TABULATED ANALYSIS OF KEY CLAUSES OF CONCERN IN PROTECTION OF INFORMATION BILL (POIB)

(note:a l
istofconcernsoverthe POIB i
snotexhausti
ve and thi
smatri
xpresentsmai
nlya comparati
ve anal
ysi
sofkeyconcernsand the Mi
nisterofState Securi
ty'
sresponse to these concerns).

How keyconcerns are addressedi

n R2K' s R2K
Keyclauses ofconcerni
nthe Bi
ll
# the M i
nister'
s non-/
responses demands
clauses concern PAIA proposals/
demands
met?
"we believe that this is a huge taskand
The Bill gives any organ Limit the provision of there is a need for each of the heads of
Ch. 6, sec. 16, (1) any head of an organ of state may classify of state or a delegated classification authority organs of state to assume
or reclassify information using the classification levels set out authority including to core security sector administrative responsibility as the
1 in section 15;(2) A head of an organ of state may delegate in provincial and local −−− departments: buckstops with them… they should NO
writing authority to classify authorities, state owned intelligence, military, therefore shoulder this responsibility
information to a subordinate staff member. companies a power to police, diplomatic under the political guidance and
classify information. services. superintendence of the responsible
M inisters."

"National interest,"
The concept of national interest is not used (a) limit classification
broadly defined and all- proposed that :
Ch. 5, sec. 11, e.g. (1) The national interest of the Republic in PAIA. Instead PAIA provisions allow of information to
encompassing, is the key - the overbroad definition of national no change in
includes, but is not limited to (a) all matters relating to the the information officer to refuse a request strictly defined state
consideration in decision- interestbe deleted from the Bill; the current
2 advancement of the public good;and (b) all matters relating for access to information if disclosure of security matters and no
making over the -a narrowed definition of matters to be version of the
to the protection and preservation of all things owned or which would jeopardize "defence, security more;(b) exclude
classification of '
sensitive' classified based on Canadian definition Bill yet
maintained for the public by the State. and international relations of Republic" in national interestfrom
and 'commercial' of national security concerns;
particular. sec.41. the Bill;
information.

Ch.5, sec.12 (1) Commercial information becomes the subject Commercial information
matter of possible protection from disclosure under the can be made secret,
following circumstances:(a) Commercial information of an making it very difficult to
organ of state or information which has been given by an hold business and Sections 36 and 42 of PAIA clearly lists
proposed that no change in
organization, firm or individual to an organ of state or an government to account exemptions to mandatory protection of Exclude commercial
-the overbroad definition of the current
3 official representing the State, on request or invitation or in for inefficiency commercial information and allows a information from this
commercial informationbe deleted version of the
terms of a statutory or regulatory provision, the disclosure of and potential corruption. public interest as sufficient grounds for Bill.
from the Bill; Bill yet
which would prejudice the commercial, business, financial or The Bill leaves nearly no disclosure of commercial information.
industrial interests of the organ of state, organization or room for commercial
individual concerned;(b) information that could endanger the information not to be
national interest of the Republic. classified.

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 -PAIA is geared toward promoting access
to information versus ' granting or
Ch.1, sec. 3 (2(a,b,c,d)); exempting'of a right to classify or
The M inister of State "On the Appeal Process, Ihave
Ch.6, sec.17 (e) -if there is significant doubt as to whether declassify information and information
Security is the sole considered the submission and believe
information requires protection, the matter must be referred to officer (who reports to Human Rights
authority to grant or that in keeping with the provisions in
the M inister for a decision; Commission) decides whether to grant an An independent body
exempt any organ of state the Intelligence Services Act 2002, it is
Ch.7, sec.21 (3) -The M inister may, after taking into access to information or not based on a list appointed by
of a right to de/classify critical that this power be retained by
consideration all aspects as indicated in subsection (2), of specific grounds given in Chapter 4; Parliament, and not the
information. The M inister the M inister of State Security with the
section 11 and section 17(1)(i), authorize the classification or Ch.4, Sec.25 (1) The information officer to M inister of
4 is also a sole arbiterof provision that he or she may be able to NO
declassification of any category or class of classified whom a request for access is made or Intelligence, should be
classification and establish a board to advise and assist
information. transferred, must ... (a) decide in the arbiter of decisions
declassification decisions. him or her in the consideration of the
Ch.7, sec.25 (1) If the head of an organ of state denies a accordance with this Act whether to grant which must be
No independentappeal appeals. This system works well in all
request for declassification or the lifting of the status of the request; declassified.
bodyand/or dispute government departments where it
information to a member of the public or a non-governmental -Sections 74 -78, a requester may lodge an
resolution mechanism obtains. Ibelieve that there is no need
organisation or entity, such person or body may appeal such internal appeal against a decision of the
provided. to deviate from it."
decision to the M inister of the organ of state in question. information officer and may only apply to a
court for appropriate relief if the internal
appeal procedure is exhausted.

