Protection of Information Bill: Ensuring State Security and Access to Information

1. PROTECTION OF INFORMATION BILLPresentation to Ad Hoc Committee18 June 2008

2. OBJECTIVES OF PROTECTION OF INFORMATION BILL • Statutory framework for the protection of state information • Criteria and processes for protection from destruction and/or disclosure • Criteria and processes for classification and declassification • Offences and sentences (espionage and information peddling) • Treatment by courts of classified information • Repeals Protection of Information Act, 84 of 1982

3. EXISTING PROTECTION REGIME • MISS • Cabinet approved in 1994 • Criteria for access to classified information • No criteria for classification or declassification • Protection of Information Act,1982 • Not informed by Constitutional principle of access to information • Criminal provisions based on presumptions

4. NEED FOR STATUTORY REGIME • What information may be classified and what information may not be classified • Who may classify information • When should classified information be classified and who should declassify information • How long may classified information remain classified • Can declassified information be released to the public • Oversight

5. PREAMBLE • Sets out broad aims of the Bill • Obligation imposed on government by the Constitution to protect and advance national security • Constitutional obligations carried out through the making of laws • Recommendation • Include in preamble reference to affirming promotion of access to information

6. CHAPTER 1- DEFINITIONS, OBJECTS AND APPLICATION • Definitions • Detailed description of terminology used in the Bill • Proposed definition of national security • Existing definition of intelligence criticised for being too broad • Application • All organs of state • Minister may exempt on good cause • To prevent over classification

7. CHAPTER 2NATURE AND GENERAL PRINCIPLES OF INFORMATION • Clause4 sets out the nature and extent of information for the purposes of the Bill • Draft approved by Cabinet: • Included information in any form, whether material or not • Debate as to whether information in non material form should be protected in terms of this Bill • Certified version deleted reference to “designated information” • Clause5 describes “state information” which is the information that may be subject to protection in terms of the Bill • 5(3) stipulates that state information should be made available to the public unless there are good reasons to withhold it • Private information in the hands of private persons or entities may not be protected in terms of this Bill • Protected Information • Valuable (Protection from destruction, alternation or loss) • Classified(Protected from disclosure)

8. Clause7 GENERAL PRINCIPLES OF STATE INFORMATION • Sets out the principles that underpin the law and inform its implementation and interpretation • Intrinsic Value Approach (clause8) • Requires decision makers to balance the rights of individuals with legitimate government requirements and interests

9. CHAPTER 3 NATIONAL INFORMAION SECURITY STANDARDS AND DEPARTMENTAL POLICIES AND PROCEDURES • Minister of Intelligence (within 12 months) • national information security standards • categories of information that must be protected by law • categories of information that do not need protection • Departments to set departmental policies and procedures (within 18 months)

10. CHAPTER 4PROTECTION AGAINST ALTERATION DESTRUCTION LOSS • clause11 sets out test for determining whether or not information is valuable • clause12 sets out procedure for determining whether or not information valuable • clause13 sets out how valuable information is to be protected

11. CHAPTER 5PROTECTION AGAINST DISCLOSURE • Sensitive Information • Sensitive information is information which must be protected from disclosure in order to prevent the national interest of the Republic from being endangered. • Commercial Information • Includes the commercial, business, financial or industrial information held by or in the possession of an organ of state • Subject matter of possible protection from disclosure when in possession of the state when the information should be protected from disclosure in order to prevent the national interest of the Republic from being endangered. • Personal Information • Any information concerning an identifiable natural person which, if disclosed could reasonably be expected to endanger the life or physical safety of an individual.

12. This chapter has generated some public debate • It has been erroneously assumed that whatever falls within the categories of sensitive, commercial or personal information is automatically or likely to be classified • The categories set out in this chapter merely outline the categories of state information which may be capable of protection • Certain adjustments have been proposed in relation to clauses 14 and 15 to make it absolutely clear that it is not mandatory to protect matters that happen to be in the public interest. The words in cl 14(1) which states that “sensitive information is state information which must be protected …” will be adjusted to read “may be protected” • Actual protection may only take place through the classification process. Classification may only happen when the specific classification criteria and standards are met and if the classification is consistent with the classification principles as provided for in chapter 6.

