Protection of Information Bill [B6-2010] Public hearings day 2
The Committee continued with public hearings on the Protection of Information Bill (the Bill).
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 (PAIA) 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 providing checks and balances, which had been included in the original draft, 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.
National Archives of South Africa expressed broad support for the Bill. If records were properly managed, then the implementation of the Bill and Promotion of Access to Information Act (PAIA) would be more practically effective. The previous moratorium on disposal of public records had resulted in a huge backlog and the National Archives hoped to approach Cabinet and have the moratorium lifted. The database would fulfil a vital purpose across government and would also enable all departments to develop and apply consistent norms and standards. However, the burden of a national declassification database under the Bill had cost implications. Members questioned what the cost implications of the Bill would be, especially for the National Archives, questioned whether documents were safe, and also asked for comment on earlier reports that the Archives faced severe resource constraints.
The South African Human Rights Commission agreed with the necessity of the Bill in principle, but expressed reservations that it would compound the problems already experienced by ordinary citizens in getting access to information, in terms of the Promotion of Access to Information Act. It was also concerned with overly-broad definitions, and the fact that the Bill was not synchronised with the Protected Disclosures Act and the Promotion of Access to Information Act. It was concerned that the State Security Agency had the power to exempt certain State bodies from compliance, and with the time frames associated with the review process. It was vital for South Africa to remain committed to transparency and accountability. SAHRC recommended that the 10-year review period be reduced to three years. It was concerned that the commercial information clause had the potential for abuse. Members questioned the role and function of the proposed intermediary body, asked for clarity on the suggestions of imbalance of power, and were disappointed that SAHRC had not commented on the sentences. SAHRC explained that it had wished to concentrate on the implications of the Bill to the public. Members also asked if it had made any recommendations to correct the problems with PAIA.
The Mail and Guardian Centre for Investigative Journalism advocated for a public interest defence to be included in the Bill. It cited instances of public interest media coverage that would not have been released under provisions such as those in the Bill, including examples from America and South Africa. It called for a public interest defence to be incorporated in the Bill, and described the Bill as an unnecessarily “big stick” that would be yielded against anybody who contravened its provisions. It was concerned that it was not in line with the Protected Disclosures Act and might well override it. It stressed that security and openness were not opposed. Members commented that certain public documents, if released, had the potential to undermine the country, whether leaking of information was in the best interests of the country, and noted that investigative journalism often resulted in invasion of personal privacy. Members also asked who paid for information provided to investigative journalists, and whether they were not overstepping the boundaries of investigation. The Chairperson, without wishing to debate this point, drew attention to the report given by the Joint Standing Committee on Intelligence.
The Congress of South African Trade Unions (COSATU) supported a review of State security legislation, but was concerned on the impact of the Bill. It felt that a more effective balance was needed and that the Bill as it stood did not promote transparency and openness. The Bill had an overly-wide scope of application, especially around commercial information, and there were also concerns over its impact on PAIA and the Protected Disclosures Act. There were also concerns about the time frames. Members asked if COSATU would be happy if the Bill targeted information that was already not obtainable under PAIA, noted the need to find a balance, and called for comment on Clause 30.
Protection of Information Bill (the Bill): Continuation of public hearings
Durban Legal Research Association (DLRA)
Ms Linda Zama, Researcher, Durban Legal Research Association, noted that at present, South Africa had greater rights to information than other countries on the African continent, but there remained concerns that although rights were expressed in the Constitution, they were not being felt by the ordinary people. The provisions of the Promotion of Access to Information Act (PAIA) were also not cascading down, particularly to the poorest of the poor, many of whom were unaware that these provisions even existed.
She gave examples of other countries that had granted extremely liberal access to information, but were now experiencing challenges. India, in 2009, received public pressure to open up access to information, and she suggested that the Indian, Swedish, Irish and Canadian experiences offered lessons to South Africa, although there was little by way of comparison in the rest of Africa. South Africa was unique in that it did offer rights to all individuals.
The Durban Legal Research Association (DLRA) regarded certain provisions in the Bill as vague and embarrassing. For instance “the public good” (in Chapter 5) and certain provisions of Chapter 4 were not easily understood. There appeared to be many drafting challenges. Section 12 needed considerable amendment, if not a complete redraft to make it understandable, in order to comply with Section 32 of the Constitution.
The DLRA also criticised the strong penal provisions. There were many concerns about tender rigging and corruption already, and she suggested that even a redraft of the Bill would not cure this type of corruption. It would be necessary also to sharpen the competition law so that collusion was better addressed.
DLRA also called for protection of whistle-blowers, including protection from prosecution. It might be necessary to amend Section 205 of the Criminal Procedure Act.
Mr L Landers (ANC) agreed that access to information could be boosted either through improving PAIA itself, or its implementation, but pointed out that the focus of this Committee was the Protection of Information Bill. He noted the reference to Section 32 of the Constitution but said that the rights in the Constitution were not absolute as there was no reason why the same access to information should be provided to foreign agencies. He asked Ms Zama to comment whether there was a need for legislation to deal with the protection of classified information.
Ms Zama said that there was such a need.
Mr T Coetzee (DA) asked Ms Zama what type of information she believed that the Bill was trying to protect, saying that there were difficulties with this concept.
Ms Zama responded that defence information was public information, but was sensitive, and it would be understandable to protect it. Matters of national security must clearly also be subject to protection. However, she suggested that, for instance, the true history of the country must be revealed, to the public in their own languages, so that lessons could be learned.
Ms T Sunduza (ANC) asked whether the DLRA believed that South Africa needed an Information Commission.
