PUBLIC PROTECTOR’S SUBMISSION TO AD HOC COMMITTEE ON THE PROTECTION OF STATE INFORMATION BILL IN THE NATIONAL COUNCIL OF PROVINCES: FEBRUARY 2012

Contents
1.	INTRODUCTION
2.  	INTERNATIONAL STANDARDS
2.1 	 Freedom of Expression and Access to Information
2.2	Restrictions to Freedom of Expression and Information
3.	THE CONSTITUTION
4.	CONSTITUTIONAL LEGISLATION
5	ANALYSIS OF THE POSIB
5.1 	Chapter 1 - Scope of the POSIB
5.3 	Chapter 3: Policies and procedures
5.4 	Chapter 4:  State information that requires protection against alteration, destruction or loss
5.5 	Chapter 5: Classification and declassification of state information
5.6 	Chapter 6: Regular reviews, request for access to classified information and status review
5.7	Chapter 7: Classification Review Panel
5.8	Chapter 8: Appeals
5.9 	Chapter 9: Transfer of records to National Archives and release of declassified information to public
5.10	Chapter 10: Implementation and monitoring
5.11	Chapter 11: Offences and penalties
5.11.8	 International Perspectives on the feasibility of a Public Interest Defence Clause
5.11.9	Whistleblowers
5.12 	Chapter 12: Protection of classified information before courts
5.13 	Chapter 13: General provisions
6. CONCLUSION AND RECOMMENDATIONS

1.	INTRODUCTION

1.1	This submission provides the Public Protector’s analysis of the Protection of State Information Bill (POSIB) that was passed by the National Assembly on 22 November 2011 and is currently being considered by the National Council of Provinces.  
1.2	These comments are made with the full acknowledgment and understanding of the necessity for the introduction of new legislation to regulate the protection of valuable information held by all organs of state and the classification and declassification of state information to deal with, inter alia, the security  threats posed by abuse of state information.   
1.3	The South African government, at the highest level, has committed itself to building a truly free, non-racial, non-sexist, democratic and prosperous country in which its policies and actions are guided by the Constitution of the Republic of South Africa, 1996 (the Constitution), as South Africa’s “fundamental vision statement” which gives “full expression to our democratic ideals.”   South Africa has also voluntarily entered into treaty agreements with other States, according to which it has undertaken to respect human rights, including freedom of expression and information.
1.4	The Public Protector therefore approaches this matter from the perspective of balancing the public interests sought to be achieved through the protection of state information and the public interest considerations arising from the right to freedom of expression and the right to access of information held by the state. Of particular concern to the Public Protector are concerns arising from the unintended consequences of the provisions of the POSIB on intuitions such as the Public Protector and other imperatives of constitutional democracy and the Rule of Law.
1.5	The Public Protector, established under section 181 of the Constitution, has been operating as a fundamentally important part of the network of accountability agencies that play a vital role in maintaining and promoting the integrity of Government and the public service in fulfilling constitutional roles such as service delivery, the exercise of public power and control over public resources
1.6	Recognised as a central pillar in the integrity framework aimed at strengthening the democratic values of good governance, the Rule of Law and quality of life, the Public Protector is empowered by section 182 of the Constitution to strengthen and support constitutional democracy by investigating any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action.
1.7	The Public Protector has an important role in strengthening constitutional democracy by remedying government’s administrative injustices through righting each specific administrative wrong or improper conduct of the state or failures and reconciling the people with the state by resolving administrative disputes and ensuring remedial action, where appropriate.   The responsibility entrusted by the Constitution transcends the individual and include measures to diagnose and remedy systemic administrative inadequacies with a view to facilitate systemic change to transform the character of the state by institutionalizing good governance.
1.8	Anchored on the supremacy of the Constitution and rule of law, basic values and principles governing public administration as envisaged in section 195 of the Constitution, Batho Pele Principles and International Ombudsman Principles, the work of the Public Protector is informed by the core principles of Accountability, Integrity and Responsibility.  In order to serve democracy as intended by the Constitution the Public Protector is dependent on an enabling environment that fosters responsiveness, transparency, administrative justice and fairness in state affairs, which are closely linked to the freedom of communication of information – and the central point of discussion in the debates around the POSIB.
1.9	 Any unreasonable or disproportionate restriction or limitation of access or dissemination of information on the wrongdoings of organs of state would have serious impact on the ability of the Public Protector to achieve her mandate of strengthening constitutional democracy.  This submission addresses the freedom of information issues within the POSIB. The Public Protector’s analysis and comments are made within the framework of the applicable international standards, the Constitution and the rights and freedoms protected and promoted in terms of Constitutional Legislation.
1.10	The Public Protector’s main concern relates to the Bill’s unintended consequences that include the shrinking of space that the Public Protector and other integrity institutions currently enjoy under the constitution and the law. 
1.11	 	The Public Protector is concerned that the vagueness of some the provisions of the POSIB could pose a serious threat to the right to freedom of information as guaranteed under the Constitution and international law. While the POSIB is understandably focussed at protecting highly sensitive security material, the classification scheme is exceptionally broad allowing for almost any information to be excluded from public view.  
1.12	The ultimate premise of this submission is that in addition to addressing its intended objectives, the Bill should comply with relevant international law, the Constitution and Constitutional legislation.  
2.  	INTERNATIONAL STANDARDS

