Protection of Information Bill: deliberations on Clauses 3 to 13

Meeting report

Protection of Information Bill: Continuation of deliberations from Clause 3
The Chairperson noted that the Office of the Chief State Law Advisor (OCSLA) had been tasked with effecting amendments to clause 2. He noted that when the Committee went through the whole Bill again, any issues flagged could be revisited.

Mr S Swart (ACDP) asked for final clarity on the voting procedure for the clauses, since the Chairperson had  indicated that, in spite of support for the amendments proposed being indicated, Members could still come back to debate issues further.

The Chairperson clarified that as the Committee went through each clause, parties would put their views for consideration by Members. If no consensus could be achieved, then the meeting would have to vote, to get some finality, on each particular clause. However, if the parties were still unhappy, they could say so. When the Committee had finished going through the whole Bill, the meeting would look again at the clauses that had been flagged. Clause 2 would be flagged because there was concern about the deletions that no longer appeared. However, the DA proposal to delete subclauses (a) to (f) had been finalised, by not finding general support, unless the DA and ACDP could come up with new arguments that persuaded ANC Members to change their view. He would not like every point to be argued again. However, if there were any new points or arguments, then they could be raised and put to the meeting.

Dr M Oriani-Ambrsoini (IFP) also asked for clarity that the Committee was not yet at the stage of final approval, so that there would still be voting clause by clause, as required by the Parliamentary rules, later.

The Chairperson said that it was not necessary to repeat himself again. He asked the State Law Advisors to deal with the new latest amendments.

Ms Xoliswa Mdludlu, Principal State Law Advisor, Office of the Chief State Law Advisor, tabled the latest version of the Bill, prepared after the meeting on 24 May, and said that in future OCSLA would note a date on each Working Draft document. She said that the only change was the deletion of clause 2(j) on page 18, indicated with square brackets.

The Chairperson also pointed out the consequential definition, in clause 2(b), of the replacement of “national security” for the original “national interest”. He reiterated that clause 2 had been flagged for further debate.

Dr Oriani-Ambrosini said that he would later present an amendment on hostile activities which, if approved, would have an effect on clause 2(f).

The Chairperson agreed that if it was necessary to revert to clauses because of consequential amendments arising from later discussions, then Members could do so.

Mr T Coetzee (DA) said that it was not cost-effective to print and distribute an entire new working draft, merely to reflect one change.

The Chairperson asked that the latest Working Draft be numbered “Working Document 4”.

Clause 3
The Chairperson noted that at the previous meeting there was concern expressed by the opposition parties that wording contained in the ANC’s previous position paper was no longer being presented.

Dr Oriani-Ambrosini thought that the Chairperson had made a suggestion that the meeting should not debate this clause, but move on to clause 4.

The Chairperson said that this was only a suggestion and that the ANC’s formal proposal had not been finalised.

Mr L Landers (ANC) reiterated the ANC’s proposal. In order to avoid imposing onerous classification responsibilities on entire organs of State, and in order that they comply with the provisions of the Bill, a new subclause was being proposed, which would read: “determine that part of an organ of state be regarded as an organ of State, as determined by the Minister”. He clarified that the purpose was to allow only the relevant section of an organ of State to classify, freeing up the remainder of the organ of State to carry out its primary functions.

Mr S Swart (ACDP) indicated that his party had no objection, as this proposal was limiting the application of the Bill to relevant parties.

Ms M Smuts (DA) said that if the proposal meant that the intelligence division of certain departments only would be subject to classification, then her party could support the proposal, which was in line with the DA’s original proposal. However, given that the rest of the clause remained so wide, this was almost academic. The DA would therefore not take a position. She then asked about the other aspect of the clause, relating to the possible inclusion of bodies charged with intelligence oversight, such as the Inspector General and similar bodies.

The Chairperson confirmed that all Members of the Committee would need to take into account, at some stage, whether such bodies would be included, and whether, for instance, the Joint Standing Committee on Intelligence was an organ of State, or whether Parliament would be the organ of State, in which case the Speaker would have the power to classify, but would need to delegate that function.

The Chairperson then also noted that there were also concerns about previous proposals made by the ANC not having been proposed for this clause.

