"Truth Recovery or McCarthyism Revisited": An evaluation of the Stasi Records Act of 1991 with reference to the South African experience

Simpson, G. (1994). "Truth Recovery or McCarthyism Revisited": An evaluation of the Stasi Records Act of 1991 with reference to the South African experience. Research report written for the Centre for the Study of Violence and Reconciliation, February.

 

Research report written for the Centre for the Study of Violence and Reconciliation, February 1994.

Graeme Simpson is a founder and former Executive Director of the Centre for the Study of Violence and Reconciliation.

Introduction

It is common cause amongst the range of authors on the subject of "public access to governmental information" – whether in the Australian, Canadian, British or American contexts – that such access is critical to the processes of democratic rule. As a vital vehicle for popular scrutiny of those in power, access to the records of government agencies is regarded as fundamental, not only to effective administrative law review, but to democracy itself. In this context, Baxter, quotes US Judge Louis Brandeis:

Sunlight is said to be the best of disinfectants; electric light the best policeman.¹

Baxter, in keeping with the prevailing perspective in the academic literature, clearly acknowledges that totally free access to information is neither possible nor desirable. He highlights the potential dangers as being compromises to state security and to "delicate" economic policy, as well as to the public interest in sustaining confidentiality, preventing the gaining of unfair economic advantages and limitation of the invasion of rights to privacy. Nonetheless, he asserts that:

The long-term advantages of open government nearly always outweigh the apparent but short-term gains of secrecy.²

This inherent tension generates a need to strike a balance between the competing public interests in access to information for the sake of transparency of government on one hand, and public interests in privacy, state security and fair competition on the other. This means that in jurisdictions where Freedom of Information Acts (FOIA) exist, despite the implicit rights of access which they generate, much information is exempted, whilst other records are only made available to people who have a specific and legitimate interest. In this manner, Freedom of Information Acts, along with legislation such as the Privacy Act, the Sunshine Act and the Federal Advisory Committee Act³ in the US context, ostensibly seek to sustain the balance between these competing public interests. In fact, it will be argued below, they are frequently in direct conflict.

In the South African context, there is an absence of any comparable legislation which empowers citizens in this regard. On the contrary, the myriad of existing legislative measures which actively preserve secrecy and governmental privilege, have had the effect of fostering the kinds of covert activities which breed widespread corruption and abuse of power.⁴ In no context has this been more evident than in the spheres of intelligence gathering, law enforcement (in the historical context of criminalised political activity) and activities ostensibly pursuant to state security. The pervasive ambit of the secrecy clauses within existing "security legislation" has fostered an organisational culture of covert activity within state institutions which will continue to plague any future democratic dispensation which has the misfortune to inherit a civil service and state security establishment which, at best, is likely to be passively resistant and, at worst, actively hostile to new democratisation initiatives.

In the South African context, politicians and administrative lawyers alike, ignore the resilience and independent dynamic of traditional forms of civil administration, particularly in the politically motivated realm of the "secureaucrats", at their peril. Indeed, the growing concern (in the course of the transitional process) with the need to render the activities and internal functioning of policing and other security establishment institutions "transparent", suggests the necessary awareness on the part of the politicians. Whether administrative lawyers are rising to the occasion remains to be seen.

Pregnant with significance in this regard, is the fact that each of the spheres of bureaucratic control identified here, potentially lie within the ambit of the various exemptions to the right of access to government information under the US, Australian, Canadian and proposed British FOIA's.⁵ This poses a central challenge to administrative law planners who are considering the wholesale importation of one of these FOI Acts in order to remedy the lack of access to information and as a mechanism for securing the governmental accountability so essential to democracy – whether representative or participative.⁶

This is but one dimension of the challenge which confronts administrative law mechanisms in the course of the transition process in South Africa. The specific nature of this transition process, with its concerns for redress in respect of the repressive legacy of apartheid, confronts administrative law planners with a number of additional challenges. One immediate concern is elicited by the nature of the negotiation process itself, in particular, the status of bi-lateral or even multi-lateral negotiated agreements which impact fundamentally on the entire South African population, but which have not only been notoriously inaccessible to them, but have been brokered by political organisations that have yet to demonstrate the extent of their popular support within the democratic process.

It is one such agreement which indirectly generates the central focus of this paper: that being, the negotiated blanket amnesty in respect of human rights abuses during the apartheid era, without any parallel obligation to disclose the nature of the "crimes" perpetrated. Whilst clearly this was an agreement which was critical to driving the negotiation process forward, its implications for the longer-term prospects of national reconciliation are arguably extremely grave. In particular, for the victims of these abuses of power, on whichever side of the political spectrum they may reside, the implication is that they may never have access to the information essential to their rehabilitation. The prospect is that there will be no public or private acknowledgement of their past, let alone any capacity for redress at law. One possible consequence of this is that, in the absence of any such public acknowledgement, coupled to the impossibility of restitution through the law, widespread resentment is likely to manifest itself in informal retribution at both an individual and a collective level, resulting in escalating rather than de-escalating violence under the new democratic dispensation.

