CENTRE FOR CONFLICT RESOLUTION / CEASEFIRE CAMPAIGN

CENTRE FOR CONFLICT RESOLUTION / CEASEFIRE CAMPAIGN
COMMENT ON THE OPEN DEMOCRACY BILL WITH REFERENCE TO
NATIONAL SECURITY, DEFENCE AND ARMS TRADE

Laurie Nathan, Centre for Conflict Resolution
14 August 1998

Commissioned by the Ceasefire Campaign for submission to the Portfolio Committee on Justice

[PMG note: This document has been scanned and may contain some optical recognition errors]

INTRODUCTION
This paper considers the Open Democracy Bill with specific reference to the question of public access to information regarding national security, defence and arms trade.

Part 1 of the paper first presents a political rationale for open government and access to information held by the state, and then applies this rationale to the areas of security, defence and arms trade. The aim is to establish a framework and criteria for assessing the validity of any restriction on access to information in these areas.

Part 2 evaluates the relevant provisions of the Bill against these criteria, identifies a number of shortcomings, and proposes certain amendments to the draft legislation. It is argued that the Bill, which contains a number of grounds for refusing public access to information held by the state, does not mitigate properly the threat posed thereby to good governance and democracy, and that this defect should be remedied by strengthening Section 44 of the Bill.

PART 1: THE POLITICAL RELEVANCE OF OPEN GOVERNMENT
Good governance and democracy
In assessing the provisions of the Open Democracy Bill, it is not sufficient merely to assert the importance and constitutional endorsement of the principle of open government and the right of public access to state-held information. It is also necessary to elaborate on the political significance of these issues so that the implications of any restriction on access to information can be appreciated fully.

One of the cardinal features of a democracy is that the state is accountable to the citizenry. Members of the executive and state departments hold office not by right or by force but on the basis of a mandate from citizens. Through regular elections, the oversight function of parliament, a free press and other mechanisms, government is held accountable for the fulfillment of that mandate, the exercise of its powers and the utilisation of public funds. These issues are so fundamental that a state which is not accountable to the public cannot be regarded as democratic.

Transparency is not a sufficient condition for ensuring accountability but, as a matter of logic and practicality, it is a necessary condition. If parliament and the public lack adequate information about state policies, decisions and actions, they have no basis for holding government accountable for its conduct and misconduct. This perspective is reflected in the interim Constitution of 1993: "Provision shall be made for freedom of information so that there can be open and accountable administration at all levels of government' [Constitutional Principle IX, emphasis added]

A second cardinal feature of democratic political systems is that they constrain the power of the state. They seek deliberately to prevent the state from exercising power in a manner which undermines the rights and freedom of citizens or is in any way discriminatory, capricious or venal. Accordingly, a variety of legal and institutional mechanisms serve to regulate the exercise of power and restrain its abuse. One of these mechanisms is constitutional endorsement of transparency and freedom of information, without which abuse of power may go undetected and therefore unchecked.

The South African government has argued on occasion that sensitive aspects of defence and foreign policy should be exempt from public disclosure and that citizens should trust the executive to make sound judgements on their behalf. This position reveals a misunderstanding of democracy. Democratic political systems are based on precisely the opposite premise, namely that citizens should have a healthy suspicion of those with power and the means to abuse that power (irrespective of the personalities who hold office at any time) . This premise is the rationale for constructing the edifice of institutional checks and balances that characterise democracies.

It follows from the above that transparency and access to information are indispensable facets of democracy and good governance. They are critical means of ensuring that the state is accountable for its conduct and misconduct; that it does not infringe the rights of citizens; that its officials do not abuse their power in any other way; that citizens enjoy the highest level of freedom; and that they are able to participate actively in debates on public policy. The democratic principle of 'government with the consent of the governed' quite obviously implies informed rather than blind consent.

The first objective of the Open Democracy Bill is "to give effect to the constitutional right of access to any information held by the state by providing public access, as swiftly, inexpensively and effortlessly as reasonably possible, to that information without jeopardising good governance, privacy and commercial confidentiality" [Section 3 (1) (a), emphasis added] . The qualification emphasised here is necessary for a variety of practical and political reasons but it should always be viewed in the light of the more fundamental fact that the right of access to information is an essential requirement of good governance. Good governance will not prevail in the absence of accountability, and accountability will not exist without adequate access to information.

