© Webber Wentzel 2012

Presentation to Ad hoc Committee on the Protection

of State Information Bill

27 March 2012

Background

SANEF & PMSA: WHO WE ARE

• SANEF is an NPO whose members include editors, senior journalists and journalism trainers from all areas of SA media

• Primary aim is to be a representative and credible voice of journalism in society, to facilitate diversity in newsrooms and reporting, enable a culture of real debate and promote free and independent journalism of the highest standard

• PMSA is an umbrella body that represents the interests of the print media industry in SA

• Represents over 700 newspaper and magazine titles across SA

• Primary objective is to provide a forum for unified representation of its members at industry level in respect of all matters that affect the print media

Background to detailed submissions

• Starting point: SANEF and PMSA accepts that national security is an important interest and that government is entitled and indeed required to enact appropriate legislation to protect the people of SA from legitimate national security threats.

• However, this must be done in a way that appropriately caters for constitutionally protected rights such as the right to access information and freedom of expression.

• The media has a right and duty to report matters in the public interest, recognising the media acts on behalf of the public, to vindicate the

public’s right to know.

Background

• Transparency, openness and accountability of government are founding principles of our Constitution and are an integral part of the

transformation of our society from a past based on secrecy and unchecked government authority to a constitutional dispensation.

• The Protection of State Information Bill must be tested against the Constitution’s guarantees of openness, accountability, responsiveness and transparency

• SANEF & PMSA believe that including a public interest defence will go a long way towards achieving that objective, and towards expediting such transparency

Oral submissions on aspects of the Bill

- Access to classified documents- The public interest defence- The public domain defence- The “top secret” threshold- The fault element in respect of certain criminal offences- Classification by members of the security services

REQUESTS FOR ACCESS TO CLASSIFIED INFORMATION

Access to classified documents (clause 19)

• Bill should have allowed PAIA to operate in parallel for access requests (as in clause 28 of B-2010). Instead, it ousts PAIA in clause 1(4)

• Requests for access to classified documents should therefore be governed by PAIA

• In any event, at least three problems with clause 19

Request for classified documents

First problem: Not clear that request must be granted if the documents should never have been classified, or should not continue to be classified:

19(3)(a) The head of the organ of state concerned must declassify the classified information in accordance with section 14 and grant the request for state information if that state information reveals evidence of—

(i) a substantial contravention of, or failure to comply with the law; or(ii) an imminent and serious public safety or environmental risk; and

(b) the public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure.”

Requesting classified information

Second problem: No time periods for responding to a request for access except in the case of documents that reveal evidence of a substantial contravention of the law, or an imminent and serious public safety or environmental risk.

Third problem: The public interest override, which is taken from PAIA, is too narrow. The “and” in section 19(3) should be changed to “or” so that a broader public interest override applies

PUBLIC INTEREST DEFENCE

The need for a public interest defence

• Probably the most significant omission from the perspective of the constitutional imperative of holding the government and others who exercise public power to account

• Public interest defence would allow a whistleblower or journalist who publishes classified information to argue that the disclosure was in all the circumstances justified: “a need for a safeguard that would act as a counterbalance to legitimate restrictions where the public interest warrants this”

• The threat of a criminal sanction for publishing secret information may chill publication on important public interest matters. This was recognised by the European Court of Human Rights in the Stoll v Switzerland case in 2007:

Stoll v Switzerland 2007 European Court of Human Rights

“The conviction of a journalist for disclosing information considered to be confidential or secret may discourage those working in the media for informing the public on matters of public interest. As a result the press may no longer be able to place a vital role as public watchdog and the ability of the press to provide accurate and reliable information may be adversely affected."

The Pentagon Papers

Background• Report titled “United States – Vietnam Relations,

1945-1967: A study prepared by the Department of Defense”

• History of the US political-military involvement in Vietnam

• Marked ‘Top Secret’• Released by Daniel Ellsberg in 1971

Public interest• Revealed that four administrations, from Truman to

Johnson, had systematically lied to the public and to Congress about the Vietnam war

• Further revealed inter alia that the US had been deliberately expanding its bombing attacks, coastal raids and marine corps attacks, none of which had been reported by the US media

The Pentagon Papers

If POSIB was in force in the US at the time, the newspapers and their sources could be guilty of:

• Espionage if ought to know will indirectly benefit foreign state (min 15 to max 25 years imprisonment)

• Receiving state information if ought to know will indirectly benefit foreign state (max 25 years imprisonment)

• Disclosure of classified information (fine or max 5 years imprisonment)

• Failure to report possession of classified information ito s 15 (fine or max 5 years imprisonment)

The Pentagon Papers

New York Times Co. v United States (US Supreme Court, 1971)‘The Pentagon Papers case’

Justice Black:“Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of … shot and shell”.

Justice Douglas:“Secrecy in government is fundamentally antidemocratic, perpetuating bureaucratic errors. Open debate and discussion of public issues of vital to our national health.”

The whistleblower “defence” is illusory

• Clause 43:“Any person who unlawfully and intentionally discloses classified information in contravention of this Act is guilty of an offence and liable to a fine or imprisonment for a period not exceeding five years, except where such disclosure is‑

(a) protected under the Protected Disclosures Act, 2000 ( Act No. 26 of 2000) or section 159 of the Companies Act, 2008 ( Act No. 71 of 2008); or(b) authorised by any other law.”

