Protection of State Information Bill [B6B-2010]: continuation of deliberations

Meeting report

Protection of State Information Bill
The Chairperson wanted to put on record that the meeting on the previous day had been adjourned at the request of all Members, with none raising any objection. He said that the Committee was presently following an internal process, and Members should not regard an agreement between parties as the end of the process, as it may be that the drafters still wished to make comments. He wanted clear messages to be conveyed to the public. It was vital that the Committee's behaviour be seen as responsible.

He asked Members to continue with the process.

Mr D Bloem (COPE, Free State) noted that his party would be concentrating on two important submissions on the Bill; namely, the submission of Legal Resources Centre (LRC) and George Bizos, and South African National Editors' Forum and Print Media South Africa. He noted that LRC had raised seven points that could assist in settling the contentions against the Bill. These were the lack of a public interest defence, which was raised by all other submissions. COPE thought that the areas that needed to be dealt with were:
- the need for a public interest defence
- amendments to clause 11 (Methods of classification of state information) He noted that the words “on careful consideration and sound legal grounds” should be included in clause 11(1)(a).

Mr T Chaane (ANC, North West) suggested that Members should return to the beginning of the Bill, and that the issues of the parties be raised when the clauses were discussed, in order.

Members agreed to this

Definitions
Head of Organ of State
Mr Chaane referred to page 5, at line 35, and suggested that the definition for “head of organ of state” should be amended by the deletion of paragraph (b). This would have other consequential amendments. There were concerns about municipalities getting authorisation to classify information, because this could lead to abuse, and the classification should be more closely limited to security and information cluster.

Mr A Lees (DA, KwaZulu Natal) asked for clarity on the process, and asked whether parties were setting out the amendments only, or if there should be debate on the points.

Mr Bloem said that Mr Chaane had correctly raised the question whether the process of going through clause by clause should be followed.

Ms N Ntwanambi proposed that the amendments be put, page by page, and then immediately discussed.

The Chairperson corrected her, saying that any changes would be “proposals” at his stage, and that the Committee may agree to park the matters for later discussion. It should also be recognised that as matters proceeded, the discussions may have a bearing on earlier or later clauses.

Mr Lees said Mr Chaane's proposal made some sense, but was consequential upon the definition of an organ of state. If this paragraph was to be deleted, then the definition of the organ of state must be amended to exclude municipalities. He would be happy to do that.

The Chairperson thought that this could be flagged as an issue to be dealt with by the Department of State Security (the Department) as this may have implications on definitions even outside this Bill.

Mr Bloem agreed with Mr Chaane's proposal and was not opposed to seeking more clarity from the Department.

National Security
Mr Chaane also proposed that, in respect of the definition of “national security” the word “ includes” should be replaced with the word “means”. 

Mr Bloem agreed.

Mr Lees noted that on the previous day this had been a proposal from the DA.

Tagging
Mr Lees referred to line 51, under that definition, and said that the DA believed that the Bill had been incorrectly tagged. It had been tagged as a section 75 Bill. However, the DA believed that provisions dealing with provincial archives were not within the competence of Parliament and were invalid, or should have been dealt with in terms of section 76 of the Constitution. He requested that the State Law Advisor should speak to that issue. He did not want to waste the Committee's time, nor play a political game by raising this at the end of the process.

The Chairperson said that the Bill made reference to the National Archives Act. If there was any reference that created doubt, the Committee must deal with the issues. If this had to do with a possible contravention of other legislation, then it would need to be dealt with. He pointed out that “National Archives” was defined, and this did not relate to Mr Lees' argument. He asked Mr Lees to clarify the point.

Mr Lees said that he probably had not made himself clear enough. On page 5, the definition, in line 10, referred to an archive as including “an archive established in terms of a provincial law” or one held by another organ of state.

The Chairperson said that the Act of 1996 had established the Archives.

Mr Lees was not sure of exactly what this Act said.

Ms Ntwanambi felt that the Bill did not really relate to section 76 of the Constitution, because there was nothing to do with municipalities or provinces. It merely defined what an organ of state was, but no municipality would be dealing with the issues that were covered in the Bill. For this reason, she could not agree with Mr Lees' concerns and believed that the Bill dealt with issues of national competency only. The ANC believed that the Bill had been correctly tagged.

State information
Mr Chaane proposed that the following words be added to the definition:  “including valuable information, personal information and sensitive information”. He believed that the various definitions for any type of information to be dealt with would be better expressed in a composite definition.

