Info bill appeal process 'flawed'

2011-08-31 18:00

Cape Town - The process set out in the protection of information bill on appealing a government refusal to declassify information is confusing and unconstitutional, the Open Democracy Advice Centre said on Wednesday.

The latest draft of the bill creates a conflict of interest by stipulating that the minister of state security has to rule on a refusal by a state organ to release information, ODAC's Alison Tilley said.

The timeframe of 90 days for the minister to mull an appeal is also overly long and at odds with the deadline of 30 days laid down in the Promotion of Access to Information Act.

The draft state secrets act says a request for declassification should be directed at the head of the organ of state that classified the information.

Timeframe

He gets 90 days to decide whether to declassify it. If he refuses, the requester can then appeal to the minister, who again has 90 days to decide whether to overrule the refusal.

ODAC pointed out that in practice the state security minister will probably decide both the initial request and the appeal because classification is the domain of intelligence agents.

"The minister gets half a year to decide on the release of information his agency has already decided to classify - he should be able to look at their reasons and see if circumstances have changed, or the rights of the requester outweigh any concerns surrounding release relatively quickly.

"Why does the minister need so long? It arguably points to material being classified without reasons being noted at the time, thus making it more difficult to declassify. Thirty days would be more reasonable, and in line with PAIA norms."

Tilley said civil rights groups were disappointed that lawmakers had rejected calls for an independent authority to handle appeals.

The ANC ruled out proposals for a judge to be given the task, arguing that it would contravene the separation of powers.

"The key civil society demand for an independent review body dealing with declassification for access to information purposes has not been met."

Though the act provides for a classification review panel, its duties do not include requests for declassification. Instead it deals with status reviews.

Fundamental flaw

The contentious bill is in its last days of drafting. The ANC wants to finalise it by Friday and put it to the vote in the National Assembly, where it holds an overwhelming majority, within the next two weeks.

The initial draft of the legislation was widely deemed a draconian onslaught on media freedom. The ruling party has made significant concessions in recent weeks to restrict the application of the legislation, and hence the power to classify.

But opposition MPs, activists and academics say the bill retains a fundamental flaw in that it fails to protect whistleblowers and journalists who publish state secrets to expose wrongdoing from prosecution.

Tilley said the drafting committee now had "hours rather than days" to resolve remaining problems.

"We are going to have legislation which is confusing and unconstitutional," she said.

- SAPA