Limited ambit of existing whistleblower defence

• Protection extended by PDA only relates to employees of an organization and specifically excludes independent contractors; Companies Act also restrictive

• This defence does not cover journalists or concerned citizens who are not employees but who receive classified information of public interest, even from a protected whistleblower

• The defence only protects employees or company stakeholders who follow the chain of disclosure required by the PDA/ Companies Act

• The PDA/ Companies Act is only included as a defence under clause 43 and none of the other disclosure or possession offences

The public interest defence

(1) No person is guilty of an offence under sections 40, 42, 43 and 44 of this Chapter if the person acts in the public interest. (2) A person acts in the public interest if the person has reason to believe that the classified information concerned shows one or more of the following: (a) that a criminal offence or breach of the law has been, is being or is about to be committed;(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject;(c) that a miscarriage of justice has occurred, is occurring or is likely to occur;(d) that the health or safety of individual has been, is being or is likely to be endangered;(e) that the environment has been, is being or is likely to be damaged; (f) that a public safety risk exists;(g) that gross incompetence, mismanagement or impropriety on the part of any person has occurred; (h) that an unlawful act, inefficiency or administrative error is being promoted;(i) that an undue advantage is being given to anyone in a competitive bidding process; and(j) that the public is being misled by an action or statement of another person.

PUBLIC DOMAIN DEFENCE

Public domain defence

• Where the information is already in the public domain, future restrictions on its publication would be futile

• SANEF and PMSA accept that the public domain defence will not avail the party who first places the material in the public domain but that ought not to limit the rights of members of the public to republish the information

• Public domain defence is accepted internationally

United Kingdom

• “The Spycatcher case”: Observer v UK (European Court)― Newspapers interdicted from publishing extracts of Spycatcher book by

former MI5 agent even though book widely available all around world― “Continuation of the restrictions after July 1987 [the date of

publication in the USA] prevented the newspapers from exercising their right and duty to purvey information, already available, on a matter of legitimate public concern”.

• In the contemporary world of electronics and jumbo jets news anywhere is news everywhere … Once the news is out by publication in the United States and importation of the book into this country, the law could, I think be justifiably accused of being an ass and brought into disrepute if it closed its eyes to that reality and sought by injunction to prevent the press or anyone else from repeating information which is now freely available to all (Browne- Wilkinson VC)

Public domain

• Moseneke DCJ in Independent Newspapers v Minister for Intelligence regarded as important factors: “whether the information is already in the public domain, and if so, in what circumstances it reached the public domain” and “for how long and to what extent it has been in the public domain”

• Sanef and PMSA propose defence for an accused who established that the information, or substantially the same information, disclosed was in the public domain at the time of the disclosure.

CLASSIFICATION: “TOP SECRET”

Threshold for “top secret”

• Clause 12(3) provides:

“State information may be classified as top secret if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to demonstrably cause serious or irreparable harm to the national security of the Republic.”

• Impossible to distinguish between this and clause 12(2) which provides for classification of “secret” information

• Clause 12(2) provides “State information may be classified as secret if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause serious demonstrable harm to the national security of the Republic.”

• Clause 12(3) constitutionally vague and overbroad due to the use of the word “or”

• Clause 12(3) would be more effective if it read:“State information may be classified as top secret if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause serious and irreparable demonstrable harm to the national security of the Republic.”

CRIMINAL OFFENCES

The absence of an appropriate mens rea requirement

• Offences created in clauses 36, 37, 38 and 39 are problematic as they are based on negligence

• Effect of “knows or ought reasonably to know”: each offence is committed even if accused does not have actual knowledge

• Negative effect exacerbated by the fact that the benefit to the other state or non-state actor can be either direct or indirect

• “intentionally and unlawfully” are attached to the action of communicating, receiving or disclosing information in the problematic clauses and not to the intended consequences of the action

The absence of a mens rea requirement

• Problems with the clauses could be cured by:– deleting “ought reasonably to have known”– deleting reference to “indirect” benefit to a foreign state or non

state actor– making it clear that information must have been disclosed with the

intention to directly benefit a foreign state or non state actor

• Amendments will ensure that criminal consequences only ensue where actual knowledge is present and there is a clear intention to act unlawfully

• Ensure that ordinary citizens and journalists who have no intention to engage in espionage or hostile activities against the state will not be prosecuted

CLASSIFICATION BY MEMBERS OF THE SECURITY SERVICES

Classification of information by members of the security services

• Clause 13(6) provides that every member of the security services who due to the “nature of his or her work” handles information that falls within scope of the act “must” classify information subject to confirmation by the head of the organ of state in question

• The words “nature of his or her work” is vague and the effect is that every member of Defence Force, SAPS, NIA and SASS can potentially classify

• No attempt to confine the authority to members of the security services with a particular rank – even the most junior members are able to classify information

Classification of information by members of the security services

• Contradicts clause 13(4) which provides that information must be classified at a sufficiently senior level

• Will encourage over classification because it creates an obligation to classify

• Unclear how soon review by the head of the organ of state must take place after the information has been classified

• Clause 13(6) should be deleted from the Bill

Conclusion

• POSIB an important Bill for our democracy• Committee has opportunity to strike the correct constitutional balance

between national security and openness• In our written and oral submissions, we have emphasised how Sanef and

PMSA believe that balance should be struck• The public interest and public domain defences, in particular, will

counterbalance any potential for abuse in the classification regime, and will give effect to the values of accountability and transparency that the Constitution requires

QUESTIONS?