TAG President Jacob Zuma -- please tie into copy

TODAY and tomorrow a barrage of opposition will be directed by civil society organisations at meetings in Parliament against an amended version of the Protection of Information Bill.

Their complaints will be heard at public hearings before an adhoccommittee set up to consider the legislation.

The various organisations, which include the South African National Editors Forum (Sanef) and the Freedom of Expression Institute, have described the draft legislation as seriously inhibiting press freedom and the public's right to know as envisaged in the constitution.

The purpose of the bill is to replace the apartheid-era bill of the same name, which deals with the mechanisms for classifying the country's official secrets.

The first version came before Parliament last year but was withdrawn after strenuous opposition, with the committee stating at the time that it intended to introduce changes.

The new version of the bill tightens officials' grip on the release of official information and introduces clamps on media freedom, contrary to the constitutional ethos urging transparency and open governance.

The changes to the bill do not embrace the criticisms, and in fact do the opposite. They have removed some of the softening features in the bill and, worse, extended the power of politicians (such as the m inister of s tate s ecurity) over information and its classification.

Among the softening clauses that have been withdrawn is one which states: "State information is not automatically protected against disclosure" and another which reads: "State information should be made available to the public unless there are good reasons to withhold it". The original bill required classification officials to place declassification instructions on classified information, but this has now been omitted. Also removed is a requirement that officials classifying information must provide written justification for their decisions. The original bill cautions that classification is "an exceptional measure and should be used sparingly". "Sparingly'' has been removed.

All these changes remove the cautionary features which would cause officials engaged in classifying information to think carefully before declaring certain information secret.

The bill now overemphasises the need to classify information. It also now has the potential for classification to be abused, because the means for senior officials to exercise oversight have been removed.

A change that gives the minister greater powers is particularly worrying. It introduces political decision-making to an activity that should be carried out by officials acting on proper and factual criteria.

There is widespread complaint that the bill relates to extremely broad descriptions of material that can be classified. The bill focuses on the "national interest'', stating that classification relates to information that may cause "significant and demonstrable harm" to the country's "national interests". Then follows a definition of national interest that is extremely wide. It includes what is described as the "public good'' and extends to commercial information, the economy, trade and the commercial operations of state entities, including parastatals.

This has the potential to conceal information that raises legitimate public concern. It means classification can prevent the investigation of corruption in government commercial enterprises or those associated with the government.

These prohibitions could criminalise journalistic activity and render journalists susceptible to prosecution.

Of particular concern is the added power given to the m inister of s tate s ecurity. In addition to "in-doubt'' decisions now falling under the m inister, a new section has been added to the bill which gives the m inister wide- ranging powers to classify and declassify information.

It imposes conditions relating to the dangers of disclosure and the national interest.

The m inister has to take into consideration all aspects of the national interest, the survival and security of the state and the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations together with the consideration of the benefits of secrecy and the aspects of information protection and disclosure. This gives the m inister excessive powers which virtually transcend all other aspects in the bill.

It will not take long before the title of chief protector of information is bestowed on him - and that will quickly be changed to SA's chief censor.

Another aspect of the b ill which is cause for alarm is listed under national interest.

It states that the details of criminal investigations are included in the items that can be protected from disclosure. This relates to disclosure of information of "an intelligence or law enforcement investigative method". This could easily open up the possibility of maintaining secrecy over abusive investigative methods.

A major deficiency in the bill is the lack of consideration for information disclosure in the public interest, and, the need for a public interest defence to be considered, which lawyers believe is an essential element that is lacking. The penalties proposed in the bill are punitive, with a maximum of 25 years and minimum of three to 15 years.

The dangers for journalists in particular are very real, but the eventual victim of this bill will be the public because of the restrictions it will place on the disclosure of information.

More pertinently for journalists are the dangers of possessing documentation - sent to them without their knowledge - which is classified. Mere possession carries extreme penalties. These prohibitions effectively restrict journalists and other investigators from exposing corruption and abuses of power that are criminal in nature.

But underlying all aspects of the bill is another dangerous clause which enables the authorities to maintain secrecy about whether a classified document does or does not exist.

An official need not confirm or deny its existence.

- Louw is deputy chairman of the Sanef media freedom committee and editor of a current affairs newsletter, Southern Africa Report.