Protection of Information: International Best Practices: Ministry of State Security briefing (Part 2)

Meeting report

Chairperson’s opening remarks
Members discussed their commitments for other meetings during the week, and the Chairperson noted that the next meeting would be arranged for Thursday or Friday in this week.

The Chairperson noted that Dr Oriani-Ambrosini had requested the opportunity to brief the Committee on an outstanding matter at the end of the meeting.

Protection of Information: International Best Practices: Ministry of State Security briefing (Part 2)
Mr Dennis Dlomo, Advisory Services, Ministry of State Security, noted that he would be continuing to present the case studies from United States of America (USA) onwards.

In USA, both legislation, and the Executive Order issued by the President covered the position. In USA, certain information needed to be kept in confidence, and this broadly related to matters including national defence, protection of citizens and democratic institutions, homeland security and interactions with foreign nations. This meant that military plans, weapon systems and operations, foreign government information intelligence activities, including covert actions, intelligence sources or methods, scientific and technical information were classified (see slides 48 onwards for full details).

There was a two-tier system. The first was driven by the originator, who determined the minimum security classification level. The President, Vice President, Agency Heads and officials who were designated could classify, and some US government officials were also delegated to classify, but they were limited to the minimum required to implement the Order. The delegated officials must show a demonstrable and continued need to classify. The information was classified at the point of creation or receipt, and levels of classification were also dealt with at the point of review, and at the time of creation or receipt. Information would never move in this system without classification.

Mr Dlomo stressed that there were two processes. The first was the original classification authority, as just described, and the second was derivative classification authority. Those with derivative authority could not determine what was a secret, but, during their research and consultation, they were expected to stick to the original classification. The information must take the minimum security classification required. There were strict rules guiding the originators – if they were to classify Top Secret documents they would have to attend upgrading training courses annually, while Secret levels required attendance at courses every two years. A failure to attend meant that the individual would be removed from the list of people allowed to classify.

Mr Dlomo added that there were two main types of review. A systematic review would be done to check the efficacy of the system, and this was usually done when a new President took office. He cited that during the term of President George Bush, there was extension of powers of interception into the domestic field and this was reviewed and changed when President Barrack Obama came into power.

Mr Dlomo then presented a case study on Canada. This country did not refer to “classification” but to “safeguarding” of information. In addition to safeguarding national information, it also sought to safeguard information received in confidence from a government of a foreign state or institution, international institutions, the government of a province or its institution, municipal or regional government or aboriginal government. This information, however, could be disclosed with the approval of the relevant authorities, or if those authorities made that information public themselves. He said that the aim was to ensure that past and current confidential sources of information, intelligence, or assistance to the Canadian government were protected. Places, persons, groups and entities were also safeguarded, as well as details about those engaged in covert actions, plans for military operations, methods used to protect information, and similar information related to or received from foreign entities or terrorist groups. This illustrated that its protection went wider than its own information.

Furthermore, given the background of Quebec secession demands in the past, Canada also sought to protect information which, if disclosed, could reasonably be expected to be injurious to the conduct of federal and provincial affairs, so it would also protect federal or provincial consultations or deliberations, or strategies relating to implementation.

Canada sought to protect information that could be injurious to the conduct of international affairs, or the defence of Canada or any state that was allied to, or in association with it. Because of the changing nature of global threats, Canada had revisited some of the definitions, in the wake of the ending of the Cold War and the 9/11 disaster. A concept of “subversive or hostile activities” had been incorporated, which Mr Dlomo pointed out was not entirely new, as South Africa had had such a concept in its legislation prior to 1994. Other inclusions related to the human rights perspectives. Canada’s definition included espionage against Canada or any state allied or associated with it, sabotage, activities directed at terrorist acts, including hijacking in a foreign state or other actions that sought to accomplish a change of government within Canada by use of force, violence or criminal means, activities directed to gathering intelligence information relating to Canada or an allied state, or anything directed at threatening the safety of Canada, employees or property of the government of Canada, outside Canada.

