Students Against Secrecy
c/o The Students' Representative Council
Level Seven - Steve Biko Students' Union
North Lane
University of Cape Town
Upper Campus
7700

The Secretary of Parliament
P O Box 15
Cape Town 8000
Attention: Mr G Dixon

Dear Sir,

Submission to the National Council of Provinces' Ad Hoc Committee on the Protection of State Information Bill

Please see our enclosed submission to the National Council of Provinces' Ad Hoc Committee on the Protection of State Information Bill in response to the advertisement for submissions posted on Parliament's website.

Should the opportunity present itself, we are willing and interested in having a member of our steering committee present an oral submission to the committee.

Students Against Secrecy is a coalition of students and student organisations at the University of Cape Town (UCT) - our constituent and affiliated organisations include the UCT Students' Representative Council, the UCT History and Current Affairs Society, the UCT branch of Students for Law and Social Justice, the United Nations Association of South Africa - UCT Chapter, UCT's Varsity Newspaper (the university's official student newspaper), the UCT Palestinian Solidarity Forum, the UCT branch of the South African Union of Jewish Students and the UCT Muslim Students Association - all of whom have expressed their support for the principles outlined our submission.

Sincerely,
Geoffrey Kilpin

Supporting Organisations

Insaaf Isaacs
President - UCT Students' Representative Council

Kimeshan Naido
Chairperson - United Nations Association of South Africa - UCT Chapter

Caroline Timoney
Chairperson - UCT History and Current Affairs Society

Liat Davis
Chairperson - UCT Branch of Students for Law and Social Justice

Stephanie Venter
Editor - Varsity Newspaper

Liam Minné
Chairperson - UCT Palestinian Solidarity Forum

Joshua Benjamin
Chairperson - UCT branch of the South African Union of Jewish Students

Imaad Isaacs
Chairperson - UCT Muslim Students Association

University of Cape Town, Students Against Secrecy, Submission to the National Council of Provinces' Ad Hoc Committee on the Protection of State Information Bill

Introduction

Students Against Secrecy is a coalition of students and student organisations at the University of Cape Town that believes in upholding the Constitution, the rule of law and an open government that practises maximum transparency and only withholds information from citizens with good cause. We are concerned that the Protection of State Information Bill (hereafter, ‘the Bill') does not meet these standards and are of the strong opinion that the following issues must be addressed before the Bill is voted into law.

Definition of ‘national security' and conditions for classification

The Bill is clear that only information that is likely to cause harm to the national security of the Republic should be classified. We agree with the bulk of the definition of national security as it serves to protect citizens from violence and attack, however we take issue with two parts of the definition:

The ‘exposure of economic, scientific or technological secrets vital to the Republic'

This part of the definition is problematic on two counts:

1. It is unclear what ‘vital to the Republic' means and does not determine how vital information must be before it is forms part of the national security. This allows classifiers to exercise vast and dangerous discretion in determining what information should be classified - we believe the Bill must provide clearer guidance on this matter.

2. We believe that ‘economic, scientific or technological' secrets are very rarely so vital to the Republic that they must fall under the ambit of national security. National security should cover matters pertinent to the physical protection of citizens, while ‘economic, scientific or technological' secrets very often form part of information that citizens require to exercise their democratic rights - for example by ensuring that electricity contracts with other governments do not put unnecessary burden on local users of electricity.

‘Acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of, force and carrying out of the Republic's responsibilities to any foreign country and international organisations in relation to any of the matters referred to in this definition, whether directed from, or committed within, the Republic or not'

While we are satisfied that national security should include the Republic's capacity to respond to ‘the use of, or threat of the use of, force', we feel strongly that responsibilities to ‘any foreign country and international organisations in relation to any of the matters referred to in this definition' is an extreme inclusion, especially given the inclusion of the ‘exposure of economic, scientific or technological secrets vital to the Republic' cited above. We worry that this definition would allow our country to be drawn into a situation similar to that of the negotiations surrounding the Anti-Counterfeiting Trade Agreement - during which the public only became aware of possibly draconian provisions of the agreement once a draft was published by Wikileaks.

We are further concerned that Section 14 (3) d suggests that information should be classified should it "seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic" as this provision does not include a limitation that such information relates to national security. Relations between South Africa and other governments are effectively relations between South African citizens and those governments, and we are of the strong opinion that citizens having access to relevant information about those relations is more important than the potential for those relations to be impaired.

The Public Domain

The Bill is very clear about penalties for publishing, possessing or receiving classified information - but makes no provision for cases where the information in question is already widely known, i.e. in the public domain. This has the effect of criminalising common knowledge and is likely to lead to situations where those outside of the Republic know more about the Republic than we are allowed to.

Should an international newspaper, such as the New York Times or the Guardian, publish classified information it would be considered widely known - particularly by those to whom its disclosure classification was meant to prevent. In such a situation, we hold that the only acceptable solution is to allow citizens to access the information and for the local media to report on it. We also note that should this not be allowed then it is likely that only those citizens with access to the Internet will be able to access reports on the information, thus disadvantaging the poor.

To remedy this matter we call for the addition of a public domain defence to at least the following sections of the Bill:

19 (3) - to ensure that the head of an organ of state declassifies information that has clearly entered the public domain.

36 - to allow a public domain exemption to espionage offences.

37 - to allow for the receiving of information that is in the public domain. We note with concern that if this exemption is not allowed in this case a citizen might be guilty of an offence simply for accessing the web site of or receiving by post a newspaper (local or foreign) that has published classified information.