Ms Zama responded that comparisons with other countries would show that there was recognition of the need to keep certain information secret and a Bill was needed to replace the 1982 Act. However, the exceptions should be clearly defined, and there should be checks and balances. She did feel that an Information Commission should be set up. She did not agree with appeals to the Minister as the bureaucratic wheels were slow, and she recommended that an independent tribunal, with strict time limits, would be ideal.
Ms H Mgabadeli (ANC) believed that the Committee would benefit from a workshop and said these public hearings had enabled the Committee to compare the various options. The comments around tender rigging and whistleblowing were very important. It was also useful to note that there were no benchmarking examples elsewhere in Africa, but any international examples should also be seen against the South African Constitution.
Mr Coetzee asked how the classification of information under this Bill was likely to influence the man in the street, bearing in mind that there was a great difference between defence or security information, and day-to-day information.
Ms Zama said that the main reason why information should be available was to provide a tool for economic advancement. Once people became aware of the information, they would also be aware how it could advance their social and economic rights. It was important that this be disseminated to the wide public.
Mr Coetzee also noted that some people appeared to be under the impression that this Bill would immediately declassify all information classified before 1994, but asked whether this would be in the interests of the country.
Mr N Fihla (ANC) noted that substantial effort had been put into the drafting by legal drafters, and that an attempt had been made to address the problems, including threats to national security and crime. Cognisance must be taken of the fact that South Africa had many enemies who wished to prevent it moving forward.
Ms Zama conceded that lawyers had drafted the Bill, but pointed out that the whole process of drafting was to come up with a final version that reflected the intentions. Although the Bill was a step in the right direction, it needed to be sharpened, particularly to prevent the legal challenges to its present form, and to clarify the uncertainties.
South African National Editors’ Forum (SANEF) submission
Mr Henry Jefferys, Deputy Chairperson, South African National Editors’ Forum, introduced the delegation.
Mr Raymond Louw, Chairperson, South African National Editors’ Forum, noted that the Forum (SANEF) focused on freedom of information, access to and maximum dissemination of information. He summarised that the current Bill differed in many respects from the original draft. SANEF had concerns about some changes that had been effected. The safeguards contained in the original draft, around the kind of information that was classified, had been removed, and this had the effect of tightening the State’s grip on information. There was now an over-emphasis on the need for information to be protected. He also said that the removal of the clause from the original draft that required the classifiers to provide written reasons for the classification had the potential for abuse in the absence of any records. Similarly, declassification instructions were, in the current version, not required to be placed on any classified document, and SANEF queried why this had changed. The original draft had noted that classification was an exceptional measure that should be used “sparingly”, but that word had been removed from the current version, resulting in the over-emphasis on the need to protect information. The original draft had contained a provision that if there was doubt about classifying, then there should not be a classification, but in the current version this had been removed, and instead the matter would, in a case of doubt, be referred to the Minister. SANEF believed that this added an unnecessary political element rather than setting out proper criteria.
Earlier questions posed to the Committee had referred to material classified before 2004, which was not dealt with in the current version of the Bill. SANEF did not support the removal of the clauses dealing with automatic declassification of matters pre-1994.
SANEF was also concerned about the wording that classification decisions could relate to disclosure of law enforcement measures or investigative measures. Maintaining secrecy had the potential, for instance, to cover up torture that was committed by law enforcement bodies, especially if it was predicated to be in the national interest.
SANEF was also worried about the extension of the powers of the Minister of State Security, believed that classification could become a political instrument, and was concerned about the excessive powers. Mr Louw questioned whether, in such a sensitive area, this was correct. The wide definitions meant that the Minister could in effect be acting as a censor. He suggested that the findings of the Cameron Commission of Enquiry of 1994 were relevant, and that the reasons given by the presiding Judge for releasing the document (that related to the sale of arms by South Africa) were applicable, in particular that there should be an assessment of whether a “reasonable justification” test had been fulfilled. The public’s right to know should not be omitted from any assessment. SANEF, in summary, was concerned that overly wide secrecy provisions could create conditions for subterfuge, abuse of power, corruption, malpractice and other ills.
Mr Coetzee asked if SANEF was recommending that the clauses that were in the original version should be reinstated in the current version.
Mr Louw said that such reinsertion would be supported, as they would require a person classifying to exercise his or her mind more carefully.
Ms Sunduza noted that Government had an obligation to unite South Africa and there were problems around false information. She pointed out that other countries did not release defence information. She also enquired how the media regarded individual rights when publishing.
Mr Louw said that the fundamental principle of the Constitution was openness. There was a clause referring to the need for the State to protect and promote the rights in the Bill of Rights, including freedom of expression (Section 16). Although SANEF understood the need for classification, he noted that it was not necessary to withhold every piece of information relating to defence; for instance broad details on the defence budget were in the public interest and should be published. The maximum possible amount of information should be made available to the public, to enable the public to participate in the processes of government and oversee what government was doing in the public’s name.
Ms Sunduza asked how much openness should apply and how this should be balanced against respect for dignity and other rights.
Mr Louw noted that he could not answer how much openness government should apply, other than to say that he believed that it should be the maximum possible openness. He referred to a set of principles formulated by lawyers meeting in 1996, referred to as the Johannesburg Principles, which said that secrecy should be defined as narrowly as possible. Those principles did not appear to have been applied to this legislation. Although he personally had not done a comparison, the Institute for Security Studies had provided a comparison of the position in other countries, many of which showed greater openness than South Africa.
Ms Mgabadeli asked that the original wording of the Bill be made available to the current Committee, and asked what “softening features” were in the original version. She agreed that there was broad wording but contended that this was necessary to address the broad range of matters in South Africa. She asked who should be responsible for determining what “good reasons” were to withhold State information. She also asked why SANEF had used the wording that South Africa “professed” to be democratic. She gave her view that the best way to ensure democracy was to allow the Minister, whom the people had voted into power, to make the decisions.
