If and when the Protection of Information Bill reappears on the agenda, it is important to remember that despite occasional government claims to the contrary, a public interest defense to the collection and disclosure of classified information is very much in line with foreign practice.
This is according to Brigit Rubinstein, a director in the Dispute Resolution practice at Cliffe Dekker Hofmeyr in Cape Town. She says that most states in the developing (democratic) world have laws in place that regulate the classification of information and limit the accessibility and dissemination of information in the interest of State Security.
“There is little debate that some form of similar legislation in South Africa is necessary,” she says. “However, most modern democracies that aspire towards a culture of openness and accountability place an equally high value on the free flow of information where the public interest dictates it”.
Article 3(2) of the Council of European Convention on Access to Official Documents (2009) sets out the public interest as a justification for disclosure of classified information:
“Access to information contained in an official document may be refused if its disclosure would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure”
Rubinstein says the Canadian “Security of Information Act” criminalises the use of information prejudicial to State interests or security but specifically exempts anyone acting in the broader public interest.
“The UK Official Secrets Act doesn’t provide for a public interest defence, but there is a general requirement that the disclosure be “damaging” to constitute a criminal offense. Where corruption or maladministration has been exposed, the State may be hard pressed to contend that the disclosure was “damaging”.
Rubinstein adds, “The initial draft of the Protection of Information Bill contained a number of draconian provisions that were at odds with the Constitution and there is no doubt that significant concessions have been made. However, the Bill in its current form is still unlikely to pass constitutional muster.
“One of the main concerns with the Bill currently is that it creates a reverse onus on whistleblowers or journalists who expose corruption to prove that one of the exceptions listed applies rather than the State having to prove each element of the criminal offense. This conflicts with the constitutional right of an accused to be presumed innocent.”
Brigit Rubinstein is Director of Dispute Resolution practice at Cliffe Dekker Hofmeyr