Canada had also debated the issue of public interest, and a defence of public interest was available, but it was limited to those who were permanently under secrecy. The relevant legislative provision noted that no party would be guilty of an offence if it was established that he or she acted in the public interest. In other words, although disclosure was an offence, if the public’s interest in having disclosure outweighed the interest in having the information protected, then disclosure would be permitted. He reiterated that this applied only to those permanently bound to secrecy, so the defence was also limited only to those people.

Mr Dlomo then outlined he position in Macedonia, which classified information pertaining to public security, defence, foreign affairs, security, counter intelligence and intelligence of organs of State, systems, appliances, projects and plans of importance to the public, to security, defence, and foreign affairs, and information relevant to scientific research and technology, economic and financial affairs.

The information would be classified by a number of people, including the President of Macedonia, the President of Parliament, the President of the Government, President of the Constitutional Court, President of the Supreme Court and others (see slides on page 17). Other people could also be empowered by written consent of the main classifiers. Persons empowered by laws, international agreements or other regulations could also be assigned to classify. The information was classified at the point of creation, and upgraded at the point of designation as a matter of State security by an empowered official. It could be reclassified by the creator or successor to the creator. Information was classified inside and outside Macedonia, subject to the provisions of the Macedonian law on exchange of classified information.

Mr Dlomo concluded by reminding Members that South Africa was primarily guided by its Constitution. His presentation had, against this background, also looked at international and regional instruments, and he summarised also that the best practice outlined had emanated from  number of expert sources and also set out in the Johannesburg Principles. No two countries shared exactly the same history and challenges, so the provisions of the Constitution and local legislation must be taken into account when considering what would best serve South Africa’s needs. More than 86 countries were engaging with issues around the protection of information on one hand, and trying to ensure broad access to information, on the other.

Discussion
Dr M Oriani-Ambrosini (IFP) wished to raise a point of order, and announced that a group of people who wished to have access to this meeting had been told that they were attending Parliament illegally and should seek permission from the Speaker.

The Chairperson did not believe that this was a point of order. He also did not believe that this Committee meeting was the correct forum in which to take up this matter.

Ms M Smuts (DA) expressed her dismay and stressed that it was both a Constitutional requirement and in the Rules of Parliament that Parliament was open to all. She implored that the Chairperson reconsider the matter, and, at the least, approach the Speaker and make it clear that this was not in line with the wishes of this Committee.

Ms M Mentor (ANC) supported the comment, but wondered if it was correct to deliberate on it now.

Mr S Swart (ACDP) asked if it was possible to find out now whether people had indeed been barred from attending, and who might have given instructions at the Visitor’s Centre as the Rules were very clear that access should be allowed, provided that the meeting was not closed. He agreed, however, that in the meantime the Committee should proceed with its work.

Mr M Nchabeleng (ANC) noted that people would have to produce suitable identity, and he wondered if perhaps this might be the problem. He suggested that the reasons for the refusal be requested.

Mr N Diale (ANC) agreed with Mr Swart and the Chairperson that the meeting should continue

The Chairperson reiterated that this was not a matter within the jurisdiction of this Committee, and agreed that access could be denied to a person for a number of valid reasons. However, he would undertake to make enquiries himself, although he would not do so now. Neither he nor any staff member or Member associated with the Committee had issued any instructions to disallow access.

Dr Oriani-Ambrosini raised three points on the presentation. He firstly asked whether “best practice” was good enough, given South Africa’s long passage from the 19^th century’s increase in secrecy and protection of information, through to the new season of more liberal access to information and a greater possibility to hold the State accountable.

Dr Oriani-Ambrosini did not think that the USA was necessarily a good choice of countries offering particularly good practices, although it would be useful to have more information about information on some of the matters that former President Bush had promised to release. He said that national security in USA was “horrendous”. He would also have liked to have heard some information on Germany, Italy and Spain, all of whom had experienced fascism and its foundation of secrecy, and who had later adopted more liberal approaches.

Dr Oriani-Ambrosini said that while the presentation had been useful in giving the broad background, the detail was also very important, and the brief outline of the USA system, without also dealing with the different layers and classification powers, and the concepts of national security and judicial review, did not really address the fundamentals of the system.

