Expediently vague

The road to hell is paved with good intentions, as the saying goes, and so too, sometimes, the path to bad law.

The draft Protection of Information Bill is a case in point.

Its stated aim is to ”promote the free flow of information within an open and democratic society without compromising the security of the Republic”.

No one can argue with that. So the Bill’s sinister implications are either the result of poor or hurried drafting — or perhaps indeed betray a disguised agenda. Either way, we should be concerned.

The manner in which this issue has been brought on to the public agenda is perhaps indicative of |how we have slipped since the open policy-making days of the Mandela era.

State secrecy is an important issue in a democracy — especially given our past — and given the evidence from so-called mature democracies where secrecy and intelligence can be abused to manipulate the political process, for instance, to justify a decision to attack Iraq.

So we might have expected a policy document discussing the principles behind why some, or any, information must be kept secret and setting out the debate over best practice.

Half-baked

Instead we have a ready made, but half-baked Bill, which we have to pray is improved during the parliamentary process — notwithstanding the ANC’s instinctive conservatism over security matters.

But let’s take the Bill on its own terms, which seek to ”put the protection of information within a transparent and sustainable legislative framework”, while acknowledging ”the harm of excessive secrecy”.

There are some simple criteria by which one can judge whether such legislation lives up to the principles it espouses.

Firstly: how high is the secrecy bar set? Is the state entitled to withhold and protect information relating only to the core security of the state? Or is the discretion much wider, allowing a blanket of secrecy to be thrown over information that is not dangerous, but merely inconvenient?

Secondly: who decides? Are such decisions about what is to be regarded as protected or classified purely executive decisions, or is there some independent decision-making body or oversight structure? In addition, are such decisions restricted to the most senior politicians and officials, or can they be widely delegated and dispersed?

Thirdly: what review mechanisms are there available to challenge the decision? Is there an independent body that may reconsider and overturn classifications. Is there explicit provision for a court to reconsider and overturn such decisions?

Finally: are there unique features of the legislation that may aggravate concerns over excessive secrecy — or that provide ameliorating factors, such as a public interest override, for instance?

In regard to all these criteria, there are grounds for grave concern over this Bill.

Secrecy hurdle

The secrecy bar is set dangerously low. Instead of being defined restrictively to matters that impinge on national security, the Bill seeks the right to protect the much wider and ideologically loaded concept of the ”national interest”. Sensitive information is defined as information that ”must be protected from disclosure in order to prevent the national interest of the Republic from being endangered”.

The national interest is defined in ludicrously broad terms. Besides ”the survival and security of the state”, it includes:

all matters relating to the advancement of the public good;

;

;

;

.

In other words, any information which endangers anything from ”motherhood” to ”apple pie”, to use the American cliché, should be protected and, in terms of this Bill may be kept secret if it meets the classification criteria.

Classification criteria

The state may protect state information by way of its classification as confidential, secret or top secret.

This includes not only ”sensitive information” which could endanger the national interest, but commercial information held by the state, which if disclosed, ”may prejudice the commercial, business or industrial interests of an organisation or individual” and which the state is not authorised by some other law to release.

The protection of information about state tenders is likely to be a key concern here as the other main law providing for access to information — the Promotion of Access to Information Act — already contains hefty exclusions on commercial or security grounds.

The classifications do not require a reasonable expectation of real damage, should the information be disclosed, but merely the possibility of damage.

Thus ”confidential” information ”may be harmful” to the interests of the state or ”may prejudice” a commercial entity, ”secret” information ”may endanger” state interests and ”top secret” information ”may cause serious or irreparable harm” to state interests.

However, classifications are meant to be reached according to quite stringent principles which stress that classification should occur only when there is a ”clear and justifiable need”.

The problem is this Bill creates a vast secret administrative process that can only be checked on a case by case basis by going to court, making the system open to routine abuse.

To its credit, the Bill also criminalises the classification of information for any ulterior purpose, though the lawful justifications for classification are broad enough to hide ulterior purpose in all but the most blatant cases.

Disclosure

The Bill criminalises the disclosure of state information, including commercial information, with the ”intention to prejudice the state” if that information could be classified, whether or not it has in fact been classified.

The Bill does not provide for any public interest exclusion. Given that the national interest is defined so broadly, any whistle-blowers will find it difficult to argue that they did not foresee prejudice and may, in effect, bear an onus to prove that they did not have an intention to prejudice the state.

The unauthorised disclosure of classified information without the intention to prejudice the state is still an offence punishable with a prison term of up to five years.

Who decides?

The minister of intelligence has the power to prescribe broad categories of information that may be designated, classified, downgraded and declassified and protected against destruction, alteration and loss — and also prescribe procedures for the categorisation, designation, classification, downgrading and declassification of information.

The effective decisions are made by the heads of organs of state, which include parastatals and municipalities, and who may also delegate classification authority to officials under them. Thus, every municipal manager acquires and can delegate classification authority, meaning decisions on secrecy are extremely widely dispersed though they must follow national norms and standards.

Challenging decisions

The authority to lift classifications resides with those who imposed the classification originally. Requests for declassification must be dealt with within 90 days.

Appeals against the decision may only be referred to the minister concerned. There is no independent appeal process, such as an ombudsman, or multi-party classification committee.

Such decisions are reviewable by a court but not appealable, meaning that the court cannot substitute its own view unless the original was wholly unreasonable.

Unique features

The Bill makes provision for the creation of ”designated information” which is information not in recorded form. In other words, the information in people’s heads.

If the information could have been classified if it was reduced to recorded form, then it may be designated. The same broad range of officials is entitled to designate information and the same penalties apply to the unauthorised disclosure of designated information.

This is clearly aimed at criminalising verbal leaks — long a bugbear of government — as designated information is defined as state information ”emerging from identified deliberations, exchanges or communications”, though these must be designated in advance.

It is possible that all closed door deliberations of state organs that consider sensitive or commercial information will be designated.