 Mr Bloem proposed that this be parked and debated later. He wanted more time to apply his mind to the implications.

Mr Lees said that the DA would not agree with this, as it had requested that valuable information be removed from the Bill. In addition, personal information was being dealt with under the Protection of Personal Information Bill. He had not yet applied his mind to the question of sensitive information.

Mr J Gunda (ID) said that Members would have to consider the implications.

Mr Chaane noted again that the ANC did not agree that valuable information should be deleted. He went on to propose that, after the words “is likely to”, there should be an insertion of “infringe on the constitutional rights (delete deny) of the public or individuals”, and the remainder of words from “of a service” should be deleted.

Mr Lees asked what an example of such information might be. He did not think that this would be clear to an official who had to apply this legislation.

Mr Chaane gave an example of an ID book, which was regarded as valuable information, therefore casting a duty on the state to keep the information safe. If an unauthorised person were to gain access to the information, and alter it, some of his rights may be affected, such as rights to enjoy benefits. If there was no record of his ID, he may be denied a job, may not be able to get licences and similar benefits.

Ms M Boroto (ANC, Gauteng) noted that whilst an ID was not protected, the information behind it (such as details on marital status) should be protected.

Mr Bloem said that he would not like this to be confined to IDs. Perhaps more examples needed to be included, and it might be appropriate to do this in regulations.

State Security Matter
Mr Chaane thought that the word “includes” should be replaced with “means.

Clause 1(4)
Mr Chaane answered the proposal of the DA on the previous day that this clause should be deleted. He believed that a balance must be reached between this Bill and the Promotion of Access to Information Act (PAIA). He therefore proposed that the words “despite section 5 of the PAIA” should be removed. His formulation would then read: “In respect of classified state information, this Act prevails, if there is a conflict between a provision of this Act and a provisions of another Act of Parliament that regulates access to classified state information”.

Mr Bloem requested that these proposals should be provided to other Members in writing. He did not agree with the proposal.

Mr Gunda believed that this would still amount to an attempt to have this Bill superceded PAIA, and that it would be unconstitutional.

Ms Ntwanambi said that nothing in Mr Chaane's proposal made any reference to PAIA .

Mr Gunda thought that this made no difference; the Bill could still come into conflict with PAIA, and there could not be anything that was in conflict with PAIA.

The Chairperson thought that a generalisation of “in conflict” really was not helpful.

Ms Ntwanambi asked for clarity as to why this would contravene PAIA, which did not necessarily deal with matters of state information.

Mr Gunda responded that PAIA was a law under which information could be accessed from the state.

The Chairperson interjected to note that the words proposed were “classified state information”.

Mr Lees remarked that PAIA covered all information, valuable or classified, personal, public and company information. Therefore all state information fell under the ambit of PAIA.

Ms Ntwanambi said that if this was correct, there would not have been a need to have other legislation. This Bill did not deal with general information. PAIA was specific to “information” and not “classified state information”.

Mr Gunda read out the objects of PAIA, which referred to “any information held by the state”, and any other information that was required to give effect to rights. He was quite insistent on this point. There were justifiable limitations, including limitations aimed at privacy, confidentiality and effective governance. Whether or not that referred to “classified state information”, there was a need to have a clear definition of “classified state information”.

Mr S Mazosiwe (ANC, Eastern Cape) said that the Constitution tried to create a balance between access to information and the interests of the state in protecting that information. This provision was seeking to smooth the role of PAIA, and was bringing it to greater prominence.

Ms Boroto said that it was not correct to suggest that “classified state information” was not defined, as this point was raised during discussions earlier between the Committee and the Department.

Mr Gunda noted that as recently as the previous day it was accepted that matters still had to be defined. There was a need for a clear definition of “classified state information”. PAIA was drafted in terms of a specific constitutional provision, and it was not correct to attempt to override it. He thought that there was a need for more discussion on the point.

The Chairperson said that Members must not lose sight of the objectives of the Bill.

Mr Bloem did not want the Committee to become bogged down on the point. He thought that the issue should be parked for the moment, but again requested to see the ANC’s proposals in writing.

Mr Chaane agreed that Members should have a chance to apply their minds. He noted that COPE had given a written note of its proposals.

 Ms Ntwanambi agreed that the issue be left aside for the moment, but also made the point that there would be clauses on which Members must simply agree to disagree, as there was no point in endlessly debating issues on which Members would never change their minds.

