17 February 2012
Submission to the NCOP on the secrecy bill
As previously reported by SAHA, the National Council of Provinces is currently undertaking a process of public consultation on the Protection of State Information Bill, commonly referred to as the secrecy bill.
As part of the consultation process, SAHA made a written submission to the NCOP on the remaining issues in the bill. Key issues of concern to SAHA are:
• broad definitions of ‘national security' and ‘state security matter' within the bill will allow the government to classify information unrelated to national security;
• the bill extends the right of government to deny the public access to information beyond what is currently provided for in the Promotion of Access to Information Act (PAIA). The government has not identified any inadequacies in the current restrictions on accessing information related to national security under PAIA. The additional restrictions on the right to information in the bill are therefore unconstitutional;
• there are no timelines in the bill that govern the process for responding to a request for access to classified information;
• there is no right for a member of the public refused access to information to apply to the Classification Review Panel, an independent expert panel established under the bill, for a review of a decision to refuse access to information;
• the criminal offences within the bill place an unreasonable burden on members of the public to guard classified information;
• the protection afforded to whistleblowers under the bill is inadequate;
• there are no defences available to people prosecuted for retaining, disclosing or publishing classified information.
If passed in its current form the bill will represent an erosion of the right to information in South Africa without justification and based on broad criteria whose relationship to national security is vague at best. Adequate protections for information relating to national security, defence and international relations are already provided under PAIA and accordingly the provisions of the bill relating to access to information should be removed and access to information should continue to be regulated by PAIA.
Furthermore, criminal sanctions applicable to members of the public must be reviewed to take proper account of where the responsibility for protecting classified information should properly fall. Defences should be inserted to ensure that unjust outcomes do not result.
To learn more about the secrecy bill contact the Freedom of Information Programme.
Read SAHA's submission on the secrecy bill.