Protection of Information Bill: Chief State Law Advisor response to public submissions

Meeting report

State Law Advisor Response to Submissions made at Protection of Information Bill Hearings
Mr Enver Daniels, Chief State Law Advisor, addressed the Committee on the issues raised during the public hearings on the Protection of Information Bill. Of particular concern was the comments made on the constitutionality of the Bill. The certification of a Bill was to say that the State Law Advisor’s Office was of the view that the Bill would pass constitutional muster. The Bill was scrutinised very carefully when its constitutionality was being ascertained. However views changed and differed from lawyer to lawyer. Ultimately it was only the Constitutional Court that could determine whether the Bill was unconstitutional or not. Everything that could have possibly been done to ensure that the Bill was constitutionally compliant was done. The Bill was certified after careful consideration of each clause. The Bill was also considered in conjunction with the constitutional provisions of freedom of expression and access to information. The Office of the State Law Advisor rejected the suggestion that the Bill was comparable to, or worse than any apartheid legislation, or that it to sought to frustrate the free flow of information. One of the objects of the Bill was to repeal old order legislation. Minimum-security standards stressed that security classification should not be used to cover up maladministration, corruption and criminal action in order to protect individuals. Some of the principles of the minimum-security standards were carried over to the Bill.

The Constitution guaranteed in Section 32 that everyone had the right to any information held by the state and any information held by another person that was required for the exercise of the protection of any rights. The Promotion of Access to Information Act of 2000 (PAIA) gave expression to Section 32 of the Constitution and fostered a culture of transparency and accountability and permitted persons to access information. PAIA did contain provisions that allowed for the refusal of information. The Bill tried to harmonise the provisions of secrecy and openness with what was contained in PAIA. When the Bill was read together with PAIA, it made it easier for the media and other interested parties to gain access to information. It should be stressed that all the provisions of the Bill had to be read together and understood within the context of the Bill as a whole. It appeared that most of the persons that objected to certain clauses in the Bill had not done what the courts had continually stressed. The courts had stressed that one had to analyse clauses and ascertain the proper interpretation within the context of the Bill as a whole. If this approach were followed, one would find that many of the concerns that people had expressed about the Bill and its clauses would probably disappear. According to the Bill’s Long Title, it aimed to protect information from destruction, loss or unlawful disclosure. It regulated the manner in which information may be protected and repealed the Protection of Information Act. It was ironic that nobody had complained about the current Protection of Information Act that was from the old apartheid regime.

The Bill aimed at balancing ‘national security’, openness and transparency. It was the view of the Office of the State Law Advisor that the Bill managed this balance. The general principles in the Bill underpinned what it aimed to achieve in its objectives. The general principles stressed the need for openness and transparency whilst recognising the need for some confidentiality and secrecy. The Bill gave state bodies the option of whether or not to classify information. The only possible flaw in the Bill was where the Minister of State Security was involved. When the Minister invited comment at the time he prescribed categories and sub-categories of information, he should invite people to comment as opposed to this requirement being discretionary as the Bill currently allowed. The Committee might consider changing this. Organs of state had to adhere to the prescripts that would be developed by the Minister. Only that information that required classification would be classified, there would be no blanket classification. Those responsible for classification would have to demonstrate that there was a clear, justifiable and legitimate need to classify information. In addition the information had to be protected in the national interest. The submissions had not made any attempts to provide suggestions for broadening the requirements for classification. The Committee had to bear in mind that the criteria for classification were justiciable. This meant that the courts could review and set them aside. Classification had to been done on rational grounds and could not be done in an arbitrary manner.

One of the many complaints was that the Bill would allow corruption to be covered up to protect wrongdoers. The Bill in fact prohibited this. The Bill had to be read within its context and as a whole. The Bill aimed to promote transparency and openness by making information available to the public. The Bill allowed for persons to apply for the declassification of information, the decision maker would then make a decision of whether or not the information should be declassified. If the request was declined, one could still apply to the Minister. It had been argued that the Minister should not be an appeal body. As members of the Committee would know that there were many pieces of legislation where the Minister performed administrative acts. The Minister’s decision could also be taken up on review and set aside by the courts.

