The Ten Myths About Myths about the Secrecy Bill
While R2K members were making their way to the NCOP gallery in preparation for today’s vote, we got hold of a copy of a ‘briefing’ note handed out to MPs spelling out “The Ten Myths about the Protection of State Information Bill and the Facts behind them”. There is no acknowledged author, no logo. No sense of whether public funds allocated to Parliament were used to produce it – or worse, whether or not it had been anonymously authored by representatives of the Department of State Security to try sway a vote in Parliament or change the discourse in Parliament. That would be extremely troubling, so we hope not.
Now, why various champions of the Bill used the time for debate to rubbish R2K’s concerns and accuse us of courting media attention and misleading the communities which have driven our campaign, we decided to read this document and debunk it.
A close reading of this document – which had members of R2K’s legal team chuckling in the aisles – show that the document contains several important facts about recent amendments to the Secrecy Bill, but also introduced a few new myths to the debates. Some may even call it propaganda.
***DISCLAIMER: This is only a quick debunking while the Parliamentary debate unfolds, and is by no means exhaustive. For full details of the remaining problems with the Secrecy Bill, see our statement from yesterday. ***
The first “Myth” noted in the document related to claims that the Bill does not contain a public interest defence, claiming that in fact the Bill DOES include a public interest defence
WRONG. This is a blatant misrepresentation of the debate! This fact sheet has confused two different mechanisms: an ‘access’ provision that relates to declassifying information, and a whistleblower defence provision such as a public interest defence.
Calls for a public interest defence have been driven by the fundamental principle that whistleblowers who need to disclose vital information to the public should not be sent to jail. The mechanism referred to in this ‘briefing’ is not a public interest defence – it is what’s called a “public interest override”, which means that officials must consider the ‘public interest’ value of information when someone requests that classified information should be released to the public. However, sometimes these mechanisms fail. As we’ve seen many times, officials sometimes refuse to release information that should undeniably be in the public domain, irrespective of its public interest value. In those instances, a whistleblower may be left with no choice but to release that information directly to the public – and that is where one needs a full public interest defence (still lacking).
(Incidentally, while we were typing this, Minister Cwele himself made this distinction during his speech to the NCOP. So if the Minister acknowledges the difference, why doesn’t this briefing note?)
The second ‘myth’ debunked relates to claims that the Secrecy Bill would override PAIA.
FAIR ENOUGH. As noted in our statement, the most recent amendments scrapped a provision that would have seen the Secrecy Bill trumping our freedom of information law – one of the key demands mace by civil society.
The third ‘myth’ noted in the document is “the Corruption Myth”, responding to concerns that the Secrecy Bill may create an environment in which corruption is harder to combat – the document argues that it would be impossible to use the Bill to hide corruption.
There’s been a bundle written on how restrictions to proper classification are no proper safeguard for those who encounter improperly or deceitfully classified information and need to expose it, but rather let us just point out: one need look no further than Nkandla to see how information that appears to reveal corrupt, improper and embarrassing government practices would be hidden through any means available.
The fourth ‘myth’ is that municipalities will use the Secrecy Bill to hide information.
FAIR ENOUGH. A recent amendment excluded municipalities from ever being given the power to classify information; again, a key demand from civil society. However, we note that nearly 1000 organs of state may still apply to be given the power to classify, from Home Affairs, the Department of Energy, Eskom, Provincial Government, etc etc etc.
The fifth heading is “The Public Opposition Myth”, claiming that overwhelming the public has supported the Bill and in fact came out in numbers at public hearings to welcome the legislation.
WRONG. While we note that several public townhall meetings appeared to have been packed by ‘supporters’ who may have been transported in secret on Parliamentary funds (see here and here), this claim just isn’t borne out by the facts on the ground. Can we have some of whatever you’ve been smoking?
Sixth ‘myth’: the document ‘tackles’ claims that the Bill lacks a public domain defence
This is bizarre. The document calls this a myth but then confirms that, in fact, the Bill does not contain a public domain defence. Unfortunately without a public domain defence, the Bill potentially criminalises ordinary members of the public for accessing information that is already in the public domain.
A summary of concerns around how penalties contained in the Secrecy Bill may inhibit the free flow of information can be found here.
Myth 8: “The SAPS and police statistics myth”
FAIR ENOUGH, it’s true that junior cops would be excluded. But ordinary members of the police don’t release police statistics, so the point is moot. The remaining concern is how middle and upper management may use the Bill, to protect themselves.
Myth 9: The Chapter 9 – “The Bill will limit the role of Chapter 9 institutions”
Myth 10: The Public Safety of Environmental Risk Myth
WRONG. Like Myth 1, this confuses instances under which the state could consider declassifying information through formal channels, and instances where whistleblowers would be protected for going outside those formal channels when they fail to serve the public interest.
So that’s that. The debate in Parliament continues and many inflammatory things have been said. We just hope that when the dust is settled, the following questions will be answered: who authored this document? Who paid for it? Is this a violation of Parliamentary rules? Will they make themselves known and account for the misleading information contained therein?And will the author of this document agree to a public debate on the claims made therein?