Protection of Information Bill [B28-2008]: Public Hearings
Chairperson: Mr C Burgess (ANC)
Date of Meeting: 29 July 2008
The Ad Hoc Committee heard submissions on the Protection of Information Bill from Avusa Limited, South African Media Gender Institute, Open Democracy Centre, ETV, South African National Editors Forum and the South African Historical Archives in a joint submission with the Nelson Mandela Foundation. The submissions had many similar concerns. Many submissions criticised the issue of overclassification and said that the definitions of the levels of classifications were too broad. The lack of a public defence clause also elicited concerns. Although it was expressed that journalists should not be given any specific exemption it was mentioned in several submissions that Bill criminalised journalistic activities and the consequences were overly harsh. The Protection of Access to Information Act was raised on numerous occasions and it was noted although this Act might be flawed the Bill created further confusion and lack coherency. The Bill did not allowed for a proper adjudication body to oversee and ensure proper classification had taken place. The Bill also allowed for commercial information to be termed as classified, and this was seen as another example of over-classification. The submissions made it clear that although investigative journalists could be severely affected by the Bill, they would not want preferential treatment, rather would suggest that the Bill should be amended so that all members of the public would be protected, especially those that could be whistleblowers. The submissions were also clear about the necessity of the Bill.
In the afternoon session, submissions were heard from the Mail and Guardian, The Catholic Bishops Conference of South Africa, and Barry Gilder. Once again, all those making submissions conceded that there was a necessity for this type of legislation. The Mail and Guardian touched mostly on the same points made by the Editors’ Forum The Mail and Guardian submission covered four main concerns of concern around classification of information, safeguards & symbolism, statutory approval and what elements were deserving of special protection. It was submitted that there was too broad a classification of state security and too low a level of functionary to make the determination. The lack of an appeal procedure was problematic. There should be a distinction between possession and disclosure of information. It was noted that the public interest was similar to a mosaic, where one piece impinged upon and affected several others. Comparisons were drawn to the situation in other jurisdictions. It was stressed that no particular exemptions were being sought for journalists at this or other media companies, and that appropriate defences needed to be inserted in the Bill. There was a clause for clause 22 to be reworked.
The Catholic Bishops Conference emphasized the need for a balance, which it did not feel was currently being met. The Bill was too uncertain, and clause 8, which gave too much power to the government, should be deleted. He noted that the definitions of national interest and national security were inadequate and set out why this was considered so. The principles should be reviewed and administrative convenience should not be of prior concern .
Mr Barry Gilder, who was making his submissions in his personal capacity, believed that the purpose of the Bill was justified and that it was intended to prevent the conveying of information, internationally or domestically, to those who could use that information to cause harm to South Africa. To date, there had been inadequate security systems that, at best, had operated on an ad hoc basis. There was no crime of espionage. He believed that the Bill could be criticized in some respects but believed that it encapsulated the main aims and that there was sufficient accountability. There was a need to move away from Minimum Information Security Standards. He did believe that the Bill was practicable, fair and balanced. Although national interest was broadly defined, it was preferable to national security. Members asked questions of clarity around the roles and functions, and the comments, and asked for alternative wording where applicable
Avusa Limited submission
Dr Dario Milo, Attorney with Webber Wentzel, presented the submission on behalf of Avusa Limited. Avusa submitted that aspects of the Protection of Information Bill [B28-2008] were unconstitutional in that they offended against the values of openness, accountability and transparency underlying the Constitution, and the constitutional rights to freedom of expression and access to information. Avusa explained their arguments around unconstitutionality of aspects of the Bill. Some definitions that were crucial to the scheme of the Bill were overly broad and hence offended the principle of legality. The unprecedented ability to classify commercial information had no place in a law of this nature and intolerably threatened freedom of expression and information. The tests that the Bill suggested should be employed to classify information were set at impermissibly low thresholds of harm, that may result in over-classification of information. The classification regime contained a number of provisions that would inevitably result in over-classification and hence censorship.
Avusa found the Bill’s definitions of the “information” and “national interest” to be unconstitutional. It was submitted that the classification of State information should be limited to instances where the State had a clear interest in the protection of the information concerned, for reasons that impacted on the interests of the nation as a whole. For this reason, while it may in principle and in exceptional circumstances be defensible for there to be classification of commercial information pertaining to an organ of state, this protection ought not to extend to commercial information about private individuals and entities that may be in the possession of the State. Clause 54(1)(f) of the Bill goes even further than seeking to protect non-State commercial information in the possession of the State. This provision empowered the Minister to make regulations regarding “a procedure for the classification and protection of commercial information not in the hands of the State”. Such a power would result in the dramatic curtailment of the flow of information, and result in a state classification regime being imported into the boardrooms of corporations and other entities.
It was submitted that in many significant and crucial respects, the Bill did not properly calibrate the interests of openness and transparency, and the rights to open justice, freedom of speech, and access to information, with national security concerns. In its present form, the Bill would result in widespread and unjustifiable censorship, would undermine investigative journalism, and would result in little oversight for classification decisions.
Adv P Swart (DA) asked for the opinion of the presenter on the thresholds of classification and the replacement of ‘may’ with the phrase ‘is likely to cause’, and whether that it would address the bulk of their concerns.
Dr Milo replied that he could not see that use of the word ‘may’ would be useful, as it was speculative, hypothetical and unconstitutional. It should also not be ‘would’ because that set the bar too high. There was a need to strike a compromise. He thought that Section 41 of the Promotion of Access to Information Act (PAIA) could provide assistance because it said that an information officer could refuse to give information on the grounds of defence and security, if it was “reasonably likely” to prejudice those efforts.
Ms D Smuts (DA) found that the defence of the public interest was unusually clear and that one had to agree that if documents were to be released under PAIA despite the threat that the contents might pose to national security then that provision had to be repeated. The right to information was fully set out in the Bill of Rights and PAIA should prevail. The commercial material covered by the Bill seemingly could give undue advantage to anyone within a competitive bidding process. This was to prevent corruption under the guise of protection of information. She thought that it was a recipe for corruption and censorship. She asked if the presenter would agree with the drift of the clause.
