THE US AND SOUTH AFRICAN APPROACHES TO THE CLASSIFICATION OF GOVERNMENT INFORMATION

The debate continues to rage over the Protection of Information Bill which has been introduced in Parliament to establish a new system for the classification of government information. Its proponents claim that the Bill is necessary to protect government information from ‘enemies'. Its opponents charge that it is a threat to the accountability, responsiveness and openness that are at the heart of our multiparty constitutional democracy.

All states have a bona fide duty to protect genuinely sensitive government information. It might accordingly be instructive to compare the approach in the Protection of Information Bill with the provisions of the Executive Order on Classified National Security Information that President Obama promulgated in December last year.

The first distinction lies in the definition of matters that should be considered for classification. In the South African Bill the definition is very wide. It includes "all matters relating to the advancement of the public good" and "the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations".

It also includes commercial information held by the Government as well as information relating to state owned entities. This means that virtually any government information, including information on parastatals and government tenders, would fall within the scope of classification and so be withheld from the public.

By contrast, the US Executive Order is very precise. Information can be considered for classification only if its unauthorized disclosure could reasonably be expected to harm national security. National security is precisely defined to include matters such as military plans and weapons systems; foreign relations; intelligence activities; weapons of mass destruction; and scientific, technological or economic matters that might affect national security. It is important to note that the anticipated damage to national security must be identifiable and describable. Moreover, "if there is any significant doubt about the need to classify information, it shall not be classified."

In the proposed South African system, the National Intelligence Agency - which may be presumed to have a bias toward maximum secrecy - would have overall responsibility for the implementation of the classification of government information. The key agency in the US classification system is, perhaps more appropriately, the National Archives. The Executive Order establishes within the National Archives an Information Security Oversight Office, headed by a Director, to oversee implementation of the information classification system.

There are also differences with regard to appeals processes. South Africans may apply to the relevant department head to have information declassified provided that they can describe the subject matter of the information with sufficient clarity to enable the department head "to locate it with ease". If the department head rejects the request, the applicants may appeal to the Minister involved. In the US system appeals are considered by an Interagency Security Classification Appeals Panel comprising representatives from the principal security departments and agencies. Authorised holders of classified information who believe that information is improperly classified are expected to challenge the classification status of the information, first with their own agency and, if they are not successful, with the Panel.

Provision is also made for requests for a mandatory declassification review provided - as with the South African system - that the document or material can be described with sufficient specificity to enable the relevant agency to locate it. However, requests for declassification do not apply to information that is the subject of litigation or that is contained in files that are exempted from search and review.

Finally, the South African system prescribes severe penalties - including prison terms ranging from 3 to 25 years - for any unauthorized person who obtains, disseminates or is in possession of classified information. The penalties in the US Order, by contrast, are directed solely at government employees who are responsible for handling classified information. The sanctions may include a reprimand, suspension without pay, removal or the termination of classification authority.

To sum up: the proposed South African classification system could affect virtually any state information whereas the US Order is precisely limited to clearly defined security information; the South African system would be administered by the National Intelligence Agency whereas the US system is under the aegis of the National Archives; the US system makes provision for appeals to a multiagency panel while South Africans would have to appeal against classification decisions to the Minister of the Department that took them in the first place. Finally, anyone breaching the South African act could be subject to severe criminal penalties, whereas the US system would apply administrative sanctions only to government employees.

Both the US Executive Order and the South African Protection of Information Bill profess adherence to the free flow of information between the government and the people. Both specifically prohibit classification for improper purposes. However, the two approaches would clearly have very different outcomes in terms of public access to government information.

The United States, with global military and diplomatic commitments that far surpass those of South Africa, has adopted an approach to the classification of government information that is far less draconian than the system that South Africa wishes to implement in terms of the Protection of Information Bill. The question inevitably arises as to the underlying purpose of the Bill: is it a bona fide attempt to establish a constitutionally compliant classification system - or is it really intended to stop the flow of embarrassing government information to the people via whistleblowers and investigative journalists?

Dave Steward is the Executive Director of the FW de Klerk Foundation

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