PRESENTATION ON THE PROTECTION OF STATE INFORMATION BILL [B6B 2010]

1. 24 January 2012 PRESENTATION ON THEPROTECTION OF STATE INFORMATION BILL [B6B 2010] BRIEFING TO THE NATIONAL COUNCIL OF PROVINCES AD HOC COMMITTEE ON THE PROTECTION OF STATE INFORMATION BILL

2. CONTENTS • Background to the Bill • Objectives • Chapter summary • Conclusion

3. BACKGROUND TO BILL • Since 1994, various Ministers of Intelligence commissioned a number of reviews to improve the management of state information such that it aligns with the constitutional provisions • First version of the Protection of Information Bill, tabled in 2008 was a consequence of these reviews. The Bill was later withdrawn following deliberations of the then Ad Hoc Committee • Revised version was introduced on 09 March 2010 by the Minister of State Security and public hearings were held on 21-22 July 2010 in the National Assembly

4. BACKGROUND TO BILL (Cont) • After a period exceeding 18 months of deliberations and engagements with a wide variety of stakeholders, the National Assembly – on 22 November 2011- passed an amended Protection of State Information Bill, 2010 [B6B – 2010] • The contents of the Bill was approved by all Ad-Hoc Committee members except where they felt the Bill was weaker due to the exclusion of the Public Interest Defence or public domain defence clauses • We welcome the opportunity to launch a new phase in the process of law making here in the National Council of Provinces and hope that it would provide South Africans with another chance to engage and debate • without fear, favour or prejudice matters of concern, as contained in this Bill.

5. OBJECTIVES • The Objects of the Bill are to: • Repeal existing apartheid Protection of Information Act 1982 (Act 84 of 1982) • Create a statutory framework for the protection of all state information held by organs of state from unauthorised alteration, loss, destruction and unlawful disclosure • Valuable and Sensitive Information • Set out criteria and processes for classification, reclassification and declassification • Deal accordingly with espionage • Minimum Information Security Standards have no legal force • Inadequate espionage offences in the legal system

6. OBJECTIVES (Cont) • Criminalise information peddling • Establish guidelines for the treatment of classified information before courts • Promote transparency and accountability in government while recognising that state information needs protection to safeguard National Security • Provide a thorough and methodical approach to the determination of which info may be protected without classification • Create a system for the review of classified information and for declassifying information • Regulate the accessibility of declassified information to the public

7. PREAMBLE The Preamble notes that information is important to secure the Republic and may need to be protected although the free flow of information within an open and democratic society must be promoted • The Bill aims to balance the need to maintain secrecy wherever it is necessary to do so with access to information held by the state • Mindful that the right to access to information is embedded in our Constitution, we also must acknowledge that information held by the state may be restricted when necessary for reasons of national security and the protection of citizens against harm

8. CHAPTER 1 Definitions • This chapter defines various terms used in the Bill and specifically states that the Bill must be interpreted to give effect to the objects of the Bill and to develop the information principles contained in Chapter 2

9. CHAPTER 1 (Cont) Definitions Various definitions are covered in this section such as that of the Agency; archive; categories of information, categorisation of information; classifying authority; classification of information; classified information… Here are some selected definitions contained in the Bill: • ‘‘hostile activity’’ means— (a) aggression against the Republic; (b) sabotage or terrorism aimed at the people of the Republic or a strategic asset of the Republic, whether inside or outside the Republic; (c) an activity aimed at changing the constitutional order of the Republic by the use of force or violence; or (d) a foreign or hostile intelligence operation • ‘information peddling’’ means the conduct referred to in section 45

10. CHAPTER 1 (Cont) Definitions • ‘‘national security’’ includes the protection of the people of the Republic and the territorial integrity of the Republic against— (a) the threat of use of force or the use of force; (b) the following acts: (i) Hostile acts of foreign intervention directed at undermining constitutional order (ii) terrorism or terrorist related activities (iii) espionage (iv) exposure of a state security matter with intention of undermining constitutional order (v) exposure of economic, scientific or technological secrets vital to the Republic; (vi) Sabotage (vii) serious violence directed at overthrowing the constitutional order of the Republic

11. CHAPTER 1 (Cont) (c) acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of, force and carrying out of the Republic’s responsibilities to any foreign country and international organisations in relation to any of the matters referred to in this definition, whether directed from, or committed within, the Republic or not • Does not include lawful political activity, advocacy, protest or dissent

12. CHAPTER 1 (Cont) Definitions • ‘‘state information’’ • means information generated, acquired or received by organs of state or in the possession or control of organs of state • ‘‘state security matter’’ • includes any matter, which has been classified in terms of this Act which is dealt with by the Agency which relates to the functions of the Agency or to the relationship existing between any person and the Agency • ‘‘valuable information’’ • means information contemplated in this Act whose unlawful alteration, destruction or loss is likely to deny the public or individuals of a service or benefit to which they are entitled