Mr Swart noted that the United Kingdom of England and Wales (UK) had at one stage had a similar defence, but had done away with it. South Africa was debating a public interest defence for the public and journalists. During the first part of his presentation, Mr Dlomo indicated that he would be giving some further information on the situation in Germany. Germany and Canada were closest to the South African constitutional model, and he asked for further information on their approach to the public interest defence.  

Mr Swart asked if other countries had a mandatory override of national interest, as set out in section 46 of the Promotion of Access to Information Act (PAIA), even where that could pose a threat to national security.

Mr Swart also noted that there was existing jurisprudence relating to infringement of privacy at common law and information illegally obtained, as set out in the Sunday Times court case, which noted that even where information was illegally obtained it may be necessary to publish it, in the public interest.

Mr Dlomo wished to clarify his own position before answering the specific questions. Many of the questions were subjective in nature, and he stressed that he could not comment on policy, and therefore could not be drawn into debates on policy choices.

Mr Dlomo said that “best practice” was not an end state or destination, as every country could always improve, and had to constantly review matters to avoid being left behind. South Africa should always strive to be the best.

He had attempted to include a number of jurisdictions in his presentation, and he pointed out that on the African continent there were some countries, such as Sierra Leone and Uganda, who had done some good work. However, in some cases, the laws were good on paper only, because there was as yet no history or meaningful implementation. Zimbabwe, for instance, had a fine set of laws around access to information, but there were several challenges in the way these had been implemented over the past few years. In the final analysis, his choice as to what countries to include had been guided by issues raised at the public hearings, and those from which he thought Members could benefit from the information. It was possible to spend hours just on Canada alone, since every one of its provinces had laws governing rights of access to information, and a number of documents to guide implementation. He had tried to strike a balance between useful comparisons and detail, and had deliberately opted, in some cases, to focus more on the overview.

As to the choice of countries, this too was intended to cover particular concerns. He had included Macedonia because it had looked specifically at classification after the 9/11 events, and many of the issues around technology received focus there. A number of commentators had referred to the Canadian model. He also pointed out that many of those making submissions had not actually cited their sources as quoting the Executive Order of President Obama, which was why he thought it was relevant to include USA. The UK had been the first country to create protection of information laws, by way of the Official Secrets Act. Some countries having right of access to information did not have correlating provisions making this a Constitutional right, and he had also tried to focus on the human rights perspective, as this was important in South Africa. He had, at the last meeting, also alluded to good new practices in unlikely spaces, such as China, and had stressed that it was important not just to approach this from an ideological stance, but to take into account what was actually happening on the ground and what could be of benefit to South Africans. He could not go into every detail in this document but was happy to provide further information and support.

Mr Dlomo noted that the public interest defence question was raised at a previous meeting. The first country to have this defence was the UK, but it had later amended the Official Secrets Act to do away with the defence because of implementation problems. He noted that this defence had been all-encompassing. He reiterated that Canada’s provisions related only to those permanently bound by secrecy. He could not comment on which was preferable, as this was a policy issue.
Mr Dlomo said that a number of dispensations did have protection of information legislation, and there was a model law which governed implementation in the Organisation of American States. Many countries were also modelled their new legislation on South Africa, including India, who was watching developments in South Africa with much interest.

Mr Dlomo added that he would be happy to make a list of references available, so that Members could study the issues further. Some information relating to Germany was still being translated.

Ms P Mentor (ANC) asked that references included in the documents should contain all relevant names, so that they were easier to trace. Otherwise, she had found the information useful.

Ms Mentor asked how long officials would be sworn to secrecy, noting that there had been instances in the past where officials had entered the system, accepted the privilege of receiving classified information, but then, when exiting the system, made use of that information. This situation could well arise currently in North Africa and Libya, pointing out that if information was released it could be to the disadvantage of the state.

Mr Dlomo noted that the time frames varied from one dispensation to another. In Canada people were sworn to secrecy for their entire lives, unless they made specific application to be released of this obligation. If they failed to do so, but released the information, they could be prosecuted. There were similar provisions in South Africa, although no prosecutions had been instituted. In the United Kingdom there had been cases in which courts had ruled that experiences in institutions could be documented, including the Spycatcher case. The more open systems tended to have a “cooling-off” period of perhaps five or ten years after leaving office, during which an official could not be involved in any business or endeavour closely related to his or her  previous work, unless express permission was given by the organisation or State organ concerned.

