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National Security Principles and the Right to Information

Introduction

The Open Society Justice Initiative has been working with more than a dozen other non-governmental organizations and academic centres to draft a set of Principles on National Security and the Right to Information. Our aim is to provide a resource for people engaged in drafting, revising or implementing laws or provisions relating to the government’s authority to withhold information on national security grounds or to penalize the publication of such information. We plan to finalize the Principles in Spring 2013 and to launch them, together with interested groups, in cities around the world.

The Principles are based on international and regional law and standards, evolving state practice, the general principles of law recognized by the community of nations, and the writings of experts.

The Principles reflect input from a range of stakeholders – including government officials, national security professionals, other professional associations, legislators, academics and civil society experts and activists – from around the world who reviewed and submitted comments.

We welcome comments submitted to this website. We especially look forward to your comments on Principles 2, 9, 10, 45, 46 and 50.

We are currently drafting a commentary to the Principles that will collect and analyse relevant international and comparative law and practice on a principle-by-principle basis. We would be grateful to receive papers, articles, case summaries and other information that we could reference in this commentary.

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Papers

The drafters of the Principles relied on numerous studies, intergovernmental and governmental reports, international instruments, court judgments, and expert papers. This section is devoted to a selection of these papers. We will post more papers as authors inform us of their willingness to have us post their papers.

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International and Regional Standards

You can download a list of relevant international and regional law and standards here.

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Introduction to the Principles and Partner Organizations

These Principles are being drafted in order to provide guidance to those engaged in drafting, revising or implementing laws or provisions relating to the government’s authority to withhold information on national security grounds or to penalize the publication of such information.

They are based on international and national law and standards, evolving state practice, the general principles of law recognized by the community of nations, and the writings of experts.

These Principles address national security—rather than all grounds for withholding information—in order to start the process of developing consensus concerning the parameters of permissible restrictions on public grounds. National security is the weightiest public ground for restricting information so that all other public grounds for restricting access must at least meet these standards.

These Principles have been drafted by experts, including at meetings held around the world, in consultation with the four special mandates on freedom of expression –

• the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression,
• the Organisation for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media,
• the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression, and
• the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information;

and in collaboration with the following 16 non-governmental organizations and academic centres [1] :

• Open Society Justice Initiative (global)
• Article 19, the Global Campaign for Free Expression (global);
• Africa Freedom of Information Centre (Kampala/ Africa);
• Asian Forum for Human Rights and Development (Forum Asia) (Bangkok/Asia);
• Centre for Applied Legal Studies, Witwatersrand University (Johannesburg/ South Africa);
• Centre for Democratic Control of the Armed Forces (Geneva/ global);
• Centre for Law & Democracy (global);
• Centre for National Security Studies (Washington, DC/ US and Europe);
• Center for Studies on Freedom of Expression and Access to Information (CELE), Palermo University School of Law (Buenos Aires/ Latin America);
• Commonwealth Human Rights Initiative (New Delhi/ Commonwealth);
• Conectas Direitos Humanos (São Paulo/ global south);
• Egyptian Initiative for Personal Rights (Cairo/ Egypt);
• Institute for Defence, Security and Peace Studies (Jakarta/ Indonesia);
• Institute for Security Studies (Africa);
• International Commission of Jurists (Geneva/ global);
• National Security Archive (Washington, DC/ global); and
• Open Democracy Advice Centre (Cape Town/ southern Africa).

The current draft represents the consensus of some 400 experts from more than 70 countries who met at eleven meetings during 2011-2012. A drafting committee with members from all regions aims to finalize the Principles by March 2013.

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Full Text of the Principles

You can download the draft Principles, as of December 2012, in Word format here.

They can also be downloaded in French and Spanish (as of October 2012).

PRINCIPLES ON

NATIONAL SECURITY AND THE RIGHT TO INFORMATION

Draft December, 2012

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BACKGROUND AND RATIONALE

National security and the public’s right to know are often viewed as pulling in opposite directions. While there is at times a tension between a government’s desire to keep information secret on national security grounds and the public’s right to information held by public authorities, a clear-eyed review of recent history suggests that legitimate national security interests are, in practice, best protected when the public is fully informed about its government’s activities, including those undertaken to protect national security.

Access to information, by enabling public scrutiny of government action, not only safeguards against abuse by government officials but also permits the public to play a role in determining the policies of the government and thereby forms a crucial component of genuine national security and democratic participation. Nevertheless, given that human rights can be more fully enjoyed in a context of national security, some degree of secrecy may be necessary in specific circumstances.

Striking the right balance is made all the more challenging by the fact that courts in most countries demonstrate the least independence and greatest deference to the claims of government when national security is invoked. This deference is reinforced by provisions in the security laws of many countries that trigger exceptions to the right to information as well as to ordinary rules of evidence and rights of the accused upon a minimal showing or even the mere assertion by the government of a national security risk. A government's over-invocation of national security concerns can seriously undermine the main institutional safeguards against government abuse: independence of the courts, the rule of law, legislative oversight, media freedom, and open government.

These Principles respond to the above-described long-standing challenges as well as to the fact that, in recent years, a significant number of countries around the world have embarked on adopting or revising classification regimes and related laws. This trend in turn has been impelled by at least three developments. First, more than 80 countries – including the population giants of Brazil, China, India, Indonesia and Russia – have adopted access to information laws since the fall of the Berlin Wall,  and are, for the first time, grappling with how to keep information secret pursuant to law, whereas previously decisions as to whether to disclose information were completely discretionary. [2] Second, the need to combat terrorism has provided an impetus for many governments to enhance their secrecy regimes and increase secret surveillance. Third, and relatedly, NATO issued a new information policy in 2002 that requires member states and states seeking membership to institutionalise and tighten their systems for handling national security information. [3]

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PREAMBLE

The organizations and individuals involved in drafting the present Principles:

Recognizing both that the public has a right of access to information and that states can have a legitimate interest in keeping certain information secret, including on grounds of national security, and emphasizing that striking the appropriate balance between the two is vital to a democratic society, and are essential for its security, progress, development and welfare, and the full enjoyment of human rights and fundamental freedoms;

Affirming that it is imperative, if people are to be able to monitor the conduct of their government and to participate fully in a democratic society, that they have access to information held by public authorities, including information that relates to national security;

Bearing in mind relevant provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples' Rights, the Declaration of Principles on Freedom of Expression in Africa, [4] the American Convention on Human Rights, the Model Inter-American Law on Access to Information, [5] the European Convention on Human Rights, and the Council of Europe Convention on Access to Official Documents;

Recalling the 2004 Joint Declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media; and the Inter-American Commission on Human Rights Special Rapporteur on Freedom of Expression; the 2006, 2008, 2009 and 2010 Joint Declarations of those three experts plus the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information; the December 2010 Joint Statement on WikiLeaks of the UN and Inter-American Special Rapporteurs; and the Report on Counter-Terrorism Measures and Human Rights, adopted by the Venice Commission in 2010; [6]

Further recalling the Johannesburg Principles on National Security, Freedom of Expression and Access to Information adopted by a group of experts convened by Article 19 in 1995, [7] the Principles of Oversight and Accountability for Security Services in a Constitutional Democracy elaborated in 1997 by the Centre for National Security Studies (CNSS) and the Polish Helsinki Foundation for Human Rights;

Noting that these Principles are based on international and regional law and standards relating to the public’s right of access to information held by public authorities and other human rights, evolving state practice (as reflected, inter alia, in judgments of international and national courts and tribunals), the general principles of law recognized by the community of nations, and the writings of experts;

Further noting that these Principles do not address substantive standards for intelligence collection, management of personal data, or intelligence sharing, all of which are ably addressed by the “good practices on legal and institutional frameworks for intelligence services and their oversight” issued in 2010 by Martin Scheinin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; [8]

Emphasizing the need for protection of the right to public information by laws drafted with precision, and with narrowly drawn exceptions, and for oversight of the right by independent courts, parliamentary oversight bodies and other independent institutions;

Recognizing the importance of effective intelligence sharing among states, as called for by UN Security Council Resolution 1373;

Further recognizing that barriers to public and independent oversight created in the name of national security increase the risk that illegal, corrupt and fraudulent misconduct may occur and may not be uncovered; and that violations of privacy and other individual rights often occur under the cloak of national security secrecy;

Concerned by the costs to national security of over-classification, including the hindering of information-sharing among government agencies and allies, the inability to protect legitimate secrets, the inability to find important information amidst the clutter, repetitive collection of information by multiple agencies, and the overburdening of security managers;

Desiring to promote robust protection of both the public’s right to information and the need to keep some information secret as fundamental elements of national security in a democratic society;

