Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
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On December 3, 2014, the High Court of South Africa (Gauteng Local Division) held that the refusal of government authorities to disclose the “National Key Points” (specially designated locations) on the basis of national security under the Promotion of Access to Information Act 2000 (“PAIA”), was unlawful and unconstitutional. The Right2Know campaign and the South African History Archive (“the applicants”) contended that the disclosure of such information was necessary to ensure the transparency and accountability of the government authorities. The applicants also requested the disclosure of bank statements from a special account maintained for security expenditure under the National Key Points Act 1980 (“NKPA”). While accepting this contention and directing the authorities to disclose “National Key Points” within thirty days, the judge reasoned that political office bearers and senior civil servants should not perform their duties under a cloud of suspicion of incompetence or dishonesty.
The Right2Know Campaign and the South African History Archive are civil society organizations whose objectives are to serve the public interest. Both have an interest in advancing constitutional values: the first applicant by promoting transparency, accountability and a free media; the second applicant by the collection and preservation of important historical material that promotes understanding of South African society. M&G Media Limited, a news publisher in South Africa, joined as Amicus Curiae.
On October 4, 2012, the applicants requested that the government disclose the list of ‘National Key Points’ established by the National Key Points Act 1980, pursuant to section 18(1) of the Promotion of Access to Information Act 2000. This was refused on November 16, 2012. A national key point is a place designated by the Minister of Police that appears to be important because its loss or disruption may harm the republic. The object and purpose of the NKPA is to ensure that key points are secured against threats.
The Minister of Police and the Information Officer of the South African Police (“the respondents”) refused to disclose the list of national key points. The respondent justified this denial by arguing that disclosing such information would jeopardize the defense and safety of the republic. He argued that Section 2 of the NKPA suggested that he could keep the list a secret. The respondent also alluded to Section 45(6) of the PAIA, arguing that disclosing the list of national key points would place an undue burden on the public body.
The refusal to disclose the national key points prompted the applicants to file a petition in the High Court. They requested that the High Court declare this refusal unlawful and unconstitutional. The applicants argued that the respondents had no evidence to support their contention in favor of secrecy. They also asserted that under Section 46 of the PAIA, the public interest outweighed the harm that the disclosure could cause.
Justice Roland Sutherland delivered the opinion of the High Court of South Africa, Gauteng Local Division, Johannesburg. The central issue for determination was whether the non-disclosure of “National Key Points” could be sustained on the grounds of national security.
It is important to note that the information that was already in the public knowledge revealed that there were 200 national key points including places privately owned by juristic and by natural persons, and that key points could be categorised as banks, petro-chemical industries, water supply, electricity systems etc [para. 6]. The respondent contended that disclosure of information beyond this would attract “unnecessary attention” and the same information was prone to misuse by “people who seek to hurt the public”. The respondent further cited “security and stability”, and prejudice to the security of the owners as the reasons for non-disclosure. He also argued that “non-disclosure was ‘necessary or expedient’ for the safety of the Republic”. According to the Minister, there were “dark forces” who were out to de-stabilise peace-loving countries, like theirs [para. 7].
The judge rejected the above-mentioned contention on the basis of the following reasons. First, section 2 of NKPA grants power to the Minister to declare any area as a “National Key Point”. While discussing this provision, the judge observed that it confers wide discretion to the Minister as a national key point can be declared merely when “it ‘appears’ to him that the prescribed circumstances exist or he ‘considers’ it necessary or expedient or he ‘considers’ it to be in the public interest”. The judge opined that the definition was wide enough to encompass obscure things and the differentiation between the “safety of the state (Republic)” from “the public interests” left “open a field of concerns without clear limits” [para. 22].
Second, section 10 of the NKPA was considered. The provision gives details regarding the offenses and penalties under the Act, in particular section 10(2)(c) which criminalizes disclosure of any information relating to the security measures applicable at or in respect of any national key point. Herein the judge highlighted that “the section deals expressly with confidentiality of the security measures per se, not the secrecy of the status of the place as a key point. No offense is created to penalise the disclosure of the identity of a place as having been declared a national key point. Regulations made under section 11 of the NKPA, despite creating more offenses, also, do not address the idea that the status of the key points be a secret” [para. 26].
Third, section 10 also makes it an offense to commit an act which would be an offense under the Official Secrets Act, 1956, however, the judge noted that the reference to this Act was obsolete since the statute had been repealed by the Protection of Information Act 84 of 1982. The judge emphasized that “if the Protection of Information Act is accepted as the successor statute, section 14(a) requires all ‘prohibited places’ to be gazetted, and accordingly, their identity to be published. The only offenses relating to such a prohibited place is trespass (Section 2) and obstructing a guard (Section 6). Nothing in this Statute obliquely points to secrecy about the status of ‘prohibited place’ still less a key point” [para. 28].
