Key Clause Analysis of POIB (from R2K)

[Dominic.Tweedie]

	TABULATED ANALYSIS OF KEY CLAUSES OF CONCERN IN PROTECTION OF INFORMATION BILL (POIB)                                                                                                                                                          (note: a list of concerns over the POIB is not exhaustive and this matrix presents mainly a comparative analysis of key concerns and the Minister of State Security's response to these concerns).
#	Key clauses of concern in the Bill		How key concerns are addressed in PAIA	R2K's proposals/demands	the Minister's non-/responses	R2K demands met?
	clauses	concern
1	Ch. 6, sec. 16, (1) any head of an organ of state may classify or reclassify information using the classification levels set out in section 15; (2) A head of an organ of state may delegate in writing authority to classify information to a subordinate staff member.	The Bill gives any organ of state or a delegated authority including provincial and local authorities, state owned companies a power to classify information.	−−−	Limit the provision of classification authority to  core security sector departments: intelligence, military, police, diplomatic services.	"we believe that this is a huge task and there is a need for each of the heads of organs of state to assume administrative responsibility as the buck stops with them… they should therefore shoulder this responsibility under the political guidance and superintendence of the responsible Ministers."	NO
2	Ch. 5, sec. 11, e.g. (1) The national interest of the Republic includes, but is not limited to (a) all matters relating to the advancement of the public good; and (b) all matters relating to the protection and preservation of all things owned or maintained for the public by the State.	"National interest," broadly defined and all-encompassing, is the key consideration in decision-making over the classification of 'sensitive' and 'commercial' information.	The concept of national interest is not used in PAIA. Instead PAIA provisions allow the information officer to refuse a request for access to information if disclosure of which would jeopardize "defence, security and international relations of Republic" in particular.  sec.41.	(a) limit classification of information to strictly defined state security matters and no more; (b) exclude national interest from the Bill;	proposed that:                                                       -  the overbroad definition of national interest be deleted from the Bill;                               - a narrowed definition of matters to be classified based on Canadian definition of national security concerns;	no change in the current version of the Bill yet
3	Ch.5, sec.12 (1) Commercial information becomes the subject matter of possible protection from disclosure under the following circumstances: (a) Commercial information of an organ of state or information which has been given by an organization, firm or individual to an organ of state or an official representing the State, on request or invitation or in terms of a statutory or regulatory provision, the disclosure of which would prejudice the commercial, business, financial or industrial interests of the organ of state, organization or individual concerned; (b) information that could endanger the national interest of the Republic.	Commercial information can be made secret, making it very difficult to hold business and government to account for inefficiency and potential corruption. The Bill leaves nearly no room for commercial information not to be classified.	Sections 36 and 42 of PAIA clearly lists exemptions to mandatory protection of commercial information and allows a public interest as sufficient grounds for disclosure of commercial information.	Exclude commercial information from this Bill.	proposed that                                                         - the overbroad definition of commercial information be deleted from the Bill;	no change in the current version of the Bill yet
4	Ch.1, sec. 3 (2(a,b,c,d));                                                                                 Ch.6, sec.17 (e) - if there is significant doubt as to whether information requires protection, the matter must be referred to the Minister for a decision;                                                                  Ch.7, sec.21 (3) - The Minister may, after taking into consideration all aspects as indicated in subsection (2), section 11 and section 17(1)(i), authorize the classification or declassification of any category or class of classified information.                                                                                                        Ch.7, sec.25 (1) If the head of an organ of state denies a request for declassification or the lifting of the status of information to a member of the public or a non-governmental organisation or entity, such person or body may appeal such decision to the Minister of the organ of state in question.	The Minister of State Security is the sole authority to grant or exempt any organ of state of a right to de/classify information. The Minister is also a sole arbiter of classification and declassification decisions. No independent appeal body and/or dispute resolution mechanism provided.	-PAIA is geared toward promoting access to information versus 'granting or exempting' of a right to classify or declassify information and information officer (who reports to Human Rights Commission) decides whether to grant an access to information or not based on a list of specific grounds given in Chapter 4; Ch.4, Sec.25 (1) The information officer to whom a request for access is made or transferred, must ... (a) decide in accordance with this Act whether to grant the request;                                                                        - Sections 74 -78, a requester may lodge an internal appeal against a decision of the information officer and may only apply to a court for appropriate relief if the internal appeal procedure is exhausted.	An independent body appointed by Parliament, and not the Minister of Intelligence, should be the arbiter of decisions which must be declassified.	"On the Appeal Process, I have considered the submission and believe that in keeping with the provisions in the Intelligence Services Act 2002, it is critical that this power be retained by the Minister of State Security with the provision that he or she may be able to establish a board to advise and assist him or her in the consideration of the appeals. This system works well in all government departments where it obtains. I believe that there is no need to deviate from it."	NO