Dr Milo replied that in none of the jurisdictions that he had assessed had there been classification of commercial information. There might be some commercial information that was in the possession of the government that could be sensitive. That had to be an exceptional circumstance. There were other remedies in the law that protected commercial information, such as the common law of contract, that allowed actions to be instituted for breach of contract, remedies under the law of delict, and PAIA. He added that there was the potential to hide corruption in the extreme sense. The Human Rights Committee, in relation to the International Covenant on Civil and Political Rights, had ruled in 2001 on the law of protection of state secrets in Uzbekistan, on issues relating to science, banking and the commercial sector. The ruling was to the effect that their law rendered the restrictions of freedom of expression too wide to be consistent with Article 19 of the International Covenant on Civil and Political Rights. It had requested Uzbekistan to amend the law. This was important because Clause 7(2) of this Bill stated that the measures affected under the Bill had to be consistent with Article 19 of the International Covenant on Civil and Political Rights. It was therefore suggested that the law in Article 19 did not permit the classification of commercial information.
Mr L Landers (ANC) asked what should be done in the court processes, where the court ruled that specific information could not be released and yet this very information was released.
Mr Milo replied that there was a need to ensure that information that was properly classified had to be protected. If such information was classified with the knowledge that it was harmful to national security, then any person making disclosure must be punished. Avusa supported the holding position of documents being kept from the public by the courts until the courts determined that it would appropriate to release them to the public. However, in order to reach that determination, the court had to analyse and interrogate the information to assess whether it should be released to the public. In that assessment they should have the right to call for submissions from the Minister, the classifying authority, or from third parties and make an informed decision. It was also suggested that an amicus curiae be included. Once a decision was made it would be respected. The penalty of a jail term for disclosure of classified information before courts was unnecessary, because if there was disclosure contrary to a court order, then this amounted to the offence of contempt of court. This was contrary to Clause 42.
Dr S Cwele (ANC) asked what was the understanding of national interest.
Mr Milo replied that national interest was defined so broadly in the Bill that it covered every conceivable aspect and was absolutely unworkable. He suggested that rather national security should be defined in a very narrow manner. He pointed to the PAIA that dealt with these issues. It listed a number of items that related to national security. There was no quibble with the proposition that the public should not have access to military strategies and information. However, the Bill as it stood allowed government classifiers leeway that could result in censorship. The Minister’s review committee caused chronic over-classification.
The Chairperson was concerned about the fact that there was no challenge, in the Billy Masetla case, whether the party that classified the documents actually had the right to classify those documents.
Mr Milo replied that the court accepted that the documents were properly classified under the Minimum Information Security Standards (MISS), although during argument many judges expressed discomfort that MISS might not be a law of general application and therefore could be used to limit the use of freedom of expression. This case principally it was about open justice and how it could be applied in the circumstances of that particular case.
The Chairperson asked whether, if the classification of the documents in the case had been raised an issue, the courts might have ruled differently.
Mr Milo replied that the points that had been made about the low threshold applied to MISS, although MISS was better in the aspect that it did not make reference to commercial information and that it tried to set up the grounds for prejudice to national security in a better way that this Bill. MISS was challengeable because of the speculative harm that it permitted, but it was not challenged in the case.
Freedom of Expression Institute (FXI) submission
Adv Anthony Stein, Advocate at the Johannesburg Bar, represented the Freedom of Expression Institute (FXI) and presented their views on the Bill. Certain sections of the Bill appeared to be unconstitutional; specifically the sections that granted the rights to a “double blind”, the extremely broad ranging powers of the Minister and the very wide ambit which transgressed individual rights. The Bill had not achieved its object of meeting the acknowledged requirements set out in the preamble, being the transition from a presumption of secrecy to a presumption of openness.
FXI submitted that no classification should under any circumstances endure for a period that exceeded 50 years. The ambit of the Bill should be restricted to matters strictly to do with the preservation of national security where absolutely essential, and directly related matters. Although classification of information would be subjected to the methods and principles set out in the Bill and other legislation, , there was no external body with the right to oversee the process. The existence of standards, methods and criteria for classification without appropriate external checks and balances remained a fundamental flaw of the Bill. It appeared that there was an undue centralisation of power in the National Intelligence Agency (NIA) and the Minister, to the detriment of the independence of other organs of state and this could well lead to significant empire building within the NIA as it utilised its powers under this Bill to implement policy decisions, standards and development of security processes.
Section 30(6) of the Bill made provision for what was termed a “double blind provision” whereunder the head of organ of state, in response to a request for a review of the classified status of information, was entitled to refuse to confirm or deny whether information existed whenever the fact of its existence was itself classified as top secret. This was regarded by FXI as unconstitutional.
The crucial role of the media in promoting Constitution building and maintaining a watchful eye on the activities of Government would be adversely affected by the omission of a “public interest clause”. What was required was an exemption that would require only that the journalist allege a bona fide interest. In the event that such bona fide interest was contested by the State, the onus would be on the State to prove the absence of bona fides, in line with the normal criminal law onus of proof. The creation of an Ombud type office would go a long way to allay the disquiet of the public regarding intelligence affairs. In addition an Ombud would be useful, easy to access and provide a cost effective method of addressing inquiries and complaints in respect of the status of classified information.
Ms Smuts noted the remarks around Clause 30(6) of the Bill, where an official was entitled to confirm or deny the existence of information where the fact of its existence or non-existence was itself classified. She asked if PAIA had a similar position and, if so, why would FXI then adopt this stance on the Clause.
Adv Stein replied that they did make the issue and it was part of PAIA. FXI accepted that it was necessary where there was a fact of existence of information that was classified. However, the inconsistency in this Bill was that there was no provision for the classification itself. There should be a justification, at the time of classification, for the classification involved and so it should be stipulated at the time of classification that the fact of classification was classified. Without that provision there was room for after-the-fact restriction on the existence of classified information.
