FREEDOM OF EXPRESSION INSTITUTE’S
COMPREHENSIVE SUBMISSION TO THE AD HOC COMMITTEE ON INTELLIGENCE LEGISLATION IN RESPECT OF
THE PROTECTION OF INFORMATION BILL


20 June 2008


EXECUTIVE SUMMARY:

    The main objective of this Bill should be the preservation of the maximum degree of individual liberty of which freedom of expression forms an integral part and includes the right both to receive and impart information.

    The Bill has not achieved its object of meeting the acknowledged requirements set out in the preamble, being the transition from a presumption of secrecy to a presumption of openness.

    This anomalous outcome of the Bill would be contrary to the spirit of opening up the information “Pandora’s Box” of the past and could also effectively be utilized to hide information pertaining to the post apartheid era for example information relating to the arms deal.

    Although the Bill may appear to be a sincere attempt to place a considerable amount of information in the public domain the fact is that the Bill also contains a number of provisions which effectively negate the operation of the self executing declassification.

    Irrespective of any other consideration, no classification should under any circumstances endure for a period which exceeds 50 years

    The ambit of the Bill should be restricted to matters which are strictly to do with the preservation of national security where absolutely essential and matters directly related thereto.

    Many of the matters which are brought within the purview of the Bill could be appropriately dealt with under civil law.

    Although classification of information would be subject to the methods and principles set out in the Bill and according to the criteria contained in the IVA in section 8 and the principles contained in section 22, there is no external body which has the right to oversee this process. The existence of standards methods and criteria for classification without appropriate external checks and balances remains a fundamental flaw of the Bill.

    The Minister has been granted extremely extensive powers under the Bill. Once these powers have been granted they may well be abused.

    It appears that there is an undue centralization of power in the NIA and the Minister to the detriment of the independence of other organs of state and could well lead to significant empire building within the NIA as it utilizes its powers under this Bill to implement policy decisions, standards and development of security processes.

    The “double blind provision” is in our view fundamentally unconstitutional. It invites an element of untruthfulness, equivocation and obstruction of fair and reasonable enquiry. It is virtually impossible to make any reasonable headway in discovering the true state of affairs when such provisions are in operation. The provision allows public servants rights which are directly contradictory to the obligations that the Bill imposes on all citizens not to provide false information to Intelligence Services. This is not a fair and even handed approach and as such is an unequal handling of the relationship between the state and the individual. We do not believe that his limitation on the right to receive information would stand the test of a section 36 of the Constitution balancing of interest’s analysis.  

    The crucial role of the media in promoting Constitution building and maintaining a watchful eye on the activities of Government will be adversely affected by the omission of a “public interest clause”. The severe penalties included in the Bill will have a powerful disincentive effect on investigative journalism. It is cold comfort to purport that prosecutions would not be lightly undertaken since the threat constitutes a proper Sword of Damocles.

    What is required is an exemption which would require only of the journalist to allege a bona fide interest. In the event that such bond fide interest was contended against by the State the onus would be on the State to prove the absence thereof in line with the normal criminal law onus of proof.

    The creation of an Ombud type office would go one a long way to allaying the disquiet of the public regarding intelligence affairs. In addition an Ombud would have been a useful, easy to access and cost effective method of addressing inquiries and complaints in respect of the status of classified information.



INTRODUCTION:


1.    The Freedom of Expression Institute (“FXI”) thanks the Ad Hoc Committee on Intelligence Legislation (“the Committee”) for the opportunity to make its comprehensive submission on the Protection of Information Bill (“the Bill”). It should be noted that we will, for the sake of brevity, confine ourselves to discussing issues which directly impact on our mandate.   

2.    FXI was established in 1994 to protect and foster the rights to freedom of expression and access to information, and to oppose censorship. The FXI’s primary objectives are to fight for and defend freedom of expression; to oppose censorship; to fight for the right of equal access to information and knowledge; and to promote access to media and a free press.

3.    Its subsidiary objectives are the opposition of any limitations imposed on the freedoms aforementioned be they at the instance of the State, the private sector or civil society, through public pronouncements and litigation; provide support, solidarity and unity of purpose among those subject to censorship; educating the public about the dangers of censorship; monitoring the effect and implementation of censorship in South Africa; network and engage in solidarity with groups opposing censorship locally and internationally; promoting access to information and knowledge and information generally and by monitoring proposed legislation that may make this possible; campaigning for the freedom and independence of all media.

4.    The FXI undertakes a wide range of activities in support of these objectives, including lobbying, education, monitoring, research, publicity and litigation and the funding of legal cases that advance these rights.

5.    In the light of this we have prepared this submission for presentation to the Committee. It should be noted that our main concerns are merely summarized, and the FXI will be more than willing to elaborate on any aspect of these concerns at the public hearing.

6.    While we appreciate the fact that we have been able to discuss certain controversial aspects of the Bill with members of the drafting team, we are deeply concerned that fundamental issues that were addressed during these discussions are not reflected in the Bill. 