"The severity of the sentences is

Ch. 11, sec. 32 (1) It is an offence punishable on conviction Section 90of PAIA considers the
deliberate, as the penalties are
by imprisonment for a period not less Severe penalties of upto following offences only:
Do not apply severe proportionate to the damage the
than 15 years but not exceeding 25 years, subject to section 25 years of imprisonment A person who with intent to deny a right of
penalties for unauthorized disclosure would cause
1(6)— (a) to unlawfully communicate, deliver or make under the espionage access in terms of this Act –
unauthorised disclosure and the harm they are likely to do. In
available State information classified topsecret which an charges without the (a) destroys, damages or alters a record;
of state information to addition, these severe penalties serve
5 offender knows or ought reasonably to have known or option of introducing any (b) conceals a record;or NO
society at large in as a deterrent to unauthorised
suspected would directly or indirectly benefit another state;or types of fines. Severe (c) falsifies a record or makes a false
public interest. Consult disclosure. M any advanced
(b) to unlawfully make, obtain, collect, capture or copy a penalties will undermine record,
international democracies provide for more severe
record containing State information classified topsecret investigative journalism commits an offence and is liable on
experiences. sentences compared to what obtains in
which an offender knows or ought reasonably to have known and whistle-blowing. conviction to a fine or to imprisonment for
this Bill and can range to life
or suspected would directly or indirectly benefit another state. a period not exceeding two years.
imprisonment."

PAIA does allow for automatic disclosure of

certain records:Ch. 2, sec. 15:Voluntary
disclosure and automatic availability of certain
records. (I) The information officer of a public Allow for automatic
body ... must, on a periodic basis not less disclosure of
Ch. 9, Sec.4:There is no automatic disclosure of declassified frequently once each year, submit to the M inister information after it is
a description of-(a) the categories of records of
information to the public unless There is noautomatic declassified and there
the public body that are automatically available
6 that information has been placed into the National disclosure of even should be a specific No response on this matter. NO
without a person having to request access in
Declassification Database as provided declassified information. terms of this Act, including such categories timeline for the
for in section 29. available- automatic
(i) for inspection in terms of legislation other declassification of
than this Act; information.
(ii) for purchase or copying from the body;and
(iii) from the body, free of charge;and
(b) how to obtain access to such records;

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 "5.11. ... this provision seeks to
Section 46 and 70of PAIA:Despite any
address but to include it as a defence
other provision of this Chapter, the
clause would be to undermine the very
information officer of a public "Public interest
R2K believes that this objects of this Bill as the information
body must grant a request for access to a defence" clause (based
clause in the Bill can would always be in the public domain
Ch. 7, sec. 23:(1) a request for the declassification of record of the body if:(a) the disclosure of on a public interest
easily be manipulated and without following due process.
classified information may be submitted to the head of an the record would reveal evidence of— overrride) should be
is not convincing either. 5.12. In seeking remedy from the
organ of state by an interested nongovernmental party or (i) a substantial contravention of, or failure included in the Bill to
7 The Bill does not allow Courts, those who may be affected by NO
person. (2) such a request [for status review of classified to comply with, the law;or trumpany decision not
for disclosure of this unauthorized disclosure may not
information]must be in furtherance of a genuine research (ii) an imminent and serious public safety to disclose in public
classified information in get remedy even if the Courts found
interest or a legitimate public interest.(emphasis added) or environmental risk;and interest. The previous
genuine "Public that the disclosure was not in the
(b) the public interest in the disclosure of version of the Bill had
Interest." public interest.
the record clearly outweighs the harm this clause.
5.13. W e welcome, however, the use of
contemplated in the provision in question.
public interest override to apply for
(emphasis added)
access to classified information."

(1) At the end of the meeting of the ad

hoc Committee on the Bill, M s. Dene
Smuts (DA) reminded the Chaiperson
Burgess about the ODAC’s memo
regarding the incorrect way of tagging
The Bill needs to be
the Bill but the Chairperson simply
The Bill might have been withdrawn for it to be
declined to discuss the matter claiming
wrongly introduced to the tagged as a Bill
Section 35 of the Public Finance that the document should have been
Parliament. The Bill will affecting provinces in
M anagement Act states that any draft circulated by the Committee or by the
Ch.1, sec. 3, (1) This Act applies to— affect the provinces but terms of the section 76
legislation that assigns any obligation on a staff members of the Committee. (2)
(a) all organs of state;and neither the National of the Constitution. If
8 provincial government must in a The M inister stated that there will be NO
(b) juristic and natural persons to the extent that the Act Treasury Department, nor the intention is not to
memorandum "give a projection of the financial implications of the Bill and
imposes duties and obligations on such persons. the local provinces are make the Bill
financial implications of that function, implementation of the Bill will allow
not informed about any applicable to the
power or obligation to the province." the other departments enough time to
financial implications of provinces, then the Bill
put the financial implications into the
the Bill. needs to be re-drafted
budgetary processes. (3) in a ltter to
that way.
ODAC, the Speaker of Parliament, M r.
M . Sisuludenied the fact that Bill is
incorrectly introduced. He stated that
PFM A does not affect the tagging of
the Bill.