In summary, to the extent that restrictions are placed on access to information about the functioning of the state, then to that extent democracy and good governance may be compromised. The lower the level of openness regarding government affairs, the greater the dangers of abuse of power, infringement of basic rights, and corruption.

Accepting that in certain instances there will be valid grounds for denying access to state-held information (eg the right of privacy and the administration of justice), the following conclusions can be drawn from the preceding discussion:
* The principles of open government and access to information are not adjuncts to democracy but integral components thereof. They reflect both the right and the need of citizens to know how the affairs of government are being managed.

* Democracy therefore requires an unequivocal emphasis on freedom of information (with certain exceptions) rather than an emphasis on secrecy with certain exceptions)

* The burden of justification lies with those who wish to restrict the principles, in law and in practice, rather than with those who seek to uphold them.

* Every limitation of the principles has to be assessed in terms of its actual or potential threat to good governance and democracy. The harm which the limitation is intended to prevent must be weighed against the risks of abuse of power, violation of fundamental rights and freedoms, and corruption. In respect of foreign policy, the risk of violating international law and norms is also relevant.

* These risks constitute criteria by which any limitation of the principles should be judged. If the risks are low, then the political import of the limitation may be small. If the risks are high, then the motivation for the limitation should be not only sound but also sufficiently compelling.

* In seeking to balance the principles against some particular need for non-disclosure, it will consequently be necessary to prioritise certain rights and interests over others. For example, the need for commercial confidentiality may be entirely valid but it cannot enjoy precedence over, say, the right to life. These issues are considered further below with reference to the Open Democracy Bill.

National security and defence
Democratic governments sometimes maintain that while the principles and rights outlined above are important in general, they have limited applicability with respect to security and defence. In these areas, the argument runs, a substantial measure of secrecy is required to enable the state to protect its people, sovereignty and territory.

This argument proceeds from an incorrect point of departure. The principles of transparency and accountability have special relevance to security institutions because of the massive power at their disposal. That power may be intended to thwart external and internal threats to constitutional rule and the security of citizens, but it can also be misused to interfere in the democratic political process, undermine the security of citizens, threaten an elected government and destroy constitutional rule.

It is therefore necessary to ensure that the security services and their exercise of power are subject to proper control. The key principle of democracy in this regard is that the armed forces and other security agencies are subordinate and accountable to the elected and duly appointed civilian authority. That authority, in turn, is accountable to citizens and their elected representatives.

More specifically, parliament and the public require some tangible assurance that the security services are performing their duties according to democratically agreed policy decisions rather than pursuing an agenda which is contrary to the public interest. This assurance is typically provided through the oversight function of parliamentary committees; ministerial control and accountability to parliament; parliament's authority to approve, amend or reject security and defence legislation and budgets; and the scrutiny of civil society and a free press.

As noted earlier, accountability necessarily entails a sufficient degree of transparency and provision of information. Formal mechanisms of control and oversight will be frustrated or rendered completely ineffectual if critical information is absent, incomplete or misleading. Secrecy which is purportedly intended to ensure the security of citizens can have precisely the opposite result.

Commenting on the need to revise the Defence Act, the former Chief of the South African National Defence Force indicated clearly that freedom of information is not inimical to the defence of the country: "Laws must be defined in such a way that they restrict denial of access to information to the minimum possible and only leave [undivulged] the absolutely essential matters which may be truly to the detriment of the State" [quoted in Freedom of Expression Institute, 'Submission to the Cameron Commission on Arms Trading', Cape Town, June 1995, pg. 1].

On the subject of freedom of information, the 1996 White Paper on Defence for the Republic of South Africa contains the following provisions:
"Defence policy and military activities shall be sufficiently transparent to ensure meaningful parliamentary and public scrutiny and debate, insofar as this does not endanger the lives of military personnel or jeopardise the success of military operations" [Chapter 2, paragraph 11.12].

