The Department of State Security (DSS) gave its responses to some issues raised during the public hearings, and further explanations on the links between the Protection of State Information Bill (the Bill) and other pieces of legislation. It stressed that the Bill was not seeking to take any rights away, but only to limit them, to the extent strictly necessary, in the context of the International Covenant on Civil and Political Rights (ICCPR) and the Constitution. The DSS also stressed that the existing “architecture” for information would remain in place. Access to information would continue to be sought through the Promotion of Access to Information Act (PAIA), whilst disclosure would continue to be driven by the Protected Disclosures Act (PDA), archiving and destruction in terms of national and provincial archives legislation, and other concerns were addressed in other intelligence legislation and oversight structures. The Bill emphasised human security, as opposed to past legislation that emphasised national security.
The DSS did not agree that the definition of “national security” was over-broad, and pointed out that it mirrored what was in the Constitution. In answer to criticisms that this Bill, through clause 1(4), attempted to trump PAIA, the DSS provided a diagram of how the two pieces of legislation meshed together, and set out how a request for information falling into each of the three categories in PAIA would be handled. The DSS noted the concerns about clause 3(2) and suggested that the Committee could clarify the opt-in provisions through incorporating wording that would normally be in regulations. The DSS remained of the view that valuable information should be protected under this Bill, as it was not catered for elsewhere, but stressed that the Bill should refer to protection, but not to non-disclosure, of valuable information, to avoid confusion. DSS did not agree with suggestions to re-word clause 11, saying that nothing was added by the additional words. In relation to the levels of classification, the DSS conceded that the test for Top Secret should be amended to reflect that disclosure of this type of information would cause “exceptionally grave harm to national security”.
The DSS was opposed to submissions that the Classification Review Panel (the Panel) should be accessible to members of the public. It pointed out that it had the right to approach Parliamentarians or the Inspector General of Intelligence, and did not have to resort to court immediately. Because the Panel adjudicated already on classification by the head of the organ of state, it would be inappropriate for it to be involved in appeals. Another schematic diagram of appeal and review processes was tabled. The DSS remained opposed to a public interest defence, drew a distinction between this and the public interest override, and explained the difference between the post-disclosure test that would apply for the public interest defence, and the pre-disclosure test, in line with the PDA, for the public interest override.
In relation to offences, DSS did not agree with assertions on the reversal of the onus, and stressed that no prosecution under clauses containing the words “or ought reasonably to have known” could be brought without express permission from the National Director of Public Prosecutions (NDPP). DSS stressed that it was only in relation to espionage and hostile activities offences that a maximum sentence was prescribed, and said the penalties were in line with international norms and standards.
Most of the Committee’s deliberations focused on the procedure to be followed, since the Committee had been expecting to hear responses from the DSS to the proposals that Members had made at earlier meetings. It was decided that the DSS and the State Law Advisors should attend all meetings in the following week, to interact with the Committee on each clause. Some questions of clarity were raised, and answered, in relation to the public interest defence and public interest override, the distinction between pre- and post-disclosure tests, the concept that the public should be able to approach Parliamentarians before approaching the Court, and the effect of clause 1(4), and the sentencing provisions.
Department of State Security (DSS) Responses to Public submissions on Protection of State Information Bill
Mr Dennis Dlomo, Acting Director General, DSS, apologised for the absence of the Minister, who was out of the country. He noted that the Minister would need to engage on some of the issues, but he would like to respond to some, in particular concerns on clause 1(4).
Mr Dlomo said that it was vital to contextualise what the DSS was seeking to do. He stressed that the Bill of Rights gave the right to seek, receive and impart information and ideas. The DSS was not seeking to take these rights away, but to limit them, in the context of the International Covenant on Civil and Political Rights (ICCPR). He stressed that the DSS was therefore using a human rights framework. The architecture for management of information was still in place, and access to information would continue to be done using the Promotion of Access to Information Act (PAIA). Protection of information was currently being done through the Protection of Information Act, which drew on section 36 of the Constitution and Article 19(3) of the ICCPR. However, there were major weaknesses with this Act, including its non-alignment with the Constitution, which was the main reason for the introduction of the Protection of State Information Bill (the Bill). Disclosure of information would continue to be driven by the Protected Disclosures Act (PDA), and this was the major vehicle in the country for whistle blower protection. Archiving and destruction was governed by the Archives legislation, at national and provincial level, and this would also continue. He stressed again that the DSS was attempting to improve the systems that were already in place, and was not seeking to set them aside.
