/ 22 November 2007

Classified documents: Court warned of ‘disaster’

It would be a recipe for disaster if the intelligence services had to apply to the courts every time it wanted classified documents kept from the public, the Constitutional Court heard on Thursday.

”This would be hopelessly impractical,” said David Unterhalter, counsel for the Intelligence Ministry and the Presidency.

He argued against a standardised approach when classified documents may become part of a court record.

He said the courts are not qualified to judge intelligence matters and applying a general rule would be impractical, given the individual circumstances of each case.

The court was hearing an application by Independent Newspapers relating to intelligence documents filed in axed intelligence director general Billy Masetlha’s appeal against his dismissal.

The documents had been on the court website, but were then taken down at the request of the Intelligence Ministry on the grounds they contained classified information.

Independent Newspapers earlier argued the information in five documents was already in the public domain and the documents should be released to the public in their entirety or in an edited form.

Judge Albie Sachs questioned why, as a matter of courtesy, the court had not been informed of the sensitivity of the documents when they were filed. ”It’s not a comfortable experience to put something [up on the web] and have to withdraw it later.”

Sachs said the court normally puts documents up on the internet. ”But shouldn’t we be given advanced notice so that we can take steps and decide what to do … There are no signals to say be alarmed, be careful — this shouldn’t go.”

Unterhalter asked the court not to release the documents at all.

Not for profit

Earlier on Thursday, the lawyer for Independent Newspapers said its application to have the documents released was not motivated by profit. ”This notion that we are somehow here for grubby commercial purposes … is offensive to the notion of freedom of expression,” said Gilbert Marcus.

Marcus said the court would have to make an order either to release the documents in their entirety or in an edited form. The newspaper group accepts the concept of classification and the need to protect informants and not endanger national security.

Lawyer for the Freedom of Expression Institute Kate Hofmeyer said it was misguided for Intelligence Minister Ronnie Kasrils to assume that records could be sealed without a court process. ”It is important for the public to know what information [there] is in the process of scrutinising the administration of justice.”

Any application and order to have documents withheld or sealed should be made public.

Drawing on United States and Canadian law, she proposed a set of procedures to allow for this to happen. This could involve bringing the documents to the court, with both sides seeing the documents, but not the public.

Deputy Chief Justice Dikgang Moseneke asked before the lunch adjournment whether the state needed the court cleared for its argument, causing some consternation in the press gallery.

”The minister of intelligence has objected to the disclosure of the documents, saying that the materials are classified and should be withheld on grounds of national security,” said the FXI in a statement on Wednesday.

The FXI said it believes court records, as a rule, should be unclassified in their totality. ”Our contention is that once such documents are part of court records, the minister would have to apply to court to have those court records [or the contentious parts of them] declared classified.”

Judgement was reserved. — Sapa