Protection of State Information Bill: Working Document 21 and Committee proposals 21

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

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

The State Law Advisors tabled a new document setting out the Committee Proposals that remained still to be decided upon by Members. Members confirmed that the proposals they had made were correctly captured. The IFP noted that its proposals on page 5 were adequately covered by proposals on page 4, and the former could be deleted. The DA asked that its proposal for re-insertion of the original clause 2(j) into the Objects clause be reflected.

Members raised their disagreement on the wording of clause 13(1). A legal opinion on the constitutionality of this clause had, inadvertently, reinserted the word “security” into proposed wording for that clause, although the opposition parties understood that this had in fact been deleted from the clause already, and they were firmly of the view that this would overly broaden the clause. The ANC maintained that it wished this word to appear. It was agreed that this clause must still be flagged for later discussion. Members discussed whether, in principle, they would be permitted to return to issues on which they had earlier expressed views, and change those opinions or words used, pointing out that often later discussions impacted upon decisions taken earlier, and agreed that they would, provided that the discussions were not merely circuitous.

Members agreed to the insertion of a new clause 57(1)(m), which empowered the Minister to make regulations in relation to clause 16, subject to a change of wording.

Members adopted a revised definition of “national security” that incorporated proposals by the DA into paragraphs (b)(i), (iv), and (vii), as well as adding a qualifying phrase to the end of paragraph (c). However, the ANC was insistent that “economic” secrets should still be included in (b)(v), although it had agreed to the deletion of “development”. It also maintained that it was necessary to refer to “acts directed at undermining the capacity..” in (c), although the DA had some reservations that this was too broad. The additional exclusion of “lawful political activity, advocacy, protest or dissent” was brought up to the end of paragraph (c).

Members then held detailed discussion on the procedures for archival matters. The ANC did not agree that it was necessary to re-incorporate clauses from the 2008 version of the Bill. An ANC Member set out the procedures already in the Bill and PAIA, suggesting that these catered adequately for the position. There would not be automatic declassification, but the Bill provided for a maximum protection period of twenty years, which could only be extended for specific reasons. The head of the organ of state must conduct ten-year reviews, may conduct reviews within shorter time frames, and must submit annual reports to the Classification Review Panel (the Panel), and the Panel may also conduct random sample checks. A report, which would be a public document, must be published by the head of the organ of state. The Panel would have to review and oversee the status review report, receive reports on the 10-year review and reviews of the status of classified information during the year. No access to classified information may be withheld from the Panel. The Panel was accountable to the National Assembly, and must report on its activities at least once a year. The Bill’s requirement that records that had been classified for more than 20 years must be transferred to National Archives would, in practice, apply only to departments who opted in. Members were satisfied that there was no contradiction between this Bill and the Promotion of Access to Information Act (PAIA), in respect of documents older than 20 years. The DA still wanted lists to be available, showing what categories of information had been declassified, and the numbers, and where these could be accessed. The DA and IFP Members pointed out that it was possible to declassify information that nobody ever knew was in existence, such as intelligence subcommittee reports. Members noted the limited exemptions that applied under section 51(4) PAIA, and confirmed that an entity may apply for exemption on an annual basis. The DA noted that entities were supposed to draw manuals, but said that many still did not. The Chairperson urged Members not to create another entity, but to try to draw the procedures within existing provisions, and the State Law Advisors were asked to advise how this could be done. It was desirable to make the information available through as many sources as possible.

Members hoped to finalise the outstanding matters by the middle of the following week, so they could consider the “B” version of the Bill.

Meeting report

Protection of State Information Bill: Working Document 21 and Committee Proposals 21
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, referred Members to the Committee Proposal document 21. She noted, in respect of the definition of “national security” that new wording had been inserted into (iv) and (vii). She said that the other proposals had been captured that were described on the previous day, on pages 2 to 3 (DA proposal) and on pages 4 to 5 (IFP proposal).

The Objects clause was also set out, as agreed to on the previous day.