In this context, the whole question of access to information, without being unduly politicised, has a central pro-active and remedial role. This may take a number of forms. In post-World War II Germany, the vehicle was highly public criminal prosecutions in the form of the Nuremburg Trials. In more sensitive negotiated transitions such as in Argentina and in Chile, the mechanism which accompanied the granting of amnesties was a judicial "Truth Commission" which sought to uncover the past without jeopardising the tenuous negotiated truce through the threat of prosecutions.⁷ However, none of these mechanisms compare with the magnitude of the social and administrative experiment in the new "unified" Germany after the collapse of the Berlin Wall. In this instance, the vehicle has been the granting of extensive rights of public access to the records of the former State Security Service – the Stasi Archives.

It is with reference to this latter German experience, that this paper will examine the fraught issue of access to the records of intelligence, security and law enforcement agencies. The dilemmas which this topic poses are at the cutting edge of the tensions between the rights of access to information and those of privacy. As such, the discussion which follows will also hopefully shed some light on the debate within the American literature over the relationship of the Privacy Act to the FOIA. Furthermore, in the South African context, considering the legacy of statutory secrecy provisions in the name of state security and law enforcement, this topic poses key questions in respect of the terms in which exemptions to rights of access are defined. Some of these issues will be more directly addressed in the concluding section of this paper.

The Stasi Records Act of 1991

In order to draw adequate comparisons from the German experience after unification, some of the objective conditions must be mapped out so as to properly understand the context within which the Stasi Records Act was passed, as well as some of the purposes of the Act. The Act was the product of a particular process of "transition" in the new Germany which, although it has been presented historically as a process of "unification", was, in many respects, more akin to a "conquest" of the former German Democratic Republic (GDR) by West Germany. This is significant in that no "deals" comparable to those in the South African and Latin American contexts had to be struck. The process is quaintly referred to as "the peaceful revolution" by the Stasi Records Authority,⁸ but the point is that in the process of the collapse of East German communism, through popular action, the entire Stasi archive was effectively "captured" before it could be destroyed.⁹ This action was an indicator of the oppressive centrality of the state security service within the popular consciousness, and was allegedly sparked by rumours that thousands of personal files were being destroyed.

It is alleged that the Stasi employed as many as 110 000 full-time employees, not to mention the countless "informal employees" (informers) referred to by the Act.¹⁰ It is also stated in the Brochure of the Federal Commissioner for the Stasi records, that the Stasi was:

… not an "ordinary" secret service, but was one which intervened in the lives of countless numbers of persons, influenced professional success or failure, systematically exploited human weakness, and stopped at nothing, not even at the use of the most intimate information …¹¹

The result was an enormous collection of detailed and often intimate data affecting millions of former GDR citizens, as well as many non-GDR "data-subjects".¹²

By September 1993 it was estimated that the 3 406 employees specifically employed for the purpose of organising and processing the Stasi legacy (within fourteen branches under the Federal Authority), had successfully reconstructed approximately 70% of the files in the Stasi Archive. All of this was done in order to service the objectives of the Stasi Records Act as set out in S 1:

The Act regulates the custody, preparation, administration and use of the records of the Ministry for State Security of the former German Democratic Republic (GDR) and its preceding and succeeding organizations (state security service) in order to:

1. facilitate individual access to personal data which the state security service has stored regarding him, so that he can clarify what influence the state security service has had on his personal destiny;
2. protect the individual from impairment of his right to privacy being caused by use of the personal data stored by the state security service;
3. ensure and promote the historical, political, and juridical reappraisal of the activities of the state security service;
4. provide public and private bodies with access to the information required to achieve the purposes stated in this act.¹³

By March 1993, just fifteen months after the Act was passed, the Authority had received more than 600 000 applications to inspect records, and approximately 1 250 000 applications for investigations – in total more than 1 850 000 requests.¹⁴

In terms of S 1, the act specifically seeks to provide access to the Stasi records in respect not only of individuals about whom the information revolves, but also in respect of public and private bodies which have an interest in access, as well as to individuals concerned with political and historical reappraisal, including members of the press and broadcasting sectors.¹⁵ The full implications of the Act can only be appreciated if each of these categories are examined in some detail.

Individual Rights

S 3 of the Act provides a prior right to individuals to enquire of the Federal Commissioner whether there exist records which contain personal data regarding them. This entitlement ensures that access is not denied by virtue of a lack of knowledge of the precise location or content of personal data. Once it has been established that such personal data does exist, the section goes on to extend the right to inspect the records and to be provided with the records as directed by other sections of the Act. Furthermore, S 3(2) extends to individuals the right to use the information and records obtained as provided by general law. This means that such information may be used in pursuit of criminal prosecutions or delictual actions. However, S 3(3) does impose limits on the access to – and use of – information gleaned, in that it is "not admissible to impair the legitimate interests of other individuals by disclosing information, permitting inspection of records or providing records." In this manner the privacy rights of third parties are explicitly protected, although this is subject to the establishment of a "legitimate interest" on the part of an allegedly affected third party.