Mr Louw said that he had not dealt in detail with the question of “national interest” as a reason for classification, but that this inclusion resulted in the Bill covering virtually every aspect of society, which SANEF found worrying. He agreed that South Africa was a broad society, but that did not mean that the quest for protecting all information should similarly be broadened. He recommended a careful assessment of “national security” and not “national interest” as being the prime factor. He did believe that the public should be informed to the maximum possible extent, saying that was the way in which a functioning democracy operated. Mr Louw further explained that the term “profess” was used to cover the fact that South Africa stated that it was a democracy, and should therefore follow the principles of democracy.
Mr N Fihla (ANC) noted the reference to the Johannesburg Principles in 1996, but pointed out that at that stage not all current problems, such as those around crime syndicates, were apparent.
Mr Louw said that he was concerned about the implication that South Africa might be justified in imposing more secrecy when its awareness of threats increased, and believed that this would be an unfortunate development. He pointed out that this Bill was covering categories of public information that could already be in the public domain.
Mr Landers challenged the criticism that the Johannesburg Principles were not included in the Bill, asking why the Committee should have been obliged to incorporate them. These Principles had been brought to the Committee’s attention only yesterday, as a response to the call for written submissions on the Bill. The Johannesburg Principles were not widely known. He pointed out that it did not appear that the group who drew up the principles had consulted particularly widely at the time, and it was thus unfair to criticise the Committee for not including them.
Mr Louw said that he had attended the meeting when the Johannesburg Principles were drawn and explained that this meeting was arranged by an international organisation, in South Africa, because it was felt that South Africa would benefit from the conference at this time. His comment did not relate so much to not including those in terms, but rather that certain principles were not included in the Bill. He also pointed out that a major criticism indicated that he had attended that meeting. One of the major criticisms around the Bill had been the lack of consultation with stakeholders. There had been no attempt to contact SANEF, the Freedom of Expression Institute or the Media Association to discuss the content, either prior to or during the drafting of the Bill. Had consultation taken place, then the Johannesburg Principles would have been brought to the attention of the drafters.
Mr Landers conceded that SANEF should have been consulted, but pointed out that group drawing up the Principles should also have consulted more widely.
Mr Louw said that he did not recall precisely who had attended, although he thought government representatives were present. However, he pointed out that there was a distinction between a conference, and the drafting of legislation.
Mr D Maynier (DA) questioned why Mr Landers, as an experienced Parliamentarian, was not aware of these Principles.
The Chairperson said he would not entertain that comment.
Mr Maynier asked Mr Louw to summarise the practical effects of this legislation on the media.
Mr Louw thought the Bill in its present form would make it more difficult for the media to operate as freely as it had done in the past. He pointed out that there was a constant danger that a journalist might be dealing with classified information, without prior notice that it was so classified, thus unwittingly committing an offence. The broad effect of the Bill would be to close the channels of investigative journalism. Access to and dissemination of information would become far more difficult.
Ms Sunduza commented that Parliamentarians, as public representatives, would consult as widely as possible with broad society.
Print Media South Africa (PMSA) submission
Dr Dario Milo, Partner, Webber Wentzel, gave a slide presentation on behalf of Print Media South Africa (PMSA), which represented about 700 members of the print media industry. He noted that his slide presentation would highlight only some aspects of the written submission.
He sketched the Constitutional background against which the Bill must be considered. He commended the drafters for articulating the principles succinctly, but said it was unfortunate that these statements and objectives did not appear to have been incorporated properly into the detail of the Bill. For instance, although the general principles had been stated in Clause 6(a to i) of the Bill, Clause 6(j) (a recent addition to the current version) amounted to undermining all these principles. He noted that the Constitutional Court had, in several previous cases, as well as the most recent case of Brummer v Minister of Social Development and Others, articulated the importance of media freedom, and their statements were set out in pages 8 to 12 of the written submission.
Print Media SA accepted that no right was absolute and that, in principle, national security was a justifiable limitation. There was clearly a need for the Bill, and he commented that it was a substantial improvement on the apartheid-era secrecy. However, Print Media felt the Bill should strike a balance that achieved maximum openness, rather than the maximum secrecy that it currently created. The Committee and drafters should ensure that the restrictions on open justice were legitimate, reasonable and justifiable. Because rights would be infringed, the question was whether that infringement was justifiable.
Dr Milo listed the criminal offences created by the Bill that could be applied to investigative journalists, contained in Clauses 18, 32, 33, 35, 38 and 43. Although Clause 32 was not aimed specifically at journalists, the wording had the effect of criminalising negligence and therefore would ensnare journalists. This could lead to abuse. The most significant provision related to the disclosure of classified information, and the Bill’s drafters had added substantially to the types of information that should not be disclosed, including information covered by sections of the PAIA, which Print Media believed had deleterious consequences on media freedom. The current version also had introduced reference to general State security offences.
Dr Milo noted that Print Media’s main concern was that the Bill did not include a defence of public interest. When earlier presentations were made to the Committee, the drafters had suggested that it was not necessary to include this as it would be implicit. Dr Milo did not agree with this statement that it was implicit. He also said that if, in principle, the drafters had no problem with such an implicit defence, then there was no reason not to include it explicitly, which would clear up the doubt.
Print Media was concerned about the over-broad definitions of various phrases. In order to avoid over-broad interpretation also of defences, Print Media proposed a definition of “the public interest”, which he tabled. He noted that this was not unknown; there were public interest defences in several other pieces of legislation, which were detailed in the presentation. The new Companies Act aimed to protect whistleblowers. This defence was also articulated in local and overseas jurisprudence. The proposed definition took all of this into account.