The information rights included the right to seek, receive and impart information. However, Article 19(3) of the ICCPR restricted those rights, for legitimate grounds, being protection of rights and reputations of others, national security and public order, health or morals. Those had been used as a guide in this Bill. Section 36 of the Constitution set out the provisions relating to limitations of rights. The Bill was the legal instrument required by that section. There was compliance with the requirement for reasonable and justifiable limitations in an open and democratic society.
He noted that there had been attempts to address weaknesses of the current protection legislation in other legislation. The Intelligence Services Act sought to protect members, sources and methods. The National Strategic Intelligence Act provided for vetting and information protection. The Intelligence Services Oversight Act provided for handling of information and access by oversight structures. Archives were dealt with under the National Archives of South Africa Act. Disclosure was also covered by the PDA and Intelligence Services Oversight Act. Where systems did not work, they should be corrected in the appropriate place, through a system that was easy to understand and use.
The Bill had a significant point of departure, namely that its main focus now was a human security focus. This was a law of general application, therefore there was a need for precision, clarity of definitions, and there should not be broad discretions. The Bill aimed to pursue legitimate aims, as already set out. In addition, it sought to ensure proportionality in pursuing those aims, which should meet the objectives, impair as little as possible, and serve the public interest.
Mr Dlomo then addressed some of the specific points raised in the public submissions.
He noted that there had been criticism that the definition of “national security” was too broad. Some suggested that the Johannesburg Principles should have been applied and that the definition had to be narrowly defined. The DSS took note of this, but submitted that the concept of national security was covered in Chapter 11, section 198, of the Constitution. It was stated in broad terms, and it was carried across to this Bill. The leadership, at the time of drafting the Constitution, had consciously decided on that definition, and the DSS would be guided by how it should proceed. It did not agree that there would be Constitutional challenges with that definition, since it essentially matched what was in the Constitution. There was no single definition internationally, and different countries showed different approaches. In
Mr Dlomo noted that there had been substantial criticism that clause 1(4) sought to trump PAIA or render PAIA subordinate to the Bill. Some had argued for reinsertion of clause 28 from an earlier version of the Bill. However, the DSS believed that clause 1(4) was well advised. He wished to emphasise that the Bill and PAIA meshed closely with each other, and attempts had been made to harmonise the two. PAIA was an access act, and continued to deal with matters of access, even for classified information. The Bill was intended as a protection bill. When there was a clash between access and protection, with the result that the restriction was to be revoked, it was not possible to use an access law to determine the restriction, since this Bill was the law of general application for the restriction. The spirit of PAIA continued to flow through the Bill.
Mr Dlomo displayed a diagram of the links between the PAIA and the Bill. He reminded Members that PAIA was the Act through which information was requested. It covered information that “must be given”, “may be given”, or “must not be given”. If the information fell into the “must be given” category, but it was then found that the information was classified, there would be an automatic status review and declassification, in order to give the information, in line with what PAIA said. He pointed out that this would apply if it became apparent that the information was wrongly classified.
Information falling into the “may be given” category would either be given, or, if classified, the declassification procedures must be followed, as already outlined.
For information that “must not be given”, the information would not be provided, but reasons must be given. The person requesting the information could follow an internal appeal route, and finally the court route. If either of these showed that the information should be given, declassification and provision of information would follow. If the court ruled that the information should not be given, that was the end of the matter.
He summarised that this showed that if information was classified, the Bill must be used for purposes of automatic status review, declassification and providing the information. If the information was not to be given, in terms of PAIA, it should not be provided. He stressed that these were two sides of the same coin. All access was through the PAIA.
The DSS saw no conflict in the current wording of clause 1(4) and recommended that the clause should remain. It helped to make the system easy to follow and use.