In detailing the specific use to which state security service records may be put by individuals, the Act distinguishes between: data-subjects; third parties; and state security service employees and beneficiaries.¹⁶ These distinctions are important in regulating not only the use to which information may be put, but they also shape the policy of the Act in respect of access to – and correction or erasure of – personal information contained in the records. The Act is clearly more sensitive to the privacy rights of data-subjects and third parties than it is to the former Stasi employees or "beneficiaries". Thus, S 12 stipulates that where data contains information on data-subjects or parties other than the applicant, inspection of the records will only be allowed with the consent of the affected parties, or if the records have been "depersonalised" through erasures etc.¹⁷ By contrast, the Act provides that the correct names of informers or full-time employees who gathered or supplied the information on the data-subject, will be provided to the latter on request:

The interest of employees and informers in keeping their names a secret shall not rule out disclosure of their names.¹⁸

Furthermore, S 15 of the Act allows data-subjects and third parties to request the depersonalisation of their files through erasure of personal data,¹⁹ provided that:

1. there are not other affected parties who have an interest in the information for the purposes of evidence;
2. that the information is not necessary for research related to "political and historical reappraisal"; and
3. if no access request is pending from a competent body. By contrast, although former Stasi employees and informers do have rights of access to their own files, this remains subject to the privacy rights of the data-subjects and cannot result in the depersonalisation of the employee's or informer's files.²⁰

Finally, although data-subjects are not obliged to provide reasons for their request of access, any request for urgent access must be motivated – and the Act specifically notes some of the requirements which would satisfy the request for priority treatment. These urgency requirements are instructive in that they give a good indication of some of the priority concerns of the Act. They include requests for the purposes of "rehabilitation", compensation, averting infringement of privacy rights, or exonerating the data subject from the accusation of co-operation with the state security service.²¹

From the above it is evident that in attempting to strike a balance between the competing public interests in access to information contained in the Stasi archives on one hand, and interests in privacy on the other, the latter rights are clearly subject to policy concerns in respect of the former. Rights to privacy simply don't extend to those who are effectively defined by the Act as the objects of scrutiny – the former employees and informers of the Stasi establishment. This suggestion is even more clearly borne out by the discussion which follows on rights of access by public or private bodies.

Access to and Use of Records by Public and Private Bodies

S 4 of the Stasi Records Act sets out the general rules for admissibility of use and access to the documentation by public and private bodies and the precise rights are documented in S 19 – S 29 of the Act. The use to which such information may be put is, like the use of information by individuals, limited by the specific prohibitions incorporated under S 5 of the Act. This latter section stipulates that:

It is inadmissible to use personal data to the detriment of data subjects or third parties if it was collected about them in the course of deliberate, including secret, information-gathering or spying on these persons.²²

Public and private bodies are also prohibited from using accessed records – as are individuals – for a limited time period, if the use of such records could jeopardise the carrying out of a criminal prosecution. However, this does not apply if it would "unreasonably impair individuals in obtaining their rights", in which case the use of the records should occur in agreement with the relevant public prosecutor or with the court.²³

The Act also imposes on public and private bodies the reciprocal obligation to relinquish all relevant records in their possession to the office of the Federal Commissioner for the Stasi records – in the case of private bodies, unless they can demonstrate proof of ownership of such records.²⁴ More striking, is the fact that the Federal Commissioner for the Stasi records is specifically entitled to records of the German Socialist Unity Party and some other organisations, in as much as they relate to activities of the state security service.²⁵ This is particularly significant as it clearly contravenes the "privacy" rights of the Party in pursuit of the supposedly greater social interest in uncovering the past activities of the former GDR security establishment. It is clauses such as S 10 which consequently raise the suspicion that the Act may in effect sanction an "anti-communist witch-hunt" – as much as it is servicing the public interest in allowing the society to deal with its past. These concerns are to some extent reinforced when examining the more detailed and pervasive rights of public and private bodies to use Stasi records which they have accessed.

Generally, direct access to the records for these bodies is more limited than it is for data-subjects, however, public and private bodies can request disclosure of information if this is for an "admissible purpose" and the records are, in the opinion of the Federal Commissioner, necessary for the stated purpose.²⁶ Rights of inspection of the records are only permitted where declarations by the Federal Commissioner's office are not sufficient.²⁷ It would therefore appear that access by public and private bodies is narrowed by the requirement that they must state and show an "admissible purpose" in seeking access to the files, whereas this is not a requirement for individual data-subjects and affected third parties. However, the definitions of what constitutes an "admissible purpose" invites further scrutiny²⁸ and, because of the magnitude of the implications, will be documented in detail below.

