Analysis: the Protection of Information Bill

The Bill intends repealing the Protection of Information Act 84 of 1982, a piece of apartheid legislation that remains on our statute books.

We support the Bill to the extent that it would introduce a new dispensation that is more consistent with our Constitution, and which would reflect a shift away from apartheid-style secrecy.

The Bill provides a statutory framework aimed at regulating the protection of information and its disclosure.

The means of restricting access or dissemination will be effected through the classification of information into various categories such as confidential, secret” and top secret.

The Bill makes provision for harsh sanctions and criminalises contraventions.

Broad criteria
The Bill provides extremely broad criteria that would enable virtually any information in the hands of the state to be classified and kept secret in the national interest.

This would include, among other things, information that has implications for economic growth, trade and monetary systems, and relating to political and economic relations with international organisations and foreign governments.

The Bill regulates the classification of information associated with commercial contracts entered into by government departments, parastatals and other state entities, including where the state has entered contracts with private entities.

To illustrate our concerns, consider that if this Bill was passed in its current form, relevant commercial contracts and tender processes associated with the 2010 Fifa World Cup could be declared “classified information” in the national interest.

The special pricing arrangements applicable to Eskom’s supply of electricity to aluminium smelters owned by BHP Billiton would also be regulated in terms of this Bill.

A major concern for trade unions relates to the implications for workers, who may be restricted from disclosing information that has been classified in terms of the Bill even if this is in furtherance of their rights or they wish to blow the whistle on irregularities.

This Bill is inconsistent with the objectives of other pieces of legislation, such as the Protected Disclosure Act and the Promotion of Access to Information Act, and may erode the gains made by workers and the poor in gaining access to information.

It would make even harder for whistle-blowers to disclose information on irregularities, corruption and illegalities within government, state-owned enterprises and private companies.

Vuyo Ninzi is a Cosatu legal co-ordinator,

Numsa News No 2 2010