Fourth, as per the judge, the respondent failed to show that individuals would be harmed by the disclosure of the said information [para. 30]. Herein, the respondent had argued that it would lead to disclosure of the personal information of natural persons or individuals, which is prohibited under section 34 of PAIA. However, the judge called the “alleged anxiety” as “misplaced” since the applicants were not interested in addresses per se, and also the respondent had failed to mention the supposed plight of the individuals in his affidavit [para. 32]. Similarly, the judge noted that the respondent failed to prove his “bald allegations” that disclosure would affect defense, security and international relations interests, prohibited under section 41 of PAIA. The respondent referred to bombing of the mall in Nairobi by Somali extremists irked by Kenya’s involvement in 22 security operations in the Horn of Africa. However, the judge called it an “ill chosen example” since comparison of a shopping centre being exposed to politically inspired violence where the public congregated en masse with a key point was inappropriate [para. 35].
Fifth, the judge noted that there were at least 23 examples where the government officials had already “furnished details of many key points to the Parliament for the whole world to know, including, presumably, those dark forces that lurk in wait to disturb our tranquility” such as the very public announcement that Nkandla (private home of President Zuma) was a key point. Other examples included a report dated August 5, 2008 where the arrest of homeless people sleeping outside a Department of Justice Building in Cape Town was justified on the grounds of it being a key point, and a report dated November 15, 2012 explaining the arrest of protesters outside the Rustenburg Magistrates’ Courts on the grounds that the court was a national key point [para. 37].
The judge emphasized that there was a “serious flaw” in the efforts of the respondent to justify that the objective of the NKPA included keeping secret the status of places as key points. The judge stated that “all the respondent offered were platitudes and a recitation of the provisions of the statutes” and there was failure to establish that the disclosure “could reasonably be expected to endanger” anyone, or was “likely to prejudice or impair” any security measure of a building or a person under section 38 of PAIA, or that the disclosure “could reasonably be expected to cause prejudice” to the state’s security under section 41 of PAIA [para. 36].
The judge also highlighted the issue of abuse of power in the declaration of places as key points. Many questions were raised, including whether the criteria for declaration of key points was fulfilled under section 2 of the NKPA; whether the key points were being properly secured and if the lack of security threatened the public interest; whether an account of public expenditure on security at key points was being maintained; and whether the provisions of the Public Finance Management Act 1 of 1999 (PFMA) were breached [para. 43]. The judge emphasized that, “it is wholly unsatisfactory that political office bearers and senior civil servants should have to perform their duties under a cloud of suspicion of incompetence or dishonesty. Transparency about all the facts is necessary to either repair the rot, if any exists, or dispel the lack of confidence which the citizenry will continue to nurse if the facts are concealed” [para. 45].
Lastly, the Amicus argued that the disclosure of all key points was necessary to save the constitutionality of section 10 of the NKPA since the provision and the related regulations laid down criminal sanctions for various acts related to national key points; however, if the citizenry did not know the places that were key points, then they could not be expected to avoid transgressions. Herein, the judge accepted the contentions put forth by the Amicus and observed that “one of the central tenets underlying the common-law understanding of legality is that of foreseeability – that the rules of criminal law are clear and precise so that an individual may easily behave in a manner that avoids committing crimes”. The judge further emphasized that non-disclosure would lead to circumstances where the conduct of an act itself might not be unlawful but the act might become a crime because the place where it happened to occur enjoyed a special status and that too when the person was ignorant of the special status of the place. Finally, the judge held that “the patent inability of the ignorant populace to know how to avoid committing such an offense is problematic for our constitutional values. Disclosure cannot be avoided; to have it any other way, is to embrace the ethos of the Star Chamber” [para. 52].
As a result, the High Court decided that refusing the applicants’ request for the information under the PAIA was unlawful and unconstitutional. It ordered the respondents to bear the costs of the applicants and the Amicus Curiae, along with supplying a list of “National Key Points” to the applicants within thirty days [paras. 53-57].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By upholding that the National Key Points Act, 1980 deals only with the confidentiality of the security measures and not with the secrecy of the status of the place as a key point, the High Court expanded freedom of expression. More importantly, the Court did not deem justifiable the national security argument brought forward by the Minister of Police as that argument was too speculative; it lacked evidence and detail. Furthermore, under the PAIA, public interest prevailed over an unsubstantiated argument based on national security. The High Court determined that the public had a right to know which places were given a special status and how public expenditure was handled under the NKPA. It also reiterated that the party who holds the information must satisfy the burden of proof codified in the PAIA.
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Case significance refers to how influential the case is and how its significance changes over time.
The High Court reiterated that, under the PAIA, the party that refuses to grant access to information must demonstrate an actual risk to national security if information is to be suppressed. It would not be enough to simply argue on the basis of potentialities that lacked evidence and detail.
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