Protection of Information Bill: Submissions to the Adhoc Committee

The Protection of Information Bill has been slammed by some critics as being unconstitutional. Others have likened it to apartheid-era secrecy laws and described it as being ‘the most draconian piece of legislation to come before our democratic parliament’ and ‘a danger to our democracy.The State law advisers dismissed the criticisms as “emotional and hysterical” and defended the Bill, claiming that it contains sufficient checks and balances.

So what is at stake here? Essentially the Bill has come under attack because it gives the state the right and power to classify, keep secret,or restrict access to information that ‘may be harmful to the security or national interest’, promoting a climate of secrecy rather than transparency and compromising accountability. As the Cape Times of 28 July 2010 notes, “it allows for ill-defined concepts of ‘national security’ and the ‘national interest’ to trump people’s constitutional rights to information”.

The Bill makes it a criminal offence to access, disclose or continue to possess classified information. As is stands, it doesn’t only criminalise whistle-blowers but also journalists and others who receive classified information and don’t hand it over immediately to the police! Penalties for accessing, disclosing and possessing classified information range from 5 to 25 years in jail, which is bound to stifle investigative journalism and limit the publication of information considered by the media to be in the public interest.

The Bill also makes provision for the classification of state-held commercial information, such as tender proceedings, which critics argue will contribute to the concealment of corrupt practices. So, the Bill won’t just hinder journalists, it will also undermine the ability of parliamentarians, elected officials and the public to hold the state to account.

While most attention has been focused on the implications of the journal for the media, Verne Harris of the Nelson Mandela Foundation and Graham Dominy, National Archivist in their submissions drew attention to the need to the burden the Bill will impose on the National Archive Service, and the additional funding, staff and equipment that is needed if it is to perform the tasks set out for it in the Bill.

See:
Protection of Information Bill unconstitutional
Not in the national interest
The media, the State and their Love-Hate Relationship
Info Bill ‘a danger to democracy’, Parliament told
Information Bill like ‘apartheid-era legislation’
State Lawyer: Opposition to information bill hysterical

Submissions to the Ad Hoc Committee on the Protection of Information Bill were received from 16 organisatons and individuals: The South African Human Rights Commission (SAHRC); The South African History Archive and Nelson Mandela Foundation (SAHA & NMF); Dr Laurie Nathan; Print Media SA (MMSA); Southern African Catholic Bishop’s Conference (SACBC); South African Media and Gender Institute (SAMGI); Institute for Security Studies and Open Justice Society Initiative (ISS & OJSI); Institute for Democracy in South Africa (IDASA); Mail & Guardian and Mail and Guardian Centre for Investigative Journalism (M&G); Southern African National Editor’s Forum (SANEF); Centre for Constitutional Rights (CCR); Eskom; Durban Legal Research Association (DLRA); Open Democracy Advice Centre (ODAC); Congress of South African Trade Unions (COSATU); Cape Chamber of Commerce (CCC)

A number of organisations made oral submissions on 21 and 22 July 2010. The summary of these submissions, below, is taken from the Parliamentary Monitoring Group report on the proceedings for Day One and Day Two. These web pages include detailed minutes as well as links to audio recordings of the proceedings, and relevant documents.

Day One Summary:

The Committee commenced with a two-day public hearing session on the Protection of Information Bill (the Bill). Many of the submissions raised similar points, and all stated their concern with certain definitions in the Bill that should be redefined, altered or deleted altogether. “National interest”, which was deemed to be too broad and all encompassing, it could result in any and every government service being regarded as a public good. The majority of submissions felt that the Bill would compound problems that were already being experienced with the Promotion of Access to Information Act (PAIA). There were also concerns that this Bill conflicted with the Protected Disclosures Act, and that the effect of the Bill would be to discourage whistle-blowers. Criticisms were also directed to the lack of an independent review body.

Open Democracy Advice Centre (ODAC) suggested that clause 3(g) of the Protection of Information Bill should be used to define national interest. ODAC presented a summary of the position in other jurisdictions, and suggested that a concept such as “State secrets” or a far narrower statement of the type of information that was protected, would be preferable to using “national interest”. It recommended that Clause 12 should be deleted. It raised the need for an independent oversight body, as the current wording created obstacles for accessing justice and would raise problems similar to those that were already experienced under PAIA. It recommended the creation of an Information Commissioner and made some suggestions as to where this office could lie. ODAC said that it would also be necessary to synchronise the Bill both with PAIA and the Protected Disclosures Act, and that a “public interest” defence should be included. Clauses 38 and 39 were deemed to violate Constitutional principles, and ODAC pointed out that the risks of over-classification were greater than risks of releasing classified information. The classification rules should therefore be reconsidered. Members asked about the suggestions for an information officer, commented that South African sources such as the Constitution appeared to receive less focus than overseas jurisdictions, and asked for clarification on a re-wording of Clause 11.

