When Minister of Police, Nkosinathi Nhleko, claimed in his report to Parliament on Nkandla that the investigation “…was a violation and breach of [the President’s] security”, he said so while fully aware of the fact that much of that information had been legitimately sourced through a Promotion of Access to Information (PAIA) request.
There appears a knee-jerk reaction to refuse access to information because it contains “classified” details whenever controversy surfaces. “That’s classified” was the public response to questions on Nkandla, questions on national key points, questions on Marikana and once, more amusingly, on questions about the Minister of Intelligence’s salary…
In South Africa, the legal answer is meant to be simple: PAIA can be used to access records, whether or not they are classified. While the state can refuse access for a number of reasons (one of which includes national security and defence concerns through section 41), “that’s classified” is simply not a justifiable response.
And yet, some public officials still scream “classified” when confronted with uncomfortable queries.(1) What makes the state’s position on classification and PAIA such a ‘Catch-22’ has just been laid bare by a successful PAIA application we made to the Department of State Security. In 2004 a report was commissioned under the then Minister for Intelligence Service’s Lindiwe Sisulu, which sought to explore and revise the classification and declassification of state information. (2) It is this report, which provided some of the impetus for the drafting of the Protection of State lnformation Act (also known as the “Secrecy Bill”), and at the same time reveals a PAIA conundrum for the state.
The main recommendations are notable. The report details the complete inadequacy of the current classification system (done mainly through a policy called the Minimum Information Standard); the incongruent classification of records particularly pre-dating the 1994 period; and the need to create a new National Information Security Policy that could better give expression to PAIA’s position as the overriding law in relation to information and information access.
This report supported the need for a new law on classification, a recommendation that was taken up with gusto by the Minister of State Security through the Secrecy Bill that still nervously awaits signature by the president. What this report importantly reveals though is a complete lack of congruence in the state security apparatus’ public stance on PAIA. The very report that justified their proposed new classification system clearly states PAIA must remain supreme, not least of all because many records that are currently standing as classified simply shouldn’t be. Yet in Ad Hoc Committee meetings on the Protection of State Information Act, the ANC members made specific recommendations (3) to try and override PAIA in spite of the Minister Sisulu’s express recommendations in this report.
It’s nice to be able to remind government of their own policies and recommendations, particularly as the Secrecy Bill looms closer to promulgation. The Minister of Police, or Intelligence, etc. cannot state the need for a Secrecy Bill, then hypocritically reject the source report for that law and try and threaten PAIA. PAIA demands they apply their minds to the information before them and the questions we ask – the knee-jerk response “it’s classified” is not good enough in law, in logic, or even in terms of their own policies.
The starting point is simple – openness is it, and to not be open requires a large amount of justification. Your classification stamp is only meant to deal with the internal management of records, and does not absolve you of your external responsibilities to enforce the public’s right of access to information. The report itself summarised the non-existent conflict very succinctly when it stated:
“It must be noted that PAIA makes no mention of classified information. The purpose of classification relates to operational and administrative needs i.e. to secure information in movement and use and to ensure that only those authorised to see it and use it, do so.
While this is so, the fact that a document is classified does not exclude it being subject to PAIA. Refusal of access to information must be motivated exclusively in terms of the exemptions stated in PAIA”.(4)
As Minister Sisulu gets it so clearly, I hope she can explain it to the rest of her colleagues. DM
Want to watch Richard Poplak’s audition for SA’s Got Talent?
Who doesn’t? Alas, it was removed by the host site for prolific swearing*... Now that we’ve got your attention, we thought we’d take the opportunity to talk to you about the small matter of book burning and freedom of speech.
Since its release, Pieter-Louis Myburgh’s book Gangster State, has sparked numerous fascist-like behavior from certain members of the public (and the State). There have been planned book burnings, disrupted launches and Ace Magashule has openly called him a liar. And just to say thanks, a R10m defamation suit has been lodged against the author.
Pieter-Louis Myburgh is our latest Scorpio Investigative journalist recruit and we’re not going to let him and his crucial book be silenced. When the Cape Town launch was postponed, Maverick Insider stepped in and relocated it to a secure location so that Pieter-Louis’ revelations could be heard by the public. If we’ve learnt one thing over the past ten years it is this: when anyone tries to infringe on our constitutional rights, we have to fight back. Every day, our journalists are uncovering more details and evidence of State Capture and its various reincarnations. The rot is deep and the threats, like this recent one to freedom of speech, are real. You can support the cause by becoming an Insider and help free the speech that can make a difference.
*No video of Richard Poplak auditioning for SA’s Got Talent actually exists. Unless it does and we don’t know about it please send it through.
The sound of Krakatoa exploding travelled around the earth three times.