Articles

The layperson's guide to the Protection of Information Bill

by Steve - Posted 10 February 2012

The Protection of Information Bill  is aimed at protecting classified State information. This law should not be confused with the Protection of Personal Information Bill, which is a more comprehensive piece of privacy legislation aimed at protecting the personal information of individuals and non-government bodies.

Who will the new law apply to?

The law will apply to every organ of state in SA, which basically covers any department or body in the national, provincial or local sphere of government, or any other body exercising power over the general public or performing a public function. 
 

Should we not have access to all information held by the government?

The default position is that State information should be freely available and accessible to all persons. This is in line with the constitutionally-protected principle of transparency in an open and democratic society, and the basic human right of access to information.

A free flow of information between the State and its citizens promotes openness, responsiveness, informed debate, accountability, good governance, the promotion of safety and security, the building of knowledge and understanding, the promotion of creativity, education, research, the exchange of ideas and economic growth.

However, some confidentiality and secrecy over State information is needed to save lives, to enhance and to protect the freedom and security of persons, to bring criminals to justice, to protect the national security and to engage in effective government and diplomacy.

The Protection of Information Bill seeks to balance these competing rights and interests by regulating how certain types of State information is protected from unlawful disclosure, destruction, alteration and loss.    

What information will be protected?

The Bill covers any sensitive, commercial or personal information held by the State which requires protection against unlawful disclosure.

Sensitive information is information relating to the national interest  of South Africa. National interest is defined very broadly in the Bill to include such matters as safety and security, the protection of State assets, the pursuit of justice and democracy, economic growth, free trade and a stable monetary system, sound international relations, economic, scientific or technological matters vital to the Republic’s stability, security, integrity and development.

Commercial information is confidential information and/or trade secrets belonging to an organ of state or given to it by another organisation or individual, which if released publicly would cause financial loss or competitive or reputational injury to the organ of state, organisation or individual concerned.

Personal information is information which identifies an individual or organisation, the disclosure of which may cause that individual or organisation harm of some kind.

What is classified information?

Sensitive, commercial or personal information held by the State which has been identified as requiring protection from being disclosed to others is classified as confidential, secret or top secret and may only then be made accessible to individuals who carry the necessary security clearance.

The 3 levels of classification, i.e. confidential, secret and top secret, are based on the level of harm that could occur if the information in question is disclosed. The information is marked according to its level of classification. 

Information may not remain classified for longer than 20 years, unless the head of that organ of state certifies that the information remains valuable and in need of protection.

Classified information of a particular type can be downgraded to another level of classification or declassified entirely. Once information has been declassified, it cannot be reclassified.

Types of classified information

Confidential information

The disclosure of confidential sensitive information may be harmful to the security or national interest of the Republic or could prejudice the Republic in its international relations.

The disclosure of confidential commercial information may cause financial loss to an entity or may prejudice an entity in its relations with its clients, competitors, contractors and suppliers.

Secret information

The disclosure of secret sensitive information may endanger the security or national interest of the Republic or could jeopardise the international relations of the Republic.

The disclosure of secret commercial information may cause serious financial loss to an entity.

The disclosure of secret personal information may endanger the physical security of a person.

Top secret information

The disclosure of top secret sensitive information may cause serious or irreparable harm to the national interest of the Republic or to the security or interests of the State, or may cause other states to sever diplomatic relations with the Republic.

The disclosure of top secret commercial information may have disastrous results with regard to the future existence of an entity.

The disclosure of top secret personal information may endanger the life of an individual.

Who decides what is classified information?

Within 12 months of the commencement of the new Act, the Minister of State Security must prescribe a list of broad categories and subcategories of what information must be classified and what information must not be classified.

After that, every head of an organ of state (or a senior employee who the head as delegated this authority to) must classify the information held by that organ of state according to the categories prescribed by the Minister and keep a register of that classified information and the level of classification applicable.    

Is there not a risk that the State can classify whatever information they want?

The Act states that only information which genuinely requires protection must be classified and it must be classified according to the rules and procedures laid out in the Act and the Minister.

The classification of information cannot be used to conceal unlawful behaviour, incompetence, inefficiency or administrative errors; or to limit scrutiny and avoid criticism; or to prevent embarrassment to a person, organisation, organ of state or agency.

The cost of secrecy must be weighed up before classifying information, and certain factors must be taken into account by the decision maker. These include the value of the information, the level of vulnerability and the threats posed, and the cost of protecting it.

It has also been made a criminal offence under the Act to knowingly classify information in a way that is contrary to the Act, including to conceal unlawful behaviour, inefficiency or administrative errors, or to prevent embarrassment, or to give undue advantage to anyone within a competitive bidding process.

What is all the fuss about?

The Bill introduces a number of criminal offences which carry hefty jail terms ranging from 3 to 25 years depending on the level of classification of the relevant information. These offences include unlawfully collecting, communicating, copying or making available classified information, or failing to report that you are in possession of a classified record.

These new offences are of particular concern to the media who often rely on confidential records and sources to expose government corruption, mismanagement and wrongdoing.