Southern African Catholic Bishops’ Conference believed that the Bill was not convincing in the extent to which it sought to protect State information in the country’s national interests, and erred on the side of excessive secrecy. SACBC also felt that the definition of “national interest” was too broad and all-encompassing, and should not be tied to ideologically-loaded values such as economic growth, free trade and a stable monetary system. There was a danger that the current definition of national interest would lead to State information being classified too readily, denying the public access to State information. SACBC regarded the principles of classification as sound and reasonable, and Clause 17(1)(b) was commendable, although it did make suggestions for improvement. Appeals to the Minister were cited as problematic since the Minister would be an interested party. Members questioned the assertion that Clause 11(1) should be removed, asked whether the SACBC believed that there was a need for this legislation, and wondered if regulations to be drawn might not address the concerns on Clause 16.

South African Media and Gender Institute was concerned that this Bill shifted the burden of proof for release of information to the party requesting it. It questioned the Minister of State Security being the sole overseer for the exemption of information and that officer being the adjudicator of dispute resolution. It was concerned about the lack of specification as to who was to classify information. It also raised concerns about the definitions of “national interest” and inconsistencies in the various classification levels, as well as the failure to spell out declassification procedures. Members questioned whether SAMGI was suggesting that the bill be withdrawn, or recognised the need for the legislation, asked how it believed that the Bill would affect the rights of women, and questioned whether the problems that the Institute had raised lay with PAIA or with the Bill.

The Letsema Centre for Development and Democracy supported the Bill, seeing it as an improvement on the previous legislation, and said that the members of the community where it worked had greater faith in the ability of government to protect them than in the media’s work. It did not believe that the Bill was unconstitutional. It believed that the Bill would strengthen the Protected Disclosures Act as well as PAIA. Members asked whether the withholding of crime statistics would be justifiable and how LCDD believed that this could combat crime, asked what would happen if trust was broken between the State and its citizens.

The Institute for Democracy in South Africa (IDASA) recognised the necessity for the legislation but was concerned about the effect of the Bill as presently worded, believed that “national interest” was too broad and would restrict legitimate interest. It echoed concerns on the absence of a public interest override, and independent arbitration, as well as the prejudicial effect on whistle-blowers and investigative journalism. It also was concerned about the shift of the burden of proof, cited conflicts with PAIA and other inconsistencies in the criminal sanctions. It also called for detailed guidance to State officials when they classified documents. It raised concerns that this Bill might affect Parliament’s oversight role. Members called for more clarity on this latter remark, and asked for a written draft of the amendments that IDASA suggested.

The Freedom of Expression Institute also expressed concerns on the wide definitions, and did not believe that the Bill provided sufficient clarity and direction on the classification of documents. It was concerned that the Bill may be failing to uphold Section 16(1) of the Constitution. The application to all organs of State was seen as problematic, as were the lack of an external review apparatus, and the lack of inclusion of a public interest defence in the Bill. It criticised the penalties as too harsh and likely to discourage investigative journalism. Members questioned the assertion that the Bill, in its present form, might not pass Constitutional muster, how the Bill was likely to dull the critical faculties of the public, and whether the Chapter 9 institutions were not able to protect the democracy.

The South African Institute for Security Studies (ISS) and Open Society Justice Initiative was concerned that some definitions in the Bill were inconsistent with intelligence policy and other intelligence legislation. “National Security” and “National interest”, which were also not clearly defined, should not be used as the justification for protection. It called for the removal of the clauses relating to the protection of commercial information from the Bill, and for an independent authority to perform the tasks in Chapter 10. “Hostile activity” offences should be limited by including a public interest clause, which would provide a remedy to the potential restrictions on investigative journalism and public accountability. Concerns were also expressed about Clauses 18, 39 and 42. Members questioned the suggestion to withdraw and redraft the Bill, commented on the threat of espionage, questioned why commercial issues should not be protected, and asked for further clarification on the call for an independent authority, which had the potential to be unduly costly and administratively difficult. They questioned the concerns around Clause 40 and the relevance of the examples from foreign jurisdictions.