Dr Milo noted that it was a fundamental principle of Constitutional law that “national security” should be narrowly defined. Similarly, the principles articulated by the African Commission on Human Rights in 2002 noted that limitation was justifiable, if there was a real risk of harm, to a legitimate interest, where a post-causal harm would result. However, the current Bill did not apply these principles. All the thresholds for classification had in common an insistence that speculative harm would suffice to allow for classification, and thus censorship. The use of the word “may” was problematic. It was necessary that the tests used to classify instances that were truly harmful to national security be rigorous. He suggested that the PAIA test should be adopted which required an assessment of whether the information could “reasonably be expected to cause prejudice” to those interests. That was well supported in local and international legislation, and would achieve a better balance.
Dr Milo indicated that Clause 46 of the Bill failed to give proper effect to the principle of open justice, which required that the basic rules be premised on openness, with the State being required to justify why a document should not be made available, rather than the reverse assumption that the general rule of secrecy should apply unless and until the Court ordered disclosure.
He summarised that Print Media believed that the objectives and preamble of the Bill recognised the need for a sharp departure from the past, but the Bill’s current wording did not reflect that departure. There must be rigorous debate about where the classification lines should be drawn.
The Chairperson asked why it seemed to be implied that the public should have less faith in reporting a matter to the appropriate channels such as police or Parliament, rather than bringing information to the attention of an investigative journalist. Legislators should be entitled to assume that public structures could be used effectively.
Dr Milo responded that the two roles were not mutually exclusive. There was nothing to prevent the police doing their job, in cooperation with the media, and there was nothing inconsistent with the media informing the public alongside the police investigating a matter. It would be incorrect to suggest that a person should have the right only to disclose information to one channel. The media were also entitled to information about criminal activities. If restrictions were placed on such information being disclosed, then the effect would be to limit publication of matters of public interest.
The Chairperson responded that the legislators could not allow the media also to become investigators, and it would not be correct for legislation to say that both the media and police should be allowed to investigate. He said that often ill-timed reporting raised problems around the presumptions of innocence, and he did not agree that it was necessary always for the media to expose information in documents.
Dr Milo said he was not arguing that the media should usurp the role of the police. However, the media had a right and duty to inform the public on matters on public interest. He suggested that if the media came across allegations of corruption, the media should not be obliged to report this to other structures rather than exposing this in the media itself. He did not see that there was any inconsistency. If the media overstepped its boundaries, the law of defamation, appropriate criminal charges or Codes of Press Conduct could be applied. All constitutionally-enshrined institutions, including the media, should function in harmony with each other.
Ms Sunduza noted that there were exceptions contained in PAIA as well. She agreed that the media could overstep its boundaries. She also made reference to the Browse Mole report and noted that part of the intention of this Bill was to stop attempts to destabilise the country.
Dr Milo commented that one of the reasons why the Browse Mole matter could be debated in this venue was partially owing to the media who had exposed matters to the public. However he agreed that anything truly damaging to national security should be protected.
Mr Maynier asked about the practical consequences of not including a public interest defence in this Bill.
Dr Milo said that journalists would be far more cautious about publishing information and may opt for the safer path rather than risk incurring harsh penal consequences, which in turn might limit disclosure that would actually be of benefit to the public. He suggested that a narrow definition of public interest would aid in balancing important concerns of democracy and security.
Mr Maynier asked whether Print Media was contending that the current form of the Bill would prevent it passing Constitutional muster.
The Chairperson indicated that Dr Milo had not suggested this.
Dr Milo responded that he would suggest that certain provisions highlighted in the written submission were unconstitutional, and likely to be struck down by the Constitutional Court, in light of its earlier decisions. However, the Court was generally loath to strike down an entire piece of legislation and he had not done any analysis on whether it was likely to do so with this Bill.
The Chairperson noted his concerns, but also indicated that legal opinions were only opinions until the case was proven.
Mail and Guardian (M&G) submission
Mr Nic Dawes, Editor, Mail & Guardian, explained that the Mail and Guardian Centre for Investigative Journalism was a non-profit organisation, who would be presenting later in the day. He would speak to general issues, while the later presentation would concentrate on investigative journalism.
He noted that Mail & Guardian (M&G) agreed with earlier concerns around the language and definitions, and in particular agreed with the suggestions and draft wording presented by Print Media South Africa. He outlined his own experiences as a journalist in Parliament, noting that the openness and opportunities extended to all of society clearly demonstrated the public’s ability to truly participate in government.
However, he felt that the Bill, in its present form, represented a danger to open democracy. This legislation went to the heart of the relationship of the media and the State. The media was not so much concerned with whether this Bill would make it more difficult to perform its work, but rather with the threats posed by the bill to the media’s Constitutional mandate, not only to promote freedom of expression, but to expose dishonest, incorrect or ineffective administration. The media, by necessity, must pay special attention to what the Bill called “sensitive” information. However, it was also about dealing with information that illuminated the processes in organs of State, to support the complex work of government, and this could only take place in conditions of openness. M&G understood that total openness was neither practical nor desirable, but agreed with earlier comments that it was necessary to strike the correct balance. This Bill currently veered too heavily on the side of secrecy, although this was not its intention.
M&G cited an example that an official in the Department of Public Works might be considering whether to classify information around water reticulation, and might decide to err on the side of caution and classify everything. At the same time, a resident having problems with water access might, after failing to obtain information from the Department, report the matter to the media. A journalist investigating where the problems lay could unwittingly commit an offence although he was unaware that all information relating to water reticulation had been classified. These problems were exacerbated by the lack of an independent body to monitor these processes. Dr Milo had earlier touched on the illegality of classifying material to hide inefficiency.
