State security, classification and information trumps: The state’s awkward PAIA conundrum

By Gabriella Razzano

Access to information and classified records seem entangled in an awkward game of trumps. There appears a knee-jerk reaction to refuse access to information because it contains “classified” details whenever controversy surfaces. But the legal answer is meant to be simple. Isn’t it?

There appears a knee-jerk reaction to refuse access to information because it contains “classified” details whenever controversy surfaces. “That’s classified” was the public response to questions on Nkandla, questions on national key points, questions on Marikana and once, more amusingly, on questions about the Minister of Intelligence’s salary…

In South Africa, the legal answer is meant to be simple: PAIA can be used to access records, whether or not they are classified. While the state can refuse access for a number of reasons (one of which includes national security and defence concerns through section 41), “that’s classified” is simply not a justifiable response.

And yet, some public officials still scream “classified” when confronted with uncomfortable queries.(1) What makes the state’s position on classification and PAIA such a ‘Catch-22’ has just been laid bare by a successful PAIA application we made to the Department of State Security. In 2004 a report was commissioned under the then Minister for Intelligence Service’s Lindiwe Sisulu, which sought to explore and revise the classification and declassification of state information. (2) It is this report, which provided some of the impetus for the drafting of the Protection of State lnformation Act (also known as the “Secrecy Bill”), and at the same time reveals a PAIA conundrum for the state.

The main recommendations are notable. The report details the complete inadequacy of the current classification system (done mainly through a policy called the Minimum Information Standard); the incongruent classification of records particularly pre-dating the 1994 period; and the need to create a new National Information Security Policy that could better give expression to PAIA’s position as the overriding law in relation to information and information access.

This report supported the need for a new law on classification, a recommendation that was taken up with gusto by the Minister of State Security through the Secrecy Bill that still nervously awaits signature by the president. What this report importantly reveals though is a complete lack of congruence in the state security apparatus’ public stance on PAIA. The very report that justified their proposed new classification system clearly states PAIA must remain supreme, not least of all because many records that are currently standing as classified simply shouldn’t be. Yet in Ad Hoc Committee meetings on the Protection of State Information Act, the ANC members made specific recommendations (3) to try and override PAIA in spite of the Minister Sisulu’s express recommendations in this report.

It’s nice to be able to remind government of their own policies and recommendations, particularly as the Secrecy Bill looms closer to promulgation. The Minister of Police, or Intelligence, etc. cannot state the need for a Secrecy Bill, then hypocritically reject the source report for that law and try and threaten PAIA. PAIA demands they apply their minds to the information before them and the questions we ask – the knee-jerk response “it’s classified” is not good enough in law, in logic, or even in terms of their own policies.

The starting point is simple – openness is it, and to not be open requires a large amount of justification. Your classification stamp is only meant to deal with the internal management of records, and does not absolve you of your external responsibilities to enforce the public’s right of access to information. The report itself summarised the non-existent conflict very succinctly when it stated:

“It must be noted that PAIA makes no mention of classified information. The purpose of classification relates to operational and administrative needs i.e. to secure information in movement and use and to ensure that only those authorised to see it and use it, do so.

While this is so, the fact that a document is classified does not exclude it being subject to PAIA. Refusal of access to information must be motivated exclusively in terms of the exemptions stated in PAIA”.(4)

As Minister Sisulu gets it so clearly, I hope she can explain it to the rest of her colleagues.

This article was first published in Daily Maverick, 9 June 2015.