Some of the submissions at the hearings were quite emotional and hysterical. There were few submissions that pointed out factors that would assist in determining what the constitutional objections would be. An example was the suggestion of a public interest defence, this was not for the Office of the State Law Advisor to decide upon but the Committee and the Executive as this was a policy issue. A public interest defence would mean that anybody could publish anything irrespective of its degree of classification and then the onus would be upon the state to prove that the publication was not in the interests of the public. The whole thrust of the Bill would have to be re-considered if the defence were to be incorporated. There was a constitutional basis for the state to protect information in the ‘national interest’ or for state security. It was conceivable that getting access to information would be time consuming.

 The Office of the State Law Advisor studied newspapers and had noticed that the media all over the world tended to report on matters much later or they reported on a story that happened quite a while back, up to two years even. Shortening the time frames would be considered. In the Independent Newspapers vs The Minister of State Security judgement the Constitutional Court recognised the right of the state to keep some information confidential and classified for the purposes of ‘national security’. It further indicated that a challenge could be mounted on the authority to classify and hold documents. The Bill took guidance from the Constitutional Court. The view of the Office of the State Law Advisor was that the Constitutional Court gave authority to the state to protect information in the national interest. The Constitutional Court in the Independent Newspapers case noted that the Minister’s office and authority had not been challenged. The court noted that the word ‘overbreadth’ was confusing and had been used incorrectly. There was a perception that the procedures, categories of information as well as norms and standards created confusion. This may be true but this was also where the Minister came in via the introduction of Regulations. The Minister through the Regulations would specify the manner and method of categorising information. Commercial information was included so that parastatals could classify commercial information if they so wished. The Bill may not be used to conceal corruption and wrongdoing. One could not foresee that the Bill would not allow for the free flow of information.

Discussion
The Chairperson said that the Bill had a wide application, what were the thoughts of Mr Daniels on his issue.

Mr Daniels replied that one of the problems with government was the manner in which legislation was implemented. Once the Bill was implemented then there would have to be an extensive exercise so that officials understood that the Bill was about balancing the need for openness and secrecy.

Mr D Maynier (DA) commented that he was disappointed with Mr Daniels when he said that the submissions were emotional and hysterical. What was the name of the person who gave the final go ahead regarding the constitutionality of the Bill? Did the Office of the State Law Advisor consult experts in constitutional law?

Mr Daniels replied that he had not said that many or all the submissions were hysterical. Some of the submissions wee however loaded with emotion. Many of the submissions were good. For example, The Mail and Guardian, Dr Dario Milo and Dr Laurie Nathan. Where legislation was concerned the buck stopped with him. The Bill was certified with his authorisation. His office dealt with constitutional issues. It might be possible that the Office of the State Law Advisor was wrong about the constitutionality of the Bill.

Mr Maynier reiterated his question and asked who finally made the recommendation that the Bill was constitutional.

Mr Daniels replied that, with respect, Mr Maynier had not been listening to what was said. The Bill was certified on the instructions of himself after looking at it. Ms Karen Booyse and Ms Koliswa Mdludlu, both attorneys with considerable experience, had worked on the Bill as well.

Mr Maynier asked if the Office of the State Law Advisor had consulted external constitutional law experts during the consideration of the Bill.

Mr Daniels replied that, with respect, the Office of the State Law Advisor considered itself constitutionally well versed. It certified every single piece of legislation that came before Parliament, occasionally legislation had been overturned. Between 1994 and the present, Parliament had probably passed in excess of 300 Bills and less than 10 had been declared to be unconstitutional. This was not a bad record.

Mr S Swart (ACDP) appreciated that Mr Daniels had conceded that there was a possibility that the Office of the State Law Advisor could be wrong. Could Mr Daniels engage with the Committee on the issue of the broad definition of ‘national interest’? In 2008 the Ministerial Review Commission had declared that the term was so broad that it included almost everything.

Mr Daniels replied that if a definition of ‘national interest’ had not been included there would have been an uproar. When the clause was viewed against the backdrop of such things as legality, it was found to be okay. After careful research, it was found that there was very little on what ‘national interest’ entailed. Perhaps the Regulations would bring more clarity on what ‘national interest’ encompassed. In the words of Justice Kate O’Reegan, overbroad was a confusing term. It seemed that this was a policy decisions that had to be made.