Opt-in provisions: Clause 3(2)
Mr Dlomo noted that there had been concerns about the opt-in provision in clause 3(2), which provided that the classification, reclassification and declassification provisions applied to the security services and oversight bodies, but this may be extended to any organ of state or part of an organ who applied, in the prescribed manner, to have the provisions of the Bill made applicable to that organ. The main objection was that other government entities may, by opting in, affect the flow of information However, he stressed that the clause set out that “the prescribed manner” would have to be followed, and methods, forms and other guidelines were to be covered by regulations. The DSS had not thought that this should be covered in the Act, but, in light of the concerns, and for maximum transparency, to avoid vagueness and improve on precision, the Committee may be advised to take the concerns board and put some of what should have been in regulations into the Bill itself, to counter the fears that loopholes would be created. The DSS was committed to combating corruption, and this clause was not aimed at extending the powers of organs of state to hide information.
Mr Dlomo stressed that the protection of valuable information was critical to the protection of human security, which was at the heart of national security. The first thing that determined a person's being and citizenship was his or her birth certificate, and that led on to the ability to obtain an ID, and then a passport, as provided for the ICCPR, to engage in economic and cultural activities, and to determine leadership, through elections, and confirm sovereignty in the country. The DSS felt very strongly that the right of protection against disclosure by classification should not be extended to valuable information, but wanted to stress that it was necessary to protect valuable information in this legislation, because it was not covered adequately under other legislative dispensations.
It had been suggested that clause 11(a) should read “a classification authority has identified state information in terms of this Act as state information that, on careful consideration and sound legal grounds, warrants classification”. However, the DSS believed the additional wording was redundant. Any administrative official must apply his/her mind and take decisions in terms of the Promotion of Administrative Justice Act of 2000. He suggested that this proposal be revisited.
Levels of Classification
Mr Dlomo said that the DSS conceded that there were problems in separating out the levels of the classification. It therefore recommended that the harm test applicable to Top Secret classification should be reworded as something that, if disclosed, would cause “exceptionally grave harm to national security”, to distinguish it more clearly from the Secret level .
Classification Review Panel
There had been various submissions about the Classification Review Panel (the Panel), and a suggestion that it should be accessible to members of the public, in view of the concerns about the cost of access to other administrative structures outlined in the Bill. However, for a number of reasons, the DSS did not think that public access would be appropriate. Firstly, Mr Dlomo noted that nothing in the Bill took away the ability of the public to approach their Member of Parliament (MP) and request that matters be taken up, nor the public's right to approach any member of the Joint Standing Committee on Intelligence (JSCI), or the Inspector General of Intelligence, to raise concerns. It was not necessary for a member of the public to go straight to court, incurring costs immediately, because those other avenues were open to the public under the democratic dispensation. Secondly, he pointed out that the Panel would have been responsible for confirming the correctness of the classification by the classifying authority. It was therefore incorrect in law for the same body to review its own decisions, so the suggestion that the public should be able to approach the Panel was a confusion of the issues. This was also the reason why the Minister was not to receive information, from the outset, about classification , declassification and reclassification, because s/he would be the person dealing with appeals. If the Minister's appeal process was not deemed satisfactory, the person aggrieved had the option of going to Court.
Mr Dlomo then tabled a diagram showing the appeal process. A person aggrieved by a decision would firstly write to the Head of the Organ of State. If a positive response to that request was received, the Head of the Organ of State would declassify the information. If the request was denied, there would be an appeal to the responsible Minister. If s/he gave a positive response, the information would be declassified. If no positive response was given, the requestor could apply to court. If it decided that the access should be given, the information would be declassified. If not, the information would remain classified.
The DSS therefore submitted that the extension of the Classification Review Panel, as suggested, to involve it in the appeal process, would create serious legislative problems and could lead to Constitutional challenges.
Public Interest Defence Clause
Mr Dlomo noted that ever since the start of the process, there had been two issues raised, side by side, namely the public interest override, which was already provided for in the PAIA, and a new concept (which currently did not exist in South Africa), of the public interest defence.