Mr Landers then signalled the ANC’s intention to reintroduce the exemption or “opt-out” clause, whereby organs of State could apply for exemption.

Clauses 4 and 5
Mr Landers noted that the ANC proposed no amendments to clauses 4 or 5.

Ms Smuts put the DA’s proposal for the deletion of the whole of Chapter 2, noting that the ANC had at some stage also proposed this. She reiterated that the Bill dealt with two kinds of state information. Classified information required protection from disclosure. Valuable information, referred to in clause 5(1), required protection from destruction or loss, because it may be needed again. She did not believe that this Bill was the correct place to deal with valuable information. She noted that the National Archivist was already tasked with writing regulations around, and telling departments how to look after, valuable information. The inclusion of these clauses was a duplication. In addition, the DA believed that it was “unhealthy” to put the responsibility for valuable information in the hands of the Minister for State Security (the Minister) and intelligence agencies, as the Minimum Information Security Standards (MISS) already conferred the power to inspect all departments.

Dr Oriani-Ambrosini said that the IFP could not comment on clauses 4 and 5 without knowing how clause 7 would finally appear. However, he was not sure whether Ms Smuts’ argument around duplication was correct because, as far as he knew, there was no legislation to determine exactly what information was to be given to the National Archivist. He agreed that a decision on valuable information should not be in the hands of the Minister, as it was not his job to decide what was of historical importance, but only what was harmful to the safety of the Republic.

Mr Swart indicated that the ACDP would support the deletion of clauses 4 and 5.

The Chairperson noted that the main concerns of the opposition parties were that these clauses served no purpose. However, he thought that they in fact clearly set out what the Bill was trying to do.

Ms Smuts said that this replicated the MISS, which, in her view, was unconstitutional.

The Chairperson replied that these clauses sought to protect information from destruction and loss, and would inform the public what the Bill ought to deal with, and what should be done with valuable information. He had some difficulty in understanding her concerns.

Ms Smuts said that clearly the parties differed in their views. She then responded to Dr Oriani-Ambrosini that the National Archives and Records Services Act of South Africa (the Archives Act) gave a duty to the Archivist to deal with records and prescribed how it should be done. She reiterated that it was incorrect in principle that the National Intelligence Agency (NIA) and other government agencies and “spooks” had access to and control over information held by all government departments.

The Chairperson commented that some of Ms Smuts’ terminology was out of order.

Ms A van Wyk (ANC) questioned what would happen if valuable information was altered, or lost, saying that this would not be the problem of the National Archivist but would have wider implications. 

The Chairperson gave a hypothetical example that a person might find that his house was, due to an error or fraud within a department, no longer registered in his name at the Deeds Office. This was valuable information, yet those working with such information clearly had acted incorrectly. A whole range of “valuable information” was handled by a variety of state departments, and the possibility of altering or losing such information illustrated the need for protection, although it had nothing to do with the need for secrecy.

Ms Smuts responded that in the past, agencies had been monitoring departments, including the Department of Home Affairs, yet this clearly had not worked efficiently. She noted that the Archives Act contained a provision that “no public record shall be disclosed, erased or otherwise disposed of without a directive from the National Archivist”.

Dr Oriani-Ambrosini also responded also to the Chairperson’s example and said that he agreed with Ms Smuts, because the Minister would not have any institutional understanding or line function expertise of whether or not documents such as title deeds were “valuable” information, other than by exercising his common sense. Line function expertise could be applied only by the departments concerned, and he suggested that this issue would need to be addressed later.

Mr D Maynier (DA) asked if the example of the lost title deeds was a national security issue. If not, then the DA contended that this Bill should not address these issues.

The Chairperson reiterated that the Bill was dealing with both valuable information, and sensitive information. Sensitive information concerned security, but valuable information, because it did not relate to national security, was not classified.

Ms Smuts said that the whole Bill should be about national security only, and classification should be based on national security concerns.

Ms van Wyk believed that the arguments advanced were incorrect. A line-function Minister would in fact deal with the matter. Part of the problem seemed to be that some Members saw this Bill as “an intelligence bill”, and were losing sight of the fact that it was concerned rather with protection of State information, and that “spookery” was not to be seen behind every page.