Ms Mentor commented that whilst the presentation had set out the review periods, it had not contained much detail on what systems were necessary for the entire process of classification, and asked that this be given.

Mr Dlomo said that he had tried to give some details around systems, pointing out that it was necessary to look at the whole process, from creation to destruction of information, to cater for each eventuality. He had also described the systems of review, and the fact that in internal reviews, officials who did the classification were not involved in the decision to review that information, and that Minister’s final responsibility was reviewable by the Courts. However, it was very difficult for him to give an overview on this, although he would be able, for instance, to answer to specific questions relating to the specific systems in a chosen country. It would be helpful for this Committee to look at what instruments and documents were in place elsewhere, but these must be used to assess what would be the best that South Africa could apply.

Ms Mentor did not wish to question the case studies already presented, but commented that it might have been helpful also to include comment on Brazil and India, as they were emerging economies, who faced challenges of protecting growth.

Mr Dlomo responded that he was familiar with the situation in the BRIC (Brazil, Russia, India, China) countries, but had not specifically included them in the presentation as his instructions were related to the framework he had presented. He could answer specific questions if Members wished. Brazil adopted a right to access to information law in 2010, but it was not yet being implemented. India was reviewing its law on access to information. China, which he had mentioned in passing, also had a right of access to information law, and had  come up with some innovative ideas about the management of information. Work was being done in Russia, but there were ongoing discussions about the extent to which the law should go, and there were a number of challenges. The countries he had presented did have some tangible experiences to present.

Ms Mentor commented on the example cited of Zimbabwe, saying that it would be interesting to consider the correlation between not divulging secrets and the fact that the economy was not melting down and that President Mugabe continued to be supported.

Mr Dlomo said that he could not comment on this, as it had to do with policy.

Mr Dlomo reiterated that he would make a full list of references available, and could provide references to websites where more information could be obtained, including the laws of the different countries, which would assist Members in getting a full understanding. He commented that his list remained “work in progress”.

Mr B Fihla (ANC) commented that this Committee, when trying to assess best practice, really needed to take account of the stage of development of the countries, and what could most usefully be adapted to South African conditions, or what clearly could not work. He urged that the finest and most relevant of the “best practices” should be considered.

The Chairperson said that Members, in raising these questions, were not criticising what had been presented, but clearly wanted to get as comprehensive information as possible.

Ms M Smuts commented that the UK was a land of secrecy and was not necessarily the best to emulate. She had found the presentation very useful, particularly in relation to USA and Canada, noting how these countries restricted the categories of what was classified and who could classify. She thought that what was being classified there – essentially matters relating to military matters, capabilities, weapons, intelligence, foreign relations, scientific and technological matters and matters that could be injurious to international affairs – should be the categories for South Africa to consider classifying. She noted that delegations wee limited to the minimum, and that it was necessary to show a demonstrable need to classify, and to constantly train officials. Although not as much detail was included for Canada, she noted that similar considerations applied to who could classify there. She commented that this Committee seemed to have arrived at a point that it recognised that matters to be classified were essentially linked to military and state security issues.

Ms Smuts agreed with the comment that it was necessary to introduce the best practices that would cater for South Africa’s own situation. She noted that the fact that the spokesperson for the Hawks had said that crime intelligence was corrupt, and the comments by Rev Frank Chikane previously quoted, indicated that it was necessary to have a public interest defence, unless the legislation was written only to deal with intelligence personnel. She began to expand on this.

The Chairperson interjected to say that this was not the correct time to hold such a debate. He asked that her comments be presented later, as time was now short, and asked her to confine herself to questions to the presenters at this stage.

Ms Smuts said that she had no further questions for Mr Dlomo at this stage.

Professor L Ndabandaba (ANC) asked if there were any standards set by multilateral institutions.