"The [Department of Defence] recognises that it has a positive duty to provide sufficient information to ensure adequate parliamentary and public scrutiny and debate on defence matters" [Chapter 3, paragraph 8].

Finally, it is worth noting that South Africa has defined 'national security' in a progressive fashion. The security of people - that is to say human security rather than state security - is now viewed as the "paramount concern" and as encompassing "the consolidation of democracy", "the protection of fundamental rights" and "the participation of citizens in the process of governance" [Chapter 2, White Paper on Defence] . 'National security' can thus no longer be invoked as a broad catch-all to justify prohibition of information on the security services and armaments. Where disclosure of such information would reveal a violation of constitutional rights, non-disclosure would be contrary to 'national security'.

Arms exports
The political motivation for access to information, outlined above, has great relevance to arms exports for several reasons. First, weapons and ammunition constitute a distinct category of goods. Unlike other commodities which are traded and used, they are designed for the threat and use of force. They may be utilised for the illegitimate purposes of external aggression and internal repression, as well as for the legitimate aim of self-defence. They may also provoke and exacerbate regional conflict, contributing to widespread death and injury. In short, arms trade poses a substantial risk to life and fundamental rights and freedoms.

Second, whether a country sells arms for the purpose of self-defence, aggression or repression by the recipient state is a matter of public interest. Indeed, sectors of the South African public have expressed deep concern over this issue. Distress over the 'Wazan debacle' in 1994 was evident in numerous press articles and editorials, as well as in papers submitted by churches and human rights bodies to the Cameron Commission of Inquiry into Arms Trade. Political parties called on Parliament to investigate the debacle.

Third, there is considerable potential for corruption and abuse of public funds given the vast sums involved in arms deals, a thriving black market and unscrupulous dealers. In uncovering official corruption and negligence, the Cameron Commission underlined the importance of independent scrutiny of export decisions and procedures. Its First Report, dealing with the Wazan transaction, confirmed the truism that while individual misconduct and institutional irresponsibility may occur in any circumstances, they are likely to flourish in conditions of secrecy.

Fourth, there is broad agreement that greater transparency in arms transfers would serve the interests of international peace and security. For example, the motivation for establishing the United Nations Arms Register was put in these terms: "increased openness and transparency in the field of armaments could enhance confidence, ease tensions, strengthen regional and international peace and security, and contribute to restraint in military production and the transfer of arms" [UN General Assembly Resolution 46/36 L of 9 December 1991].

South Africa has made a policy commitment to comply with the reporting requirements of the UN Register, to promote the inclusion of smalls arms transfers, and to encourage the establishment of a regional arms register in Southern Africa [paragraphs 37-38, chapter 8, White Paper on Defence] . The requirements of the UN Register entail disclosing the salient features of arms exports in seven designated categories of major weapons systems. Nonetheless, of the twenty one countries which had reported on the 1994 period by November 1995, South Africa alone stated that "confidentiality claims in the specific contracts preclude publication of further details" [Basic Papers, No. 13, 3 November 1995, pg. 5]

The South African government has often claimed that nondisclosure clauses in sales contracts prevent it from divulging information about arms transfers. This is an astonishing claim. It elevates a contractual obligation entered into freely with another state above the executive's constitutional duty of accountability to Parliament [Section 92 (2) of the Constitution] . More invidious still, it creates the danger of favouring the exigencies of commerce over concerns about the right to life.

In any event, there are few secrets in the world of arms trade. The UN Arms Register, the vigilance of international media and the expertise of research bodies and trade publications ensure that the vast majority of weapons transfers are documented publicly. It would be antithetical to democracy if South Africans were, as in toe apartheid era, to learn about aspects of their country's foreign policy from sources other than government.

Constitutional Provisions
In concluding this part of the paper, it should be noted that the Constitution abounds with references to accountable government. These appear, inter alia, in the provisions on founding constitutional principles [Section 1 (d)] ; the principles of co-operative government [Section 41 (1) (c)] the powers of the National Assembly in respect of executive organs of state [Section 55(2) (a)] ; the accountability of Cabinet [Section 92(2)] ; the values governing public administration in all spheres of government [Section 195 (1) (f) ] ; and the security services [Section 199(8)].