5	Ch. 11, sec. 32 (1) It is an offence punishable on conviction by imprisonment for a period not less than 15 years but not exceeding 25 years, subject to section 1(6)— (a) to unlawfully communicate, deliver or make available State information classified top secret which an offender knows or ought reasonably to have known or suspected would directly or indirectly benefit another state; or (b) to unlawfully make, obtain, collect, capture or copy a record containing State information classified top secret which an offender knows or ought reasonably to have known or suspected would directly or indirectly benefit another state.	Severe penalties of up to 25 years of imprisonment under the espionage charges without the option of introducing any types of fines. Severe penalties will undermine investigative journalism and whistle-blowing.	Section 90 of PAIA considers the following offences only:                                                                          A person who with intent to deny a right of access in terms of this Act – (a) destroys, damages or alters a record; (b) conceals a record; or (c) falsifies a record or makes a false record, commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years.	Do not apply severe penalties for unauthorised disclosure of state information to society at large in public interest. Consult international experiences.	"The severity of the sentences is deliberate, as the penalties are proportionate to the damage the unauthorized disclosure would cause and the harm they are likely to do. In addition, these severe penalties serve as a deterrent to unauthorised disclosure. Many advanced democracies provide for more severe sentences compared to what obtains in this Bill and can range to life imprisonment."	NO
6	Ch. 9, Sec.4: There is no automatic disclosure of declassified information to the public unless that information has been placed into the National Declassification Database as provided for in section 29.	There is no automatic disclosure of even declassified information.	PAIA does allow for automatic disclosure of certain records: Ch. 2, sec. 15: Voluntary disclosure and automatic availability of certain records. (I) The information officer of a public body ... must, on a periodic basis not less frequently once each year, submit to the Minister a description of- (a) the categories of records of the public body that are automatically available without a person having to request access in terms of this Act, including such categories available- (i) for inspection in terms of legislation other than this Act; (ii) for purchase or copying from the body; and (iii) from the body, free of charge; and (b) how to obtain access to such records;	Allow for automatic disclosure of information after it is declassified and there should be a specific timeline for the automatic declassification of information.	No response on this matter.	NO
7	Ch. 7, sec. 23:  (1)  a request for the declassification of classified information may be submitted to the head of an organ of state by an interested nongovernmental party or person. (2) such a request [for status review of classified information] must be in furtherance of a genuine research interest or a legitimate public interest.(emphasis added)	R2K believes that this clause in the Bill can easily be manipulated and is not convincing either.                                     The Bill does not allow for  disclosure of classified information in genuine "Public Interest."	Section 46 and 70 of PAIA:  Despite any other provision of this Chapter, the information officer of a public body must grant a request for access to a record of the body if: (a) the disclosure of the record would reveal evidence of— (i) a substantial contravention of, or failure to comply with, the law; or (ii) an imminent and serious public safety or environmental risk; and (b) the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question. (emphasis added)	"Public interest defence" clause (based on a public interest overrride) should be included in the Bill to trump any decision not to disclose in public interest. The previous version of the Bill had this clause.	"5.11. ... this provision seeks to address but to include it as a defence clause would be to undermine the very objects of this Bill as the information would always be in the public domain without following due process. 5.12. In seeking remedy from the Courts, those who may be affected by this unauthorized disclosure may not get remedy even if the Courts found that the disclosure was not in the public interest. 5.13. We welcome, however, the use of public interest override to apply for access to classified information."	NO
8	Ch.1, sec. 3, (1) This Act applies to— (a) all organs of state; and (b) juristic and natural persons to the extent that the Act imposes duties and obligations on such persons.	The Bill might have been wrongly introduced to the Parliament. The Bill will affect the provinces but neither the National Treasury Department, nor the local provinces are not informed about any financial implications of the Bill.	Section 35 of the Public Finance Management Act states that any draft legislation that assigns any obligation on a provincial government must in a memorandum "give a projection of the financial implications of that function, power or obligation to the province."	The Bill needs to be withdrawn for it to be tagged as a Bill affecting provinces in terms of the section 76 of the Constitution. If the intention is not to make the Bill applicable to the provinces, then the Bill needs to be re-drafted that way.	(1) At the end of the meeting of the ad hoc Committee on the Bill, Ms. Dene Smuts (DA) reminded the Chaiperson Burgess about the ODAC’s memo regarding the incorrect way of tagging the Bill but the Chairperson simply declined to discuss the matter claiming that the document should have been circulated by the Committee or by the staff members of the Committee. (2) The Minister stated that there will be financial implications of the Bill and implementation of the Bill will allow the other departments enough time to put the financial implications into the budgetary processes.   (3) in a ltter to ODAC, the Speaker of Parliament, Mr. M. Sisulu denied the fact that Bill is incorrectly introduced.  He stated that PFMA does not affect the tagging of the Bill.	NO
