25 June 2008

New protection of information bill on the cards for South Africa

In March 2008, the Minister for Intelligence Services published the Protection of Information Bill for comment. The Bill seeks to create a statutory framework for the protection of State information, but simultaneously seeks to allow the free flow of information within an open and democratic society.

It is expected that this legislation will be promulgated by the end of 2008. Once this new legislation is promulgated, it will apply to all organs of State and any natural and juristic persons on whom the Bill imposes duties and obligations. The National Intelligence Agency shall be responsible for monitoring the implementation of the Bill. In essence, the Bill is aimed at the protection of State secrets.

"Information" is defined in the Bill in very wide terms and includes conversations, opinions, intellectual knowledge and the like. "State Information" is also broadly defined. In terms of the Bill, all State Information should be available and accessible for public perusal unless good reasons exist to withhold such information. Various tests are set out in the Bill, which are used to determine whether or not State Information should be protected against unauthorised disclosure, destruction and loss.

The Bill also allows for State Information to be classified into valuable, sensitive, commercial or personal information by the relevant organ of State. Where certain requirements are met, State Information may also be classified as confidential. Once information is classified, it will be protected against destruction, loss and unauthorised disclosure.

The Bill further contains numerous obligations on State organs, which include having to establish departmental policies, directives and categories for designating, classifying, downgrading and declassifying information and protecting information against loss and destruction.

Various offences are created under the Bill, including espionage, interception or interference with classified information; destroying valuable information; being in possession of classified information and disclosing confidential information.

Until the proposed Bill is promulgated, the protection of State Information in South Africa remains governed by the Protection of Information Act, 1982. It is envisaged that once the Bill is promulgated it will have far reaching consequences which will affect virtually all organs of State in South Africa, as well persons who deal with information relating to the State.

Some of the criticisms levelled against the Bill are that it will restrict media freedom in disclosing State Information; it seeks to eliminate genuine criticism of the State; it entrenches the power of the Executive to whom appeals related to requests for declassification are made; it places an obligation on courts to prevent public disclosure of classified documents that form part of court records; and crucially, it grants State officials the right to classify information.

For its part, the State has argued that the Bill only seeks to protect government information that by law is in the national interest. It maintains that safeguards in the Bill include making it a criminal offence for State officials to improperly designate or classify information. It further argues that procedures pertaining to the periodic review of the status of information as well as appeal procedures to members of the executive for denied requests for the declassification of information, are entrenched in the Bill.

Given the intention of the State to enact the Bill before the end of this year, State organs as well as interested parties are advised to seek timely advice on the obligations and requirements of the Bill.

Zahira Bhana and Ridwaan Boda

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