13. CHAPTER 6 CLASSIFICATION OF INFORMATION

14. CONFIDENTIAL • State information may be classified as “Confidential” if the information is- • sensitive information, the disclosure of which may be harmful to the security or interests of the state or could prejudice the Republic in its international relations • commercial information, the disclosure of which may cause financial loss to an entity or may prejudice an entity in its relations with its clients, competitors, contractors and suppliers

15. SECRET • State information may be classified as “Secret” if the information is- • sensitive information, the disclosure of which may endanger the security or interests of the state or could jeopardize the international relations of the Republic • commercial information, the disclosure of which may cause serious financial loss to an entity; or which may endanger the security or interests of the state • personal information, the disclosure of which may endanger the physical security of a person

16. TOP SECRET • State information may be classified as “Top Secret” if the information is- • sensitive information, the disclosure of which may cause serious and irreparable harm to the security or interests of the state or may cause other states to sever diplomatic relations with the Republic; • commercial information, the disclosure of which may have disastrous results with regard to the future existence of an entity; or cause serious and irreparable harm to the security or interests of the state; • personal information the disclosure of which may endanger the life of the individual

17. AUTHORITY TO CLASSIFY INFORMATION • Heads of organs of state are vested with the authority to classify and to reclassify information using the classification levels set out in clause20 of this Act • A head of an organ of state may delegate authority to classify to subordinate staff members • Only senior staff members may be given authority to classify information as secret or top secret • Classification decisions should be taken at a sufficiently senior level to ensure that only that information which genuinely requires protection is classified • Original classifiers must provide a written justification for each initial classification decision • Items, files, integral file blocks, file series or categories of state information may be determined as classified in advance • When state information is categorized as classified, all individual items of information that fall within a classified category are automatically deemed to be classified.

18. PRINCIPLES OF CLASSIFICATION • Classification decisions must be guided by the following principles: • Secrecy exists to protect the national interest; • Classification of information may not under any circumstances be used to conceal an unlawful act or omission, incompetence, inefficiency, or administrative error; • Assess and weigh the benefits of secrecy with factors such as the • vulnerability of the information; • threat of damage from its disclosure; • risk of loss of the information; • value of the information to adversaries; • cost of protecting the information; and • public benefit to be derived from the release of the information; • scientific and research information not clearly related to the national security and the national interest may not be classified;

19. REPORT AND RETURN OF CLASSIFIED RECORDS A person who is in possession of a classified record knowing that such record has been communicated, delivered or made available outside of the manner and purposes of this Act, except where such possession is for any purpose and in any manner authorized by law, shall report such possession and return such record to a member of the South African Police Service or the National Intelligence Agency.

20. DECLASSIFICATION • Clause24 sets out who has authority to declassify classified records and also to downgrade classifications from a high level to a lower level of classification. • Clause24(6) permits the declassification of categories of classified information and all items and files falling within such categories en bloc. • Clause25 describes the process of automatic declassification. It is intended that classifying authorities will, at the time of classification, determine a time frame or the occurrence of an event for automatic • Clause26 sets out when all classified information, not declassified in terms of clause25, must be automatically declassified • All classified information that was classified on or before 10 May 1994, shall be automatically declassified unless reclassified in terms of cl 33 • All state information formerly classified as “restricted” shall be automatically declassified unless the Minster exempts

21. Information may not remain classified for more than 20 years unless: • Critical to the national security; necessary to prevent identifiable damage to national security ;physical harm to persons • Information may not remain classified for more than 30 years unless: • Demonstrable life threatening or physical harm to a person

22. CHAPTER 7 CRITERIA FOR THE CONTINUED CLASSIFICATION OF INFORMATION • Clause28 requires that a classification authority must be satisfied that the declassification of information “is likely to cause significant and demonstrable harm to the national interest of the Republic”. The standard for continued classification includes the additional element of ‘significant harm’ • The Bill imposes a higher threshold to meet for the reclassification or continued classification of state information • This clause has been criticised for introducing a different test to the test for an original classification • Aim of the Bill to reduce the incidence of classification, particularly classification over longer periods, then a higher standard may be warranted for reclassification • It is proposed that the words “national interest of the Republic” be replaced with “interests sought to be protected by the classification” since certain interests in relation to the protection of personal and commercial information may not be equated to the national interest

23. Regular Review of Classified status • clause29 requires that all organs of state review the status of all classified records at least once every ten years, employing the higher threshold in cl 28(1) • The cl 28(1) test must also be used whenever there is a need to review the classified status of information for use in a public forum such as a court • Organs of state are required to inform the Minister of Intelligence Services of the results of the regular reviews and also to publish such results for public scrutiny.