Mr Dlomo responded that in the first part of his presentation he had given an overview of the international instruments, which provided broad guidelines, but this list was not exhaustive. All of these instruments set grounds for restriction of the right of access to information, and he had illustrated also some international and national jurisprudence from different countries. The Johannesburg Principles on National Security and Access to Information were the latest compilation, but had not yet been subjected to serious scrutiny or study, although in April 2011 there would be a review of these Principles and other documents, to try to enhance best practices.

Ms Mentor commented that the Committee had come quite far, and said that while she appreciated Mr Dlomo’s stance that he could not comment on policy issues raised, it would be useful for him to take note of what Members were raising and feed it back to the Ministry of State Security. She thought that the Committee could now move forward by itself, with the last major issue seemingly being the issue of the public interest override, and asked the Chairperson if there did not need to be substantial discussions on this, although she was not trying to map out the agenda for the Committee. On the whole, the Committee seemed to be reaching a point of convergence.

The Chairperson agreed that public interest matters were a substantial issue, but he would hesitate to say that this would be the last issue that the Committee must deal with.

The Chairperson noted that it would be useful now to take the comment from Dr Oriani-Ambrosini, who had requested five minutes to emphasise an issue.

Comment by Dr M Oriani-Ambrosini
Dr Oriani-Ambrosini said that he wished to discuss the need for a public domain exception. He noted that once something was in the public domain – perhaps through publication in the media – then no individual could be charged with that knowledge because it was no longer secret. The point was how it reached that point. Information was protected, not the publication.

Dr Oriani-Ambrosini started to give an account of something that had occurred in a Cabinet meeting.

The Chairperson stopped Dr Oriani-Ambrosini at this point, saying that if something was in Cabinet Minutes, it was classified, unless it was in the public domain already.

Prof Ndabandaba said that if Cabinet issues were to be discussed, then somebody from Cabinet should be present to verify whether what was being presented was correct.

Dr Oriani-Ambrosini said this was classified information, which he was allowed to disclose.

Ms Mentor took issue with this, saying that information from Cabinet should never be divulged.

The Chairperson asked for a simple answer whether the information was common knowledge and in the public domain. The answer was in the negative. It was not really relevant at this point whether anyone from Cabinet was available to verify the information since matters that were classified in Cabinet could not be entertained here. If Dr Oriani-Ambrosini was intending to give an example that was intended to support his contentions on information in the public domain, it could not be entertained. He therefore ruled that the information must be withdrawn. The Chairperson would take an opinion on the divulging of the information. It was inappropriate that Dr Oriani-Ambrosini could place the Committee in a position where it might be colluding with the publication of classified information.

Dr Oriani-Ambrosini said that he would withdraw what he had said. However, he believed that he had a Constitutional right to speak on this information. He asked Members then to consider their positions if the Protection of Information Bill had already been passed. Each Member had, at his request, started to take notes on what he was saying. That would, if the Bill was passed in its present form, make them liable to imprisonment for 15 years. If they conveyed that information to others, then a further term would apply. If journalists were present who thought that the information was in the public interest, then not only the individual journalist, but also the editor, would be liable to imprisonment. Only when information was published did everyone recognise that the reader of the newspaper would not be charged. He wanted to discuss with the Parliamentary Legal Advisors how best to construct a public domain exception, and the example he had given illustrated the need for public domain provisions, so that once the information was no longer secret, it was no longer protected.

The Chairperson expressed his strong disapproval with the manner in which this was presented. He did not agree that Dr Oriani-Ambrosini’s examples and assumptions were correct, and said that if the Bill had indeed been passed, Dr Oriani-Ambrosini would be in serious trouble.

Ms Smuts said that he would be protected by Parliamentary privilege.

The Chairperson said that Members could debate the issue of whether it was necessary to include something in the Bill. However, he reiterated that he considered the presentation to have been in bad taste, and Dr Oriani-Ambrosini could have made his point in a less provocative and more appropriate way. The Chairperson had been generous in allowing him the opportunity to address the Committee. People with Top Secret clearance should not be acting in this way, as it amounted to abuse of the position.

Mr Swart returned to the point raised earlier about the group who had been denied access to Parliament, and alerted the Chairperson to the fact that they were apparently bringing an urgent application to Court, and urged that Parliament should act now to try to avoid litigation.

