State agencies punch hole in Act

South Africa’s much-vaunted right to freedom of information was undermined last year, simply because the directors general of some of the country’s intelligence agencies requested it.

In April last year former minister of justice and constitutional development Penuell Maduna, without giving reasons, exempted the domestic National Intelligence Agency (NIA) and the external South African Secret Service (Sass) from having to declare what sort of records they hold.

This provision means having to supply a manual listing of documents held by any organisation. Companies and institutions around the country have spent vast amounts of time and money complying.

Like all government departments, they have, by law, to list all of the records they hold. But this does not mean that access to them is free or automatic — only that reasons should be given for denying access.
These can range from commercial sensitivity to betraying confidence, endangering life and threatening national security.

But the law aims to ensure that the written and otherwise recorded history of the government, business and “civil society” remains intact.

This Promotion of Access to Information Act (PAIA) makes it clear that records of assessments and events that have taken place should never again simply disappear from public knowledge.

In the dark days of apartheid, former president PW Botha used a blanket secrecy provision around his defence ministry to hide the existence of thousands of official records from parliamentarians and the public.

As Stellenbosch academic Sampie Terreblanche points out, this enabled Botha to hide a range of “unwholesome documents” from not only the gaze, but the knowledge of parliamentarians and the public.

Tonnes of records were subsequently destroyed on the orders of former president FW de Klerk in the months leading up to the transition from apartheid. Large amounts of our tortured history vanished into shredders and furnaces.

It was a reaction to this as much as the desire for an open, democratic society that drove the demand for a freedom of information law. It finally came into being as Act 2 of 2000.

But it was undermined in April last year when a blanket of secrecy descended over the NIA and Sass. After obtaining the exemptions, former minister of intelligence Lindiwe Sisulu also established a classification and declassification committee in the NIA.

Records ranging from minutes of meetings to environmental evaluations, analyses and commentaries can be sent to the NIA classification and declassification committee. This controversial committee even took charge of, and reclassified as secret, documents from the Truth and Reconciliation Commission that had previously been in the public domain.

So any government department in possession of documents that it might consider embarrassing can pass them on to the NIA for classification. As such they will not appear on any ministerial manual and will, so long as they remain in the NIA, officially cease to exist.

There also seems to be nothing to preclude a company or corporation from seeking the secrecy of the NIA. Any records deemed “dangerous” for all but a small elite to view could, theoretically, disappear.

It has now become clear that the reason for this incredible decision was that the NIA Director General Vusi Mavimbela and his Sass counterpart, Hilton Dennis, had requested it. They did so on the vague grounds of national security.

It took a year-long struggle through a request and appeals process for this vital snippet of information to surface.

When Maduna announced the exemption of the security agencies I, along with many individuals and organisations, was outraged. Among the prominent protestors were the Freedom of Expression Institute and the South African History Archive (Saha) at the University of the Witwatersrand.

Through Saha, I demanded to know from the minister what research or information he had used to come to the conclusion that the NIA and Sass should become blanketed in secrecy.

My request was refused, but on grounds that were at best ambiguous. On my behalf, Saha lodged an appeal and it succeeded.

The reasons for Maduna’s decision comprise two letters. One from Mavimbela and the other from Dennis. Both said essentially the same thing in slightly different language.

“It is my view that compliance with the provisions shall compromise the mandate of the agency and jeopardise national security,” wrote Mavimbela.

According to Dennis: “In my view, compulsory disclosure of this information as overt information could jeopardise the security of the service and the country.”

Dennis also pointed out that in three years Sass had received just one application for disclosure of information. It was for “biographical purposes”, but the service “had no record”.

Mavimbela, on the other hand, noted that the NIA “has received numerous requests for accession to classified information and internal policies”.

Neither he nor Dennis mentioned that the PAIA makes it clear that such requests may be refused; that, like other lauded freedom of information provisions elsewhere in the world, the PAIA provides protection for a range of personal and sensitive information.

What the law did until last April was help ensure that records of the country’s history, warts and all, did not again disappear or, in secrecy, get shredded and burned.

Terry Bell is author of Unfinished Business: South Africa, Apartheid and Truth

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