2.1 	 Freedom of Expression and Access to Information

2.1.1	Both the right to freedom of expression and the right to access information are well- established in international law, including  –
2.1.1.1	Article  19  of  the  Universal  Declaration  on  Human  Rights (UDHR), adopted in 1948;
2.1.1.2	Article 19 of the International Covenant on Civil and Political Rights (ICCPR) adopted in 1966, and
2.1.1.3	 Article 9 of the African Charter on Human and People's Rights. 
2.1.2	Both Article 19  of the  UDHR  and  Article  19  of the  ICCPR  have  been  construed  as imposing  an obligation on states to implement measures to enable access to information held by public bodies.  The substance of these treaty  obligations have been developed by the UN Special  Rapporteur on Freedom  of Opinion  and  Expression  and  have  been recognised  and supported by the UN Commission on Human Rights.
2.1.3	The  right  to  access  information  held  by public  bodies, which guarantees a right of all to seek and receive information,  is crucial to the functioning  of democracy and the enforcement  of other rights.   Without   freedom   of communication of information,   authorities   can control the  flow  of information and conceal material that is potentially damaging to the government and manipulate the release of “positive news”. There is general consensus that in such a climate, abuse of state power and resources thrive. Human rights violations may also  remain unchecked. If the information is of a sensitive nature relating to national security it may be exempted from disclosure but only if a number of safeguards are first established.
2.1.4	Countries  have therefore been called upon to adopt  and implement freedom of information legislation in terms of which State secrets and sensitive information must be subject to the operation of such legislation, and other Laws must be consistent with it.  The Declaration  of  the  Special  Rapporteurs  on  freedom  of expression outlines the relevant principles applying to freedom of information and secrecy legislation,  and stresses  that  secrecy  laws  must  be  narrowly  drafted  and  be compatible with the right to access information.
2.2		Restrictions to Freedom of Expression and Information
2.2.1	Most systems of law, international and national, including the Constitution, recognise certain restrictions on the right to freedom of expression on grounds of for instance, national security. Article 19(3) of the ICCPR provides that :
“The exercise of the rights [to freedom of expression and information] may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) 	 For respect of the rights or reputations of others;
(b)  For the protection of national security or of public order (ordre public), or of public health or morals.”
2.2.2	Such restrictions, however, must be subject to certain limits if the guarantee of freedom of expression is to be effective. Under international law, restrictions must meet a stringent 3-part test which requires any limitation  -
2.2.2.1	 to be explicitly provided by law, 
2.2.2.2	to pursue a legitimate aim and
2.2.2.3	 to be no more restrictive than necessary to protect that aim.
2.2.3	By merely setting out the restriction in domestic law does not mean that the first condition, that any restrictions should be ‘provided by law,’ is met.  There is consensus that the legislation must itself be in accordance with human rights principles set out in the ICCPR.  The European Court of Human Rights has developed two fundamental requirements:
“First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”.
2.2.4	According to the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which have been endorsed by the United Nations, no restriction on freedom of expression or information on the ground of national security may be imposed unless the government can demonstrate that the restriction is prescribed by law and is necessary to protect a legitimate national security interest. The burden of demonstrating the validity of the restriction rests with the government, which must show that: 
2.2.4.1	the expression or information at issue poses a serious threat to a legitimate national security interest; 
2.2.4.2	the restriction imposed is the least restrictive means possible for protecting that interest; and 
2.2.4.3	the restriction is compatible with democratic principles. 
2.2.5	Any restriction must therefore restrict freedom of expression as little as possible.  The approach is that measures adopted must be carefully designed to achieve the objective in question, and they “should not be arbitrary, unfair or based on irrational considerations”.  Vague or broadly defined restrictions, even if they satisfy the “provided by law” criterion, will not be acceptable because they go beyond what is strictly required to protect the legitimate interest.
2.2.6	In addition, the Johannesburg Principles state that laws on public information must be accessible, unambiguous, and drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful. The laws should also provide for adequate safeguards against abuse, including access to prompt, full, and effective judicial scrutiny by an independent court or tribunal of any imposed restriction. The  European  Court  has in  a  similar  vein, warned  that  laws  that  restrict  freedom  of expression on national security grounds must lay down clear and precise definitions, so as to safeguard against abuse.
3.	THE CONSTITUTION