Clause 3, relating to the Application of the Act, was accompanied by a further proposal, and the proviso suggested was now included at the end of clause 3(b).

There had also been proposals for regulations determining the manner in which classified documents must be handled, once handed in, by the South African Police Service (SAPS), and these were set out as a new subclause 57(1)(m).

Mr L Landers (ANC) confirmed that the ANC’s proposal for the definition of “national security” was correctly captured.

The Chairperson noted that there was also a one-page document containing the DA’s new proposal on “national security” and he asked Mr Maynier if this now replaced the first proposal made by the DA.

Mr Maynier confirmed that it did, and that he would e-mail it to the State Law Advisors.

Dr M Oriani-Ambrosini (IFP) confirmed that his proposal had been captured correctly.

Mr Maynier confirmed also that the “Further Proposal” on page 3 was also a DA proposal, which was essentially put forwards in case the ANC was not prepared to accept the other proposal.

Ms Booyse pointed out that there were also two proposals from the IFP.

Dr Oriani-Ambrosini said that his proposals were now sufficiently reflected on page 4, and what appeared on page 5 could be deleted.

Ms M Smuts (DA) said she had argued on the previous day that the reference to the Protection of Access to Information Act (PAIA) and the National Archives and Records Services of South Africa Act (the Archives Act) should be reinstated in the Objects clause.

The Chairperson said that he did not understand there to have been any agreement to retain it. He had drawn Members’ attention to the fact that it could be problematic to make reference to only these two pieces of legislation, but not to others, and that was why the wording was deleted. These were in any event just proposals. He would like to see that proposals captured all amendments before they were moved out of the Committee Proposal document, and to the Working Document. He noted that the version appearing on page 6 had been “cleaned” in the sense that it did not set out the deletions (in square brackets) and additions (underlined), whereas it would be easier if these were shown. When the clauses had been settled they would be moved across to the Working Document, which would form the basis for the B version of the Bill.

Mr M Sonto (ANC) asked at what stage the Committee would be going through a “clean” document.

The Chairperson noted that Members were actually quite close to reaching this stage. He explained that he would still like the revisions to be shown so that Members would remember, and would not repeat the same questions about what had happened to certain words. It was necessary to keep an ongoing record, to avoid later arguments. He therefore asked the State Law Advisors (SLAs) to show the deletions and additions with the necessary format markings.

The Chairperson suggested that the majority of this clause was agreed, so that all that would remain in the Committee Proposal document was Ms Smuts’ proposal to reinsert the provisions on alignment, which were contained in clause 2(j) of the Bill as originally drafted.

The Chairperson then said he intended to go through the Committee Proposals document, page by page, to check whether the wording in this document correctly reflected the Members’ proposals.

Ms Smuts referred Members to the further proposals of the DA on clause 3(b), on page 7. Although a court may know what “on good cause “ would mean, she did not have the same confidence that a future Minister of State Security might know that this did not necessarily refer, for instance, to a political cause.

Mr S Swart (ACDP) said that the wording “or part thereof” needed to be added into the DA’s proviso as well, because either a whole organ of state or only part of it could now make application for inclusion in the Bill.

It was agreed that this clause should remain in the Committee Proposals document.

The Chairperson noted that the clause 13, on the classification levels, still needed to be further debated and decided upon by Members, but there seemed to be nothing that needed to be added.

Ms Smuts asked for clarity on the wording of clause 13(1), following the opinion submitted by Adv van Rooyen. He had submitted a proposal, but that had mistakenly included a reference to both “security” and “national security”.

The Chairperson noted that the ANC had indicated that it accepted that proposal in its entirety, despite the fact that some of those words were apparently included in error. That was where the ANC stood on the formulation of this clause.

Ms Smuts said that this was a problem. If both these phrases were included, the clause would then be over-broad. The DA had brought this formulation to the ANC’s attention because of the argument on the constitutionality of including “international relations” and “personal safety” references. However, the ANC had then indicated that it liked the proposal’s reference to “security”, which in fact had absolutely no bearing on the constitutionality issue. The DA remained of the view that the references to “international relations” and “personal safety” had made this clause over-broad. It had also communicated with Adv van Rooyen, who had confirmed that the reference to “security” was not intended, but that somehow the brackets around that word, indicating that the Committee intended to delete it, were removed.