S 20(1) lists ten broad categories of admissible purposes, including detailed descriptions under some of the categories. The first five categories include the following: rehabilitation and compensation claims; protection of privacy; clarification of the fate of missing persons and of unexplained deaths; cessation or suspension of pension payments; and clarification, taking custody, and safekeeping of assets of the former GDR as part of economic reconstruction. However, the most controversial "admissible purposes" appear to be those contained in S 20(1)(6) and S 20(1)(7), both of which have fundamental implications for the nature of the reconciliation process as envisaged by the Act, as well as for limitations on privacy rights implied in it.

S 20(1)(6) identifies as an admissible purpose for which public and private bodies may use and gain access to the Stasi records:

Investigations regarding the following persons … in order to establish if they were employed as full-time employees or as unofficial informers of the state security service, unless the person being investigated was not at least 18 years old at the time in which the activities occurred:

1. Members of the Federal Government or of a Land [State] Government as well as other public-law officials.
2. Representatives and members of municipal representative bodies …
3. Persons in Federal or Land public service, including municipalities and associations of municipalities, supranational and international organisations, of which the Republic of Germany is a member, as well as persons employed or who are to continue to be employed by the churches.
4. Persons who are to continue practising the profession of notary public or attorney.
5. – Members of the managing board, managing directors, executives, or managers in concerns of a legal entity – persons who have been chosen by law, statute, or social contract to represent the majority, managing directors, executives, or managers in concerns of a majority-ruled organisation.
6. security clearance checks of persons – who are entrusted with, have access to, or could acquire access to facts, objects, or knowledge which must be kept secret in the public interest – who are employed or are to be employed in security-sensitive areas of installations of vital importance or of importance to defence.²⁹

As if the list under S 20(1)(6) was not sufficient, S 20(1)(7) added as an admissible purpose for the use of Stasi records, similar investigations – with their consent – into the following additional list of persons:

1. Political party executives down to district level;
2. Persons who serve as jury members;
3. Persons who hold honorary church offices;
4. Persons who fill national or Land-level executive positions in associations;
5. Members of workers' councils
6. Persons who in all these cases are applying for public office, for a position, for a professional licence or for employment.³⁰

Furthermore, in respect of many of the categories of persons who could be investigated on the request of public and private bodies in terms of S 20(1)(6) and S 20(1)(7), S 27 and S 28 added that the Federal Commissioner could also submit unsolicited reports to these bodies if, in the course of his duties, he discovers relevant information which, had it been requested, he would have had to supply.

The only additional limitations on the use of information by public bodies are those contained in S 29 which stipulates that information which is supplied on request, can only be used for the legitimate purposes for which it was requested³¹ and S 30 which stipulates that where the Federal Commissioner communicates personal data to a public or private body, he must notify the subject of the data of the communication and the type of information provided.³²

The magnitude of the "admissible purpose" definitions in allowing for the investigation of such a wide range of public officials, is explained as essential to the process of "purifying" the civil administration of the new unified Germany.³³ Whilst this enterprise may render understandable the inclusion of rights to investigate relevant persons within the "admissible purposes" definition, it cannot begin to explain the wide ambit of those thereby liable to investigation. The net is clearly thrown widely enough to catch members of the legal profession, church employees, business executives or managers, party politicians, members of workers' councils, etc. Even more exposing, are the extraordinary rights of the Federal Commissioner under S 10, to the records of the German Socialist Unity Party.

It is not the implicit subversion of the very rights of privacy which the Stasi Records Act portends to protect which is disturbing about the relatively wide access granted to public and private bodies. Rather, it is the detailed documentation of specific kinds of person who are open game for effective public scrutiny in regard to their past activities. When this is added to the fact that judicial review of the Federal Commissioner's decisions is available only when request for information are refused,³⁴ one is left wondering precisely where the national rehabilitation process ends – and where the administratively sanctioned purge begins.

Use of the Records for "Political and Historical Reappraisal" and Media Access

Some of the concerns expressed above are carried through in the terms of the access granted to political and historical researchers as well as to the press and broadcasting sectors.³⁵ The Act does limit this kind of access to documents which contain no personal data or to data which has been depersonalised. Exceptions to this rule are made where the records contain personal information about former Stasi employees. Similarly, such information access is allowed in respect of contemporary historical personages and political office-holders or public law officials who are in office – unless they are themselves data subjects or third parties.³⁶ One further limitation imposed by the Act is that no personal data may be published without the consent of the affected person.

South Africa – The First Volley

Before evaluating the German experiment in the South African context, it is worth briefly examining one recent local development involving the demand for private access to classified records at the disposal of the National Intelligence Service (NIS). The matter was that of Currin v The State President of the RSA, The Minister of National Education, The Director of Archives and The Director General of the NIS.³⁷ Although the case did not actually come before the court, it nonetheless represents the first volley fired in the South African battle for individual access to government held files concerning the applicant.