3.1 	The Bill of Rights in the Constitution of the Republic of South Africa, 1996 (the Constitution) includes the right to freedom of expression: 
“16(1) Everyone has the right to freedom of expression, which includes  
a.	freedom of the press and other media; 
b.	freedom to receive or impart information or ideas; 
c.	freedom of artistic creativity; and 
d.	academic freedom and freedom of scientific research.” 
3.2 	Section 32 of the Constitution Provides as follows:
“Access to information 
1.	Everyone has the right of access to  
a.	any information held by the state; and 
b.	any information that is held by another person and that is required for the exercise or protection of any rights. 
2.	National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.” 
 3.3 	Section 7 of the Constitution states that the Bill of Rights is a cornerstone of democracy in South Africa. “It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.” It places an obligation on the State to respect, protect, promote and fulfil the rights in the Bill of Rights. 
3.4  	The fundamental reason for securing freedom of expression and the freedom of access to information in the Constitution is essentially to protect - and ensure the responsibility that personal opinion may be formulated and expressed. In a recent decision, the Hungarian Constitutional Court emphasised that the individual right of subjective freedom of expression results from “the conditions of formation and functioning of democratic public opinion to ensure the maintenance of their (the citizen’s) public duties.”  The Court furthermore confirmed that the right is not exclusive to professional journalists and media magnates but is very much an individual right belonging to every citizen.
3.5 	There is general consensus that the proper functioning of democracy and civil society would be impossible without freedom of expression and access to information. Indeed it is regarded as “emblematic of a truly functioning democratic political system at work.” The operation of representative democracy depends on the people being able to scrutinise and contribute to the general discussion on the quality of democracy, citizenship and social inclusion. Without information, people cannot adequately exercise their rights and responsibilities as citizens or make informed choices. 
3.6 	Government information is a national resource. Its availability and dissemination are important for the economic and social well-being of society generally.  Issues brought into the public sphere do not only serve as accountability mechanisms, but also serve as an early warning system to alert the state and its stakeholders about matters that have the potential to impact on its promises to the people or about matters that might derail its drive to fulfil its constitutional obligations.
4.	CONSTITUTIONAL LEGISLATION

