Protection of Information Bill [B6-2010]: two draft options presented (day 1)
It was noted that the Ad hoc Committee had been granted an extension of time, to 28 January 2011, to deal with the Protection of Information Bill (the Bill). The Chairperson pointed out that there was no suggestion that the matter would be rushed, that serious consideration would continue to be given to all issues, and if a further extension of time might be required, this would be considered. All party representatives would still be given a chance to raise their concerns, including the DA concerns about what information should be classified. The Office of the Chief State Law Advisor provided two new drafts of the Bill: Working Document 1, which was based on the premise that access would be used both through the Promotion of Access to Information Act (PAIA) and Protection of Information Bill; and Working Document 2, in which PAIA would serve as the sole source through which information would be requested and the Bill would deal with classification.
The Deputy Chief State Law Advisor presented Working Document 1, a new draft of the Bill incorporating changes that had been suggested either by the Committee in its previous meetings or by the Chairperson, following questions asked in Parliament. This document followed the format of the original Bill. The Preamble now contained a new provision affirming the constitutional framework for the protection and regulation of access to information was subject to the authority of Parliament and the national executive, as contemplated in Section 198(d) of the Constitution. New definitions were provided for “information peddler”, “national security“, “request”, “status review” and “top secret”. The objects of the Act were included in Clause 2, and new Clauses 3(1)(c) and 3(3)(b) clarified the application of the Bill. Further alterations were highlighted in Clauses 4, 5, 6(a), 8, and 9. The word “alteration” was included in Clause 11 and other relevant places, and Clause 12 was amplified by references to “valuable information” and “information deemed to be classified”. Clause 13 was brought in line with unlawful disclosure definitions. Clause 14 had been amended to try to clarify the delegation of authority. Consequential amendments were made to Clauses 15(1)(i), 17(2), and 19(1). A new Clause 20 explained the purpose of the Chapter, and clarified the dual “route” for classified information, by facilitating access to classified information using the provisions of this Bill, or providing a requester with an alternative process to obtain classified information by using the Promotion of Access to Information Act. Consequential amendments were made to Clause 21, Clause 26(2), and 28(4). Clause 31, relating to offences and penalties, was redrafted and some of the definitions that had caused concern in the original Bill had been refined and moved to this Chapter. Clause 38 had been reworded, and also now made provision for a fine. Certain subclauses were to be deleted from Clause 48.
It was clarified that the second document (Working Document 2), which separated out the issues of classification and access to information, would be presented later in the week. The DA representatives agreed, in principle with the inclusion of the constitutional references in the Preamble, noted that these were intended to highlight the obligations of Parliament and the Executive in matters of national security, but suggested that other sections should also be mentioned. The DA wished to debate the application wording of Clause 3 further, as well as Chapter 3, although they recognised that the provisions were an attempt to address the anomaly in which the Joint Standing Committee on Intelligence might find itself in relation to classified information. Members were concerned that Clause 14 was still too widely worded and more specific references to those who could classify were required. The document would continue to be debated on the following day.
Protection of Information Bill B6-2010
The Chairperson noted the apologies of Ms H Mgabadeli (ANC), Mr J de Lange (ANC), Mr L Landers (ANC), and Ms A van Wyk (ANC), as well as from new members of this Committee Mr M Sonto (ANC) and Ms L Jacobus (ANC). He welcomed the new members of the Committee.
He also drew attention to the meetings scheduled for the following two weeks, noting that Parliament had given special permission in these weeks for the committees dealing with legislation. He recapped that in the previous year, the Committee had asked the Office of the Chief State Law Advisor (OCSLA) to deal with certain matters, and reminded those present that the Committee had been attempting to harmonise the Protection of Information Bill (the Bill) with the Promotion of Access to Information Act (PAIA), and said that the Committee was considering whether it was possible to use PAIA as a single source for the classification of all information. The State Law Advisors had also been asked to look at whether the Bill could operate simultaneously with PAIA, so that both the Bill and PAIA could be used as a means of getting access to classified information. They were also asked to look at other consequential matters, including the definition of “information peddlers” and the time frames. He thanked the State Law Advisors for their considerable assistance to date.
Mr D Maynier (DA) noted that the Chairperson had said that there was no intention of “rushing matters”. However, he thought that the schedule, indicating that the Bill was likely to be finished by the end of the month, seemed to indicate that the matter was being pushed too fast.
The Chairperson reminded Mr Maynier that the life of the Committee had been extended to 28 January only, and for that reason, the Committee was required to try to fit the programme within the extended time. If the Committee did not finish this work, it may need to call for another extension.
Mr S Swart (ACDP) asked what would happen if there was not a sitting on 28 January.
The Chairperson noted that the decision was not in his hands. If there was no sitting, then there was a possibility of requesting condonation, in terms of the Parliamentary rules.
Mr M Maziya ANC) noted that the Committee’s mandate was to deal with the Bill, and he did not think that there was a purpose in debating this now.
Mr B Fihla (ANC) agreed and urged that the Committee should proceed as speedily as possible.