Mr Swart asked what the implications would be if the term would be narrowed or deleted and only look at ‘national security’.

Mr Daniels replied that there would still be a big debate on what ‘national security’ entailed. If one did not put in a definition of ‘national interest’ it would be conflated with ‘national security’ and the distinction between the two would be blurred.

Ms H Mgabadeli (ANC) expressed appreciation for the work done by the Office of the State Law Advisor. Parliament had been given until September 2010 to finalise the Bill and yet the Committee was busy arguing with boardroom activists. Time had to be set aside to finalise the Bill for the public.

Mr T Coetzee (DA) asked why some checks and balances in the previous version of the Bill had been excluded from the current version. Why was so much time spent on public submissions if “in your own words they were hysterical”? ‘National interest’ included the citizens of this country and one had to listen to them as the submissions were the opinion of the general public.            

Mr Daniels replied that from a constitutional point of view, he was of the opinion that the Office of the State Law Advisor had done its job. The Committee had before it a Bill that was constitutional. The Office of the State Law Advisor operated independently of the Executive. The function of the Office of the State Law Advisor was to certify Bills. The Committee had to facilitate public submissions, which informed the final product. With the greatest respect to Mr Coetzee, this was the job of the Committee. The Committee had the power to reject, accept or incorporate the submissions.

Mr Coetzee said that the classification of information was an individual’s decision, however humans made mistakes. The biggest mistake was that there would be over-classification and this would make the obtaining of information to be impossible. What checks and balances were there in the Bill to ensure that this did not happen?

Mr Daniels replied that the Minister had to prescribe the national standards, this provided checks and balances. The critical question was whether the guidelines would be precise. Clause 17 contained the Directions for Classification, these were very extensive. Clause 17 also prohibited the use of classification for ulterior purposes. The implementation of the Bill was very critical as the government could get it horribly wrong. There would be a need for extensive training across the country for the implementation of the Bill.

Mr Maynier asked if Mr Daniels would concede that in certain instances it could be in the public or ‘national interest’ to disclose information that was classified particularly if that information would expose major corruption. If Mr Daniels conceded this, then why oppose the inclusion of a public interest defence, as this would provide a balance - and not negate it as he claimed?

Mr Daniels replied that corruption had to be exposed and as indicated three times already, the Bill stressed that it could not be used for improper purposes. The inclusion of a public interest defence was a policy decision that the Committee had to make. He was not opposed to it. Material would be published all the time and the onus would be on the state to prove that it was not in the public interest to publish it even though the damage would have already been done. Its inclusion would also not be constitutionally offensive.

Mr Swart said that nobody ever asked about commercial information. Would there be a constitutional impact if it were excluded?

Mr Daniels replied that there would be no impact whatsoever. International corporations went to great lengths to protect their commercial information. A lot of the espionage that occurred was around commercial information. This was also a policy decision.

Mr Maynier pointed out that the submission by the South African Human Rights Commission had pointed out that in their experience of PAIA, there was difficulty in accessing information for citizens. In the light of this, how could Mr Daniels support his statement that the Bill would make it easier to access information?

Mr Daniels replied that Mr Maynier once again misconstrued what he had said earlier. The statement was that the Bill when read together with PAIA would make it easier to gain access to information. He conceded that people found it difficult to obtain information despite the regulations in PAIA. He was not involved in the administration of PAIA. It had been suggested that his office should take over control of PAIA but this was rejected in Parliament. The Bill would have Regulations, which it was hoped would be clear and precise to assist in the classification process. The Bill contained provisions, which stated that one could now try to gain access to classified information under PAIA. The Bill also stressed that not all government information had to be classified and this was quite brilliant.

Mr Maynier asked what was the view of Mr Daniels for the inclusion of an external and independent review body for the decisions of the Minister where declassification applications were turned down.

Mr Daniels replied that he would not have a problem with such a provision. This was once again a decision that the Committee had to make. There also would not be any constitutional objections. It could well be a good thing but would be time consuming.