13. CHAPTER 1 (Cont) Objects of the Act • The objects are to, amongst other things: • regulate the protection of state information in accordance with general principles and framework and • at the same time promote transparency and accountability Application of the Act • In respect of protection of valuable information, the act will apply to all organs of state • With regards to the powers of classification, reclassification and declassification, the act applies to only the security services as contemplated in Chapter 11 of the Constitution and their oversight structures • Opt-in option available for organs of state on good cause shown: ORGANS are to be published in Government Gazette to enable public participation and opting in would be regulated

14. CHAPTER 2 General Principles • This chapter notes that only valuable information may have to be protected from unlawful alteration, destruction and loss in the interest of people and the state, but must respect openness and transparency and access to information as a basic human right • Section 6: The following principles underpin this Act and inform its implementation and interpretation: (a) Unless restricted by law that clearly sets out reasonable and objectively justified public or private considerations, state information should be available and accessible to all persons • The principles reflect the underlying values of the Constitution and the rule of law

15. CHAPTER 3 Policies and procedures  • This chapter deals with provisions for the formulation of national standards and procedures • It also provides for departmental heads to establish policies, directives and categories for the classifying, reclassifying and declassifying of information • These policies may not be inconsistent with national policies and should be established within six months of the date on which the regulations are promulgated

16. CHAPTER 3 Section 7 (1)  • The head of each organ of state, where applicable, • must establish policies, directives and categories for classifying, downgrading and declassifying state information • protection against unlawful alteration, destruction or loss of state information created, acquired or received by that organ of state

17. CHAPTER 4 Valuable information which requires protection • This chapter deals with how state information is to be determined as valuable and the resultant form of protection it requires from unlawful alteration, destruction and loss • The Bill provides for the destruction of documents in keeping with the National Archives and records Service of South Africa Act, 1996 (Act No 43 of 1996) and does not create a parallel system

18. CHAPTER 4 Section 8 • Deals with the process of determining state information as valuable Section 9 • Provides for the protection of valuable information without using classification as a protection measure

19. CHAPTER 5 • Classification and declassification of state information • This chapter, in part A, deals with the following critical areas of the bill: • Nature of classified information • Methods of classification • Classification levels • Authority to classify

20. CHAPTER 5 (Cont) • Conditions for classification (Clause 14): This clause provides express conditions on information that may not be classified namely information pertaining to corruption, maladministration, incompetence, inefficiency, embarrassment... • Classification may not be used to— • conceal an unlawful act or omission, incompetence, inefficiency or administrative error • restrict access to state information in order to limit scrutiny and thereby avoid criticism • prevent embarrassment to a person, organisation, or organ of state or agency • unlawfully restrain or lessen competition • prevent, delay or obstruct the release of state information that does not require protection under Act

21. CHAPTER 5 (Cont) • The clause further states that classification should be used as an exceptional measure and should be used when there is a justifiable and a demonstrableneed to do so • Report and return of classified records (Clause 15): • This clause deals with how classified records - if possessed by an unauthorized person - are to be returned to the South African Police Service or the Agency

22. CHAPTER 5 (Cont) • Classification and declassification of state information • In part B the Bill deals with • Declassification (Clause 16): • The process to declassify information is spelt out here including the authority to declassify, which the Bill provides to the head of organ of state or delegated to senior management • Maximum protection periods (Clause 17): • the Bill provides for periods not longer than 20 years for protection, unless there is a compelling reasons, agreed upon by the Classification Review Panel, to extend classification period

23. CHAPTER 6 Regular Reviews Access to Classified Information • In line with the principle of openness and transparency, procedures for regular reviews at least every 10 years are provided for: • Annually, a head of organ of state must prepare and table a report onthe regular reviews conducted and such report must be served before the Classification Review Panel. The Panel must, within 30 days, table such a report in Parliament • The head of organ of state is also obliged to publish the annual report. This is done to ensure public accountability and scrutiny for the decisions taken

24. CHAPTER 6 (Cont) Access to Classified Information • Clause 19 deals with procedure for access to classified information, given that classification is no means of denying access to information • Requests for access made in terms of Promotion of Access to Information (PAIA) when info is classified will be dealt with through the Bill • This clause provides for the public interest override -allowing disclosure of classified information if the public interest to do so outweighs the harm that will arise from the disclosure • An even faster period for access to information is provided for- 30 days- if the information sought reveals

