More talk on secrecy law

By Leon Engelbrecht, ITWeb senior writer
Johannesburg, 24 Jul 2008

The National Assembly's ad hoc committee on intelligence legislation will hold further public hearings on the state's new information lifecycle management (ILM) Bill that civil society groupings fear will herald a closed season for open government.

The Protection of Information Bill is intended to manage the lifecycle of all information held by the state by legislating what data must be protected from disclosure and for how long; what should be classified and at what level (confidential, secret or top secret); as well as for how long.

The Bill will replace a similarly-named law dating from the PW Botha era and, on the face of it, herald in a new era of openness and transparency.

But activists and lawyers say some of the language used is conditional and vague, giving the state the ability to withhold vital information from the public. They also fear that the Bill will allow state institutions facing an appeal regarding the classification or declassification of a document to sit as judges in their own case. They further worry that the law, which criminalises the "leaking" of classified material, will lead to the prosecution of whistleblowers.

Attorney Kerron Edmunson says at issue is "what is termed 'state information'".

"This is any information that the state has acquired or retains or has created or obtained by any means - the definition is not much clearer than this.

"The reason why the man in the street might be interested, is that the Bill is intended to give effect to the access to information provisions of the Constitution, and to ensure 'transparency' and good governance.

"However, although well worded, the Bill may have the effect of enabling organs of state (as this term is defined) to set their own rules for 'protecting' and, therefore, failing to disclose information."

Edmunson says her concerns include that organs of state are not obliged to use the standards and classification guidelines set out in the Bill - the wording of the Bill states that they "may" make use of them.

She adds the Bill also contains some inverse logic: "National security is given as one of the main reasons for protecting information - however, the first part of the reasons given as to why this sort of information needs not be disclosed is that it is 'related to the advancement of the public good'.

"Usually the opposite would be true - this phrase tends to have a positive application, requiring an entity to do something rather than refrain from doing something. Usually, the section does also refer the reader back to the Constitution in relation to what this might mean."

The lawyer adds that "commercial information" may also be subject to the protection of the Bill - "which in my view is sailing dangerously close to the edge of the world where the public good lives".

"Commercial information includes the commercial, business, financial or industrial information held by or in the possession of an organ of state."

As with many Bills today, Edmunson says, "there is no real detail on the various provisions, why they were crafted in a particular way and what the mischief is that they are intended to anticipate and/or prevent".

Organisations that have made submissions on the Bill include Eskom, the Mail & Guardian, the SA National Editors Forum,, the Southern African Catholic Bishops Conference and the SA Human Rights Commission.

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