DIFFERENCES IN MATTERS OF PRINCIPLE:


7.    At the outset we wish to state that we have been encouraged by the Ministry of Intelligence’s (“the Ministry”) commitment to create a Bill that will be constitutionally compliant. We have however numerous reservations as to whether the Bill meets all of these aspirations. In particular we do not believe that the Bill has achieved its object of meeting the acknowledged requirements set out in the preamble, being the transition from a presumption of secrecy to a presumption of openness.  

8.    In this respect we believe that the Bill suffers from various problematic provisions and a number of omissions.   On the omission side, the inclusion of an Ombudsman type office would have gone a long way to meeting the requirements of openness and transparency. Similarly the absence of a “public interest exemption” in the Bill has cast doubt on the genuine intentions of the Ministry. As far as the problematic provisions are concerned, we believe that the sweeping powers granted to the Minister in respect of the extension of the periods for which information may be classified and the existence of “double blind” provision militate against acceptability. These and other provisions of similar ilk are discussed more fully below.   

9.    We believe that it is vital that issues such as these are addressed to offset the extensive negative public perception which surrounds the Ministry following the protracted court battles over the last 18 months.

10.    The decision “automatically” to declassify all information classified before 10 May 1994 appears to have been taken with a correct view to  expose the sins of the apartheid era but raises the question why events which took place immediately thereafter such as the entire arms deal debacle have been carefully excluded from public view. This creates the perception amongst the public that the Ministry is not serving the Constitution but simply the Government of the day.
     
11.    While we understand that the departure point has been dictated by the Ministry’s view that the State’s function is so multifaceted that it embraces virtually every aspect of modern life, we do not share the view that it is necessary to bring the vast majority of those interactions within the purview of the Bill.

12.    We have noted that the intention is not to make every natural person or body subject to the Bill except where specific obligations are entailed but still believe that the general ambit of the Bill should be restricted to matters which are strictly to do with the preservation of national security where is absolutely essential.

13.    The extension of the Bills operation to all organs of state has some unintended consequences and could lead to its provisions being utilized in areas where it is totally inappropriate. In this respect we refer you to our comments regarding the National Key Points Act.

14.    All of the views that are expressed by FXI are expressed with a strong recollection of the provisions of the Protection of Information Act of 1982, which this Bill will repeal. It is important that the onerous provisions of that Act are not allowed to slip into the new dispensation. By default in this Bill or the subsequent regulations.  

15.    The previous Act was promulgated at the height of the apartheid era. It is characterized by sweeping powers and a general disregard for human rights and the rule of law. Its fundamental purpose was ostensibly the protection of sensitive information but it was couched in such broad terms that its provisions have a very wide ambit. It is precisely because of the nature of this Act that one must be extremely circumspect in the appraisal of the new Bill which replaces it. Any provision in the new Bill which seeks to continue the unfettered and draconian powers of its predecessor must be rigorously opposed. The euphemistic term “protection of information” often belies the reality of information being suppressed. Far too frequently the critical faculties of the public are dulled and deflected by the invoking of the security icon. In this respect we draw attention to the comments of Ms. Lauren Hutton in her paper “Looking beneath the cloak” (Institute for Security Studies Paper 154 - November 2007) at page 2 “When the survival of the ruling party is under threat and the maintenance of political power is the prevailing preoccupation of state security structures however, the suppression of domestic political dissent frequently becomes an intelligence priority. In authoritarian, undemocratic, dictatorial or autocratic regimes, intelligence often becomes an essential tool of oppression and control. The general trend seems to be that the more insecure a regime or ruling party, the greater it the domestic role of intelligence services. The apartheid state was not unique in this regard”.  

16.    As a departure point we would like to affirm that our position is unashamedly in favour of the preservation of the maximum degree of individual liberty of which freedom of expression forms an integral part. Individual constitutional rights include the right both to receive and impart information. We believe that it is essential that these rights are vigorously and jealously guarded.



ANALYSIS OF CURRENT BILL (18/03/2008 published in Government Gazette No: 30885):


Express failings in the current text:


Objects of the Bill:

17.    The Bill aims to replace the presumption of secrecy with a presumption of openness. The aim of the current reforms is to reduce significantly the volume of information classified but at the same time to strengthen the protection of state information that truly requires protection.
 
18.    The absence of a comprehensive statutory framework has resulted in an unstable and inconsistent classification and declassification environment, excessive costs and inadequate implementation. A lack of clarity and direction on what actually requires protection has resulted in this state of affairs.

19.    FXI does not contest the fact that a statutory regime is necessary. What we do question is the Bill’s presumption as to what information should be withheld from the public. The question that then arises is what information truly requires protection and does the Bill actually provide clarity and direction in respect of classification of information. In essence does the Bill actually replace the presumption of secrecy with a presumption of openness and achieve its desired objectives?

20.    In order to ascertain this it is necessary to look closely at the structure which is being proposed by the Bill and to evaluate the methods by which the Bill intends to achieve the stated objectives. Firstly we need to address the scope and application of the Bill.



