Statement by Rhodes University on Protection of Information Bill
The following is a statement issued by the Senate and Council of Rhodes University.
Rhodes University welcomes proposed changes to Protection of Information Bill, but Bill is still a threat to academic freedom.
Issued on behalf of the Senate and Council of Rhodes University
14 July 2011
Rhodes University welcomes the concessions made by the African National Congress (ANC) on Friday 24 June in deliberations by an ad-hoc committee of Parliament on the Protection of Information Bill. The University appreciates the committee’s commitment to move away from a culture of secrecy in the state and to prevent abuses of the Bill to cover up mal-governance and even corruption.
Academic freedom is constitutionally protected in South Africa, and this freedom would be impossible to achieve without freedom of information. This freedom is necessary for academics to generate knowledge, which in turn assists in the development of good public policy.
The University had serious concerns about the Bill, as it threatened to cloak the state in a shroud of secrecy, and could have made academic enquiry on many aspects of the state’s operations impossible. Such secrecy would have violated the right of universities to determine teaching and research priorities freely. Universities have a duty to secure the necessary conditions for their own intellectual work in society; but they also have a broader duty to secure conditions for the practice of democratic citizenship in society generally.
We were particularly concerned that if universities were included in the scope of application of the Bill, then they would be required to classify documents, which could have led to the very culture of secrecy that many feared creeping into government, creeping into universities as well. We also feared the bureaucratic burden that classification would place on universities. We welcome the ANC’s concession that the scope of application of the Bill will be limited to organs of state security, with an opt-in clause for other organs of state.
The University also welcomes the fact that minimum mandatory sentences in the Bill’s penalties clauses have been dropped, with the exception of sentences that apply to espionage offences. We support the ANC’s position that the principle of proportionality must be recognised in relation to penalties. Other welcome changes are the ANC’s concession to establish an independent appeal mechanism for individuals who wish to appeal a classification decision, and the establishment of an independent classification review panel to conduct oversight of the classification process. These measures go a long way to ensuring that the classification process is not abused, and the concessions have addressed several of the University’s concerns about the Bill.
The University accepts that a Protection of Information law is needed, but still feels that the current Bill limits the right of access to information in a manner that is not reasonable and justifiable in a democracy based on openness and transparency. We have a number of concerns that remain unaddressed. These are as follows:
· No public interest and public domain defence clauses. If researchers come into the possession of classified documents, then they will be guilty of a crime. In the same way that journalists should be able to argue legitimate possession of such information in the public interests, academics should be able to make a similar argument as well. Furthermore, if documents find their way into the public domain, those who access them in the public domain will also be guilty of an offence, which we consider inappropriate in a democracy. Failure to include public interest and public domain clauses will mean that academic research on matters relating to the organs of state security could be criminalised, and the academics concerned will not have access to a legally recognised defence. Furthermore, an academic could land up in trouble for publishing research relying on sensitive information without even knowing that s/he has overstepped the mark. At the very least, the Bill should incorporate a harms test, which should allow researchers to argue that the harm to national security was offset by the public interest in disclosure.
· The overbroad definition of what constitutes national security and overbroad grounds for classification. In terms of the Bill, classification exists to protect national security, which is defined so broadly that huge swathes of documents could be classified. This will make research on these aspects of the state difficult, if not impossible, which means that universities will be unable to make a contribution to knowledge production on these vital areas of government. While the definitions of the grounds for classification of ‘confidential’, ‘secret’ and ‘top secret’ information have been tightened, they still remain vague. The definition of what constitutes an espionage offence – the only offence that will attract a mandatory minimum sentence in terms of the Bill – still remains vague and therefore open to abuse.