The Chairperson noted that there were some distorted impressions about the Bill, and he urged that the Committee should not be seen to rush the matter. The Committee had been very serious about considering the matters fully, had spent considerable time on the Bill and had made some concessions already, and he could not agree that there was any attempt to accelerate the matter unduly.
Ms D Smuts (DA) said that the Chairperson himself had made some substantive and important suggestions that had helped to take the matter forward. She agreed that the Committee Members should be applying their minds thoroughly to all issues. She asked if the Chairperson could not indicate to the Programming Committee that the Bill might take a longer period, to avoid timeframes being formulated that were perhaps not realistic.
The Chairperson indicated that his previous response covered this issue. He did not want to get into a debate as to whether the Bill was so complex that it might take an extended period to finalise, be this a year or any other specified time frame. The process would take “as long as it needed”, and that the public could be assured that a democratic and proper process would have taken place.
The Chairperson then noted that during a previous meeting, Ms Smuts had asked that the Committee deal with the question of what information should be classified. Some media reports had suggested that the Chairperson had refused, which was not correct. He had responded to Ms Smuts that she would be given the opportunity to raise this issue at an appropriate time, and he wished to assure her that this still pertained, and that this should be put on record again.
Presentation of Working Document 1: Office of the Chief State Law Advisor
Mr Enver Daniels, Chief State Law Advisor, Office of the Chief State Law Advisor, noted that two working documents had been prepared, referred to as Working Documents 1 and 2.
Mr S Swart raised a query why these documents, dated 14 and 15 December, had not been made available earlier, unless they had been amended recently.
The Chairperson noted that the working documents were not to be construed as final, and he asked for any errors to be highlighted, adding that the finer details would be checked as the discussions proceeded.
Adv Carin Booyse, Deputy Chief State Law Advisor, OCSLA, tabled Working Document 1. This incorporated references both to PAIA and access to information through the Bill. The OCSLA had deleted some provisions in accordance with the Committee’s instructions. She noted that the green highlighting indicated provisions that needed still to be considered. She then proceeded to highlight those issues.
The Preamble now contained a new provision affirming the Constitutional framework for the protection and regulation of access to information was subject to the authority of Parliament and the national executive, as contemplated in Section 198(d) of the Constitution.
A new definition had been included for an “information peddler”. “National security “had been defined more fully. An alternative definition had also been provided, which was more concise. A definition had also been included for a “request” under this Act. A new definition was provided for “status review”. A new definition of “top secret”, referring to Clause 13(3), was included.
In Clause 2, the objects of the Act had been inserted, and new subclauses (i), (k) and (m) had been drafted, to align the Bill with other legislation.
In Clause 3(1) a new subclause (c) was included, relating to the application of the Bill, stating that it now applied to “all bodies authorised to exercise intelligence oversight”. A new Clause 3(3)(b) had also been inserted.
In Clause 4, the word “may” had been altered to “must”.
In Clause 5, “valuable information” had been defined.
Clause 6(a) had been refined, with the addition of the words “that clearly sets out reasonable and objectively justified public or private considerations”.
In Clause 8, the time periods had been brought in line with the time periods in which the Minister must make regulations, and organs of state had six months to establish policies, directives and categories, in terms of subclause (1).
Clause 9(1) now included a reference to “alteration” of documents, and Clause 9(2) had also been refined to refer to a register of valuable information developed and maintained by an organ of State.
Ms Smuts commented on the inclusion of the Constitutional reference in the Preamble. She approved of this, in principle, but also asked for a reference to Section 199(5) of the Constitution, which referred to customary and international law and agreements binding on the Republic.
Ms Smuts also noted that not all the proposals now presented under Chapter 3 had been agreed upon by the Committee. She still felt that the application clauses were problematic, and although the amendments may be logical, felt that the subject matter had not been concluded.
The Chairperson noted that OCSLA was asked to look at some consequential amendments, and to report on them. OCSLA was not acting on its own initiative.
Ms Smuts asked for clarity, in particular, on Clause 3(3)(b).
The Chairperson said that this was not debated in this Committee, but the question was raised as to how classified information would be dealt with in terms of the Bill, and how the Joint Standing Committee on Intelligence would deal with classified information, which was a key part of its work. The Chairperson had asked OCLSA to highlight how this problem could be addressed.
Mr Maynier confirmed that he had raised a question about the implications of this Bill to Parliament. However, his concern was with Clause 18 and the possession of classified documents. He had thought that the correct remedy would have been to delete Clause 18 of the Bill.
Ms Smuts thought that the problem was that the Joint Standing Committee on Intelligence might be doing some classification.
The Chairperson said that the matter was now before the Committee for debate. If Parliament was to be considered an organ of State, then the Speaker would have to determine what information would be classified. This would give rise to anomalous situations in the Joint Standing Committee on Intelligence. The Chairperson had then raised this with OCSLA, and the suggestions of the State Law Advisors as to how the matter could be addressed were now included in the draft, and would be debated later. The delegation issue might also address this. He indicated that some discretion must be allowed to the State Law Advisors to make suggestions as to the appropriate wording or inclusions.
