20 September 2011

Secrecy Bill temporarily withdrawn

On 19 September the ANC announced that it had withdrawn the Protection of State Information Bill, known as the Secrecy Bill, from the Parliamentary timetable for further consultation.

The Secrecy Bill was passed by the Ad Hoc committee considering the Bill on 5 September. It had been scheduled for consideration by the National Assembly on 20 September.

The decision to withdraw the Bill for further consultation is welcomed as many problems remain with the Bill.

Most concerning to SAHA is the effect that the Bill will have on the right to information, guaranteed by the Constitution and realised in the Promotion of Access to Information Act (PAIA). The key concerns in this regard are:
• PAIA currently overrides any legislation that prohibits or restricts the disclosure of information in a manner inconsistent with PAIA. The Secrecy Bill reverses that position so that it will override PAIA. This means that restrictions on the release of information under the Secrecy Bill will apply even where PAIA would require that information to be released.
• The Secrecy Bill effectively inserts a new ground for refusal into PAIA, allowing access to documents requested under PAIA to be refused merely on the basis of their status as a classified document.
• The Secrecy Bill may extend the time for responding to a request under PAIA. PAIA requires that information holders respond to requests for access to records within 30 days. If, once the Secrecy Bill is passed, a request is made under PAIA for access to a classified document, the agency holding the document must consider whether it can be declassified. Only thereafter can a determination be made in regard to its release. However, the declassification procedure need only occur within a ‘reasonable period', which may extend beyond the 30 days required by PAIA.

Other key concerns with the Bill relate to the process for the classification of information and the criminal sanctions that may be imposed on members of the public.

Classification process
• The threshold for classifying a document as ‘top secret' under the Bill is the same as for classifying a document as ‘secret'. This leaves the decision for classifying a document as secret or top secret entirely within the discretion of the decision maker, allowing the Bill to operate in an arbitrary manner.
• The Bill does not require security agencies to classify all documents individually. Rather, it allows agencies to classify categories of documents as confidential, secret or top secret. This means that documents may be classified where they would not properly fall within the classification criteria in the Bill.
• There is no requirement for a member of an agency classifying a document to provide reasons for its classification. Requiring officers to provide reasons for the classification of a document would ensure that officers adequately turned their minds to whether the harm required in order to classify a document could actually be demonstrated. It would also allow for the simple review and monitoring of classification decisions by senior officers and the classification review panel.

Penalties and offences
• Criminal sanctions apply where a member of the public is in possession of classified documents, even where they do not publish or share the document with anyone. For example, a member of the public may be imprisoned for up to 5 years for failing to return a classified document to the police. Furthermore, a person may be imprisoned for up to 10 years for retaining a document which contains a state security matter.
• A document may remain classified even when it is in the public domain. This means that there is no limit on the number of people that may be prosecuted for the publication or retention of a classified document.
• There is no defence available to those who release, retain or publish documents in the public interest.
• The offences applicable to members of the public who publish or retain documents are disproportionate to those that apply to members of security agencies. For example, while a member of the public who retains a document containing a state security matter may be subject to imprisonment for up to 10 years, a public official that wilfully or in a grossly negligent manner fails to comply with the Act may only be jailed for a maximum of 2 years.

The ANC has committed to hold public meetings across the country to hear people's views on the Bill. Details of those consultations are not yet available.

Written submissions on the Bill can also be made to the ANC Information Bill Office:
Email: infobill@parliament.gov.za
Fax: 086 731 6737
Post: Parliament of the Republic of South Africa, PO Box 15, Cape Town, 8001