Protection of State Information Bill: Archival matters, Working Document 15, new clause 33A, 38 & 47

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

16 August 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

Dr Verne Harris, former Deputy Director of the National Archives, had been asked to make some suggestions in respect of archival material, and, in summary, he recommended that the wording of the 2008 version of the Protection of Information Bill, which had in many respects been altered or omitted, should be reinstated, save for three instances. The NMF suggested that the provisions for automatic declassification in the 2008 version were more progressive, and pointed out that the Promotion of Access to Information Act (PAIA) already provided robust protection for a range of information. Thus, it was recommended that the definition of archives, and clauses 3(2)(e), 25, 26, 27, 28, 33, 36 and 56(2) be re-inserted, but that the Minister should not be given the power to exempt bodies from reviewing, as that should be the function of the Classification Review Panel, that clause 36 should not be included, as it was onerous and unnecessary, and clause 56(2) was not needed. Members questioned whether the revisions contained in the Working Drafts had been taken into accounts, pointed out that the suggestion to retain clause 28 would have to be considered in light of the subsequent combining of clauses 17 and 21 of the 2010 Bill, asked if the security and intelligence services should be obliged to move declassified documents of older than 20 years to the National Archives, and if the proper remedy to the difficulties was not simply to capacitate the Archives. Members also questioned why it was suggested that the declassification database not be pursued, and asked the criteria for destroying or preserving records, where the disposal authority should lie and the state of public record keeping in South Africa. Members were asked to consider these issues for the following day.

The State Law Advisors briefed the Committee on the changes now effected to the new Working Document 15, and also presented a document of Committee Proposals, in which various options, the result of research or suggestions from parties were set out. The new clause numbers (as reflected in the Working Draft) are referred to in this report. A definition for “state information” must still be inserted in the Bill. The proposed new definition of “information peddling” was approved. Members were still to discuss the necessity for including a definition of “national security”. The State Law Advisors briefed the Committee on how the courts had dealt with “national security”, noting that although there was no definition for this concept, it seemed to be clearly understood and uniformly applied. The DA proposals were still to be discussed by the Committee. The definition of “request for access” to information that contained a direct reference to PAIA was approved by the Committee, and this also was linked to approval of new wording for clause 20(1). Members agreed that a full discussion was needed on the possible conflicts between the Bill and PAIA, as this would be directly linked to proposals set out on pages 3 and 4 of the Committee Proposals document. Members’ proposals for clause 13, which attempted to draw a clearer distinction between the various categories of classified information, would be discussed and agreed upon on the following day. The IFP proposals for clauses 20(5) and (6) were not agreed to by the majority of Members. Members, and the State Law Advisors, were asked to consider whether there were likely to be circumstances where a person might request a review of classification without wanting access to that information (under clause 20) as, if not, there seemed to be no need for a separate clause 21, and this remained flagged for discussion. A new clause 33A providing for an appeal to court was welcomed, but the DA asked whether an additional intermediate appeal, to a retired judge, should not also be inserted. The ANC did not agree, as it had received an opinion indicating that this would be contrary to the separation of powers doctrine, and that legislation should not be written to try to address difficulties in practice. No final decision was taken on this point. A new clause containing the responsibilities of the Agency was agreed to by the ANC, but the DA was opposed to the inclusion of valuable information in subclause (a). Further discussion would also be held on clause 47, once the DA comments and proposals had been incorporated.

Meeting report

Protection of State Information Bill: Nelson Mandela Foundation presentation
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 he had prepared a document, after taking advice from Prof Ian Currie of University of Witwatersrand. He read it out, noting that the Nelson Mandela Foundation (NMF) believed that the provisions for archives and automatic declassification contained in the 2008 version of the Protection of Information Bill (the Bill) were progressive, took account of the oppressive use of classification by the apartheid state and covered effectively the records of state structures staying outside the custody of the National Archives (the Archives) for longer than 20 years. The 2010 version had watered down these provisions, and seemed to have been guided by a fear of the consequences of a mass declassification of apartheid records, and seemed to have assumed that declassified records would be placed in the public domain. He reminded Members that the Promotion of Access to Information Act (PAIA) already provided robust protection from public access to a range of categories. Mass declassification would merely facilitate application of PAIA in archival domains and would simplify determinations of public access. The Bill in any event provided for extended classification, beyond 20 years, in defined circumstances.