In fact the application was neither for access nor disclosure of such records. Rather, it was to be brought under the Archives Act, No. 6 of 1962, in response to press reports that classified or confidential documents were being destroyed by various government departments, pursuant to an instruction to do so from the office of the Security Secretariat of the NIS.³⁸ It was alleged by the applicant that the destruction of such records was based on a legal opinion obtained by the NIS to the effect that "classified intelligence material" by its nature did not fall under the Archives Act and therefore did not have to be retained and could be destroyed because it was supposedly no longer of any use.³⁹ Indeed, the relevant memo from the head of the Security Secretariat went further in urging that this be done as speedily as possible:

Na gesprek met die ISSK, word aanbeveel dat staatsdepartemente sorg moet dra dat alle geklassifiseerde dokumente wat nie deur die betrokke departement geskep is nie, so spoedig moontlik vernietig word behalwe in gevalle waar die betrokke dokument dien ter magtiging van 'n finansiele uitgawe of ander optrede … Dokumente wat nou ter sprake kom, is onder andere afskrifte van dokumentasie wat deur die destydse veiligheidsbestuurstelsel beskikbaar gestel is …⁴⁰(My emphasis)

The applicant argued that the classified documents constituted archival resources as defined by the Act and that they could not be destroyed. More significant, however, was the basis on which Currin asserted his interest in the matter. This he did on the basis that S 6 of the Archives Act provides that all archives of thirty years or older, which are not required in terms of an Act of Parliament to be kept in the custody of a particular person, shall be transferred to an archives depot. Further to this, it was argued that S 9(1) and 9(2) of the Act, when read together, give individuals the right of access to such archival materials once housed in archives depots. Thus it was claimed that in respect of the records in question, the Archives Act extended to the Currin the right of access, but in effect merely subjects this right to a delay of 30 years. As such, any destruction of these records would effectively deprive the applicant of his right of access to these records at the time when they are to be released into the archives depot.⁴¹ To this it must be added that Currin had argued that because of the nature of his work as a human rights lawyer, it was probable that information pertaining to him and to his practices were being compiled and held in a government office. In this respect, he added, it was his intention to examine the relevant records when they became available (in 30 years) and that he therefore had a direct interest which underpinned his objection to the destruction of any such records.

The response by the fourth respondent was short and sweet. By way of tender in terms of Rule 34, it was simply acknowledged that documents did not fall outside of the ambit of the Archives Act simply by virtue of the fact that they were classified or deemed to be confidential. Furthermore, it was undertaken that no instructions would be issued to departments to destroy records simply on the basis that they were thus classified. Finally, a further memo was sent out to all the relevant department heads which, having referred to the "openbare polemiek" generated by Mr. Currin's application to the court, stated:

Ten einde te verhoed dat probleme en misverstande geskep word … word u hiermee versoek om, soos in die verlede, alle staatsdokumente streng ooreenkomstig die Argiefwet te bestuur.⁴² (My emphasis)

In the final analysis, the Currin application served only to emphasise the complete absence of any effective right of access by individuals to government records about themselves. Nor did the application elicit any hint that individual rights of access to records held by intelligence, security or law enforcement agencies would be secured. Furthermore, Currin did not get into court to test the efficacy of the applicant's alleged interest in the records or in their destruction and, in terms of the Archive Act, he shall have to wait 30 years to find out what, if anything, is left of his personal files!

Conclusion

It seems clear that, in the interests of a fledgling democracy in South Africa, there is a vital need to address the absence of any legislated rights of access to information. In particular, in the search for creative redress of past injustices (at a social-psychological level at least), public access to information contained in the files of the "security establishment" must be thrown open to public scrutiny as part of any national reconciliation programme. In this regard, we can probably learn a great deal from the German experiment, despite its arguably excessive fervour – which the fragile South African peace probably could not afford.

However, the legacy of apartheid policing has generated entirely enmeshed concepts of law enforcement, national defence and state security which plague attempts to define the legitimate and necessary limitations on rights of access to government-held information. This is hopefully a problem which the process of transition itself, through reshaping the notions of state security, will ultimately resolve. However, if this is to pave the way to any meaningful public access to such information, a review of the morass of security legislation with a view to reasonably restricting the secrecy requirements therein, will clearly be necessary. This is essential, not only in the interests of individual access to information, but in respect of a wide range of public interest concerns.⁴³

It is argued here that in the South African context there can be little debate over the public interest in access to information contained in the former security establishment records. What is slightly more controversial, perhaps, is the suggestion, as in the German case, that this should be extended beyond individual access to their own files and should include some public rights of access as well. Whilst it is probably true that the German Act goes too far, particularly in allowing private bodies such extensive access to the Stasi files, there remains, in my opinion an obvious reconstructive and rehabilitative rationale in actively facilitating public knowledge and acknowledgement of this past legacy. The problem is where to draw the line … and how to draw it.

