Proposed Secrecy Bill will have substantial and negative effect on PAIA

The PAIA Civil Society Network (PAIA CSN) recently submitted its view of the effect of the pending Protection of State Information Bill (Secrecy Bill) on the Promotion of Access to Information Act (PAIA) to the National Parliament and the NEC.

A similar submission was released via a popular document designed for public consumption. In welcoming the decision to withdraw the Secrecy Bill for further consultation, the PAIA CSN criticized the effect the Bill would have on PAIA, as well as the failure to consider challenges experienced with implementing the Act as it currently exists.

One of the primary concerns of the Network is that the Secrecy Bill will override PAIA. Currently, PAIA contains a provision that excludes the application of any other legislation that would seek to restrict the disclosure of information that is inconsistent with the Act. The Secrecy Bill will reverse that position.

If the Secrecy Bill is passed, a back door exception to PAIA would be created that would allow the government to refuse access to information just because they had marked it classified. Further, if the material is released prior to its declassification, the people that disclose and receive the information could face prison sentences.

The Secrecy Bill also extends the time permitted to provide a response to a request for classified information. Under the Bill government must decide whether information can be declassified before it is provided to a requester. This decision must be made within a "reasonable" period of time, but no guidance as to what is meant by reasonable is provided.

This is inconsistent with PAIA's current 30 day limit to provide information. Given that the freedom of information system in South Africa is already fraught with delay, this consequence of the Secrecy Bill is unacceptable.

Should the Secrecy Bill pass in its current form, it will represent an erosion of the constitutionally guaranteed right of access to information. Accordingly, the Bill must be aligned with PAIA, particularly in respect of the the grounds for refusing access to information and timelines.

Furthermore, the government should use this opportunity to review PAIA to ensure that the provisions included in the Bill do not represent the same processes that have hindered the effective implementation of freedom of information law in South Africa to date.