Similarly, the Constitution is replete with references to an open society and open government. These appear in the Preamble and the provisions on founding constitutional principles [Section 1 (d)] ; limitation of rights [Section 36(1)]; the interpretation of the Bill of Rights [Section 39(1) (a)] ; the principles of co-operative government [Section 41 (1) (c)] ; public access to the National Assembly [Section 59 (1) (b)] ; the values governing public administration in all spheres of government [Section 195(1) (g) ] ; and the security services [Section 199(8)].

Section 32(1) provides that "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". Section 32 (2) provides that "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". The Open Democracy Bill is the legislation contemplated here.

PART 2: OPEN DEMOCRACY BILL
Exemption of Cabinet
The Open Democracy Bill (hereinafter 'the Bill') excludes Cabinet from the definition of a "governmental body" from which information may be sought [Section 1 (1) (v) (b)] . The implications of this exclusion are staggering, not least in terms of security, defence and arms trade matters addressed by Cabinet. To the extent that access to information is a pivotal means to ensuring accountability, Cabinet's accountability on these matters is subject to its own discretion and is thereby diluted considerably.

The exclusion is of doubtful constitutional validity. Constitutional Principle IX of the interim Constitution of 1993, the harbinger of Section 32 of the 1996 Constitution and the Open Democracy Bill, states that "provision shall be made for freedom of information so that there can be open and accountable administration at all levels of government" [emphasis added] . Section 92 (2) of the Constitution provides that "members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their towers and the performance of their functions".

While full disclosure of every aspect of Cabinet business would be contrary to the interests of good governance, it could be argued that Cabinet is afforded sufficient protection by the grounds for refusing access to information contained in Chapter 2 of the Bill. If these grounds were deemed inadequate, a further provision could be added to accommodate the Specific concerns of Cabinet.

Grounds for refusal of access to records
The provisions of Chapter 2 of the Bill set out the grounds on which the information officer of a governmental body must or may refuse a request for information held by that body. The following discussion considers the reasonableness of those grounds which, in the view of this writer, might be applied to restrict access to information in the areas of security, defence and arms trade.

Safety of individuals and security of structures and systems
Section 33 of the Bill provides that the information officer of a governmental body may refuse a request for access to a record of that body if its disclosure "would be likely (a) to endanger the life or physical safety of an individual; or (b) seriously to endanger the maintenance or enforcement of methods for the security of a particular building, Installation or information storage, computer or communication system".

is a wholly reasonable ground for refusing access to information. While the provision could be misapplied in practice, it is not inherently flawed.

Law enforcement
Section 34(1) of the Bill provides that the information officer of a governmental body may refuse a request to access to a record of that body if such disclosure would be likely, inter alia, to prejudice the effectiveness of methods for preventing, detecting, investigating or suppressing offences; impede the prosecution of an alleged offender; prejudice the investigation of any offence; result in the intimidation of a witness.

These are valid grounds for refusing public access to state-held information. The possibility that these grounds might be used to prevent disclosure of some illegality or injustice in the process of law enforcement is addressed below in relation to Section 44 of the Bill.

Defence and security, including intelligence matters
Section 36(1) of the Bill provides that the information officer of a governmental body may refuse a request for access to a record of that body if its disclosure would be likely substantially to harm the defence or security of the Republic by-
(a) frustrating any measure for the prevention, detection or suppression of (i) aggression against the Republic; (ii) sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic...; (iii) an activity aimed at changing the constitutional order of the Republic by the use of force or violence; or (iv) a foreign or hostile intelligence operation;

(b) jeopardising the effectiveness of a governmental body, branch of that body or person responsible for the prevention, detection or suppression of an activity contemplated in paragraph (a) (I) , (ii) , (iii) or (iv) by disclosing its or his or her capabilities, deployment or performance;