Ms Smuts expressed her appreciation of the scope of the Bill. She asked how FXI suggested that it could usefully be restricted and if there was a way that only government departments should fall within the scope of the Bill.
Ms Melissa Macie, Attorney: FXI, replied that the Department should look at the American legislation that provided for the president of the United States of America (USA) to appoint the necessary person for actual classification. That could be one viable way of narrowing the scope of the Bill. The centralisation of powers - such as the Minister having the power to determine disputes with regard to the classification of documents, to decide upon reviews and appeals when there were disputes, and also amalgamate organs of State and to appoint a head of that organ of State - was too broad. This would relate to an ombud type office that would oversee such issues.
The Chairperson noted that the presenter seemed unhappy with those who were to do the classification and asked what was the alternative suggestion.
Adv Stein replied that it was notable that in a comparable jurisdiction, the USA there was a division between the kinds of classification that different levels of officials were permitted to impart. The highest level of classification was preserved for the highest level of official, and the lower forms of classification would flow from that point. There was often a certain skills requirement for classification and there was a review mechanism on the classification imposed. The concern was that the net was cast too wide for the power to classify at all levels, and there was little by way of safeguards to assess whether the classification criteria were properly applied.
The Chairperson wanted clarification whether the presenter was concerned with the classifier as opposed to the classification.
Adv Stein replied that all open and democratic societies had some form of classification. FXI had a concern with the concept by which classification criteria were applied, and the vagueness around how the criteria were applied. The threshold for top-secret classification was particularly low. It was necessary to have some kind of distinction between those that applied different levels of classification, and a comparable system of safeguards. The safeguarding principle was important. Internally there was some provision in the Bill for a form of an oversight mechanism. The concern on the oversight mechanism was that the oversight began with the same person that did the classification. That was not true oversight. There had to be an internal classification mechanism, particularly with the highest level of classification.
Adv Nazreen Bawa, Advocate: Cape Bar, represented ETV in giving views on the Bill. In light of other submissions ETV limited itself to two issues it considered to be of critical importance to its work as a free-to-air broadcaster; namely the need for a public interest defence in respect of the criminal prohibitions, and the procedures for court proceedings involving classified documents.
ETV submitted that the types of news reports affected by the Bill would not fall within the exclusions contained in Section 16(2) of the Constitution. The restrictions on expression proposed by the Bill were all the more serious because they directly affect the media. While ETV had little doubt that the drafters had no intention of criminalising important media activity, the fact remained that the criminal prohibitions in the Bill were so broad that this would likely be exactly their effect. For example, clause 45 made it a criminal offence to disclose any classified information outside the manner and purposes of the Bill, save for where the disclosure was for a purpose and manner authorised by law. This clause suggested that where the media had information that was in the public interest it may never disclose such information if it was classified. If it were to be disclosed, the media organisation and journalist would be held criminally liable. It was true that some such information may be properly classified. Yet, whatever the classification, it would be intolerable, and almost certainly unconstitutional, for the law to prevent the media from fulfilling its constitutional mandate to broadcast information in the public interest. Where the document had been improperly classified, it was not clear that this would provide a defence. Even if it would provide a defence, the media could not be put in a position where it must predict in advance whether the document was properly classified, in order to determine whether publishing would amount to a criminal offence. This would violate the rule of law, which required that all law, particularly criminal law, must be clear and predictable.
Similarly, clause 40 prohibited the making available of classified information with intent to prejudice the state. The breadth of this section was such that it too could arguably include legitimate investigation and reporting activities of journalists and media organisations. The present criminal prohibitions were not only undesirable but also constituted a violation of freedom of the media and were therefore unconstitutional.
Clause 52 of the Bill dealt with the protection of State information before courts. It provided that, where classified information was placed before a court, then unless the court ordered the disclosure of such information, it must issue directions for the proper protection of the information, including possibly holding the case in camera. Clause 52(3) of the Bill required a court to obtain written or oral submissions from the classificatory authority or the National Intelligence Agency before ordering the disclosure of such information. However, clause 52(5) did not require that the public or interested parties be given the same opportunity. This clause merely stated that a court may, if it considered it appropriate, allow for oral or written submissions by other interested parties. ETV therefore asked that clause 52(5) be amended to provide that “A Court must seek the written and oral submissions of interested parties, persons and organisations before making any order referred to in sub-section (2) above”. Further to those remarks, ETV submitted that the current clause 52(5) was overly restrictive in providing that parties making submissions to the court on these issues were never entitled to sight of the documents in question during this process.
Ms Smuts thought that the point made on Clause 52(5) was very important. She noted that the principles contained here were going against the majority judgement of the Constitutional Court.
Adv Bawa replied that there was a concern that not only that the Constitutional Court could interpret this clause in a particular way, but there was also the risk that Clause 52(5) could amount to an unjustifiable infraction of freedom of expression. A party would have the right to make disputes to the courts as an amicus. The Constitutional courts were careful not to prohibit such actions.
Mr Landers raised the concern that the interested parties would have to go the Minister with a dispute, and then to the courts. There was the possibility of an ombud, but the presenter had to agree that there remained the possibility that the application could be denied by the ombudsperson.
Adv Bawa replied that to the average person the Constitutional Court was not accessible, just from a financial point of view. A provision should be built in that allowed for quicker time periods within which the office of the ombudsman had to make a decision. If the process was refused by the ombudsman then the parties could go the court. There was the risk that the ombudsman might agree with the original decision. It was more common in government to exhaust the internal appeal process, and this was easier for the public, a cheaper remedy, and involved less litigious aspects. Section 239 of the Constitution defined organs of state from a very narrow point of view to a very broad point of view. In the second section it was defined as any public body that performed a public function. This Bill would capture more than just government bodies, and include those bodies that operated in the private sphere and performed one or other function for government, such as the Law Society. The definition of organ of State within the Constitution was set for a very different purpose, namely to require that the bodies abide by the Constitutional principles. It happened that a number of those bodies accepted the definition. In certain other legislation a definition of organ of State was not meant to cover any other body but government.