The NMF therefore recommended that the archival and automatic declassification of the 2008 version of the Bill should be reinstated, with certain exceptions. Those clauses of the 2008 version, which had either been deleted or altered substantially, were the definition of archives, and 3(2)(e), 25, 26, 27, 28, 33, 36 and 56(2). However, the exceptions to this suggestion related to clauses 3(2)(e) – which was the power given to the Minister to exempt bodies from reviewing the classification of records, whereas the NMF noted that the power of exemption properly belonged to the Classification Review Panel (the Panel). He argued that clause 36 was intrinsically onerous, beyond the capacity of National Archives, and unnecessary, given the records description in the archival legislation, both national and provincial, contained in PAIA, and elsewhere in the Bill, especially reports to and by the Panel. NMF believed that a dedicated declassification database was unnecessary. In regard to clause 56(2), which was a repeal of the Defence Act, the NMF also believed that this was unnecessary, as PAIA trumped all other legislation in regard to public access, as acknowledged in the Defence Act. He noted that although some of these clauses did appear in the 2010 Bill, in revised form, others had been dropped completely.

The Chairperson noted a correction to the numbering of the 2008 Bill.

Mr S Swart (ACDP) asked Dr Harris whether, when making these suggestions, he had also considered clause 28, which said that PAIA would be followed. Since then, however, the Committee had changed its approach, so that PAIA was still the overriding information legislation, although this Bill would deal with classified information.

Dr Harris said that this had been taken into account. He argued, from long experience of dealing with public servants, that certain assumptions of sensitivity on their part must be taken into account. He noted that even if a request was dealt with appropriately in terms of PAIA, the record would still need to be declassified and this could take up to six months before getting a decision. This was why, from a practical standpoint, he was suggesting that records older than 20 years should simply be assumed as declassified, to convey a strong message to the public and public servants that access should be encouraged rather than hindered.

Ms M Smuts (DA) said that this was not the first time that the difficulties in the 2010 version of the Bill had been made clearer by having regard to the 2008 wording. Subject to what Dr Lotriet from the DA would advise, she thought that it did make sense to declassify such records, for protections for that did lie under PAIA. She wanted to comment at a later stage on the remarks about the declassification database. She pointed out that the Portfolio Committee on Justice, in its consideration of the Protection of Private Information Bill, was at the point of creating a Regulator who would take over the duties hitherto dealt with by the South African Human Rights Commission (SAHRC).

The Chairperson raised a question about the suggestion to retain clause 28 of the 2008 Bill. This had dealt with the considerations for continued classification of information, which was carried over as clause 21 to the new Bill, and then collapsed with clause 17 to form a new clause.

Dr Harris responded that not everything that was in the 2008 Bill had been dropped, but the clauses he had identified earlier had been either dropped or changed substantially. The NMF suggested that the Committee should check these again, and see how they fitted together to protect archival material. Further to the protection given by PAIA, there was now additional protection, in this Bill, against undue or inappropriate public access, because there was an option for continuing classification past twenty years. However, that must be weighed up against the other provisions that were not carried over from the 2008 to 2010 versions. He reminded the Committee that records from the apartheid era were still held by the military intelligence authorities, and it was possible and legitimate to extend the classification period of these, both to prevent access by the public and to prevent leaks from within State structures.

Ms Smuts reminded Members that originally there had been a higher threshold set for continuing classification than for original classification, and the DA had seen that as logical. Members had then decided to incorporate clauses 17 and 21 (as originally numbered). This Committee could create another provision, or make the combined clause applicable to defined circumstances in which classification could continue.

Mr D Maynier (DA) asked for Dr Harris’s view on whether the security and intelligence services should be obliged to move documents that were declassified after twenty years to the National Archives.

Dr Harris said that this may be desirable, in an ideal world, but given the current situation in South Africa, no significant advantage would be gained from doing so. He had mentioned, when he last spoke to the Committee, that when bureaucrats in National Archives felt insecure about managing sensitive information, and were under-resourced, they tended to manage the records in a less consistent way than management by better-resourced, well-trained security officials. He reminded the Committee also that statistics between 2001 and 2007 showed that the military had been the most efficient and consistent in dealing with PAIA requests, whereas National Archives were considered the least efficient.

Mr Maynier wondered if the remedy was to capacitate National Archives properly, as lack of capacity seemed to be the real problem. His own experience in dealing with the Department of Defence and requests under PAIA was quite the opposite, as he had eventually had to approach the SAHRC for assistance.

Dr Harris noted that there was also a legislative complication. The National Archives and Records of South Africa Act (the Archives Act) empowered the National Archivist to exempt public bodies from the requirement to hand over records over twenty years old. Such exemption had already been granted to a number of organs of state. This would need to be taken into account when considering the Bill’s provisions.

Mr Swart asked if Dr Harris could look at the most recent draft of the Bill and give specific advice on the way forward. These seemed to be very reasonable suggestions, but the question was how to incorporate them into the documents.

Dr Harris said that he had started to do some drafting, but the Bill was “a moving target” at the moment.

The Chairperson questioned Dr Harris’s view on clause 36, which dealt with the national declassification database.

Dr Harris said that the NMF did not suggest that the former clause 36 be retained, as he thought this database would be unworkable.

