UPDATE: The Protection of State Information Bill

The Archival Platform is constructing a timeline outlining debates and developments around the Protection of Information Bill. We will continue to extend and update this as events unfold.

Sunday 29 January 2012 Have your say! Call for written and oral submissions.

The Ad Hoc Committee on the Protection of State Information Bill (National Council of Provinces) invites interested individuals and organisations to make written submissions on the Bill. Submissions should be addressed to: the Secretary of Parliament of RSA, PO Box 15, Cape Town for attention Mr G Dixon, phone 021 4033771, fax 086 658 9371 or email .(JavaScript must be enabled to view this email address). The closing date for submissions is Friday 17 February at 12:00. Public hearings for those selected for oral presentations will be held at Parliament on Tuesday 13 March 2012 and Wednesday 14 March 2012.

For further information:

See the website: http://www.parliament.gov.za
Follow the debate on the legislative process on parliament’s facebook site http://www.facebook.com/ParliamentofRSA
Add your voice on parliament’s twitter site at twitter.com/Parliament ofRSA

Friday 20 January 2012 Public Hearings on Info Bill set to roll

Public meetings will be held from 09:00 to 16:00 in the following areas. Please check your local press for details of venues.

Western Cape: Tuesday 31 January
Eastern Cape: Thursday 2nd February 2012
Free State: Monday 6 February 2012
Gauteng: Monday 13 February
Kwazulu Natal: Wednesday 15 February 2012
North West: Tuesday 21 February 2012
Mpumalanga: Thursday 23 February 2012
Limpopo: Tuesday 28 February 2012
Northern Cape Wednesday 1 March 2012.

See the full programme on the Parliamentary Monitoring Group website

20 November 2011: The bitter triumph of small minds

An editorial in the Sunday Times sums up the feeling of many, South Africans, “On Tuesday, our parliament will vote to remove from South Africans a vital freedom. For 17 years we have had the right to access government information in one of the world’s most progressive constitutional democracies.

20 November National Press Club ‘Black Tuesday’ campaign”

MPs will vote on the matter on controversial bill on Tuesday 22 November. The National Press Club has dubbed the day “Black Tuesday” and called on South Africans to don black as a form of protest; the Right2Know Campaign is organising multiple simultaneous pickets and Public Prosecutor Thuli Madonsela has set up a team to investigate concerns around the bill. Whatever happens on Tuesday, South Africans fighting for access to information will not be silenced.

20 November ANC in rush to sell contested bill

As the National Assembly prepares to vote on the Protection of Information Bill, the ANC has finally hit the road to hear what its constituencies think about the contentious draft law.

18 November 2011 :State Security Minister Siyabonga Cwele labels those protesting against the so-called “secrecy bill” proxies funded by foreign spies

Minister Cwele said that while substantial changes had been made to the original bill —- including limiting it to the security organs of state and classification only for reasons of national security — demands for a public interest defence could not be accommodated. If the courts found divulging classified information was not in the public interest, “the harm would already have been done”.

18 November 2011 COSATU expresses concern about the bill and the current parliamentary process

“COSATU notes with concern that the Protection of (State) Information Bill is currently being considered by the National Assembly (NA) in Parliament. According to previous ANC Parliamentary Caucus media statements published on 27 September and 18 October 2011, the Bill was withdrawn from the NA’s programme in order to allow the ANC hold a countrywide public engagement process.
We were supportive of this process only to the extent that we understood it would supplement, rather than substitute, the parliamentary process and that it would enable a more inclusive process of addressing the serious fundamental problems that COSATU and a range of other civil society organisations have consistently identified in relation to the Bill.
However, the Bill is now again before the NA without a single public meeting having been convened in the provinces as promised, and in respect of which we had intended engaging through our provincial structures. The version of the Bill that is being considered by the NA therefore remains unchanged from that which was adopted in September by the Ad Hoc Committee that processed the Bill”.

16 November 2011 ConCourt battle on the cards over info bill

State Security Minister Siyabonga Cwele on Wednesday dispelled any hope that the state would heed pressure to include a “reckless” public interest defence in the protection of information bill. Critics say that this renders the bill unconstitutional.

14 November 2011 Right2Know Statement on ANC’s Reintroduction of Secrecy Bill Without the Promised Consultation

“South Africans should be outraged at the African National Congress’ (ANC) disingenuous move to bring the Secrecy Bill back to National Assembly for further deliberations as confirmed by the Office of the ANC Chief Whip last week. 