The Chairperson noted that the presenter was unhappy with Clause 45. He asked if, for instance, the NIA were to have a classified document that leaked to the media, whether the media should be able to publish that document.
Adv Bawa replied that it would be necessary then for the media to look at what was in the public interest. It had to be accepted that the NIA dealt with national security. Matters within the NIA should not be disclosed, as it was generally not within the public interest that they be disclosed, and therefore this example could not fall in the sphere in of the public interest defence. The media needed to show responsibility in knowing what they could or could not publish in the public interest. The limit of access of information had to be that publication be done in the public interests.
The Chairperson wanted clarification whether there should be discretion on the part of the media when they had secret and confidential information.
Adv Bawa replied that the Bill had to make provision for a public interest defence, within which there should be a guideline on what constituted public interest. What would not constitute public interest would include disclosure of information that could be detrimental to national security. The definition of national interest was so broad that any document could be seen as classified and therefore it should be narrowed.
The Chairperson noted that it seemed as if it was a second appeal procedure, and it seemed as if all documents, irrespective of whether they were top secret or not, could land up being assessed in this manner. This would result in the courts having to decide whether disclosure would be in the public interest and this was to some extent good.
Adv Bawa replied that she was not advocating a second appeal procedure. She said that there should be provision made in the Bill for the right to publish information that was obtained that was in the public interest. With reference to the example given earlier of the NIA, those documents should not have entered the public domain and the Bill would have to make provision for that. She suggested that perhaps a form of notification should be created.
Dr Cwele asked whether, if documents were in the public domain, there was not some risk that reasons could be manufactured for public interests.
Adv Bawa replied that anything was possible.
Dr Cwele replied that was precisely the reason for the Bill.
Adv Bawa replied that the classification itself should protect such documents. If there was sound State reason for the classification, then it should be accepted that classification would withstand the scrutiny of the courts, and this would explain why the documents should not be out in the public domain. However, it should not be presupposed that every document that was classified automatically should not be published within the public interest, and that was what the Bill was doing. The oversight of the courts had to be trusted.
Dr Cwele noted that the Constitution and the issue of national security rested with Parliament, and not with the Courts. By default that which was excluded in the Constitution should go to the Court.
Adv Bawa replied that the Constitution was the supreme law and even Parliament had to adhere to the Constitution. The main issue here was the issue of freedom of expression that was entrenched in the Bill of Rights. If a document should not be published the court would find that it should not be published. Parliament would define that which was national security but it would always be subjected to what was contained in the Constitution.
Ms Smuts noted that it seemed that the presenter wanted to introduce prior restraint and that it could not work. If a newspaper had information that it considered within the public interest, that could be a difficult issue because it had to decide and accept the consequence. There were two sides to the coin.
Adv Bawa replied that she was not advocating prior restraint but rather an option to the broad-brush approach of Clause 45. If government was concerned by the leakage of information there could be other mechanisms whereby they could protect national security.
South African History Archive (SAHA) and the Nelson Mandela Foundation (NMF) joint submission
Mr Verne Harris, Memory Programme Manager: NMF, presented the joint submission to the Committee. SAHA and the NMF believed that more attention should be given to ensuring effective coherence between the existing Bill and the Promotion of Access to Information Act. SAHA and the NMF were concerned about the very broad definitions contained in the Bill, especially with respect to what constituted the ‘national interest of the Republic’ and the mandatory protection from disclosure of anything that was deemed to be ‘sensitive information’ in that regard. SAHA and the NMF were concerned that the Bill did not provide for an adequate adjudication body in terms of refusal to access records in the first instance, but rather provided for the matter to be referred to the Minister when there was a dispute. The matter could be taken on review to the High Court, but this effectively restricted access to information to those who could afford to take the matter through a legal process, which was neither efficient nor expeditious. There was further a concern that many of the mechanisms and procedures proposed by the Bill were not capable of implementation.
Mr Landers asked about the primacy of PAIA and where it was determined that it was primary.
Mr Landers mentioned the problems of the National Archives and its capacity and asked what should be done under the circumstances.
Mr Harris replied that the National Archives still had information that should have been less strictly classified but was not. In that context they should be searching for a State agency that would be able to produce a high quality mechanism and had the kind of influence that could ensure the cooperation of other State agencies. It was clear that the National Archives did not have this power.
Mr Landers noted that in the submission it was stated that the Constitution did not provide for protection of information. He asked for further clarification. He also asked whether it was the view of the presenters that the Committee should proceed with the Bill or not.
Mr Harris replied an argument was made for the primacy of PAIA. PAIA was a piece of legislation that was rooted in the Constitution. However, this Bill was not so rooted in the Constitution. He was not arguing that the Bill should not proceed, and the protection of State information was a legitimate function of government. However, he was suggesting that in respect of public access to information held by the State, then the provision in PAIA should trump any other provision. There could be a document that was classified as top secret. If a member of the public wanted to access it through PAIA, a justifiable reason had to be given for prohibiting access. That then established primacy and should be made explicit in the Bill.
Dr Cwele asked how much would it cost to ensure capacity in the National Archives.
Mr Harris replied that it was important that the Committee know that the National Archives Act was unique. It gave the National Archives power and responsibility to audit government record keeping, with powers of inspection. The reality was that the power and responsibility was not fulfilled primarily because of lack of resources, and it was a question of politics of the Archives and the positioning within the structures of the State. A National Archivist was originally appointed by the Minister and was accountable to Parliament, but subsequent amendments had resulted in the National Archivist being accountable to the Director-General within the Department of Arts and Culture. Another provision was that a National Archives Commission, appointed through a process of public hearings, be a watchdog over the activities of the national archives. However, subsequent amendments removed the Commission and created an Advisory Council with no significant powers. The National Archives, since its inception, had been undermined in terms of its capacity to deliver. He felt that there should a be a dedicated unit with the relevant technical and professional expertise. It was not so much a question of funding, but rather had to do with dedicated human resources with adequate clout.
