Warning: Too much openness can be hazardous to your health

By Sam Sole

So. Thanks to the Financial Mail we now know that the outcry over the Protection of Information Bill is an “overreaction” from people “obsessed” with openness and the availability of information.

Chillingly that is the view of the man tasked with ushering this dangerous piece of legislation through parliament, the honourable Cecil Burgess, chair of the ad hoc committee considering the Bill — and also, as it happens, the chair of the Joint Standing Committee on Intelligence.

It is truly worrying that Burgess, a lawyer, can show so little understanding of concerns over the Bill’s foreseeable effect of drawing an iron curtain of secrecy around much government activity.

Openness, in case he had forgotten, is one of the foundational values of the Constitution. It’s there in the preamble which says the Constitution is intended to, “Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.”

It’s there in the founding provisions, which entrench “Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

And it finds expression in the Bill of Rights, which protects freedom of expression, a free media and access to information.

It is entirely proper that we be “obsessed” with defending the foundational values of our democratic state, and it is frustrating that the man charged with ensuring that legislation complies with those values apparently regards them as somehow annoying or tiresome.

It is also obvious that the media will be at the forefront of expressing concerns over the Bill.

Legislation which seeks to regulate and restrict the disclosure of state information, particularly sensitive information, goes to the heart of the relationship between the state and the media.

The media interest in and concern at this Bill is not merely one of convenience or inconvenience, but one of constitutional importance. As the Constitutional Court has pointed out, “The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected.”

“The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate.” (Case CCT 53/01, at paragraph 22)

But the constitutional mandate of the media goes further. Its mandate is not merely passive reporting, but active inquiry and investigation. As the Constitutional Court pointed out in the same case: “Furthermore, the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.

As Joffe J said in Government of the Republic of South Africa v Sunday Times Newspaper and Another 1995 (2) SA 221 (T) at 227H – 228A: “It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration … It must advance the communication between the governed and those who govern.” (Case CCT 53/01 at paragraphs 23 and 24).

Access to information is a right which fundamentally underpins the Constitution’s foundational value of responsive and accountable government — both directly, in the sense of accessing information about what government is doing or not doing — and indirectly, in providing the very means for informed debate and political decision-making.

It is notable that not one of the mostly highly critical submissions to the committee argues that there should be no secrecy in government. All of them concede that where disclosure would be likely to harm the security of the country or its international relations, government should be entitled to protect such information via classification.

But the Bill goes so much further as to allow the classification of virtually any information whose disclosure might be embarrassing — and at every level of government, from local authorities to parastatals, to departments that have absolutely no connection to national security.

The Bill includes a very wide discretion to classify commercial information held by the state, meaning the disclosure of information about rigged tenders and other sorts of corruption would be made punishable by imprisonment, because it is likely that such information would be classified.

It is even entirely possible, under this Bill, that details of a minister’s hotel accommodation might be classified, meaning the M&G reporters who disclosed them would face 3 to 5 years in jail (if the information was classified at the lowest level of “confidential”).

Defenders of the Bill say there is prohibition in the Bill against classification to cover up wrong-doing, but this is no protection against misuse at all.

The discretion in the Bill is so wide as to allow, to take the above example, the classification of the minister’s hotel records on the basis that their disclosure may pose a threat to his personal security.

What the submissions to the committee also show is that the Bill goes way beyond comparable legislation in other democracies. And yet the minister of state security has not been able to point to any looming threat which justifies such extreme measures.

Indeed, we have survived the past 15 years with apartheid-era legislation that the minister himself concedes has aspects that are probably unconstitutional and therefore unenforceable. The current regulations on classification — the Minimum Information Security Standards — are just a government policy, and are currently not enforceable in law, except against government employees as part of their terms of employment.

The best the minister can do is point to the disruptive influence of so-called “information pedlars” and make reference to the Browse Mole report produced by the Scorpions, which made apparently erroneous claims about foreign governments backing Jacob Zuma to topple Thabo Mbeki.

It is striking that the Browse Mole report — of which the minister, his team and Mr Burgess have been highly critical — was only investigated and “exposed” after it had been leaked to Cosatu and from Cosatu to the media.

Now such leaks (the Browse Mole document carried a top secret classification) would be punishable under the new law by imprisonment of up to 25 years.

The Bill, if allowed to stand, will have a terrible chilling effect on the flow of information and on the media.

It comes on top of renewed ANC calls for a media tribunal and an ever growing set of government gags — on police, prosecutors and other officials — telling them they must not speak to the media or provide the media with information, even when it is information to which reporters are legally entitled.

The mistrust of the media has become so ingrained that one of the committee members, ANC MP Hlengiwe Mgabadeli, had to remind the committee at one stage that the media were not foreigners: like the members of the committee, they were South Africans, “they are involved in what we are trying to defend”.

Indeed.