4.1 	Section 1 of the Constitution determines the overarching principles that inform every aspect of government in South Africa:
‘The Republic of South Africa is one, sovereign, democratic state founded on the following values –
(a)	 Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b)  	Non-racialism and non-sexism.
(c)  	Supremacy of the Constitution and the rule of law.
(d) 	 Universal adult suffrage, a national common voter’s roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.’
4.2	In the matter of the Democratic Alliance v The President of the RSA & othersthe Supreme Court of Appeal recently made the following observation:
No-one is above the law and everyone is subject to the Constitution and the law. The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.” (emphasis added)
4.3 	From this and other constitutional provisions, it is argued that the obligation to protect and promote the Constitution is not limited to the Government agencies, but applies to all organs of state as defined by section 239 of the Constitution.  It is furthermore proposed that as far as the Legislatures are concerned the following Constitutional duties are relevant- 
4.3.1	Legislatures are required to promote constitutionalism and human rights.
4.3.1.1	 Constitutions are commonly expected to refine the actions of Government in respect of the citizen and entrench the rule of law.  This means that in the South African context, like others, all state action must take place within the framework provided by the Constitution and the law. 
4.3.1.2 	Contrary to popular belief, the protection of the Constitution and human rights and the promotion of constitutionalism are not the preserve of the courts. It is emphasised that Courts are institutions of last resort. “Legislatures are institutions that oversee the development and implementation of policy. They must be proactive in developing a democratic rights culture and must be central agents in the realisation of rights and the transformation of the country.”
4.3.2  	Other principles that are proposed included requirements that  Legislatures must be inclusive, must be accessible, open, responsive and participatory and must be efficient and effective.
4.4  	The Constitution may describe in detail the basic structure, composition, authority, elections and procedures of the legislature.  However, when specific national legislation is prescribed by the Constitution for the protection and promotion of constitutional rights, such Constitutional legislation is not the same as legislation introduced by the Executive and promulgated by Parliament in the ordinary course of business.
4.5 	Consequently, legislation that is inconsistent with constitutional legislation is in fact inconsistent with the Constitution.
4.6  	The POSIB will have to take into account the constitutional status of the Promotion of Access to Information Act. 

5	ANALYSIS OF THE POSIB 

5.1 	Chapter 1 - scope of the POSIB
5.1.1 	Chapter 1 provides for definitions and interpretation and for the objects of the Act. This chapter further provides for the application of the Act to apply to all organs of state with regard to the protection of valuable information, alteration, destruction or loss. 
5.1.2 	The functioning of the Public Protector is directly affected by the POSIB to the extent that she has to rely extensively on the media and whistleblowers to report issues of fraud, corruption and service delivery failures within organs of state. To execute her/his constitutional mandate, the Public Protector requires unrestricted access to organisations and state institutions and any information and documents, including classified information, held by the State in relation to any complaint within her jurisdiction.  The POSIB does not take heed of the Constitutional imperative on organs of State to, through legislative and other measures assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of the Constitutional institutions.  
5.1.2 The Public Protector has also noted concerns that the definition of “National security (b) (iv)”: “exposure of a state security matter” – needs to be reviewed as, when read with the definition of a state security matter, it will allow the classification of any matter dealt with or concerning the state security agency, rather than just matters of national security dealt with by the state security agency. 
5.1.3 	“National security (b) (v)”: scientific/technological and economic secrets should be scrapped as it opens the back door to classification of loan agreements etc. – Scrap the clause. Also 14(h) – conditions for classification provides a counterbalance but does not include economic issues.
5.2 	Chapter 2
5.3 	Chapter 3: Policies and procedures
5.3.1	In terms of Chapter 3 the head of each organ of state where applicable must establish policies and procedures, directives and categories for classifying, downgrading and declassifying state information and protection.
5.3.2	The establishment of policies and procedures directives and categories are extremely important for the successful implementation of the POSIB by the officials, and to inform the public on issues of procedure and rights and limitations.
5.3.3	While it is important that the policies and directives be as clear as possible the Public Protector is more concerned about the fact that there is no requirement that seeks some measure of uniformity or standardisation as far as different operations would allow.  It is proposed that in this process the POSIB be aligned to the process that is provided for in the PAIA. 