The Chairperson agreed that there were many misperceptions. He urged that Members and visitors to Parliament should be responsible and reflect what was actually in the Bill. Nowhere did the wording make reference to “intelligence” although arguments were being advanced that this was so. He cited some comments that had been made to the effect that the Committee was attempting to reintroduce the Media Tribunal. He regarded that as irresponsible reporting. At no time had this Committee dealt with any such issues. Everyone must show responsibility when dealing with sensitive matters, and try to ensure that the country had the national security it deserved. It did not help if the general public was misinformed about what was going on in this Committee. Again, he urged all those reporting to show due responsibility.

Mr A Maziya (ANC) suggested that many of the arguments being presented were substantially similar.

The Chairperson asked if there was likely to be any consensus reached.

Ms Smuts said that the ANC had put its position, and the DA held a different view.

The Chairperson put the DA and ANC proposals to the Committee. By show of hands, the ANC’s proposal that clauses 4 and 5 not be deleted was carried. He reiterated that if there was anything further, as the discussions progressed, that indicated that any matter needed to be dealt with again, then the necessary actions would be taken.

Clause 6
Ms Smuts said the DA proposed that clause 6 be deleted, as its content more properly belonged in the Preamble.

Mr Landers indicated that the ANC did not agree with the deletion of clause 6.

Dr Oriani-Ambrosini said that this was an important clause. It did contain a number of principles, and perhaps Members could debate whether they could be included in the preamble. However, irrespective of the location of the content of this clause, it essentially set out what the Bill was all about. There was, in this area, a conflict between two “sides” of public interest – the one being the need to keep matters secret, and the other being the public interest in openness, accountability and transparency, as set out. International practice, and good common democratic principles, would support establishing a balance and determining which of these outweighed the other at any time. Although subclauses (a) to (i) set out noble ideals, subclause (j) then took back everything set out because it made all the previous ideals subject to “the security of the Republic”, which meant that at the end of the day, there was no balancing applied. The IFP therefore suggested that the words “are subject to” in clause 6(j) should be deleted, and instead the clause should read:” in balancing the legitimate interests referred to in paragraphs (a) to (i), the Minister, a relevant official or a court must have due regard to the security of the Republic, in that the national security of the Republic may not be compromised”. At the end of the day, the classification would thus be done by an authorised official who should take cognisance of all aspects when considering whether classification was necessary.

Mr Landers said that the second part of the ANC’s proposal on this clause was similar, and agreed that competing rights did need to be balanced against each other. The ANC had proposed that clause 6(j) read: “Paragraphs (a) to (i) are to be balanced with the security of the Republic, in that the national security of the Republic may not be compromised”. He said, however, that Dr Oriani-Ambrosini’s proposed amendment would indeed align clause 6 with the limitations provided in the Constitution’s section 36.

Mr Swart said that the ACDP would accept the ANC’s proposal, and said that this would achieve a better weighting, as making the preceding subclauses “subject to” subclause (j) would nullify their effect.

Mr Landers then set out the ANC’s proposal on clause 6(a), which was that, in line with the internationally accepted grounds for limitation of the right of access to information, this should read: “Unless restricted by law that clearly set out reasonable and objectively justified public or private considerations, State information should be accessible to all persons”.

Mr Swart noted that he would like an opportunity to consider the implication of the introduction of the words “reasonable and objectively justified”, particularly in relation to the Promotion of Access to Information Act (PAIA), and whether this might create an onus where previously there was not one. Presently, the onus was on the State to justify secrecy, as set out in the Mail and Guardian case (presently on appeal).

Ms Smuts suggested that only the words “unless restricted by law, State information should be accessible to all persons” were necessary. She thought that many of the difficulties were being encountered through attempts to justify matters, and she did not think it possible to try to define exactly how a balancing principle should work, as there were many rights that came into play.

Dr Oriani-Ambrosini thought all parties were essentially suggesting the same sentiments, and it was merely a question of applying the best language.

The Chairperson asked if the parties needed to vote.

Ms Smuts commented that she did not see the point of this exercise. Ideally, her proposal should be reflected as an option, namely to delete clause 6.

The Chairperson said that since there was not support for it at this stage, there was no reason why this should be reflected as an option. However, he asked for an indication from Members, and noted three Members in favour of deleting the clause. He noted that the proposals of the IFP in respect of clause 6(j), and the ANC proposals in respect of clause 6(a) were accepted.