(c) jeopardising the effectiveness of (i) arms; or (ii) other equipment... used, or intended to be used..., for preventing, detecting or suppressing an activity contemplated in paragraph (a) (i) , (ii) , (iii) or (iv) by disclosing their or its capabilities, quantity, deployment or performance;

(d) jeopardising the effectiveness of methods or equipment for collecting, assessing or handling information used for the prevention, detection or suppression of an activity contemplated in paragraph (a) (i) , (ii) , (iii) or (iv) ; or
(e) disclosing the identity of a confidential source of information used for the prevention, detection or suppression of an activity contemplated in paragraph (a) (i) , (ii) , (iii) or (iv)"

The virtue of this Section 15 that it avoids reliance on the vague notion of 'national security' as a basis for denying access to information on security, defence and intelligence. Instead, the Section specified throughout the types of harm which non-disclosure is intended to prevent: 'aggression', 'sabotage', 'terrorism', and use of violence to change the constitutional order etc.

These terms can obviously be interpreted in a fashion which is spurious and contrary to the public interest; this was certainly the case in apartheid-era legislation. Yet any alternative wording would similarly be subject to manipulation. The terms employed in Section 36(1) (a) are not inherently flawed if they are defined literally.

The terms 'frustrating' and 'jeopardizing the effectiveness of..' are possibly too broad. In any democracy the functions of the security services are to some extent frustrated, and their effectiveness jeopardised, by the imperatives of accountability, freedom of expression and freedom of information. These problems can be eliminated only by resort to authoritarianism.

Notwithstanding the above, the relative broadness of the terms is constrained by the requirement that disclosure of information may be denied only if such disclosure "would be likely substantially to harm the defence or security of the
Republic". This phrase could be reworded to read "would be likely to harm substantially the defence or security of the Republic" so that 'substantially' more clearly qualified 'harm' rather than 'likely'. Further, the phrase could be strengthened by following the approach of courts in the United States on matters of national security: "would, with a high degree of certainty, harm substantially the defence and security of the Republic

The necessity to prevent Section 36(1) from being used to cover up contraventions of the Constitution, domestic legislation and international law is addressed below with reference to Section 44 of the Bill.

International relations
Section 37(1) (a) of the Bill provides that the information officer of a governmental body may refuse a request for access to a record of that body if its disclosure would be "in contravention of an obligation imposed on the Republic by international law".

While this provision can be misused in practice, as appeared to have occurred in the Basson case, it is not intrinsically flawed. In any event, international law imposes such obligation only in the most exceptional circumstances (as in the context of arms control regimes in order to avoid proliferation)

Section 37(1) (b) of the Bill provides that the information officer of a governmental body may refuse a request for access to a record of that body if the disclosure would be likely to cause substantial harm to the capacity of the Republic to maintain or conduct relations in the best interests of the Republic with another state or an international organisation".

It is possible to imagine circumstances where the need to avoid such harm is entirely valid and should be protected. or example, South Africa may become involved in mediating an inter- or intra-state conflict and give an undertaking to he disputant parties that it will respect the confidentiality of the process. A breach of that undertaking could damage irreparably South Africa's credibility as an international mediator.

However, substantial arm may also arise In unsavoury circumstances where, or example, South Africa has contravened some International norm, given support to an authoritarian state, or fuelled a regional conflict through injudicious arms sales. The harm caused by South Africa here would outweigh the harm arising from disclosure thereof.

The Bill should therefore not provide a basis for shielding government from disclosure of actions which are regarded by citizens or the international community as misconduct. If this were the case, then the restraint that accountability and freedom of information place on international misconduct would be diminished greatly. These concerns are addressed below with reference to Section 44 of the Bill.

Economic interests of the Republic
Section 38 (1) (c) of the Bill provides that the information officer of a governmental body may refuse a request for access to a record of that body if the disclosure would be likely substantially to jeopardise the financial welfare of the Republic by prematurely disclosing a contemplated international trade agreement or a sale or acquisition of immovable or moveable property.

Section 38(2) (c) provides that the information officer of a governmental body may refuse a request for access to a record of that body if the record contains "information the disclosure of which would be likely to put a governmental body at a disadvantage in contractual or other negotiations or cause it prejudice in commercial competition".