The South African History Archive (SAHA) and the Nelson Mandela Foundation also still found some definitions to be imprecise. They asked whether it was correct that fundamental principles in relation to information should be “trumped” by national security, and recommended an amendment to Clause 6(j). They commented on the need to simplify the procedure for declassification, and in particular not to require that only documents transferred to the National Archives could be declassified. They were also concerned about dispute resolution being left with the Minister and recommended an independent adjudication authority. Members sought clarity on the aims of the organisations, commented that history was still being incorrectly or incompletely presented, particularly at Robben Island, and questioned the procedural difficulties.

Eskom was concerned that this Bill would impact upon organs of State, pointing out that although State Owned Enterprises, including Eskom, fell into the State arena by reason of the State’s shareholding, they essentially operated in the commercial field. Eskom suggested either that the Bill should not apply to commercial information at all, or that there should be limited application of the Bill to certain types of information. This could be achieved either by refining the definitions, or using a procedure adopted in the Companies Act, where relevant Ministers consulted on appropriate exemptions. Eskom also made submissions around delegations of authority. Eskom noted that if it was obliged to classify commercial information, then the same would have to apply to the other party to the contracts, and this posed difficulties where foreign service providers or even foreign employees of Eskom were concerned. Members questioned whether Eskom was anticipating the need to classify any information, and commented that certain information relating to the costs charged to major industrial players should not be withheld.

The Centre for Constitutional Rights submitted that the Bill was flawed in several aspects, that the definitions were not clear enough and that the effect of the Bill was to restrict access to information. It felt that Clauses 25 and 31 offended against the legal principles that no party should adjudicate a matter in which it was involved, and suggested that a Chapter 9 institution such as the South African Human Rights Commission should instead be tasked with adjudications in terms of the Bill. Detailed comments were contained in the written submission on a number of other clauses. Members asked for further detail around training of officials to classify in the United States of America, called for comment on allegations published about public figures, questioned the possible implications should the Bill be passed in its current form, and commented on the very real threats posed by information peddlers that the Bill might address. The Chairperson said the Committee noted the concerns that this Bill would need to be brought into alignment with other legislation around information, and made the point that it was also necessary to clarify the categories and definitions, and to understand that a limited number of documents were likely to fall into the most protected categories.

Day Two Summary:

The Durban Legal Research Association commented that although the Constitution contained rights, these were not always in practice cascading down to the public. South Africa was the only African country to provide access to information, although other international countries gave greater access. It was concerned about some vague definitions and provisions and called in particular for a redraft of Clause 12. It was concerned about the penal provisions and called for protection of whistleblowers. Members suggested that access to information could be boosted either through improving the Promotion of Access to Information Act itself, or its implementation, and asked if the Association believed that an Information Commission was needed.

The South African National Editors’ Forum (SANEF) expressed concern that several provisions that had been included in the original draft, and that provided checks and balances, were not in the current version of the Bill. The removal of these safeguards had the effect of tightening the State’s grip on information, leading to an over-emphasis on the need to protect, with the potential to cover up matters such as torture by law enforcement personnel. It was also worried about the extension of the powers of the Minister of State Security. SANEF believed that in every matter there must be consideration whether the refusal to give access to information was “reasonably justified”. Members asked if SANEF would like to see the previous clauses incorporated again into this Bill, questioned the stance of the media on personal rights, and asked how openness should be balanced against the right to dignity and other rights. They discussed the Johannesburg Principles, which had only recently been made available to the Committee, the criticism about lack of consultation with stakeholders prior to the Bill being drafted, and questioned the practical effects of the Bill for the media.

Print Media South Africa commended a clear enunciation of the legal principles, but was disappointed that these had not been applied to the detail of the Bill. In particular, Clause 6(j) was criticised as undermining the previous clauses. Print Media accepted that no right was absolute and that national security was a justifiable limitation, but felt that there was a need to strike a balance and achieve the maximum possible openness. It was concerned that the criminal offences could be applied to journalists, in particular those who unwittingly committed offences. It suggested that a defence of “public interest” must be included and tabled a proposed wording. It suggested that the tests for classification should avoid using the word “may” and should be more carefully worded. It felt that Clause 46 did not give proper effect to the principles of open justice. Members discussed the roles of the law enforcement agencies or structures and the media, and how one might assist but not usurp the functions of the other. Members also asked about the practical consequences should a public interest defence not be included in the Bill.