Further desiring to provide practical guidance to governments, legislative and regulatory bodies, public authorities, drafters of legislation, the courts, other oversight bodies,  and civil society concerning some of the most challenging issues concerning the intersection of national security and the right to national security information, especially those that involve respect for human rights and democratic accountability;

Acknowledging that information that should not be classified on national security grounds may nonetheless be withheld on various other grounds recognized in international law – including, e.g., international relations, fairness of judicial proceedings, rights of litigants, and personal privacy - subject always to the principle that information may not be withheld where the public interest in access to the information outweighs the public interest in maintaining the information’s secrecy;

Emphasizing that the Principles focus on the public’s right to information, and that they address the rights to information of detainees, victims of human rights violations and others with heightened claims to information only to the extent that those rights are closely linked with the public’s right to information and open justice;

Endeavouring to elaborate Principles that are of universal value and applicability;

Recognizing that states face widely varying challenges in balancing public interests in disclosure and secrecy of national security information, and that implementation of these Principles must take into consideration local realities – including diverse legal systems, cultures, traditions and developmental circumstances;

Recommend that appropriate bodies at the national, regional and international levels undertake steps to disseminate and discuss these Principles, and endorse, adopt and/or implement them to the extent possible, with a view to achieving progressively the full realization of the right to information as set forth in Principle 1:

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DEFINITIONS

In these Principles, unless the context otherwise requires:

“Critical infrastructure” – to be defined.

“Independent” means institutionally and operationally independent of the executive and all security sector authorities.

“Information” means any information regardless of form or medium. It includes, but is not limited to, documents and other material items. [9]

“Information of public interest” refers to information that is of concern or benefit to the public, not merely of individual interest. The question is not whether information is “of interest to the public” but whether disclosure is “in the interest of the public,” for instance, because it is useful for public understanding of government activities. [10]

“Public interest” is not defined in these Principles.

"Intelligence" - to be defined.

“Journalist” refers to any natural or legal person who is regularly or professionally engaged in the collection of information and its dissemination to the public via any means of mass communication. [11]

“Legitimate national security interest” refers to an interest the genuine purpose and primary impact of which is to protect national security, consistent with international and national law. A national security interest is not legitimate if its genuine purpose or primary impact is to protect an interest unrelated to national security, such as protection of government or officials from embarrassment or exposure of wrongdoing: concealment of information about human rights violations, any other violation of law, or the functioning of public institutions, strengthening or perpetuating a particular political interest, party, or ideology; or suppression of peaceful protests.[12]

“Public authorities” include all bodies within the executive, legislative and judicial branches at all levels of government, constitutional and statutory authorities, and non-state bodies that are owned or controlled by government or that serve as agents of the government. Public authorities also include private or other entities that perform public functions or services or operate with substantial public funds or benefits, but only in regard to the performance of those functions, provision of services or use of public funds or benefits. These principles are applicable to information held by such entities only concerning their public functions, services, or use of public funds or benefits. [13]

“Public personnel” refers to current and former employees, members of the military, contractors and sub-contractors of public authorities, including in the security sector.

“Security sector” encompasses the armed forces, police, defence ministry, and all intelligence, border control and law enforcement agencies.

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PART I: GENERAL PRINCIPLES

 

Principle 1: Right to Information

(a)  Everyone has the right to seek, receive, use and impart information held by or on behalf of public authorities, or to which public authorities are entitled by law to have access.

(b)  Public authorities are obliged to make information available on request, and have an affirmative obligation to publish information of public interest subject only to limited exceptions prescribed by law and necessary to prevent specific, identifiable harm to legitimate interests, including national security.

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Principle 2: Application of these Principles

These Principles apply to information held by a public authority where the authority asserts that the release of such information could cause harm to national security, including national security aspects of defence, intelligence activities or international relations of the state.

Given that national security is the weightiest public ground for restricting information, all other public grounds for restricting access must at least meet these standards.

It is a good practice for national security to be defined precisely n the constitution or a law.

Note: Similarly, UN special rapporteur Martin Scheinin, in his "Good Practices" document, commented: "While the understanding of national security varies among States, it is good practice for national security and its constituent values to be clearly defined in legislation adopted by parliament..."[14] What constitutes national security varies from state to state. In most countries, defence against external threats lies at the core of the concept. In some countries, the term refers to interests primarily defended by the intelligence services. In a few countries, the definition encompasses international relations concerning core national interests. By asserting that the Principles apply to information concerning defence, intelligence and international relations, this Principle does not suggest that these concepts should be included within a definition of national security interests, but only that these concepts are sufficiently inter-related in practice that these Principles should apply in all instances when states invoke these concepts to restrict access to information.

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Principle 3: Requirements for Restricting the Right to Information on National Security Grounds

No restriction on the right to information on national security grounds may be imposed unless the government can demonstrate that: (1) the restriction (a) is prescribed by law and (b) is necessary in a democratic society (c) to protect a legitimate national security interest, and (2) the law provides for adequate safeguards against abuse, including prompt full, accessible and effective scrutiny of the validity of the restriction by an independent oversight authority and full review by the courts, with the information seeker entitled to decide whether or not to exhaust administrative remedies.

(a) Prescribed by law. The law must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to understand what information may be withheld, what should be disclosed, and what actions concerning the information are subject to sanction.[15]

(b) Protection of a legitimate national security interest. The narrow categories of information that may be withheld on national security grounds should be set forth clearly in law.

Note to (b). See definition of "legitimate national security interest." Sub-principle (b) is all the more important if national security is not defined clearly in law as recommended in Principle 2.

(c) Necessary in a democratic society.

i. Disclosure of the information must pose a real and identifiable risk of [significant] harm to a legitimate national security interest.

ii. The risk of harm from disclosure must outweigh the overall public interest in disclosure.

iii. The restriction must be proportionate and must be the least restrictive means available to protect against the harm.

iv. The restriction must not impair the very essence of the right to information.

Note to (c): In balancing the risk of harm against the public interest in disclosure, account must be taken of the possibility of mitigating any harm from disclosure, including through the reasonable expenditure of funds. Following is an illustrative list of factors to be considered in deciding whether the public interest in disclosure outweighs the public interest in secrecy:

  • factors favouring disclosure: disclosure could reasonably be expected to (a) promote open discussion of public affairs; (b) enhance the government's accountability; (c) contribute to positive and informed debate on important issues or matters of serious interest; (d) promote effective oversight of expenditure of public funds; (e) reveal the reasons for a government decision; (f) contribute to protection of the environment; (g) reveal threats to the environment or public health or safety; or (h) reveal, or help establish accountability for, violations of human rights or international humanitarian law.
  • factors favouring non-disclosure: disclosure would likely pose a real and identifiable risk of harm to national security;
  • factors that are irrelevant: disclosure could reasonably be expected to (a) cause embarrassment to, or a loss of confidence in, the government or an official; or (b) weaken a political party or ideology.

The fact that disclosure could cause harm to the country's economy would be relevant in determining whether information should be withheld on that ground, but not on national security grounds.

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Principle 4: Burden on Public Authority to Establish Legitimacy of any Restriction

(a) The burden of demonstrating the legitimacy of any restriction rests with the public authority seeking to apply it.

(b) The right to information should be interpreted generously, and any restrictions should be interpreted narrowly.

(c) In discharging this burden, it is not sufficient for a public authority simply to refer to an alleged risk of harm; the authority is under a duty to state reasons and should provide specific information, and if necessary, documentation to support its risk assessment, and any person who seeks access to the information should have an opportunity to review and challenge the asserted basis for the risk assessment.

(d) In no case may the mere assertion, such as the issuing of a certificate, by a minister or other official to the effect that disclosure would cause harm to national security be deemed to be conclusive concerning the point for which it is made.

Commentary: In practice, adjudicators generally defer to an agency’s classification decision. This is not about changing the standard in law. Decision-making must be based on evidence. In several countries [examples will be given], a relevant minister or other high-ranking official may issue a certificate declaring the need for information to be classified. These Principles do not take a position on whether or not such certificates constitute a good practice. Rather, this principle emphasizes that the mere assertion that disclosure would cause harm to national security is not to be taken as conclusive as to the harm, let alone as to whether the harm outweighs the public interest in disclosure.

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Principle 6: No Exemption for Any Public Authority

(a) No public authority - including the judiciary, the legislature, oversight bodies, intelligence agencies, and the office of the head of state or government - may be exempted from disclosure requirements.

(b) Information may not be withheld simply on the ground that it was generated by, or shared with, a particular state, public authority or unit within an authority.

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Principle 7: Access to Information by Oversight Bodies

All oversight/ombudsman/appeal bodies should have access to all information, including national security information, regardless of classification level, relevant to their ability to discharge their responsibilities.

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Principle 8: Resources

States should devote adequate resources to administer, and should require public authorities to issue guidelines that give effect to, these Principles.