The Chairperson reiterated that Adv van Rooyen’s proposal, as reflected in the opinion considered by the Committee, was accepted by the ANC.

Mr Landers confirmed that this was so.

Mr D Maynier (DA) also raised his concerns. He had understood that the word “security” had been deleted, yet it had mistakenly found its way back into the clause. He read out the Bill’s definition of “security”, which meant “to be protected against danger, loss or harm, and is a condition that results from the establishment and maintenance of protective measures that ensure a state of inviolability from hostile acts”. This was far too broad and it would have the effect of making this clause over-broad. This would raise problems of constitutionality. He suggested that the whole concept of “security” must be deleted, and that Members must apply and their minds seriously again to the definition of “national security”.

The Chairperson said that it was not his intention, at this stage, to give a further opportunity to raise issues that had been discussed earlier. The issue of “national security” had been dealt with extensively, and the DA had already persuaded the ANC to make dramatic changes to the definitions, based on the opinion presented. The DA had not, however, persuaded the ANC on deletion of “security”. At some future point this point must be debated again.

Mr Maynier respected the point of view of the ANC but said that this was a major setback.

The Chairperson noted that these clauses were still in the Committee Proposal document because Members had not reached agreement, and had not managed to persuade each other on them. The Committee Proposal document did not necessary contain matters that had to be discussed today. These issues remained flagged because Members could not get agreement on them.

Dr Oriani-Ambrosini asked that it be noted that on page 10 he had used yellow highlighting for his proposals, but this had not come out in the printed version. He asked if perhaps something such as double underlining, which would show in a printed version, could be used.

The Chairperson reiterated that Members would not discuss this now.

The Chairperson noted that there was nothing to discuss at the moment on pages 11 and 12.

Mr Swart asked if he could raise a point of principle. Sometimes issues were raised, and there seemed to be agreement in principle. However, after further discussion, and other points, Members might then make comments that, when considered in isolation, may seem to go back on what they had previously agreed. He was not against the parties trying to reach agreements, but reminded Members that issues could be raised that then made it necessary to reconsider matters. For instance, the insertion of “international relations” and “security” in clause 13 would seem to go back on original agreements. If this was to be done by one party, then another could not be criticised and held to a former viewpoint.

The Chairperson said he had never maintained that even if Members had indicated their agreement earlier, they should not later be able to resile from that. He had questioned Ms Smuts’ comment on the objects clause because there had originally been an agreement, after discussion, to leave out the wording of former 2(j), but she had requested that it be reinserted.

Mr Landers said that he accepted Mr Swart’s point. There were times when ideas were raised, and what flowed out of that discussion may persuade a party, notwithstanding its agreement on something, to go back and try to improve on the position. However, he made the point that there was a difference between this, and the position where, some months later, a party would try to reinsert something that had, for good reasons, been taken out altogether. That would result in the Committee simply going round in circular debate.

The Chairperson reiterated that there was no reason for Members to be disturbed about this, and assured all that they would keep their democratic rights to raise issues.

The Chairperson then confirmed that there was nothing that needed to be raised on pages 13 to 15.

The Chairperson then drew the attention of Members specifically to the new insertion of clause 57(1)(m) on page 16 of the Committee Proposals document. He was aware that Mr Maynier and Ms Smuts were not happy with clause 16, on which the regulations would be based, but asked if they were satisfied with the wording concerning the regulations.

Mr Swart suggested that the word “handed in “ should be used instead of “given.

The Chairperson said it might not be a physical return but could be something merely reported.

Members agreed, after discussion, to use “returned” instead of “given”.

Other issues
Dr Oriani-Ambrosini reminded Members of the Chairperson’s ruling that in respect of some additional items included in his “IFP Proposals” document, which had not already been discussed or incorporated into the Working Draft or Proposals documents, the IFP and ANC would be given some time to engage with each other. This would enable him to decide whether it was worthwhile for him to propose or re-propose such matters.