The Chairperson reiterated his earlier undertaking that he would take the matter up with the Speaker.

The meeting was adjourned.

Appendix 1
News24 article : Buthelezi refused to shred report - IFP               
2011-03-29 
 
Cape Town - IFP president Mangosuthu Buthelezi was ordered by the Mbeki Cabinet in 2003 to
destroy the critical report of the Van Zyl Slabbert Commission on the Electoral Act, but refused,
MP Mario Oriani-Ambrosini claimed on Tuesday.
 
Instead, Buthelezi, who was then home affairs minister, gave copies to university libraries around
the country "where you can find them today", he said.
 
"He was called back and rapped over the knuckles and he said it is fine, if you want to fire me,
fire me or get stuffed," said Oriani-Ambrosini, who served as Buthelezi's special adviser and
enjoyed top secret security clearance.
 
"Of all his colleagues, only I and Zola Skweyiya backed him," he said.
 
Oriani-Ambrosini made the revelation during a sitting of the ad hoc committee drafting the
contentious protection of information bill to illustrate a problem with its definition of public domain.
 
It outraged ruling party MPs who warned that he was breaking the law and that they did not want
to hear any more.
 
"I'm concerned about whether what you are putting in the public domain is already out there. If it
is not, then I cannot allow you to disclose it in here. It might be complicit to an unlawful activity,"
said ANC committee chair Cecil Burgess.
 
"If these things are classified there, I cannot entertain it here. Therefore I am going to rule that
you must withdraw that information and I will take an opinion on it." 
 
Secrecy Act
Oriani-Ambrosini confirmed that he was indeed making public classified information, but said he
was protected by parliamentary privilege.
 
"It is a piece of classified Cabinet information covered under the Secrecy Act which I have the
privilege under the Constitution to disclose to this committee because it is a submission to a
committee and as such is privileged."
 
He said he had made the point to show that if the bill became law as it stood, any fellow MP who
made a note of what he had disclosed would be deemed to be in possession of classified
information and imprisoned.
 
"In terms of the bill, if it were law, each of you would have to go to prison for 15 years... because
information is being transferred and the mere possession of that information is a crime.
 
"Let's assume that you are shocked, as you should be, and you are going to seek a legal opinion.
You are going to convey that piece of information to somebody else. Now conveying a piece of
information, it's another 20 years."
 
Provocative
These remarks drew another reprimand from Burgess, who lamented the provocative manner in
which the IFP MP had sought to make a point.
 
"The way you put it across was in bad taste. People who have security clearance should not
behave in the manner in which you have behaved."
 
Dene Smuts, of the Democratic Alliance, said she stood with her opposition colleague in fighting
untenable provisions in the bill which criminalised and harshly punished possession of classified
information, but that his legal argument was flawed.
 
If Oriani-Ambrosini was seeking to extend the definition of public domain so as to absolve those
who subsequently dealt with leaked secret information, his attempt would fail in coming up
against a 2008 Constitutional Court ruling written by Deputy Chief Justice Dikgang Moseneke.
 
In Independent Newspapers v the Minister for Intelligence Services and another, the court found
that whether or not a classified document "has been disclosed to some degree in the public
domain is a relevant, but not decisive factor in determining whether the document deserves
continued protection".
 
It went on to state that a leaked confidential document does not summarily lose its classification,
because this would encourage people who would benefit from their misconduct.
 
National interest
The bill gives the state far-reaching powers to classify information as secret and has been widely
described as a throwback to the apartheid era.
 
Amid a public outcry last year, the state security ministry removed two offending provisions,
including one allowing classification in the national interest.
 
Concerns remain over the right it gives hundreds of organs of state to classify information and the
lack of public interest defence to protect the media and whistleblowers.
 
In a surprise move, ANC MP Vytjie Mentor on Tuesday said the committee should debate the
question of a public interest defence as it could clear a major obstacle in finalising the bill. Her call
drew a lukewarm response from Burgess.
 
The Van Zyl Slabbert Commission found that South Africa's present electoral system lacks
accountability and proposed a system akin to the local government model, which combines
constituencies and proportional representation.
 
- SAPA