The Scope and Application of the Bill:

21.    Here the FXI is concerned about two sections namely section 3 and section 15 of the Bill. Section 3 deals with the application of the Act and section 14 and 15 deal with sensitive information and “the national interest”.
 
22.    Section 3 has extremely broad parameters applying to all organs of state and juristic and natural persons upon whom or which the Bill imposes duties and obligations.

23.    In terms of section 239 of the Constitution, an organ of state includes any department of state or administration in the national, provincial or local sphere of government or another functionary or institution exercising a power or performing a function in terms of the Constitution or a provincial constitution or exercising a power or performing a public function in terms of any legislation.

24.    The Bill goes further to include in the definition of “organ of state” a facility or installation declared as a National Key Point in terms of the National Key Points Act 102 of 1980 (“NKPA”).

25.    Section 2 of the NKPA states that if it appears to the Minister of Defence at any time that any place or area is so important that its loss or damage, disruption or immobilization may prejudice the Republic, or whenever he considers it necessary or expedient for the safety of the Republic or in the public interest, he may declare that place or area a National Key Point.

26.    Subsection 10(2)(c) of the NKPA provides that any person who “furnishes in any manner whatsoever any information relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there, without being legally obliged or entitled to do so, or without the disclosure or publication of the said information being empowered by or on the authority of the Minister, or except as may be strictly necessary for the performance of his functions in regard to his employment in connection with, or his ownership of, or as may be necessary to protect, the place concerned, shall be guilty of an offence and on conviction liable to a fine not exceeding R10 000 or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment”.     

27.    One of the most disturbing aspects of the NKPA is the fact that the determination of what place or area should be declared a national key point is left up to the discretion of the Minister. There is no public scrutiny of how areas or places are declared national key points nor is there any mention of what considerations are taken into account when declaring national key points. This opens the NKPA up to abuse, where government chooses to declare any area or place a national key point for purposes of suppressing information concerning such national key point and reporting on events and occurrences at the national key point.

28.    The nett result of this is that the operator of a national key point could conceivably utilize the prevailing legislation to effectively silence criticism and fair and objective reporting on incidents occurring at the key point and because of the interlinking operation of the NKPA and this Bill such information could be further removed from public scrutiny by such person acting as a head of an organ of state by the act of classification.

29.    The inability of the press to report properly under such circumstances severely impacts on freedom of expression and the public’s right to know. Examples of how this can occur in practice is the declaration of a fuel refinery as a national key point and the suppression of information relating to negligent practices and/or labour dispute issues which the head of the national key point acting as head of an organ of state is able to achieve effectively. While we are aware of provisions in this Bill which are designed to address false classification we believe that the problem relates to a practical overcoming of such action in order to publish.  

30.    Furthermore, the Bill applies to natural and juristic persons “to the extent that the Act imposes duties and obligations on such persons”. While we accept that both natural and juristic persons should be covered, we have a problem with the scope of the Bill in terms of its application to the enormously wide area which it purports to cover. This is evidenced by the provisions of sections 14 and 15 we discuss below. We believe that this is a better option since it avoids the criminalization of matters which are essentially in the civil domain.
 
31.    In our view many of the matters which are brought within the purview of the Bill could be appropriately dealt with under civil law. In this respect we point to the common practice of inter partes agreements providing for non-disclosure, confidentiality and non-circumvention. These agreements are both enforceable and constitutional.   
     
32.    Section 14 defines sensitive information as “information which must be protected from disclosure in order to protect the national interest of the Republic from being harmed”.

33.    The definition of the term “national interest” of the Republic is defined in section 15 of the Bill. The definition of national interest is crucial to the classification of documents in terms of this Bill and forms the core of our reservations.  We have mentioned above that we believe that the general ambit of the Bill should be restricted to matters which are strictly to do with the preservation of national security where absolutely essential. It is from the outset the fact that three separate subsections, and each of which has further subparagraphs, have been included under section 15 each attempting to expand the definition of national interest to include specifics indicates the vastness of the concept of national interest. For this reason alone, we believe that the Bill attempts to cover far too much ground. The correct approach would be to limit the operation of the Bill to matters which are necessary to protect national security or matters directly related thereto.

34.    According to the provisions of The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Freedom of Expression and Access to Information, U.N. Doc E/CN.4/1996/39 (“the Johannesburg Principles”) principle 1(d), “No restriction on freedom of expression or information on the ground of national security may be imposed unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest. The burden of demonstrating the validity of the restriction rests with the government”. Further the same Principles stipulate that 1(1)(a) “any restriction on expression or information must be prescribed by law. The law must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful.”