5.4 	Chapter 4:  State information that requires protection against alteration, destruction or loss
5.4.1 Chapter 4 sets out what information may be protected against alteration, destruction or loss (known as ‘‘valuable information’’); the process of determining information as valuable; and how such information is to be protected. 
5.4.2 While the POSIB purports to protect only classified documents, the scope of the classification definitions is so broad that potentially, any information could be included in these categories. Again, this is a cause for serious concern.
5.5 	Chapter 5: Classification and declassification of state information
5.5.1 	Chapter 5 provides for classification and declassification of state information in terms of 
• Nature of classified information;
• Method of classifying state information;
• Classification levels;
• Authority to classify state information;
• Conditions for classification and declassification;
• Report and return of classified records;
• Authority to declassify classified information; and
• Maximum protection periods.

5.5.2	The Public Protector agrees that the POSIB leaves critical details of the procedure for declassification to be decided later by ministerial discretion. Only public servants can currently refer a declassification request and there is no time limit for them to do so. If they fail to perform their duty to respond to information requests, members of the public must rely on costly legal action that only a very few can afford. This gap in the POSIB serves to aggravate existing bureaucratic bottlenecks for even urgent disclosures in the public interest.
5.5.3	It should be emphasised that the system for classifying information is a restriction on access to information. Restrictions on access to information are permissible only if they serve the legitimate aims delineated in the ICCPR. These aims are limited to the rights and reputations of others, national security, public order, and public health and morals. 
5.5.4	States may not categorically deny access to all information related to national security but “must designate in law only those specific and narrow categories of information that it is necessary to withhold in order to protect a legitimate national security interest.”  This requirement necessitates that restrictions be narrowly drawn.
5.5.5 	In the view of the Public Protector the restrictions and processes provided for in Chapters 5, 6 and 12 of the POSIB do not seem to cater for the operations of the Public Protector in terms of access to and receipt of classified information.
5.5.5.1	In terms of the Constitution and the Public Protector Act, the Public Protector can investigate any allegation or suspicion of any improper conduct in State Affairs and in so doing can request information from any person, without any restriction in access.  The Public Protector further regulates the promotion of access to information in terms of the Promotion of Access to Information Act – also without any restriction in access.  Lastly, the Public Protector is mandated to receive disclosures in terms of the Protected Disclosures Act.
5.5.5.2 	The provision relating to the protection of classified information before the courts unintentionally refuses to recognise other forums such as the Public Protector, the Human Rights Commission and tribunals that play a role in the vindication of rights.  The unintended consequence of this is not only to curtail the operation of the affected institutions; the Constitutional rights of persons who wish to use these Institutions to vindicate their rights are equally undermined.  (For instance, dealing with a matter where a member of the Public did not receive joy from the Inspector General of Intelligence or the Human Rights Commission and wants to approach another forum and not the courts).
5.5.6	Many of the categories of classification contained clause 12 of the POSIB impose a blanket exemption for information related to national security. This is fundamentally inconsistent with the requirements under international law for access to information.
5.5.7	Clause 15 states that a person who is in possession of a classified “record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act must report such possession and return such record to a member of the South African Police Service or the Agency to be dealt with in the prescribed manner”. Anyone who fails to do so commits a crime for which he or she could be sent to jail for 5 years. Section 43 prohibits many categories of people (excluding whistle-blowers in the employment of the state who complies with the strict provisions of the whistle-blower act, but including all members of the media) from disclosing the content of classified documents and anyone who contravenes this section could be sent to jail for 5 years.
5.5.8	Thus a person would be criminally liable if he or she is in possession of the document or makes that document public even if the document was wrongly classified to cover up corruption, authoritarian actions by the security services or to hide illegal activities or maladministration by the these services or the police.
5.5.9	The Public Protector does not have control over the type and nature of information and documentation submitted to her, or that are currently in circulation in her office.  If such information and documentation contains classified information or documentation, without any indication of its status in terms of the POSIB, the mere possession or retention of such classified information could lead to criminalisation thereof.  
5.5.10	To expect the Public Protector to surrender such information and documentation pending an application for a status review or to approach a court of law would have a serious impact on the integrity and independence of the Public Protector as a Constitutional Institution as well as her authority to receive protected disclosures in terms of section 8 of the Protected Disclosures Act 26 of 2000.