9	Ch.7, sec.24 (2) The head of an organ of state receiving a request in the prescribed manner for a review of the status of classified information must make a determination and in the case of a refusal provide reasons within 90 days of the date of receipt of such request.	The procedure for reviewing a request for accessing information and making a decision is too long, 90 days.	Section 87 of PAIA clearly states that the time for reviewing and processing a request for access to information has been reduced to 30 days, which can futher be extended by up-to 30 more days under specific circumstances indicated in the law.	The period for status review of classified information and making a decision on it must be reduced to 30 days.	No response on this matter.	NO
10	Ch. 5. Information that requires protection against disclosure:                                                                                                             Sec.(11) (3) (g): "all matters that are subject to mandatory protection in terms of section 34 to 42 of the Promotion of Access to Information Act, whether in classified form or not."	POIB will make information subject to classification because that information might already be subject to mandatory non-disclosure in terms of PAIA. PAIA has certain exemptions even under the category of mandatory non-disclosure, but POIB will  not consider those exceptions.	The list of the types of information that falls under the category of 'mandatory protection' is provided in Chapter 4, Sec. 33 - 46 in PAIA.	Do not automatically classify information only because it falls under the mandatory non-disclosure clause in terms of PAIA. Consider the exceptions.	No response on this matter.	NO
11	Ch. 11, sec. 43, "(1) Any person who has in his or her possession or under his or her control or at his or her disposal information which he or she knows or reasonably should know is a State security matter, and who—(a) discloses such information to any person other than a person to whom he or she is authorised to disclose it or to whom it may lawfully be disclosed; (b) publishes or uses such information in any manner or for any purpose which is prejudicial to the security or interests of the State; (c) retains such information when he or she has no right to retain it or when it is contrary to his or her duty to retain it, or neglects or fails to comply with any directions issued by lawful authority with regard to the return of disposal thereof; or (d) neglects or fails to take proper care of such information, or so to conduct himself or herself as not to endanger the safety thereof ..."	Simple possession or disclosure of classified information or information that is not formally classified can be penalized by imprisonment of up to 10-15 years.	PAIA does not criminalize a simple possession of either classified or not officially classified information.	Apply penalties only where information is formally classified and penalize those who have an original duty to protect the classified information.	No response on this matter.	NO
12	Ch.1, sec. 3, "when considering an apparent conflict between this legislation and other information-related legislation, every court must prefer any reasonable interpretation of the legislation that avoids a conflict over any alternative interpretation that results in a conflict."	The Bill is not fully harmonized with PAIA and any conflict between POIB and other information related legislatures are simply left for a court's interpretation.Neglecting the existing contradictions in legislative provisions loads the burden on courts' shoulders.	Ch. 2, sec. 5, "Application of other legislation prohibiting or restricting disclosure. This Act applies to the exclusion of any provision of other legislation that - (a) prohibits or restricts the disclosure of a record of a public body or private body; and (b) is materially inconsistent with an object, or a specific provision, of this Act."	Make POIB in harmony/consistent with already existing legislatures such as PAIA and Protected Disclosures Act (2000).	No response on this matter.	NO
	Additional Concerns over the Potential Implications of the POIB
13	1. The Bill limits the section 16 (on freedom of expression) of the Constitution which states that everyone has the right to freedom of expression, which includes (a) freedom of the press and other media;          (b) freedom to receive or impart information or ideas; and the Bill will also limit section 32 which says that everyone has the right of access to any information held by the state.
	2. There will be boundless inconsistencies in classification of information into three categories of “confidential”, “secret” and “top secret”. There will not be a unified and consistent classifying system.
	3. The officials classifying the information will also have to determine whether it is in national interest or not and then classify the information that is not even tangible. This type of information includes conversations, opinions, intellectual knowledge and voice communications that are not contained in material or physical form or format.
	4. These officials will also have to exercise the discretionary power without having any expertise in it.
	5. Information relating to health issues, tax, commercial information, legally privileged documents, research information and information relating to public bodies will be classified.
	6. The Bill will inevitably lead to excessive secrecy because of its broad definition of national security and national interest that still includes “all matters to the advancement of public good” and because the classification is guided by the principle, "Secrecy exists to protect the national interest" (sec. 17, (a)).