35.    It needs to be noted that in terms of section 15(1)(a) “all matters relating to the advancement of the public good;” are included in the definition of national interest. In our view this is such a broad category that it could encapsulate virtually everything in modern society from information regarding a method by which Bafana Bafana could win the World Cup right through to information relating to the publication of Zimbabwean atrocities. Virtually any action taken by the State could be justified as being in the national interest and therefore subject to classification as being for the advancement of the public good. While we are aware that such classification would be subject to the methods and principles set out in the Bill and according to the criteria contained in the Intrinsic Value Approach (“IVA”) in section 8 and the principles contained in section 22.

36.    The problem that arises here is that while a reasoned and rational approach is called for there is no external body which has the right to oversee this process. The existence of standards methods and criteria for classification without appropriate external checks and balances remains a fundamental flaw of the Bill.    

 
Powers of the Minister:

37.    We believe that the Minister has been granted extremely extensive powers under this Bill, which if one were to focus on the core issue of national security would in fact be unnecessary for example his or her rights to declare exemptions from the operation of the Bill, to amalgamate organs of state for the purposes of this Bill and to appoint the head of such amalgamated organs of state, and ultimately to resolve disputes under the Bill grant him or her very broad ranging powers which seem to be excessive. Our concern is that once these powers have been granted they may well be abused.

38.    The Minister may in terms of section 3(2)(a) exempt an organ of state from the duty to establish standards and procedures. He may also in terms of section 3(2)(b) restrict an organ of state from exercising the authority to classify information. He may also in terms of section 3(2)(d) provide an exemption to the automatic declassification as set out in section 26(c).

39.    All of these powers are extremely broad and despite the fact that they are supposed to be exercised on good cause shown could create a situation where much of the material which is elsewhere in the Bill earmarked for automatic declassification could effectively be further protected and hidden from public view.

40.    It appears that there is an undue centralization of power in the National Intelligence Agency (“NIA”) and the Minister to the detriment of the independence of other organs of state and could well lead to significant empire building within the NIA as it utilizes its powers under this Bill to implement policy decisions, standards and development of security processes.


“Automatic declassification” of “all” classified information:


41.    While the FXI notes that the intention of the Bill is to declassify information existing prior to 10 May 1994, the provisions of this Bill militate against this occurring since there are several sections which allow for further classification of such information and render the attempt to create openness nugatory. This issue is closely linked to the Ministerial powers referred to supra.

42.    It has been stated by the ministerial drafters in media reports  that “the Bill provides for the automatic declassification of all information that was classified on or before May 10, 1994, and all classified information that is more than 20 years old from the date of its original classification”. FXI does not believe that the Bill meets this objective.
 
43.    Sections 25, 26, 27 and 28 of the Bill are the relevant provisions dealing with automatic declassification and continued classification of information.

44.    Section 25 provides for automatic declassification of information on the occurrence of a specified event upon which information will no longer need protection, expiration of a maximum time-frame for the duration of the classification and expiration for the maximum time-frame for classification in terms of this Bill.

45.    Although this may appear to be a sincere attempt to place a considerable amount of information in the public domain the fact is that the Bill also contains a number of provisions which effectively negate the operation of the self executing declassification. Examples of these are furnished in section 26(a), (b) and (c) and  27(1) and (2) which effectively allow for the continuation of classification for a period as specified by the Bill (20 years) and automatically makes this information subject to the provisions of this Bill which would allow for an extension of this period to 30 years provided that certification to the satisfaction of the Minister was made by the head of the relevant organ of state. Moreover it is possible to extend this period beyond the 30 year period in terms of 27(2).

46.    This raises the possibility that apartheid agents whose lives may well be threatened by the disclosure of information currently classified could enjoy considerable protection from disclosure for a very long time to come.

47.    This anomalous outcome would be contrary to the spirit of opening up the information “Pandora’s Box” of the past and could also effectively be utilized to hide information pertaining to the post apartheid era (eg: information relating to the arms deal). Effectively, as the Bill stands, it is possible to prolong the period of classification almost indefinitely since it only requires the certification of the head of an organ of state to the Minister that a particular declassification would result in a demonstrable life threatening or physical harm situation for one or more persons. In order to prevent this information from being held outside the public domain indefinitely it is important that even where the original classification failed to specify the occurrence which would trigger the declassification that this should be automatic and self-executing in the case of the death of the person or persons who’s protection the classification sought to achieve. After the period of 30 years it appears to be open-ended      

48.    We also believe that irrespective of any other consideration no classification should endure for a period which would exceed 50 years under any circumstances.

Classification by Organs of State:


49.    Our concern is that in terms of section 21 the head of an organ of state is entitled to delegate his authority but it is not clear exactly what skills the person who is receiving the delegated authority must have apart from the fact that subsection 3 indicates that they must be senior staff members. Given the fact that the decisions will have an considerable impact on the public’s right to know and that there is no countervailing checks and balances in the form of an Ombudsman, the public is entitled to know what particular skills these officials will have to display. While the regulations may clarify this it is an unsatisfactory state of affairs.

