The Congress of South African Trade Unions is deeply concerned that the Parliamentary Ad Hoc Committee has begun clause-by-clause voting on a revised version of the Protection of Information Bill, without having addressed the many serious concerns from civil society regarding fundamental problems with the Bill.
COSATU acknowledges that there is a need to replace Protection of Information Act of 1982, which is a relic of apartheid security legislation. In its present form however this new Bill is a threat to South Africans’ democratic right to be fully informed on matters of public interest. It could be abused to cover up information on corruption and misuse of public resources and to criminalise whistle-blowers who try to expose crime and corruption.
Restrictions are imposed by classifying information according to the following categories of increasing levels of sensitivity:
a) Confidential information, where unlawful disclosure may be “harmful” to security or national security or could “prejudice” international relations.
b) Secret information, where unlawful disclosure may “endanger” security or national security or could “jeopardise” international relations.
c) Top secret information, where unlawful disclosure may cause “serious or irreparable harm” to national security or could cause other states to “sever diplomatic relations with the Republic”.
If disclosure of “personal information” is deemed to endanger the physical security or life of a person, then that information too may be classified as either “secret” or “top secret”.
The criteria to determine when information may be classified and at what level, can be interpreted very broadly and subjectively. For example, how accurately and objectively can a distinction be made between what is “harmful” as opposed to what “endangers” security in order to justify a more stringent classification? For example:
• Can the unlawful disclosure of the ministerial handbook or excessive spending by a Minister on an unauthorised trip or hotel bills be considered to be revealing personal information (such as whereabouts and movements of a minister) that would endanger his/her personal safety? And in any event is it not in the public interest for this information to be made public?
• Would disclosure of the sale of arms to a foreign country in contravention of international law be considered to compromise both national security and diplomatic relations? Would it not be in the interests of the public to do so?
The Bill applies to all organs of state as defined in section 239 of the Constitution, public entities defined by section1 of the Public Finance Management Act and National Key Points in terms of the National Key Points Act.
Many of these however are private entities such as oil refineries. There is extensive experience of oil refineries obstructing access to information about public health violations on the pretext that this would compromise its security and contravene state security legislation. The Bill would only further entrench such practices.
COSATU is concerned that under this overly broad definition of an organ of state, the potential for classification of information is extensive, given that it is to be applied to government at all levels – SOEs, parastatals, public institutions and government agencies, and could be extended to approximately 1000 departments and institutions.
Clause 16 gives the head of an organ of state the authority to classify or declassify information, but this power may also be delegated to subordinate and relatively junior employees. There is no requirement that the person making the classification decision provides a written justification, which would facilitate applications to review a classification decision.
Chapter 11 sets out severe offences and penalties. In many instances minimum imprisonment sentences would be imposed without the option of a fine, a more severe penalty in terms of criminal law.
A key concern for the federation is how this could deter whistle-blowing, especially by workers, who are often the ones who have access to, or witness, irregularities. These concerns, both generally and more specifically in relation to workers, are illustrated by the following provisions:
Section 33(1) of the Bill defines “hostile activity offences”, which are applicable if a person unlawfully discloses or obtains classified information that s/he “knows, or ought reasonably to have known or suspected, would directly or indirectly prejudice the state”.
This provision is far too broad ignores the fact that some disclosures may be in the public interest despite their prejudicial impact on the state.
Penalties range from a minimum of three years to a maximum of 25 years, depending on whether the state information that is unlawfully disclosed is classified as “top secret”, “secret” or “confidential”.
The following offences and penalties have particular implications for workers and trade unions:
a) Section 37 states that a person who amongst other things “aids, abets… or counsels another person to commit an offence” would also be guilty of an offence. This provision could undermine the obligation of a trade union official to assist a worker in blowing the whistle on irregularities where it affects classified information.
b) It may easily be interpreted to require trade unions to report a worker for violating the Bill, if read together with sections 18 and 39, which require a person to report possession of classified information to the State Security Agency or the police.)
c) Section 38 imposes a general prohibition on the unlawful disclosure of classified information with a penalty of 3-5 years. This would also effectively prohibit the disclosure of such information to a trade union official or legal adviser for the purpose of obtaining legal advice and assistance.
Section 42 of the Bill criminalises the abuse of the classification of information to conceal breaches of the law. However, this is subject to a maximum penalty of only three years imprisonment with the option to pay a fine instead, in contrast to the majority of the other penalties of mandatory imprisonment.
In any case there is an inherent practical difficulty in having to prove that there has been improper classification. In all likelihood associated evidence that would found such an allegation would rest on other information that has also been classified.
The Ad Hoc Committee has refused to consider introducing a “public interest defence” to permit disclosure of a matter of public interest. With increasing corruption and irregularities associated with state institutions, individuals would be reluctant to blow the whistle if they risk being penalised in terms of state security legislation, despite a compelling public interest to do so.
Section 19 gives the same head of the organ of state who originally classified information the power to declassify it, and under Section 23 the same head of the organ of state that classified information would consider and rule on requests for information to be declassified.
Appeals against such a decision must be lodged with the Minister who is responsible for the particular organ of state, which creates the potential for conflicts of interest to affect the decisions made. It would be more appropriate to establish an independent body to consider appeals in support of declassification.
Sections 23(1) and 23(2) place undue restrictions on who may request declassification of information. Only an “interested non-governmental party or person” may submit a request which must be in furtherance of a “genuine research interest or legitimate public interest”.
The Ad Hoc Committee has at least deleted sections 11 and 12 of the Bill, which respectively proposed to use as the basis for classification the overly broad criteria of “national interest” and “commercial information”, but “national security” and “security” are now the basis for classification, and these remain open to wide and subjective interpretation and consequently abuse.
This Bill is a significant setback for the protection of openness, transparency and accountability guaranteed by our Constitution. Apart from the fundamental substantive concerns with the Bill, no compelling reasons have been provided to explain why this Bill is being rushed through Parliament.
COSATU has therefore written to the ANC to request a meeting to discuss the bill. However, if the bill is passed without major amendments to protect whistle-blowers and South Africans’ right to access to information of public interest, the federation will refer the bill to the Constitutional Court for a ruling on its constitutionality.