Protection of Information Bill [B6-2010]: two draft options presented (day 2)

Meeting report

Protection of Information Bill B6-2010
The Chairperson noted apologies from Mr J de Lange (ANC), Ms H Ngabadeli, (ANC), Ms M Smuts (DA), Mr M Sonto (ANC), Prof L Ndabandaba (ANC), Mr M Nchabaleng, Mr L Landers (ANC), and Ms L Jacobus (ANC). He noted that a number of Chairpersons had been moved to the Executive last year, resulting in numerous changes to the chairing of committees, which also necessitated new Members being deployed to this Committee. Parliament was in the process of putting those new Members on the ATC.

He reminded the Committee that Working Document 1 had been tabled and explained by the Office of the Chief State Law Advisor (OCSLA) on the previous day. That document had attempted to deal with harmonisation of the Protection of Information Bill (the Bill) and the Promotion of Access to Information Act (PAIA), and had provided for two systems of requesting classified information, either under PAIA, or through the Bill. Working Document 2, to be presented at this meeting, was substantially similar, with the main difference relating to the inclusion of an earlier suggestion that there should be one system only through which a member of the public could request information. Even if the information being requested was classified, it would, in terms of this draft, also be requested through PAIA. The Bill would then confine itself to definitions, technical aspects, and procedures for classification. Other consequential amendments that OCSLA had presented yesterday were also included in Working Document 2.

Mr D Maynier (DA) said that he still had some queries on Working Document 1, but agreed with the suggestion that OCSLA should present Working Document 2.

Mr S Swart (ACDP) noted that some of the amendments contained in Document 1 were included in Working Document 2, but questioned why, for instance, some of the proposed amendments were not highlighted in the same way and why, in Working Document 2, only the alternative definition for “national security” had been included.

Mr Enver Daniels, Chief State Law Advisor, OCSLA, reminded the Committee that both documents were working documents only, and that no decisions in principle had been taken yet as to which of the alternative definitions would be adopted. However, since the two documents were intended to be read together, OCSLA thought that it was not necessary to include every alternative in Working Document 2. Both documents incorporated suggestions from the Committee and Chairperson.

Ms Carin Booyse, Deputy Chief State Law Advisor, OCSLA, agreed that most of the issues (highlighted in green in Working Document 1) were also included in Working Document 2. She proposed to take the Committee only through the points of departure between the two.

On page 10, in Clause 1, the definition of ”head of organ of State” had been removed. In Working Document 1, references to the “head of organ of State” had been substituted with the term “information officer”, to bring the Bill in line with PAIA. The definition of “information officer” in PAIA did not, however, make any reference to what was, in this draft, contained in sub-paragraph (b) in relation to the national key points.

On page 14, only one of the alternative definitions that were proposed on the previous day, included in Working Document 1, in respect of “national security” was shown. However, she reiterated that no decision had been taken on the preferred definition, and the two documents should therefore be read together.

On page 15, new definitions had to be inserted for the “relevant authority” and “the requestor”, as both were referred to in PAIA. Working Document 1 had only needed to refer to a “request” as the position of the “requestor” did not arise in that context.

Clause 18, on page 30, had now substituted the reference to “the head of the organ of State” with the term ‘information officer”, and this was cross referenced to PAIA. Clauses 20, 21 and 22 all contained a similar substitution.

Ms Booyse indicated that the main differences between the two working documents was highlighted in Chapter 7, Clause 24. This working document did not propose a dual system. Instead, a request for access to classified information must be made, and granted or refused, in accordance with PAIA. In terms of subclause 24(2), if the request for access was granted by an information officer, relevant authority or court, then the information officer must declassify the relevant information. In terms of subclause 24(3), if information had been declassified, it must be disclosed on request.

The remainder of Working Document 2 was the same as Working Document 1. All relevant issues that had been changed were highlighted.

Discussion
The Chairperson referred to page 52, Clause 45(9)(a), pointing out that this also contained a reference to “information officer”.

