On Monday 11 July 2011 Talk Radio 702's Redi Tlhabi hosted a round table discussion on the Protection of Information Bill (the Bill).
Broadcast live in front of a studio audience the panel for the roundtable consisted of:
• Hennie van Vurren - Right to Know Campaign
• Okyerebea Ampofo-Anti -Webber Wentzel
• Nic Dawes - Mail & Guardian
• Dene Smuts - DA Shadow Minister for Justice
• Dennis Dlomo - Special Advisor to the Minister of State Security
As SAHA has previously reported, one of the biggest concerns that civil society has with the Bill is that people who publish classified information in the public interest will be subject to criminal prosecution. This lack of a public interest defence was one of the key discussion points during the round table.
Okyerebea Ampofo-Anti stated that the lack of a public interest defence constitutes a breach of the constitutionally protected right of freedom of expression. She indicated that the current drafting of Bill would prevent people from exposing the unlawful classification of material without themselves being subject to criminal prosecution. For example, if a journalist received classified information that disclosed corruption (and was therefore unlawfully classified), they could not publish that information without exposing themselves to criminal prosecution.
Nic Dawes also raised concerns about the effect of the Bill on freedom of expression, arguing that many stories previously published by the Mail & Guardian would be unlawful under the provisions of the Bill. In particular he indicated the exposure of surveillance of Mail & Guardian employees by security agencies (which would amount to a ‘state security matter' under the Bill) and the Oilgate expose (which relates to foreign affairs) would have been unlawful had the Bill been law and could have seen the journalists responsible prosecuted and imprisoned.
Dennis Dlomo's response to the concerns raised showed a lack of understanding of the principles of statutory interpretation, incorrectly suggesting that section 46 of the Promotion of Access to Information Act (PAIA), which permits the disclosure of information otherwise exempt from release to the public if the disclosure is in the public interest, provided a protection from criminal prosecution for information published in the public interest. Mr Dlomo's interpretation ignores the narrow construction of section 46 of PAIA which not only requires information to be in the public interest but also requires that the disclosure of the information would reveal evidence of a substantial contravention of, or failure to comply with the law, or an imminent and serious public safety or environmental risk. Furthermore, section 46 of PAIA only operates to provide the release of information, it does not provide a defence to the criminal offence of publishing classified information under the Bill. Even applying the most liberal of statutory interpretation principles, such a defence cannot be implied from PAIA. Indeed, the Minister's unwillingness to include a public interest defence in the Bill suggests that he is aware that no such defence is provided by PAIA - if it were then there would be no need to oppose including clear drafting of the defence in the Bill.
Other comments made by Mr Dlomo at the roundtable showed a lack of understanding of the practical realities of requesting information. Mr Dlomo suggested that people could easily gain access to classified information by making an application under PAIA. Anyone that has had experience using PAIA knows that obtaining information is anything but easy. The burdensome procedural requirements of PAIA render the legislation unusable for most South Africans. Furthermore, poor record keeping and lack of training within public bodies means that very few requests are responded to within the statutory timeframe of 30 days and many requests are met with a denial of information. Indeed the PAIA Civil Society Network, an umbrella body of organisations working to advance the right of access to information (of which SAHA is a member), found that during the 12 months commencing August 2009, only one fifth of requests for information submitted by member organisations were responded to within the time period required under PAIA. Furthermore, only 35 per cent of cases resulted in a full release of information and for many of those an appeal to the relevant Minister was required before information was provided. Additionally, almost three quarters of requests denied were denied on the basis that the information could not be found or did not exist.
To suggest that in a system where PAIA is already failing to allow citizens to exercise their right to information including an additional hurdle that classified information must be declassified before it is released and providing an offence for the incorrect release of classified material will not affect the right to information is at best naive, at worst an attempt to erode the Constitutional rights of the people.
In light of the comments made at the roundtable discussion, SAHA encourages government to continue to engage with civil society on the contents of the Bill and, in particular, to consider the practical implications of the Bill for the media, for public servants and for ordinary citizens trying to enforce their constitutional rights.
To listen to a podcast of the roundtable discussion click here.