Mr L Landers (ANC) said that the reason for the declassification database was to assist researchers and academics, and questioned how they would be able to find their way to that information unless a database was created. He agreed with Ms Smuts that the 2010 Bill, as originally worded, had been very difficult to understand. Currently, the Bill covered both classified and valuable information, which the DA objected to, and he asked for comment on this. The NMF had made reference to security law that regulated state information, and the clauses around valuable information were not principally concerned with state secrets, but with the manner and methods that government departments should use to ensure that information was properly looked after. He wondered if other jurisdictions took a similar approach.

Dr Harris said that there were different definitions used in different jurisdictions. Information security was generally ordinary oversight of state information management systems. State secrets had to do with the protection of state secrets with extraordinary sensitivity and care. He noted that research had been done at Wits University on the position in other jurisdictions, which revealed that no other jurisdiction seemed to have attempted to combine state secrets and valuable information in one piece of legislation. Information security was, elsewhere, dealt with either in the legislation for public service administration, or at departmental policy level, whereas State secrets were dealt with in their own separate piece of legislation.

Dr Harris then provided an answer on why the NMF considered the declassification database to be unnecessary and unworkable. It was unnecessary because there were already requirements as to how records should be arranged, described and made accessible through finding aids, such as databases. PAIA required all public bodies to publish a manual with a description of the records under their purview, and lists could be made available voluntarily. This Bill now contained new provisions for the Classification Review Panel (the Panel). This seemed to cover the need to have “finding aids” or descriptive tools, although he hastened to add that these provisions were not always implemented, as illustrated by his earlier point that neither the Truth and Reconciliation Commission nor the Constitutional Assembly had a database. If it was known that there was no capacity to create a database, it seemed futile to include this provision in the Bill.

Dr Harris added that in practice, when records were handed over, they were appraised, and decisions were taken as to what records would be preserved, and what would be destroyed. The last study, in 1999/2000, indicated that about 5% of public records were preserved, with the rest being destroyed in terms of disposal authorities. If there was a declassification database drawn, it would contain descriptions of records that ended up being destroyed after being entered, which made no sense. Furthermore, there were many types of “database”, and said that this Bill seemed to suggest that records would be digitised and scanned. The costs of doing so were astronomical, and he suggested that this provision seemed not to have been given sufficient thought.

Ms H Magabadeli (ANC) asked what would inform the destroying or preserving of records.

Dr Harris responded that the National Archives Act (and the provincial acts) set a criterion of whether the record had “enduring value”. This was really subjective, and originally the National Archives Commission had had the power to approve authorities, and ask a set of questions, as also to review decisions taken. However, those public accountability provisions were later removed, so currently the bureaucrats took decisions with little public accountability. This was not unique to South Africa. In the USA, at Federal level, only about 1% of records were likely to be preserved. He pointed out that it was impossible to achieve consensus, given the subjective nature of the decision, as to what was “enduring value”.

Ms Smuts asked where, ideally, a disposal authority should lie. In the 2010 version of the Bill there was a clause to the effect that nobody could destroy records unless authority was given by National Archives to do so, and under previous Archives legislation, only the National Archivist was supposed to give permission to destroy records, although between 1962 and the 1990s the governments had gone on destruction sprees. She too was concerned about the comment on the capacity of National Archives and asked how this had been allowed to slide, and whether it was directly linked to the fact that public record keeping had become a function of the intelligence services under the Minimum Information Security Standards (MISS). She noted that the Wits University opinion still maintained that the Bill should deal with classified and valuable information, but the DA believed that the flaws in the Bill were conflated by this approach.

Ms M Mentor (ANC) asked how Dr Harris saw the state of South Africa’s public record keeping.

Dr Harris responded that international best practice held that professional archivists were best positioned to take these positions on whether information should be retained, and he did not believe that the principle should be abandoned. Resourcing of archives was a separate issue. In answer to Ms Mentor, he noted that government record keeping was generally “appalling”, with some local authorities and provincial departments failing altogether to comply. He noted that South Africa had missed a very important opportunity in the 1990s. Around the world, the most effective archives were those with a very robust auditing of the state record-keeping functions and powers. Although the Archives Act had some robust provisions on record-keeping, including provisions around approval of file plans and applications for electronic records, the Archives itself was positioned inappropriately, as a junior arm of the Department of Arts and Culture. The TRC had recommended that National Archives should be moved to a more central position, either by positioning it within the Presidency, or giving it a similar status to the Auditor-General, reporting directly to Parliament, with an independent structure, but these had not been followed. A second mistake was then not to capacitate National Archives. The power of inspection existed, but this was meaningless without the people in place to conduct those inspections.

The Chairperson said that Members would have to consider a number of matters. The first, which would pre-empt the other issues, was whether to abandon the idea of a national declassification database. He asked all Members to consider the wording of the 2008 and 2010 Bills. The main issue was what would give the best access to information; although he had heard the comment about capacity, that was not relevant at this time as it could be possible to delay implementation on this. He thanked Dr Harris for his useful presentation and suggested that Members should prepare to discuss the issues on the following day.

