The Department of State Security has rejected calls for further changes to the Protection of State Information Bill, urging MPs to ignore demands for a public interest defence clause and suggesting that such a mechanism would undermine the rule of law.
Briefing an ad hoc committee of the National Council of Provinces (NCOP) on Wednesday, State Security acting director-general Dennis Dlomo told MPs: “The requirement of the rule of law and the duty it imposes on all citizens, including the media, is the duty to respect classification decisions until they are set aside.
“It does not countenance the principle of being an adjudicator in one’s own cause, as implied by a public interest defence. This would give everyone the right to act as judge and jury,” he argued.
A public interest defence would allow citizens who disclosed classified information in the public interest to avoid stiff prison sentences contemplated in the bill for those who leak classified material. But it was a case of one step forward and two steps back as the department was arguing against changes already agreed to by MPs.
ANC members of the committee surprised many when, during the committee’s last meeting on May 10, they proposed that a clause be included to protect the disclosure of information that was wrongly classified to hide “an unlawful act or omission, incompetence, inefficiency or administrative error” – or to avoid “embarrassment, scrutiny or criticism”.
ANC MPs also made a point of adding “corruption” to the list of criteria which would disqualify classification and allow protected exposure by journalists, whistleblowers and other citizens. The bill had already made it an offence for a government official to classify information on the basis of the above criteria. But it did not protect those who unlawfully revealed classified information from criminal prosecution – even if it exposed such wrongdoing.
In what appears to have been a misunderstanding between the committee and the department, State Security officials did not respond to these and other changes proposed by MPs at their last meeting.
Instead, officials commented only on the submissions made by civil society groups – which included calls for a public interest defence – during public hearings held earlier this year.
Committee chairman Raseriti Tau proposed that the officials return to Pretoria, prepare detailed responses to the committee’s own proposals and return again next week to give their input.
On Wednesday DA MP Alf Lees said the department’s opposition to a public interest defence was questionable – particularly in light of the “watered-down version” of a public interest defence already proposed by the ANC.
“The DA finds it difficult to understand why the Department of State Security would argue against amendments which propose that journalists and whistleblowers be protected from prosecution if they reveal information which discloses criminal activity. The department surely does not want to create the impression that it wishes to protect alleged criminals or punish those who earnestly expose corrupt and criminal behaviour,” he asked.
Cope MP Dennis Bloem slammed the officials for making a “mockery” of the parliamentary process by “ignoring proposed amendments by the ANC”.
“Mr Dlomo showed his arrogance and rubbished all the proposed amendments, including those of the ANC. Cope does not accept this type of behaviour from a departmental official and will raise the matter critically in our next committee meeting. Committees deal with inputs and submissions of individuals and organisations and are not there to undermine others,” he said.
Dlomo, like the ANC, also rejected criticism of the fact that the bill would trump the Promotion of Access to Information Act (Paia) in situations where the two were in conflict with each other.
He said the bill was an “effective marriage” between the competing interests of transparency and secrecy.
The SA History Archive has warned that the committee’s failure to change this clause “threatens the work of Paia”. Earlier, the archive’s Tammy O’Connor said the current draft of the bill would “extend the grounds on which public bodies can refuse people access to information, allowing access to be refused solely on the basis of classification”.
Political Bureau