The Protection of State Information Bill’s (POSIB) long passage through Parliament saw it emerge finally in April 2013. It then went to the President’s office for signing into law, where months later it remains in limbo. This is not surprising, given the Bill’s many flaws and its vulnerability to a constitutionality challenge.
In our view, four of its flaws are fundamental:
It sets up an access to state information regime parallel to that envisaged in the Constitution and given force by the Promotion of Access to Information Act (PAIA)
It criminalises activity which is in the public interest
It is unconstitutional on the grounds named in the previous two points
In terms of legislative drafting best practice, it is a dog’s breakfast. Most seriously, many of its progressive provisions have been diluted by Parliament’s long and uneven tinkering. And it is full of inconsistencies, provisions without clear meaning, typos and other minor embarrassments
The only way forward now, in our view, is backward.
Withdraw the Bill and start from scratch.
Parallel access regimes
The apartheid state set up parallel state information access and record-keeping regimes, one for classified information and one for all others. This was the basis for the secrecy and lack of accountability which characterised the apartheid system. In the final years of apartheid it became the basis on which the state destroyed tons of classified records without due process. A democratic South Africa does not want to return to parallel regimes.
Section 32 of the Constitution provides that everyone has a right of access to any information held by the state. Like any other right in the Constitution, this right may be limited by law to the extent necessary to protect other important rights and interests. South Africa has a comprehensive law setting out the procedures for relying on the right of access to information and the reasons why a request for information may be refused. This is the Promotion of Access to Information Act 2 of 2000 (PAIA), an Act specifically provided for in the Constitution. Though it limits the right of access to information, PAIA is widely regarded as doing so in a constitutionally permissible manner. It strikes, in other words, the proper balance between the right to governmental transparency and the need to protect important countervailing interests. These include national security, defence, economic interests and the criminal justice system.
A law, like POSIB, that is intended to restrict access to information that has been classified in order to protect national security, will necessarily be one that limits section 32 of the Constitution.
However, previous drafts of POSIB found a way to avoid unnecessary conflict with section 32 and, at the same time, to ensure that the Bill and PAIA were harmonised.
Since its first iteration the Bill has contained a crucial provision that ensures its harmonisation with PAIA and with the constitutional right:
Request for classified information in terms of Promotion of Access to Information Act
28.(1) A request for access to a classified record that is made in terms of the Promotion of Access to Information Act must be dealt with in terms of that Act.
(2) A head of an organ of state considering a request for a record which contains classified information must consider the classification and may declassify such information.
(3) If the head of an organ of state decides to grant access to the requested record then he or she must declassify the classified information before releasing the information.
(4) If the refusal to grant access to a classified record is taken on appeal in terms of the Promotion of Access to Information Act, 2000, the relevant appeal authority must consider the classification and may declassify such information.
In essence, this provision permits anyone to make a request for classified information in terms of PAIA in the same way as a request can be made for any other record in the hands of a public body. That request must then be dealt with by the public body that holds the information in the same way as it would treat any other request made in terms of PAIA. If, in terms of PAIA, there is no ground for withholding the record, it must be declassified and disclosed to the requester who may, in turn, disclose it to anyone else.
This provision, in our view, was crucial to the Bill’s constitutionality. It has now been removed. Moreover, the Bill now squarely excludes the operation of PAIA in relation to classified information.
Read together, sections 1(3), 17, 29 and 30 of POSIB set up an access regime parallel to that provided for by PAIA. This regime places POSIB directly at odds with the constitutional right and with PAIA.
Criminalising activity in the public interest
One of the most important changes to current information law proposed by POSIB is its chapter (chapter 11) providing for a statutory scheme of criminal offences and penalties to protect classified information. In the view of many critics of the Bill, these penalties will have a chilling effect on whistleblowing and investigative journalism, inhibiting the publication of stories that originate from classified material. It is also feared that they will encourage the cynical misuse of classification by officials wishing to conceal evidence of malfeasance or corruption. One possible solution is the introduction of a "public interest defence". Such a defence would allow a whistleblower or journalist who discloses or publishes classified information to argue that the disclosure was justified in the public interest, for instance because it revealed evidence of significant incompetence, criminality, wrongdoing or hypocrisy on the part of government officials.
But this is not the only solution to the problem. Another option is to reformulate the wording of the offences to focus on the harm caused by the mishandling or disclosure of classified information rather than, as is currently the case, the mere fact that information is classified.
In terms of the current law (i.e. the Protection of Information Act 1982 and the Minimum Information Security Standard), the criminal offences relating to the use and possession of classified information are regulatory offences. This means that criminalisation attaches to the disclosure, or use, or possession of a record that has been classified, without more. It is essentially the action of accessing or disclosing the information that is criminalised.
When it was introduced for the first time in 2008, POSIB took a different approach to criminalisation. Its approach was to criminalise the harm caused by disclosure of classified information rather than the fact that classified information had been disclosed. Thus, for instance, the action of communicating information which may cause serious harm to the Republic was criminalised.
In our view, a return to the 2008 drafting style of the offences would allow accused persons to argue and attempt to demonstrate that the disclosure has not in fact harmed the security of the state. This would put the focus not on the mere disclosure of information that has been classified but rather on the actual or potentially harmful consequences of disclosure of that classified information. Certainly, it cures one unintended consequence that opponents of the Bill fear will result from the current penalties. This is the fear that unscrupulous officials may classify information that does not merit classification in order to cover up wrongdoing or embarrassing evidence. A journalist who discloses cynically classified information in the public interest will not be criminally liable since, self-evidently, the disclosure will not harm national security.
A dog’s breakfast
Here just a few examples must suffice to illustrate the drafting malaise POSIB was subjected to:
The original 2008 version of the Bill provided for an elegant, clear and decisive automatic declassification of apartheid-era records and for records reaching the age of 20 years into the future. In our view, this took account of the legacy of oppressive use of information classification by the apartheid state, and covered effectively the records of state structures which stay outside of archival custody beyond a period of 20 years. Subsequent revisions (see sections 15 and 31) have diluted these provisions and introduced uncertainty as to the reach of "automatic declassification"
Sections 6, 7 and 51(3) and (7) give the Minister of State Security considerable (and unnecessary) powers in relation to what are called "valuable records". Provision for protection of what are called "vital records" in records management parlance is already to be found in archival legislation, and is overseen by the Minister of Arts and Culture
The Bill offers contradictory provisions on the question of whether it covers classified information (a broader category) or classified records (a narrower category). Compare, for example, the definition of "information" in section 1 with the provision in section 9(a)
The concept of "scientific and research information" is introduced in section 8(2)(h) without definition
In section 42 the cross-reference to section 15 is incorrect – it should be to section 13
The name of the National Archives and Records Service is incorrectly recorded in the section 1 definition of "archive"
Verne Harris is the Director: Research and Archive of the Nelson Mandela Centre of Memory