Internal Review and Appeal of Status of Classifications:


50.    Once again the problem we have here is that essentially the same persons tasked with classifying information are going to attend to the reviews of the status of such information and the appeals while there is the possibility of recourse to the courts. Practical difficulties exist in this regard such as costs and the information available to prepare papers. We refer you further to our comments on the possibility of establishing an Ombudsman’s office as detailed below.

51.    There is also the question of timeous responses to make publication  deadlines and the protracted procedure involving the application for review or appeal to the Minister does not assist in this regard.

52.    In addition it is extremely difficult for practitioners to draw accurate documents as required by the Bill when applying for a status review when they have no access to the register or documents are denied to them under the “double blind rule” (see infra).  

“Double Blind” Provision:


53.    Section 30(6) of the Bill makes provision for what we term a “double blind provision” whereunder the head of organ of state in response to a request for a review of the classified status of information is entitled to refuse to confirm or deny whether information exists whenever the fact of its existence is itself classified as top secret.  We regard this provision as fundamentally unconstitutional, inviting as it does an element of untruthfulness, equivocation and obstruction of fair and reasonable enquiry. It is virtually impossible to make any reasonable headway in discovering the true state of affairs when such provisions are in operation.

54.    The construction of this section is such that effectively it allows public servants rights which are directly contradictory to the obligations that the Bill imposes on all citizens not to provide false information to Intelligence Services. This is not a fair and even handed approach and as such is an unequal handling of the relationship between the state and the individual. We do not believe that his limitation on the right to receive information would stand the test of a section 36 of the Constitution balancing of interest’s analysis.  

Offenses and investigative journalism:


55.    We are likewise disturbed that despite discussions that were held with the drafters of the Bill there is no section dealing with the so-called “public interest exemption”. The crucial role of the media in promoting Constitution building and maintaining a watchful eye on the activities of Government will be adversely affected by this omission. In addition the Ministry as seen fit to include severe penalties as evidences by section 23 read with section 46, which will have a powerful disincentive effect on investigative journalism. It is cold comfort to purport that prosecutions
would not be undertaken lightly since the threat constitutes a proper Sword of Damocles.

56.    While we note that the Bill’s drafters have already engaged in discussion on this issue we believe that the proposed remedy (acquittal) does not fully address the problem since it still exposes the individual to the danger and inconvenience of being prosecuted and this in turn will provide a powerful disincentive to pursue this essential function. We believe that in accordance with the general principles of the administration of justice it would be inappropriate to place the onus of proof on the journalist. This is in consistent with our approach that things done in the public interest should not attract censure.

57.    What is required is an exemption which would require only of the journalist to allege a bona fide interest. In the event that such bona fide interest was contended against by the state the onus would be on the State to prove the absence thereof in line with the normal criminal law onus of proof.


Promotion of Access to Information Act 2 of 2000 (“PAIA”):


58.    The concept of access to information which was espoused by PAIA is sound and it appears that an attempt has been made to recognize the importance of access as visualized in that PAIA in section 34(1).  It is however unfortunate that there appears to be an overlapping of the area in which PAIA and the Bill operate. We believe that a large number of requests for information and the declassification thereof could have been avoided by a narrowing of the scope and application of this Bill. This would have resulted in considerable savings for the State and advanced the general openness and transparency of the information regime.
 
59.    We also believe that had the Bill contained a provision for an Ombudsman’s office this would have been a suitable way to handle requests for information.

60.    Due to the overlapping referred to above, there is a considerable danger that regulations published under this Bill could well cloud the legal landscape even further. Extreme care must be taken to harmonise such regulations with those extant in PAIA.

61.    Under PAIA, internal appeals are possible in respect of information held by a public body in terms of section 74 of PAIA, whereafter the matter may be appealed to the court, but where a requester is denied access in respect of private bodies, no internal appeal exists. This procedure is at odds with this Bill which provides for internal appeals on classified records in respect of both private and public bodies.

62.    Again, if there has been an Ombud’s office, the discrepancy could have been eliminated by allowing the Ombud to fulfill an appeal role. This is particularly important in order to avoid the significant costs of an appeal to court. These costs represent an effective barrier to access to information and work against the spirit of freedom to receive information.      


Omissions from the current text:


Ombudsman Type Office:


63.    The FXI is disappointed that no provision has been made for the creation of an Ombudsman’s office to deal with public concerns. We believe that the creation of such an office would have gone a long way to allaying the disquiet of the public regarding intelligence affairs. In addition to this an Ombud would have been a useful, easy to access and cost effective method of addressing inquiries and complaints in respect of the status of classified information.

64.    The Bill does not make provision for the creation of the office of an Ombudsman whose function it would be to assist the public at large in its quest for access to classified documents and to all as an overseer of the classification process.
 
65.    The arguments advanced against the creation of such an Ombudsman have been that there are cost implication aspects and that other avenues are available under other legislation or via the process declared in the Bill relating to declassification, whether by the head of the relevant organ of state or the courts.