On 19 October 2011, following the shelving of the Bill ostensibly for further consultation, the ANC Chief Whip’s office committed itself to a transparent and clearly road-mapped process to ‘ensure that as many people as possible, regardless of their political allegiance, get an opportunity to have a say on the draft legislation before it is passed into law.’ Communities were promised ample notice of upcoming meetings to express their views on the Secrecy Bill.

After several weeks of closed-door meetings between ANC provincial caucuses and the Minister of State Security Siyabonga Cwele and senior aides, the ANC appears to have rendered any public engagement meaningless by moving the Bill back to the National Assembly. No public consultations have been conducted, showing the Chief Whip’s promises to be utterly empty.”

11 November 2011 ANC sets Secrecy Bill deadline

The ANC plans to finalise the controversial Protection of State Information Bill before the end of November, despite the party’s announcement that it would sund out public opinion on the legislation first.

10 November 2011 Editors welcome Motlanthe remarks

Deputy President Kgalema Motlanthe’s suggestion there could be a “meeting point” over the insertion of a public-interest defence in the Protection of State Information Bill has been welcomed by the SA National Editors’ Forum and the Right2Know campaign.

9 November 2011 Motlanthe hints at ANC climbdown on info bill

Depty president Kgalema Motlanthe has hinted at the possibility of the Protection of State Information Bill being amended to include a public interest defence.

23 October 2011 Public consultations on secrecy bill to get underway next month

The Sunday Independent reports that the ANC is expected to kick off its public consultations on the bill after most of its provincial inter-parliamentary caucuses have met behind closed doors.

30 September Outcry over ANC ‘hijack’ of information Bill

Idasa’s Judith February claims the introduction of an ANC committee to continue the public consultation process on the Protection of Information Bill undermines the legitimacy of Parliament and opens the proposed legislation to more legal challenges, says a Mail & Guardian report.

28 September 2011 ANC tells Concourt to ‘back off’ info bill

ANC Chief whip Mathole Motshekga has warned the Constitutional Court to stay out of the fight over the controversial Protection of State Information Bill.

25 September 2011 Activist welcomes shelving of info bill

Dale McKinley writes in the City Press that “the bill which proposes jail sentences of up to 25 years for failure to comply, has been described by media groups and civil society as draconian and reminiscent of apartheid-era statutes which suppressed media freedom and transparency.

23 September 2011 The threat of South Africa’s secrecy bill

Terry Bell explains why the secrecy bill is likely to protect the guilty at the expense of the innocent.

23 September 2011 No public interest defence

According to the Mail & Guardian, “The Protection of State Information Bill as it stands now provides any citizen who handles a classified record can be sentenced to up to 25 years in jail. Without a public interest defence, the Bill would allow wrongdoing and threats to public safety to be covered under a cloak of secrecy.

Critics of the Bill say this constitutes an unjustifiable limitation on the right of access to information guaranteed in the Bill of Rights. Should a whistle-blowing official want to leak a classified record to a journalist, campaigner or member of Parliament, the official risks being prosecuted for unlawful disclosure. Those who receive the document risk being prosecuted for unlawful receipt and failure to report possession.“

20 September 2011 Secrecy bill shelved as opposition grows

Just 24 hours before MPs were to have voted on this contentious bill, ANC chief whip Mathole Motshekga announced that the bill had been withdrawn pending further consultation.

19 September 2011 ANC split over info Bill

IOLNews reports that unhappiness within the ANC’s national executive committee (NEC) over the controversial bill could lead to it being withdrawn before the Natonal Assembly debates it on Tuesday.

17 September Right2Know Campaign marches on Parliament

Wearing T-shirts emblazoned with the slogan, “Let the truth be told” Civil society came out in force to the march on parliament to protest the Bill. Right2Know argues that even though changes have been made, the finaldraft of the Bill still fails the press freedom test. Of key concern is the lack of a public defence clause to protect people who publish classified information to expose state wrongdoing.

16 September Rage, rage against the dimming of society’s right to know

Stefaans brummer, a founding member of the Right2Know campaign admits that sometimes ‘the good gus have to keep secrets from the bad guys’ and concedes that concessions have been made: the scope and application of the Bill has been pared down. BUT, goes on to say that the Bill remains deeply flawed without a public defence clause.