Ms Booyse noted that this was a further consequential amendment to substitute “head of the organ of State” with “information officer”.

Mr S Swart referred to Clause 6 on page 20, noting that Working Document 1 had included subparagraph (j), which was omitted from this version.

Ms Booyse noted that the omission of Clause 6 (j) was an oversight, and would be corrected.

Mr Swart also noted that in Clause 19, the test for continued classification now included the word “significant”, which was a higher threshold than the wording used in Working Document 1, which referred only to “demonstrable harm”.

Ms Booyse noted that these words had been picked up from the original Bill.

Mr Swart said that although the issue need not be finalised now, the Committee would need to determine the test to be used, and ensure that all wording was harmonised.

The Chairperson made the point that in practice, the head of the organ of State was in most cases also the information officer, but he wondered if there were instances where this function had been delegated to other officials.

Mr Daniels responded that the practice differed across different departments; he had not had the opportunity to check the position fully.

Mr Maynier agreed that in most cases the Director General of departments was the information officer. However, in some cases the departments themselves were not sure of the identity of the information officer. He also noted that in practice, PAIA was not achieving the desired results of ensuring that information was made available.  The South African Human Rights Commission (SAHRC) had said, in its report, that compliance with and implementation of PAIA remained generally poor.  For this reason, he was concerned that if all requests were to be made through PAIA, this would effectively result in the public and Members of Parliament not getting access to information.

The Chairperson stated that Parliament had heard similar complaints from the public and other non government organisations (NGOs). However, many of the problems seemed to be related to human resource constraints. It was never the intention that government should be placed under unnecessary pressure and difficulties around requests for information, and certainly government activities should not come to a standstill because ore business had been interrupted by the necessity to pass on information. He suggested that the answers to the problems raised by Mr Maynier could not be found in this Committee, which should guard against putting in place any systems that could frustrate the process further. He pointed out that officials should be aware that not every request for information would have to follow the exact procedures set out in PAIA. For instance, it was not necessary to do so if a person requested a copy of his birth certificate or driver licence. He agreed that there had been instances where refusals were patently incorrect,  but this was the result of human resource problems, not the statutory requirements, and he agreed that these issues must be examined and resolved. Unfortunately the SAHRC had not offered practical suggestions for resolving the problems it highlighted. He added that at the time that PAIA came into operation, there was insufficient appreciation of the value that the internet and electronic communications could offer to government. Some documents could be made more easily available through the internet, perhaps at selected government facilities. He urged that it should not be assumed that only Parliament should assess how things could be changed, and urged anyone who highlighted a problem also to suggest solutions.

Mr Swart noted that the ad hoc Committee considering the Chapter 9 institutions, chaired by Prof Kader Asmal, had made some useful suggestions, including the setting up of a unit in the Office of the Speaker to assist with oversight. It had been conceded that Parliamentary committees had not done enough to assist bodies such as the SAHRC to perform their functions fully, and some steps had been taken already to address that, but in addition the Chapter 9 institutions seemed more willing to use powers available to them, such as subpoenas, to achieve their results.

The Chairperson then noted that Working Document 1 had reflected that the head of the organ of State would be responsible for classifying, and might be the person also to deal with a request for information, whether submitted through PAIA or the Bill, and there was provision for an appeal procedure through another body. Working Document 2 proposed one process for accessing information, including classified information, and here the information officer referred to in PAIA would receive and deal with the request.  He queried who, in this instance, would be the classifying officer, and whether it was possible that the classifying officer could also be the information officer.

Mr Daniels reminded the Committee that it was necessary to read the two documents together. The person who would classify information would be the head of the organ of State, or his or her delegated authority. In the public service, the information officer was often the accounting officer, although OCSLA was aware of at least one instance where there had been delegated elsewhere. He had considered the position, and felt that there was no contradiction between the information officer also being the classifying officer, adding that the person who may have classified information would also be able to declassify information. OCSLA would formulate and provide the Committee with a written opinion.