66.    The fact is that the public, if the Bill genuinely intends to create a culture of openness and transparency (as opposed to the secrecy of the past) should embrace any steps which would inculcate an acknowledgement of the need to debunk the myth of the supremacy of secrecy, and advance constitutional legitimacy. It is ludicrous that the State should plead that there is insufficient expertise among the public to permit of the appointment of an Ombudsman, and equally unbelievable that the Ministry’s represented by on of the drafters of the Bill claimed that there are financial constraints. The proper utilization of an Ombudsman would result in the avoidance of costly processes to determine whether classification is justified or not and would certainly serve to avoid the lengthy delays which are intent in the proposed appeal procedure and the conduct of court proceedings which are prohibitively expensive for the members of the vast public. Nor should it be argued (as has been mooted by the Ministry’s representatives) that the pre-eminent matter is one of protection. The pre-eminent matter should always be the preservation of the maximum amount of individual liberty and the limitation of the States attempt to withhold information from its citizens.
 
67.    The departure point should be one of maximum disclosure on a timeous basis which would in itself present substantial cost savings. Classification should always be a last resort.

68.    The Ombud’s role should be twofold, both the prevention of unnecessary classification and the facilitation of access to information already classified. This would be an easy and relatively inexpensive operation.  If concerns exist about the suitability and stature of candidates for an Ombud / external oversight body then one need only look to the processes employed on bodies such as the Broadcasting Complaints Commission of South Africa (“BCCSA”), where the public has a direct role in the nominations and the candidates are suitably screened.
 
69.    Only by creating this public friendly approach will it be possible to avoid the perpetuation of a legacy of public distrust of those charged with administering the protection of information. To expect the public to invest their trust blindly in officials appointed by the Ministry or the head or organ of state is unrealistic. It will take more than simply the inclusion of constitutionally friendly-sounding phrases to create a climate in which the media and the public could begin to establish faith in the integrity of those tasked with the classification of information.

70.    The unwillingness of the Ministry to embrace the Ombudsman concept or some other external monitoring body will undoubtedly reinforce the view that this Bill is simply another attempt to create an additional hurdle for those seeking to hold the state and the ruling party accountable for its deeds.  

Public Interest Exception:


71.    FXI has along with other parties already raised this issue with the drafters of the Bill and we were given to understand that serious consideration would be given to the creation of a “Public Interest Exemption”. This exemption would be applicable to bona fide investigative journalism. It is important to emphasize the role that the media play in maintaining public awareness and a great part of this role revolves around the undertaking of investigative work.
 
72.    The rights of freedom of expression are directly affected by the absence of such an exemption since the media find it extremely difficult to operate in an environment which is fundamentally hostile to the gathering of essential information which is required to expose wrong doing and corruption in government circles.
 
73.    This Bill proposes an array of offences which are potentially harmful to the media in that they constitute an effective deterrent of investigative journalism and that they present practical logistical problems. The absence of a public interest exemption means that those working on stories which deal with classified information are always at risk of prosecution. While it has been intimated that no such prosecution would be instituted where it was clear that the object of the investigation was to expose criminal behavior by those protected by the classification the Ministry has not seen fit to formally acknowledge this essential function of the media.

74.    As the situation stands journalists face the prospect of a complex legal battle with attendant costs, personal discomfort and intimidation. This cocktail is a powerful disincentive to any diligent journalist seeking to provide a truthful comment to the public.

75.    In terms of section 45 and 46 penalties are set for disclosure of classified information and the failure to report the possession of such information of up to five years imprisonment. By contrast the penalties which have been set for improper classification have been limited to a period to a maximum of three years. This inescapably leads to the conclusion that the actions of the state employees involved in wrongdoing by falsely classifying information are regarded in a far less serious light than those of third parties disclosing information even for public benefit purposes. This again reinforces the view that this Bill is unconstitutional and is designed to protect employees of the state rather than serve the purpose of promoting openness and accountability. The Sword of Damocles hangs over the journalists head who, quite rightly, pursues the truth.


FATAL CONCEPTUAL FAILINGS IN THE SCHEME OF THE BILL:


76.    The level of protection afforded by the Bill against abuse of the power to classify information must be measured against the lowest protection against abuse afforded by the Bill; the “weakest link”.

77.    As noted, the power to classify, which is an onerous, far-reaching and extraordinary power in an open democracy is granted not only to the President, a cabinet member or cabinet members, but is extended to any “classification authority” which includes any head of an “organ of state” or their delegate. Moreover, as previously noted, there is no restriction whatsoever placed on those to whom the power to classify may be delegated.

78.    In addition, the criteria of classification (sections 19 and 20) are extremely imprecise, in many cases are circular or self-supporting and, in some instances, internally inconsistent and incoherent:

78.1.    By way of example, a “confidential” classification is predicated on the information being harmful to the security or national interest of the State. (section 20)

78.2.    What constitutes “harm” in an open and democratic society is itself a highly controversial, porous and legitimately contested consideration.