Dr Cwele noted that it seemed as if National Archives would prefer to access to the relevant documents so that they could continue with their own work. He noted that in a modern democracy there had to be a balance between security and broader issues.
Mr Harris replied that indeed there had to be a balance and that the balance could have been struck within PAIA, with a range of protections built into it. There was also a Bill to do with protection of personal information that was under scrutiny. This Bill was just one of many provisions to protect freedom of expression.
The Chairperson understood that when the Bill was being considered the National Archives was involved in the actual consideration.
Mr Harris replied that the National Archives did participate but he thought that they overestimated their capacity to deliver.
Open Democracy Advice Centre (ODAC) submission
Ms Allison Tilly, Chief Executive Officer, ODAC, presented the submission to the Committee. ODAC contended that the basic premise of the Protection of Information Bill should reflect that public records and information were the property of South African citizens, and that all initial presumptions should favour disclosure. While certain information must be exempt from immediate disclosure for several disparate reasons, these exemptions must only function to an extent that was reasonable and justifiable in an open and democratic society, and must at all times reflect the public interest of South African citizens in order be considered legitimate. The draft Bill in front of Parliament attempted to set up a parallel regime for refusing access to information, and for classifying such documents when considered in contrast to the PAIA, the principal governing law on access to information. Rather than solving the problem, the provisions in the Bill that attempted to harmonise the legislation unfortunately had caused more confusion.
Ms Tilly suggested that the confusion could in large measure be remedied by synchronising the two pieces of legislation, and ensuring that the classifications proposed applied to records, but only once they were exempt from disclosure in terms of PAIA. This would require a preliminary assessment of the record by the agency, and after assessment, a categorisation. The Bill did not create an adjudicatory body, and thus all refusals of records had to be referred to the Minister where there was a dispute. The Executive was not the appropriate wing of government to decide such matters, in terms of the doctrine of separation of powers.
Ms Smuts mentioned that the Committee had received a submission from the South African Human Rights Commission. It was suggest that the information commissioner’s decisions should be binding and that it should have the power to impose sanctions. She wondered if Ms Tilly concurred. Ms Smuts also asked if ODAC would prefer the information commissioner to be a body all on its own or within the Human Rights Commission. The free standing body was costed at R7.6million and if it were to be established within the HRC it was costed at R5.6million. She asked which would be preferable.
Ms Tilly replied that there should be binding jurisdiction and imposed sanctions by the information commissioner. ODAC did not hold any particular view on whether or not the body should be within the HRC or not.
Mr Landers asked that the presenter addressed what was contained in the Constitution, and the principle that all disputes could be resolved in a court of law. He commented that he advised people not to invoke PAIA, because actions taken by officials who were feeling stressed might place parliament in a position that it would be forced to look again at the inconsistencies and problems with PAIA. The problems related to PAIA might flow into this Bill. It was necessary to be careful, and not repeat mistakes. He agreed with the concerns expressed. He asked whether ODAC did concur with the necessity for the Bill.
Ms Tilly agreed that there was a necessity for the protection of important information and it was crucial for national security. The question was what information had to be protected.
Adv Swart asked about Clause 45 and made particular reference to the written submission. A clever legal practitioner may argue that using Clause 22 in defence of Clause 45 may indicate a public interest defence. In practise if a person disclosed he or she would be arrested and apply for bail. The inclusion of public interest clause may shift the burden of proof to the prosecuting authority. On page twelve of the submission there was mention of a specific form of protection for the media and that it was a cause of great concern. It seemed that ODAC differentiated between public interest in the broader sense and specific exemption for the media and asked why this was so.
Mr Mukelani Dimba, Deputy CEO: ODAC, replied that two years ago ODAC did a study on PAIA and how it worked practically. The study required different people from different walks of life to ask for information, and it illustrated that the average member of the public could not receive any information. Because the member of the public did not receive any response, he or she would have had to file an appeal with the Minister, and if that did not work then approach the Court. An intermediate action was crucial as it provided an accessible mechanism. He urged the Committee to consider introducing such a mechanism. He conceded that there was no need for a special clause for the media.
Dr Cwele was enlightened by the fact that officials were confused by PAIA. However, he queried why then would ODAC advocate that PAIA should be relied on, even though it was confusing the officials. He asked whether the confusion could not be dealt with through training and education.
Ms Tilly replied that she did not know if education and training was enough. The difficulties lay in non-lawyers having to apply the law. The Committee could provide clarity on the legislation.
Dr Cwele asked if Clause 22(b) was trying to protect whistleblowers, because information could not be classified to hide illegalities and inefficiencies and there were those who could complain to expose those actions. He asked if the provisions were adequate.
Ms Tilly replied that the complaints mechanism in the Clause was not adequate. The fact was that one may be able to read in that there was information that should not be classified, and that was not how the average official worked. Such an official wanted to be protected if they he was to expose something that was unlawful. It needed to be made explicit and clear to those that feared they might lose their jobs that they would see that there was protection.
The Chairperson asked if PAIA needed to be fixed.
Ms Tilly replied that it did, in her view.
The Chairperson was concerned that members of the public were not able to be attain information if they requested it.
South African Media and Gender Institute (SAMGI) submission
Mr Austin Clarke, Assistant Project Coordinator: SAMGI, presented the submission to the Committee. Although SAMGI agreed with certain aspects of the Bill, some of its objectives and provisions expressed a legal contradiction and negatively impacted on the exercise of the right of freedom of expression. Because of these, the Bill, instead of being a major tool of freedom of expression or transparency, appeared to be a creator of a ‘sanctuary’ of silence.
SAMGI disagreed with the provisions of chapter 5 aiming to protect information against disclosure, and suggested that these needed to be removed from the Bill. This provision of the Bill constituted a ‘legal contradiction’ with the provisions of the Protected Disclosures Act 2000, which aimed to encourage employees in both public and private sectors to disclose ‘any’ criminal and other irregular (or illegal) conduct in the workplace and also protected employees who disclosed such information against any reprisals as result of such disclosures. It could be that at the last resort, it could be tolerated that there should be protection against disclosure of “sensitive information of State” (Chapter 5, clauses14 and 15 of the Bill). However, this was not the case with commercial and personal information contained in Clauses 16 and 17 of the Bill.