Clause 2: Objects of the Act
Mr Lees said that, pursuant to the DA's proposal that valuable information be removed from the Bill, clause 2(f) would need to be deleted. He conceded that there had not yet been any agreement on the removal of valuable information from the Bill. This portion of the Bill did not deal with national security.

Mr Chaane disagreed that valuable information would never have anything to do with state security. For instance, a foreign mercenary might get access to valuable information on passports, and falsely gain entrance to the country. He thought it would be too restrictive if valuable information were removed altogether. All state information, in his view, must be protected, to avoid negative consequences upon security of the state.

Prince M Zulu (IFP, KwaZulu Natal) asked if the Office of the Chief State Law Advisor could be present at the meetings and give some assistance.

The Chairperson indicated that an opportunity would be given to legal services – either the State Law Advisors or Parliamentary Legal Services - to give an opinion.

Mr Mazosiwe asked what was considered so objectionable about including “valuable information” in the Bill, and if it would really do any harm to leave it there. He thought that the fact it was included highlighted the importance of keeping it safe. The objects clause of the Bill made it clear that the Bill was intended to protect the public.

Mr Bloem said that the term “valuable” was very broad. If Mr Chaane could bring it down to more specifics, he may be persuaded to agree to its inclusion.

Mr Chaane thought that Mr Bloem was being inconsistent. He had agreed earlier, and suggested that this could be dealt with in regulations.

Mr Bloem said that he had not agreed, but had said there was merit if there could be definitions in regulations.

The Chairperson thought that this was a point on which the Committee Members should perhaps agree to disagree. Arguments had been made and there was little point in belabouring the points further. He cited an instance that a person might steal, and alter ID information, using someone else’s name to apply for firearm licences. He also said that as the Committee moved on, it may be beneficial to consider what “the state” meant, and if it was intended to refer to society.

Clause 3(1)
Mr Chaane said that the words “valuable information” should be deleted, so that the formulation of the clause was “the provisions of this Act with regard to the protection of state information against unlawful disclosure, alteration, destruction or loss apply to all organs of state”. He thought that this was more consistent with the purpose of protecting state information.

Mr Bloem asked why the words “valuable information” had been deleted, so that he could apply his mind to the proposal.

Mr Mazosiwe said that the clauses on the Application of the Act referred to “state information”, and in his view valuable information already formed a part of state information.

Mr Lees put the DA’s proposals to delete the clause, because of its reference to “valuable information” and therefore did not accept the ANC’s proposal.

Clause 3(2)(a): line 14
Mr Lees said that Chapter 11 noted oversight bodies as including committees and other bodies. The phrase “and the oversight bodies” should be deleted, as he interpreted this to mean that Parliament could have classification obligations and authority, which was not correct.

The Chairperson said that his reading of this was a reference to the Joint Standing Committee on Intelligence (JSC), and surely the JSC should have an oversight role.

Mr Lees agreed fully that it should have an oversight rule, but this should be limited to oversight over the application of the Bill, and not being part of the process.

Ms Ntwanambi asked where the Constitution spoke of Parliamentary Committees.

Mr Lees noted that one example was section 206(8) but there were also other examples.

Ms Ntwanambi said that this section did not deal with Committees of Parliament, but of Cabinet members and provincial bodies. For this reason, she disagreed on this point.

Mr Lees said that it really did not matter which body was included; in principle no oversight bodies should be participating in the very act over which oversight was to be done.

The Chairperson noted that there was not agreement on this point.

Clause 3(2) Line 17
Mr Lees proposed an insertion after “in the gazette” of the words “after approval by the National Assembly”. The reason was to ensure that the Minister applied his mind correctly to other entities opting in, and because it was possible that a Minister may not do so, the loopholes should be closed by including Parliamentary approval, as part of good governance.

The Chairperson asked how “Parliament” would be defined.

Mr Bloem thought that the words “Parliament” should be used. He was loath to mention the National Assembly (NA) only.

Mr Lees said that he would go along with using the broader term “Parliament”.

Mr Chaane wondered why this should be treated differently to any other gazetting process.

Mr Gunda pointed out that there was no reference to a specific gazette.

Mr Lees said that an Act of Parliament must mandate a Minister to gazette anything. He was not suggesting that the process would be misused, but there was still the possibility of this happening. He would prefer to include further safeguards rather than leaving this to a Ministerial decision only.

Mr Mazosiwe responded that the founding principles of the Bill were clear, and in particular clause 14 was clear on classification processes. Mr Lees’ suggestion that there may be untrustworthiness of individuals or government was clouding the debate. He believed that the Bill already contained enough safeguards.