78.3.    The national interest is broadly defined as any matter relating to the “advancement of the public good”. (section 15)

78.4.    Accordingly, in the case of the lowest level of classification         (“confidential”), the power to remove information from public scrutiny may rest on so narrow a foundation as any delegated official in a government department in whose subjective judgment the information may be “harmful” to the advancement of what (again, in the opinion of that official) is the “public good”.

78.5.    The circularity and internal incoherence of these criteria is illustrated by the following example: State information may be classified as “Confidential” if it is “sensitive information” the disclosure of which:

78.5.1.    “may be harmful to the security or national interest of the Republic” or

78.5.2.    “could prejudice the Republic in its international relations.” (section 20(1)(a))

78.5.3.    “sensitive information” is defined already (section 14) as “information which must be protected from disclosure in order to prevent the national interest of the Republic from being harmed.” (section 14)

78.5.4.    therefore, section 20(1)(a) in effect reads as follows:

“State information may be classified as ‘Confidential’ if the information is information which must be protected from disclosure in order to prevent the national interest of the Republic from being harmed, the disclosure of which information may be harmful to the security or national interest of the republic or could prejudice the Republic in its international relations.”


79.    This imprecision is characteristic of the worst caricatures of intelligence and information suppressive laws in notoriously autocratic jurisdictions let alone being exemplary of the constitutional aspiration of an open democracy founded on dignity, equality and freedom. Indeed, it is not an exaggeration to state that such provisions resemble the discretionary powers afforded to officials under the apartheid State.
80.    The consequences are even more significant and stark in the context of a classification of “secret” or “top secret”. These classifications are predicated on what is judged to “endanger” or “cause serious or irreparable harm” respectively. (section 20(2) & (3))

81.    Thus, merely by way of example, any duly delegated official in a government department who judges information to be “seriously” harmful to the “public good”, may classify that information as “top secret”.

82.    Bearing in mind the difficulty in appreciating the scope of what is “harmful”, this difficulty is exponentially worsened by the subjective discretion of the particular official concerned as to the distinction between what is on the one hand “harmful” versus what, on the other hand is “seriously harmful” to the “public good”.

83.    There can be no prospect of these concepts being applied consistently, even with the best of intentions, by the responsible government officials. This is to say nothing of the danger of abuse.

84.    Nor is there any realistic prospect of protection against abuse or misuse being afforded by the legislature’s imprimatur that these powers must only be delegated to officials that are sufficiently senior. (section 21) This is because, for the reasons set out below, there it is unreasonable to imagine that the power to delegate will be susceptible to meaningful judicial review in the event that the power to suppress information is not delegated to an official that is of insufficient seniority. How, one may ask, would a member of the public ever become aware of this in order to institute review proceedings?

85.    Further fundamental internal incoherence is evident in the Bill in respect of the offences to be legislated:

85.1.    It is an offence punishable by imprisonment for a period not exceeding 25 years (in other words, an offence of an extremely serious nature) to “communicate, deliver or make available State information with the intention to prejudice the State…” (section40(1)(a))

85.2.    “State information” is defined, in relevant part, as:

(1)…information generated, acquired or received by organs of state or in the possession or control of organs of state.
(2) State information is not automatically protected against disclosure.
(3) State information should be made available to the public unless there are good reasons to withhold it….” (section 5, emphasis added)


85.3.    In the first place, it is an extraordinarily onerous burden to place upon citizens to know what may be determined to “prejudice the State.” This, in itself, will undoubtedly have a “chilling” effect upon the free intentional exchange of damaging and controversial information which is legitimate in an open and democratic society, out of fear that it may be determined to “prejudice the State”.

85.4.    However, more significantly, this prescribes punishment of the most severe nature for the communication, delivery or making available of information which by definition in the Bill is “not automatically protected against disclosure” and which “should be made available to the public unless there is good reason to withhold it”.

85.5.    This is so fundamentally incoherent as to render the effected parts of the Bill irrational.

85.6.    Moreover, the Bill visits this offence with a fundamentally more severe penalty (up to 25 years) than the disclosure of classified information, which is punishable by imprisonment not exceeding 5 years (section 45). This too is so incoherent as to be vulnerable to a finding of irrationality.

86.    Criteria of forseeability and precision (which require that laws must be framed sufficiently precisely so as to allow ordinary citizens acting reasonably to plan their actions in accordance with the laws) are basic requirements of the rule of law. Similarly, the Constitutional Court has repeatedly affirmed that rationality is a fundamental requirement of legality. (see for example Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; Minister of Health NO v New Clicks SA (Pty) Ltd (TAC as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1 )

87.    There is a real danger that in their current form, these critical provisions of the proposed Bill would be found to be void for vagueness and/or irrational and would violate the principle of legality under the Constitution.  

88.    The open ended, ambiguous, fundamentally subjective and circular nature of these criteria, which are central to the scheme of the Bill, renders the Bill, in its present form, incapable of proper application.