Working Document 15: Briefing by Office of Chief State Law Advisor
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, took the Committee through the new Working Document 15, which contained the new wording that Members had requested should be inserted into the Bill. She also noted that a separate document entitled “.Committee Proposals on Working Document 15” contained matters where proposals or options were made, or the results of research by the State Law Advisors (SLAs) were set out

In the Working Document, Ms Booyse noted that the word “state” had been inserted several times, before “information”. Page 7 dealt with file blocks, file series and similar matters, and this had also been deleted where reference to this occurred on pages 9 and 12.

Ms Smuts asked if “state information” was defined.

Ms Booyse said that the insertions had flowed from the discussion about the title of the Bill, but a definition for “state information” must still be inserted. The SLAs were still checking that the phrasing was correct throughout the Bill.

Ms Booyse noted that the SLAs had also considered the discussions at an earlier meeting about “national security” and there was a proposal on page 1 of the Committee Proposals document. References to information peddling were excluded, and the new, separate definition for this made mention of conduct referred to in section 49 of the Bill, to tie it directly to the offences.

Ms Smuts noted that the Committee Proposals seemed to have been drafted directly from the ANC proposals and noted, for the record, that Mr Maynier’s suggestions on “national security” were not included.

The Chairperson reminded Members that it was the IFP who had suggested that the “information peddling” definition should not be included under “national security”. He also noted that nothing in the Committee Proposals document had been agreed to as these were matters isolated for discussion. Once agreed, the wording would be moved from this document to the latest Working Draft. He thought it had been agreed that Mr Maynier would give his proposals to the SLAs for incorporation in this document. He suggested that Members should proceed to go through the Working Document and Committee Proposals document, and deal with the specifics when questions were raised.

Ms Booyse continued to point out that on page 16 of the Working Document, the definition of “request” had been removed. Proposals for new wording were now contained on pages 2 and 3 of the Committee Proposals document. Two options were outlined for “request for access”, one referring to the Bill alone, and one to PAIA.

Mr Swart thought the second option was the better because it made it clear that the PAIA would apply.

Ms Booyse noted this. She said that the Members had raised questions on the apparent conflict between the Bill and PAIA and two proposals were now set out on pages 3 and 4 of the Committee Proposals document.

Ms Smuts noted that there must still be discussion on this point.

Ms Booyse pointed out that on page 27 of the Working Draft, clauses 9(2) and (3) had been removed.

The Chairperson reminded Members that there had been substantial discussion on this, and Members had agreed to Mr Landers' suggestion to delete these references.

Ms Smuts said that the DA welcomed the fact that “file block” had been dropped, but asked why this was not also done for “file series”, as the DA had always argued for the severability of information.

The Chairperson reminded her that the whole phrase had been deleted in several places, and said that he did not want Members to get into any further discussion on this.

Ms Smuts said that she had thought that a reference to “file series” still appeared somewhere in the Working Draft, but she would revert on this.

Ms Booyse added that similar amendments had also been made in clause 12(2).

Ms Booyse noted that on page 32 of the Working Draft, in clause 13(1), the wording had been refined to capture the concept of “is likely or could reasonably be expected to prejudice the Republic”. Then Dr Oriani-Ambrosini had raised the question of making a more distinct differentiation between the levels of confidential, secret and top secret information. Therefore, on page 5 of the Committee Proposals document, some proposals had been set out. One involved replacing “serious” with “grave” (harm) in respect of top secret information. Another proposal was to use “serious and irreparable harm” for this category. The third proposal was to use “irreparable harm” alone for this category.

On page 34 of the Working Document, in the new clause 14(5) and (6), the reference to file blocks, series and categories had been removed again.

Ms Booyse then directed Members to page 8 of the Committee Proposal document, noting that a new heading for “Request for access to classified information and status review” was inserted. Changes had been made to clause 20(1). The clause then set out further changes that had been proposed by Dr Oriani-Ambrosini for subclauses (5) and (6). The opinion of the SLAs was contained in a footnote. This indicated that the reason for including the phrase “a reasonable time” had been to ensure that there was compliance with the 30-day time period set out in PAIA, and the period of “not longer than 90 days” that Dr Oriani-Ambrosini had suggested should be imported from clause 21 would interfere with the PAIA process.

Ms Booyse said that page 48 of the Working Document, and page 9 of the Committee Proposals document, related to clause 21(2), and Dr Oriani-Ambrosini’s question of whether there was compliance with the provisions of the Promotion of Administrative Justice Act (PAJA). A reference to the relevant section of PAJA had been included, and the 90 day time period was also aligned.

Ms Booyse indicated that page 56 of the Working Document reflected the suggestion to refer to the “relevant” Minister – who would be the relevant Minister of the organ of state.