He set out the point of departure between the DSS and the proponents of the public interest defence. DSS wanted to see a pre-disclosure test of the public interest, which would, if met, support a public interest override, as already provided for, whereas . The proponents of the public interest defence wanted a post-disclosure test. The difference was that DSS believed that before information was placed in the public domain, it must be tested, whereas the proponents of the defence suggested that testing be done only afterwards. This would, however, give people the responsibility of being judge and jury in the same case, which was not a good principle. The DSS believed that due process must be followed, as provided for in the PDA for whistle blowers, because this was in line with sound administration of justice. The ICCPR, in Article 2(3)(b), provided that where there was likely to be a conflict of ideas, there should be a judicial, administrative or legislative procedure that enabled people to go through a series of steps before finalisation of that dispute. He suggested that the proponents of the public interest defence were acting contrary to the ICCPR and were not observing the Rule of Law, and this was even undermining the courts, because the same people deciding the public interest were those to whom information had been leaked, and the wrong decision could cause enormous harm. He stressed that if a whistle blower wrongly leaked legitimately-classified top secret information, that could cause exceptionally grave harm. No remedy was available to address that. For all these reasons, he suggested that the public interest defence would be unworkable, because it could undermine the system. Even where a public interest defence existed, in
Offences provisions and suggestions on reversal of onus of proof
Mr Dlomo noted that there had been objections to the use of the words “or ought reasonably to have known” in the offences clauses. He pointed out that no charge in respect of those clauses could be brought without the express permission of the National Director of Public Prosecutions (NDPP) so that was a safeguard that a good case would have to be made out to that official. This provision was included after lengthy consultations through the Cabinet, and after request from both the DSS and NDPP, who were aware of the difficulties of prosecuting effectively. He submitted that these words did not in fact amount to a shifting of the onus of proof. It was the view of the DSS that these provisions did not need to be amended.
The severity of penalties had caused some criticism, but Mr Dlomo said that these must, once again, be seen in the human rights and best practice context. The DSS was not proposing that any inhumane or degrading treatment be meted out, but it was seeking to provide penalties in line with international norms and standards. The DSS had deliberately provided for minimum and maximum sentences for espionage and hostile activities, but for other offences only maximum sentences were included. The DSS was guided by national jurisprudence and judgments of the Courts, such as S v Dodo, 2001(1) SACR 594. It was not seeking to put in anything that was unfair, and he thought that some of the issues raised had not been given their proper context.
Mr Dlomo concluded that there had been huge interest in the Bill. He was grateful for the hearings that the NCOP had held, and the way in which the process had been handled to date. He reiterated that the DSS had sought to keep within the bounds of international best practice. It was seeking only to restrict rights as provided for by Article 19 of the ICCPR and by section 36 of the Constitution. Any limitations must be applied in line with the Constitution. The question was whether the checks and balances were sufficient to address the concerns raised, and it was the view of the DSS that they were. The system of all the legislation that he had outlined would work together, to replace the old and unsatisfactory system, and put in place something that was in line with best practice.
Mr D Bloem (COPE,
The Chairperson said that the DSS had been asked to respond to those issues, but where the Committee wished to raise its own arguments or points, the Department would be asked to respond to those. He said this would not be the last time that the Committee would engage with the Department.
Mr J Gunda (ID,
Mr A Matila (ANC,
Mr Gunda said he needed more clarity on how PAIA and the Bill were interlinked.
Mr Bloem suggested that it would be useful for the DSS to sit with the Committee when it debated the Bill, clause by clause. He had the sense that there was not a great deal of disagreement on many of the points.
Ms M Boroto (ANC,
The Chairperson pointed out that nothing would stop the Committee from engaging in that way. The structure of this presentation had highlighted several oft-repeated substantive objections to the Bill, many of which cut across what the Members themselves had raised.
Mr Dlomo explained that the DSS had thought that at this meeting it was expected to cover the broad issues. The DSS had, however, prepared a document that did respond to each and every matter raised by Members, and this indicated where it agreed, did not feel strongly, or disagreed. On the basis of that document, he and other officials would be able to respond. He apologised if there had been any misunderstanding, and would be guided by the Committee.
Mr Matila suggested that the Committee should work on a programme for the DSS to come back and respond.
Mr D Worth (DA,
Mr Gunda pleaded that the Committee had made a lot of progress on its own and pleaded that the Committee must now move forward.
The Chairperson said that he did not think any time had been wasted in this process, as it afforded the Committee the opportunity to understand the issues better.
Mr S Masoziwe (ANC,
Mr T Mofokeng (ANC,
Ms M Ntwanambi (ANC,
The Chairperson noted that there were two suggestions: one that the Committee engage on its own, and then allow the DSS to come back and respond, and the other to engage immediately with the DSS on all clauses. He also noted that Members had some issues arising from this presentation on which they wanted clarity, and he would like the DSS to engage with those.