Mr L Landers (ANC) asked if what Mr Maynier was suggesting had been adopted by other international jurisdictions.

Mr Daniels replied that to his knowledge and according to the research of his team, they had not found anything but they would check and report back to the Committee.

The Chairperson asked what was the view of Mr Daniels on the prison sentences.

Mr Daniels replied that he was concerned about the provisions on the sentences. The penalties were harsh; it was not clear why there were minimum sentences. Again this was a policy decision. It was interesting to note that society was crying for harsher sentences including the death penalty and yet when this Bill imposed harsh sentences, there were objections. The offences were serious and so were the sentences. He was not in a position to say what they should be however. Ms Booyse pointed out that the United States of America (USA) and New Zealand had independent review panels.

Mr Landers pointed out that the panel in the USA was not as independent as one would initially think but the Committee would await the State Law Advisor’s submission on this. Clause 40 looked strange on the face of it. It had been suggested that the employees in national intelligence structures should be trained to be able to verify and reject false information yet Clause 40 allowed for the punishment of those who supplied it. What were Mr Daniels views on this?

Mr Daniels replied that the constitutionality of the provision had been considered and there was nothing wrong with it. National intelligence structures had a constitutional obligation imposed on them and if they were bombarded with false information, which they had to verify all the time, their work would be adversely affected.

Mr Maynier asked how such a Bill could possibly be constitutional, when it criminalised the entire chain of disclosure from whistleblower to journalist; provided severe penalties for that disclosure; even if such disclosure was in the public interest and disclosed major corruption.

Mr Daniels replied that with the utmost respect to Mr Maynier, he appeared to labour under the misapprehension that corrupt activities would be classified when it had already been stressed four times that the Bill prohibited the classification of information to hide corruption and illegal activities. It was hoped that the checks and balances would work and that persons of integrity would implement the Bill properly after sufficient training.

The Chairperson asked for committee members to make final comments, requests or concerns before the Bill was considered clause by clause. On the 10 August 2010 the Committee would sort out all outstanding documentation, constitutional issues and presentations. Could the State Law Advisors also provide a document on the public submissions as well as the response by Mr Daniels?

Mr Maynier requested that the Committee should reject the Bill and request that it be redrafted, as there had been severe concerns from the public submissions and in the Committee debates about the implications and possible impact of the Bill.

The Chairperson replied that Mr Maynier had moved way too fast for what was expected of the Committee, to reject the Bill at this stage would be a sign of disrespect to the office of Mr Daniels at this stage of the process. The members had to be in a position where they had all the information necessary at their disposal.

Mr Maynier said that he was not in agreement with the Chairperson. It would be a good idea if the Committee solicited an external constitutional law expert to analyse the Bill and brief the Committee in light of the constitutional law debates on the Bill. It would also be useful to obtain a copy of the policy document of the Department of State Security on the Bill. It would be useful to obtain the policy memorandum on which the Bill was based.

The Chairperson replied that the request would be taken to the relevant authorities but there was a legal section that was at the Committee’s disposal.

Mr Swart requested copies of the ‘Ministerial Review Committee on Intelligence’ report on the previous 2008 version of the Bill.

The Chairperson replied that there was no committee but a commission that had been set up consisting of Mr Joe Matthews, Ms Frene Ginwala and Dr Laurie Nathan. It was set up by the Minister to look at various issues within the intelligence community. The Cabinet’s decision was that the report they compiled was not officially sanctioned.

The Chairperson asked if there were any questions from the public.

Ms Liezel Steenkamp from the Beeld newspaper asked to which authorities would Mr Maynier’s request be taken? Was it not the Chairperson’s decision?

The Chairperson said that he was not sure as the service was provided for within Parliament. He still had to find out.

Ms Gaye Davis of Independent Newspapers asked if the document prepared by the Ministerial Review Commission on Intelligence mentioned earlier would inform or appear before the present Committee?

The Chairperson replied that Committee members were free to use the report for themselves but the way things worked in Parliament would not make it easy to use the document unless it was presented by those who owned it. The Committee would not be able to have the privilege of interrogating the document with the presenters as the Commission had already ceased.

Meeting adjourned.