These and other provisions of Section 38 are not inherently invalid but they could be used to prevent public disclosure of arms sales contracts. As argued earlier, such nondisclosure would inhibit accountability in a critical area, posing a severe threat to human rights and international peace and security. Whereas government has a constitutional duty of openness and of accountability to Parliament, it has no comparable duty to sell weapons.

Because arms and ammunition are unlike other types of commodity, they should be treated as a special case. As proposed by the Cameron Commission, certain security and commercial concerns could be addressed by withholding from public disclosure sensitive technical details about the armaments in question while still providing sufficient information to allow for informed parliamentary and public comment. This information should include, most importantly, the name of the importing country.

Section 44: Mandatory disclosure in the public interest
As noted above, Chapter 2 of the Bill sets out the grounds on which the information officer of a governmental body must or may refuse a request for access to a record held by that body. Notwithstanding the existence of any such grounds in a particular case, however, the officer is obliged to accede to the request if the considerations outlined In Section 44 of the Bill are applicable.

Section 44, dealing with 'mandatory disclosure in the public interest' , is consequently of the utmost importance in prioritising among conflicting rights and interests. could provide a basis for avoiding the predominance of the grounds for refusing access to information over the right of access to information. It could therefore provide a basis for mitigating any threat that the grounds for refusing access might pose to good governance and democracy.

By way of illustration, Section 31(1) (a) of the Bill provides that an information officer may refuse a request for access to a record which contains trade secrets of a third party. If any such record contains evidence of substantial abuse of authority, illegality or injustice, however, then the officer is obliged to accede to the request [Section 44 (1) (a)]

In the view of this writer, then, Section 44 could constitute a basis for addressing the concerns raised earlier about the possible interpretation and misapplication of certain grounds for refusing access to information. From a procedural perspective, the Section has the potential benefit of providing clear guidelines to an information officer in the exercise of his or her discretion, to those who wish to challenge the denial of access to information, and to courts which hear such challenges. For these reasons, a number of proposals follow for strengthening the section and resolving Its anomalies.

What is in the public interest?
Section 44(1) enables an information officer to override the grounds for refusing access to information covered by the provisions of the Bill in respect of invasion of privacy; he requester's health; third party commercial information; an individual's life or physical safety; aspects of law enforcement; and legal proceedings.

Section 44(1) states that an information officer must grant access to a record contemplated in the above provisions if-
(a) disclosure of the record would reveal evidence of substantial -
i) abuse of authority, illegality or neglect In the exercise of a power or performance of a duty of an official of a governmental body;
ii) injustice to a person including a deceased individual;
iii) danger to the environment or the health or safety of an individual or the public; or
iv) unauthorised use of the funds or other assets of a governmental body; and
(b) giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for non-disclosure in the provision concerned" [emphasis added]

The use of the word 'and' between subsections (a) and (b) above is striking and incongruous. It implies that the two subsections constitute separate considerations. In other words, an information officer can decide that the public interest does not require disclosure of a record which reveals evidence of illegality, injustice or unauthorised use of funds! surely the disclosure of such evidence is necessarily in the public interest? If not, the potential for covering up criminal activity and substantial abuse of authority or injustice would be considerable.

The problem identified here would be resolved if the word 'and' between Section 44(1) (a) and Section 44(1) (b) were replaced by the word 'or' . Yet, as indicated below, the problem goes further than this.

Section 44(2) enables an information officer to override the grounds for refusing access to information covered by the provisions of the Bill in respect of records supplied in confidence; the security of structures and systems; aspects of law enforcement; defence and security; international relations; South Africa's economic interests; and the operations of governmental bodies.

Section 44(2) states that an information officer must grant access to a record contemplated in these provisions "if giving due weight to the importance of open, accountable and participatory administration, the public interest in the disclosure of the record clearly outweighs the need for nondisclosure in the provision concerned"

The consideration covered by Section 44(1) (b) 5 thus repeated here but there is no mention of the specific conditions covered by Section 44(1) (a). The implication of this omission is that disclosure of substantial evidence of illegality and injustice etc is not necessarily in the public interest. Such evidence would compel disclosure in respect of certain types of information but not others. This distinction makes little political, legal or logical sense.

