Author: msmuts
Last saved by: User
Company: Parliament of South Africa

DA amendments Protection of Information Bill
8^th April 2011

Name of Bill: Classification of State Information Bill
Long title: in first line replace “or” with “and”
                   In second line insert “such” before “information”
Preamble: redraft later and if necessary incorporate portions of clause 6

Definitions
Categories
On p 5 lines 11 to 16
Delete (subject to discussion whether the principle of severability of sections of information is compatible with categorisation)

Commercial information
On p 5 lines 30,31 delete
File series
On p 5 lines 45 – 52
See “categories”
 above
Information principles
On p 6 line 23 delete 

Intelligence
P 6,7 lines 41 – 14
Definitions need amendment to delete reference to national interest, line 44 ;“threats to constitutional order”’ line 60 ;“advancement of public good and all things owned or maintained”lines 62,63;national interest lines 5 and 7

National interest
P 7 line 30 delete
National security
P 7 delete line 31,32 and 33 from “resolve” up to “includes”

Organ of State
P 7 line 42 (a) delete
Public interest
P 8 not usually defined – discuss

Sensitive information
P 8 line 18 omit “must” insert “may”
P 8 line 19 delete “interest” insert “security”
Valuable information
P 8 line 33 delete

 Clause 1 (2) Delete – subject to discussion of utility of clause 6
Clause 1 (4) delete (inexplicable)
Clause 1 (6) delete

OBJECTS
Clause 2 p 9 lines 4 – 14 delete
APPLICATION
Clause 3 p 9 line 29
(a)	Government departments charged with intelligence or divisions of  departments dealing with security and intelligence related thereto, including Foreign Affairs
Clause 3 (2) delete (once the application clause is narrowed down the exemptions become unnecessary)
Clause 3 (3) delete as above

CHAPTER 2
Delete
CHAPTER 3
Clause 7 (1) p 10
Delete (a) and (b)
P 11 in line 3 add “held by intelligence structures”
In line 4 replace 1 (b) with 1 (c) (error)
In line 6 delete “at organs of state”
Clause 7 (3) delete
Clause 7 (4) delete
Clause 8 p11 line 27 after “each” insert “executive”; after “state” insert “ dealing with security matters other than intelligence”

CHAPTER 4
Delete
CHAPTER 5
Delete
CHAPTER 6
P 13 (a) line 9 after “sensitive” delete “commercial or personal”
(b) Omit must insert may
(d) in line 17 delete “is considered to be valuable information that”
Clause 14 (2) delete
Clause 14 (3) in line 32 delete “directions” and insert “conditions”
Clause 15
Sub (1) should read:
(a)	Sensitive information the unlawful disclosure of which is likely to/could reasonably be expected to cause demonstrable harm to the national security or is likely/could reasonably be expected to prejudice the Republic in its international relations
(b)	Delete
Sub (2)
(a)sensitive information the disclosure of which is likely to/could reasonably be expected to cause serious and demonstrable harm to the national security or is likely/could reasonably be expected to jeopardise the international relations of the Republic
(b) delete
(c) delete
Sub 3
(a)	Sensitive information the disclosure of which is likely to/could reasonably be expected demonstrably  to cause exceptionally serious/grave and irreparable  harm to the national security of the Republic or could reasonably be expected to cause other states to sever diplomatic relations with the Republic
(b)	Delete
(c)	Delete 
Clause 16 p 14
Delete subsections 5 and 6
P 14 Directions for classification: delete “Directions” and insert “Conditions”
In line 24 (a) substitute with “secrecy is justifiable only when necessary to protect the national security”
In line 31 delete (b) (iv)
In line 35 delete “section 11”
In line 38 delete “in the national interest”
In line 48 after “benefits of” insert “openness and”
In line 52 delete (classification is not needed against loss)
In line 57 delete “and the national interest”
P 15 clause (2) line 6 delete “principles” insert “conditions”
P 15 clause 18 delete, alternatively make subject to provisions of the Bill which allow a public interest override
P 15 clause 20 in line42 delete “interest” insert “security”