Mr Matila said that it was very difficult to deal with the issues, because the DSS had not given its response to the matters raised by Members, and without a response to those specific proposals, he thought any debate would be too broad. He and Mr Mofokeng made a proposal that the meeting be adjourned.
Mr Worth said that the presentation had set out some responses, but, for instance, in relation to the Panel, there was a recommendation that the Panel be left as currently worded, without the reasons for this being given.
The Chairperson said that his original ruling was that the DSS should be allowed to respond to the broad issues that Members had in relation to this presentation, and that another meeting should be held where all the proposals of the Members, as raised at previous meetings, should receive a response.
Mr A Matila (ANC,
Mr Dlomo said that he would like the Minister to deal with these questions, because this was not his area of responsibility.
Mr R Lees (DA, KwaZUlu Natal) said that the reference to human security was useful, but he was not sure how that was reflected in the Bill.
Mr Dlomo noted that the spirit of the Bill was driven by the spirit expressed in the White Paper on Intelligence, namely that the country should move away from the focus on state security, to a focus on human security. The provisions in the Bill, and the general principles, were indicative of the underlying doctrine of human security, although this was not expressed in these terms in the Bill. That was the reason behind the reference to the ICCPR, whose spirit and intention were reflected in this Bill. The Preamble spoke to the key issues around the dispensation.
Mr Lees agreed that valuable information was vital, but he asked how, for instance, this Bill would protect, for instance, birth certificates, although obviously valuable information went further than this. He agreed that valuable information should not be classified.
Mr Dlomo responded that the protection of valuable information was provided for in the Bill, and there was an offence for improper alteration, loss or destruction of valuable information. He believed that the provisions of this Bill were adequate, and there was no need to add anything more about disclosure of valuable information, for it would blur the lines and it would, for practical purposes, be unclear when it might be unlawful to disclose documents such as an ID or passport.
Mr Lees noted the comments about the public being able to approach MPs or Committees of Parliament in respect of classified matters, but was not sure how this would work in practice, or why it would limit the need to approach the Court. The Bill said nothing specific about the rights.
Mr Dlomo stressed that the Bill must be viewed in its context within the whole system of government. There were already provisions that particular institutions should do particular things, and the Bill did not interfere with these. For instance, the Intelligence Oversight Act said that members of the public may approach the Joint Standing Committee on Intelligence or the Inspector General of Intelligence. Classification and declassification still formed part of the mandate of the JSCI. No existing government systems were being changed. Members of Parliament had responsibilities within the system of democracy and it was not necessary to repeat that in this Bill, as it was assumed that the whole system was subject to the provisions of the Constitution and the existing structures.
Mr Lees said that he did not follow the arguments about the use of the Review Panel and asked for further comment on that.
Mr Dlomo said that perhaps he had not been clear enough, but he had wanted to stress that it was not possible that the Panel should be involved as an appeal mechanism, as suggested in some submissions. The Panel itself would be involved already at the level of checking on the classifications done by the Heads of relevant organs of state. It would, then, have ruled against incorrect classifications, and accepted those that it saw as correct. Having made that ruling already, the same Panel could not then be involved later in reviewing its own decisions, because this would be contrary to the spirit of fair adjudication and fair administrative justice.
Mr Lees asked for more clarity on the pre- and post-disclosure tests as to the public interest, and where this resided in the Bill. He pointed out that the Head of the organ of state, to whom a person needed to make application to review a classification, was the same person who had classified that information.
Mr Lees referred to the DSS’s suggestion that Members were incorrect in their assumption that clause 1(4) of the Bill would trump the PAIA. It would not be possible to invoke the protection in all the other pieces of legislation that Mr Dlomo had outlined if the Bill had already trumped them.
Mr Dlomo thought that the issues around the linkages between the PAIA and Bill could usefully be combined with the comment on the tests. He repeated that the PDA was specifically intended to deal with whistle blowing. Protection was to be dealt with under the Bill (at the moment, it was being dealt with under the Protection of Information Act) and access was governed by PAIA. The Bill would provide, essentially, for protection of information. He added that a process was currently under way to separate out protection of personal and state information.