Ms Smuts asked it to be noted that she did not agree with Clause 3.
Mr Daniels noted that the OCSLA had gone through the documents carefully, and was acting on instructions from the Committee or from the Chairperson. OCSLA was satisfied that the changes incorporated, including the Constitutional amendments, were strictly in accordance with the instructions given. This had also not been discussed with the Minister, because the instructions emanated from the Committee or Chairperson.
Continuation of presentation
Adv Booyse noted that in Clause 11, the word “alteration” had been incorporated.
In Clause 12(1)(c), the words “valuable information contemplated in Section 9(2)” had been included. The words “deemed to be classified” were included in Clause 12(2).
Clause 13 had also been brought in line with the unlawful disclosure definitions, by changes to subclauses (1), (2)(a) and (3)(a) and (b).
Clause 14 now contained a reference to delegation of authority to a staff member “at a sufficiently senior level”.
Consequential amendments had been made to Clauses 15(1)(i) and 17(2), as well as 19(1).
Clause 20 was a new clause that explained the purpose of the Chapter, and clarified the dual “route” for classified information, by facilitating access to classified information using the provisions of this Bill, or providing a requester with an alternative process to obtain classified information by using the Promotion of Access to Information Act.
Clause 21(1)(b) contained a consequential amendment. In Clause 21(2) the first ten-year period was defined as starting on the date of commencement of the Act.
No changes had been made to Clauses 22 to 25.
Mr T Coetzee (DA) noted that at previous meetings he had expressed concern about the seniority levels of those given the authority to classify information. He still thought that Clause 14 was too widely stated and there was a need to be more specific as to exactly what levels of staff were permitted to classify information.
The Chairperson said that this point would be noted. He agreed that it was necessary to be clear about what “senior level” was contemplated. Classification would generally start with the head of the organ of State. However, not all organs of State were constituted in a similar way.
Adv Booyse said that perhaps the SMS level used by the public service could be specified and considered, and the State Law Advisors would look at refining this wording.
Mr Swart recalled that the Committee had discussed separating PAIA and this Bill, so that access would be dealt with under PAIA, and classification under this Bill. He thus queried the wording of Clause 20.
The Chairperson explained that Working Document 1 was based on the premise that access would be used both through PAIA and the Bill, in line with the way in which the original Bill had been drafted. The Chairperson had made a suggestion that PAIA could perhaps be the sole source through which information would be requested, and this scenario was reflected in Working Document 2, which would be considered later.
Continuation of presentation
Adv Booyse noted that there were some consequential amendments in Clause 26(2).
Clause 28(4) had been amended to make reference to the establishment and maintenance of the National Declassification Database at the National Archives.
In Chapter 11, Clause 31 had been redrafted, relating to offences and penalties. The original definition section of the Bill had contained a number of definitions which the Committee had felt were not appropriately placed, and some of these definitions had thus been incorporated into Clause 31.
No changes were made to clauses 32 to 37.
Clause 38 had been reworded. There was also an alternative proposal, making provision for a fine.
Clauses 39 to 47 had not been reworded.
In Clause 48, OCSLA had proposed that subclauses (d), (e), (f), (j), and (k) be deleted.
Clause 51 contained the changes to the Criminal Laws Act 105 of 1997.
Mr Swart asked whether the Committee would consider Working Document 2 at this meeting.
The Chairperson suggested that the two documents be considered separately, with any queries under Working Document 1 being addressed before the Committee moved to consider Working Document 2. The Committee, having satisfied any queries on the separate proposals, could then consider and assess whether a dual or separate system should be applied. For this reason, he suggested that Members be given time to consider and raise any queries on Working Document 1, and should concentrate on that document only at this stage.
Ms Smuts referred back to her comments on the incorporation of the Constitutional reference in the Preamble, reiterating that she would be pleased to include this, and hopefully other sections of the Constitution as well. She asked the Chairperson why he had chosen to isolate this reference.
The Chairperson noted that during the public hearings the argument was raised that access to information was a Constitutional issue, and that questions of accountability and openness required right of access to information. One viewpoint argued that the right could not be interfered with, and that PAIA had already set out how the right could be exercised. However, Section 198(d) of the Constitution placed an obligation on Parliament and the Executive to deal with matters of national security. The Minister had conceded that classification was the key issue of national security. When dealing with the right of access to information, it was important not to overlook the difficult obligations of Parliament, as the public would obviously look to the government, the executive and Parliament to protect the national security. He thought that it was necessary to highlight this, to present a balanced view. No matter whether the public might complain, government must protect the public. It could not be assumed that those who would be classifying might be corrupt. This Bill was not trying to take away people’s rights but Parliament was responsible for national security.
Ms Smuts thanked the Chairperson. She believed that it was desirable to cite the Constitution to stress that the security forces were not a law unto themselves, but would therefore be subject to the elected government and to Parliament, which legislated under the Constitution and Bill of Rights, and for this reason she thought that inclusion of a reference to Section 198(c) might be useful. It went without saying that the Constitution governed this law, but it was useful to make reference to it.
The meeting was adjourned.