12 June 2012

Department of State Security rejects changes to the secrecy bill proposed by Parliament

The Department of State Security has rejected amendments to the Protection of State Information Bill (commonly known as the secrecy bill) proposed by the National Council of Provinces Ad Hoc Committee considering the bill.

As previously reported by SAHA, a number of amendments proposed to the bill by ANC members in the committee (which are the only changes that have any prospect of being passed, given the majority held by the ANC in the committee) would constitute positive changes, though they still fall short of what would be required to rectify the potential threats posed by the bill.

However, presenting to the committee on 12 June 2012, Acting Director General of the department, Dennis Dlomo, indicated the department's unwillingness to support any of the positive changes proposed by the committee.

• Remove the capacity for the Minister to extend the classification powers in the bill to municipalities. REJECTED. The department claims that a municipality may need to classify information where it was privy to international cooperation agreements and obligations or in respect of its metropolitan police services who may handle classified information in their crime prevention activities. This response reveals that the department intends the classification powers contained in the bill to be extended well beyond the security services, to which the powers are expressly provided under the bill.

• Limit the type of information that may fall within the definition of national security and therefore be classified under the bill by making the definition exhaustive, rather than inclusive. REJECTED. The department claims that threats to national security are dynamic, not static, and the flexible definition is necessary to allow emerging threats to national security to be included. However, the definition already includes very broad concepts which would allow for the changing nature of any threats to national security. For example, it includes ‘terrorism or terror related activities', ‘espionage' and ‘sabotage'. None of these terms are defined in the bill and can therefore be applied flexibly to account for the ‘dynamic' nature of national security. In the event that any threat emerges that is not covered by the definition and truly relates to matters of national security, the law should be amended through an open and transparent parliamentary process, not behind closed doors in the inner workings of the security services.

• Limit the type of information that may fall within the definition of a state security matter under the bill by making the definition exhaustive, rather than inclusive. REJECTED. The department claims that there is no need to amend the definition as it is contextual and will be interpreted in the context of the department's mandate in relation to national security. However, the department also acknowledged in its presentation that the definition covers both classified and unclassified matters. This means that matters the department considers are ‘related to national security' but do not meet the threshold for classification under the bill may still constitute a state security matter and the disclosure of such information could result in a 15 year jail term for ordinary citizens.

• Require decisions regarding access to classified information to be made within 14 days of receiving a request for the information. REJECTED. The department contends that some reviews of information for the purpose of assessing declassification and access may be very complex and therefore it is ‘problematic' to determine a fixed period of time in which such reviews must take place. The department stated that "a court would be able to determine reasonable timeframes on a case by case basis." However, the average citizen cannot afford to take the department to court just to force the department to respond to a request for access, nor should they be required to. Furthermore, approaching the court is a time consuming process in itself and, given the often time-bound value of information, may result in an effective denial of the right.

• Amend offences aimed at safeguarding information from foreign states and those engaged in hostile activities to allow conviction only where the person had an intention to commit the prohibited act. REJECTED. The department suggested that this phrase was inserted at the recommendation of the National Prosecuting Authority. However, the reason for its inclusion and why the department considered it necessary to insist it remained was not explained. Given the severity of the prison sentences (ranging from 3 to 25 years) that may result from these offences and the very nature of espionage and hostile activity, the government should be required to demonstrate actual intent and knowledge that the harm would result, not only that a reasonable person in their position would have known.

• Prevent criminal prosecution of those persons that unlawfully and intentionally disclose classified information where the information reveals criminal activity. REJECTED. The department contends that there are ‘adequate mechanisms' for review of such classified information in order to seek its lawful release before disclosing it. This ‘adequate' process involves returning the information to SAPS, then requesting that the head of the relevant body review the classification and release the information. There is no time limit in which the head must review the information (the department has rejected the proposal to insert a time limit). If the head of the body declines the request, you must apply to the Minister. If they decline the request you must apply to the court. It could conceivably therefore be years before the information is disclosed to you, all the while the criminal activity could continue unabated or the offender could take steps to cover their tracks.

• Extend offences related to the improper classification of information by public officials to include attempts to conceal incompetence, inefficiencies and administrative errors. FAILED TO RESPOND. The department did not address this matter but instead responded only to the proposal to insert reference to ‘corruption or any unlawful act or omission', which it rejected on the basis that these circumstances were already covered in the reference to a ‘breach of the law'. While the department's position is correct in this regard, incompetence, inefficiencies and administrative errors do not amount to a breach of the law and therefore their inclusion would have extended the improper classification provisions to prevent cover ups of such conduct.

The Ad Hoc Committee must now consider the response to its proposals provided by the department and agree on final amendments to the bill. One can only hope that the members of the committee stand firm against the response provided by the department and instead heed the calls for change from so many experts and members of the public that made submissions to the committee.

Review the department's response to the proposals of the Ad Hoc Committee.