A short adjournment was held to allow discussions.

New proposals on definition of “national security”
Mr Landers indicated that the ANC had agreed that some aspects of the DA proposal on “national security”  could be incorporated into the definition. He then went through the proposal. In respect of (b)(i), the ANC had agreed that the wording “hostile acts of foreign intervention directed at undermining the constitutional order of the Republic” was acceptable.

In respect of (b)(iv) the DA’s proposal was also accepted, so that the wording of this would read:”exposure of state security matter with the intention of undermining the constitutional order of the Republic”

The ANC found the drafting of most of the DA’s proposal on (b)(v) acceptable, save that it was insistent upon “economic” being included. The version of this clause to which the ANC would agree therefore read:
exposure of economic, scientific or technological secrets vital to the Republic”.

The ANC was prepared to accept the wording suggested by the DA for (b)(vii), which would then read: “ to “serious violence directed at overthrowing the constitutional order of the Republic”

However, the ANC insisted that its definition for paragraph (c) must stand, so that it did include “acts directed at undermining the capacity of the Republic to respond to the use of or the threat of the use of force….”

The ANC believed that it made little difference whether the words “but does not include lawful political activity, advocacy, protect or dissent” were included as a new paragraph (d), or left as the last words of (c).

Mr Maynier welcomed the proposal by the ANC and said that this took the Committee forward. The DA would prefer to have the last phrase that Mr Landers read out  incorporated into a new paragraph (d).

Mr Swart welcomed and supported this agreement, which would take the Committee a long way. He asked Members to bear in mind that this was the crux of the Bill and determined classification levels. The context of this whole definition was “national security”. He reminded Members that one issue flagged, in respect of clause 13, was use of  the word “security”, and the distinction between these two concepts was of concern.

Dr Oriani-Ambrosini said that, in paragraph (b)(ii), the word  “terrorist” should read “terrorism”. |

The Chairperson, after hearing the debate with Members, suggested that the word “terrorist” was acceptable.

Ms Booyse said that she noted the preference for the phrase “but does not include lawful political activity, advocacy, protect or dissent” to be incorporated into a new paragraph (d), but noted that this would make the whole definition tautologous, as it would read “national security includes….. but does not include…”. It would be preferable to make this phrase run as “acts directed at undermining….but does not include”, and therefore to add it in to the end of paragraph (c).

The Chairperson and Members noted this comment. The State Law Advisors were asked to move the newly-agreed definition to the Working Document.

Archival matters
Mr Landers noted that he had set out how the Bill would function, with particular reference to transfer of records to the National Archives.

Although it was not his intention to repeat matters already discussed, he summarised that clause 18, set out on page 43 of the Working Document, set out maximum protection periods of twenty years. However, clause 19 then provided for regular reviews by the head of the organ of state, using the conditions for classification and declassification set out in Chapter 7. These reviews must take place at least every ten years, although they could take place within shorter periods. On an annual basis, the head of the organ of state must also prepare a report on the regular reviews, and submit it to the Classification Review Panel (the Panel), for certification. In addition, within 30 days, that report must be tabled. The report would have to be published by the head of state, so it would be a public document.
It was important to note the roles and functions of the Panel. It would have to review and oversee the status review report, receive reports on the 10-year review and receive all reviews of the status of classified information during the year. No access to classified information may be withheld from the Panel on any grounds. The Panel was accountable to the National Assembly, and must report on its activities at least once a year. This was therefore a relatively transparent process.

Mr Landers noted that there was a need to resolve classification of all pre-1997 material as well as some classified under the Minimum Information Security Standards (MISS). The State Security Agency must attend to those reviews and submit reports to the Panel, which again must consider them, and report to Parliament.

