The Ad Hoc Committee on Protection of Information Legislation



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Submission on behalf of the South African History Archive and the

Nelson Mandela Foundation

on
the Protection of Information Bill (B6-2010)

to

the Ad Hoc Committee on Protection of Information Legislation

1 June 2010



Background

The South African History Archive

The South African History Archive (SAHA) is an independent human rights Non-Governmental Organisation (NGO) dedicated to documenting and supporting past and contemporary struggles for justice in South Africa. It is a registered trust, governed by a Board of Trustees that appoints dedicated professionals to achieve its mission. SAHA’s founding mission is to strive to recapture our lost and neglected history and to record history in the making. This informs a focus on documenting the struggles against Apartheid, as well as those that accompany the making of democracy.


In early 2001 SAHA repositioned itself as a human rights archive dedicated to documenting and contributing to continuing struggles for justice in South Africa, with a strong focus on freedom of information. In 2002, SAHA launched its Freedom of Information Programme, and since then has been at the forefront of efforts to utilise the Promotion of Access to Information Act (PAIA), often focusing specifically on issues relating to intelligence, security and other matters that might be deemed sensitive. SAHA is committed to developing civil society access to public and private information through laws that affect the constitutional rights of access to information. (Further information about SAHA’s work with access to information can be found on our website: www.saha.org.za)


The Nelson Mandela Foundation

The Nelson Mandela Foundation Trust (NMF) was established on 6 September 1999 by Notarial Deed of Trust with the Master of the Supreme Court (IT Number 9259/99) and is a registered Public Benefit Organisation (Number 034-681-NPO) with the South African Revenue Services.  


The NMF, through its Centre of Memory and Dialogue, promotes the vision, values and work of its Founder (Mr Nelson Mandela) by convening dialogue around critical social issues, and establishing a world-class archival resource on the life and work of its Founder, while continuing to provide professional support to Mr Mandela.
The NMF has a direct and material interest in legislation governing the management and provision of access to archival records, particularly those documenting the life and work of Nelson Mandela and his close associates.


The Protection of Information Bill 2010

SAHA and the NMF welcome the degree to which the drafters of the Bill have taken into account concerns expressed by stakeholders and the public. In our view the present version of the Bill constitutes a step in the right direction.


We have four remaining areas of concern:
General principles of state information

We believe it to be misguided, and arguably unconstitutional, to allow for all other information principles to be trumped by ‘national security’. We recommend that the wording of section 6(j) be changed to: “paragraphs (a) to (i) are to be balanced against the security of the Republic, in that ...”



Automatic declassification

In the previous version of the Bill, a twenty year automatic declassification applied to classified records irrespective of their location. Now (reading sections 20 and 26 together) such automatic declassification is limited to records which have been transferred to the National Archives.  Given how little ever reaches the National Archives (an estimated 5% of public records), and the often long delays in finalising transfers (currently the National Archives has enormous transfer backlogs), we would argue strongly for this limitation to be dropped. Its impact in practice will be to severely undermine the intentions of the Bill’s drafters.



Automatic disclosure

According to section 27(4), automatic disclosure of declassified information to the public can only take place when that information has been placed into the National Declassification Database. Again we would argue that this is to place the good intentions of the Bill’s drafters at the mercy of bureaucratic inefficiencies. As we pointed out in our previous submission, the National Archives (custodians of the Database) is suffering from acute resource shortages.



Dispute adjudication

SAHA and the NMF remain concerned that the Bill leaves dispute resolution to the Minister. Of course, disputes can be taken on review to the High Court, but this effectively restricts access to information to those who can afford to take the matter through a legal process, which is neither efficient nor expeditious. A similar provision is currently to be found in the Promotion of Access to Information Act, and experience with this Act has clearly demonstrated that the absence of an independent adjudication process has severely hampered the efficacy and utility of the legislation for the vast majority of South Africans.




For further information, please contact:
Catherine Kennedy – South African History Archive, Tel: 011 717 1941 / director@saha.org.za

Verne Harris – Nelson Mandela Foundation, Tel: 011 853 2612/



verne@nelsonmandela.org
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