It was suggested that Chapter 12, Clause 50, of the Bill relating to the offences and penalties against persons who disclosed the ‘designated or classified information’, including commercial and personal information, needed to be removed from the Bill.
Adv Swart asked if a properly constructed public interest clause would make it better or worse for whistleblowers and what this would entail.
Mr Roger Liwanga, Project Coordinator: SAMGI, replied that the common law gave the opportunity for whistleblowers to disclose information with some protection. The Bill punished the whistleblower for disclosing information.
Adv Swart noted that the submission’s numbering of clauses did not match that of the certified Bill.
The Chairperson noted that designated information was in the old Bill and had now been removed.
South African National Editors Forum (SANEF) submission
Mr Simon Delaney, Attorney: Deneys Reitz, presented the submission to the Committee on behalf of SANEF. The Bill was applicable to all organs of state as well as to juristic and natural persons to the extent that it imposed duties and obligations on such persons. However, Clause 3(2)(d) of the Bill conferred discretion on the Minister responsible for intelligence services, on good cause shown, to provide an exemption to the declassification trigger contained in Clause 26(c). The Bill did not give content to the "good cause" requirement in terms of which an exemption may be granted. SANEF submitted that such a requirement was excessively broad and failed to capture the principle that State information must be accessible, open and transparent, unless its non-disclosure was reasonable and justifiable in terms of the Constitution.
The intrinsic value approach in Clause 8 was criticised as nothing more than a one-sided means to determine whether State information should or should not be disclosed, in that it unduly favoured the right of the State not to disclose information over the Constitutional right to access State information.
Chapter 5 of the Bill specified the types of information that would require protection against disclosure. This construct was problematic. Clause 5(2) of the Bill acknowledged that State information was not automatically protected against disclosure. However, within this broad category of information, the Bill then proceeded to declare all sensitive, commercial or personal information to be classified information. It was submitted that the protection from disclosure of sensitive information should be confined to national security concerns, as opposed to broad national interest concerns, under which any information, whether actually sensitive or not, may be conveniently situated. Confining the limitation on disclosure to national security issues would ensure the least restrictive limitation on the fundamental principles of openness and transparency.
Given the approach that was taken to the practicability of status reviews, the power to classify was, in practical terms, an unfettered one. This was due to the non-existence of any effective mechanism to test whether the classification complied with the requirements of the Bill and passed constitutional muster. Clause 19(2) and Clause 21(7) of the Bill were problematic because they unnecessarily placed information that did not directly threaten the national interest or that did not directly infringe upon personal or commercial concerns, beyond the reach of disclosure, simply on the basis of its association with classified information. The Bill did not seek the least restrictive means to achieve its purpose. It accordingly unjustifiably infringed upon the constitutional right to access to information. SANEF took the view that information classified on the grounds of preventing national interest from being harmed was excessively wide-ranging, and encompassed virtually all the activities of journalists. The grounds therefore had the potential to conceal genuine areas of legitimate public concern. The effect of these prohibitions was that to criminalise ordinary journalistic activity and to render journalists severely susceptible to prosecution. SANEF had further concerns about status reviews, independence and impartiality, maximum protection periods and constitutional matters.
Adv Swart asked what SANEF believed should be included in the public interest exemption.
Mr Delaney replied that the public interest was a difficult matter. He did have a formulation of how the public interest should be drafted but he was not sure it would be satisfactory. He suggested that the formulation be along the lines of: “notwithstanding any other provision in this Act, any act which constitutes a genuine and bona fide act in furtherance or promotion of public interest shall not constitute an offence.” It was difficult to come up with a definition of public interest and this should be left the adjudicators.
Adv Swart clarified that he wanted to know how a public interest clause would be regulated.
Dr Cwele asked for a reason why national interest should be reduced to national security, and what SANEF was suggesting should be narrowed.
Mr Delaney replied that SANEF did not understand in what circumstances national interest of the republic in the spheres of free trade and sound international relations would require such a level of secrecy
Mr Landers asked if SANEF accepted that legislation of this nature was necessary.
Mr Delaney replied that it was a welcome departure from the original legislation. There were many good aspects to this Bill.
Dr Cwele asked if SANEF was asking for special protection for journalists.
Mr Delaney replied that it was not advocating that there should be special protection for journalists. The public interest issue would be particularly important for journalists, as expressed by clauses 45 and 46.
Adv Swart mentioned that sound international relations were vital because unsound international relations were the recipe for unsound economic relations. He continued that changing the word from national “interest” to “security” would not change anything.
Mr I Vadi (ANC) noted that there were calls for protection for journalists, and that they were in the information business. Sometimes journalists could, even unwittingly, work as spies. He asked how it would be possible to combat such occurrences.
Mr Raymond Louw, Councillor Member, SANEF, replied that that there might be spies but a Bill could not seek to adversely affect all the journalists because of a few that might be acting as spies. He felt that the only alternative was that all should be watched.
Dr Cwele asked what could be done about the journalists that sought information for their commercial interest.
Mr Louw replied that most journalists’ commercial interest related to their salaries. He agreed that the legislation was crucial to ensure that the country would remain a democracy.
The Chairperson asked for clarity that SANEF did not want journalists to be singled out for preferential treatment.
Mr Louw replied that it was a general view and was a core value held in the press code.
Mail and Guardian (M&G) submission
Mr Sam Sole, Mail and Guardian, was asked before making his submission, whether the presentation differed from what had already been circulated and confirmed that it did.
Mr Sole compared the Bill not as “a wolf in sheep’s clothing” but as “an elephant representing to be a sheep” and suggested that it contained unmanageable and unacceptable elements of unconstitutionality. He summarized that the M&G was concerned with aspects around the classification of information, safeguards & symbolism, statutory approval and the elements deserving of special protection.