Mr Landers reminded Members that Dr Verne Harris, Head: Memory Programme, Nelson Mandela Foundation Centre of Memory, and former Deputy Director of National Archives, had raised a query in relation to records held by national or other archives, at the commencement of this Act, which had been classified for longer than 20 years. Essentially the clause dealing with transfer of information to the National Archives would only apply to departments and entities that asked to opt in, and it was not expected that there would be many of these.

The only outstanding matter, which perhaps the drafters could consider, was the question of the 20-year period. PAIA clearly said that if a requestor asked for a piece of information that was in existence for more than 20 years, it must be disclosed. However, this Bill said that there would not be automatic declassification, and processes were set out for accessing information of older than 20 years, in the clause dealing with maximum protection periods. He wondered if this clause might be in contradiction with PAIA.

Mr Landers then said that, given this process, he did not believe that there was any need to draw any lists.  The Bill also provided for a register of valuable information and a register of classified information, although he was not sure whether these needed to be included.

Ms Smuts thought that the 20-year issue might not be a problem. The current clause 18, on page 43, set out that, in accordance with the Archives Act, information could not remain classified for more than 20 years, unless the head of the organ of state certified, to the satisfaction of the Minister, that continued classification was necessary, under conditions set out. The 20-year rule would, therefore seem to be taken care of already. Only in very serious circumstances could reclassification take place.

She summarised that the Bill thus included a 20-year rule, a 10-year review, or reviews at any time, and the fact that the Panel could, in addition, test on random sampling methods. She asked if everything pre-1994 would be dealt with under the 10-year ruling.

Mr Landers said that some documents would be older than 20 years.

Ms Smuts commented that she accepted the point about the departments opting in, but said that the clause’s internal inconsistencies still needed to be resolved.

Ms Smuts then explained why the DA still wanted to have some sort of listing. Declassified information was to remain in other repositories, not the National Archives. She referred to Mr Landers’ suggestion, on the previous day, that a list was essentially a database, but pointed out that the Oxford Dictionary definition defined a database as a structured set of data held in a computer. She pointed out that the information should be accessible by all South Africans, and in fact something more than a mere list was required. At minimum, it should be what section 15 of PAIA required, so that information should be given to the Minister, once a year, providing a description of the category and records, and where the documents would be available for inspection, without that person having to request them. This would relate to all declassified information in the repositories.

Mr Landers pointed out that the reference to the 20-year provision in PAIA did contain cross-references, and directed Members to section 41(1)(a)(iii) of PAIA. The disclosure requirements were worded as “must submit a description of…” so this information was automatically available, including a description of the categories available for inspection, purchase or copy, and those that would be available from the entity free of charge, as well as to advice how to access them. Then, on a periodic basis, the Minister “must” publish descriptions or update descriptions published, as the case may be.

Ms Smuts asked if a “category” was the same as a “list”.

The Chairperson pointed out that section 41(a)(iii) of PAIA was applicable in a very limited sense.

Mr Landers agreed, pointing out that the information being held by the Agency would, to a limited extent, deal with international relations and this section was likely to refer to the Department of International Relations and Cooperation.

Ms Smuts noted that there was a long list of exemptions, and she asked if any would apply to the Bill.

Mr Landers said that section 51 of PAIA dealt with the manual, but he was not sure that any Department had published that. Section 51(4) noted that the Minister “may”, on request or by notice, exempt any private body or category of private bodies. That would therefore appear to limit exemptions to private bodies.

The Chairperson said that PAIA was divided into sections dealing with the duties of public and private bodies. There should be a similar provision in respect of public bodies. He added that the regulations did exempt some intelligence community bodies, but this was done on application, and on a yearly basis.

Ms Smuts questioned if it was possible to go against regulations. She wondered if a clause should not be written in so allow for access to the files, including those pre-transition to democracy.

Mr Landers followed up on the Chairperson’s remark, and pointed out that section 14(5) of PAIA dealt with public bodies, but it referred to the “provisions of this section”, which related to the manual, so it did not take the position much further. He reminded Members that at the time that the Bill was drawn, it was envisaged that there would be a large body of information. He commented that the Departmental website was not particularly good.