25. CHAPTER 6 (Cont) Access to Classified Information and status review • substantial contravention of, or failure to comply with the law as contemplated in subsection 3(a)(i), and 14 days if the information sought reveals imminent and serious public safety or environmental risk as contemplated in subsection 3(a)(ii) • Classified information must be disclosed if public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure

26. CHAPTER 6 (Cont) Access to Classified Information and status review • A court may condone non-observance of the time-period referred to in subsection (4)(a) on good cause shown where an urgent application is brought before court

27. CHAPTER 7 Classification Review Panel • This chapter deals in great detail with the establishment of the Classification Review Panel, including the following issues, amongst others: • Functions • Constitution • Membership • Decisions of the Panel • Appointment of staff • Accountability and reporting • Accountable to the National Assembly

28. CHAPTER 7 (Cont) The Panel’s main function would be to ensure compliance with the Bill by organs of state that exercise the powers of classification, reclassification and declassification of state information Its independence and various powers allows it to ensure that government remains accountable to Parliament for the decisions they make Its functional independence derives from being nominated by members of the public, shortlisted by the JSCI, approved by the National Assembly and appointed by the Minister

29. CHAPTER 7 (Cont) Classification Review Panel • The Panel will exercise an oversight function along similar lines as the Auditor General, with powers to set aside wrongful classifications • The Panel is obliged to prepare an annual report on its activities and submit such report to Parliament and publish such report, to fulfil the accountability function and allow for public scrutiny • The publication of the annual report seeks to provide insights to the public on the work of the Panel: check rigour and independence

30. CHAPTER 8 Appeals • This chapter contains the procedure to be followed when lodging an appeal in the case of refusal of access to information • Any person who is refused access to information in terms of this Act may appeal to the relevant Minister of the organ of state in question • The sections also deals with the procedures for application to Court to provide for relief • A requester is empowered to go directly to court to lodge an urgent application, without exhausting the internal appeal procedures

31. CHAPTER 9 Transfer of Records to National Archives and release of the declassified information to the public • The chapter provides for procedures to be followed by the head of organs of state when transferring records to the National Archives • No classified state information may be made available to the public until such state information has been declassified • Declassified information may be made available to the public through the Promotion of Access to Information Act or any other law

32. CHAPTER 10 Implementation and Monitoring • The State Security Agency will monitor the implementation of the Act and must provide all organs of state and Ministers with support and advice on the handling and review of classified information • The South African Police Service (SAPS) and the South African National Defence Force (SANDF) are RESPONSIBLE for their departments

33. CHAPTER 11 Offences and Penalties • This chapter contains all the offences and punishments which may be imposed on people convicted of offences under the Bill. The penalties are severe to serve as a deterrence • The following offences are provided for amongst others • Espionage: • to unlawfully and intentionally communicate, deliver or make available state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state • to unlawfully and intentionally make, obtain, collect, capture or copy a record containing state information classified top secret which the person knows or ought reasonably to have known would directly or indirectly benefit a foreign state • Disclosure of classified information • Whistle blowers adequately protected in line with the Public Disclosure’s Act • Information peddling • Destruction or alteration of valuable information • Wrongful classification

34. CHAPTER 11 Offences and Penalties • Receiving state information unlawfully • Hostile activity offences • Interception of or interference with classified information • Disclosure of classified information • Provision of false information to national intelligence structures • Destruction or alteration of valuable information • Improper classification • Prohibition of discloser of state security matter

35. CHAPTER 12 Protection of Information before Courts • This chapter seeks to protect classified information placed before the courts until the courts order disclosure

36. CHAPTER 13 General Provisions • This chapter provides for: • reports to be furnished; • empowers the Minister to make regulations; • contains transitional arrangements; and • the repeal of laws.

37. CONCLUSION South Africa is a young and fledging democracy that is built on the foundations of a Constitution that recognises various fundamental human rights central to the advancement of peace, security and prosperity, amongst others. Guided by the noble tenets of the Constitution, this Bill SEEKS TO BALANCE the need to maintain secrecy, WHENEVER AND wherever it is necessary to do so, while guaranteeing the right of access to information held by the state.

38. Adequate safeguards have been built into the Bill to prevent abuse, provide oversight and public scrutiny and accountability. Importantly, an additional layer if oversight, the Classification Review Panel is being established to collaborate with the Parliamentary oversight by the JSCI, civil monitoring by the OIGI, judicial oversight through the Inspecting Judge on Interceptions, executive oversight by the Minister of State Security and other responsible Ministers • We welcome the opportunity given to the Department of State Security by the Committee and the public at large to present this submission introducing the Bill which would help the NCOP to determine to what extent this delicate but necessary balance between openness and secrecy HAS been achieved in this Bill.

39. THANK YOU