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04 November 2010

Protection of Information Bill Rushing through Parliament

These notes from the meeting of the Parliamentary Committee dealing with the Protection of Information Bill's meeting come from the Alternative Development Information Centre:

It looks like the Parliamentary Committee dealing with Secrecy Bill is under considerable pressure to complete its work before they go into recess.

Note the following schedualled meetings. At the final meeting the y plan to have "Final Consideration" of the bill.

THURSDAY, 4 NOVEMBER 2010, Committee Room E305, Third Floor, National Assembly Wing, 14:00
FRIDAY, 5 NOVEMBER 2010, Committee Room S35, First Floor, NCOP Wing, 09:00
TUESDAY, 9 NOVEMBER 2010, Committee Room E305, Third Floor, National Assembly Wing, 15:15
FRIDAY, 12 NOVEMBER 2010, Committee Room S12A, Ground Floor, NCOP Wing, 09:00

Anyone who can attend any of these meeting should please let me know (mark@amandla.org.za). We will aim to keep an eye on the committee and keep you briefed. See a good update from Today's meeting prepared by Sithembile Mbete below.

In the mean time let us continue to educate, mobilize and organize in communities for the Right2Know!

Provincial working groups have been meeting to discuss the coordinated way forward after the Week Of Action and reports will be circulated shortly.

NOTES ON TODAY"S PARLIAMENTARY COMMITTEE MEETING (PLEASE CIRCULATE THIS BRIEFING TO ANYONE CONCERNED)

The Ad Hoc Committee on the Protection of Information Bill met today at 9:00 at Parliament. The purpose of the meeting was to discuss the concerns raised during the public hearings and for each political party to present its recommendations to the committee.

ANC proposals
Unsurprisingly the ANC’s recommendations were pretty consistent with the proposals made by the Minister to the committee in September and October. Mr Landers spoke on behalf of the ANC. He suggested that “national interest” and “commercial information” (chapter 5) be removed from the bill altogether. The definition of “national security” should then be reviewed and redrafted to apply more narrowly. He further recommended that the penalties for officials who classify information erroneously should be as harsh as the penalties for those who hold or disclose classified information unlawfully. Another suggestion was that the minister should devise mechanisms to help with the review and appeal process and that officials who classify information should not be a part of the review process. Mr Landers also suggested that chapter 4 which discusses the protection of valuable information be removed and that chapter 2 be rewritten so it provides for valuable information.
Ms Mentor added to the ANC’s proposals by recommending that Section 38 reference the Protected Disclosures Act in order to protect whistleblowers.

ACDP proposals
Mr Swart from the ACDP recommended the inclusion of a public interest defence/override in the bill. He also asked that provision be made for information that was already in the public domain not to be retroactively classified according to this bill. His final recommendation was for an independent appeals mechanism that would preferably not be an advisory board but rather a single judge.

DA proposals
Ms Smuts suggested that the application of the bill be narrowed to only include the intelligence services in the classification of information. This would entail removing clause 3.1 that refers to all organs of state. She argued that other government departments for example, defence and the police service already had their own mechanisms regulating the classification of information so they should not be included in this bill. To further narrow the bill she recommended using the 2008 definition of national security. In order to make the bill consistent with PAIA she suggested that clause 23 (which deals with application for the review of the classification of information) and clause 28 (which allows for the request of classified information under PAIA) be merged. She also recommended that a public interest override be included consistent with clause 46 of PAIA. A further suggestion was that the penalties in clause 38 and clause 43 be made consistent as the bill currently punished receivers of classified information more harshly than the officials disclosing such information. The DA also recommended an independent appeal mechanism. Ms Smuts suggested that it be the same appeal mechanism as is currently being discussed with regards the Protection of Personal Information Bill.


IFP proposals
Dr Ambrosini disagreed with the DA on the scope of the bill arguing that there was a need for information classification across departments and organs of state. Instead of worrying about the scope of the bill, the committee should rather focus its concern on ensuring the guarantees (e.g. public interest override) were included. He further recommended that commercial information be kept in the bill because such information needed classification as well (he used the example of classifying SARS info about individuals).


DEBATE
The majority of the debate was concerned with how the POI bill can be made consistent with PAIA. The parties had differing interpretations of PAIA and whether its provisions were mandatory or discretionary. To illustrate the potential conflict Ms Smuts asked what would happen if information fulfilled the criteria for disclosure under PAIA but was classified under the POI bill? It is already written into PAIA that it overrides other legislation regarding information so how would it interact with the POI bill? All the MPs agreed that the POI bill must be made consistent with PAIA and resolved to familiarise themselves with PAIA before their next meeting. Another aspect of the debate was who should be allowed to classify information. Mr Landers said while he had no problem with the heads of all organs of state being able to classify, he was concerned that this ability could be delegated. He proposed that a clause on delegation be included which would restrict classification ability to the level of Deputy Directors-General or above.

CONCLUSION
The committee agreed to remove chapter 5, the definitions on national interest and commercial information. It was also agreed to make the penalties for incorrect/illegal classification consistent with those for unlawful disclosure. The drafters were tasked with making these changes by Thursday at 2pm. The removal of commercial information may be reviewed by the committee at a later stage. Each party agreed to submit its recommended changes to the committee chair this afternoon so they can be distributed to the other members by tomorrow morning.

The next committee meeting is tomorrow, Thursday 4 November at 2pm in room E305 in the National Assembly Building, Parliament. The venue may change if a larger room can be secured. It appears the committee is in quite a rush to make its report to Parliament before recess on the 18 November. Members want to start going through the Bill clause by clause tomorrow. This means we must act quickly if we want to influence committee members as they redraft the bill.

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