One of the main problems with the new Protection of Information Bill is that it allows material to be classified as secret on the basis of a hypothetical threat to the national interest, writes Dario Milo in the Sunday Times.  And there is no public interest defence.

Dario Milo writes in the Sunday Times:

Parliament’s ad hoc committee on intelligence legislation this week heard public submissions on the controversial Protection of Information Bill.

The bill aims to regulate the manner in which state information is protected by setting up a system of classification of information. A bill of this nature is important in a democracy as even open and democratic societies needs to operate with some secrecy.

For instance, the identity of a source of intelligence, or details about military operations and tactics, and other information truly in the interests of national security, should not be disclosed to the public.

The bill proposes a seismic change from the existing minefield of security legislation and, in many respects, achieves some measure of openness and transparency. But it is riddled with internal contradictions, fatal constitutional flaws and disproportionate criminal prohibitions. Indeed, if enacted in its current form, the result will be substantial censorship of political expression, and heavy punishment could be meted out to investigative journalists and others for informing the public of important information.

One of the most significant problems with the bill is that it permits classification — hence secrecy and censorship — based on a threshold of speculative or hypothetical harm to the national interest.

Such a low threshold for the existence of harm is utterly inconsistent with our constitutional jurisprudence and with developments in foreign jurisdictions. Our courts and legislature have, in analogous contexts, endorsed a test based on the reasonable likelihood of harm, and even in the post-September 11 world, the US’s secrecy law does not allow classification based on possible harm.

Even worse, the bill allows secrecy if harm might occur to the “national interest”, a concept so amorphous as to include almost anything. Its staggering breadth extends, for instance, to “the advancement of the public good” and “the pursuit of justice and democracy”.

It also permits the classification of the commercial information of third parties that is in the hands of the state, which is unprecedented in our law and in most other jurisdictions. It even allows the minister to make regulations for classifying commercial information not held by the state. The bill also allows all heads of organs of state, or their delegates, to classify information. This means that, unless exempted, not only government departments but most statutory entities such as the Health Professions Council and the SABC will also be empowered to classify.

The problems don’t end there. There is no public-interest defence for members of the public, including the media. Take, for instance, the case of a classified document that comes into the hands of the media, which reveals gross incompetence, hypocrisy, misconduct or illegality by, for instance, a high-ranking government official.

Not only must the journalist return the information to the National Intelligence Agency or the South African Police Service, or face a possible five-year jail term, but if the newspaper publishes the information, further offences are committed by the journalist and his editors — again with a possible five-year jail term. The absence of a public-interest defence in these circumstances will undoubtedly result in a chilling effect on freedom of political expression.

And, while there is a welcome procedure to request that a document be declassified, there is no independent oversight of this process. Appeals are heard by the minister for intelligence. There is considerable merit in tasking an independent body to review, periodically, whether documents have been properly classified, and to hear appeals where applications for declassification are refused.

The bill ultimately fails crucial constitutional tests and, in its present form, should not be supported.

Parliament would do well to bear in mind the warning of Justice Brennan of the US Supreme Court in the famous Pentagon Papers case: “Classification is an awesome responsibility, requiring judgment and wisdom of a high order. A very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified. The hallmark of a truly effective security system would be the maximum possible disclosure.”

* Milo, a partner at Webber Wentzel attorneys, made submissions to the ad hoc committee on behalf of Avusa Ltd, proprietor of the Sunday Times. This article first appeared in the Sunday Times on 3 August 2008