A further problem emerges from the legacy of oppressive intelligence gathering. Like the Stasi, the methods of the South African security establishment have been less than savoury and the intelligence gathered and documented clearly crosses the theoretical divide between public and personal information. When dealing with the question of access to these records, this fact feeds directly the already problematic conflict over private versus public interest rights and raises the critical question of how best to regulate access to this information.

Clearly the intricacies of this process are not adequately addressed by the Procurement of Information Clause within the Transitional Executive Council Act⁴⁴ which is concerned only with the rights of access to information as between members of the Council and which, in any event, in much the same language as prevailing security legislation, sustains most of the blanket exemptions in the name of confidentiality, privacy and the various elements of "state security".⁴⁵ In particular, the Act cannot help individuals to gain access to their records.

The next question is whether such public and private access could be facilitated by a South African FOIA? Quite apart from the problematic locus of much of the intelligence and "security" information with which this paper is concerned – within the heart of either the state security or law enforcement exemptions under the FOIA – there are other clear problems with the FOIA as a vehicle for this kind of access. The central problem is most effectively dealt with by Andrussier who documents how, in the US context, personal privacy concerns have served to shape the narrow interpretation of the "public interest" definition and have thus provided the stumbling block to access to information under the FOIA.⁴⁶ This would undoubtedly plague the South African quest for access to personal information in this context Indeed, the apparent usefulness of privacy interests as a vehicle for counter-FOIA actions in the US, strongly contradicts Hosch's view that the Privacy Act of 1974 doesn't provide adequate protection to individuals from invasion of their privacy through excessive rights of access to personal information.⁴⁷

The basic problem is that whilst an act such as the US Privacy Act is supposed to ensure access by individuals to the records kept about them (for the purposes of ensuring they are correct and that use thereof is limited to the purpose for which the information was given etc.), it also serves very effectively to prevent public access to personal records. The nature of the access which is being discussed in this paper and which was contemplated by the Stasi Records Act in the German context, clearly crosses this public/private divide and is therefore more likely to be defeated by a privacy-type act, than assisted by it.

The only viable solution to this very specific problem seems to be, as in the German case, an equally specific legislative measure to deal with this particular dimension of the right of access to government-held information. The strength of the Stasi Records Act is that it subjects privacy rights to the greater import of public interest in access to personal information – not in general, but in a very specific context. In the South African context, with similar concerns for social reconciliation and reconstruction in the shift to democracy, perhaps we can remedy the excessive elements in the German act. However, in the meantime, two problems remain: firstly, there is no effective mechanism which will generate the particular sort of access to information required here; and secondly, by the time there is, there may well be nothing left in the relevant data banks.

Notes:

¹ Baxter, L. Administative Law, Juta & Co.: Johannesburg (1984), p. 233.

² Ibid., p. 234

³ Robinson, GO. "Access to Government Information: The American Experience", Federal Law, Vol.14 (1983). p.35.

⁴ For a brief discussion on the broad-based definitions of "security" in South African legislation as well as for a partial description of the range of this legislation, see: Africa, SE. "An Assessment of National Security Legislation in South Africa", Military Research Group, unpublished (1992). Also see in Williams, R. "Covert Action and Democracy: General Considerations and Concepts", Military Research Group, unpublished (1991); and Baxter, L. opcit., pp. 235-6. For a slightly different prism on the pervasive effect of secrecy clauses within security, armaments, intelligence, defence and law enforcement legislation, see: Simpson, G. "Militarisation and the Environment: Secrecy Clauses and the Role of Security Legislation in Environmental Degradation", Unpublished paper (1992).

⁵ Exemptions 4 and 5 in the Australian Act. See Bayne, P. "Freedom of Information in Australia", Administrative Law Workshop Paper, Unpublished, Cape Town (February 1993), p.4; and Exemptions 1 and 7 in the US Act. See Robinson, GO. opcit., pp. 41-46.

⁶ Bayne notes that the jurisprudential debate on the FOIA in Australia, ultimately revolves around competing notions of representative as opposed to participatory democracy and the corresponding rights of access which are thus ostensibly rendered either legitimate of illegitimate. Opcit., pp. 7-11.

⁷ Recent press reports suggest that in Chile there is growing popular displeasure over the effective failure to deal adequately with the large numbers of disappearances and unsolved murders which occurred under the Pinochet regime.

⁸ "Brochure of the Federal Commissioner for the Records of the State Security Service of the Former German Democratic Republic: The Task, Structure and Work of this Authority", unpublished (March 1993), p.2.

