered, and for this reason he thought that the content of information, and not the way in which it was recorded, had to be defined. It was not the piece of paper or computer record that required protection, but the information that it contained. One possible formulation might be: “Information means any piece of information, whether contained in any document…” (followed by the rest of the definition, taken from the Croatian definition.

Ms Smuts said that the offences spoke to the “copying” or “receiving” of “information”, so they appeared to refer directly to information in a corporeal form. Earlier drafts of the Bill had dealt with other forms of information, but Members had considered a number of definitions, and the Bill was dealing with information that had been recorded.

Mr Sonto understood that Dr Oriani-Ambrosini thought that information meant the content of any document, which was the reason why the document had to be protected.

The Chairperson said that “record” was defined in the Bill, and read out this definition, noting also that it referred to recorded information, regardless of the form. He asked Members to consider whether “record” was properly defined, reminding them that this definition matched that in PAIA. Dr Oriani-Ambrosini’s argument, if followed through, could result in the deletion of either the current definition of “record” or of “information”.

Mr Sonto thought that “record” was correctly defined. An object containing recorded information was a “record”. The words “in any form” qualified this further.

Ms Smuts enquired why the Committee was discussing the definitions in such depth now, saying that there were several very substantive matters still to discuss in the time remaining at this meeting. She objected to Dr Oriani-Ambrosini taking the Committee back to matters dealt with previously, and asked if his comments could be confined to what had been presented at this meeting.

Dr Oriani-Ambrosini thought, in relation to the clause marked Xxx, that there should be severe penalties, but not as severe as those for espionage. The person giving out the information was clearly breaching his duty to keep it secret. However, the person receiving the information, if a spy, was in fact fulfilling his duty by receiving that information. He thought that a period of 15 to 25 years imprisonment was excessive for this offence.

Dr Oriani-Ambrosini’s next concern related to the requirement of “directly or indirectly prejudice the Republic”, in the hostile activities clauses. He thought that any hostile activity, as defined, would inevitably imply prejudice to the Republic.

Dr Oriani-Ambrosini noted that in clause 34, the reference to “suspected” must be deleted.

Dr Oriani-Ambrosini said that in respect of clause 40, there was a request to insert the words “intelligence information”, but the Working Document contained a footnote only. He reiterated that information that was false or fabricated, handed over to a policeman, may have nothing to do with intelligence and it should not be “information”, but “intelligence information” that was specified.

Dr Oriani-Ambrosini said that he had already explained that the word “extraterritorial” should be deleted from clause 44, because it was essentially a misnomer; although this concept had been carried into other legislative drafting, it was in fact non-existent. 

Ms Smuts commented that he understanding of what the Committee had decided upon for the “hostile activity” offence was not correctly reflected in the Working Draft. Hostile activities, according to her understanding, involved non-state actors like Al Qaeda. The intention of this offence in the Bill was not to criminalise the action by Al Qaeda, as that would be done elsewhere. Instead, it was the communication to a non-state actor, by someone in the Republic, which should be punished. The offence should therefore read along the lines of: “It is an offence, punishable….. to unlawfully and intentionally communicate… to a non-state actor, when the person knows or ought reasonably to have known that this would directly or indirectly contribute to hostile activity by a non-state actor”. The prejudice to the Republic would become apparent, once it was clearly understood what the offence comprised, because hostile activity would include terrorism, or changing a Constitutional order by threat or violence. Espionage was of a different order. The Committee had, to her recollection, agreed that the difficulty was the inclusion of the non-state actor, and the offence was the unlawful communication of information, in any category, that would contribute to hostile activity (as defined) by a non-state actor (as defined). She reminded the Committee that this offence was created to cater for the communication to organisations who were not sovereign states, but who were undertaking activities that were trans-national in their reach.

The Chairperson asked other Members to comment, and suggested that the DA, who seemed to be very clear as to the elements of this offence, should draft a proposal for this clause. It was often difficult for the State Law Advisors to understand exactly what Members wanted. That proposal could then be circulated to other Members of the Committee. It was necessary that everyone should be clear on what this clause should contain. He also asked that the DA should look again at the penalties.

Ms Smuts confirmed that she would do so.

The Chairperson asked Members to return to the definitions. Ms Smuts had noted that the offences would be changed if there were changes to the definitions. Dr Oriani-Ambrosini was not present in the meeting at this point, but he asked if any other Members wished to comment on the points that he had raised. He noted that it seemed that only Dr Oriani-Ambrosini had a problem with those definitions.

Ms Smuts reminded the Committee that the nearest comparable foreign legislation, which was the Canadian security legislation, spoke of code words, passports, documents or information handed to any person, so it seemed to relate to the more concrete forms of record. “Security of information” was essentially consolidation of the Canadian terrorism legislation, and there was no specific definition of “information”.  However, she would not want to deal with this conclusively, at this point, in the absence of a number of opposition members.

The Chairperson suggested that this point could be raised again at an appropriate time.

The Chairperson said to the State Law Advisors that it made sense to copy the document on both sides. He asked that where the clauses had not yet been numbered, perhaps a different colour number could be inserted in the meantime, for ease of discussion. He also asked that, for the sake of progress, the suggested functions of the Panel and Agency should be outlined, in a separate document, as originally agreed, so that the Committee could give more consideration to them.

The meeting was adjourned to 14:00 on 11 August.