Posted on November 21, 2011
Much of the media debate around the contentious Protection of State Information Bill, passed by South Africa's National Assembly on Tuesday 22nd November - a day dubbed 'Black Tuesday' by the media - has focussed on the way in which this bill will compromise the right to information and freedom of expression; the draconian penalties that will meted out to 'whistleblowers' who 'leak' classified information and the journalists who dare to make it public and; the ANC's indefensible refusal to make provision for a public-interest defence. We share the concern of many who fear that those who choose to blanket corrupt actions under the cloak of 'state security' may be free to act with impunity. These are grave concerns and civil society has made its voice heard loudly and clearly - albeit to little effect!

But, we worry too about issues that have not made the headlines or inspired citizens to take up their placards and march on parliament. The Archival Platform is concerned with archives and archiving - with the resources that are available to us to think about the past, in the present, for the future. We are concerned with the business of keeping the archive open and keeping information free-flowing and accessible, of creating the spaces in which oppositional voices, histories and narratives can be heard.

We're concerned that the enactment of this Bill may deepen an already worrying culture of opacity - the secrets, taboos, disavowals and lies that hamper memory work. We cannot make sense of the past, or the present, or make decisions about the future when information the records we may need to inform us are is withheld, or sequestered from view.

And, we're concerned that provisions to penalise those who make public classified information may cause officials to err on the side of caution and hold records back just to ensure that they remain on the 'safe side' of the law.

Chapter 9 of the Bill deals specifically with the transfer of records to National Archives and the release of declassified information to the public and is quoted in full below.

Transfer of public records to National Archives

9. 33. (1)The head of an organ of state must review the classification of state information before it is transferred to the National Archives or other archives established by law.
(2) Subject to section 17, at the date on which this Act takes effect, public records, including records marked classified that are transferred to the National Archives or other archives must be declassified in accordance with section 14.
(3) The head of an organ of state that holds classified records that originated in another organ of state must-
(a) notify the originating organ of state before transferring classified records to the National Archives or other archives; and
(b) abide by the reasonable directions of the originating organ of state.
(4) Classified records held by the National Archives or other archives at the commencement of this Act, which have been classified for less than 20 years, are subject to the provisions of this Act.
(5) An organ of state, which transferred classified information to the National Archives or other archives before the commencement of this Act, retains its responsibilities in terms of this Act.

Release of declassified information to public

9. 34. (1) Classified information that is declassified may be made available to the public in accordance with this Act, the Promotion of Access to Information Act and any other law.
(2) Unless ordered by a court, no classified information may be made available to the public until such state information has been declassified.
(3) When an organ of state receives a request for records in its possession that contain state information that was originally classified by another organ of state, it must refer the request and the pertinent records to that other organ of state for processing, and may, after consultation with the other organ of state, inform the requester of the referral.

For the purposes of the Bill, 'archive' means the National Archive, or any archive established in terms of provincial law and includes an archive kept by an organ of state.  In practice then, this definition, and the provisions of the Bill include the records not held in the National Archives but located in the archives of the departments of justice, national intelligence, foreign affairs, etc.

We are disappointed that the progressive provisions for archives and declassification that were included in the 2008 version of the Bill, which sought to counter the legacy of the oppressive used of information classification by the apartheid state have been considerably diluted in the current version despite representations made to the Ad-hoc Committee in this regard.

Chapter 5(17) of the Bill states that, 'In accordance with section 11(2) of the National Archives of South Africa Act, 1966 (Act No.43 of 1996), information may not remain classified for longer than a 20 year period unless the head of the organ of state that classified the state information, certifies to the satisfaction of the Classification Review Panel that the conditions for classification set out in sections 12 and 14 still apply.' In the 2008 version of this Bill a 20 year automatic declassification applied to classified records irrespective of their locations.

As it stands now, it seems that only records already held by the National Archives are eligible for declassification after 20 years, unless the head of the organ of state that classified the information in the first place argues otherwise. Records held in other locations including the archives of government departments and agencies are not subject to this clause and may therefore, in theory, remain classified in perpetuity. In their 2010 submission to the Ad Hoc Portfolio Committee, the Nelson Mandela Centre of Memory suggested that this revision may have been guided by a fear of the consequences of a mass declassification of apartheid-era records, and the assumption that declassified records are automatically placed in the public domain and drew attention to the Promotion of Access to Information Act (PAIA) which provides robust protection to a range of records categories, irrespective of their age or whether they are classified or not and at the same time facilitates access to records which have been rendered unfairly inaccessible. Like many others, we're interested to see what transpired if and when a PAIA application is made to access information secured by this Bill.

We are pleased to see that the Bill acknowledges the role legal mandate of the National Archives and is careful to ensure that this is not unduly compromised.

Chapter 4.9(3) makes it clear that records cannot be destroyed at will by any state department or agency, noting that, The destruction of public records is subject to the National Archives and Records Service of South Africa Act, 1996 (Act No.43 of 1996).

A similar assurance is given in the general provisions of the Bill. Chapter 13(3) spells out the joint responsibilities of the Ministers of State Security and Arts and Culture, in respect of the safe-keeping of public records, 'The Minister, subject to the National Archives and Records Services of South Africa Act, 1996 (Act No. 43 of 1996), and after consultation with the Minister of Arts and Culture, may make regulations regarding the protection, transfer, destruction or alteration of valuable information and must publish the draft regulations for public comment.'

Chapter 13 (7) spells out the intention that this Bill does not compromise the legal mandate of the national Archives, noting that 'No regulation made under subsection (4), may impede or prevent the National Archives or any other archive from preserving and managing public records in terms of the National Archives and Records Service of South Africa Act, 1996 (Act No. 43 of 1996), or other applicable law or ordinance.

In terms of the transitional provisions outlined in Chapter 13 (55) of the Bill, all state departments are compelled to launch a review of their classified records and transfer declassified information to the relevant archive. While we welcome the opening of information we are anxious that the National Archives are not sufficiently resourced or capacitated to deal with a deluge of newly released records.

Impassioned pleas from civil society organisations, human rights activists, the media trade unions, academics, etc opposed to this Bill have not been heeded by our lawmakers and, if it is signed into law, it is likely that the battle will continue into the Constitutional Court. We will be keeping a watchful eye on its progress - it is in all our interests to ensure that the information we need to think about the past, understand the present and make informed and thoughtful decisions about the future is open and accessible.

Jo-Anne Duggan is the director of the Archival Platform

Read the full text of the Protection of State Information Bill online or download a PDF on our news page.