Clause 7
Dr Oriani-Ambrosini appealed to all Members to look at this clause with an open mind, as it highlighted what the DA was proposing. He noted that the current wording was to the effect that the Minister must prescribe (by adopting regulations binding on all) broad categories and sub-categories of information that must be classified. Such “prescribing” would include, for instance, whether IDs and photographs of deceased persons should be kept (valuable information) or what broad categories of information should be classified. The Minister of State Security was thus being made the custodian of information, without necessarily having the expertise or skills in the subject matter of that information. There were further problems around the application; as the officials would merely apply the regulations. He suggested that instead, the Bill should be applied by every department, which should assume responsibility for the application in exactly the same way as they assumed responsibility to drive government cars in line with the road legislation. The IFP would like the Minister, rather than issuing binding regulations, issuing non-binding guidelines to assist the departments concerned in their work. In order to do so, a new subclause 7(6) should be added, reading: “Any person responsible for the classification of information, having regard to the guidelines contemplated in this section, shall apply this Act under the relevant circumstances.” Dr Oriani-Ambrosini noted that this Act could be applied without regulations, and anyone should be able, from the wording of the Act itself, to draw the necessary conclusions as to what should be classified.

He suggested that the present wording resulted in the Minister of State Security effectively becoming a “minister of all departments”, exercising a supervisory function in every department. In order that the Minister could properly understand what had to be classified in every department, he would need to have agents placed in those departments, or intelligence liaison officers and this raised the real danger of surveillance being undertaken, which was not desirable.

Ms Smuts concurred with most of Dr Oriani-Ambrosini’s comments. However, the DA’s proposal was to delete clauses 7(1)(a) and (b). An additional reason was that section 28 of PAIA already established the principle of severability of information. It was necessary to be careful before prescribing broad categories of information. Similar objections would be raised in respect of later clauses. The DA felt that clause 7(1)(c) could be retained, with the addition of the words, after “information held” of “by the security structures”, and by the deletion of the words “organs of State”. The DA further proposed that clauses 7(3) and 7(4) should be deleted.

Mr Landers noted the two proposals, but noted that the ANC was unconvinced by the arguments, and believed that the whole of clause 7 should remain. He pointed to the reference to the National Archives in clause 7(5).

The Chairperson noted that the DA’s proposal accorded with its oft-repeated stance that the Bill should apply only to security structures.

Dr Oriani-Ambrosini said that this clause was so important that Members should try to reach consensus. All Members were democratic in their approach. However, it was human nature to err and he would not like to see errors being made in favour of regulation, pleading strongly that guidelines would be more appropriate. He noted that South Africa had a huge security apparatus, bloated by apartheid and the former TBVC states, and he felt that giving the Minister the power to regulate may set the foundation for processes that the country may regret but only be able to identify when it was too late. He urged that Members give more consideration to the issues.

The Chairperson noted that there did not appear to be consensus. However, if Dr Oriani-Ambrosini could, at a later stage, come up with more powerful arguments, he may persuade Members to consider again whether a proper balance had been reached.

Dr Oriani-Ambrosini asked whether the ANC could give reasons for why it was not willing to consider the changes, which might, for their part, persuade the opposition to waive their objections to the clause.

Ms van Wyk agreed that this clause went to the core of the Bill. The ANC did not believe that information and security should be seen in a limited way or relate only to the “security apparatus” of the State. It went beyond criminal intelligence, state security, or security aspects around home and international affairs, and related to the redefinition of “security”, not only within South Africa. It was important to bear in mind why the titles had changed from “intelligence” to “security”, to reflect a change in approach. National security was seen as going beyond the security apparatus of the state in the different departments. She noted that in future water affairs might well become a security issue. The relevant Minister must, at the least, be able to put forward the standards and procedures that might be needed within each department to deal with future developments. The ANC acknowledged that the current MISS was not working, and recognised the need for something else. 

The Chairperson said that the Minister of State Security was the correct person to set out what the broad categories were, but he was not being asked to determine the law.

Dr Oriani-Ambrosini pointed out that, with respect, this statement was incorrect. “Prescribe” meant “prescribe by regulations” which were secondary law.

