Much Devilry Still in the Detail of the Protection of State Information Bill

The Protection of State Information Bill may now genuflect enough to guaranteed rights to convince a majority of Constitutional Court judges that it passes constitutional muster. But it still gives classification powers to hundreds of organs of state, bars independent or judicial review of their classification decisions, limits appeal to the courts (for all but state officials), and threatens journalists and others with imprisonment merely for ‘accessing', ‘receiving', ‘obtaining' or ‘possessing' classified information without ‘communicating' it at all.

A public interest defence remains urgently required, but the Government claims there is no precedent for this. This is not true. More to the point, there is no precedent in any democracy worth the name for a measure so calculated to choke off investigative reporting and the disclosure of incompetence, corruption, and other abuses of state power.

Passing constitutional muster

Many critics of the Protection of State Information Bill of 2011 (the Bill) have argued that the measure is so clearly unconstitutional that it cannot pass muster with the Constitutional Court. But the ruling party has now been canny enough to include a number of provisions which genuflect towards the Constitution's guarantees of press freedom and the right ‘to receive or impart information'. Though the safeguards are likely to mean little in practice, they might suffice to persuade a majority of Constitutional Court judges that the Bill now passes constitutional muster.

Key safeguard clauses

The key safeguard clauses are three-fold. First, the Bill emphasises the importance of free speech and access to information. It stresses that ‘state information should be available and accessible to all persons' and that any decision to classify information - and thus curtail its public disclosure - must ‘have regard to the freedom of expression...enshrined in the Bill of Rights'.

Secondly, the Bill makes it clear that information may be classified only where, at minimum, ‘demonstrable harm' to ‘national security' would otherwise result. ‘Demonstrable' harm requires an objective assessment, going beyond the mere opinion of officials. In addition, ‘national security' is more narrowly defined as ‘including the protection of the people...and territorial integrity' of South Africa against various threats. These range from ‘the threat or use of force', to espionage, terrorism, sabotage, and ‘hostile acts of foreign intervention'. Some of the wording used is vague and ambiguous, but the overall thrust seems clear.

The Bill is also emphatic that classification ‘may not under any circumstances be used to conceal an unlawful act or omission', to cover up ‘incompetence or administrative error', to ‘limit scrutiny and thereby avoid criticism', or to ‘prevent embarrassment' to any person or organ of state. Anyone who ‘intentionally classifies' state information for these purposes or to ‘achieve any purpose ulterior to the bill' is guilty of an offence and liable on conviction to a lengthy jail term.

Particularly disturbing provisions

The particularly disturbing provisions of the Bill (apart from its draconian penalty clauses) are also three-fold. First, the Bill's attempt to prevent chronic over-classification by limiting the power to classify to the security services is disingenuous. The police, army, and intelligence services will automatically have the power to classify, but perhaps as many as 1 000 organs of state will be able to acquire a blanket power to do so too simply by ‘applying in the prescribed manner' and ‘showing good cause' as to why the intelligence minister should give them consent to proceed.

Secondly, there will be no independent or judicial review of the thousands of classification decisions likely to be made each year. The head of every organ of state with the power to classify has a duty to ‘review the classified status of the classified information' which that organ holds. However, such a review need be conducted only once every ten years and is likely to be perfunctory at best.

The Bill also vests the power of review in a ‘classification review panel' (the panel), which is responsible for ‘reviewing classifications' as part of its day-to-day functioning. This panel must ‘receive all the reports of the 10-year reviews' conducted by the heads of organs of state, and has the power to ‘confirm, vary, or set aside any classification decision taken by the head of an organ of state'. However, review by a panel insufficiently insulated from political interference is very different from the judicial review of all administrative decisions (including decisions on classification) that the Constitution guarantees.

Where a person uses the Promotion of Access to Information Act of 2000 to request information which is classified, the head of the organ of state which originally decided to classify the material (‘the classification authority') must review the matter. He must also declassify the information if it ‘reveals evidence' of illegal conduct or ‘an imminent and serious public safety...risk', and if ‘the public interest in disclosure... outweighs the harm that will arise from disclosure' (emphasis supplied). These threshold requirements for declassification may in practice prove difficult to meet.

Thirdly, the Bill's provisions on appeal are skewed and generally inadequate. Every organ of state will be able to appeal to a ‘competent high court' against a decision by the panel to confirm or set aside a classification decision. However, for people seeking access to information, appeal lies not to the courts but rather to the minister with jurisdiction over the classification authority. That minister will not be obliged to conduct an inquiry before deciding to refuse an appeal. On specific request, he must within 30 days ‘provide reasons' for his decision but these need not be written.

The Bill does allow a requester to ‘apply directly to a court for urgent relief' provided he can muster evidence that classification is shielding illegal conduct or serious risks to public safety, and also that the public interest in disclosure is overriding. In practice, the requester would have to know the content of the classified information before he could begin to discharge the burden of proof resting on him. However, this will be difficult to do when the penalty clauses in the Bill lay down fines or lengthy prison terms merely for ‘possessing', ‘receiving', or ‘obtaining' classified information.

Penalty clauses

The Bill threatens journalists, MPs, academics, civil society organisations, and a host of other commentators with substantial periods of imprisonment not only for ‘communicating' classified information but also (as noted) for simply possessing or receiving it. In one of its most draconian provisions, the Bill also states that any person who ‘intentionally accesses...any classified information without...permission to do so' (emphasis supplied) is guilty of an offence and punishable by a prison term of up to ten years without the option of a fine. This penalty is as severe as that for intentionally hacking into a state computer.

This clause suggests that any journalist, academic, MP, or other person who opens and reads an e-mail attachment that happens to contain classified information could immediately be vulnerable to imprisonment, merely for having perused it without knowing it be classified.

Where information has been illegally classified for an ulterior purpose, the State may find it difficult to secure convictions under these penalty provisions. Classification decisions made to conceal incompetence or corruption are not only illegal but also invalid, as they lie beyond the classification powers conferred by the Bill. That makes them ultra vires and void. This means that the material in question has never been lawfully classified at all and that people cannot be punished under the Bill for obtaining or communicating it.

In practice, however, journalists and other commentators will need considerable courage to obtain or communicate classified information, irrespective of how obvious the illegality and invalidity of the classification decision might seem. Few will want to run the risk of arrest and prosecution, even if they know they are likely to be vindicated in the end. Media companies, political parties, and civil society organisations will also need deep pockets to fund defences against such prosecutions and may soon fight shy of dealing with classified information at all.

Much devilry still in the detail

The Bill's supposed support for free speech is welcome - but is not to be taken at face value. There is too much devilry in the detail of the Bill's provisions and in the disproportionate penalties that it lays down.

The Government claims there is no need to introduce a ‘public interest' defence for journalists, but analysis of the Bill shows clearly why such a provision is essential to protect the Media and many other commentators.

The Government also says there is no precedent for such a public interest defence in the laws of other countries. This is not true, for such defences are included in Canadian, Danish, and German law and are endorsed by the United Nations and the Council of Europe.

More to the point, there is no precedent in any democracy worth the name for a statute so calculated to choke off investigative reporting and the disclosure by journalists, political parties, academics, and civil society of incompetence, malfeasance, corruption, and a host of other abuses of state power.

This article first appeared in the South African Institute of Race Relations' Research and Policy Brief

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