In relation to the question why the Minister should not be tasked with oversight, Mr Dawes noted that in a good democracy there would always be overlapping structures of accountability and oversight, which was precisely why a Parliamentary Committee was mandated to call the Minister to account, despite the fact that the Minister was elected by the public and therefore was considered trustworthy. Multiple mechanisms of oversight secured democracy. Similar concerns had been expressed around lack of an audit trail.
Mr Dawes said that the inclusion in the Bill of all categories excluded from PAIA as not being able to be published was disturbing and created a blanket provision that would be unmanageable. He said that there were already difficulties in administering PAIA. Although relatively wealthy media organisations had the resources to go to Court, it was virtually impossible for the man in the street to do so.
M&G was deeply concerned about the definition of “State security” which made it virtually impossible to report on matters concerning the State Security Agency. The media accepted that it would not, for instance, need to publish names of operatives, nor information. However, to prevent any oversight of this body at all was an extraordinary incursion of the right of the public to be informed on matters of public interest. He was aware of concerns about the Browse Mole report, but said that there had also been abuses of the Intelligence Agency in the run-up to Polokwane, and in other matters.
Mr Dawes said that there was no fundamental opposition between freedom of information and security, or between the functions of the State (including such bodies as SARS or the police) and the media. These were mutually supportive roles. The Standing Committee on Public Accounts would be looking into allegations of overspending by public officials on World Cup tickets, which had been brought to light by the press. He also said that members of constituencies bringing matters to the attention of their MP were effectively supporting the overlapping structures. For this reason, Parliamentarians may well face problems in performing their oversight work effectively if the current wording of the Bill were to remain.
The Chairperson noted that Government was custodian of various information, some of which was held for and on behalf of the public. He asked if Government should have secrets.
Mr Dawes said that Government must have secrets – such as matters of clear national security, secrets in the diplomatic trade, cryptic algorithms and the like. The question was whether the mechanisms for protection of those were appropriate, and whether the language used to delineate where the lines must be drawn was correct. He did not believe that the current wording of the Bill met these concerns. The use of the word “may” implied that even a minute percentage of risk was sufficient to justify classification.
The Chairperson noted that it would be necessary for the Committee to determine what were secrets that should be protected by Government.
Ms Sunduza noted that Government had a responsibility to ensure that human dignity was maintained, which was the principle underpinning confidentiality of medical records, banking records and the like. She also pointed out that certain cultural practices must be respected; for instance, it would be considered wrong to discuss information about an older member of a community. She was also concerned as to what type of information was regarded as newsworthy and described an instance in which the press had failed to report on an assault by a member of the police against one of her constituents, although she had made the information available.
Mr Dawes commented that in general he believed that the media was patriotic, and adhered to its duty to report, even when producing negative reports or facing Court challenges. He agreed that in regard to human dignity, there was a need to elaborate this further in our law. There was not in fact any opposition between freedom of speech and human dignity, as the opportunity to speak one’s mind was part of human dignity. There were limitations on access to personal information, but there may be circumstances where it might be appropriate to disclose personal information. This was currently being discussed by the Portfolio Committee on Justice during its deliberations on the Protection of Personal Information Bill. The question of how different cultures came into contact with each other, and possibly contradicted each other, was interesting and contributed to South Africa’s rich diversity. In regard to newsworthiness, he said that it was not always correct that the media would only publish negative stories. He said that the danger was that the Bill in its current form could, however, discourage journalists from investigating matters that did indeed deserve to be investigated and publicised, if there was a risk that their investigations could lead to them having criminal charges laid against them.
Mr Maynier asked that Mr Dawes expand upon his comments on the impact of the Bill on Parliamentarians.
Mr Dawes noted that legislative drafting and oversight were done by Parliamentarians. Members of Parliament were privy to sensitive information, received from various sources, and should have channels for bringing information to light. He was concerned that the Bill also posed a risk to Parliamentarians investigating matters or publishing their findings.
Ms Mgabadeli commented that the media should be considering their contribution to South Africa, and wondered why a collective input had not been given. She wondered whether the media had not created an institution of its own that was not in tune with the people on the ground.
Mr Dawes commented that M&G had presented its own comments although it supported comments made by other media bodies. Although the media worked in the same field, they did not focus on the same issues. He said that M&G had grown from being an “activist” type of publication in the 1980s but still believed in working for a society that was just and shared resources more equitably, and that although M&G was now operating in a different political environment, it still pursued the same values.
Mr Fihla said that the good work done by government, including projects such as Coega, was not necessarily being reported, whereas negative reports were considered more newsworthy.
Mr Dawes responded that all newspapers in the past six weeks had been full of positive reports about the choices made by government, the running of the World Cup and the like. Most journalists would be willing to celebrate good work.
Ms Sunduza asked if there were fundamental problems about confidentiality.
Mr Dawes said that it was accepted that there were some people who would use information or disinformation for nefarious purposes, but posed the question how it was possible to legislate for that, and how information peddlers should be dealt with. It must be asked when a person became an information peddler, and when the intention to share inappropriate information crossed the line to illegality. He felt that the legislators should be alive to the difficulties of implementation.
The Chairperson referred to page 26 of Annexure A of the written submission (see attached document) relating to the offences, and asked if the comments were based on international experiences or from M&G’s own experience.
Mr Dawes noted that both sources were used. The scale was very wide, demonstrating that the public could be aggrieved by a perception that a public official was acting immorally in his personal life, right through to major corruption. This was quite well captured in, for instance, the Canadian and New Zealand laws.
South African Communist Party (SACP) submission
Mr Crosby Moni, Central Committee, South African Communist Party, noted the Constitution’s emphasis on national security. The SACP felt that the South African State remained vulnerable to internal attacks and threats from its enemies. It was anomalous that it should still be operating under a piece of legislation that was originally intended to protect an elite minority, whilst marginalising the majority. Such marginalisation was still happening many sectors today.