Ms Smuts agreed that Dr A Lotriet (DA) had also raised some concerns about this. A list of the documents that had been declassified should thus be provided.

Mr Landers commented that Chapter 9, dealing with release of information, dealt with this, and specifically referred to clause 35 on page 59 of the Working Document. This said that classified information that was declassified may be made available to the public in accordance with “this Act, PAIA, or any other law”.

Ms Smuts noted that this was worded as “may” and not “must”.

The Chairperson asked if the Minister should not prescribe how this should be done.

Mr Landers thought that it could not be worded as “must”.

Dr Oriani-Ambrosini raised the point that very often, the very existence of information was classified, and the Agency may, in certain cases, refuse to say whether or not the information existed at all. In such cases, there was a point at which information no longer remained classified, and at that point, there should be a way for the public to be made aware of the existence of something that was not previously known about at all. He thought that only a declassification database could provide for that.

Mr Maynier agreed that the whole point was that the public should be made aware that documents had been declassified. He suggested that perhaps the Committee could consider inserting a provision to require the organ of state (or part of it) to compile a list that must include the category of the information classified, and statistics that indicated how many documents were included in each level of classification. That list could be provided to the Panel, who could either gazette it, or include it in their annual report.

The Chairperson reminded Members that the Panel and the head of the organ of state would be reporting to Parliament. He asked Members to apply their minds to that when it came to notifying people that matters were available.

Mr Landers agreed. The issue raised by the DA was that the body of information dating from pre-1994, in the hands of the Agency, should be made known to the public. The Chairperson had rightly pointed out that the report to Parliament would contain that information. However, it was also important to note that section 15 of PAIA would apply. That used the words “for inspection”, and a member of the public would therefore be able to inspect what had been declassified. That would probably be dealt with further in the PAIA regulations. He did not want to replicate this provision unnecessarily.

The Chairperson commented that the Committee had moved on considerably, from the time when the concept of public accountability and publication was discussed and the concept of reporting to Parliament was raised. He had heard no arguments to take that process further, by including these matters in additional lists, and asked why the Bill should look at yet another avenue, which would duplicate the processes.

Mr Maynier wanted to outline his concern and ask Members if there was already a remedy. He gave the example of a set of documents of a subcommittee of the old State Security Council, asking how members of the public would, firstly, know that these documents even existed, and secondly, how they would know that they had now been declassified. The records would not be automatically be available, as application would have to be made for them under PAIA.

Mr A Maziya (ANC) said that it seemed that Members were ignoring the fact that certain details would be put in the regulations.

Mr Landers answered that the chapter dealing with declassification noted that information may be made available under this Bill and PAIA. There could be instances where a request was made and processes could be put in place then to declassify. Section 15 of PAIA said that lists of categories of information must be furnished once per year. The fact that something had been declassified would appear in that list, because it had to be described. The categories of information that would be made available without a person having specifically to apply to see them would also be set out.

Mr Maynier said that he would need to read this provision in detail. However, he believed that there was an onus to provide a category of records that were automatically available. The fact that the categories were declassified may not mean that they were automatically available.

Mr Landers noted that the Bill dealt with this.

Dr Oriani-Ambrosini clarified that, under PAIA, there was a category of “available information” and this would be information that was still physically held. However, this may not actually still pertain. He cited the example of an intelligence operation that might be conducted now, and correctly classified, for good reasons. In twenty years time it would no longer be classified or classifiable, and would theoretically be available to the public. However, not every piece of information was kept, so those documents could be destroyed if they were considered not to fall within the category of “valuable information”. In such a case, the information would in fact no longer be physically available. The public would know nothing about it, and so they could not even request it now, and collect it in 20 years time. He thought that there had originally been more consistency when the Bill provided for records to be entered into a declassification database when they were declassified, and then transferred to National Archives, who would determine whether the information was valuable and what must be done with it. Once these provisions no longer applied, then the process would seem to be weakened.