CHAPTER 7
P 15 clause 21 in line 51 delete “interest” insert “security”
P 16 clause 21 (2) in line 1 delete “may” at  end of line and add “ is likely to /could reasonably be expected to”

P16 clause 22 (2) add “provided that a review of all material classified under the MISS must be conducted at the commencement of this Act”
P16 clause 23 in line 39 delete all words after “by” and insert “any person” (NOTE s 32 does not impose any conditions or limitation on access to state information)

P16 clause 23 (2) delete, see above
P 16 clause 23 (6) only if application is limited to matters dealt with in s 41 of PAIA. And add  subclause equivalent to  PAIA s 41 (4) (b) .
New subclause (7)(equivalent of PAIA s 46)
The head of an organ of state must grant a request for declassification if the disclosure of the information would reveal evidence of (i) a contravention of, or failure to comply with, the law (ii) an imminent and serious public safety or environmental risk and the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question

P17 clause 25 
(1)	Delete and insert: “Any person denied a request for declassification may appeal to a  judge designated by the Minister of Justice under the Regulation of Interception of Communications and Provision of Communication-Related Information Act no. 70 of 2002 (and add appropriate definition in clause 1)

(2)	Delete and insert:” the designated judge must make a finding and in the case of refusal provide reasons within 90 days of the date of receipt of such request.”

CHAPTER 8

P 17 clause 26 (1)  delete and insert: “The classification of information must be reviewed before it is transferred to the National Archives or other archives established by law provided that information that has been classified for 20 years shall be declassified”
CHAPTER 9
Move clause 28 to follow clause 23

CHAPTER 10
Delete

CHAPTER 11

P 19  Clause 32 should read

(1)	It is an offence punishable on conviction by imprisonment for a period not exceeding 25 years
(a) to unlawfully communicate, deliver or make available State information classified top secret with the intention of directly benefiting another state; or
(b) to unlawfully make, obtain, collect, capture or copy a record containing State information classified top secret with the intention of directly or indirectly benefiting another state.

(2)	It is an offence punishable on conviction by imprisonment for a period not exceeding 15 years
(a)	to unlawfully communicate, deliver or make available State information classified secret with the intention of directly or indirectly benefiting another state; or
(b)	to unlawfully make, obtain, collect capture or copy a record containing State information classified secret with the intention of directly benefiting another state.
(3)	It is an offence punishable on conviction by imprisonment for a period not exceeding five years
(a)	To unlawfully communicate, deliver or make available State information classified confidential with the intention of directly or indirectly benefiting another state; or
(b)	To unlawfully make, obtain, collect, capture or copy a record containing State information classified confidential with the intention  of directly or indirectly benefiting another state

Clause 33 and as above, delete minimum sentences and reasonable knowledge and insert intention but add a definition of purposes prejudicial to the safety of the state based on s3 of the Canadian Security of Information Act (at minimum)
Clause 34 – is such an offence compatible with modern conditions?

Clause 36 delete (not credible)
Clause 38 reference to 11 (3) (g) inexplicable ; remove minimum sentence and introduce option of a fine
Clause 39 Delete. We oppose a possession clause (18) and its offence provision
Clause 41 omit “valuable” and insert “sensitive”
Clause 42 omit (d) – consequential on removal of commercial categories
Clause 43 this is the Frank Chikane clause and requires discussion against the Rev Chikane’s assertions that operatives freely share classified information with comrades inside the ANC who are not authorised to receive state security information: as he says, “corrupt intelligence services are the most dangerous threat to security and integrity of the state”. As with improper classification, aggravated maximum sentences might be considered for operatives who breach their own secrecy undertakings; but precisely because they are freely divulging information, it is unfair to impose imprisonment on others who disclose, and a  public interest defence must be written. However the Intelligence Services Act already criminalises disclosure – what it the intention here?

New clause – discussion supported of PMSA public interest and public domain defences
Clause 46 to be brought into line with Constitutional Court Masethla judgement
Clauses 48 and 49 – please see DA submission 8^th April 2011