The SACP welcomed the Bill and believed that this was an important step. There was a need for openness, but also for protection of State information. SACP hoped that the Bill would find a balance without threatening national security.
The SACP had been concerned about the Browse Mole report. There were various structures in other countries who contributed to obstructing the work of the South African government, as a result of the lack of regulation around disclosure of State information. Lack of protection meant that the State would be vulnerable. SACP had noted comments by Congress of South African Trade Unions (COSATU) and other organisations about information relating to State tenders and similar matters.
SACP supported the proposed penalties for offenders and hoped that this would send a strong message to those threatening State security.
Ms Sunduza asked a question on point 9 of the written presentation. She asked whether the SACP supported non-disclosure of information about tenders. She also asked about protection of national security, which was part of Parliament’s mandate.
Mr Moni responded that “commerce” was linked to competition. There would be times when information could be disclosed to competitors. SACP felt that confidentiality clauses should not be used to create obstacles to the public obtaining information from State entities relating to benefits that were due to the public. All interests should be balanced against State security and national interest.
Mr Maynier noted the reference to the siphoning off of State resources. He asked whether information on spending by Ministers should be protected or disclosed.
The Chairperson did not feel that the question was fair. The information referred to had indeed been disclosed, as it had not been classified. Whether that was correct or not was not the issue.
Mr Maynier said that if the Bill were to be passed in its present format, this might result in this type of information not being disclosed in future.
Mr Moni noted that this question referred to classification or declassification of information already in the public domain.
The Chairperson said that one of the matters being addressed in the Bill was the harm caused by information peddlers to South Africa. He asked whether the SACP could report further on some of its experiences as a result of the behaviour of information peddlers, for the information of those present.
Mr Moni responded that during the 1990s media reports indicated that three individuals had wanted to unseat the President of the ANC. Those three individuals had to deal with issues arising in their families, in their organisation, and public opinion. There had been a distinct possibility that their lives could be in danger although the allegations were later found incorrect.
National Archives of South Africa (NASA): submission
Dr Graham Dominy, National Archivist, National Archives of South Africa, submitted that government could not work unless it was joined together at provincial, local and national level and on an inter-departmental basis. The National Archives Act was due to be amended and this amendment would be before Parliament in the next year or two. It was hoped that that Act would be aligned with the Protection of Information Bill. He noted that if records were properly managed, then the implementation of the Bill and PAIA would be more practically effective. The Bill provided that there would be a national declassification database, for which National Archives of South Africa (NASA) would be responsible. However, this had financial implications. The database would fulfil a vital purpose across government and would also enable all departments to develop and apply consistent norms and standards. In 1994 then-President Nelson Mandela imposed a moratorium on State security departments, regarding the disposal of all public records. This had resulted in a backlog of non-relevant information being stored by government security departments. With the advent of this Bill, NASA would be able to approach Cabinet and lift the moratorium, thus clearing the backlog.
Mr Maynier pointed out that the Bill had indicated that there would be no cost implications although NASA was now saying that there would be costs involved when the Bill came into law. He asked that these be explained in more detail.
Dr Dominy replied that it was very difficult to quantify the cost implications. There was certainly currently a cost implementation in not having the Bill, which included inefficient administration, the losing of documents and the exposure of government to risk and legal liabilities. NASA was currently trying to quantify the existing costs of the current chaotic system.
Mr N Fihla (ANC) asked if it was part of NASA’s duties to classify information, or whether it was merely required to store information and records.
Dr Dominy replied that NASA did classify information, in the sense that it supplied the file plans and classification guidelines to the whole of government. This was, however, not the same as security classification.
Mr Fihla asked if NASA also worked in the provinces.
Dr Dominy replied that NASA did not have authority over provincial archives but it was able to guide and offer advice.
Mr Landers said that it was alleged on the previous day that NASA was seriously understaffed, and he wished to enquire if this was true, and if NASA would have the capacity to implement the Bill if it were to be passed.
Dr Dominy replied that there were severe capacity constraints. Currently there were only three staff members who dealt with sensitive records, which was not enough.
The Chairperson asked if the records at NASA were safe.
Dr Dominy replied that the documents had been secured and when sensitive information was received from the previous regime particular security measures were undertaken. There had not been any losses of information and documentation. There was, however, a risk that the records may be lost in the long term due to their physical deterioration.
South African Human Rights Commission (SAHRC) submission
MsChantal Kisoon, PAIA Officer, South African Human Rights Commission, noted that the Commission (SAHRC) wished to bring value to the Committee’s deliberations by sharing its experiences on how PAIA was being implemented.
The access to information legislation had not been well received. There was low compliance of PAIA amongst government departments, and inefficiency in application as well as a great deal of confusion. There had been inconsistent implementation of PAIA across the board. The largest problem with PAIA was experienced through the attitude of officials, who were simply not cooperative. This Bill, as it currently stood, posed a similar problem as that experienced with access to information through PAIA. SAHRC had concerns with the definitions, more specifically those of “national security” and “national interest”. The definitions were too broad. The Bill was also not synchronised with PAIA and this was of concern. It was of concern that the State Security Agency (the Agency) had the power to exempt certain State bodies from compliance. Information was severely impacted by time and there were concerns over the time frames associated with the review process, refusal and appeals. The time frames were completely inconsistent with the time frames in PAIA. The time frames in this Bill, for instance, were in total excess of 200 days for a request to be enforced.