Principle 8bis: States of Emergency

In time of public emergency which threatens the life of the nation and the existence of which is officially and lawfully proclaimed in accordance with both national and international law, a state may derogate from its obligations under international law only to the extent strictly required by the exigencies of the situation and only when and for so long as they are not inconsistent with the government's other obligations under international law, and do not involve discrimination based on race, colour, sex, sexual orientation, language, religion, political or other opinion, national or ethnic origin, property, birth or other status.

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PART II: INFORMATION THAT LEGITIMATELY MAY BE WITHHELD ON NATIONAL SECURITY GROUNDS, AND INFORMATION THAT SHOULD BE DISCLOSED

 

Principle 9: Information That Legitimately May Be Withheld

Public authorities may restrict public access to information on national security grounds, but only if such restrictions (a) comply with all of the other provisions of these Principles, in particular Principles 3 and 10, and (b) the information falls within one of the following categories:

i. Current military or security plans, on-going operations, and capabilities for the length of time that the information is of operational utility [to the extent that these relate to armed conflicts].

Note[s]: The phrase “for the length of time that the information is of operational utility” is meant to require disclosure of information once the information no longer reveals anything that could be used by enemies to understand the state’s readiness, capacity, plans, etc. [The phrase “to the extent that these relate to armed conflicts” was proposed to exclude information related to humanitarian interventions that do not involve armed conflict, civil protection operations or other activities not connected to armed conflict.]

ii.  Information, including technological data and inventions, about weapons, their production, capabilities or use;

iii. Specific measures to safeguard critical infrastructure;

iv. Specific measures to safeguard constitutional institutions and territory of the state;

v.  Intelligence information, including analysis collection, operations, sources and methods concerning matters that fall into one of the above categories;

vi.  Information concerning the prevention, investigation [or prosecution] of terrorist attacks, subject to the rights of victims of terrorism to information about such investigations and prosecutions, and the rights of individuals subject to such proceedings to a fair and public trial and protection against violation of their human rights;

vii. Diplomatic communications insofar as they raise legitimate national security concerns;

Note: “Diplomatic communications” refers to communications by diplomats of the state as well as by diplomats of other states or inter-governmental entities.

viii. Information that was supplied by a foreign state or inter-governmental body with an express  expectation of confidentiality; and

Note: It is a good practice for such expectations to be recorded in writing.

ix. Other similar matters, so long as preservation of their secrecy is necessary to protect a legitimate national security interest that is set forth in law, narrowly drawn, and adopted following opportunity for public comment.

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Principle 10: Categories of Information with a High Presumption in Favour of Disclosure

Some categories of information are of high or overriding public interest, that is, the information is either of exceptionally high relevance to the process of democratic oversight, or else is important to democratic oversight and its disclosure poses no or scant risk of injury to the public interest. Accordingly, there is a very strong presumption that such information should be public and proactively disclosed.

Indeed, withholding on grounds of national security can never be justified in relation to certain kinds of information, in particular, regarding [gross] violations of human rights or serious violations of international humanitarian law. The same applies to laws, regulations and policies referenced in this Principle.

Other information in the following categories may be withheld on national security grounds only in the most exceptional circumstances, and in a manner consistent with the other principles, only for a strictly limited period of time, and only if there is no reasonable means by which to limit the harm that would be associated with disclosure.

 

A. Democratic Participation in Fundamental Decisions

1. Structures and Powers of Government

(a)   The existence of all military, police, security and intelligence authorities, and sub-units;

(b)   The laws and regulations applicable to these authorities and their oversight bodies and internal accountability mechanisms; and the names of the officials who head such authorities.

(c)   Information needed for evaluating and controlling the expenditure of public funds, including the gross overall budgets, major line items and basic expenditure information for such authorities.

(d)   The existence and terms of concluded bilateral and multilateral agreements, and other major international commitments by the state on national security matters.

2. Important Decisions or Policies, including Decisions to Commit Combat Troops Overseas

(a)   Information that shows that the Government has mischaracterized a fact relevant to an important decision or policy

(b)   [More…]

3. Surveillance

(a)   The laws and primary regulations governing all forms of secret surveillance and systems of secret files and registers.

(b)   For persons who are being or have been subjected to unlawful surveillance, notification of that fact and/or recourse to review of their claims by an independent authority.

4. Detention and Interrogation

(a)   Laws, regulations [and policies] concerning detention, cross-border transfers of detainees, treatment of detainees, including methods and means of interrogation by, on behalf of, or in facilitation of the conduct of, the state and its agents.

(b)   The location of all places where persons are deprived of their liberty operated by or on behalf of the state as well as the identity of, and charges against, all persons deprived of their liberty including during armed conflict.

(c) In no circumstances may information be withheld on national security grounds that would result in the secret detention of a person or the establishment and operation of secret places of detention. Nor are there any circumstances in which the fate or whereabouts of anyone deprived of liberty by, or with the authorizations, support or acquiescence of, the state may be concealed from, or otherwise denied to, the person's family members or others with a legitimate interest in the person's welfare.

5. Accountability concerning Security Sector Contracts and other Resources

(a)   Information concerning constitutional or statutory violations and other abuses of power, including corruption, by public authorities or officials.

(b)   Basic information regarding the integrity of security sector procurement, financial management of critical infrastructure, and relevant audit reports.

B. [Gross] Violations of Human Rights and Serious Violations of International Humanitarian Law

Information regarding gross violations of human rights or serious violations of international humanitarian law, as defined in this Principle, may not be withheld on national security grounds. Information regarding other violations of human rights may not be withheld on national security grounds in a manner that would prevent accountability for the violations or deprive a victim of access to an effective remedy.

(a) The identities of all victims of [gross] violations of human rights or serious violations of international humanitarian law, including crimes under international law, committed by the State, State agents or people acting with any level of government support, whether in peace time or during an armed conflict, and the dates and circumstances of these violations; and where applicable, the location of mortal remains.

Note: The names and other personal data of victims, their relatives and witnesses may be withheld from disclosure to the extent necessary to prevent further harm to them, if the person concerned expressly requests withholding and if the withholding is consistent with human rights.

(b) The names of units and their superiors and commanders present at the time of, or otherwise implicated in, such human rights or international humanitarian law violations.

(c) Other information concerning [gross] violations of human rights or serious violations of international humanitarian law committed by agents of the State that holds the information or by other States, including information on the causes of such violations and the failure to prevent them.

Note: Nothing in this Principle should be understood to endorse a lower standard of transparency than is required by international law. The requirements of international law will be explicated in commentary, currently being drafted.

C. Public Health, Safety and the Environment [To be further developed]

(a)   Emergency response plans and threat levels.

(b)   Pollution and emissions.

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PART III: RULES REGARDING CLASSIFICATION AND DECLASSIFICATION OF INFORMATION & RULES REGARDING HANDLING OF REQUESTS FOR INFORMATION

PART IIIA: RULES REGARDING CLASSIFICATION AND DECLASSIFICATION OF INFORMATION

Principle 11: Duty to State Reasons for Withholding Information

(a) States are not obliged to classify information pursuant to a formal process. However, whether or not a state has a formal classification process, public authorities are obliged to state reasons for withholding information.

(b) The reasons should indicate the narrow category of information, corresponding to one of the categories listed in Principle 9, to which the information belongs, and describe the harm that could result from disclosure, including its level of seriousness and degree of likelihood.   

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Principle 12: Marking and Justification Requirements

(a) When a record is classified, (i) a protective marking should be affixed indicating the level and maximum duration of classification, and (ii) a statement should be included justifying the need to classify at that level and for that period.

(b) Classification levels, if used, should correspond to the levels and likelihood of harm identified in the justification.

Note: “Classification” is the process by which records that contain sensitive information are reviewed and given a mark to indicate who may have access and how the record is to be handled. Procedures for classifying documents vary from country to country, and some countries, such as the UK, do not have a formal classification system. Paragraph-by-paragraph marking is accepted practice in some countries and is considered too onerous in others. In some countries where there was strong initial resistance, practices have been developed that lessen the administrative burden and compliance has become the rule.

For instance, several governments have developed guides that include lists of justifications, so that only a number needs to be written or linked to the classification level.

Providing a statement justifying each classification decision is encouraged because it makes officials advert seriously to the specific harm that would result from disclosure, and because it facilitates the process of declassification and disclosure. Paragraph by paragraph marking further facilitates consistency in disclosure of unclassified portions of documents.

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Principle 13: Public Access to Classification Rules

(a) The public should have access to the written procedures and standards governing classification or other withholding.

(b) The public should have the opportunity to comment on the procedures and standards governing classification prior to their entry into force.

