eastern capeIs new info bill not overkill?

This is not a r-fetched proposition. Eastern Cape health MEC Sicelo Gqobana himself expressed concern that hospital authorities had iled to report the deaths to him. If even an MEC was initially kept in the dark, would there not be a temptation in future to classify such records as "confidential", thus denying public access to such information?

Should a public interest defence not be included in the bill, there is a possibility that the first person prosecuted for possessing or publishing leaked classified information will succeed in having the clauses creating such offences struck down as being in breach of the constitutional rights of freedom of expression and access to information.

An example is the tragic death of 29 neonates at East Londons Cecilia Makiwane Hospital in March. As the bill now stands, the medical records and other information could be classified "confidential" by officials to hide negligence or other inconvenient truths.

This will NEVER work out in practice – scrap the whole Bill. The ANC simply wants to cover its tracks, NOTHING ELSE!

So where do we stand on the bill? While there has been some positive movement from the ANC, particularly in removing vague definitions such as "national interest" and references to "commercial information", aligning the bill with the PAIA and legislation protecting whistle-blowers and lifting the thresholds for classification, the sticking points remain the absence of a public interest defence and an independent appeals mechanism. There may be room for consideration of an independent appeals mechanism, but not the public interest defence. The reason given is that there is no precedent in international law.

Should an official find a superficially plausible pretext to declare that information "confidential", the residents group would in all likelihood lack the knowledge and financial means to contest the classification. The ct that such classifications may be unlawful is unlikely to be much help to those residents, and officials may succeed in covering their tracks. And should information be leaked to residents, they may be prosecuted for being in possession of classified information.

But do the provisions of the Promotion of Access to Information Act (PAIA) not resolve this problem? It was passed to "foster a culture of transparency and accountability" and to "actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights".

And what makes Gwede Meastern capeIs new info bill not overkill?atashe so special that he expects his word to prevail? If journalists are not to be prosecuted for exposing corruption, he should write that into the Bill very clearly.

In this regard, the Ontario Superior Court in 2006 struck down similar sections in the Canadian legislation that were used to prosecute a journalist, Juliet ONeill. It found that these sections "arbitrarily and unirly and with a blunt club of criminal sanction restrict freedom of expression, including freedom of the press", and that ONeill "was not the focus of the investigation, but, instead, an after-the-ct casualty of the resolve of some senior administrators to discover the source of embarrassing leaks".

This is strictly not correct. As I have argued, Canada has a public interest defence for officials permanently bound to secrecy in its Security of Information Act which can be adapted to make this defence available to journalists and ordinary citizens.

If this is the approach adopted in applications for access to general information under the PAIA, access to classified documents will be even more difficult. One commentator has said that information officers have already indicated they will automatically deny access to any classified document and then seek to find other justification grounds under the PAIA (bearing in mind that classification is not a ground for denial of access under the PAIA).

Political parties and stakeholders have made their final submissions, and the parliamentary schedule allows the committee finalising the draft a month from when meetings resume after the local government elections to make the hard choices to determine the final form of the bill.

These are noble intentions, considering SAs past of secrecy, which often led to an abuse of power and human rights violations. There are, however, huge problems with the practical application of the PAIA.

Swart is a member of parliament for the African Christian Democratic Party and member of the ad-hoc committee dealing with the Protection of Information Bill

The only way to prevent this would be to adopt a much narrower approach to the classification of sensitive information, as argued by opposition parties. The principle to be applied is the promotion of accountability and openness, which requires cilitating access to information wherever possible and restricting classification to that which is strictly necessary to protect state security. Secrecy should then be limited to the security sector, such as police, defence and intelligence agencies. This, with a narrow definition of "national security" and higher thresholds for classification, would narrow the application of the bill.

Anyone who iled to persuade the court could ce severe penalties, which would be a deterrent to anyone disclosing classified information which requires protection. The inclusion of a public interest defence would go a long way to ensure that the bill passes constitutional scrutiny.

This is crucial because, as argued by media lawyer Dario Milo, if documents are released under the PAIA in the public interest, despite the threat that the contents pose to national security, "it would be contradictory and unir in parallel circumstances to criminalise the access, disclosure and continued possession of classified documents that are significant for the public".

The ilure to provide for a defence of public interest – at least to members of the public and media – will create a chilling effect on freedom of expression

If an innocuous document such as the Ministerial Handbook is already classified as "confidential", how much more will classification be used to limit access to information not only to the media seeking to expose dishonesty and maladministration, but also to citizens wanting information?

Government departments have obstructed access to information in numerous ways, ranging from ignoring requests to delaying the application process and even denying, without lawful justification, that certain records exist.

What better way of dealing with negative press coverage of corruption, wasteful spending by cabinet ministers and officials, and infighting within state intelligence agencies in the run-up to the 2012 ANCs elective conference than finding a pretext to classify such information? The media and public could be liable for prosecution for possessing or publishing any such leaked information. This, again, is not r-fetched. We already have the scenario where answers to parliamentary questions relating to wasteful expenditure on VIP travel are refused.

It would be a mistake to characterise the controversy surrounding the bill as a battle between the media and the government. In addition to freedom of expression (which includes press freedom), the average citizens right to access information will be severely curtailed if this bill is passed in its present form.

We are all aware of widespread tender fraud taking place in the government. What would prevent officials from classifying tender documents as "confidential" and then refusing access? What about a township residents group demanding to know what has happened to money available for service delivery?

What was also not considered when the parliamentary committee recently deliberated on international best practice is that, already, provisions in the PAIA prohibiting access to records concerning defence, security and international relations may be overridden when it would be in the public interest to do so. This would be in the case of "a substantial contravention of, or ilure to comply with, the law; or an imminent and serious public safety or environmental risk", and where the public interest in knowing the information outweighs the harm from disclosure. We were not referred to similar provisions in any other foreign jurisdiction.

Access to information will be severely limited if proposed law is passed in its present form, writes Steve Swart

eastern capeIs new info bill not overkill?,Steve Swart: Its crunch time in the long debate aeastern cape department health tendersbout a proposed Protection of (state) Information Bill.

Milo concludes that "the ilure to provide for a defence of public interest – at least to members of the public and the media, as opposed to members of the security forces – will create a chilling effect on freedom of expression".

ANC secretary-general Gwede Mantashe gives the assurance that no journalist will be prosecuted for exposing corruption. If this is the ANCs position, then there can be no objection to a limited public interest defence, particularly given SAs unique public interest override in the PAIA. It would be the court which determined the weight to be given to the public interest.

Not that it would help much, because simply exposing corruption would be that much more difficult with every second official refusing to release information under the pretext of "the law."

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