The definition of "national interest" includes not only the "survival and security of the state", which one might reasonably expect, but also "all matters relating to the achievement of the public good", "all matters relating to the protection and preservation of all things owned or maintained for the public by the state", among others. Given this all-embracing definition, even the most well-intentioned public servant is likely to feel compelled to be cautious and to over-classify, unnecessarily restricting even legitimate access to information.
The Bill contains harsh punitive measures for disclosing classified information, even criminalising a person who innocently receives such information with no intention of causing harm.
The impact on investigative journalism could be severe: we may never again read a newspaper report about an irregular state tender, or about corruption in the public or private sector.
The dangers of this approach are clear. The potential for a thoroughly confusing proliferation of interpretations will render PAIA almost unworkable for the ordinary citizen. And courageous whistleblowers will almost certainly be silenced.
What remains of these landmark laws will be overwhelmed by the Bill's provision that it must take precedence over any other legislation. The internationally recognised "Johannesburg Principles on National Security, Freedom of Expression and Access to Information", provide that classifying documents is an exceptional measure and may be done only for reasons that are clear, reasonable, legitimate, proportionate and justifiable in an open democracy.
These standards have been endorsed by the Constitutional Court in its unanimous decision in Dawood v Minister of Home Affairs. It is therefore essential that parliamentarians achieve an appropriate balance that recognises the complex nature of the national interest, instead of reducing it to the equivalent of national security.
The Bill must be fundamentally redrafted so as to provide clear, specific and fair guidance if it is to pass constitutional muster. The Bill should reflect PAIA and comparative legislation world-wide and include an explicit "public interest defence" for our democracy to secure the very real benefits of a free press and an active citizenry.
Where disclosure of information would reveal a failure to comply with the law, or the risk of imminent and serious risk to public safety or environmental harm, the Bill should echo the PDA and actively encourage disclosure.
The Bill should also establish an independent appeal mechanism to adjudicate disputes over information classification, instead of giving the Minister of State Security the power to decide all disputes.
The complexity and sensitivities characterising matters of this nature, and their far-reaching consequences, necessitate the establishment of an impartial body - such as an Information Commissioner - to arbitrate disputes effectively, expeditiously and cheaply.
Such a body is long overdue. It was recommended by the parliamentary review of Chapter Nine institutions, headed by Kader Asmal , to make the right to information more accessible to ordinary South Africans. Parliamentarians should craft a classification regime that protects and promotes transparency and accountability - non-negotiables in our constitutional democracy.
The Bill should not weaken the existing transparency framework which seeks to protect the public's right to know about the governance of public affairs that directly affects people's lives and wellbeing. To subscribe email subscriptions creamermedia. Though a ritual, elections yield new insights about the state of the citizenry and the political elite.
Life changes, either for the better or worse. Electoral outcomes are a statement about how citizens feel at that moment and signal their inclination to take charge of their future. One possible solution is the introduction of a "public interest defence". Such a defence would allow a whistleblower or journalist who discloses or publishes classified information to argue that the disclosure was justified in the public interest, for instance because it revealed evidence of significant incompetence, criminality, wrongdoing or hypocrisy on the part of government officials.
But this is not the only solution to the problem. Another option is to reformulate the wording of the offences to focus on the harm caused by the mishandling or disclosure of classified information rather than, as is currently the case, the mere fact that information is classified.
In terms of the current law i. This means that criminalisation attaches to the disclosure, or use, or possession of a record that has been classified, without more. It is essentially the action of accessing or disclosing the information that is criminalised.
When it was introduced for the first time in , POSIB took a different approach to criminalisation. Its approach was to criminalise the harm caused by disclosure of classified information rather than the fact that classified information had been disclosed.
Thus, for instance, the action of communicating information which may cause serious harm to the Republic was criminalised.
In our view, a return to the drafting style of the offences would allow accused persons to argue and attempt to demonstrate that the disclosure has not in fact harmed the security of the state. This would put the focus not on the mere disclosure of information that has been classified but rather on the actual or potentially harmful consequences of disclosure of that classified information.
Certainly, it cures one unintended consequence that opponents of the Bill fear will result from the current penalties. This is the fear that unscrupulous officials may classify information that does not merit classification in order to cover up wrongdoing or embarrassing evidence.
A journalist who discloses cynically classified information in the public interest will not be criminally liable since, self-evidently, the disclosure will not harm national security. The original version of the Bill provided for an elegant, clear and decisive automatic declassification of apartheid-era records and for records reaching the age of 20 years into the future. In our view, this took account of the legacy of oppressive use of information classification by the apartheid state, and covered effectively the records of state structures which stay outside of archival custody beyond a period of 20 years.
Subsequent revisions see sections 15 and 31 have diluted these provisions and introduced uncertainty as to the reach of "automatic declassification". This may be an opportune time to implement aspects of PPI. Non-compliance with the provisions of the Bill may result in criminal fines, civil liability and complaints to the regulator. Identifying value-adds beyond minimum compliance Organisations can gain significant business performance improvements by approaching the Protection of Personal Information Bill as a strategic opportunity rather than a compliance cost.
There are advantages to be gained within a company, for example: Technology gets the budget go ahead for middleware and data warehouses, new SAP modules, data security upgrades etc, which add value when linked to the overall business strategy. Select technology to support more than just data integration eg.
Contact us Submit RFP. Did you find this useful? Yes No. Related topics. Welcome back. Still not a member? Join My Deloitte. Keep me logged in. Forgot password. Link your accounts.
0コメント