5.6 	Chapter 6: Regular reviews, request for access to classified information and status review
5.6.1	In terms of Chapter 6 the head of an organ of state must review the classified status of all classified information held by that organ of state and must do so at any time but at least once every ten years. This chapter further provides for a request for access to classified information. In specific circumstances where the state information reveals evidence of a substantial contravention of, or failure to comply with the law or an imminent and serious public safety or environmental risk and the public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure, the head of the organ of state concerned must declassify the classified information in accordance with this Act.
5.7		Chapter 7: Classification Review Panel
5.7.1	 	Chapter 7 provides for the establishment of a Classification Review Panel that must review and oversee status reviews, classifications and declassifications receive reports and receive once a year reviews on the status of classified information conducted by the organs of state.
5.7.2	 	It is not clear how funding of activities of the panel will take place (should be accountable to the National Assembly for funding and not the Minister of State Security).
5.7.3	Proposals were made that a mechanism need to be created allowing members of the public to appeal to the panel as an alternate to appealing to the court once internal appeal provisions under clause 19 /or PAIA have been exhausted.
5.8	Chapter 8: Appeals
5.8.1	Chapter 8 provides for an internal appeal procedure and an application to court procedure. In circumstances contemplated in section 19 (3) a requester may apply directly to a court for urgent relief.
5.9 	Chapter 9: Transfer of records to National Archives and release of declassified information to public
5.9.1	Chapter 9 provides for the transfer of classified information to the National Archives or other archives established by law. It further provides for the release of declassified information to the public in accordance with the provisions of this Act, the Promotion of Access to Information Act or any other law.
5.10	Chapter 10: Implementation and monitoring

The Public Protector has no comments.

5.11	Chapter 11: Offences and penalties
5.11.1 	Chapter 11 provides for the following offences: Espionage offences; receiving state information unlawfully; hostile activity offences; harbouring or concealing persons; interception of or interference with classified information; registration of intelligence agents and related offences; attempt, conspiracy, and inducing another person to commit offence; disclosure of classified information; failure to report possession of classified information; provision of false information to national intelligence structure; destruction or alteration of valuable information; improper classification; failure by head of organ of state or official of organ of state to comply with the Act; prohibition of disclosure of a state security matter. The penalties may vary on the basis of the nature of the offence and the actual or potential harm caused.
5.11.2	Much of the public debate on these issues focussed on the broad nature of the penalties and the harsh sentences, but more particularly on the absence of a public interest defence.
5.11.3	In Chapter 6 the POSIB provides for a public interest override similar to the PAIA application for access to a classified document in the public interest - to the extent that if a request is made for access to information and it is established that the information requested is classified, the  head of the organ of state concerned must declassify the classified information and grant the request for state information if that state information reveals evidence of the public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure.
5.11.4	Commentators have indicated that the override provisions of the POSIB leaves critical details of the procedure for declassification to be decided later by ministerial discretion. Only public servants can currently refer a declassification request and there is no time limit for them to do so. If they fail to perform their duty to respond to information requests, members of the public must rely on costly legal action that only a very few can afford. This gap in the bill serves to aggravate existing bureaucratic bottlenecks for even urgent disclosures in the public interest.
5.11.5	Furthermore, this is not the same as a public interest defence clause which is defined a defence which allows anybody who disclosed classified or protected information to avoid criminality, by claiming it was in the public interest to do so, for example section 15  of the Security of Information Act of 1985, which regulates the classification of state secrets in Canada and creates offences relating to the leaking of documents and possession of documents classified as secret, contains a specific public interest defence. 
5.11.5.1	Section 15(1) of the Canadian Act states that no person is guilty of an offence even where that person reveals “special operational information” if the person establishes that he or she acted in the public interest.
5.11.5.2	Section 15(2) states that a person acts in the public interest if
(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and
(b) the public interest in the disclosure outweighs the public interest in non-disclosure.
5.11.6	Subsection 15(4) of the Canadian Act contains a set of factors that a court must weigh up when deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure. These factors include:
(a) 	whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be
(b)	the seriousness of the alleged offence;
(c)	 whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person
(d)	 whether the person had reasonable grounds to believe that the disclosure would be in the public interest;
(e) 	the public interest intended to be served by the disclosure;
(f) 	the extent of the harm or risk of harm created by the disclosure; and
(g) 	the existence of exigent circumstances justifying the disclosure.
5.11.7 	The section also provides for other safeguards that would prevent the disclosure of information that would harm the security of the state without having satisfied the public interest criteria. However, even then these safeguards do not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.
5.11.8 International Perspectives on the feasibility of a Public Interest Defence Clause