By way of illustration, Section 34(1) (a) (I) read with Section 44(2) would allow an information officer to refuse access to a record regarding methods of detecting a criminal offence even where disclosure of such record would reveal evidence that illegal methods are being employed. This is an extraordinary discretion to confer on an information officer.

In light of the above, it is proposed that the Bill be amended so that every ground for refusing access to information must be overridden if either the conditions envisaged by Section 44(1) (a) or those envisaged by section 44(1) (b) apply. An alternative remedy would be to require the information officer in these circumstances to refer the matter to a court or to the Human Rights Commission.

Broadening the 'public interest'
If Section 44 is truly to serve the public interest and prevent the grounds for non-disclosure of information from posing a threat to democracy and good governance, then the conditions giving rise to mandatory disclosure of information, contained in Section 44 (1) (a) , should be extended to include the following underlined clauses:
'Despite any other provision of this Act... the information officer of a government body must grant a request for access to a record if-
a) disclosure of the record would reveal evidence of substantial -
i) abuse of authority, illegality [etc] ; ...
v) deviation from the official policy of a government body;
vi) infringement of the constitutional rights and freedoms of South African persons, or of the rights and freedoms conferred by the Universal Declaration of Human Rights on all people; or
vii) deviation from international law or an international convention or treaty to which South Africa is party.

The motivation for the above additions is as follows:
Deviation from official policy. Parliament and the public naturally expect governmental bodies to abide by official policy. They should therefore be informed of any substantial deviation from that policy. If a governmental body deviates from policy substantially but secretly, then its actions may be entirely arbitrary and render the policy a misrepresentation to the public.

These considerations are especially important where, as in the case of the arms trade policy contained in the White Paper on Defence, the policy has been approved formally by Parliament. In these circumstances a substantial but secret deviation by a governmental body would betray a mandate from elected representatives and undermine their function and authority.

Infringements of rights and freedoms. The infringement of fundamental human rights and freedoms is a matter of great legal, political and humanitarian significance. Where these rights and freedoms are entrenched in the Constitution, all organs of state are obliged to respect, protect, promote and fulfil them [Section 7(2) of the Constitution]. The disclosure of evidence to the contrary should therefore outweigh any need for non-disclosure of information.

This proposed addition to the Bill would be relevant to arms exports. The need for commercial confidentiality in respect of such exports cannot be maintained where the armaments will be used for acts of aggression or repression. It is with arms exports in mind that the proposed addition refers not only to the South African constitution, which does not protect the inhabitants of other countries, but also to the Universal Declaration of Human Rights to which all member states of the United Nations are bound.

International law. It would be distinctly contrary to the public interest, and arguably contrary to the interests of the state, if contraventions of international law and norms by a governmental body went undisclosed because of some need for non-disclosure.

Necessity of harm
The previous draft of the Bill included, as Section 46, the following provision: "No provision in this Chapter shall be interpreted to require or permit the information officer of a governmental body to refuse a request for access if the harm that that provision is intended to guard against could not reasonably be expected to occur if the request was granted".

It is unclear why this provision has been omitted from the current draft of the Bill. It should be reinserted so as to make clear the necessity for an information officer to consider, on a case--by-case basis, the potential harm which may be caused by disclosure of a particular record.

Open meetings
The previous draft of the Bill contained provisions on the right of access to meetings of governmental bodies. These provisions have been omitted from the current draft.

In the view of this writer, public access to such meetings would be inappropriate since it would inhibit government officials from engaging in free discussion in the process of policy formulation and decision-making. These considerations underlie Section 39(1) of the Bill which deals with non-disclosure of information regarding 'operations of governmental bodies'
However, the Bill should identify the grounds on which the National Assembly and the National Council of Provinces may exclude the public from a sitting of one of their committees [c/f Sections 5-9(2) and 72 (2) of the Constitution]

Offences
The offences contained in Section 85 of the Bill should include any failure by an information officer to comply with he provisions of the Bill.