The purpose of clause 1(4) was to make it clear that, in the case where information being sought was classified, the procedures to be followed were those that applied to protection of information. There should not be any confusion as to which Act governed what aspects, and the Bill took the various provisions into account. For instance, the first step was to consider whether the information being sought fell into the category of “must be given”, “may be given”, or “must not be given”. He reiterated that these three categories were already set out in PAIA. The flows that he had illustrated in his earlier slide would apply to each of those categories. A member of the public applying for access to information, through PAIA, would not know whether the information had been classified. He stressed that in cases where information “must be given”, yet the information was classified, declassification steps must follow. If information fell into the “may be given” category, the official had a discretion and that information may or may not end up being given. If it fell into the “must not be given” category, then it would not be given, and the appeal (including the court) procedures would follow. He stressed, however, that these three categories were contained in PAIA. The DSS had simply copied them across into the Bill. However, the declassification process was contained in the Bill. He submitted that there should not be any point at which there should be any clash of interpretation between PAIA and the Bill.
He then noted that the “must give” category was the one in which the public protection override applied. If there was a imminent and serious public safety or environmental risk (and this was something also set out in PAIA), then a person would have 14 days to call for a review and provision of information. If it was denied, then an urgent court application could be brought. The Bill had essentially taken across a PAIA process, but had reduced the period of 30 days provided in PAIA to a period of 14 days. If there was suspicion of a substantial contravention of the law, that did not fall within the urgent categories, then there were 30-day procedures set out in the Bill for review. The two pieces of legislation had been deliberately linked, but the Bill provided for faster time frames than PAIA.
Clause 43 sought to bring in the spirit of the pre-disclosure test. Anything that was done in accordance with what was set out in the PDA was a pre-disclosure test; in other words, the accuracy was tested prior to any disclosure being made. If a person followed what the Bill set out, no criminal offence would have been committed, and the PDA provisions would apply.
Mr Lees asked which provision contained the information that the authorisation of the NDPP would be required before charges were laid.
Mr Dlomo responded that this was set out in clause 51 of the Bill.
Mr Lees was very concerned at the assertion that those who wanted the public interest defence included were acting contrary to the Rule of Law, and he hoped that this was a slip of the tongue.
Mr Bloem did not feel that the DSS had been convincing in its response on the public interest defence. This was the crux of the objections to the Bill, and he wanted specifics instance of why the Department thought it was not necessary to have a public interest defence clause, particularly because he had understood Mr Dlomo to suggest that a public interest defence was already contained in PAIA.
Mr Dlomo apologised if there had been any misunderstanding. He did not intend to suggest that anyone supporting the public interest defence was opposed to the Rule of Law. He had wanted to say that the way in which the demands were articulated had effectively undermined the role of the courts in determining disputes, and if that was the case, the unintended consequence would be also to undermine the Rule of Law.
Mr Dlomo then clarified that three concepts had become confused: namely the public interest override, the public interest defence, and the public domain defence. A public interest override meant that when two or more competing public interests were raised, a balance must be found as to which was the most compelling and would cause the least limitation of the rights. The point of departure of the Bill was that the Constitution favoured openness, and for this reason everything must be done in the spirit of furthering human dignity and openness. The public interest override was already contained in PAIA, and in clause 19 of the Bill.
The public interest defence was one that was only found in the Canadian law, but it was very different to what had been proposed in
The public domain defence suggested that any classified information that landed in the public domain should be automatically regarded as declassified. The DSS argued against this and pointed out that the
Mr Bloem noted the comments on sentencing, and noted that the DSS wanted to stand by what was currently in the Bill, but asked what basis there was for such lengthy sentences.
Mr Dlomo reiterated that the sentencing had been motivated by the ICCPR, and that the Bill sought to prohibit any inhumane and degrading treatment, including incarceration and detention without trial. The DSS believed that the sentences were in line with international practice.
The Chairperson, after a brief discussion with Members, noted that the Committee would meet on Tuesday 12 June 2012, and set aside the remaining days in that week for further meetings. At the meeting on 12 June, the Department would be asked for respond to proposals of the Committee Members.
Mr Worth noted an apology as he would not be able to attend meetings in that week.
Ms Ntwanambi did not agree with Mr Mofokeng and Mr Matila that it would be necessary for the Committee to meet on its own, and said that during the whole of the week there would be involvement of the DSS and State Law Advisors, although parties may wish to engage separately, outside of meetings, on specific issues.
The meeting was adjourned.
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