The Chairperson reiterated that this would reflect broad principles. However, he noted ruefully that his attempts to clarify the matter were seen as helpful by Members. 

Mr Maynier said that the problem was precisely the redefinition of “security”. If water were to be seen as a security issue, the DA still maintained that the Department of Water Affairs, who had expertise in water matters, and not the Department of State Security, should deal with it.

Dr Oriani-Ambrosini endorsed that, saying that a person with wisdom, expertise and common sense should have the power to issue guidelines. He said that the point of regulations versus guidelines had not been addressed.

Mr Swart noted that the ACDP supported the narrower application, as proposed by the DA and IFP. This was at the heart of the issue, and he would possibly want to raise other points at a later stage, once the full implications became apparent.

Mr Landers reiterated the ANC’s formal proposal that clause 7 remain, in its current form.

Dr Oriani-Ambrosini moved that final consideration of this clause be deferred.

The Chairperson noted that four votes were recorded to defer the decision. However, more votes were recorded in favour of the ANC’s proposal that no changes be made. Again, he noted that the opposition could, by advancing further and more substantive arguments, attempt to change the decision.

Clause 8
Mr Landers outlined the ANC’s proposal on clause 8(3). The present time frames provided for in the Bill needed to be aligned to the Court’s decision in Brummer v Minister for Social Development, which dealt with applications under PAIA, after an information officer had refused access to a record, and had ruled that the 30-day limit prescribed by PAIA was inconsistent with the Constitution. For this reason, clause 8(3) should be amended to read: “Each organ of State must establish departmental policies, directives and categories in terms of subsection (1) within six months of the date on which regulations contemplated under section 7(1) are promulgated”.

Ms Smuts said that this wording appeared to be constitutional, but reiterated that this comment must be seen in the light of the DA’s opposition to clause 7(1), since it wished the Bill to be limited to security organs of state and did not want the Minister to prescribe policies in the first place, nor have policy directives in categories which were not consistent. Therefore the DA could not move either to support or to delete this clause.

Mr Swart also indicated that the ACDP reiterated its argument on the limited application of the Bill, but would not object to the amendment proposed to clause 8(3), bearing in mind what had already been put on record about an organ of state.

Dr Oriani-Ambrosini said that the IFP agreed with the amendment of subclause (3).

The Chairperson asked the State Law Advisors to amend subclause (3) in accordance with Mr Landers’ proposal.

Dr Oriani-Ambrosini proposed that subclause 8(2) should be deleted. Apart from the objections raised under clause 7(1), this was poor drafting. All it said was that the law should not be broken, and the actions of a department must conform to regulations. He then said that if this deletion did not find favour, and he would not make an issue of it, then he would propose that at the least, it should be moved in position to below the current subclause (3) and the numbering of the two should be interchanged.

The Chairperson recorded consensus on the interchange of the numbering of clauses 8(2) and (3), and asked the State Law Advisors to effect that amendment.

Clause 9
Ms Smuts said that the DA proposed that Chapters 4 and 5 of the Bill be deleted, covering the deletion of clauses 9 to 12.

Mr Landers indicated that the ANC did not agree with the deletion. However, he proposed amendments to clause 9. In the first place, it appeared that the word “alteration” had been omitted, and that clause 9(1) should, in the last line, refer to “information that should be protected from alteration, destruction and loss”.

The Chairperson agreed that the Bill clearly did intend to protect information from all three possibilities.

Mr Landers then proposed that in clause 9(2), after “valuable information” there should be addition of the phrase: “developed and maintained by an organ of State”. This would ensure that organs of State understood their obligations to maintain and manage information, and would accord with international best practice to give guidance to public officials.

Ms Smuts thought that the omission was about classified information.

Dr Oriani-Ambrosini noted no objections from the IFP.

Mr Swart said that, as indicated earlier, he felt that the correct phrase would be “protect…against”. Mr Landers conceded the point.

The Chairperson instructed the State Law Advisors to effect the changes proposed by the ANC.

Clause 10
Mr Landers noted that the ANC proposed a minor amendment to clause 10(2), by substituting “as prescribed” for “as set out” in line 54 of page 11 of the Bill.