· ‘Double blind provision’. A researcher could request the organ of state concerned to declassify certain documents, which the Bill allows ‘in furtherance of a genuine research interest or a legitimate public interest.’ Also a researcher can apply for classified documents in terms of the Promotion of Access to Information Act (PAIA), which would trigger an enquiry into whether the document should be declassified. But the organ of state concerned has the right even to deny the existence of the documents, which can easily be misused by the authorities to conceal information that is in the public interest. This means that in order to pursue the matter, the researcher would have to expose his or her knowledge of the documents’ existence, which would invite a security investigation into whether s/he already had access to the documents, which may well discourage researchers from even considering particular lines of enquiry. Also, the government decides what constitutes a genuine research interest, which conflicts with a fundamental tenet of academic freedom, namely the freedom to decide what to research and how, although this risk is mitigated somewhat by the new review and appeal procedures.
· Inconsistency in time frames for requests for classified information. There is also an inconsistency in time frames between PAIA, and the Bill, which will affect researchers using PAIA to access classified documents. In terms of PAIA, an information request must be considered within 30 days, and an internal appeal can take up to 30 days too. But decisions about declassification can take up to 90 days, as can the appeal process, meaning that the total period of time between the original application for declassification and final decision may be as much as six months. This time frame is enough to discourage even the most tenacious researcher, especially those reliant on annual grant funding.
· No written justification for classification. The fact that the organs of state security do not have to justify why particular documents are being classified is a recipe for abuse. This clause, which was included in the 2008 version of the Bill, should be reinserted.
· Inadequate protection for whistleblowers and access to information. Related to our first point, the Bill still does not make adequate provision for whistleblower protection. If any person discloses classified information outside the manner set out in the Bill, they could still use the protection offered by the Protected Disclosures Act (PDA) to escape prosecution. However, any person who has classified information in his or her possession and fails to disclose this to the authorities, is not covered by the Act, and can be convicted. It should also be noted that the PDA is not a perfect instrument in any event. For instance, the protective scope of the Act is too narrow as it limits the scope of protection to whistleblowers in a formal working relationship and excludes citizen whistleblowers. Furthermore, there is no obligation on public or private organisations to take proactive steps to encourage or facilitate whistle blowing. South Africa also lacks a comprehensive whistleblower framework, and no public body is tasked with championing whistle blowing. Furthermore, as the Bill is subject to PAIA, it could be argued that classified information that is also subject to mandatory non-disclosure in PAIA could still be released if it satisfies PAIA’s public interest override clause. However, the University is also of the view that the public interest override in PAIA is too narrow and needs to be amended to bring into line with the Constitutional right of access to information.
All these problems mean that the Bill still favours secrecy above openness and transparency in the organs of state security in a manner that threatens academic freedom. It will probably lead to information plugs developing in the system, obstructing research and disillusioning researchers. Future researchers may shy away from undertaking research on the security cluster owing to the difficulties and even risks involved. The Bill could also lead to unwarranted interference from the state in academic activity.
South Africa has a sorry history of abuse of the state security apparatuses, and universities have a key role to play to ensure that such abuses are not repeated. Researchers need access to documents that expose the inner workings of the security cluster, and its interface with society. If the Bill remains as is, then such research will be immensely difficult, if not, impossible, as the security apparatus will remain largely off limits. This culture of secrecy creates conditions where a securitisation of the state could take place unchecked, with potentially negative implication for South Africa and the region as a whole.
Research that is of considerable public importance – such as research into the restructuring and ‘re-militarisation’ of the police and its relationship to growing police violence, and research into the transformation of the military – will be extremely difficult to undertake. Researchers will also find it exceedingly difficult to enquire into whether the intelligence structures are being used to ensure civilian safety rather than the harassment of political opposition. Any research that is in the public interest, but that is based on leaked classified information, could be criminalised and the researcher could be arrested for failing to report possession of classified information. Researchers share the same relationship to sources that journalists do: they are the lifeblood for both activities, and the protection of their sources’ identities is sacrosanct.
Granted, the Bill penalises those who classify information for improper purposes, such as to conceal corruption or prevent embarrassment, and the fact that the ad-hoc committee is willing to consider strengthening the penalties in this regard is welcome. However, there are many documents that may be classified for what the Bill considers to be ‘proper reasons’ that researchers will be unable to access, given the overbroad definition of what constitutes national security.
The University calls on the ad-hoc committee to address these remaining problems when it commences work later this month.
