THE PROTECTION OF INFORMATION BILL IN A NUKING

1. THE PROTECTION OF INFORMATION BILLIN A NUKING 31 August 2010 Presented by: SONYA STEWART Associate: Strauss Daly Inc.

2. The protection of Information Bill Oil Gate Jackie Selebe TOP SECRET CONFIDENTIAL CLASSIFIED "Is the protection of Information Bill a danger to democracy" Travel Gate SAA The arms deal TOP SECRET CONFIDENTIAL TOP SECRET

3. Mail & Guardian “We can’t say this Bill is a wolf in sheep’s clothing – we accept that its intentions are honourable. But perhaps its more accurate to say that the Bill is an elephant dressed up as a sheep: from a distance it looks relatively benign, but closer up you realise its going to develop into something very large and unmanageable with the potential to do a great deal of harm.”

4. Relevant legislation in South Africa (placing the Protection of Information Bill in context) 1. The Constitution: • The Constitution of the Republic of South Africa Act 108 of 1996 (the “Constitution”) states that South Africa is a sovereign and democratic state that is founded on the advancement of human rights and an accountable, responsive and transparent system of governance. • Section 16 of the Constitution • Section 32 (1) of the Constitution

5. Section 16 of the Constitution (1) Everyone has the right to freedom of expression which includes: • Freedom of the press and other media; • Freedom to receive or impart information or ideas…. (2) The right in subsection (1) does not extend to: (a) propaganda for war; (b) incitement of imminent violence; or (c) The advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.

6. Section 32 (1) of the constitution provides as follows: (1) “Everyone has the right of access to: (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights” • Section 32 (2) of the Constitution provides for the enactment of legislation to give effect to this fundamental right of access to information. The Promotion of Access to Information Act 2 of 2002 (“PAIA”) is the national legislation that was enacted to give effect to the constitutional right to access to information under Section 32.

7. 2) PAIA: The objectives of the PAIA are as follows – • To encourage openness and establish a procedure for giving effect to the right to access to information • To promote transparency, accountability and effective governance • There are grounds for refusing a request for access to information. For example, a public body is entitled to refuse access to information on the following grounds (please note that the below list is a summary of grounds and is not a closed list of grounds for refusal to access information):

8. SARS records, • certain disclosure of personal information about a third party • information which would endanger the life or physical safety of an individual • commercial trade secrets of a third party • certain information held by the police • information which would materially jeopardise the economic or financial welfare of the Republic

9. Note: notwithstanding the above, access to information must be granted if disclosure would (i) reveal evidence of a contravention of a law or imminent and serious public safety or environmental risk; and (ii) the public interest in disclosure outweighs the harm contemplated under the grounds for refusal. The rights under the Constitution and PAIA developed as a result of the secretive form of governance and the draconian legislation that existed during the apartheid era and the legislation implemented to ensure transparency and accountability and seeking to avoid returning to the draconian rules of the past curtailing freedom of the press.

10. The protection of Information Bill • Draft first introduced in 2008, sponsored by Ronnie Kasril (the intelligence minister at the time). • Ronnie Kasril summaries the intention behind the bill as follows: • Excessive secrecy harms security and the flow of information is necessary to promote security. • The state in certain circumstances has a duty to prevent access to and disclosure of certain state held information that would undermine national security. However, the decision to prevent access to and disclosure of information would need to be justified in the context of the constitution and must respect the public interest.

11. What went wrong? Why has the Bill resulted in headlines, such as: “The Media is under Siege” “Back to the Bad old Days”

13. Concerns raised by the Bill 1.Over - Classification of Information • Sensitive Information This is information which must be protected from disclosure in order to prevent the “National Interests” from being harmed • Commercial Information This includes information of a commercial, business, financial or industrial nature held by or in possession of an organ of state. This information is protected from disclosure where the information endangers the “National Interest”.

14. Personal Information This is information concerning an identifiable natural person and which if disclosed could reasonably be expected to endanger the life or physical safety or general welfare of an individual. • Sensitive, Commercial and Personal Information is then further classified as “Confidential”, “Secret” or “Top Secret”.

15. 2.Who determines what information is classified • Section 10(1) - The head of each organ of state must establish departmental policies, directives and categories for classifying, downgrading and declassifying information and protection against loss and destruction of information created, acquired or received by that organ of state. • Section 21 provides further that “any head of an organ of State may classify or reclassify information using the classification levels set out in section 20 (of the Bill)” These powers may be delegated to a subordinate staff member. This means that it is at the discretion of the head of public bodies from the Eskom CEO to municipal managers to determine what information should be protected.

16. 3.Broad and Vague Definitions of “National Interest” under the Bill. • Section 15 (1) provides that the “National Interest” of the Republic includes: (a) all matters relating to the advancement of public good; (b) all matters relating to the protection and preservation of all things owned or maintained for the public by the State. • Section 15(2) • The National Interest is multi-faceted and includes: (a) the survival and security of the State and the people of South Africa; and (b) all matters relating to the protection and preservation of all things owned or maintained for the public by State.

17. 4. No defence of “disclosure in the public interest” • Offence to disclose, receive and possess classified information • There is no defence protecting those who disclose classified information on the grounds that disclosure of information is in the public interest. This may result in investigative journalists facing up to 25 years in jail for publishing information which is in the public’s interest. 5. Those receiving, using and disclosing the information penalised (whistle-blowers) 6. The appeal process set out under Section 32 provides for appeals to the Minister of the organ of State in question instead of appeals to an independent “ombudsman” or “commissioner”.

18. The effect of the Bill has been summarised by the Mail & Guardian as follows: The state has thrown a “blanket of secrecy over its documents, a blanket nailed down by criminal sanction.”

19. Conclusion Is the Bill not crude mechanism to curtail freedom of the press and would better communication between government and the media not solve the issue of misreporting and do away with the need for a mechanism like the Protection of Information Act? Is it not the case that the goal to achieve an informed nation solely depends on the availability of information and its Accessibility? The right to access to information is a basic human right and aught to be recognised as such and is the instrument that paves the way for freedom of expression.

20. “If you don’t want honey on your fingers don’t stick them in the honey jar”

21. Thank you for attending