5.11.8.1 Canada

a)	As indicated earlier, and presented by the Minister to the Ad hoc Committee, the Canadian Security of Information Act of 1985 provides for a public interest defence clause.
b)	The Council of Europe Convention on Access to Official Documents 
i.	 Contains a public interest override. Article 3 of that treaty allows member states to deny citizens access to documents where this is”necessary in a democratic society” and where it is “proportionate to the aim of protecting”, inter alia, national security, defence and international relations; public safety; the prevention, investigation and prosecution of criminal activities; privacy and other legitimate private interests; and the economic, monetary and exchange rate policies of the State.
ii.	 Article 3(3) of this treaty states that “Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned [above], unless there is an overriding public interest in disclosure.
c)	The  Principles on Freedom of Information Legislation
i.	ARTICLE 19 has produced this set of international principles – to set a standard against which anyone can measure whether domestic laws genuinely permit access to official information. The  Principles on Freedom of Information Legislation published by ARTICLE 19 and endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression make it clear that a public interest defence is pivotal for any legal regime dealing with the classification of information, 
1.	According to these Principles a public interest override is”crucial to the effective functioning of a freedom of information regime. It is simply not possible to envisage in advance all of the circumstances in which information should still be disclosed, even if this might harm a legitimate interest, and to address these through narrowly drafted exceptions or exceptions to exceptions.” and:
2.	Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. The harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information.
ii.	These points are supported by the ARTICLE 19 Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which state:

Principle 15: General Rule on Disclosure of Secret Information
No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.
Principle 17: Information in the Public Domain 
Once information has been made generally available, by whatever means, whether or not lawful, any justification for trying to stop further publication will be overridden by the public's right to know.
d)	The International Covenant on Civil and Political Rights states that”
1. 	Everyone shall have the right to hold opinions without interference. 
2.	 Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 
3. 	The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: 
(a)	 For respect of the rights or reputations of others; 
(b)	 For the protection of national security or of public order (ordre public), or of public health or morals.
5.11.8.2 The Honourable Minister Cwele  referred to the position in the UK: 
a)  However, in submissions on the implementation of the International Covenant on Civil and Political Rights (ICCPR) to the United Nations Human Rights Committee it was suggested that the Official Secrets Act 1989 (OSA) and the  Freedom of Information Act 2000 for England, Wales and Northern Ireland do not comply with the Covenant and that the British Government should consider narrowing the exemptions in the Freedom of Information Act as suggested by the UN Special Rapporteur, and make all exemptions subject to a public interest override.
“We believe the OSA must be amended in three respects to be brought in line with the guarantee of freedom of expression in Article 19(2) of the ICCPR. First, disclosures which cause no harm should not attract criminal liability. Second, the media should not be made responsible for keeping official secrets; the prevention of leaks should be the exclusive responsibility of the authorities. Third, the OSA should recognise the possibility of legitimate ‘whistle blowing’ by incorporating a defence of disclosure in the public interest.”
b)  	The statement that the British quickly rejected the public interests clause, does not paint the full picture as to why this clause was removed. The current version of the OSA was enacted following the 1985 trial of Clive Punting, a civil servant who had disclosed information that demonstrated that ministers misled the public over the sinking of the Argentine cruiser General Belgrano during the Falklands war. Contrary to the official version of events, the ship had not been threatening British lives but was withdrawing from the theatre of conflict when it was attacked. The jury acquitted Ponting on the basis that his disclosure served the public interest. The OSA was subsequently amended to exclude the defence of public interest.

