29 August 2012

Despite reports, secrecy bill continues to threaten the right to information under PAIA

Reports that an amendment to clause 1(4) of the Protection of State Information Bill (dubbed the ‘secrecy bill') agreed at a meeting of the NCOP Ad Hoc Committee considering the bill on Wednesday 29 August will protect the right to information under the Promotion of Access to Information Act (PAIA) are inaccurate.

Currently clause 1(4) of the bill states that "in respect of classified information and despite section 5 of the Promotion of Access to Information Act, this Act prevails if there is a conflict between a provision of this Act and a provision of another Act of Parliament that regulates access to classified information."

At the committee meeting Mr Mazosiwe, ANC, reportedly said that the ANC were now willing to delete the phrase "and despite section 5 of the Promotion of Access to Information Act" from the bill, which he believed would address concerns about possible conflicts between the two pieces of legislation.

However, the result of the proposed amendment to the secrecy bill is not to ‘save' PAIA, as was suggested by Mr Mazosiwe, and adopted wholesale by much of the media.

Removing the reference to PAIA in the bill does not resolve the conflict between the two clauses, nor does it mean that PAIA will automatically override the bill. Instead, if the bill is enacted in the proposed new format, there will be two pieces of legislation that both claim to prevail over the other in the event of conflict.

The effect of the proposed amendment is therefore to leave it to the court to determine how to interpret the two conflicting provisions, and therefore, which is the supreme law. In doing so, the court must consider fundamental legal principles that may sway the court to determine that the secrecy bill must prevail over PAIA.

Firstly, a former legislature cannot bind a future legislature and therefore the prominence of PAIA cannot be viewed by the court as fixed for all time. Furthermore, a court should presume that when enacting the bill the legislature was aware of its relationship to other statute, including PAIA, and that the subsequent legislation (the secrecy bill) was intended to override the former (PAIA).

Therefore, while the court may find other factors to be relevant to determining the issue that may support maintaining the priority status of PAIA, there is a substantial risk that a court would determine the conflicting clauses in favour of the secrecy bill, resulting in the bill trumping PAIA. This would affect the right to information in two key ways:
• access to information could be refused merely on the basis of its status as a classified document; and
• the timelines for responding to requests for access to classified information could be extended indefinitely.

Therefore, the proposed amendment by the committee does not protect the right to information under PAIA and instead will leave requesters and public officials in the dark until such time as a court can be called upon to determine the issue.