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Principle 14: Authority to Classify

(a) Only officials specifically authorized or designated [by the head of a public authority] may classify information. If an undesignated official believes that information should be classified, the information may be withheld for a brief and expressly defined period of time until a designated official has reviewed the recommendation for classification.

(b) The identity of the person responsible for a classification decision should be [traceable] [indicated on the document] so as to ensure accountability and to enable readers to determine the context of the decision.

(c) Heads of public authorities should assign original classification authority to the smallest number of senior subordinates that is administratively efficient.

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Principle 15: Facilitating Internal Challenges to Classification or Withholding of Information

Public personnel, especially those affiliated with security sector authorities as defined in Principle 34, who believe that information has been improperly classified or otherwise withheld should be encouraged to challenge the classification or withholding of the information.

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Principle 16: Duty to Make an Index of Classified Information

Each public body shall create, and update annually, a detailed list of the classified records it holds, save for those exceptional documents whose very existence is legitimately classified in accordance with Principle 21. This list shall not be deemed to be confidential.

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Principle 17: Duty to Archive and Maintain Properly National Security Information and Documents

(a) The state and its employees have a duty to preserve and archive documents and information according to international professional standards. [16] Documents and information may be exempted from preservation and archiving only according to law.

(b) Information should be maintained properly. Filing systems should be consistent, transparent (without revealing classified information), and comprehensive, so that reasonably specific requests for access will locate all relevant information even if the information cannot be declassified.

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Principle 18: Time Limits for Period of Classification

(a) Information may be withheld on national security grounds for only as long as necessary to protect a legitimate national security interest. Decisions to withhold information should be reviewed periodically in order to ensure that this principle is met.

(b) The classifier should specify the date or event (e.g., withdrawal of troops) on which the classification shall lapse.

(c) No information shall remain classified indefinitely. The presumptive maximum period of secrecy on national security grounds should be established by law and may be extended only in exceptional circumstances.

Note: For the following reasons, a ten-year maximum period for classification is recommended for most information. [Information re international and comparative law and practice will be supplied.]

(d) Where information is sought to be withheld beyond the presumptive deadline, the decision to do so should be made afresh and by another decision-maker, setting an amended deadline.

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Principle 18bis: Prohibition of Retroactive Classification

Information may not be classified after it has already been disclosed.

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Principle 19: Declassification Procedures

(a) If information of public interest, including information that falls into categories listed in Principle 10, is classified due to exceptional sensitivity, it should be declassified as rapidly as possible. Procedures should be put in place to identify classified information of public interest for priority declassification.

(b) National legislation should specify procedures for en bloc (bulk and/or sampling) declassification.

(c) National legislation should identify fixed periods for automatic declassification for different categories of classified information. To minimize the burden of declassification, records should be automatically declassified without review wherever possible.

(d) National legislation should set out an accessible and public procedure for requesting declassification of documents.

(e) Declassified documents, including those disclosed publicly by oversight/ombudsman/appeal bodies, should be proactively disclosed or otherwise made publicly accessible (for instance through harmonization with national archives legislation or access to information legislation or both).

Note:  Additional good practices include the following:
• identification in law of government responsibility to coordinate, oversee, and implement government declassification activities, including consolidating and regularly updating declassification guidance. 
• regular consideration of the use of new technologies in the processes of declassification. 
• regular consultation with persons with professional expertise concerning the process for establishing declassification priorities, including both automatic and en bloc declassification.

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PART IIIB: RULES REGARDING HANDLING OF REQUESTS FOR INFORMATION

Principle 20: Duty to Consider Request Even if Information Has Been Classified

The fact that information has been classified is not decisive in determining how to respond to a request for that information. Rather, the public authority that holds the information should consider the request according to these Principles.

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Principle 21: Duty to Confirm or Deny

(a)    Upon receipt of a request for information, a public authority should confirm or deny whether it holds the requested information, except in extraordinary circumstances in which the very existence or non-existence of the information may be kept secret in accordance with Principle 3.

(b)   Any refusal to confirm or deny the existence of information in response to a particular request should be based upon a distinct information category designated in a national law or regulation as holding such exceptional sensitivity.

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Principle 22: Duty to State Reasons for Denial in Writing

(a) If a public authority denies a request for information, in whole or in part, it should set forth in writing specific reasons for doing so as soon as reasonably possible.

(b) The authority should also inform the requester of the identity of the official who authorized non-disclosure unless to do so would itself disclose restricted information, and of avenues for appeal.

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Principle 23: Duty to Expend Reasonable Effort to Locate Missing Information

(a) When a public authority is unable to locate information responsive to a request, and records containing that information should have been maintained or collected, the authority should make reasonable efforts to gather the missing information for potential disclosure to the requester. [17]

(b) The duty to search for information is particularly high when the information concerns gross human rights violations. [18]

Note: When a document or information that is required by law to be maintained is untraceable, the matter should be referred to police or administrative authorities for investigation.  The outcome of the investigation should be made public.

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Principle 24: Duty to Disclose Parts of Documents

Exemptions from disclosure apply only to specific information and not to whole documents or other records. Only specific information for which the validity of a restriction has been demonstrated (“exempt information”) may be withheld. Where a record contains both exempt and non-exempt information, public authorities have an obligation to segregate and disclose the non-exempt information if those portions are reasonably segregable.

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Principle 25: Duty to Identify Information Withheld

A public authority that holds information that it refuses to release should identify such information with as much specificity as possible. At the least, the authority should disclose the amount of information it refuses to disclose, for instance by estimating the number of pages.

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Principle 26: Duty to Provide Information in Available Formats

Public authorities should provide information in the format preferred by the requester to the extent possible and, at the least, should make information available in all formats that they have or into which the information can readily be transformed.

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Principle 27: Time Limits for Responding to Information Requests

(a) Time limits for responding to requests, including on the merits, internal review, decision by an independent body if available, and judicial review should be established by law and should be as short as practicably possible.

(b) Expedited time limits should apply where there is a demonstrated public need for the information on an urgent basis.

(c) Time limits should take into account the volume of documents requested. If volume is slight, a shorter period than the statutory deadline is likely to be practicably possible; if volume is great, an extension of time may be appropriate.

Note: It is considered a best practice, in keeping with the requirements set forth in most access to information laws, to prescribe twenty working days or less as the time period in which a substantive response be given. See www.right2info.org/laws.

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Principle 28: Right to Review of Decision Refusing Information

(a) A requester has the right to a speedy and low cost or free review of a refusal to disclose information, including of an implicit or silent refusal, or of related matters, including fees, timelines and format, by an independent authority, as well as the option of challenging the original decision directly before a court. Where the person is not satisfied with the decision of the independent authority, that decision may also be challenged before a court. In either case, the court shall proceed in accordance with the Principles set out in Part IV.

(b) The reviewing public authority should have full access to all relevant information.

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PART IV: JUDICIAL OVERSIGHT

Principle 29: General Judicial Oversight Principle

(a) National security may not undermine the fundamental right to a fair trial.

(b) Where a public authority seeks to withhold information on the grounds of national security in any legal proceeding, a court should be permitted to, and ordinarily should, examine the information.

Note: It is good practice that the court should not rely on summaries or affidavits asserting the need for secrecy. In some cases, the judge who decides the issues regarding disclosure may not be the same judge who decides the merits of a case. For instance, under German law, a merits judge may not have access to information that the parties do not have.

(c) No court should take as conclusive to the request for non-disclosure of information the fact that a document has been classified.

(d) The court should ensure that the person seeking access can, to the maximum extent possible, know and challenge the case advanced by the government for withholding the information.

(e) The court should adjudicate the legality and appropriateness of the public authority’s claims, both substantively and procedurally, and may compel disclosure or order appropriate relief in the event of partial or full non-disclosure, including the dismissal of charges in criminal proceedings.

(f) The court should independently assess whether the public authority has properly invoked any claimed privilege or other basis for non-disclosure, the nature of any harm claimed by the public authority and its likelihood of occurrence. Similarly, the court should assess the public interest in disclosure, the impact on the rule of law and international human rights obligations of non-disclosure and the right to a remedy claimed by either party.

(g) Where a court rules that information has been properly withheld, it should provide fact-specific reasons and its legal analysis in writing.  These reasons should be public, except in extraordinary circumstances.  In such extraordinary circumstances, the public authority should make publicly available as much information as possible, including access to the legal reasoning supporting the decision.

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Principle 30: Judicial Oversight of Denials of Information

A person who is refused access to information following a request for information in either an administrative or judicial process is entitled to challenge the denial and related matters, including fees, timelines and format before a court whether by means of judicial review, appeal, rehearing or reconsideration. This should include de novo review of the legal issues and factual findings.

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Principle 31: Public Access to Judicial Processes

(a) National security concerns may not undermine the fundamental right of the public to access judicial processes.