Ms Smuts and Dr Oriani-Ambrosini disputed whether this was necessary, pointing out that the mere fact of regulations meant that something would be prescribed. Ms Smuts further asked whether this was appropriate, saying that much in the Bill amounted to “discursive rumination and rambling”.

Dr Oriani-Ambrosini pointed out that this linked with clause 41. Valuable information need not be specifically marked, However, the holder of classified information must have knowledge. Under clause 41, he would be proposing the insertion of the word “knowingly”. He suggested that this be flagged.

The Chairperson summarised that quite a simple amendment had been proposed by the ANC. He asked Dr Oriani-Ambrosini to raise his points when the Committee discussed clause 41. He asked the State Law Advisors to effect the ANC’s amendment to clause 10(2) in the meantime.

Ms Smuts reminded Members that there was already an offence created under the Archives Act.

Clauses 11 and 12
Mr Landers said that it already had been agreed that “national interest” would be replaced by “national security”, and that the references to “commercial interest” would be deleted. This had resulted in deletion of clauses 11 and 12, and the drafters would undertake the consequential re-numbering. He asked that Members should, in the meantime, continue to refer to the chapter and clause numbers of the original Bill.

Clause 13
Mr Landers noted the ANC’s amendment to clause 13(b), to read: “must be protected from unlawful disclosure against alteration, destruction and loss, in the prescribed manner, and when classified…”This suggested that the handling instructions should be dealt with in the regulations.

Mr Swart suggested again that the use of the word “against” should be substituted by “from”, and that a comma be inserted.

Mr Landers agreed to this.

Dr Oriani-Ambrosini asked why “in the prescribed manner” was considered necessary.

Ms Smuts said that classification was the first way in which the information would be protected.

Mr Landers agreed, but said that this clause dealt with the handling of the information.

The Chairperson drew Members’ attention to the fact that the words “commercial or personal information” had already been removed from clause 13(a). He agreed with Mr Swart that “from” was a better word to use. Protection from unlawful disclosure should stand on its own, whereas destruction, alteration and loss would be grouped together.

Ms Smuts asked whether there would be any reference to the degree of harm in this clause.

Dr Oriani-Ambrosini put the proposals of the IFP, suggesting that in clause 13(b) there was a need to guard against all manner of risks. Seeing that security services tended to identify threats everywhere, international practice had been to refer to “clear and present” harm. The definition of “identifiable damage” spoke to something similar, when it referred to “demonstrable harm”. He therefore proposed that, in clause 13(b), and everywhere else that “harm” appeared, it be qualified with the words “clear and present”, to ensure that only these kinds of harm would justify classification. Without those qualifying adjectives, “harm” could be interpreted to include real, subjective or speculative harm. He pointed out that in the past, freedom had been restricted for quite insufficient reasons, and there was a need to guard against this in future.

Ms Smuts wondered if this was the correct place to qualify this. She agreed that safeguards were linked to the harm that could result. Whilst she agreed that “clear and present harm” tests would apply when deciding whether it was appropriate to classify, this was another matter.

Dr Oriani-Ambrosini said that there were also references to “harm” in clause 15. He was not sure whether “harm” here, and “harmful to the security of the Republic” were the same, and he said that it was possible to insert these words also in clauses 15(1), (2) and (3), where he would suggest use of the words “clear, present, corroborative and objective”.

The Chairperson stressed that this clause was dealing with classified information.

Mr Landers agreed that it was in much the same vein.

Mr Landers then proposed that clause 13(d) should be deleted, in order to limit the exercise of discretion by the official dealing with classification, and in recognition of previous cases referring to the dangers of uncontrolled discretion by state officials. Instead, a new clause reading “is likely or could reasonably be expected to cause demonstrable harm” should be inserted.

Ms Smuts indicated the DA’s agreement with this.

Dr Oriani-Ambrosini said that he did not understand the difference.

Mr Swart questioned whether it was appropriate to put this under clause 13. In his view, this was a threshold test that more properly would be placed under the classification levels, in clause 15. The words “Classified information – is likely or could reasonably be expected to cause demonstrable harm” did not make sense.

The Chairperson said that the thresholds would be changed, and this wording would be balanced against what was done to clause 15. He asked that Members should consider and propose changes to wording at the next meeting.

The meeting was adjourned.