24. Requests for status reviews of classified information • Interested members of the public may seek the declassification of classified documents or all classified records falling within identified categories or subject matters • Requests for status reviews of classified records must be in furtherance of a genuine research interest or a legitimate public interest. • Chapter 9 provides for the release of declassified records through national and departmental policies and procedures, the National Declassification Database, and where such processes fail, rights to information may be enforced through the mechanisms of the Promotion of Access to Information Act, 2000 (PAIA). • Determination within 90 calendars of receiving the request (It is proposed to insert a requirement that in the case of a refusal reasons must be provided) • It has been suggested that in order to minimise the impact of ‘classifying the fact of the existence or non-existence of information’, the Bill should provide that such classifications may be made only in respect of information that is ‘top secret’.

25. Appeal procedure • Appeal procedure to the Minister of the organ of state that refused the request is provided in cl 32 • Lodged within 30 calendar days of the refusal by the head of the organ of state • The Minister must make his or her decision on appeal within 90 days of receiving the appeal • Criticism: Appeal procedure does not provide for an independent and impartial appeal process • Original draft included the creation of a multi-departmental panel to hear such appeals in order to avoid the situation of having a Minister consider an appeal from his or her own line department

26. CHAPTER 8TRANSFER OF RECORDS TO THE NATIONAL ARCHIVES • All classified records that are transferred to the National Archives or any other archives shall be automatically declassified • Records held in an archive that are already classified will retain their classifications but become subject to the review and declassification provisions of the proposed law

27. CHAPTER 9RELEASE OF DECLASSIFIED INFORMATION TO THE PUBLIC • No classified information may be released to the public until it has been declassified or unless its release has been authorised by a court • Declassified information may be released in accordance with national and departmental policies and procedures • Where access to declassified information is not secured through departmental procedures an interested party may enforce his or her rights through the provisions of PAIA. • Declassified information in the National Declassification automatically disclosed to the public

28. CHAPTER 10IMPLEMENTATION AND MONITORING • National Intelligence Agency (NIA) to exercise oversight of the national protection information policies and programmes carried out by organs of state • NIA is required to provide expert support and advice and is authorised to carry out on-site inspections and reviews for the purpose of monitoring the protection of information programs. • The South African Police Services (SAPS) and the South African National Defence Force (SANDF) are exempted from the provisions of this chapter- argued that they have there own internal monitoring processes and that they should not be subject to oversight by another organ of state • Disputes to be referred to the Minister of Intelligence • Criticism – no independent oversight mechanism • Original draft contained provision for independent oversight mechanism • Concern that would lead to administrative burden

29. CHAPTER 11OFFENCES AND PENALTIES • Espionage Offences • Hostile Activity Offences • Harbouring or concealing persons • Registration of Intelligence Agents and Related Offences • Unauthorised disclosure, possession • Improper classification or designation • Information peddling

30. PROPOSAL FOR A PUBLIC INTEREST EXEMPTION • The Bill criminalizes certain activities that are not in compliance with the proposed law. These offences are aimed at deterring the unlawful disclosure or possession of classified information. They do not require the showing of an intention to prejudice the state or to give an advantage to another state. • These offences include: • the unauthorised disclosure of classified information (cl 45) and the knowing possession of classified information (cl 46) - punishable by imprisonment for a period of up to 5 years, while the latter is punishable by a fine or imprisonment up to 5 years • Do not require the proof of an intention to prejudice the In such a case the technical offence has been committed even though the aim was to expose illegality • It has been proposed that a “public interest” exception be introduced • As an implicit public interest defence can be construed from the principles that underpin the Bill, and since it cannot be in the national interest to penalize those conducting genuine

31. CHAPTER 12CLASSIFIED INFORMATION IN COURT PROCEEDINGS • Classified information that forms part of court records may not be disclosed unless a court orders disclosure • Court must issue directions for proper handling of classified information • Proceedings in camera • Protection from disclosure of classified portions

32. ENDS