She submitted that the Committee should be mindful of the fact that South Africa had made a commitment to issues like transparency and accountability, which were some of the cornerstones of democracy. The Committee should also consider the 10-year review period very seriously, and SAHRV recommended that this should be reduced. SAHRC also had major concerns about the potential of abuse that would be afforded by the commercial information clause.
Mr Landers commented that SAHRC had pointed out that the 10-year review period was a problem, but asked what SAHRC believed would be an appropriate period.
Ms Kisoon replied that three years would be an appropriate time.
Mr Maynier asked what role and function an intermediary body would play, and what would be the benefit of its establishment.
Ms Kisoon replied that currently the Bill provided for total control and jurisdiction over information vested within public bodies. South Africa was typical of a society that was not rights-conscious and the balance of power was not equal. An intermediary body would allay fears and concerns of prejudice, partiality and over-restriction.
Ms T Sunduza (ANC) asked Ms Kisoon to expand on the SAHRC’s argument on the imbalance of power. She asked whether an intermediary body would really be independent. She also asked whether the SAHRC was aware that the Constitution obliged the government to protect the citizens of South Africa.
Advocate Lawrence Mushwana, Chairperson and Commissioner, SAHRC, replied that the powers contained in the Bill rotated around the Agency. The SAHRC was trying to ensure that people who needed information actually got it. Perhaps this problem would not exist if it was known precisely what the norms and standards of classification would be. The Bill was also not user-friendly for the poorest citizens.
Mr T Coetzee (DA) asked what the SAHRC’s position was on the sentences and the fact that the sanctions did not prescribe for the option of a fine.
Commissioner Mushwana replied that he was unsure whether the opinion of the SAHRC would be of use, since the sanction to be given would depend on the courts. The Bill was a serious piece of legislation and so it was not expected that light sentences for transgression would be given.
Mr Coetzee asked if the SAHRC was of the same opinion where the media was involved.
Ms Kisoon replied that the SAHRC had decided not to address the issue of sentencing in detail, but the sentences could be viewed as excessive.
Ms Sunduza asked how the SAHRC could be of the opinion that the Bill would not help ordinary citizens, when in fact it would protect their personal information. She also asked Mr Mushwana to explain what he had meant by his references to the Agency.
Commissioner Mushwana replied that the Agency was defined in the Bill and he had referred to it as explained in the Bill. The SAHRC based its opinion on whether the Bill was likely to assist the ordinary citizen with the negative experiences that SAHRC had seen of PAIA, where information had been denied to ordinary people. The Bill would add to the problem.
Mr Maynier expressed surprise regarding the SAHRC’s lack of strong criticism on the Bill’s sanctions.
Commissioner Mushwana responded that the SAHRC was not focusing on the position of the media but instead on the effect that the Bill would have on ordinary people who, in practice, were faced with denials of information every day. The SAHRC advocated for an appropriate sentence for transgressions.
The Chairperson asked if the SAHRC had any problems with the provisions in the Bill that sought to protect valuable information, in line with the Constitution’s obligation on the government, and if he was correct in assuming that SAHRC was not opposed to the Bill in principle.
Commissioner Mushwana replied that the SAHRC was not, in principle, against the Bill. However, the fact that the norms and standards of classification were not contained in the Bill, and would only be provided later, was a serious issue. It was obvious that one could not have a country where certain State information was not protected.
The Chairperson asked if the SAHRC had made representations on the problems it had with PAIA, and whether there were any amendments it had proposed.
Commissioner Mushwana replied in the affirmative, saying that the SAHRC was also communicating the problems relating to PAIA to the Portfolio Committee on Justice and Constitutional Development.
Mail and Guardian Centre for Investigative Journalism (MGCIJ) submission
Mr Stefaans Brummer, Managing Partner, Mail & Guardian Centre for Investigative Journalism (MGCIJ), presented video footage of a United States of America (USA) helicopter gunship killing two Reuter’s reporters and injuring two civilian children and other people in Iraq in 2007. The leaking of the video had sparked a massive public debate on the USA’s rules of engagement. The officer who was accused of leaking the video was facing a court marshall. He noted that if this Bill were to be passed, then anyone who posted a similar video on their sites would be prosecuted as well. He noted that a document like the Browse Mole report would not have been released in the public domain if the Bill had already been in force, despite the fact that it was clearly in the public interest. Those who distributed the report would have also been in jail for unauthorised possession under the provisions of this Bill.
Mr Sam Sole, Managing Partner, MGCIJ, added that the release of the document had averted potential civil strife in the country.
Mr Brummer continued that a secret affidavit from a regional director of the former Directorate of Special Operations (DSO) was leaked. This affidavit confirmed a secret meeting that the former DSO boss, Mr Leonard McCarthy, had convened in order to plan cases that would turn the political tide against the DSO’s disbandment. This sparked a key debate that served the interests of the public. He pointed out that if provisions such as those now contained in the Bill had been in operation at that time, then none of this would have been allowed to be disclosed, because it would have been considered a matter of “State security”. The McCarthy tapes, which led to the dropping of criminal charges against President Jacob Zuma would have been classified under the Bill, which begged the question whether he would have been appointed as the President. He described the Bill as “a big stick” that would be yielded against anybody who contravened its provisions. He stated that the MGCIJ also believed that there should be a public interest defence in the Bill.
Ms Sunduza commented that documents like the Browse Mole report also had the potential of harming the State if they were disclosed. She asked if the MGCIJ was really advocating the leaking of documents and whether such leaking was really in the best interests of the country. She further pointed out that she would regard it as an invasion of privacy if an investigative journalist had set up hidden cameras in someone’s house, trying to establish if that person was corrupt.
Mr Sole responded that there was confusions between the intentions of the Bill and its potential unintended outcomes. The presentation highlighted what most individuals would appreciate, such as the leaks. These leaks were in the public interest and sparked public debate.