(b) Court judgments – setting forth all of a court’s orders and including the essential findings, evidence and legal reasoning -- should be made public, except where the interest of juvenile persons otherwise requires. [19]

(c) Unless strictly necessary and in compliance with these Principles, the public’s right of access to judicial proceedings should include public access to (i) judicial reasoning; (ii) information about the existence and progress of cases; (iii) written argument submitted to the court; (iv) court hearings and trials [20] ; and (v) evidence in court proceedings that forms the basis of a conviction.

(d) The public should have an opportunity to contest any claim asserted by the public authority that a restriction on judicial openness is strictly necessary on national security grounds. This includes the partial or complete closure of a hearing, the sealing of records, the non-disclosure of evidence, the redaction of a judicial opinion, or any other restriction.

Note: This Principle is not intended to modify a nation’s existing law regarding preliminary procedures to which the public does not ordinarily have access. It applies only when the court process would otherwise allow public access and the attempt to deny that access is based on a claim of national security. The public’s right of access to court proceedings and materials derives from the significance of access to promoting (i) the actual and perceived fairness and impartiality of judicial proceedings; (ii) the proper and more honest conduct of the parties; and (iii) the enhanced accuracy of public comment.

Commentary to (c)(iv):  Where cases are tried before a jury, all evidence that the jury considers should be public because it is not possible to know on what evidence the jury relied in deciding to convict. Where the trier of fact is a judge, if the judge expressly states that s/he did not rely on secret evidence in reaching a verdict, then that evidence need not be made public.

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Principle 32: Party Access to Information in Criminal Proceedings

(a) The court may not prohibit a defendant from attending his or her trial on national security grounds.

(b) In no case should a conviction be based on evidence that the accused has not had an opportunity to review and refute.

(c) In no case may a public authority fail to disclose the charges against a person.

(d) A public authority should also disclose any information it intends to use against a defendant, any potentially exculpatory evidence and any information that may assist the defendant in obtaining a reduction in sentence to the court hearing the case, the defendant’s counsel, and the defendant regardless of whether the information is classified, subject to the limitations set forth in sub-sections (e) and (f).

Commentary: Exculpatory evidence includes not only material establishing innocence but also other evidence that could assist the defence, such as indications that a confession was not voluntary or information which may assist the accused in obtaining a reduction in sentence.

(e) Any decision to restrict or withhold the disclosure of information on national security grounds that would otherwise be required to be disclosed to a defendant should be strictly necessary and sufficiently counterbalanced by the court to enable the defendant to have substantially the same ability to respond to the charges as s/he would have had if s/he she had access to the information.

(f) Where the public authority declines to disclose information identified in (d), above, and it is not possible to substitute information that can be disclosed and that does not prejudice the defendant’s rights, the court should stay or dismiss the charges.

Note: Any stay should be for a limited time so that individuals are not left with stayed charges pending against them for long periods.

(g) Anyone who challenges his or her deprivation of liberty in connection with the investigative or trial stages of criminal proceedings is entitled to an opportunity to review and refute the evidence presented to the court to justify the deprivation of liberty.

Note: The public authorities cannot rely on information to their benefit when claiming secrecy, although they may decide to keep the information secret and suffer the consequences.

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Principle 33: Party Access to Information in Civil Cases

(a) Cases Brought by Victims of Torture and Other Human Rights Violations

Victims of torture and other human rights violations are entitled to an effective remedy and reparation, including public disclosure of abuses suffered.  Public authorities may not withhold information material to their claims in a manner inconsistent with this right.

(b) Other Cases

(i) A public authority should not be able to bring a case against a person and then withhold material information on the ground of national security or related state interest. Nor should a public authority be able to withhold material information when a person makes a credible claim that the authority has violated his or her rights. In such cases, the court should evaluate the public authority’s claim for secrecy using the strictest standard for evaluating claims under national law, and should be authorized to resolve the case in the person’s favour.

(ii) A person’s claim against a public authority for breach of a contract between the public authority and the person may be considered according to the strict standard of Principle 33(b)(i), or may be reviewed with somewhat greater deference to the public authority’s claims [and the knowledge of the parties when entering into the contract], consistent with national law and proportionate to the seriousness of the injury the person claims to have suffered.

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PART V: BODIES THAT OVERSEE SECURITY SECTOR INSTITUTIONS AND INFORMATION

 

Principle 34: Unrestricted Access to Information Necessary for Fulfilment of Mandate [21]

(a) States should establish, if they have not already done so, independent oversight bodies to oversee security sector and other agencies that keep more than de minimis amounts of information secret, including the operations, policy, finances and administration of such agencies.

(b) Such independent oversight bodies should have legally guaranteed access to all information necessary for the fulfilment of their mandates. There should be no restrictions on this access, regardless of the information’s level of classification or confidentiality, upon satisfaction of reasonable security access requirements.

(c) Information to which oversight bodies should have access includes, but is not limited to:

i. all records, technologies and systems in the possession of security sector authorities, regardless of form or medium and whether or not they were created by that authority;
ii. physical locations, objects and facilities; and
iii. information known by persons whom overseers deem to be relevant for their oversight functions.

(d) Security sector and other public personnel may not be prohibited from, or punished for, furnishing oversight bodies with information.

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Principle 35: Powers and Resources Necessary to Ensure Access to Information

(a) Security sector oversight bodies should have adequate legal powers in order to be able to access any relevant information that they deem necessary to fulfil their mandates.

(b) At a minimum, these powers should include the right to question current and former members of the executive branch, employees and contractors of public authorities; request and inspect relevant records; and inspect physical locations and facilities.

(c) Oversight bodies may also be given the powers to subpoena such persons and records and hear testimony under oath or affirmation from persons deemed to possess information that is relevant to the fulfilment of their mandates, with the full cooperation of law enforcement agencies, where required.

(d) Oversight bodies, in handling information and compelling testimony, should take account of, inter alia, relevant privacy laws as well as protections against self-incrimination and other requirements of due process of law.

(e) Oversight bodies should have access to the necessary financial, technological and human resources to enable them to identify, access and analyse information that is relevant to the effective performance of their functions, including information that is remotely located or of a highly technical character.

(f) Security sector authorities should be required by law to afford oversight bodies the cooperation they need to access and interpret the information required for the fulfilment of their functions.

(g) Security sector authorities should be legally required to make proactive and timely disclosures to oversight bodies of specific categories of information that overseers have determined are necessary for the fulfilment of their mandates. Such information should include, but not be limited to possible violations of the law and human rights standards.

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Principle 36: Transparency of Security Sector Oversight Bodies

A.  Applicability of Access to Information Laws

Laws that entitle members of the public to access information held by public authorities should apply to security sector oversight bodies, including legislative committees.

B.  Reporting

(a) Oversight bodies should be legally required to produce periodic reports and to make these reports publicly available. These reports should include, at a minimum:

i. Information on the oversight body itself, including membership, budget, performance and activities; and
ii. Information on those aspects of security sector authorities that fall under the oversight body’s mandate.

(b) Oversight bodies should also provide public versions of their thematic and case-specific studies and investigations, and should disclose as much information as possible concerning matters of public interest, including those areas listed in Principle 10.

(c) Oversight bodies should respect privacy rights of all individuals concerned.

(d) Overseers should give security authorities and the executive the opportunity to review, in a timely manner, any reports which are to be made public in order to allow them to raise concerns about the inclusion of material that may be classified. The final decision regarding what should be published should rest with the oversight body itself.

C.  Outreach and Accessibility

(a) The legal basis for oversight bodies, including their mandates and powers, should be publicly available and easily accessible.

(b) Oversight bodies should create mechanisms and facilities for people who are illiterate, speak minority languages, or are visually or aurally impaired.

(c) Oversight bodies should provide a range of freely available mechanisms through which the public (including those in geographically remote locations) can make contact with them and, in the case of complaints handling bodies, file complaints or register concerns, including mechanisms that can effectively preserve the confidentiality of the complaints and the anonymity of the complainant.

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Principle 37: Protection of Information Handled by Security Sector Oversight Bodies

(a) Oversight bodies should be required by law to implement all necessary measures to protect information in their possession.

(b) Legislatures should decide whether (i) members of legislative oversight committees, and (ii) heads and members of independent, non-legislative oversight bodies should be subject to security vetting prior to their appointment.

(c) Staff members of security sector oversight bodies should be subject to the same vetting procedures as members of the authorities they oversee. Such vetting should be conducted in a timely manner.

(d) Oversight bodies should take the final decision on whether or not to grant a security clearance to members.

(e) Subject to the Principles in Parts VI and VII, members or staffers of oversight bodies who disclose classified or otherwise confidential material outside of the body’s normal and legally defined reporting mechanisms should be subject to appropriate administrative, civil or criminal proceedings.

