Promotion of Access to Information Act trumps controversial Secrecy Bill

ACDP MP and member of the ad hoc committee on the Protection of Information Bill, Steve Swart, today argued that the Promotion of Access to Information Act (PAIA), which gives effect to the constitutional right of access to information held by the state, enjoys priority over provisions of the Protection of Information Bill.

During today's briefing by state law advisors on the alignment and hierarchy of the Protection of Information Bill with the Promotion of Access to Information Act (PAIA), Steve argued that amendments need to be made to the Protection of Information Bill to bring it in line with PAIA, which besides being a constitutionally-mandated Act, enjoys priority and binds other legislation in terms of section 5.

"PAIA's section 5 states that, "this Act applies to the exclusion of any provision of other legislation that (a) prohibits or restricts the disclosure of a record of a public body...; and (b) is materially inconsistent with an object, or a specific provision, of this Act." PAIA fosters a culture of transparency and accountability which must be respected by this bill.

The legal advisors confirmed that the Protection of Information Bill could prohibit or restrict the disclosure of a record of a public body, and thus that section 5 and other provisions of PAIA would apply. This is an important development as PAIA contains a public interest override requiring mandatory disclosure of information relating to the defence, security or the international relations of the Republic under certain conditions, such as when the disclosure would reveal evidence of a substantial contravention of the law, or an imminent and serious threat to public safety or environmental risk.

This means that the public's constitutional right to access information, even classified information under the Protection of Information Bill, would, under certain circumstances, be protected in cases where the public interest override of PAIA applies.

The ACDP supported a further proposed amendment to clause 28 of the Protection of Information Bill (which seeks to align PAIA with the Protection of Information Bill) to confirm this position.  Whilst this proposal is still being considered by members of the committee, general consensus is emerging that PAIA will apply even to classified documents.

The state law advisors will be making a further presentation next week on the alignment of the above two pieces of legislation, following this morning's discussion. The Bill will, however, definitely not be finalised this year as Parliament rises next week. This will enable parliamentarians more time to consider other aspects such as limiting the ambit of the bill to core state bodies in the security sector, including police, defence and intelligence agencies; allowing a public interest defence to offences where unauthorised disclosure occurs (such as in the case of investigative journalism); and the appointment of an independent body to adjudicate appeals and reviews of decisions as to what information should be classified."

Statement issued by Steve Swart, MP, African Christian Democratic Party, November 12 2010

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