Page 10 of the Committee Proposal document related to the questions raised about the appeal court procedure. A new clause 33A was suggested, which stated that a person who was aggrieved by a decision made in regard to a request for access to classified information may apply to a court for appropriate relief in the manner provide for in Chapter 2 of Part 4 of the PAIA.

The same page also contained suggested wording in relation to the responsibility of the Agency.

The final proposal in the Committee Proposals document related to the offence of hostile activities. To overcome the problems, the wording “other than as contemplated in section 42” was included. That would ensure that when a person was charged, if the information was disclosed without any purpose of it being used for hostile activities, then the charge should be laid under clause 47.

Members agreed with, and the Chairperson gave instructions that the definition of “information peddling” on page 1 of the Committee Proposals document should be included in the next Working Draft.

The Chairperson received confirmation from the SLAs that they would still be giving an opinion on “national security” matters.

Ms Smuts noted that Mr Maynier’s draft should also be considered in conjunction with what was in the Committee Proposals document, and this topic should not be regarded as closed.

Bill / PAIA alignment
Ms Smuts then made the point that a number of the matters in the Committee Proposals document were concerned with the alignment between the Bill and PAIA, and she felt that they should not be discussed one by one, but in that overall context. She expressed her satisfaction with the direction that the Bill was taking, but thought the discussion on alignment must be fully exhausted before turning to individual clauses.

Ms Mentor asked for clarity on interpretation matters, and in particular whether a later piece of legislation would take precedence over an earlier one.

Ms Smuts said that section 5 of PAIA said that PAIA prevailed over other pieces of legislation, pointing out that it was passed to give effect to a Constitutional obligation in 2000.

The Chairperson explained to Ms Mentor that PAIA was in fact simply another piece of legislation, in the sense that Parliament had made the law, and therefore could also amend or repeal it. There was some discussion as to whether any law took precedence over others. Former Chief Justice Chaskalson had held that the Constitution did not fall into the category of a law, because it had not followed the legislative process, but had been certified by the Constitutional Court. That was a matter of historical interest. Apart from that, all other laws passed by Parliament had the same status, whether or not they had their foundation in the Constitution. If a law interfered with fundamental rights as set out in the Constitution, and did not fall within the justifiable limitations provisions of section 36, then it could be struck down. In answer to the question whether a later law would take precedence over an earlier, he noted that the later law could amend the earlier, but if it did not do so, then it was a matter of interpretation as to which would prevail in the case of a conflict. An opinion had been provided on this by the SLAs some months back, but Ms Mentor was not at that meeting.

Ms Smuts said that she did not fully agree with the Chairperson’s views, saying that it was widely recognised that Acts 2, 3 and 4 of 2000 were different from other laws. Section 5 of PAIA said that it would apply “to the exclusion of” any other piece of legislation” that attempted to prohibit disclosure or was materially inconsistent with the provisions of PAIA, so it was generally accepted that it would prevail. That did not mean that it was incapable of being amended. It did, however, have a special status, as it was written to give effect to section 32(2) of the Constitution.

The Chairperson said that the Constitution had merely said that an Act should be passed, but it had not specified that PAIA would prevail. That clause had been inserted by the legislators. There would be nothing wrong in principle with the current Bill containing a clause that said that section 5 of PAIA would not apply, and there was nothing in section 5 that would save PAIA if it was challenged on certain grounds in the Constitutional Court.

Mr Swart said that the status of section 5 of PAIA was important, but he accepted that different views were held on this. PAIA would trump the Defence Act, but section 5 could be challenged. The point about constitutionality was a separate matter. The conflict of laws provision for Acts 2, 3 and 4 was not the same as the general conflict of laws principles that would apply to other acts. The drafters of these acts had ensured that PAIA would apply to the exclusion of others, so that if there was a conflict between pieces of legislation, then PAIA would prevail.

Ms Mentor did not understand how a law could be written that would trump future laws.

The Chairperson said that this debate would be picked up as Members went through the Bill.

Ms Smuts did not think it was necessary to discuss section 5 of PAIA but the general conflict of laws provisions would be discussed.

The Chairperson suggested that matters on pages 3 and 4 of the Committee Proposals document should be left aside for the moment.

Clause 13
The Chairperson pointed out that the suggestions of Dr Oriani-Ambrosini on the classification levels had been captured between pages 4 to 7 of the Committee Proposals document, although Dr Oriani-Ambrosini was not able to be present at this meeting.

Mr Swart said that he had supported Dr Oriani-Ambrosini’s concerns on the need to spell out more clearly the difference between the levels, as to his mind “serious” and “serious or irreparable” could be equated, as the test in the latter would be either serious harm (as applied also to the confidential level), or irreparable harm. However, the Chairperson had read this slightly differently. He thought that perhaps a legal opinion was needed. In order to clarify this, he had agreed that “serious
and irreparable” should be used, so that both tests would have to apply to the top secret level. He asked the Chairperson to motivate why he had thought that there was not a problem with this.