⁹ At the Berlin Central Depot, it is claimed that 18 burned out shredding machines were found in the basement, along with masses of shredded documents and up to 20 000 bags of papers that had simply been torn up. From these bags it was nonetheless possible to reconstruct approximately 5 000 files. Interview with the Publicity Officer under the Federal Commissioner (Pastor Joachim Gauck) for the Stasi Records Act, Berlin (September 4, 1993).

¹⁰ Ibid. The Federal Commissioner's Brochure estimates the figure more conservatively at 97 000. Opcit.

¹¹ Ibid., p.1.

¹² The term "data-subjects" is used in the legislation to refer to "victims" of Stasi Surveillance about whom information was gathered and processed. The whole archive is alleged to consist of approximately 180 km. Of written documentation organised into files, in addition to another approximately 20 million pages of data on microfiche. Interview, opcit.

¹³ Stasi Records Act, S 1.

¹⁴ Brochure of the Federal Commissioner, opcit., p.5.

¹⁵ This latter category is specifically dealt with under Chapter 3 of the Act.

¹⁶ Defined by S 6(5) as persons who were substantially assisted by the state security service, in particular by being provided with economic advantages, who were protected by the state security services from prosecution for a criminal act or who, with the knowledge, connivance or assistance of the state security service planned, or committed criminal acts.

¹⁷ However, S 12(4) does provide for release of the records where separation or depersonalisation of the data is impossible, if there is no "legitimate interest" on the part of other data-subjects or third parties in keeping the information secret. S 13(7) stipulates that in these respects third parties applying for information will similarly be covered by the conditions in S 12.

¹⁸ S 13(5).

¹⁹ After 1 January 1997.

²⁰ In terms of S 16.

²¹ These urgency requirements are set out in S 12. It is worth noting here that S 15 extends most of the rights of data-subjects to close relatives of missing deceased persons, including the right to access in order to "rehabilitate" such deceased or missing persons, or to protect their rights to privacy.

²² S 5(1). Once again, a clear distinction is implicit here in that it is only data-subjects and third parties who are thus protected. Informers or employees of the Stasi do not have the same rights of privacy in this regard.

²³ S 5(2).

²⁴ S 8 and S 9. Where proof of ownership is provided under S 9, the records may still be seconded for duplication.

²⁵ S 10.

²⁶ S 19 (3). The sub-section also stipulates that where the request is from a court, public prosecutor, or policing authority, the check on admissibility of the purpose will only happen if due cause exists.

²⁷ S 19(5). And original sources shall ne provided only if they are indispensable, particularly as evidence.

²⁸ S 20 sets out the legitimate purposes for the use of records by private and public bodies where such records contain no personal data, and S 21 does the same in respect of records which do contain personal data. However, as the two sections provide virtually identical descriptions of legitimate purposes, I shall deal only with the former section as applying to both categories of information. I cannot detect any reason why these two sections should exist separately, especially considering the fact that they are both subject to the identical limitations in terms of a statutory period of 15 years after which the listed "admissible uses" no longer apply. The only possible difference is the use of documents containing personal data is subject to the specific prohibited uses set out in S 5(1), which has been dealt with above. See footnote 22.

²⁹ S 20(1)(6).

³⁰ S 20(1)(7). In terms of S 20(3), all of these uses are inadmissible after a statutory period of 15 years, after which it will no longer ne admissible to charge a person with activities for the state security service, nor to evaluate to his or her detriment the fact that such activities occurred.

³¹ This is an important consideration in that it effectively prohibits the "market in information" which has been associated with other kinds of access to information acts. It is also worth restating the fact that information gained can always be used to pursue criminal prosecutions and to "avert harm" in terms of S 23 of the Act.

³² S 30.

³³ Interview, opcit.

³⁴ S 31(1) states that: "Any refusal to meet a request by an authority, whether to inspect or gain access to records, will be subject to review by the District Administrative Court from which there shall be no appeal."

³⁵ See S 32 – S 34.

³⁶ S 32 (1)

³⁷ I owe a debt of gratitude to David Dison Attorneys and particularly to Miriam Wheeldon for allowing me access to the papers in this matter.

³⁸ See: Davis, G. "Civil Servants Told to Destroy Secret Files", Weekly Mail & Guardian (August 13-19, 1993); and Laufer, S. "Let the Healing Begin", Weekly Mail & Guardian (August 20-26, 1993).

³⁹ Founding Affidavit by Brian Currin, pp.14-17. See also Appendix J which contains the legal opinion given in this regard.

⁴⁰ Johan Mostert, confidential communication of July 16 1993, attached as Appendix I to the Currin application.

⁴¹ Founding Affidavit, pp.8-11. It was argued in the alternative that the applicant had a legitimate expectation to, in due course, gain access to all archives after expiry of the time limits stipulated in the Act.

⁴² Notice of Tender in terms of Rule 34 and attached Appendix A: Memo from the Head of the Security Secretariat: Beskikking oor Staatssensitiewe Dokumentasie.