14 September 2011 Info bill a threat to whistleblowers trying to expose atrocities

UCT Vice Chancellor Max Price condemned the information bill on the occasion of the Steve Biko Memorial Lecture.

8 September 2011 Information ruling is a crime

Brendan Boyle concedes that the revised Bill is an improvement on the previous version and limits the number of agencies that automatically have the power to create records, but points out that Biko’s story would not be told under the new secrecy rules and

2 September 2011 Info bill could be destined for Concourt

The absence of a public-interest defence clause in the Protection of Information Bill means it is destined for a Constitutional Court challenge, where critics hope it will be thrown out.

1 September 2011 ANC won’t allow public interest defence

Journalists will face up to 10 years in prison if they publish classified information without first asking government to declassify it.

26 August 2011 Parties hit ‘major’ setback on secrecy bill

While progress is being made a fresh disagreement which the opposition described as a major setback has emerged. It relates to the test to be applied for classifying information as confidential. MPs had agreed earlier that potential threats to national security would be the only grounds for keeping information secret. However, the additional grounds of a threat to security, without any further qualification, has worked its way into the latest draft.

24 August 2011 ANC eases up on info bill prison sentences

The ANC has conceded that people who publish classified information that would “prejudice” the state should not be jailed for 20 years.

23 August 2011 ANC narrows application of the bill

The ANC has made good on its promise to restrict the application of the bill and also reformulated the grounds on which information can be classified.

21 August 2100 Ronnie Kasrils describes the Bill as ‘looking more dangerous than ever

In a Sunday Times column, ‘Another view’, Ronnie Kasrils says that, “The committee is bogged down in a cut-and-paste job, and the legislation is becoming a web of ill-conceived notions, biased towards secrecy and less and less expressing the spirit of our constitution.”

18 August 2011 Vavi cites Ruth First in attack on secrecy bill

“First would ask where all other democrats have gone to after reading about the proposed Protection of Information Bill,” Vavi said, adding that, “If it goes through in its current form, it will make a mockery of her work as a journalist committed to fighting injustices,”.

18 August 2011 No automatic declassification after 20 years

Times Live reports that the ANC has rejected the idea that al sate secrets be automatically declassified after 20 years.

16 August 2011 Fresh opposition calls for controversial bill to be binned

The Cape Times reports that the ANC’s reluctance to define two key concepts in the Bill, ‘national security’ and ‘prejudice to the republic’  has led to fresh cries of unconstitutionality and calls for the Bill to be ‘binned’.

15 August 2011 Right2Know marches on the Constitutional Court

The Right 2 Know Campaign first organised a march to the Constitutional Court in October last year. On Saturday, a second rally and march to the highest court in the land showed that, despite some concessions in the latest drafting of the proposed Protection of Information bill, the fight to protect access to information and freedom of expression is far from over.

11 August 2011 Bid to scrap declassified info database

The Times reports that the Nelson Mandela Centre head of memory, Verne Harris, has been asked to formulate a proposal doing away with the national declassification database proposed in the Bill.

5 August 2011 Secrecy tango raises civil society’s ire

The Mail & Guardian, noting that an expanded definition of ‘national security’ is back on the table, reports that the ANC’s backtracking on essential concessions is provoking a new wave of civil society protests.

29 July 2011 Religious leaders oppose Info Bill

The Cape Times reports that religious leaders in the Western Cape have hnited against the proposed Protection of Information Bill, saying it restricts access to truth and, as a result, poses a moral threat to society.

28 July 2011 ANC bid to extend secrecy provisions

The Cape Times reports that ANC lawmakers have proposed extending the provisions to classify information in order to protect state security – and prevent information peddling. The proposal to extend the definition of national security has dismayed civil society groups, including the Right2Know campaign.

26 July 2011Secrecy Bill review panel in the spotlight

Legalbrief reports that, in an attempt to deal with the criticism that the so-called Secrecy Bill provides for information to be classified in the interests of ‘national security’ (but it is not clear on what exactly national security is), the parties have agreed the Bill should include a new classification review panel of five people to be appointed by the State Security Minister to oversee the classification of information

25 July 2011 Secrecy bill concessions fail to protect basic freedoms

The Sowetan reports that parliament has resumed its deliberations on the Protection of Information Bill today, with pressure on the ruling party to go beyond concessions promised last month when it came under fire from Cosatu. During the parliamentary recess, warnings were issued from several quarters that the climb-down did not defuse a fundamental threat to freedom of information and expression in the draft legislation.