Mr Chaane agreed that the points were already sufficiently covered in the Bill. Clause 54(8) referred to regulations that would be taken to Parliament. He did not think there was any need to consider this further.

Mr Lees countered that if we lived in a corruption-free world, laws would not be needed, but this was not so, and laws were needed to control human behaviour. Legislators must try to achieve a combination of consequence and control. It would be outlandish to suggest that all ministers would be untrustworthy, but there was a possibility of this, and he would prefer to cover this eventuality in advance.

 Clause 3(2) line 16
Mr Lees requested that, after the words “on good cause shown” on line 16, the following words be added:  “that the application of the Act is required in order to prevent demonstrable harm to national security”. That would have the effect of clarifying that because the Bill was generally to do with national security, organs of state could not opt in for reasons other than prevention of harm to national security.

Mr Chaane thought that the application and the objects of the Act should not be confused. If the application was to be made applicable to demonstrable harm, then this amounted to a shift and narrowing of the application.

Mr Lees answered that the Bill already defined the bodies to whom the Bill would apply, basically security and intelligence agencies. However, it also made provision for opting in by other organs of state, and he reiterated that they should be required to prove that they were opting in specifically to harm or threats to national security. It would not be appropriate for them to opt in for any other reasons.

Mr Chaane said that he was still not convinced by this argument. Those concerns found expression under the conditions for classification, and were already well covered. 

Chapter 2: General principles of State Information
Ms Boroto proposed that clauses 4 and 5 be removed and reconstructed, and clause 6 should be renumbered, so that “general principles of State Information” should appear at the head of this clause.

Mr Lees had not had an opportunity to consider this in detail, but noted that clause 5(2) contained restrictions about security clearance. He asked if this was to be dealt with elsewhere in the Bill. Protected information was defined as valuable information, and therefore he would be happy for this to be removed.

Ms Boroto clarified that clauses 4 and 5 would be reformulated. The current clause 6 would be renumbered, and she proposed that it should also include other amendments. Firstly, a new subclause (g) should read “that protection of certain state information is however vital to save lives....”, and the words “some confidentiality and secrecy” would be deleted. The ANC had consistently maintained that this was not a bill that dealt with secrecy.

Furthermore, a new subclause (2) should be added, reading as follows: “State information may, in terms of this Act, be protected against unlawful disclosure, alteration, destruction or loss”.  There should also be addition of a new subclause (3), reading: “state information in material or documented form may be protected by way of classification;”, whilst a new subclause ” (4) would read: “access to state information may be restricted to certain individuals who carry commensurate security clearance”.

Mr Bloem asked why it was intended to delete clauses 4 and 5.

The Chairperson clarified that this was not a removal of the content, but a reconfiguration.

Mr Lees said that whilst he did not disagree with the reformulation of this chapter, it did not achieve what the DA wanted, namely, the removal of valuable information from the Bill. He agreed with the deletion of clause 5(1) altogether, but also wanted to see removal of the words “alteration, destruction or loss”, which were more applicable to valuable information.

The Chairperson asked him to clarify that point.

Mr Lees said that valuable information was state information that required protection, but not classification. Because the DA wanted all references to valuable information to be deleted from the Bill, it also wanted to see removal of the phrase “alteration, destruction or loss”, which had been used consistently in relation to valuable information. He would, however, support protection of information that would affect national security.

The Chairperson understood Ms Boroto’s formulation to mean that state information must be protected against alteration, destruction or loss

Mr Lees clarified that the difference was that this phrase was not used to refer to “classified state information”.

Mr Bloem thought that the words “to certain individuals” was also too broad

Ms Boroto answered that the reference to “commensurate security clearance” qualified the individuals.

Mr Bloem still thought these words were too vague.

Ms Ntwanambi clarified that not everyone would be allowed to carry information. It was possible to refer to “some people” who would be security-cleared.

Mr Chaane said that the present and past formulations were almost the same, except that the original clause 5(2) had been divided into two.

Mr Bloem persisted that the Bill must be more specific, especially since much of the criticism against the Bill had been lack of clarity and overly-broad wording.

The Chairperson repeated that individuals must carry a security clearance. Currently, not everyone had access to state information.

Mr Mazosiwe said that the implementing agents would have to appoint people to be responsible for issues raised, and it was not possible to be very specific at this stage; implementers must know what they were to do currently, but it must also be able to cater for future situations.