Mail and Guardian (M&G) supported the comments made in other submissions in relation to definitions and language, as well as the wording proposed by Print Media for the public interest defence. It thought the Bill posed a danger to open democracy, as the media’s Constitutional mandate was being challenged. The Bill currently veered too heavily on the side of secrecy. M&G thought that the Minister should not be tasked with oversight, and pointed out that a feature of a good democracy was overlapping structures to ensure accountability and oversight. It did not support the inclusion in this Bill of all categories of information that would not be released in terms of the Promotion of Access to Information Act, and cited difficulties with that Act. It was deeply concerned with the definition of “State security” and the prohibition on reporting around the State Security Agency. M&G felt that the Bill might impact upon the ability of Parliamentarians to perform their oversight and investigative work effectively. Members noted that it would be necessary to determine what secrets should be protected, discussed the State’s responsibility to ensure that dignity was maintained, that cultural practices were respected, and what would be regarded as newsworthy.

The South African Communist Party indicated its broad support of the Bill, and the necessity to protect certain information, and hoped that the Bill could achieve the correct balance between protection of the right of access and protection of the State security. It indicated its concern with the Browse Mole report, saying that lack of protection would make the State vulnerable. It supported the proposed penalties. Members asked if the Party would support non-disclosure of information about tenders.

The Durban Legal Research Association commented that although the Constitution contained rights, these were not always in practice cascading down to the public. South Africa was the only African country to provide access to information, although other international countries gave greater access. It was concerned about some vague definitions and provisions and called in particular for a redraft of Clause 12. It was concerned about the penal provisions and called for protection of whistleblowers. Members suggested that access to information could be boosted either through improving the Promotion of Access to Information Act itself, or its implementation, and asked if the Association believed that an Information Commission was needed.

The South African National Editors’ Forum (SANEF) expressed concern that several provisions that had been included in the original draft, and that provided checks and balances, were not in the current version of the Bill. The removal of these safeguards had the effect of tightening the State’s grip on information, leading to an over-emphasis on the need to protect, with the potential to cover up matters such as torture by law enforcement personnel. It was also worried about the extension of the powers of the Minister of State Security. SANEF believed that in every matter there must be consideration whether the refusal to give access to information was “reasonably justified”. Members asked if SANEF would like to see the previous clauses incorporated again into this Bill, questioned the stance of the media on personal rights, and asked how openness should be balanced against the right to dignity and other rights. They discussed the Johannesburg Principles, which had only recently been made available to the Committee, the criticism about lack of consultation with stakeholders prior to the Bill being drafted, and questioned the practical effects of the Bill for the media.

Print Media South Africa commended a clear enunciation of the legal principles, but was disappointed that these had not been applied to the detail of the Bill. In particular, Clause 6(j) was criticised as undermining the previous clauses. Print Media accepted that no right was absolute and that national security was a justifiable limitation, but felt that there was a need to strike a balance and achieve the maximum possible openness. It was concerned that the criminal offences could be applied to journalists, in particular those who unwittingly committed offences. It suggested that a defence of “public interest” must be included and tabled a proposed wording. It suggested that the tests for classification should avoid using the word “may” and should be more carefully worded. It felt that Clause 46 did not give proper effect to the principles of open justice. Members discussed the roles of the law enforcement agencies or structures and the media, and how one might assist but not usurp the functions of the other. Members also asked about the practical consequences should a public interest defence not be included in the Bill.

Mail and Guardian (M&G) supported the comments made in other submissions in relation to definitions and language, as well as the wording proposed by Print Media for the public interest defence. It thought the Bill posed a danger to open democracy, as the media’s Constitutional mandate was being challenged. The Bill currently veered too heavily on the side of secrecy. M&G thought that the Minister should not be tasked with oversight, and pointed out that a feature of a good democracy was overlapping structures to ensure accountability and oversight. It did not support the inclusion in this Bill of all categories of information that would not be released in terms of the Promotion of Access to Information Act, and cited difficulties with that Act. It was deeply concerned with the definition of “State security” and the prohibition on reporting around the State Security Agency. M&G felt that the Bill might impact upon the ability of Parliamentarians to perform their oversight and investigative work effectively. Members noted that it would be necessary to determine what secrets should be protected, discussed the State’s responsibility to ensure that dignity was maintained, that cultural practices were respected, and what would be regarded as newsworthy.

The South African Communist Party indicated its broad support of the Bill, and the necessity to protect certain information, and hoped that the Bill could achieve the correct balance between protection of the right of access and protection of the State security. It indicated its concern with the Browse Mole report, saying that lack of protection would make the State vulnerable. It supported the proposed penalties. Members asked if the Party would support non-disclosure of information about tenders.

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