17 July 2011 Information Bill changes welcome but more are needed

City Press, publishes a statement from Dr Saleem Badat, vice-chancellor of Rhodes University, raising concerns that, “failure to include public interest and public domain clauses wil mean that academic research on matters relating to the organs of state could be criminalised”.

15 July 2011 Promises, but still not time to celebrate

The Mail and Guardian report that the ANC is ‘digging in its heels’ over the public-interest defence and says that this, together with the overly broad definition of ‘national security’ will bring conflict between government and civil society to a head.

25 June 2011 ANC takes U-turn on Info Bill

IOL news reports that the ANC has proposed significant concessions on the classification of state secrets, although it has still not responded to calls for the inclusion of a public-interest defence clause.

24 June 2011 Delay in the fight against secrecy not a final victory

The Mail & Guardian reports that the deadline for the finalisation of the Protection of Information Bill has been extended to 23 September.

21 June 2011Mandela would oppose Info Bill say Sanef

The Sowetan reports that SA National Editors Forum member Raymond Louw said yesterday, that Nelson Mandela believed the press should be free from government intervention since they were the only ones who could hold those in power accountable.

19 June 2011 Unseemly haste on flawed secrecy bill

Ronnie Kasrils, former minister of intelligence spoke out against the Bill, criticising the inclusion of stiff penalties, its broad and unfocussed nature, and the unnecessary range of government administrators and departments who will take responsibility for classification and declassification. Kasrils also commented on the ‘unseemly haste’ with which the Bill was being pushed through parliament.

17 June 2011 Nelson Mandela Foundation and Wits release briefing document

Amongst recommendations made in this document, is the re-introduction of the ‘harm test’ which would allow those accused of revealing state secrets to argue that they had done so in the public interest – thereby providing a defence for journalists and whistle blowers charged with contravening the law.

10 June 2011 Pallo: Info Bill debate is hysterical

IOL news reports that Pallo Jordan, a member of the ANC’s national executive committee, speaking at a meeting of the National Association of Democratic Lawyers of SA (Nadel), said that contrary to what was suggested in the “slanderous”, “hysterical”, and “hyperbolic” debate around the Bill, press freedom, the constitution and democracy were not under threat. Jordan suggested that the debate should centre on what constraints should be placed on the government so that it did not use the law incorrectly or frivolously.

8 June 2011 Call for Info Bill overhaul as protests mount

Ackerman, chairman of Pick n Pay, Prakashnee Govender of Cosati’s parliamentary office, Pregs Govender of the South African Human Rights Commission, Pierre de Vos of the University of Cape Town, Rashied Omar of the Western Cape Religious Leaders’ Forum and Idasa’s Judith February.

7 June 2011 Business needs to oppose secrecy bill

Gareth Ackerman, writing in the Business Report, called on business to speak out against the secrecy bill saying that,  business – the engine of prosperity, job-creation and economic growth – can only flourish in a society where the flow of information is free and unfettered by undue state control”.

5 June 2011 Deadline extended for secrecy bill

The Sunday Times reports that the deadline for the finalisation of the Bill has been extended.

5 June 2011 Vavi changes ANC info bill stance

IOL news reports that the hard hitting statement by Cosatu, warning that it would go to the Constitutional Court is changes were not made to protect whistle-blowers has resulted in the ANC conceding that the deadline for finalising the bill be extended and that changes would have to be made.

5 June 2011 Heads you lose, tails you lose with info bill
In an article published in the Sunday Independent, Pierre de Vos argues that the Bill would effectively limit the access of citizens to the kind of information they need to exercise their democratic choices as responsible citizens.

3 June 2011 Secrecy: ditch the Stalinist colours, ANC

A report in the Mail & Guardian, suggests that ‘the organisation that liberated us from apartheid now wishes to oppress us’ and outlines three key problems with the bill. 1) Any organ of state can classify information as it pleases (there are more than 1000 organs of state). 2) It has no public interest defence, meaning that information deemed to be in the public interest cannot be published and 3) it prescribes harsh penalties on those such as journalists and whistle-blowers, in possession of classified documents.