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 Ch.7, sec.24 (2) The head of an organ of state receiving a Section 87 of PAIA clearly states that the The period for status
The procedure for
request in the prescribed manner for a time for reviewing and processing a request review of classified
reviewing a request for
review of the status of classified information must make a for access to information has been reduced information and
9 accessing information and No response on this matter. NO
determination and in the case to 30days, which can futher be extended making a decision on it
making a decision is too
of a refusal provide reasons within 90days of the date of by up-to 30more days under specific must be reduced to 30
long, 90days.
receipt of such request. circumstances indicated in the law. days.

POIB will make

information subject to
classification because that
information might already
Ch. 5. Information that requires protection against disclosure:be subject to mandatory
Sec.(11) (3) (g):"all matters that are subject to mandatory non-disclosure in terms of
10
protection in terms of section 34 to 42 of the Promotion of PAIA. PAIA has certain
Access to Information Act, whether in classified form or not." exemptions even under
the category of mandatory
non-disclosure, but POIB
will not consider those
exceptions.
Do not automatically
classify information
The list of the types of information that only because it falls
falls under the category of 'mandatory under the mandatory
No response on this matter. NO
protection'is provided in Chapter 4, Sec. non-disclosure clause
33 -46 in PAIA. in terms of PAIA.
Consider the
exceptions.

Ch. 11, sec. 43, "(1) Any person who has in his or her
possession or under his or her control or at
his or her disposal information which he or she knows or
reasonably should know is a State security matter, and
who— (a) discloses such information to any person other than Simple possession or
Apply penalties only
a person to whom he or she is authorised to disclose it or to disclosure of classified
where information is
whom it may lawfully be disclosed;(b) publishes or uses such information or
PAIA does not criminalize a simple formally classified and
information in any manner or for any purpose which is information that is not
11 possession of either classified or not penalize those who No response on this matter. NO
prejudicial to the security or interests of the State; formally classified can be
officially classified information. have an original duty to
(c) retains such information when he or she has no right to penalized by
protect the classified
retain it or when it is contrary to his or her duty to retain it, or imprisonment of upto 10-
information.
neglects or fails to comply with any directions issued by 15 years.
lawful authority with regard to the return of disposal thereof;
or (d) neglects or fails to take proper care of such
information, or so to conduct himself or herself as not to
endanger the safety thereof ..."

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 The Bill is not fully
harmonized with PAIA
and any conflict between
POIB and other
Ch.1, sec. 3, "when considering an apparent conflict between information related
this legislation and other information-related legislation, legislatures are simply
12 every court must prefer any reasonable interpretation of the left for a court'
s legislation that -(a) prohibits or restricts
legislation that avoids a conflict over any alternative interpretation.Neglecting
interpretation that results in a conflict." the existing
contradictions in
legislative provisions
loads the burden on
courts'shoulders.
Ch. 2, sec. 5, "Application of other
legislation prohibiting or restricting
M ake POIB in
disclosure. This Act applies to the
harmony/consistent
exclusion of any provision of other
with already existing
No response on this matter. NO
legislatures such as
the disclosure of a record of a public body
PAIA and Protected
or private body;and (b) is materially
Disclosures Act (2000).
inconsistent with an object, or a specific
provision, of this Act."

Additional Concerns overthe Potential Implications ofthe POIB

1. The Bill limits the section 16 (on freedom of expression) of the Constitution which states that everyone has the right to freedom of expression, which includes (a) freedom of the press and other media; (b)
freedom to receive or impart information or ideas;and the Bill will also limit section 32 which says that everyone has the right of access to any information held by the state.

2. There will be boundless inconsistencies in classification of information into three categories of “confidential”, “secret”and “topsecret”. There will not be a unified and consistent classifying system.

3. The officials classifying the information will also have to determine whether it is in national interest or not and then classify the information that is not even tangible. This type of information includes
conversations, opinions, intellectual knowledge and voice communications that are not contained in material or physical form or format.
13
4. These officials will also have to exercise the discretionary power without having any expertise in it.

5. Information relating to health issues, tax, commercial information, legally privileged documents, research information and information relating to public bodies will be classified.
6. The Bill will inevitably lead to excessive secrecy because of its broad definition of national security and national interest that still includes “all matters to the advancement of public good”and because the
classification is guided by the principle, "Secrecy exists to protect the national interest" (sec. 17, (a)).

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