Ann Crotty
The wide-ranging nature of the potential authority that the Protection of State Information Bill will give the minister of state security includes control over all of the information that is handled by the Companies and Intellectual Property Commission (CIPC).
While media coverage of the bill has tended to focus on the implication for “sensitive information”, there has been a tendency to overlook the fact that “valuable information”, generated by the CIPC, will also fall within the ambit of the Department of State Security.
Yesterday the DA’s Dene Smuts said this situation highlighted the fact that it was “totally inappropriate” to put the intelligence services in control of this information.
The bill defines sensitive information as that information that is deemed necessary to be classified in the interests of national security. It defines valuable information as information “whose unlawful alteration, destruction or loss is likely to deny the public or individuals of a service or benefit to which they are entitled”.
While the implications for handling CIPC information are far less severe than for sensitive information, giving the minister of state security any authority over the CIPC raises the issue of potential conflicts between this bill and the Companies Act.
In terms of the 2008 act, the CIPC is independent and “subject only to the constitution and the law, and any policy statement, directive or request issued to it by the minister in terms of this act”. The minister referred to in this section is the minister of trade and industry.
Smuts said the concerns around valuable information were not as critical as those around “sensitive information, but it raises the whole issue of whether or not it is desirable to have the intelligence services instructing the CIPC on how to handle their information”. She added: “The intelligence services are devoted to secrecy, it is unacceptable that they will be put in charge of all government information.”
It is unclear precisely how the minister of state security will exercise authority over the CIPC. In terms of section 54 of the bill, currently before the National Council of Provinces, the minister has to draw up regulations setting out procedures to be followed and the manner in which valuable information must be protected. These regulations must be drawn up within 12 months.
An advertorial published by government communications in weekend newspapers suggested that the authority would be used actively by the minister of state security. Titled “Information bill – government explains the Protection of State Information Bill”, it stated: “The bill also protects businesses from unscrupulous individuals who hijack companies worth millions of rand, by illegally altering the information at the company registry. So for the daily interaction of citizens with the state, it seeks to ensure that this is done on the basis of authentic, valid, correct and usable information.”
Protecting businesses in terms of the Companies Act is the responsibility of the Department of Trade and Industry and its agents at the CIPC.
Trade and Industry director-general Lionel October played down any suggestion of a potential conflict with the bill.
“The act (Companies Act) lays out where the executive authority lies and none of that is changed by the ‘information’ bill.” He noted that there was no question of the minister of state security having any oversight over the CIPC. If there were any conflict, a court “would remedy the inconsistency”. page 14