In respect of the classification, he submitted that the categorisation was overly broad. There was no definition of National Security and no setting out of the lower levels of functionaries at which decisions might be made and implemented. There also appeared not to be reference to communal interests and compatibility and accountability with such interests. He stated that there was too wide an area for classification as State security or interests, and simultaneously too low a level of functionary who could make such determination or decision.
M&G was further concerned at the apparent lack of provision for an appeal procedure. He conceded that a challenge could be made to the Courts, but he submitted that such challenges were in reality too slow, cumbersome and expensive.
Arising out of this was the question of the distinction to be drawn between possession and disclosure of information. The Bill seemingly made no distinction between disclosure and possession of information; and in any event the onus of determining what was privileged was thrown on the public. The unauthorised disclosure of non-privileged information could be subject to penalty, and there were harsh penalties. The core question should be “Why protect?”. If the journalists could show that possession and distribution of the material was both bona fide and in the public interest that should negate any penalty.
In respect of safeguards, he suggested that the Bill would confine the dissemination of information which was in the public interest. He suggested that at airports the restriction of relevant information could at least impact upon public safety in situations where the public had a justifiable right to know. Further, information in reports, information which directly affected the public and which the public had a constitutional right to know might be delayed under the Bill in order to serve powerful commercial interests that were contrary to the public’s interests. In this area a fraud upon the Government could be classified in terms of the Bill. He submitted that this would clearly be incorrect and contrary to public interest.
Clause 22 of the Bill was devoted to improper disclosure and he questioned whether every known fact would be classified, and thus kept away from the public. He submitted that the public’s interests may be likened to a mosaic and it was not easy to determine where one piece in the mosaic could be classified without impacting upon the whole mosaic. Public interest was too valuable a concept to be curtailed by a low level functionary who had no conception of the greater picture afforded by the mosaic. He submitted that in a democracy some disclosure should be tolerated in an effort to obtain great or maximum openness.
Ms Smuts interposed and asked whether this would be consistent with the Constitution.
Mr Sole replied that this was a leading question. He said he was not asking for special treatment for his newspaper’s journalists. The Constitutional Court had already ruled that journalists were merely exercising the rights of all citizens, but that journalists did occupy a special position in a democratic society and needed not only to report but also investigate or uncover on behalf of the public. The Constitutional Court had placed a duty on the journalists, which, he submitted, this Bill was attempting to confine.
Dr Cwele interposed that he was concerned about the innocent, and that there was seeming readiness to criminalize and he mused about the international repercussions and what the position in the USA and New Zealand was.
Adv Swart referred to the question of national interest and wanted to know how this differed from public interest and National security.
The Chairperson sought clarification whether the media had to behave in the public interest. He also asked if there was a distinction between public and national Interest, and what it might be. He further asked if there could be said to be a distinction between the interests of Government, the legislature and the public.
Mr Sole continued by stating that he was not asking that there not be any consequences to unauthorized disclosure. However, he submitted that an appropriate defence needed to be included in the Bill and submitted that such defence should comprise a combination of bona fide belief and public interest, and that a suitable test be placed in either clauses 48 or 41. He posed the hypothetical example of a Member of Parliament possessing classified documents, classified in terms of the broad provisions of the Bill, who might make use of such documents in privileged circumstances, yet fall foul of the provisions of the Bill if they were used other than in the privileged circumstances. Similar protection might be required by others. He emphasised that the interest of the public should be the paramount consideration. He added that in his opinion the Courts should deal with the concept of public interest and the attendant definitions. Public interest had been covered in the Code for British Journalists. He therefore suggested that Clause 22 of the Bill should be reworked and consideration given to defining public interest.
He also noted that there was the possibility that documents might be classified incorrectly but that there was no provision made in the Bill for this.
He drew the attention of the Committee to the fact that there was seemingly a merging between public and national interest motivating this Bill, and he referred to a recent Executive Order by the current President of the USA in terms of which national and public interests were merged.
Dr Cwele interposed that seemingly an action could give rise to more damage in the short rather than in the long term. He suggested that the recent disclosure of the Exchange Rate and the Interest Rates might have damaged national security and might not have been in the public interest.
Ms D Smuts observed that in the USA, there had not, until recently, been any legislation against leaking information or criminalisation of press disclosures. She suggested that section 40 might come into play, especially where there might be legitimate questions.
Mr Sole conceded that there might be distinctions but reasserted that the Bill criminalised all in the chain of disclosure. He submitted that New Zealand legislation distinguished between classification and the handling and access to information, that such was a higher classification and accordingly preferable, and that a higher test incorporated into this Bill would be an improvement. He urged the Committee to draw such a distinction and incorporate it, to strike a balance so that sanctions ensued only where appropriate.
South African Catholic Bishops Conference (SACBC) Submission
Adv Mike Pothier, Legal Adviser, SACBC, associated himself with many aspects of the earlier presentations. He too emphasised the need for a balance. Although he conceded the State’s interests he felt that the Bill went too far in protecting these and that there was insufficient attention given to the public’s interests. He also submitted that the drafting of the Bill displayed too much vagueness and uncertainty and lacked a reasonable and rational approach. In particular Clause 8(2)(b) gave too much power to the Government and that contained no real meaning. He suggested that one of the weaknesses was that too much power was given to officials to decide matters with insufficient definitions, and that matters should be viewed from the public’s stand point. He suggested that Clause 8 could be deleted out in its entirety.
Additionally, he felt that national interest had initially been dropped from the drafts, but had now re-appeared in this Bill. Clause 15(2)(b) of the Bill made reference to the interests of economic growth and free trade and he asked whether, since this was only one school of thought, whether an ideological bias had not been given to or inserted in the Bill. He submitted that there was also another view that free trade and trade relations acted in antipathy to each other, and that this was also justifiable.
He noted that national security had formerly had not been defined, but was now defined in this Bill. However, in SACBC the definition was not acceptable, as there was no distinction between espionage, terrorism, sabotage and violence. He urged that these definitions required tightening up or refining to be effective.