Mr Bloem asked if the matter could be parked for future discussion.

The Chairperson asked if he would be happy to see the words “vetted individuals” being used.

Mr Bloem said he would not. He still thought that individuals were being clustered by using the words “certain individuals”.

Mr Lees said that if the word “certain” was creating the difficulty, it could be removed without changing the meaning. There were different levels of security clearance, and the Bill also recognised the different classifications. Perhaps it could also be narrowed down to specify operatives or officials or state security agencies, not by name, but by designation.

 Mr Chaane pointed out that “certain individuals” was already qualified, but there was nothing said about the categories of the different types of information. This Bill could not specify everything.

Ms Ntwanambi thought that no words would convince Mr Bloem, and there was no point in parking the matter for later debate. She suggested that the Members must agree to disagree.

Mr Lees called for confirmation from the Chairperson that the Department would be asked to address the Committee on the matters of disagreement.

Current Clause 6(j)
Mr Lees noted that the language was peremptory. It sounded reasonable on the surface but it could be interpreted to say that national security would outweigh all the other factors, such as transparency. He proposed that the wording be changed from “may not” to “should not”.

Ms Ntwanambi suggested that “may” was an accepted term in drafting, but this could be tested with the legal advisors.

Chapter 3
Clause 7: Policies and procedures
Mr Lees noted that there were references to valuable information in this clause, other clauses and chapter 4. If the Committee agreed to remove valuable information, Chapter 4 could be deleted entirely.

The ANC noted its disagreement with the deletion of the entire Chapter 4.

Chapter 5
Clause 11: Methods of classifying state information|
Mr Bloem asked that clause 11(a) should be amended, by the insertion of the phrase “that on careful consideration and sound legal grounds, warrants classification”.

Other Members indicated their agreement.

Clause 12(3)
Mr Lees suggested that the definition should be changed to read: “serious and irreparable harm” to national security. This was really a repeat of clause 12(2).

The Chairperson asked what harm it would cause if the words “serious or” were deleted, so that the clause merely read “irreparable harm”

Clause 14
Ms Boroto proposed that, in clause 14(2)(a), the word “secrecy” be removed and replaced, so that the phrase would read: “protection of state information is justifiable only when it is necessary to protect national security”

She further proposed that, in clause 14(b)(i), the words “conceal an unlawful act or omission” should be reconstructed to “conceal corruption or any unlawful act or omission, incompetence…”

Mr Mazosiwe noted that points about corruption were raised by many commentators. He wanted to support the Anti-Corruption Campaign’s sentiments, and see a specific mention of corruption in this Bill, to make the intention of the Bill clear, explicit and unambiguous.

Mr Lees said that nobody could argue against trying to eliminate corruption, and for that reason the proposal could not be faulted, but that “an unlawful act or omission” would already cover corruption, and the insertion of a specific mention of corruption would not change the meaning of the paragraph. It could equally be argued that all manner of other specifics be inserted.

Mr Bloem welcomed that proposal, but also wanted to propose insertion of “conceal an unlawful act or omission, incompetence, irregular expenditure, misuse of state resources, action unbecoming of state representatives, administration error or maladministration”.

The Chairperson noted that Members had raised no objections, but all these points added up to corruption.

Mr Bloem asked if his proposed wording would be incorporated as well as adding in “corruption”. Irregular expenditure and misuse was part of corruption, but he thought that it should be included.

The Chairperson cautioned that the Bill should deal with key issues, and not try to include specific concepts. Another person may well argue that irregular expenditure was not corruption, and he would not like to see the Committee getting bogged down. “Enemy Number One” was corruption, and the public perceptions were that this Bill could be used to hide corruption. He thought that it would be unwise to specify too many matters, as judgments, reports of the Auditor-General and other documents already made the ambit of corruption clear.

Clause 13(6) to 13(9) Authority to classify state information
Mr Lees suggested that these clauses were problematic. Members of the agencies, as determined by their levels of access, could classify information, but there was no indication of when this must be confirmed by the head of the organ of state.

Mr Mazosiwe repeated that other provisions of the Bill already specified, very well and comprehensively, how classification must be done, and he made the point that classification would be the exception, not the norm. The media had not placed enough emphasis on this point. It would be a brave person who would classify wrongly, as the provisions were very clear.

At this point, Members noted that there were some logistical problems in continuing the meeting, and Members agreed that the meeting be adjourned, and that the session the following day should run from 2pm to at least 7pm.