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Principle 38: Authority of the Legislature to Make Information Public

The legislature should have the power to disclose information to the public if it deems it appropriate to do so according to procedures that it should establish.

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PART VI: PROTECTION OF PUBLIC PERSONNEL WHO DISCLOSE INFORMATION

Principle 39: Disclosure of Information Showing Wrongdoing Internally or to Independent Oversight Bodies

A. Categories of wrongdoing

Public personnel should be encouraged to disclose internally or to an independent oversight body information relating to the following categories of wrongdoing, whether the wrongdoing has taken, is taking or is likely to take place:

i. criminal offences, including human rights violations;
ii. corruption;
iii. dangers to public health and safety;
iv. dangers to the environment;
v. abuse of public office;
vi. miscarriages of justice;
vii. significant mismanagement or waste;
viii. other similar matters in the public interest; and
ix. deliberate concealment of any matter falling into to one of the above categories.

These shall be considered to be “protected disclosures” if they comply with conditions set forth in Principles 40 and 44.

B. No waiver of rights and remedies

The rights and remedies provided for under this may not be waived or limited by any agreement, policy, form or condition of employment, including by any pre-dispute arbitration agreement. Any attempt to waive or limit these rights and remedies should be considered void.

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Principle 40: Protected Disclosures of Information Showing Wrongdoing Internally or to Independent Oversight Bodies

(a) The law should protect public personnel who make disclosures of information internally or to independent oversight bodies, regardless of whether the information is classified or otherwise confidential, so long as, at the time of the disclosure, the person making the disclosure had reasonable grounds to believe that the information (i) was true and (ii) was related to one of the categories of wrongdoing set forth in Principle 39.

(b) The motivation for a protected disclosure is irrelevant except where the disclosure is untrue and frivolous or vexatious.

(c) A person making a protected disclosure should not be required to produce supporting evidence or bear the burden of proof when making a disclosure.

(d) Internal mechanisms and independent oversight bodies should be required to protect the confidentiality of personnel who seek to make confidential submissions and should consider anonymous submissions on their merits.

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Principle 41: Procedures for Making and Responding to Protected Disclosures Internally

(a) The law should require public authorities to establish internal procedures for receiving protected disclosures, and for investigating and resolving the matters in a timely fashion.

(b) Any investigation should be completed in a timely manner and be free from unnecessary administrative impediments.

(c) The complainant should be notified of the completion of an investigation and, as far as possible, of the steps that are recommended to be taken.

(d) Public authorities should be required to inform public personnel of their rights to disclose information internally and/or to an independent oversight body as well as the relevant procedures for making such disclosures and protections provided by law.

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Principle 42: Procedures for Making and Responding to Protected Disclosures to Autonomous Oversight Bodies

(a) States should establish or identify autonomous, statutorily created bodies to receive protected disclosures, and to investigate and resolve the matters if they are not investigated and resolved through other mechanisms or processes.

(b) These bodies should be institutionally and operationally independent from all of the security sector and other authorities from which disclosures may be made.

(c) The law should guarantee their access to all relevant information and afford them the necessary investigatory powers to ensure this access. Such powers may include subpoena powers and the power to require that testimony is given under oath or affirmation.

(d) Public personnel should be able to access autonomous bodies directly, without first having to make a disclosure through internal procedures.

(e) If an independent oversight body receives a protected disclosure that it is not competent to investigate, it should be required (after obtaining the consent of the person who made the disclosure, or if required by law) to refer the information to a competent independent oversight body in a timely manner.

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Principle 43: Obligation to Investigate

Internal and independent oversight bodies should be obliged to investigate claims of wrongdoing that fall into one or more of the categories set forth in Principle 39.

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[Principle 44 has been deleted.]

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Principle 45: Protection against Retaliation for Persons Making Protected Disclosures

A. Prohibition of Retaliation

(a) The law should prohibit retaliation against any person who has made a protected disclosure in accordance with Principles 40-43.

(b) Prohibited forms of retaliation include, but are not limited to, the following:

i. Criminal proceedings, including but not limited to prosecution for disclosure of classified or otherwise confidential information;
ii. Administrative measures or punishments, including but not limited to the suspension or revocation of a security clearance; letters of reprimand; retaliatory investigations; demotion; transfer; failure to promote; or termination of employment;
iii. Civil procedures, including but not limited to attempts to claim damages and defamation proceedings;
iv. Physical or emotional harassment; and
v. Threats of any of the above.

(c) Action taken against individuals other than the person making the disclosure may in certain circumstances constitute retaliation.

B. Investigation of Retaliation by an Independent Oversight Body

(a) A person who has made a protected disclosure has the right to report any retaliation to an independent oversight body.

(b) Independent oversight bodies should be required to investigate a claimed retaliation and to provide a response to the person making the report within a legally defined period of time.

(c) Independent oversight bodies should be given all necessary powers and resources to carry out their functions, including the powers to access all pertinent information and to summon relevant officials. In doing so, they should have recourse to all necessary cooperation from law enforcement authorities.

(d) Independent oversight bodies should make every effort to ensure that proceedings are fair and in accordance with due process standards.

Note: Principle 45.B is not intended to limit the right of public personnel to bring claims before a court.

C. Remedies and Sanctions for Retaliation

(a) The law should prohibit retaliation relating to protected disclosures, as well as the deliberate failure to protect persons disclosing information in accordance with these Principles.

(b) In response to unlawful retaliation, bodies competent to receive disclosures and/or investigate retaliation should be empowered to require the public authority concerned to take remedial or restorative measures, including, but not limited to: reinstatement, reassignment, legal fees, other reasonable costs, back pay and related benefits, travel expenses, and compensatory damages.

(c) Persons who have made a protected disclosure and claim retaliation should be entitled to appeal the findings of an independent body to a court.

D. Burden of Proof

If a public authority takes an action adverse to a person who made a protected disclosure, the authority bears the burden of demonstrating that the action was unrelated to the disclosure.

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Principle 46: Disclosures to the Public by Persons with Authorised Access to Classified Information

(a) Public personnel may make disclosures, including of classified or otherwise confidential information, to the public if both of the following criteria are met:

i. The disclosure concerns the commission of a serious crime or a matter that is of immediate and serious harm to public health, safety, or the environment [or other matters listed in Principle 39]; and

ii. The employee (i) has already made the disclosure through internal procedures; or (ii) has reasonable grounds to believe that disclosure through internal procedures or to an independent oversight body would result in evidence being concealed or destroyed or has (or could) result in retaliation against him/her or any other individual.

(b) If the law imposes criminal penalties for the unauthorised disclosure of information to the public or to persons with the intent that the information will be made public, criminal penalties should apply only to the disclosure of narrow categories of information that are clearly set forth in law, the disclosure of which pose a real and identifiable risk of causing significant harm to a legitimate national security interest.

Note: The categories of information that could be subject to criminal penalties consistent with this Principle include the following, and should be similar in terms of specificity and impact on national security: technological data about nuclear weapons; intelligence sources, codes and methods; diplomatic codes; identities of covert agents; and inventions in which the government has an ownership interest and knowledge of which could harm national security.

(c) Any criminal penalty set forth in law and as applied must be proportional to the harm caused.

(d) The law should provide for a public interest defence where the person acts for the purpose of disclosing information described in Principle 39 and the public interest in the disclosure outweighs the public interest in non-disclosure.

(e) In deciding whether the public interest in disclosure outweighs the public interest in non-disclosure, the prosecutorial and judicial authorities should consider:

i. whether the extent of the disclosure was reasonably necessary to disclose the aforementioned matters;

ii. whether the person made the disclosure through internal procedures and/or to an independent oversight body before making the disclosure to the public and, in doing so, whether the person complied with the procedures outlined in Principles 40, 41 and 42;

iii. whether the person had reasonable grounds to believe that the disclosure would be in the public interest;

iv. the extent and risk of harm created by the disclosure; and

v. the existence of exigent circumstances justifying the disclosure.

Note: Prior disclosure through internal procedures or to an independent institution is not a necessary condition for htis defence to be considered.

Note: This Principle is not intended to limit any freedom of expression rights already available to public personnel.

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Principle 47: Encouraging and Facilitating Protected Disclosures

In order to encourage and facilitate the disclosure of information showing wrongdoing, states should require all public authorities to issue guidelines that give effect to the Principles in Part VI.

Note: Such guidelines should provide, at a minimum, (1) advice regarding the rights and/or responsibilities to disclose wrongdoing, (2) the types of information that should or could be disclosed, and (3) required procedures for making such disclosures.