In reference to Clause 10 he submitted that the principles should be reviewed. He submitted that what was important was not the method, and that administrative convenience was not the criterion, as it was not necessarily consistent with the constitutional right to information.
With regard to the appeal procedure, he submitted that the Minister was not a disinterested or unbiased party and so appeals should not be made to the Minister but rather to some independent Board or outside body.
With regard to the position of the NIA, he submitted that the whole ethos of the NIA was a culture of secrecy, as opposed to the spreading of information. Therefore he submitted that a balance should be arrived at so that the limits of secrecy be curtailed to promote the free flow of information.
In conclusion, he submitted that the Bill in its present form was too wide and offended against constitutional rights.
Ms Smuts asked whether the entire classification was viewed as being too controlling, or whether it was suggested that some of the areas could be severed from others. She suggested that perhaps a deletion of Clause 8 and a re working of Clauses 4, 5 and 6 might be beneficial, as would a review of the question of national security. Clauses 11, 12 and 13 might be improved with the same treatment and thereby help confine the officials.
Adv Pothier submitted that such treatment might be useful in reverting to constitutional principles, that it might be helpful to have actions classified and excisions performed, and that he could not foresee the Bill in its present form passing Constitutional scrutiny.
Dr Cwele asked whether Adv Pothier foresaw the independent body performing an advisory or supervisory role, and what suggestions could be made to reduce this Board’s role.
Adv Pothier submitted that the Promotion of Access to information Act might be a suitable point of reference. Clause 37 was not justifiable. He added that there were statutory boards, such as the Film and Publication Board, which were effectively keeping an eye on those subject to such Boards without bias or restraints.
The Chairperson asked which bishops were being represented and why they were not present.
Adv Pothier stated that SACBC was a lobbying institution and that representations were made to parliament in accordance with decisions and resolutions of the South African Catholic Bishops at their meetings. Although the advisers occasionally persuaded a Bishop to leave his quotidian duties to don his robes and accompany them to parliament, he and his colleagues were generally mandated to make submissions.
Barry Gilder Submissions
Mr Barry Gilder gave an abbreviated resume of his experience in Government service, and especially in intelligence, stating that he was now retired and speaking in his individual capacity.
He submitted that it was the purpose of Government to inform the public of necessary activities, and that there were agencies to attend to this. This Bill was intended to prevent information reaching the nation’s adversaries, which could be other government, domestic entities that opposed the democratic order or sought to subvert, sabotage or undermine government activities, or criminals or other corrupt people, including extremists. Government had a responsibility to protect the integrity of its processes against such adversaries on behalf of the public. South Africa was the target of much activity and that it had woefully inadequate information security systems that were at best ad hoc. There was no definition of espionage or a crime of espionage. There were still some remnants from the apartheid system. He submitted that this Bill attempted a codification of all necessary legislation, definitions and activities into one Act.
He conceded that the Bill was open to criticism but contained much of what Government was already attempting to do without legislative authority. He felt that there was sufficient accountability in the Bill. He believed that there was a need to move away from Minimum Information Security Standards (MISS) to enforceable standards.
Both lack of classification and over classification should be avoided. The Intelligence agencies had to be placed in a balanced situation. He submitted that the bill was balanced, fair and practicable and would meet the needs of the Government. He submitted that national interest was a broad definition but added that in his opinion national security did not make provision for many of the current lacunae.
In regard to concerns expressed by earlier submissions about personal information being conflated with confidential information, he submitted that there was much personal information which did not impinge upon either national information or national security which, for constitutional imperatives, should not be disseminated.
Adv Swart then expressed concern about Top Secret Documents and Classified Documents meeting, merging, and being opposed to one another all at the same time.
Mr Gilder responded that the mere carrying of information defined as confidential would be a crime. He cited as an example conveying of discussions in Cabinet, for not everything was committed to paper. If South Africa was, for example, facilitating negotiations between the Hamas and Israel, the broadcasting of this information could potentially cause harm to the parties involved, and should be privileged, confidential and classified until an appropriate time for dissemination, if that was deemed to occur at any stage.
Ms M Daniels (ANC) queried the necessity for the Top Secret classification and felt that there could be confusion between national interest and national security.
Ms H Mgabadeli (ANC) wanted to know how there should be differentiation between South African and other nationals, whether other countries did so, and whether there was not the risk of confusion and fear.
Dr Cele raised the rights of privacy, and whether this was in conflict with the proposed legislation on privacy. He queried whether the legislation would be inadequate. He did not have any problem with the designations.
The Chairperson asked how Government Departments reacted to or implemented MISS, and what was the reaction of the Intelligence community
The Chairperson asked how it would be assessed what was in the public interest and how the public would be educated.
Mr Gilder agreed that public discussion was somewhat biased and there needed to be co-operation in education from the media, parliament, the universities and Government and other information services.
Dr Cwele ANC asked what distinction there was between an adequate classification of information and the purpose of information dissemination and private information.
The Chairperson questioned the application of MISS and said it seemed to be a hit and miss system
Ms Smuts stated that MISS seemed to be applicable to Government Departments as they wanted it.
Mr Gilder replied that it was not applicable to the Natal Sharks Board but applied to most entities of State. He added that it was not applicable to a range of State entities, for example, Eskom, although they had a high impact upon national interest and security.
Adv Swart thought that there must be a better way of achieving balance.
Mr Gilder said that much thought had gone into this Bill, which was designed to curtail abuses and cover existing boltholes without deviating from the Constitutional imperatives. He urged Members to concentrate on the essentials.
The Chairperson thanked all presenters for the useful and interesting discussions.
The meeting was adjourned.
- AVUSA Limited submission
- Barry Gilder submission
- ETV submission
- Freedom of Expression Institute submission
- Mail & Guardian submission
- Open Democracy Advice Centre submission
- South African Historical Archives jointly with Nelson Mandela Foundation submission
- Southern African Media and Gender Institute submission
- South African National Editors Forum submission