The Chairperson thought that this debate had been virtually exhausted. It was necessary simply to decide upon the correct words. This could be discussed finally on the following day, as Members should give more thought to it. He reminded the Committee that at one stage the clause seemed to be agreed, and then new proposals were put forward, and it was now necessary to finalise it.

Clause 20
In relation to clause 20, the Chairperson asked Members to consider the proposal on page 8 of the Committee Proposal document.

Members agreed to the heading “Request for access to classified information and status review” could be used.

Mr Swart said that, following on the points raised by Dr Oriani-Ambrosini at the previous meeting, in relation to clauses 20 and 21, he had thought again about the matter. It was not clear why a person would request a review of classification unless he or she was also requesting access to information, and this request would therefore be framed under clause 20. It was unlikely that a person would want simply to have a classification reviewed under clause 21, as the effect would not be to release the document, but to change the classification.

Mr Swart also raised the point that although the heading referred to “request for access” and this phrase was defined, clause 20(1) was worded “When a request is made for access” – thereby separating out “request” and “for access”. He asked if this would make any difference when interpreting the clause.

The Chairperson clarified for Members that when the Committee had decided to delete the clause dealing with PAIA provisions, and incorporated these into clause 20, a new heading was needed to explain what the clause was doing. He confirmed that when a person applied for access to information under PAIA, and it then became apparent that the information was classified, his would spark a status review automatically. He wondered if the fact that a request for access would necessarily encompass a status review also needed to be captured.

Ms Smuts asked if clause 20(1) should read: “If a request is made for access to information in terms of the Promotion of Access to Information Act…”

Mr Swart said that the reference to that Act was already in the definition of “request for access”.

The Chairperson said that the status review procedure provisions could be deleted, because the same people would be involved. It was no longer necessary to have the clause dealing with PAIA, because the procedures for review would happen in terms of this Bill. He asked Members if they were happy with the wording of clause 20(1).

Mr Landers said that the ANC agreed with this.

Mr Swart agreed that it seemed in order, except that Members would then need first to agree with the second option for the definition of “request for access”, on the principle that when a request was made, it would be made in terms of PAIA. However, at the point where it became apparent that the document was classified, the information officer of PAIA must refer the request to the head of the organ of state, who would then deal with that request in terms of the Bill.

The Chairperson thought it was preferable to put that optional definition in the definitions section of the Bill, and confirmed the sequence of events set out by Mr Swart, adding that the override would also apply.

Mr Landers confirmed that the ANC agreed both with the second option for the definition of “request for access” as set out on page 3 of the Committee Proposals document. The ANC also agreed with the wording set out for clause 20(1) on page 8 of that document.

The Chairperson asked that the SLAs make these changes to the Working Document.

Ms Booyse asked to comment further on clauses 20(5) and (6), which she had mentioned briefly earlier on. Dr Oriani-Ambrosini had suggested that the words “the court may condone” should be replaced with “the court may anticipate” (since the time periods would not already have expired). However, this created a problem as the use of these words meant that the court itself could anticipate those time periods, whereas it was intended that the condonation would occur only after an application had been brought by an applicant to the court. Then, in respect of subclause (6), Dr Oriani-Ambrosini had suggested that the wording of clause 21(2), which contained a reference to a ninety-day period, should be brought across. However, this 90 days, if inserted, was inconsistent with the PAIA provisions.

Mr Landers said that he had been persuaded by the SLAs not to agree to the proposals made by Dr Oriani-Ambrosini for subclauses (5) and (6).

The Chairperson agreed, saying that Rule 6 of the Uniform Rules made it clear that the applicant, not the court, would have to anticipate the rules and ask for condonation. He noted agreement from Members not to effect the proposed changes to subclauses (5) and (6) and to reflect clause 20 (save for the amendments to subclause (1)) in the Working Draft, in its previous format.

The Chairperson then asked Members to move to clause 21, which related to the status review.
The State Law Advisors were instructed to leave the wording as it previously was, and also to reinsert the reasonable time and take out the 90 days.

Clause 21
The Chairperson said that the status review proposals were set out on page 9.

Ms Booyse reminded Members that the SLAs had been asked to check whether these provisions were in alignment with section 5(2) of the Promotion of Administrative Justice Act (PAJA). Section 5(2) of that Act set out a period was 90 days, so this did conform.

Ms Smuts said that the first submission by Adv van Rooyen to the Committee on the Bill had pointed out that section 1 of PAJA specifically excluded from the definition of “administrative action”, any decision or failure to take a decision under PAIA. The question therefore arose whether it was necessary to provide for a similar exclusion also in respect of this Bill. Adv van Rooyen was of the opinion that this did not affect the Panel, which was an administrative panel. The Committee had built in a number of other aspects.

