29 August 2012

Closed door discussions on the secrecy bill result in amendments

The meeting of the NCOP Ad Hoc Committee considering the Protection of State Information Bill (dubbed the ‘secrecy bill') on Wednesday 29 August revealed that members of the committee have been involved in closed door discussions regarding the content of the bill.

Members of the committee confirmed at the meeting that the Chief Whip of the NCOP had arranged private meetings with various parties and that, as a result, there was agreement on many of the amendments parties had previously proposed to the bill.

The amendments include:
• Preventing the Minister from granting classification powers to municipalities and requiring the Minister to apply a specified list of criteria in exercising his or her discretion to allow bodies outside the security services to classify documents.
• Offences aimed at safeguarding information from foreign states and those engaged in hostile activities will be limited to circumstances where a person had the intention to cause the requisite harm, and shall no longer include circumstances where the person ‘ought reasonably to have known' that the harm would result.
• It will be a defence to any criminal prosecution for unlawfully and intentionally disclosing classified information to demonstrate that the information disclosed reveals criminal activity.
• The offence prohibiting disclosure of a state security matter has been removed, restricting the protections offered to information generated by the state security agency to the same classification requirements applicable to information of other organs of state covered by the bill.

While back room deals are nothing new to parliament, given the history of failed promises on this bill, the absence of written documentation and public record of the agreements reached in the private meetings leaves cause for concern regarding whether the amendments will ultimately appear in the final draft of the bill.

Furthermore, while the amendments represent some positive changes to the bill, many issues remain outstanding. In particular, the effect of the bill on the right to information under the Promotion of Access to Information Act (PAIA) remains a serious concern.

The Office of the Chief State Law Advisor has now been requested to prepare a ‘working draft' of the bill, highlighting the areas of agreement and contention between the parties. Once that document is made public, activists will be in a better position to assess the extent of the concessions made.

The bill is scheduled for a vote by the full NCOP on 11 September 2012.