38 - to allow a public domain exemption to hostile activity offences.

44 - to allow for a public domain exemption to the requirement that persons report possession of classified information. We again note with concern that this might require every person who has read a newspaper report (local or foreign) to report this fact to the police.

Powers to classify information

We support the Bill's application to the security services but remain concerned by the Minister's powers to apply the classification, reclassification and declassification provisions of the Bill to any organ of state in Section 3 (2) b.

When the role of classification is to protect citizens from threats posed to them and the Republic, it is difficult to imagine cases where other organs of state aside from the security services require the same powers as the security services. It is our strong opinion that should the application of such powers to other organs of state become necessary, then only Parliament should have the power to grant them.

This would allow the decision to be debated properly by members of Parliament and citizens and help to prevent any future Minister from attempting to extend the intended limited secrecy provisions of the Bill.

Appeals to the Classification Review Panel

We note that the Bill appears to intend that the Classification Review Panel (in Section 27) be empowered to review decisions of the head of an organ of state relating to requests to access classified information. However, we note that Chapter 8 of the Bill makes no provision for a person refused access to information to appeal to the Classification Review Panel. We would support such a provision and suggest that this be entrenched as a function of the Classification Review Panel in Section 21 (1).

We also note that the Bill includes no time frame for the head of an organ of state to declassify information described in Section 19 (3) b, potentially allowing the head of an organ of state to indefinitely defer making a decision simply to keep information classified.

In addition, we are concerned that Section 19 does not provide for a time limit on rejecting applications for access to classified information. We believe that such a time limit is necessary to ensure that the head of an organ of state does not indefinitely defer making a decision so as to keep information classified or to slow the appeals process envisioned in Chaper 8 of the Bill.

Composition of and appointment to the Classification Review Panel

While we broadly agree with the composition of the Classification Review Panel stipulated in Section 22 (5), we submit that the chairperson of the Panel (see Section 22 (4)) should be a retired judge. As the provision currently stands, requiring an attorney or advocate with 10 years of experience, it would be possible for the chairperson to be somebody who is not entirely independent to be appointed - for example a person who had worked within the security services. Appointing a retired judge to this position would guarantee the chairperson's independence and would help to allay concerns that many have regarding the Panel's independence.

We would further support an addition to Section 20 of the Bill to guarantee the Panel's independence from the Minister, security services and government.

While we support members of the Classification Review Panel being appointed by Parliament, we are opposed to the Join Standing Committee on Intelligence tabling the list for approval to the National Assembly. Given the nature of its work, the Joint Standing Committee is an inappropriate body to make such recommendations as it works with members of the security services. In order to encourage the appointment of an independently minded Classification Review Panel we would support the list being tabled by an ad-hoc committee constituted for that purpose or by the Portfolio Committee On Justice and Constitutional Development.

We support Section 22 (1) b's requirement that due regard be given to transparency and openness, but believe that it is important to clarify in the Bill that this requires the committee to hold its interviews and deliberations in public.

A Public Interest Defence

Given that Section 19 (3) b clearly envisions that information should be declassified if ‘the public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure', we assume that the concept of declassifying classified information is uncontentious. Our understanding of the concerns of those who are opposed to a public interest defence is that people might be reckless in exposing classified information even if that information has been legitimately classified, resulting in irreversible publicity of the classified information.

We believe that this will simply not happen, as the Bill contains sufficient safeguards to prevent disclosure that is not in the public interest - the penalties for disclosing information that is not in the public interest remain very high and would deter people from publicising classified information. We believe that people contemplating the publicity of classified information would only publicise that information after much deliberation and only after receiving appropriate advice. We are convinced that in this way the amount of disclosures that are not in the public interest that were made with the false-belief that they were will be very small, if not zero.

Given that the concerns surrounding a public interest defence can be put to rest, we are in favour of the addition of a public interest defence to Sections 36, 38 and 44, because:

1. it will help to encourage the culture of transparency envisioned in the general principles of Section 6 of the Bill by ensuring that those who incorrectly classify information are aware that their incorrect classification can be exposed easily without a drawn out appeals process to hide behind.

2. it provides citizens an additional defence against a possible future government that does not believe in transparency and has managed to implement a culture of secrecy in state bodies.

Responsibility to protect information

Much of the Bill is premised upon individual citizens having a responsibility to avoid receiving and disclosing classified information. We remain unconvinced that this premise is valid.

State employees that work with classified information have a responsibility to protect that information - this is fair and to be expected as they have agreed to work for the state and with such information. Private citizens, however, have made no such agreement and the Bill places unnecessary and unwanted obligations on these people. Should a state employee release classified information that person should take full responsibility for that disclosure as it is their job to protect it, not that of private citizens.

We are of the strong opinion that should the Bill be amended to reflect this principle that the protection of information will not be compromised and that many of our other concerns will be dealt with.

Endorsement of the Right 2 Know Campaign's Submission

We have studied the submission of the Right 2 Know Campaign and support its principles. We request that the committee study its recommendations to the same level of detail that we trust our own submission will be studied.

Supporting Organisations

The following UCT student organisations have expressed support for the principles outlined in this submission:

The UCT Students' Representative Council
The United Nations Association of South Africa - UCT Chapter
The UCT History and Current Affairs Society
The UCT branch of Students for Law and Social Justice
Varsity Newspaper - UCT's official student newspaper
The UCT Palestinian Solidarity Forum
The UCT branch of the South African Union of Jewish Students
The UCT Muslim Students Association

Issued by Students Against Secrecy, University of Cape Town, February 17 2012

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