Protection of Information Bill published
12/03/2010

The Protection of Information Bill, 2009 (“the Bill”) was published in the Government Gazette on 5 March 2010 for general comment. The Minister of State Security intends to introduce the Bill in the National Assembly in due course. If it comes into effect, the Bill will replace the Protection of Information Act, 1982.

This Bill should not be confused with the Protection of Personal Information Bill, 2009 which was published in the Government Gazette during August 2009. While the Protection of Personal Information Bill deals with the protection of personal information of juristic persons and individuals (“data protection”), this Bill is intended to regulate the protection of information belonging to the State as well as matters relating to espionage and hostile activities.

The Bill broadly distinguishes between valuable information and information which must be protected from unlawful disclosure.

Valuable information is information which will be identified in terms of prescribed procedures or policies as information that should be protected from destruction and loss. Such information must be handled with due care and only in accordance with authorised procedures.

Information which requires protection against disclosure is divided further into two categories: sensitive information and commercial information. Sensitive information is information which is in the national interest of the Republic. The national interest is defined in very broad terms.

On the other hand, commercial information constitutes information which has been given to the State by an organisation, firm or individual on request or invitation or in terms of a statutory or regulatory provision and which would prejudice the commercial, business, financial or industrial interest of the organ of State, the organisation or individual if it was disclosed. It also includes information that could endanger the national interest of the Republic. The protection of such commercial information in terms of the Bill will be of particular significance to enterprises doing business with the State since it will, in certain instances, give broader protection to information furnished by enterprises to the State.

The Bill regulates the classification and de-classification of information. It also deals with the release of de-classified information to the public as well as access to classified information.

The Bill creates a wide range of offences, including offences relating to espionage, hostile activities, harbouring or concealing of persons and the interception of or interference with classified information. It further deals with offences relating to the disclosure of classified information, the failure to report possession of classified information, the provision of false information to national intelligence structures and the destruction or alteration of valuable information.

The Bill contains a separate chapter in respect of the protection of State information by the courts. It provides for a procedure in terms of which courts must handle classified information which form part of court records.
Danie Strachan
Senior Associate
danie-s@adamsadams.co.za