 

[DAVID Forbes]

Thanks Dominic!

Regards

David

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From: "Dominic.Tweedie" <dominic...@gmail.com>
Reply-To: <infoac...@googlegroups.com>
Date: Thu, 21 Oct 2010 18:13:11 +0200
To: <infoac...@googlegroups.com>
Subject: [Right2Know] Key Clause Analysis of POIB (from R2K)

   
  
 

   
 
                    TABULATED ANALYSIS OF KEY CLAUSES OF CONCERN IN PROTECTION OF INFORMATION BILL (POIB)                                                                                                                                                          (note: a list of concerns over the POIB is not exhaustive and this matrix presents mainly a comparative analysis of key concerns and the Minister of State Security's response to these concerns).                                                      
   
 
   
       
   
  #   Key clauses of concern in the Bill   How key concerns are addressed in PAIA   R2K's proposals/demands   the Minister's non-/responses   R2K demands met?  
   
  clauses   concern  
   

 1    Ch. 6, sec. 16, (1) any head of an organ of state may classify or reclassify information using the classification levels set out in section 15; (2) A head of an organ of state may delegate in writing authority to classify

information to a subordinate staff member.   The Bill gives any organ of state or a delegated authority including provincial and local authorities, state owned companies a power to classify information.    ---   Limit the provision of classification authority to  core security sector departments: intelligence, military, police, diplomatic services.    "we believe that this is a huge task and there is a need for each of the heads of organs of state to assume administrative responsibility as the buck stops with them… they should therefore shoulder this responsibility under the political guidance and superintendence of the responsible Ministers."    NO  
   
  2   Ch. 5, sec. 11, e.g. (1) The national interest of the Republic includes, but is not limited to (a) all matters relating to the advancement of the public good; and (b) all matters relating to the protection and preservation of all things owned or maintained for the public by the State.   "National  interest," broadly defined and all-encompassing, is the key consideration in decision-making over the classification of 'sensitive' and 'commercial' information.   The concept of national interest is not used in PAIA. Instead PAIA provisions allow the information officer to refuse a request for access to information if disclosure of which would jeopardize "defence, security and international relations of Republic" in particular.  sec.41.    (a) limit classification of information to strictly defined state security matters and no more; (b) exclude national interest from the Bill;   proposed that:                                                       -  the overbroad definition of national interest be deleted from the Bill;                               - a narrowed definition of matters to be classified based on Canadian definition of national security concerns;   no change in the current version of the Bill yet  
   

 
 
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