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."