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PART VII: LIMITS ON MEASURES TO PUNISH OR RESTRAIN THE DISCLOSURE OF INFORMATION TO THE PUBLIC

Principle 48: Protection against Penalties for Good Faith, Reasonable Disclosure by Information Officers

Persons with responsibility for responding to requests for information from the public may not be punished for releasing information that they reasonably and in good faith believed could be disclosed pursuant to law.

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Principle 49: Penalties for Destruction of, or Refusal to Disclose, Information

(a) Public personnel should be subject to penalties for wilfully destroying or tampering with information with the intent to deny the public access to it.

(b) If a court or independent body has ordered information to be disclosed, and the information is not disclosed within a reasonable time, the official and/or public authority responsible for the non-disclosure should be subject to appropriate penalties, unless an appeal is filed in accordance with procedures set forth in law.

Note:  The deterrent impact of penalties depends more on the likelihood that they will be imposed than on their severity. In several countries, administrative penalties, including dismissal from employment, and cancellation of pensions, have proved effective in deterring obstructive conduct when there has been a real likelihood that the penalties will be enforced.

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Principle 50: Penalties Concerning Dissemination of Information by a Person without Authorized Access to Classified Information

    (a) A person may not be punished for the mere receipt or possession of classified information.

    (b) A person who does not have authorised access to classified information may not be punished for disclosing information to the public[, except when disclosure actually resulted in serious harm to an individual, and the person who disclosed the information reasonably should have known that such harm was likely yet failed to take reasonable steps to prevent or mitigate harm].

    Note: “Serious harm” is here understood to mean a gross violation of human rights or a harm that would have constituted such a violation if committed by a state agent.

    (c) Nor may a person who does not have authorized access to classified information be subject to charges for conspiracy or other crime limited to conduct involving those with authorized access.

    Notes: Third party disclosures operate as an important corrective for pervasive over-classification.

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    Principle 51: Protection of Sources

    No journalist or other person who does not have authorized access to classified information may be compelled to reveal a confidential source or unpublished materials in an investigation concerning unauthorized disclosure of information to the press or public.

    Note: This Principle refers only to investigations concerning unauthorized disclosure of information, not to other crimes.

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    Principle 52: Prior Restraint

    (a) Prior restraints against publication in the interest of protecting national security should be prohibited unless a court finds that the government has established that publicizing the information would surely result in irreparable harm to the nation or serious physical injury to an identifiable individual or class of individuals.

    (b) In particular, if information has been made generally available to the public, by whatever means, whether or not lawful, any effort to try to stop further publication of the information in the form in which it already is in the public domain is presumptively invalid.

    Notes: Prior restraints are orders by judicial or other state bodies banning the publication of specific material.

    This Principle in no way intends to encourage leaks. “Generally available” is understood to mean that the information has been sufficiently widely disseminated that there are no practical measures that could be taken that would keep the information secret. For instance, in its 1991 Spycatcher judgment, the European Court of Human Rights concluded that, once the memoirs of a retired member of the British security services had been published in the United States, a court’s permanent injunction could no longer be sustained. [22] With the advent of the Internet and new media tools such as GoogleEarth, not to mention sites such as WikiLeaks, previously classified or otherwise restricted information continues to enter the public domain and once there cannot easily be contained. Attempting to enjoin publication of information that has been on the Internet for any length of time would, in most circumstances, be futile, would not meet the standard for causing identifiable harm, and would tend to compromise the credibility of the classification system.

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    PART VIII: CONCLUDING PRINCIPLES

    Principle 53: Relation of These Principles to Other Standards

    Nothing in these Principles should be interpreted as restricting or limiting any right to information recognized under international, regional or national law or standards, or any provisions of national or international law that would provide greater protection for disclosures of information by public personnel or others.

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    ANNEX: CATEGORIES OF INFORMATION WITH A HIGH PRESUMPTION IN FAVOUR OF DISCLOSURE

    This Annex, which is an integral part of the Principles, sets forth in greater detail the categories of information referenced in Principle 10.

    A. Democratic Participation in Fundamental Decisions
    The public needs access to the following categories of information in order to be able to exercise democratic oversight of fundamental decisions and actions affecting international obligations, respect for human rights, and use or serious abuse of power.

    1. Structures and Powers of Government

    (a) The existence of all public authorities, including military, police, security and intelligence agencies.

    Note: Secret state agencies pose grave dangers to constitutional democracies because accountability requires the greatest possible degree of openness. At the same time, countries face real threats and state actions necessary to protect the national security must sometimes be carried out in secret in order to be effective.  Thus, there can be room in a democracy for state institutions to operate to some degree in secret in order to protect and advance specific national security objectives.  In order for such secret services not to threaten civil society, they must be subject to the rule of law and public accountability, as are all other state institutions.

    (b) The laws and rules, and any written interpretations of them, especially those applicable to intelligence agencies, military forces, police and security agencies, and the bodies that oversee them, including laws, rules and written interpretations concerning the mandates, prerogatives and limits of powers of such agencies and bodies.

    Note:  To comply with requirements of democratic accountability, each state agency should be established by statute, which should specify the limits of the agency’s powers, its methods of operation and the means by which it will be held accountable. [23] This norm, however, lies outside the purview of the instant Principles.

    (c) The gross overall budget [and major line items] and basic expenditure for for each intelligence agency, military service, police and security agency, and the bodies that oversee them, and information about the specific uses of public funds by each such agency or body.

    Note:  An agency may withhold information about the specific uses of the funds only if it can articulate specific reasons as to why disclosure would compromise the operational security of such agencies or other legitimate national security interests.

    (d) The internal oversight mechanisms for intelligence and security agencies.

    (e) The names of officials who head agencies, and the names and contact information of individuals with oversight responsibilities.

    Note: Where disclosure of names poses an identifiable and substantial risk of bodily or psychological harm or threats to such officials or close associates or family members that cannot be minimized by reasonable means, other methods of holding accountable, and contacting, such individuals should be made available.

    (f) The existence and terms of concluded bilateral and multilateral agreements, and other major international commitments by the state on national security matters.

    2. Important Decisions or Policies, Including Decisions to Commit Combat Troops Overseas

    (a) Information that shows that the Government has mischaracterized a fact relevant to an important decision or policy

    (b) [More… ]

    3. Surveillance

    (a) The laws and primary regulations governing all forms of secret surveillance, interception of communications, and the establishment and use of secret files or registers,

    (b) The nature of the offences that may give rise to surveillance; a definition of the categories of activities liable to place a person under surveillance, and the authorities that may authorize such measures; the limit on the duration of surveillance measures; the procedure to be followed for accessing, using and storing the data obtained; the precautions to be taken when communicating the data to other public or private parties; and the circumstances in which data obtained through surveillance should be destroyed.

    (c) Notice of any unlawful secret surveillance measures against an individual, and of lawful secret surveillance measures after their termination, in such a manner to not undermine the general effectiveness of surveillance systems and unless the law specifically provides for exception to this general principle on a specific finding by a court that disclosing the particular surveillance will interfere with an ongoing law enforcement investigation or damage the national security.

    Notes:  Persons who suspect that they may have been unlawfully subjected to secret surveillance, or that factually incorrect information about them has been entered in secret files or acted upon, should have recourse to an independent authority vested with adequate powers to make such a determination and notify the claimant of its findings, at the very least as to the legality of any relevant surveillance or record-keeping measures undertaken.  In such cases, the law should provide effective remedies for the correction or, as appropriate, destruction of incorrect or unlawfully collected personal information.

    Persons should be notified of any surveillance measures to which they have been subjected, after such measures have been terminated, unless the law specifically provides for exception to this general principle on a specific finding by a court that disclosing the particular surveillance will interfere with an ongoing law enforcement investigation or damage the national security. ]

    Public or private employers using security vetting based on secret information provided by national security agencies should be required by law to inform their current or prospective employees, absent any compelling secrecy interest, whether they were subjected to such vetting and whether it [adversely] influenced the decision to hire or retain them.

    4. Detention and Interrogation

    (a) Laws, policies, regulations, and written interpretations of them, concerning government detention and cross-border transfers of detainees, including during armed conflicts or counter-terrorism operations;

    (b) Laws, policies, regulations, and written interpretations of them, concerning government use of interrogation techniques including methods and means of interrogation by, or [on behalf of] [in facilitation of the conduct of, the state and its agents;

    (c) The location of all places where persons are deprived of their liberty operated by or on behalf of the state as well as the identity of, and charges against, all persons deprived of their liberty including during armed conflict;

    (d) The identity of, and charges against, all persons in detention, or, if there are no charges, then the reasons they are being held stated with sufficient specificity to enable the press and public to evaluate the legality and wisdom of such detention.

    Note: Even after a person has been released, the public continues to have a right to know the reasons for the detention in order to be able to assess the detention’s legality.

