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Dear Corruption Watch,
I'm confused about the ‘Secrecy Bill’ (Protection of State Information Bill) and the supremacy of the Promotion of Access to Information Act (PAIA). I know the Secrecy Bill was sent to the National Council of Provinces (NCOP) for hearings where new amendments to the Bill were approved. Where does this leave us? The very titles of Protection of and Access to Information are contradictory. How will this conflict in law be resolved, particularly as PAIA has constitutional status and Secrecy Bill does not?
The Secrecy Bill was approved by the NCOP at the end of November this year (by 34 to 16 votes, with no abstentions), and will be sent back to the National Assembly for approval next year. Once passed by the National Assembly, the President must sign the Bill into law.
Before signing, the President may refer the Bill to the Constitutional Court to approve its constitutionality. If the President does not do so, it is likely that its constitutionality will be challenged in the courts. A number of civil society groups have promised legal action if the Bill is passed in its current form, including the Right2Know Campaign, Cosatu, the DA and media associations.
The drafters made a few important changes to the Bill at the 11th hour. These included the removal of clause 1(4) which stated that the Secrecy Bill overruled PAIA. It now seems that PAIA will take precedence if the two laws come into conflict. PAIA itself states that it applies to the exclusion of other laws that restrict the disclosure of information.
But the Secrecy Bill does not necessarily conflict with PAIA. Clause 17 of the Bill says that if a request is made for access to information that is classified, the request must be referred to the head of the organ of state that classified the information, for a review of its classified status. The head must declassify the information and grant access to the information (in accordance with PAIA) if it reveals evidence of:
- any contravention of, or failure to comply with the law;
- an imminent and serious public safety or environmental risk; and
- the public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure.
This provision is virtually identical to the public interest override in section 46 of PAIA, which specifies when public bodies must disclose records on request.
Even though there may not be a direct conflict between PAIA and the Secrecy Bill, there remain a number of concerns with the Bill:
- State departments other than the security services can classify information. This opens up the potential for abuse and the covering up of corruption;
- The mere possession of classified information can lead to up to five years imprisonment;
- The Bill now protects people who possess or disclose classified information from prosecution, if the disclosure reveals criminal activity or if certain other laws permit the disclosure. But the overriding laws are unlikely to cover the offences of “espionage”, “receiving state information unlawfully” and “hostile activity”. The concern is that whistleblowers, journalists and activists may be charged for offences when they legitimately disclose classified information. They may believe themselves to be covered by the public interest defence but may not be.
Intimidation from corrupt officials who make false claims of information classification and exaggerate the consequences of reporting corruption may also deter individuals and civil society institutions. Corruption Watch recommended a state-funded public education campaign to Parliament to explain that the new law should not prevent the reporting of corruption and that whistle blowers remain protected.
Take a stand and report an incident of corruption. This article originally appeared in the Sunday Times Business Times on 16 December 2012.