The Chairperson expanded on the process to clarify it. He explained that PAIA set out a procedure to be followed by a person wanting information. The relevant person at the State institution would either give the information, or refuse it, and in the case of a refusal, would specify the section under which the request was refused, with reasons, and would also notify the requestor of the appeal procedure. He added that some types of information, such as a copy of a driver’s licence or birth certificate, could of course be obtained immediately. If this Bill, however, were to be passed in its present form, the person who would deal with a request for classified information would be the “head of the organ of State”. He understood that this person could be the same person who had authority to consider requests for information under PAIA. However, the question must be asked whether this was desirable. He thought it would be useful to obtain perhaps more than one opinion, asking that any opinions should be fully supported with legal precedent or reasons. He added that his concern was that in terms of PAIA, provided the discretion was properly and lawfully exercised, the discretion granted to the information officer could result in either approval or refusal of the request. However, if the document was classified, the information officer would not have the same discretion, as the Bill said that the request must be refused. If this was so, then it could be argued that the Bill interfered with the powers given to that person under PAIA. He added that during the public hearings several arguments had been advanced that the Bill was unconstitutional because it interfered with some of the rights of PAIA. The Committee must therefore examine the issue thoroughly and ensure that there were no contradictions. He expressed his appreciation to OCSLA for the assistance given, and for its appreciation of the necessity to examine every issue in detail.

Mr Daniels said that he could provide something in writing by the following day.

Mr Daniels then noted that the Supreme Court of Appeal (SCA) had recently handed down its judgment in the matter of The President v Mail & Guardian, although there had been an indication that the matter may well be taken further to the Constitutional Court. The SCA had remarked that transparent flow of information was a vital component of democracy, and that the culture of justification permeated PAIA, and that an information officer must, when requested to do so, produce the information unless he or she could justify withholding it, with the public body having the burden of proof as to what would justify a refusal to disclose. The Court made the point that in most cases the information officer would not have direct knowledge of the facts and therefore must rely on documents or other hearsay resources. He suggested that the Committee should bear the Court’s pronouncements in mind when considering the Bill.

The Chairperson added that this case arose from the request to two South African judges to engage with officials in Zimbabwe prior to the Zimbabwean elections, which resulted in a report being made by the judges to the President. The Mail & Guardian had, under PAIA, requested a copy of the report, but it was refused. An application was made to Court, which ordered that the report should be made available, but that decision was taken on appeal, with the judgment of the SCA being delivered on 4 December 2010, upholding the decision of the lower court and ordering that the Mail & Guardian be given access to the report. A further appeal to the Constitutional Court had been noted, and if this proceeded, it would of course determine the law around issues that this Committee was considering. He agreed that the judgment of the SCA did contain useful comments on the status, integrity and duties of the information officer. It was highlighted that, contrary to the opinion by some members of the public that officials tended to be corrupt, most information officers acted in a responsible and considered manner, and could be assumed to have acted with integrity. At the time that the request for the report was first made, various reasons were presented why it should not be released, and the court had felt that these were not sufficient, but it was quite difficult to pick up, from the judgment, exactly what the reasons put forward had been.

The Chairperson then referred to the proposed definition for “information peddlers”, which he did not feel fully cover the issues. The term “information peddling” was frequently used in the intelligence community, and although it was familiar to intelligence operatives and people working in that environment, it would be difficult for all Committee Members to understand precisely what it encompassed, He noted that an open report had been filed by the Joint Standing Committee on Intelligence to Parliament, and was on the Parliamentary website, and recommended that Members should read it to broaden their understanding. One section of that report, headed “Threats emanating from information peddlers used by the Directorate of Special Operations”, noted that information peddlers were a network of people, many of whom were pre-1994 apartheid officers, who had worked in covert operations, including sanctions busting, and had links with foreign intelligence services. The report described their modus operandi of the peddlers, and showed how they manipulated and distorted facts, passing them on as if they were the truth, and how intelligence agencies and governments bought that information, as well as the resultant trouble. Many peddlers were doing this for purely financial reasons, or to get contracts from government institutions. Information peddling was a reality, and there was a clear instruction that legislation must criminalise these activities, which was the reason behind the provisions in the Bill. However, it was necessary still to define exactly what an information peddler was. He added that the Minister’s address to a previous meeting of this Committee had also outlined the problems.

