Official secrecy and access to information

Submitted by Visitor (not verified) on Tue, 11/23/2010 - 12:57

 

10.1     How does the law on official secrets affect the media?

There are some kinds of information which governments all over the world want to keep secret.  Normally, these involve matters of national security, nuclear policy, financial plans, or other strategic interests.  Such information, if made public, may be used by a country’s enemies – both domestic and foreign – against the interests of the country and its people.  For that reason, there are laws which allow for such information to be kept confidential.  Journalists, in particular, need to be aware of these laws and their implications.

Here, as elsewhere, the importance of a fair balance cannot be underestimated.  The right of the public to be kept informed about how they are governed has to be balanced against the right (and, indeed, the duty) of the government to protect the security and other vital interests of the country.  Striking this balance is not always easy, and this area of the law has consequently given rise to many cases of confrontation between the media and government authorities.

 

10.2     Can the needs of national security be reconciled with journalistic freedom?

Yes.  As one commentator has argued,

national security is not fundamentally at odds with freedom of expression and information. To the contrary, a clear-eyed review of recent history suggests that legitimate national security interests are, in practice, better protected when the press and public are able to scrutinise government decisions than when governments operate in secret. Freedom of expression and access to information, by enabling public scrutiny of government action, serve as safeguards against government abuse and thereby form a crucial component of genuine national security. Equally, national security is a pre-condition for the full enjoyment of all human rights, including freedom of expression.[1]

Many countries have been able to reconcile the often conflicting demands of national security and free speech without too much confrontation or contention.

 

10.3     How does the law deal with access to official, i.e. government, information?

Access to information held or controlled by the state is seen as vital for the healthy functioning of any free society.  For that reason, recent decades have seen a growth of legal measures aimed at guaranteeing information to the general public on a wide range of matters the disclosure of which was hitherto left to the absolute discretion of the government.  These measures include codes of practice and statutes – the latter are usually called ‘freedom of information’ laws or ‘right to know’ laws.  The media have found such measures hugely beneficial, not least in conducting investigative journalism.

It needs to be remembered, however, that not all information in the possession or control of the state can be made available to the public.  Even the most liberal democracies recognise that certain types of information, e.g. material relating to national security, police investigations, or strategic financial plans, cannot – and should not – be disclosed because disclosure would cause considerable harm to vital interests.

 

10.4     Are there any international legal standards on access to information?

Yes.  A large number of international bodies and agencies have formulated principles and guidelines on access to information over the years, and these principles attempt to strike a balance between the requirements of openness and confidentiality.[2]

Alongside these, there is also guidance on access on information put together by campaigning groups in the non-governmental sector at both domestic and international level.   One such group has suggested that any “right to know” regime should be founded on the following basic principles:

·      everyone has the right to access information held by public bodies;

·      everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;

·      any refusal to disclose information shall be subject to appeal to an independent body and/or the courts;

·      public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest;

·      no one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the

·      environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society; and

·      secrecy laws shall be amended as necessary to comply with freedom of information principles.[3]

 

These guidelines require “right to know” regimes to include guarantees that ‘whistle-blowers’, i.e. those who supply information from within an organisation without revealing their identities, are adequately protected from victimisation or prosecution.

 

10.5     Are there any guidelines specifically on the media’s access to information about police and judicial matters?

Yes.  For example, the Council of Europe adopted certain principles in 2003, of which the following are particularly relevant:

Principle 4 - Access to information

When journalists have lawfully obtained information in the context of on-going criminal proceedings from judicial authorities or police services, those authorities and services should make available such information, without discrimination, to all journalists who make or have made the same request.

Principle 5 - Ways of providing information to the media

When judicial authorities and police services themselves have decided to provide information to the media in the context of on-going criminal proceedings, such information should be provided on a non-discriminatory basis and, wherever possible, through press releases, press conferences by authorised officers or similar authorised means.

Principle 6 - Regular information during criminal proceedings

In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public, judicial authorities and police services should inform the media about their essential acts, so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings. In cases of criminal proceedings which continue for a long period, this information should be provided regularly.[4]

 

 



[1]               Sandra Coliver, “Commentary to: The Johannesburg Principles on National Security, Freedom of Expression and Access to Information” 20:1 (1998) Human Rights Quarterly 12-80, accessible at http://muse.jhu.edu/journals/human_rights_quarterly/v020/20.1coliver.ht….

[2]              Among the bodies engaged in such activity are the United Nations (including its agencies and special procedures), the Organisation of American States, the Council of Europe, and the African Union.

[3]              Article XIX, Central Asian Pocketbook on Freedom of Expression (London, 2006), at p. 185.  Article XIX has also drafted a Model Freedom of Information Law for adaptation by national governments – this document is accessible at <www.article19.org/pdfs/standards/modelfoilaw.pdf>.

[4]              Council of Europe, Committee of Ministers, Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings, 10 July 2003.