Mr Brummer added that the media should not be seen as “the enemy” but rather as a partner in the democratic project. After 1994, President Nelson Mandela had thanked the Mail and Guardian for exposing the corruption of the apartheid regime. This was the kind of partnership that was being envisaged.
Mr Fihla asked if a relaxation of classification of State information would not weaken the State. South Africa could not be compared to the USA, because South Africa encouraged whistle blowing through statute, whereas there was no such law in America.
Mr Brummer replied that this Bill represented an even bigger “stick” than the situation in the USA. It would not be good if South Africa were to be seen as being a bigger bully than any other. This Bill was not in harmony with the Protected Disclosures Act. It may well be that the Bill would override this latter Act.
Ms Mgabadeli asked who paid for the information provided to investigative journalists.
Mr Sole replied that there was general antipathy to paying for information, amongst journalists in South Africa. The industry was also not well resourced to pay for information.
Ms Mgabadeli said that nonetheless someone was paying for the information somehow. This compounded fears over the so-called free flow of information that was being advocated.
Mr Sole responded that the leaking of information was apparently due to the ideological convictions of individuals. There were individuals who took risks in the public interest.
The Chairperson commented that some of what had been presented about the Browse Mole report was contradictory to what had been said by the Joint Standing Committee of Intelligence (JSCI) in a report. He encouraged people present to read that report. He hastened to add that this was not to say that MGCIJ was wrong, and that there was no need to debate the issue, nor was there a need for a response.
Mr Sole said that he would like to respond.
The Chairperson said that he had not called for a response, as he did not want a debate as to who was correct or not.
Mr Brummer proposed that when this matter should perhaps receive the Committee’s consideration at a later stage, when the journalist who received that document should be summoned.
The Chairperson said that the present debate was concentrating on the Protection of Information Bill. The issue of the Browse Mole report was an example used in the presentation. There were certain points that were inconsistent with another viewpoint, but this was not the issue for debate at present. It had not been said that the views of the MGCIJ were wrong.
Mr Fihla said that there was an abundance of highly trained investigative bodies within South Africa such as the Hawks, police and intelligence agencies. He asked if investigative journalism was not overstepping its boundaries.
Mr Sole said that there were parallel investigative institutions in this country and that they should work well together and compliment each other. Investigative journalists were not overstepping any boundaries, as they did not have powers of search and seizure, nor of interrogation.
The Chairperson asked if it was the MGCIJ’s view that unless there was disclosure, there would be no investigation within the government.
Mr Sole replied that the MGCIJ was not saying that the police would never do their work. Often there were obstacles to oversight and investigations. Sometimes there had to be other methods of investigating a matter. This was not an either / or situation.
Ms Sunduza said that it was the duty of the State to protect citizens, including investigative journalists, and this was what the Bill was trying to do. She said that it must be borne in mind that journalists, during the course of their work, may infringe on the rights of others. She asked where they drew the line, and pointed out that there were many examples of investigative journalists on the African continent causing harm.
Mr Sole replied that it would be a mistake to view security and openness as opposites. South Africa had to deliver on its Constitutional mandate of protecting citizens. Openness was one of the values in the Constitution that contributed to democracy. It had not been said by MGCIJ that there was no room for secrecy, but it did feel that the Bill went too far.
Mr Brummer said that in any industry one would find bad individuals, but this did not mean that one had to do away with an entire industry.
Congress of South African Trade Unions (COSATU) submission
Ms Prakashnee Govender, Coordinator, COSATU, said that there was a need for a review of State security legislation that was passed under the apartheid regime. COSATU thus endorsed the repeal of the 1982 Protection of Information Act. There were concerns over the gathering and dissemination of intelligence information, and it believed that there had to be legislative intervention in this regard. COSATU was concerned about irregularities within the State, such as the arms deal, the SAA/KPMG report, tender processes and Eskom’s pricing deals. There was concern over the impact of the Bill in such instances. There had to be a balancing act and this was COSATU’s main concern. The Bill had a wide scope of application especially around commercial information. COSATU also had concerns over the Bill’s impact on PAIA and the Protected Disclosures Act. It did not seem that the Bill would promote transparency and openness.
Ms Vuyo Ninzi, Legal Coordinator, COSATU, added that COSATU supported the Bill insofar as it would protect the safety and integrity of the State against information peddlers and espionage. However COSATU was most uncomfortable with the provisions in the Bill that concerned commercial information. There were also questions over the feasibility of the time frames as set out in the Bill. The Bill was too wide and seemed to be attempting to cover everything.
The Chairperson asked if COSATU would see it as a problem if the Bill targeted information that was already not obtainable under PAIA.
Ms Govender replied that the exemptions in PAIA were not unqualified. The Bill went beyond the exemptions in PAIA.
Ms Ninzi added that the Bill in its current format encapsulated everything. There was a need for information to be protected, but the Bill was too wide.
The Chairperson said that Parliament was trying to create laws for institutions that existed currently. Within PAIA there was a controlled environment. It was necessary to find a balance between protecting information that had to be protected, and providing access to information that could be disclosed.
Mr Coetzee asked what COSATU’s view was concerning Chapter 10, Clause 30. He also asked what COSATU’s reaction would be if the Bill were to be passed in its current form and whether it was likely to organise a strike or a stay-away.
Ms Govender responded that caution must be exercised in what was expressed as a wish. It was necessary to analyse what the impact of the Bill would be on the whistleblowers’ legislation. She also felt that it was not possible to enter into a discussion on what the prescribed sentences should be.
The Chairperson thanked all who were present over the course of the two-day hearing sessions and informed the public that the Committee would meet the following week to discuss the submissions.
The meeting was adjourned.