2 June 2011 Ronne Kasrils warns on secrecy bill

A letter from Ronnie Kasrils, former intelligence minister, published on Politicsweb, urges parliament not to pass the Bill in its current form, warning that the rush to pass the Bill will lead to, “huge problems and unnecessary tensions in the future”.

1 June 2011 Cosatu nails info bill

The Right2Know campaign reports that Cosatu has come out in opposition to the Bill saying that, “the bill is a significant setback for the protection of openness, transparency and accountability guaranteed by our constitution”.

31 May 2011 Protection of Information Bill, a threat to whistle-blowers

A statement issued by Cosatu warns that the bill could be abused to cover up information on corruption and misuse of public resources and to criminalise whistle-blowers who try to expose crime and corruption. Noting that restrictions are imposed by classifying information according to the following categories of increasing levels of sensitivity: 1) Confidential information, where unlawful disclosure may be “harmful” to security or national security or could “prejudice” international relations. 2) Secret information, where unlawful disclosure may “endanger” security or national security or could “jeopardise” international relations. 3) Top secret information, where unlawful disclosure may cause “serious or irreparable harm” to national security or could cause other states to “sever diplomatic relations with the Republic”.Cosatu says that if disclosure of “personal information” is deemed to endanger the physical security or life of a person, then that information too may be classified as either “secret” or “top secret”.

27 May 2011 ANC steamrollers on with its secrecy bill

The Times reports that the ANC is determined to ensure that the Department of State Security remains primary curator of information ranging from state secrets to passport details of citizens.

25 May 2011 ANC set to ram through info bill

IOL news reports that work on the controversial Bill is moving at lightening speed and that the ANC appeared to be set to use its majority on the special committee working on its to muscle the legislation through.

20 May 2011 Can ANC save the Secrecy Bill?

The Mail & Guardian reports that Cecil Burgess, chair of the ad hoc committee processing the Bill, sees no reason why the work of the committee cannot be completed within the specified time, i.e. by June 24. Those who oppose the Bill are of the opinion that the committee is unlikely to meet the deadline.

16 April 2011: Committee on info bill fails to make progress

The Saturday Argus reports that the special committee processing the Bill failed to make progress during its meeting on the 15th. Weekend Argus also notes that there is one more meeting scheduled before Parliament closes for the local elections, and that the committees report is due on 24 June.

The report quotes Alison Tiley of the Right2Know saying, that the ANC position paper, showed that little progress had been made by the party to rid the bill of its ‘draconian measures’

15 April 2011: ANC holding form on Secrecy Legislation in South Africa

freedominfo.org reports that, “The ruling African National Congress in South Africa this week indicated it will not make significant changes to its controversial Protection of Information Bill”.

12 April 2011: Opposition pushes to dilute Info Bill

The Post reports that, “Political opposition parties have tabled submissions calling for the scope of the Protection of Information Bill to be whittled down after progress on the legislation appeared to stall in recent months”.

31 March 2011: Parliament sets record straight on barring of Right2Know members from precinct

In the media statement issued by Parliament, it is noted that, “in February, members of Right2Know entered the precinct ostensibly to observe a meeting of the Ad-hoc Committee, However, during the meeting, Right2Know members staged a demonstration which disrupted proceedings. The February demonstration by Right2Know was particularly unseemly because the coalition had had the opportunity to make its concerns about the Protection of Information Bill heard - by way of submissions - to the Ad-hoc Committee and, generally, public input on the bill has been encouraged. Besides being disrespectful, the demonstration was also in contravention of the law. Parliament is a National Key Point and in terms of the Powers and Privileges of Parliament Act 2004, demonstrations are prohibited on the precinct.”

Notwithstanding the fact that Right2Know members were barred from entering the parliamentary precinct, the statement goes on to say that, ” Parliament wishes to reaffirm that the institution is committed to being a people’s Parliament which facilitates public involvement in its work. The practice of opening committee meetings to the public, which started with the establishment of our first democratic Parliament in 1994, is aimed at facilitating public participation in Parliament’s law-making and oversight activities. However, it is our shared responsibility, in spite of whatever differences we may have on specific issues, to respect and to defer to accepted rules and procedures aimed at ensuring that ours is a functioning democracy.”

17 March 2011:South African National Editors Forum (SANEF) issues a statement expressing concern at the Right2Know being barred from parliament.