Mr Landers pointed out, in answer to Dr Oriani-Ambrosini,  that no destruction of any public records could take place without an authority issued by the Director of the Archives

Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, noted that Members’ concerns were probably already catered for. He noted that section 14 of PAIA said that, within six months, the information officer must compile a manual containing sufficient detail to facilitate access, and a description and categories of records held. Section 14(2) required this to be updated annually. There were further requirements that the information in the manual may be supplemented with regulations.

Ms Smuts noted, in answer to Mr Makabeni and Mr Landers, that these matters tended to be honoured more in the breach than the observance. The South African Human Rights Commission had the task of ensuring that these manuals were produced, but the vast majority of public bodies were not in fact providing them. That would not satisfy the DA’s request, so she thought that lists must be gazetted. She added that four successive National Archivists had been unaware of the fact that destruction instructions were sent through from departments, between the 1960s and 1994. For this reason there was merit in Mr Maynier’s question. It was necessary to consider what “automatically available” meant, and in the PAIA scheme, this would be information that was not subject to mandatory or discretionary withholding. Even declassified information could, under PAIA, be withheld under section 41(2)(f) if it referred to the identity of a confidential source. “Automatically available” would probably not relate to anything dealing with defence, security and international relations, so this was not very helpful when considering this Bill.

Ms Smuts thought that a provision could be written in under the functions of the Panel. There was nothing that expressly required it to report on the details, and there was only a reference to the annual report that it must submit to Parliament. She suggested that maybe a requirement should be inserted into clause 23, to require it to gazette, or include reports, or, at the very least, to include, under subclause (2) a requirement around listing of declassified material. However, she would prefer to write in a specific requirement.

Mr Maynier responded to Mr Makabeni that he had thought that security services were excluded from the operation of section 14(1) of PAIA.

The Chairperson confirmed that this was correct, as he himself had pointed out earlier. He noted that the Committee seemed to agree that when information was no longer classified, then the public should know about it, and it had to go through a process. He did not think that there was anything particularly difficult about this, pointing out that this could be included either in a report or a gazette. It was another issue as to what should be made public, but the information would still be requested. He again expressed his reservations about creating additional channels.

Mr Landers agreed in principle, and noted that Members were formulating their ideas as they were talking.

The Chairperson asked the State Law Advisors to consider where it might be appropriate to insert a provision, and how it should be worded, so that additional structures were not created, but there was a clear indication of how the document would be made available.

Mr Landers thought this could possibly be included in clause 32, on page 56. He noted that Members had mentioned an annual report, but pointed out that this was likely to be a very thick document, particularly if, for instance, everything under the Official Secrets Act was declassified. It might be better to make the information available on a website, for easier access and downloading.

Dr Oriani-Ambrosini agreed with the logistical problems around the potential numbers of documents.

Mr Maynier said that ideally a person should be able to see, in a report, that the State Security Agency had declassified records from ‘x’ department, in ‘y’ division, and that there were ‘z’ records declassified in each category, which were now held by the Agency. That would enable the person to then approach the Agency to request access to those records.

The Chairperson said that he had spoken of non-controversial information. He also asked Members not to assume that people had access to websites, nor to assume that people from poorer areas would not be interested in this information. It was necessary that “access” be as wide as possible. Whilst the Annual Report may not contain every piece of information, it should at the least draw attention to where and how the matters could be accessed.

Dr Oriani-Ambrosini suggested that maybe wording along the lines of: “the classified information should be listed and publicised in the prescribed manner” might be sufficient.

The Chairperson thought that this solution would essentially be passing the responsibility to the Minister and JSCI.

The Chairperson then expressed the view that Members were not far from reaching agreement. This Committee should try to finalise all outstanding matters by the middle of the following week. He noted that there was still a need to discuss clause 13, in relation to Adv van Rooyen’s proposal. All parties had made their submissions on the offences, and the points raised were well made and understood by other parties. Dr Oriani-Ambrosini and Mr Swart thought that the definition of “information” would need to be adjusted, but it was likely that consensus could be reached on their proposals.

The meeting was adjourned until 9am on the following day.


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