The Ad Hoc Committee dealing with the Protection of Information Bill comprises MPs who are intelligence spokespersons as well as MPs who specialize in other areas, in my case in free speech. My intelligence colleague, Adv. Paul Swart, is abroad.

We have just commenced the legislative process. We have received briefings from the drafters, but have yet to engage the public submissions, a process we take very seriously. I therefore speak in the first person and obviously not from a final party position. The DA does however proceed from a position of complete commitment to the ideal of the Open Society, and to the Constitution.

By contrast, the Bill seems bent on classifying and closing off information on an unjustifiable scale. It stipulates security and defence matters, which we would all agree constitute the national interest (in subsection 3).

But it also embarks on broad and quite breathless descriptions such as "all matters relating to the advancement of the public good" and my personal favourite: "the national interest is multi-faceted." So are diamonds from the DRC! Poetry has its place, but all things bright and beautiful, and "the pursuit of justice, democracy, economic growth, free trade, a stable monetary system" etc., go too far. Read with the many provisions concerning commercial information (such as s.16 where the commercial information of a private person or business given to an organ of state can be classified) the national interest becomes a recipe for corruption such as tender fraud, and for censorship.

And no, that is not stretching the interpretation - because s. 49 acknowledges that danger and criminalises classification for ulterior motives such as giving "undue advantage to anyone within a competitive bidding process".

The state information which the Bill seeks to regulate could include information held by such professional and independent institutions as law societies or universities. This is so because it uses the constitutional Section 239 as its definition of the organs of state to which the provisions of the Bill will apply.

It is important to realize that s. 239 is in its essence an administrative justice provision. The Bill of Rights Handbook, De Waal et al., reminds us that the constitutional s. 33 right to "just administrative action" imposes the duty to act lawfully, reasonably and with fair procedure on the widest possible variety of actions and actors. Such actors may not be part of the state administration, but because they exercise public power or a public function (in a political climate in which governments increasingly relinquish power or functions through privatizing or contracting out of their former functions) they may not act unlawfully or without procedure or reasons given for decisions.

They are not, however, accountable to Parliament or the public in the same way that the executive organs of state are. Section 55(2) of the constitution draws the distinction. All the executive organs of state account to us (or in the provinces, to the Legislatures) but we only exercise oversight over "any" organs of state - meaning those we select.

Because there are very, very many.

At the time Prof Hugh Corder of UCT (University of Cape Town) did a study for Parliament of Accountability and Oversight some years ago, the Auditor General did a quick search and identified no fewer than 648 entities. That is over and above the 200 or so public entities in the Public Finance Management Act, who are explicitly included in the remit of this Bill. The entities which could be inducted into the mysteries of "intrinsic value" and the multi-faceted classification of the national interest by the NIA (National Intelligence Agency) include the Algoa Bus Company, the Mangaung Nursing College, the Free State Youth Commission and the Natal Sharks Board.

Any many, many more. A body such as the law society, on the expert analysis of Prof Yvonne Burns in Administrative Law under the 1996 Constitution, is a s. 239 organ of state "because it is a statutory body created by Parliament and, although it does not fall within the hierarchy of any state department, its function and purpose is to regulate the legal profession on behalf of the State." It exercises a public power and performs a public function.

Every university has its own statute; it therefore derives its powers from legislation. So do the CSIR (Council for Scientific & Industrial Research) and HSRC (Human Sciences Research Council). I hope that does not mean any or all of the above already do, or will soon be classifying and closing research off from scrutiny.

The elaborate inclusion of commercial confidentiality comes as a considerable surprise. The simple fact of the matter is that the right of access to information held by the State is a full Bill of Rights fundamental human right, and that the Act which gives effect to the s. 32 right, the PAIA (Promotion of Access to Information Act), prevails. That Act already deals with commercial and personal information as justifiable limitations on s.32. It is because of that right, also, that the principle of severability has been built into every law and practice since 1996 - it is just not done, as this Bill tries to do, to immunize whole series or blocks of information from scrutiny. The portion withheld must be withheld for good, justifiable reasons. This is not intelligence terrain.

What about energy? Should the Public Enterprises Minister be allowed to classify commercial information about his Pebble-bed nuclear project as "Confidential" because discussion of its merits may prejudice the project in its relations with clients and contractors? I don't think so.

Should he be able to classify it "secret" if the people questioning its viability could cause it serious financial loss? "Top Secret" if disclosure could have "disastrous results" for its future existence? Should M-Net's Carte Blanche team be imprisoned for up to 5 years if it discloses, unwittingly perhaps, classified information on the PBMR?

Would we know about Eskom's low stockpiles of allegedly bonus-swelling wet coal if it could classify commercial information? The temptation is bad enough to misuse genuine security considerations. Who will ever forget the Public Enterprises Minister's initial claim of sabotage at Koeberg a couple of years ago? Let us not make it possible to classify incompetence under the rubric of "trade secrets, including all confidential processes, operations, styles of work", and so forth.

And, especially, let us avoid making it possible to classify corruption.