5.11.9	Whistle-blowers
5.11.9.1 Clause 43 of the POSIB provides as follows:
 Any person who unlawfully and intentionally discloses classified information in contravention of this Act is guilty of an offence and liable to a fine or imprisonment for a period not exceeding five years, except where such disclosure is—
(a)  	protected under the Protected Disclosures Act, 2000 ( Act No. 26 of 2000) or section 159 of the Companies Act, 2008 ( Act No. 71 of 2008); or
(b) 	authorised by any other law.
5.11.9.2 The protection of whistle-blowers is fundamental to the operation of open and accountable government and is a standard provision in freedom of information legislation in a wide range of countries.   In addition, the Special Rapporteurs 2004 Declaration on Freedom of Information and Secrecy Legislation stresses the need for information ‘safety valves’ such as whistle-blowers and calls for the protection of those who disclose information so long as the person acted in good faith.
5.11.9.3 Further consideration needs to be given to promote protection of whistle-blowers in the face of the severe criminal sanctions within the POSIB which apply to those people who disclose classified information. It is a difficult balance to strike, but a significant one for the protection of basic fundamental rights. 

5.12	Chapter 12: Protection of classified information before courts
The Public Protector has no comments.

5.13 	Chapter 13: General provisions
The Public Protector has no comments.

6. CONCLUSIONS AND RECOMMENDATIONS
6.1	 The Public Protector acknowledges the importance and legitimacy of the POSIB.  It is indeed anticipated in section 36 of the Constitution that certain rights might be restricted for legitimate reasons.

6.2	The Challenge for Parliament is to ensure a balance in protecting the Public Interests in securing appropriate categories of state information and the public Interests in protecting the right to freedom of expression and other imperatives in the Constitutional democracy that is founded on accountability responsiveness, openness and the Rule of Law, among other foundational values. 

6.3	Having canvassed the views of the majority of the other Institutions Supporting Democracy it has emerged that there may also be unintended consequences on their operations.

6.4	The Public Protector would therefore like to urge Parliament to review the POSIB with the view to identifying and eliminating the deleterious unintended consequences.

6.5	In the context of good governance and sound public administration the availability of information enhances the accountability of government. It ensures that members of Parliament are aware of the activities of the Executive, which is especially important in light of the imbalance in power between them.  Information is an important defence against corruption.  I want to concur with one of my international  colleagues that
 	Information is the currency that we all require to participate in the life and governance of our society.  The greater the access we have to information, the greater will be the responsiveness of our governments to community needs, wants, ideas and creative.  Alternatively; the greater the restrictions that are placed on access, the greater the feeling of ‘powerlessness’ and alienation”
The Public Protector and her team are available for engagement on possible amendments of the Bill.

I would like to thank the Ad Hoc Committee on Protection of State Information Bill in the National Council of Provinces in advance for its kind consideration of this submission.

ADV T N MADONSELA
PUBLIC PROTECTOR OF THE
REPUBLIC OF SOUTH AFRICA 
DATE:_____________________________