The Right2Know reports that, “Nine activists from the Right2Know campaign have been barred from entering the Parliamentary precinct today. The R2K activists had intended to join other members of the public in monitoring a scheduled sitting of the ad hoc committee on the Protection of Information Bill. The decision to deny civil society access to parliament is at best arbitrary, and at worst unconstitutional and flies in the face of reports this week that the Speaker of Parliament, Max Sisulu, has put his foot down to say that portfolio committee meetings should be open to the public.”

17 March 2011: The Right 2 Know Campaign is asking “What information should be made public to improve everyday life in South Africa?”

“Every day we meet ordinary South Africans who do not have access to information that they need, whether it’s city planners keeping communities in the dark or corrupt dealings that are being swept under the carpet. That’s why we’re asking every one of our supporters to tell us: “What information should be made public to improve everyday life in South Africa?”

The Right2Know campaign is working with partner organisations, communities and individuals to draw up a list of secrets that are obstructing people from fulfilling their rights. We will use this as a platform to campaign for transparency and openness in South Africa. The list will be drawn up in a series of mass meetings in Gauteng, KZN and the Western Cape featuring ‘testimonies’ from communities and organisations on the info they need and the secrets they face.

The purpose behind the Secrets List is twofold: first, to document existing needs in civil society and community-based organisations regarding information-access; second, to provide a rallying point for organised attempts to access that information.”

For more information see the The Right 2 Know Campaign website

17 March 2011 Parliament has re-established the special committee tasked with processing the Bill after an almost two-month long impasse over its status.

The legislature adopted a motion to reappoint the committee with the same membership and mandate as its predecessor and instructed it to take into account all the work done previously. The new committee is required to report to Parliament by 24 June 2011. The

15 February 2011 Right2Know protest angers ANC.

ANC MP’s demand an investigation after members of the Right2Know campaign seated at the back of the parliamentary committee room staged a protest, pulling on masks depicting the face of State Security Minister Siyabonga Cwele and raising handwritten placards reading ‘Cwele, Minister of Secrets’. This incident took place shortly after opposition parties, the DA, ACDP and IFP, walked out in protest, arguing that according to Parliament’s rules, Acting Speaker Nomaindia Mfeketo deicision to extend its lifespan had been unprocedural.

28 January 2011 Committee lifespan extended.

The life of the special ad hoc committee dealing with the bill officially ends on January 28 but was extended by Acting Speaker Nomaindia Mfeketo a week later.

27 January 2011 Parliamentary committee meeting

State Law Advisor opinion on 3rd party notification under Promotion of Access to Information Act. The Chairperson tabled, but ruled that no discussion currently be conducted on, a list that had been prepared by the Institute for Democracy in South Africa (IDASA) of the organs of State to which the Protection of Information Bill (the Bill) would apply. The Members noted that the Committee would cease to function after 28 January, but the Chairperson indicated that he would brief the Committee fully on the developments on the following day. A request from an IFP Member that the Committee must compile a report on the work done to date, possibly including assurances on the public interest issues, would also be answered on the following day. However, the Chairperson fully set out the processes and procedures followed by the Committee, and was satisfied that they were constitutionally correct.

The Office of the Chief State Law Advisor (OCSLA) reported back on the research it had conducted on the references to third parties in the Promotion of Access to Information Act (PAIA), which focused on the procedures for internal appeal set out in Sections 74 to 77, and in particular the circumstances in which a third party must be informed of, and given the opportunity to object to, an appeal for release of information that was previously refused. The definitions of “relevant authority”, “public body”, and “third party” were set out and discussed. It was noted that a third party could, in the case of information about a public body, include the government of a foreign state, an international organisation or organ of that government or organisation, but would exclude the requestor and the public body, whilst in respect of information about a private body, it referred to any person other than the requestor, with the exception that only a natural person was contemplated under Sections 34 and 63. Section 76 set out the relevant sections in respect of which the authority must inform a third party, and what information would be given to the third party. The grounds on which information could be withheld were set out, and the internal limitations where an information officer must refuse access to a record, as set out in Section 76, were described. It was noted that the doctrine of privilege was well established, that internal appeal procedures provided a relatively rapid and cheap procedure, and there was a previous proposal that guidelines and written policies must be drawn by organs of State. The mandatory and discretionary grounds for refusal of access to a record of a public body, under Sections 34 and 35, were set out, and it was noted that Section 46 provided a limited public interest override. The Bill provided that no classified information could be made available until declassified. An information officer could refuse access to any information relating to records that could reasonably be expected to cause prejudice in the defence, security and international relations arenas. Severance was provided for under Section 28 so it would be possible to release parts of records only.