The Chairperson referred to a recent media report about an attempted sale of information from Denel to a foreign government, and said that had the Bill already been in operation, that person could have been charged with espionage. Although this particular case concerned the sale of strategic information from Denel, other government institutions equally held strategic information, and in future a separate charge of passing on classified information would be competent. It was vital that sensitive information and government secrets should be properly protected against this type of infiltration. He recommended that those present should read the reports, and take note also of the charges, some of which were formulated under the 1982 legislation. He pointed out that other countries regarded such offences as extremely serious, some even imposing the death penalty on anyone found guilty, and there was a need also for the South African government to protect itself. This Bill was not being introduced in a vacuum, and the matters must be addressed, with some urgency, although of course this must not detract from the quality of consideration accorded by Members.

Mr Maynier said that his party still wished to raise several queries, particularly on Working Document 1, when appropriate, including concerns about the information peddling definition.

The Chairperson thought that the key issue to resolve at the moment was probably the PAIA issue, and others could follow, including the definitions, the question of the public interest defence, Ms Smuts’ concerns about the security forces, and other issues still outstanding from the public hearings. He suggested that perhaps Mr Maynier’s concerns could stand over.

Mr Maynier said he would have no objection to this, but thought that the definition and justification for the
information peddling clause should be revisited. There were new members on this Committee, and he suggested that perhaps it would be useful if the Minister or a delegated person could be asked to re-present the information peddling presentation given in June 2010 to the Committee. He added that at some point the scope and application of the Bill should be debated. He also thought it would be helpful if the Members could be provided with a schedule of all the institutions to whom this Bill would apply, to give clarity as to the scope.

The Chairperson said that effectively this had already been done. The Bill created the power to classify, which lay with the head of any organ of State. That did not mean that the power must be used, and some departments may never classify information. If, however, that power was used incorrectly to hide anything, this would constitute a punishable offence. The short answer was that it applied to all organs of State.

Mr Maynier still asked that the names of every institution be set out, as he thought that there may be consequences if, for instance, it applied to institutions like the Public Protector, or diminished powers of similar bodies. Another concern was whether the Bill was capable of being implemented properly across hundreds of institutions. His third concern was that it had been indicated that the Bill would have no financial implications, which he thought was incorrect; if it applied to the provinces, then Section 35 of the Public Finance Management Act was applicable. For these reasons, he felt that Members needed to be told exactly which institutions would be affected.

The Chairperson agreed that there might be some question as to whether, for instance, the Joint Standing Committee on Intelligence or the Inspector General of Intelligence were organs of State. However, Mr Maynier seemed to be asking a question of fact, and provincial governments would be organs of State, which were defined in the Bill.

The Chairperson said that, in relation to the cost implications, the Minimum Information Security Standards (MISS) was already applicable to all organs of State, who would be misperforming if they were not already carrying out the obligations imposed by these standards, and who therefore should have budgeted and spent to ensure that they were compliant with the procedures set out there. This Bill was trying to regularise the situation, as the MISS had made provision only for disciplinary steps for misperformance, but not for criminal charges.

Ms M Smuts (DA) quipped that this Bill was doing what the MISS had done, but in an “even more unconstitutional way”.
 
Mr Daniels said that he would try to address Mr Maynier’s question at a later stage.

Mr Maynier thanked him, but suggested that it would be more apposite for the Department to provide the list, not OCSLA.

The meeting was adjourned.