ABSENCE OF MEANINGFUL JUDICIAL OVERSIGHT:

89.    Transparency and “openness” in the workings of the State are fundamental values of the Constitution. This is supported, amongst other things, by section 36 of the Constitution which permits the limitation of fundamental rights only to an extent that is “reasonable and justifiable in an open and democratic society…” The refrain of an “open and democratic society” is one that is repeated throughout the Constitution.

90.    Moreover, by employing the phrase “open and democratic”, the drafters of the Constitution recognised that “open democracy” is not a tautology; societies may appear democratic but may not be open. Recent legislative and other measures by governments that were taken to be exemplary democracies illustrate this. Suppression of information by certain established Western democracies in order to remove from their citizens the ability to be informed and critical for an ulterior, often political, purpose has become unfortunately common. It is vital that South Africa does not follow this path.

91.    The Constitutional Court has recently affirmed that the courts are the final arbiters of whether information may be justifiably restricted and that the power of the courts in this regard may not be ousted. In Independent Newspapers v the Minister for Intelligence Services (Unreported  case no. CCT 38/07, Judgment 22 May 2008)(“Masethla”) the Court Held:

“…..A mere classification of a document within a court record as “confidential” or “secret” or even “top secret” under the operative intelligence legislation or the mere ipse dixit of the minister concerned does not place such documents beyond the reach of the courts.  Once the documents are placed before a court, they are susceptible to its scrutiny and direction as to whether the public should be granted or denied access.

It follows that where a government official objects to disclosure of a part of the record before a court on grounds of national security, the court is properly seized with the matter and is obliged to consider all relevant circumstances and to decide whether it is in the interests of justice for the documents to be kept secret and away from any other parties, the media or the public.  This forms part of a court’s inherent power to regulate its own process that flows from section 173 of the Constitution.” (Masethla at paras 54-55)


92.    The conceptual failings at the heart of the Bill, detailed in the previous section, might have been redeemable were the Bill to allow for effective and meaningful judicial oversight of the exercise of the open-ended discretionary powers to classify information afforded to State officials.

93.    However, in its current form, the Bill precludes meaningful challenge to the restriction of information by the State.  It is therefore subversive of this fundamental constitutional value open democracy.

94.    As analysed above, the relevant officials are afforded the widest conceivable discretionary powers to make subjective judgments as to what information may be suppressed as being, at their broadest point, “harmful to the public good”.

95.    Under ordinary circumstances, the officials concerned would be accountable for the exercise of these powers through the mechanism of judicial review under the Constitution. While this remedy is available in principle under the legislative scheme, there is no prospect of it being exercised by ordinary responsible citizens in practice.

96.    By its very nature, the information suppressed is beyond the public purview. Accordingly, at the outset, it will be difficult for an ordinary person to know of the existence of the suppressed information.

97.    Notably, in this regard, the Bill permits the head of an organ of state to refuse to confirm even the fact of the existence of the information concerned, in certain circumstances.  This is permitted even although the Bill does not require that it be indicated in the process of classification, whether the very fact of the information is classified. This allows for the organ of state concerned to claim, at a later stage that the very fact of the information is classified, event though this was never envisaged at the time of classification.

98.    However, and even setting aside the above difficulties which are by no means insignificant, meaningful review requires a record and access to the subject matter of the review in order meaningfully to challenge the exercise of power concerned. The relevant Rules of Court and procedure make specific provision for this.

99.    In the circumstances of an official exercising the discretion to classify under the Bill, or choosing to suppress information on some other basis such as by declaring that it is state information which is protected against disclosure (section 5(4)) or “protected information” (section 6), the prospective litigant seeking to review this exercise of power will have no access to the information concerned or, meaningful access to the record of the decision to suppress.

100.    The consequence is that the safeguard of meaningful judicial review is fundamentally curtailed in proceedings for the review of the exercise of powers to suppress information. It is for this reason that it is of the utmost importance that the powers to suppress information are framed with sufficient particularity and precision. As indicated above, the Bill is fundamentally flawed in this regard.


CONCLUSION:


101.    Certain sections of the Bill appear to be unconstitutional specifically the sections granting the rights to a double blind and the extremely broad ranging powers of the Minister and the very wide ambit which transgresses individual rights.

102.    Viewed as a whole, we believe that the Bill does not meet the objectives that it sets for itself and that insufficient mechanisms exist to provide for external monitoring of the actions of those tasked with classifying and declassifying information. While access to the courts is provided for it should be remembered that this is an expensive and difficult procedure given the paucity of information which applicants have to work with. The importance of freedom of expression and the role of the media in sensitive matters such as those dealt with in this Bill is demonstrated by the importance attached to it by the judiciary and the media’s rights as evidenced by the remarks of Chief Justice Pius Langa whilst addressing the Durban University of Technology on the role of the judiciary and its relationship with the media that “The independence of the judiciary and the freedom of expression are two of the pillars of an open and democratic society. The judiciary bears the responsibility of upholding the rule of law and ensuring that the government respects and promotes our fundamental human rights”.


Melissa Moore
Head: Law Clinic
Freedom of Expression Institute