Members from the DA and ACDP were not sure that there would necessarily be a problem, in light of Section 41, and the narrow limitations contained in Section 46. The DA enquired if a problem had been raised by any state security agency, and the ACDP enquired if any practical examples could be given of current problems. They thought there was probably sufficient protection, that third parties should usually be aware of the information already, and the position of police informants was catered for in other legislation. The IFP believed the crux of the matter to lie with the necessity to declassify information before it could be disclosed, and the position of information officers who may not have the required security clearance was briefly raised. The IFP reiterated its view that it made sense to adopt a dual system, because of the nature of classification, and that it might be necessary to clarify the wording, although other parties had indicated their preference for a split system (with all requests for access to information to be brought under PAIA) if possible. The Chairperson asked the State Law Advisers to continue further whether it was possible that a third party might be unaware of the original request, whether a third party could include an informant, and whether it was possible to have multiple third parties, and whether, in the Mail and Guardian case, the investigating judges and foreign government officials could have been included, and pointed out that it did not necessarily follow that whenever information was refused, it would be secret or classified. This opinion would be delivered on the following day. A request to discuss public domain and public interest issues would be granted, at an appropriate time, and Members would also, at the appropriate time, be given the opportunity to discuss the list of organs of State.

27 January 2011 Secrecy bill to apply to 1001 organs of state.

Idasa releases a report identifying 1001 organisations that will qualify as ‘organs of state’ as defined by the Bill. One of the issues of greatest concern for citizens opposing the Bill is its application to all organs of state - which means that all organs of state will be able to classify documents if they believe them to be in the interests of national security. Questions have arisen during deliberations which called in to question just how far the scope of this Bill would be. However, in retort to this, the parliamentary chairperson Mr Cecil Burgess had previously dismissed calls for that information to be compiled, saying it would be like “counting grains of sand in the Sahara desert”. Fortunately, the Institute for Democracy (Idasa) fundamentally believed in the relevance of such investigations and undertook its own audit to determine which entities would fall under the scope of the Act. The results were worrying. There are potentially 1 001 entities that would constitute ‘organs of state’. The Bill would give the power to make secrets to such entities as universities, state-owned corporations such as Eskom, Johannesburg City Parks, the Brakpan Bus Company, Rotondo Walnuts (Pty) Ltd, Artscape, the South African Weather Service, the Ugu District Municipality and the Voortrekker Museum.

20 January 2011Parliamentary committee meeting.

The Office of the Chief State Law Advisor provided a written opinion on three matters. The first question was whether legislation could provide for a dual system of access to information under the Protection of Information Bill (the Bill) and Promotion of Access to Information Act (PAIA). It was clarified that the provisions of PAIA indicated that this was never intended to be the sole piece of legislation under which requests for access to information must be made. The Committee would need to take a policy decision whether it wished to provide for a dual system of access, which would not offend against the Constitution, although it might result in forum shopping and the possibility confusion as to which legislation applied. If this route were to be adopted, then the schedule to PAIA must be amended. Alternatively, the Committee could decide to provide for access to information, including information protected by the Bill, by way of PAIA, whilst the Bill could deal with classification and declassification and information protection only.

The second question was whether a person classifying information under the Bill could also properly be the information officer under PAIA who would consider requests for access to information. The State Law Advisors noted that in practice, under the Minimum Information Security Standards (MISS), the head of a State department, or a person authorised to act on his or her behalf, would prepare, generate, or initially see to the classification of a document (“the author”), and would also grade and re-grade document classifications. Depending on the circumstances of each case, the department concerned, and security clearances, a policy decision would be taken whether the information officer could attend to classification or declassification. The State Law Advisors recommended that the decision on who should declassify should be left to the head of the organ of State. The Bill could incorporate provisions for creation of written policies to ensure that decisions were exercised properly. Ideally, the information officer should work with the declassifying officer in considering requests for access. Points made by the Supreme Court of Appeal in President of RSA v Mail & Guardian Media were explained. The provisions of PAIA relating to refusal of requests, and Sections 11, 34 and 35, were explained. The reason for classification was to ensure that documents were protected from unauthorised alteration, destruction, disclosure or loss, and to ensure that only those with the relevant security clearance had access to classified documents outside the procedure provided for in PAIA.