The Chairperson asked the SLAs, in light of the questions raised earlier around the differences between clauses 20 and 21, to think about whether the status review was still needed.

Mr Swart summarised again that Members and the SLAs would need to consider under what possible circumstances a person might call for a status review when that person did not want to access information. If this was likely, then the status review provisions would still be needed, but if not, they could fall away.

The Chairperson noted that the status review provisions (clause 21) would remain flagged for further discussion.

New Clause 33A: Appeal to Court
Ms Smuts said that this clause was also part of the larger discussion on how the Bill and PAIA interfaced. She summarised that if a person requested information, which turned out to be classified, then the request would be referred to the head of the organ of state. Should this person refuse, the requestor could make an internal appeal to the Minister. Should that fail, the person would approach the court. All internal appeal mechanisms had to be exhausted before approaching the court.

The DA proposed that there should, however, be an intermediate appeal stage, between the Minister and the court. As shown by the practical difficulties in implementing PAIA, there could be cases where a person might simply get a “mute refusal”, and the costs of approaching the court meant that such people were left in practice without a remedy. There had, for some time, been calls for an intermediate appeal mechanism to be put in place also in PAIA. The Access to Personal Information Bill would also tie in with PAIA. Ms Smuts reiterated that the DA believed it was both desirable and necessary to provide for an appeal mechanism before the court stage. Originally, there had been suggestions that a retired judge could be nominated to deal with appeals at that stage. The DA did not think that this appeal stage had to be huge or complex; a retired judge, perhaps sitting with one or two experts, seemed ideal. The Panel was one step in the process, but this dealt with reviews. An appeal process was different. Whilst the DA welcomed the new clause 33A it appealed for an additional mechanism also containing something similar to what was under the original clause 25.

Mr Landers said that PAIA was being held up as a shining example, and the Committee had originally been castigated for not aligning this Bill with PAIA. Now that it had done so, more was being requested. The ANC had considered the suggestion of a judge, which had been raised earlier, and had taken further advice on this. The conclusion was that this process could well be challenged, and rather than risk a Constitutional Court challenge, the ANC had decided to drop that step, and instead include the process of clause 33A, which it believed was more than adequate.

Ms Smuts agreed that clause 33A had to be included. She asked what the argument was against allowing for appeals to a nominated judge.

Mr Landers responded that the argument was that this was contrary to the separation of powers.

Ms Smuts countered that other legislation allowed for this step, usually in the form of an appeal board. Whilst she accepted what Mr Landers had set out as the view of the ANC, she did not agree with the argument.

Ms Mentor asked for the rationale behind having an intermediate appeal mechanism.

Mr Maynier said that the ANC must be aware of the difficulties that requestors had with appeals under PAIA, where there was no intermediate structure, because most requestors could not afford to seek relief in the courts. If that was accepted as a problem, then he asked Members to consider a remedy.

Mr B Fihla (ANC) pointed out that if an organ of state refused a request for access, the Review Panel could check the document.

Mr M Sonto (ANC) added that although the ANC had initially proposed having a panel headed by a judge, it was then clarified that there would be objections to having a judge involved at two stages of the process, which was why appeals were to lie to the relevant Minister. This had been agreed to by all parties earlier.

Mr Swart said that when a request was made, and turned down, section 78 of PAIA allowed for an internal appeal to a Minister. However, he asked what would happen in the case of the section 46 overrides, and whether this would also have to follow the internal appeal process, or if a requestor could apply straight to court. This Bill was providing that a person aggrieved may apply “in the manner provided for under PAIA” and he wondered if the full internal process would have to be followed.

Mr Landers agreed that in the normal case, the PAIA process would be followed.

Mr Swart clarified that he was asking about a case where there was urgency because of substantial contraventions.

Mr Landers confirmed that the PAIA and Bill overrides would apply in the same way.

Mr Maynier reiterated that, given the experiences with PAIA, there should be an intermediate appeal mechanism before a full court process. Most people did not have the means to seek relief through the court. He noted the comment about the separation of powers, but pointed out that this would be a retired, not a serving judge, who was surely not part of the judicial arm.

The Chairperson commented that a judge was appointed for life.

Ms Mentor was not convinced by the arguments put forward by Mr Maynier, saying that legislation should not be written to try to solve practical problems.

Ms Smuts asked what the risk would be.

The Chairperson reminded Members that they had agreed that long, drawn-out procedures for requesting access should not have to be followed where there was serious or imminent danger. Members had agreed that in such cases there could be a direct approach to court, and application for condonation. When the matter was not so urgent, a 30-day approach would be followed. However, these special provisions would not apply to normal requests, and the Bill set out the same procedures as would be followed under PAIA. An internal appeal would first lie to the Minister, before an applicant approached the Court.