⁴³ An illustrative example is the public interest in environmental protection. My article tentatively examines the role of Secrecy clauses within "security legislation" in inhibiting the flow of information vital to public interest in environmental protection. Acts which either directly or indirectly achieve this in the name of state security, include the Defence Act 44 of 1957, the Armaments Development and Production Act 57 of 1968, the Protection of Information Act 84 of 1982, The National Key Points Avt 102 of 1980, the National Supplies Procurement Act 89 of 1970, The Petroleum Products Act 120 of 1977, the Nuclear Energy Act 92 of 1982 and the Internal Security Act 74 of 1982, to mention but a few. Simpson, G. opcit. Also, see: Africa, SE. opcit.

⁴⁴ S 22 of Act No. 151 of 1993.

⁴⁵ The restrictive effect of the clause is explicit in S 22(3) which states:
No provision of this Act shall be interpreted as entitling the Council or a subcouncil to have access to any information or document –
(a) which does not have a bearing on the objects of the Council;
(b) access to or disclosure of which is prohibited in terms of any law or the common law, and …
[which threatens the physical life or safety or the invasion of privacy of any person or which poses a threat to state security] …
(d) compiled by or in the possession or under the control of any intelligence service or structure in South Africa, except in so far as disclosure thereof in necessary for the purposes of S 20.

⁴⁶ Citing the narrow interpretation of the court in Department of Justice v Reporters Committee for Freedom of the Press 489 US 749 (1989), Andrussier points out that under the FOIA, (at very least in respect of Exemptions under 7(c)) the most that the public interest definition could offer is citizens' right to be informed about "what their government is up to." According to the court in this matter, the purpose of the FOIA should not be interpreted to require government to be a central depository of information about private citizens, accessible at the request of any person for any reason. See: Andrussier, SE. "The Freedom of Information Act in 1990: More Freedom for the Government; Less Information for the Public", Duke Law Journal, No. 3 (June 1991), pp. 753-800.

⁴⁷ Hosch, HC. "The Interest in Limiting the Disclosure of Personal Information: A Constitutional Analysis", Vanderbilt Law Review, Vol. 36, No. 139 (1983), pp.139-197. The author argues for the explicit constitutionalisation of privacy rights as the only way of preventing legislatively sanctioned invasion of these rights.

Select Bibliography

Published Material

Africa, SE. "An Assessment of National Security Legislation in South Africa", Military Research Group, unpublished (1992).

Andrussier, SE. "The Freedom of Information Act in 1990: More Freedom for the Government; Less Information for the Public", Duke Law Journal, No.3 (June 1991), pp.753-800.

Baxter, L. Administrative Law, Juta & Co.: Johannesburg (1984).

Bayne, P. "Freedom of Information in Australia", Administrative Law Workshop Paper, Unpublished, Cape Town (February 1993).

Davis, G. "Civil Servants Told to Destroy Secret Files", Weekly Mail & Guardian (August 13-19, 1993).

Fisher, M. Questions and Answers about The Right to Know Bill, The Campaign for Freedom of Information: London (1993).

Grunewald, MH. "Freedom of Information Act Dispute Resolution", Administrative Law Review, No.40 (1988), pp.1-65.

Hosch, HC. "The Interest in Limiting the Disclosure of Personal Information: A Constitutional Analysis", Vanderbilt Law Review, Vol.36, No.139 (1983), pp.139-197.

Laufer, S. "Let the Healing Begin", Weekly Mail & Guardian (August 20-26, 1993).

Robinson, GO. "Access to Government Information: The American Experience", Federal Law Review, Vol.14 (1983), pp.35-61.

Simpson, G. "Militarisation and the Environment: Secrecy Clauses and the Role of Security Legislation in Environmental Degradation", Unpublished paper (1992).

Williams, R. "Covert Action and Democracy: General Considerations and Concepts", Military Research Group, unpublished (1991).

Acts, Unpublished Documentation Briefings and Interviews

Interview with the Publicity Officer under the Federal Commissioner (Pastor Joachim Gauck) for the Stasi Records Act, Berlin (September 4, 1993).

Act Regarding The Records of the State Security Service of the Former German Democratic Republic (Stasi Records Act) of 20 December 1991.

"Brochure of the Federal Commissioner for the Records of the State Security Service of the Former German Democratic Republic: The Task, Structure and Work of this Authority", unpublished (March 1993).

"Briefing on The Right to Know Bill", prepared for the Second Reading in the English Parliament (19 February 1993).

Ninth Report of the Technical Committee on Constitutional Issues, proposed clauses on the Access to Information, to be incorporated into the Interim South African Constitution.

Papers Filed in the matter of Currin v The State President of the RSA, The Minister of National Education, The Director of Archives and The Director-General of the National Intelligence Service, before The Supreme Court of South Africa (Transvaal Provincial Division), (September, 1993).

The Transitional Executive Council Act, No. 151 1993, Government Gazette (27 October 1993).

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