The third question concerned the identity of the “organs of State” to which the Bill applied. The State Law Advisors indicated that there was no finite or closed list, and referred to the definitions in the Bill and Section 239of the Constitution. The tests applied by the Court in previous cases were outlined.

Members agreed that it was difficult to determine who would be an organ of State, as it was possible that this might also include commissions tasked by the Executive, and even universities and law societies. The Democratic Alliance (DA) members were adamant that such a list should be provided to assist the deliberations, but the ANC did not believe that it was relevant or necessary; pointing out that no such schedule was included in PAIA or even the Constitution. The DA urged that the application of the Bill should be limited, that the Department of State Security should not be permitted to have any authority over non-intelligence areas, and also questioned whether the Department would be able to implement the Bill. The State Law Advisors pointed out that the original wording of the Bill did allow for exemptions. If the Committee accepted that someone should exercise oversight over proper protection of information, it would need to debate who appropriately would do so. Members debated briefly whether, in principle, it was correct or desirable for the information officer also to classify, but did not reach a final decision. The State Law Advisors expanded further on the assertion that PAIA was never intended to be the sole source of getting access to information.

17 January 2011Parliamentary committee meeting.

The Office of the Chief State Law Advisor presented Working Document 2, see below, another draft of the Protection of Information Bill (the Bill), explaining that whilst this document contained many of the proposed changes that had been explained on the previous day, the main point of departure was in the wording of Chapter 7. Working Document 1 had provided for a dual system whereby requests for information could be brought either under the Bill or under the Promotion of Access to Information Act (PAIA). Working Document 2 limited the Bill to technical aspects, detailing the procedures for classification and declassification, and consequential matters, but provided for all requests for information, including for classified information, to be made in terms of PAIA. It was clarified that where alternative definitions were still to be decided, they were not always included in Working Document 2, as the two documents must be read together. In Working Document 2, the definition of “head of organ of state” had been removed, to bring the procedures in line with PAIA’s requirement that requests be dealt with by an “information officer” and the term “head of organ of State” had been substituted with “information officer” in several clauses. However, the definition of “information officer” in this Bill had been amplified with references to the national key points. New definitions were provided for “the relevant authority” and “the requestor”. Clause 24 set out the procedure for a request for access to classified information, and Clause 24(2) stated that if the request for access was granted, then the information officer must declassify the relevant information, whilst subclause 24(3) provided that if information had been declassified, it must be disclosed on request.

18 January 2011 Parliamentary committee meeting.

The Deputy Chief State Law Advisor presented Working Document 1, see attached, a new draft of the Bill incorporating changes that had been suggested either by the Committee in its previous meetings or by the Chairperson, following questions asked in Parliament. This document followed the format of the original Bill. The Preamble now contained a new provision affirming the constitutional framework for the protection and regulation of access to information was subject to the authority of Parliament and the national executive, as contemplated in Section 198(d) of the Constitution. New definitions were provided for “information peddler”, “national security“, “request”, “status review” and “top secret”. The objects of the Act were included in Clause 2, and new Clauses 3(1)(c) and 3(3)(b) clarified the application of the Bill. Further alterations were highlighted in Clauses 4, 5, 6(a), 8, and 9. The word “alteration” was included in Clause 11 and other relevant places, and Clause 12 was amplified by references to “valuable information” and “information deemed to be classified”. Clause 13 was brought in line with unlawful disclosure definitions. Clause 14 had been amended to try to clarify the delegation of authority. Consequential amendments were made to Clauses 15(1)(i), 17(2), and 19(1). A new Clause 20 explained the purpose of the Chapter, and clarified the dual “route” for classified information, by facilitating access to classified information using the provisions of this Bill, or providing a requester with an alternative process to obtain classified information by using the Promotion of Access to Information Act. Consequential amendments were made to Clause 21, Clause 26(2), and 28(4). Clause 31, relating to offences and penalties, was redrafted and some of the definitions that had caused concern in the original Bill had been refined and moved to this Chapter. Clause 38 had been reworded, and also now made provision for a fine. Certain subclauses were to be deleted from Clause 48.

 

Downloads

• Working_Document_1_2011.rtf

  Working Document 1, 2011

• Working_Document_2_2011.doc

  Working Document 2, 2011