When in doubt, don't classify

According to reports Mr. Cecil Burgess, the Chairman of the Ad-Hoc Portfolio Committee that is considering the Protection of Information Bill, remains adamant that the Protection of Information Bill should apply to all state organs, regardless of their relevance to state security and irrespective of costs and administrative burden. According to a presentation by state law advisers to the Ad-hoc  Committee, the proposed bill will apparently, in its current form, apply to all organs of state - which are defined as institutions that deliver a public service and carry out their  duties in accordance with legislation.

Consequently the Bill will be of equal applicability to organisations ranging from Port Elizabeth's not-for-profit, publicly owned Algoa Bus Company - as pointed out by Mukelani Dimba of the Open Democracy Advice Centre - to the National Intelligence Agency. However, the legitimate classification needs of these two organisations - and similarly those of all other state organs - differ vastly.  It is certainly reasonable to conclude that the vast majority of state organs  - like the Algoa Bus Company - have no legitimate reason whatsoever to withhold information from the public.

Legislation that enables state organs without a clear need to classify information certainly runs contrary to the spirit of openness and transparency of the Constitution.  The Constitution is absolutely clear on this point: it requires government that is open, responsive and accountable.  In terms of section 32 (1)(a): "Everyone has the right of access to any information held by the State".  In terms of Section 195(f) Public Administration must be accountable and, according to Section 195 (g) ‘transparency must be fostered by providing the public with time, accessible and accurate information.'

Although the Protection of Access to Information Act empowers citizens to access information that has been unduly withheld by any state institution, it is slow-working and comes with a cumbersome administrative burden. It is therefore not well suited to promote ready access to information that might be classified across hundreds of diverse state organs under the Protection of Information Bill.

It is informative to compare the system proposed in the Protection of Information Bill to that of the United States, with its global military and diplomatic commitments and security concerns that far surpass those of South Africa. President Barack Obama's Executive Order 13526 on Classified National Security Information requires a heavy burden of proof to be met for legitimate information classification. In particular, it demands that the anticipated damage to national security must be identifiable and describable. Furthermore, it states that "if there is any significant doubt about the need to classify information, it shall not be classified."

Similarly, the letter and spirit of our Constitution require that there should be an absolute propensity to openness in public administration and that information should be restricted only in the most circumscribed and manifestly necessary circumstances where genuine questions of national security are at stake.  This will certainly not be achieved if every state organ has the power to classify information.

We agree that it is absolutely necessary for state organs concerned with national security to have the right - indeed, bona fide duty - to classify information that - should it become known - could threaten national security. However, these state organs should be specifically identified and their powers duly limited and enumerated.

Statement issued by the FW de Klerk Foundation, January 21 2011

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