Ms Smuts said that there was another problem, because section 82 of PAIA no longer accorded with the rulings of the Constitutional Court on disclosure, as set out in the Independent Newspapers case.

Mr Landers stressed that this was Ms Smuts’s own interpretation, with which he did not agree.

Mr Maynier returned to the appeal mechanisms. He asked the ANC if its argument around separation of powers would still apply to a retired judge who was not a member of the judicial branch of government.

Mr Landers did not think that this was the correct interpretation.

Responsibilities of Agency
The Chairperson said that the responsibilities for the Agency were now set out on page 10 of the Committee Proposals document.
Mr Landers said that he thought this was well-worded, but asked that subclause (b) be flagged until the Committee had considered the application of the Bill, to ensure that the application clause and these provisions coincided.

Ms Smuts noted, for the record, that the DA opposed subclause (a), as it dealt with valuable information

Disclosure of classified and related information
The Chairperson asked for comments from Members. The insertion of the words “other than as contemplated in section 42” distinguished this type of disclosure from the espionage clause. The ANC had indicated that it was in agreement with this proposal.

Ms Smuts said that this was very important, and asked why Mr Maynier’s proposal on this clause was not also included. She regarded that wording as far better, and said that at the very least the proposal had to be discussed.

The Chairperson asked the SLAs to insert the wording proposed by Mr Maynier into the Committee Proposal document, so that it could receive consideration.

Definition of national security
Ms Booyse noted that the State Law Advisors had now sourced some case law in which “national security” had been debated by the courts, and some of these would be summarised. She said that although there was not a definition of “national security” at present, the courts had a consistent understanding of it, and had applied this understanding uniformly. It was considered, in particular, in the cases of Mail and Guardian v Masetla, the Independent Newspapers case and in the South African National Defence Force Union matter. The court had, without necessarily attempting to define “national security”, decided that certain information would be classified and other information would be released. The concept of “national security” seemed to be clearly understood.

The Chairperson noted that the cases were bulky, and copies were made available to the Committee, rather than to all Members.

Mr Sisa Makabeni, State Law Advisor, added that in the Independent Newspapers case, the court recognised the right of the State to classify and protect information for national security reasons. The case before the Court was a challenge mounted on the authority to classify. Deputy Chief Justice Moseneke said that the state should have the ability to pursue national security on all relevant factors. Similar statements were also made in the other two cases referred to. The court had not defined the concept, but had operated on the basis that it was generally understood and applied within the facts of each case.

Ms Smuts noted that she was familiar with the Independent Newspapers case. In this, Judge Moseneke had footnoted the Minimum Information Security Standards (MISS), although he had given a difficult ruling on the public domain. However, there were no attempts to define national security; this was the job of the legislature.

Mr Landers thought that this was not quite a full enough description. He read out that in paragraph 55, Judge Moseneke had said that the court was properly seized with the matter and obliged to consider all circumstances when deciding whether it was in the interests of justice to keep the documents secret, and the obligation of the state to pursue national security. A court would not be satisfied with what might be set out in a statute alone, but would have to consider the extent and character of material, connection of the information to national security, and other matters. He actually had dealt with this, saying that the court knew what national security was. The intention of the Committee was not to ask the State Law Advisors to find where the court had defined national security. There was no definition, so it was necessary to find out how the courts had dealt with it.

Ms Smuts said that she did not agree with that judgment. It did recognise government obligations. The court would still have a discretion to weigh up when the information would be disclosed, released and so forth. She did not agree with the assumption that everyone understood what national security was.

The Chairperson said that minority judgments were also referred to. The Committee would need to decide if it wanted a definition, or not, and if it was to include one, how it should be worded. He thought that Members would have opposing views on these matters. The Canadian legislation did define national security. Modern day threats must also be taken into account. He suggested that Members should read the court cases in the meantime, and a final decision would be taken later. Members should decide if the Bill would be useful if it did not contain a definition for “national security”.

The Chairperson then asked the State Law Advisors to revise the Committee Proposals document, pointing out that the opposition parties had circulated a document on clause 13, dealing with classification levels, based on an opinion from Senior Counsel. Members should also look at this, and formulate their responses. However, he cautioned Members that it was not possible to continue introducing new proposals any longer.

The Chairperson asked the DA if there were any adjustments to the preamble.

Ms Smuts noted that there was nothing further than had been given before.

The Chairperson also asked Members to give consideration to the points made by Dr Harris.

Ms Mentor asked if it was possible to consider what the net effects would be should the clauses dealing with archives be removed.

The Chairperson said that if the Committee did decide to follow the 2008 Bill, it would be necessary also to check if there would be any other unforeseen consequences arising from the changes made to date to the Bill. He had already noted some adjustments that would need to be made.

The meeting was adjourned, until Thursday 18 August, at 14:00.

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