    5. Accountability concerning Security Sector Contracts and Other Financial Matters

    Concerning security sector contracts (including for sale, purchase, procurement or service) relating to weapons, military equipment and matériel, as well as military transports (including ships, planes, vehicles) -

    (a) information on the use of, and payments to or from, any agents or other third parties involved in transactions with, or supported by, public authorities;

    (b) information on any commissions paid to public authorities, government officials, elected representatives, or their close relatives by any parties to such a contract;

    (c) information on the receipt of monies, shares or other benefits accruing directly or indirectly to any elected representative or government official from any party to such a contract.

    (d) Independent audit reports

    [Need new section on contracts / management of critical infrastructure resources, or incorporating them in (ii).]

    B. Gross Violations of Human Rights and Serious Violations of International Humanitarian Law

    The public, victims and their families are entitled to have access to the following categories of information held by public authorities by virtue of the right to information, the right to an effective remedy for fundamental human rights violations, and the principle of democratic oversight of policies and actions that pose a risk of violating human rights. The deliberate destruction of such information is a grave violation of the right of the public and victims to the truth. These categories of information may be exceptionally withheld for time-limited periods only, such as for a period that is strictly necessary to ensure the effective prosecution of those responsible for human rights abuses, or to protect the dignity and rights of the victims of abuse [during the period during which victims of abuse are exposed to identifiable and substantial risks of physical or mental harm, or threats].

    (a) The names of all victims of gross violations of human rights or serious violations of international humanitarian law, including crimes under international law – including unlawful killings, enforced disappearances, torture, prolonged, arbitrary detention or other violations amounting to war crimes or crimes against humanity – committed by the State, State agents  or people acting with any level of government support, whether in peace time or during hostilities, and the dates and circumstances of these violations.

    (b) Identification of units, and their superiors and commanders, present at the time of, or otherwise implicated in, such human rights and international humanitarian law violations.

    (c) The location of mortal remains of all persons killed, whether lawfully or unlawfully, by government agents or people acting with any level of government support, or other information that could lead to the location of the remains by family members and, where appropriate, the general public.  If unknown, the reasons for lack of information.

    (d) Other information concerning the gross violations of human rights or serious violations of international humanitarian law committed by agents of the State that holds the information or by other States where the State in question provided material, diplomatic, logistical or other support.

    Notes:
    A successor government must immediately ensure the integrity of such information concealed by a prior government and release it without delay.

    If a court orders disclosure of information concerning grave human rights violations that a public authority had previously refused to disclose, the authority may not merely claim that the information never existed or was destroyed by parties over which the authority had no control.  The authority must demonstrate that it (i) made a genuine and reasonable effort to find the information, (ii) made a reasonable effort to (re)construct it, and/or (ii) provide reasons for not releasing the information.

    C. Public Health, Safety and the Environment

    The public needs the following information to be able to protect public safety, health and the environment. The state may withhold details of such information only where it can demonstrate that disclosure would cause identifiable and serious harm to national security.

    (a) Emergency response plans

    (b) Pollution and emissions

    Note:   These categories need to be elaborated, and more sub-categories should be added.

     

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    Your Comments

    We especially welcome comments on the following:

    1. Principle 2 - regarding scope of coverage of the Principles - reads:

    These Principles apply to information held by a public authority where the authority asserts that the release of such information could cause harm to national security, defence, intelligence activities or international relations of the state. Given that national security is the weightiest public ground for restricting information, all other public grounds for restricting access must at least meet these standards.

    Do you think this phrasing of the scope of application is appropriate? In particular, do you think that mentioning “international relations” is problematic? We recognize that most countries do not include international relations within their definition of national security, but we also recognize that a considerable amount of diplomatic communications impact or reference national security matters, and we do not want the applicability of these Principles to be so limited that governments could evade their applicability by asserting that information is withheld on grounds of international relations rather than national security.

    2. We have placed a few words or phrases in brackets, indicating that the drafters could not decide whether or not to include them. For instance, should [clearly] be used to modify “outweighs” in a few places, and should [high] be used to modify “public interest”? We welcome your comments on the remaining bracketed options, and of course, please give reasons.

    3. In an earlier draft, some Principles that address requirements of international law were phrased in mandatory language. Several commentators, however, urged that mandatory language sets the wrong tone given that these are, after all, just principles and not, e.g., a model law. Moreover, phrasing some obligations as mandatory could be invoked to suggest that other obligations are of lesser forcefulness or importance. We have included a few “musts” in notes and explanatory language. We welcome your comments.

    4. Principle 9 sets forth an exhaustive list of categories of information that may legitimately be withheld on national security grounds, assuming compliance with all of the other principles. Do you agree that we have included all possible categories of information that could legitimately be withheld on national security grounds? Are any categories over-inclusive? For instance, can you suggest ways to narrow the category of “diplomatic communications”? Or “measures to safeguard critical infrastructure”? Can you suggest notes that should follow any of the categories in order to clarify their parameters? We welcome suggestions regarding how to better tailor these categories.

    5. Principle 10 – regarding categories of information of high public interest – needs further work, especially regarding information concerning health, safety or the environment. We welcome suggested language.

    6. Principles 45 and 46 address protections for internal whistleblowers. We have incorporated a public interest defence in Principle 46 (b). We welcome comments on whether the language is adequate/appropriate.

    7. Principle 50 sets forth the principle concerning people without authorized access who disclose info to the public or media. We are especially interested to get feedback on this principle.

    We look forward to hearing from you.

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    [D-15] See 2004 Joint Declaration by UN Special Rapporteur on Freedom of Opinion and Expression Ambeyi Ligabo, OSCE Representative on Freedom of the Media Miklos Haraszti, and OAS Special Rapporteur on Freedom of Expression Eduardo Bertoni. Note that the African Commission on Human and Peoples’ Rights did not appoint a rapporteur on freedom of expression until 2005. In 2008, her mandate was expanded to expressly include the right to information.

    [D-16] These include race, colour, gender, sexual orientation, language, religion, political or other opinion, national or ethnic origin, property, birth or other status.

    [D-17] Martin Scheinin, “Good Practices,” UN Doc. No. A/HRC/14/46, issued 17 May 2010. See note to Practice 1.

    [D-8] Martin Scheinin, “Good Practices,” UN Doc. No. A/HRC/14/46, issued 17 May 2010.

    [1] Each organisation is followed by the name of the city where headquartered – unless the organisation has substantial operations in three or more cities – and its geographic area of operation.

    [2] As of November 2012, 93 countries had national laws or judicially enforceable regulations conferring the right of access to information, at least in law, to more than 5.2 billion people.

    [3] Security Within the North Atlantic Treaty Organisation, Doc. C-M(2002)49, adopted 26 March 2002, issued 17 June 2002, including Enclosure E on Security of  Information and Enclosure F on INFOSEC, as revised by the Directive on Security of Information, Doc. AC/35-D/2002-Rev2, issued 4 Feb 2005.

    [4] Declaration, Issued by the African Commission on Human and Peoples' Rights, 32nd Session, 17 - 23 October, 2002: Banjul, The Gambia.

    [5] The General Assembly of the Organisation of American States, at its June 2010 session, adopted a resolution, to which the Model Law is appended, offering to provide support to member States with the design and execution of their regulations and policies on access to information. AG/RES 2607 (XL-0/10).

    [6] Report, 4 June 2010.

    [7] The Johannesburg Principles on National Security, Freedom of Expression and Access to Information. See Coliver, et al (eds.) Secrecy & Liberty (Martinus Nijhoff Pubs 1999), which includes a detailed commentary on the Jo’burg Principles.

    [8] Martin Scheinin, “Good Practices,” UN Doc. No. A/HRC/14/46, issued 17 May 2010.

    [9] Doc. CP/CAJP-2840-10. The General Assembly of the Organisation of American States, at its June 2010 session, adopted a resolution, to which the Model Law is appended, noting the Model Law and offering to provide support to member States with the design and execution of their regulations and policies on access to information. AG/RES 2607 (XL-0/10). See definition of information at http://www.oas.org/dil/access_to_information_model_law.htm.

    [10] See judicial decisions [to be added].

    [11] See, e.g. “Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information,” adopted by the Committee of Ministers of the Council of Europe, 8 March 2000; European Court of Human Rights, Grand Chamber judgment, Sanoma Uitgevers B.V. v. the Netherlands, 14 Sept 2010, para. 44.

    [12] “Legitimate national security interest” lies at the very heart of these Principles and for that reason any positive definition will be circular. Accordingly, the term is primarily defined by what is not included. Cf. Johannesburg Principles, Principle 2.

    [13] See, e.g., Model Inter-American Law on Access to Information, OAS Gen Assembly RES. 2607 (XL-O/10), adopted at the fourth plenary session, June 8, 2010, Art. 3. The General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights similarly states that “Public bodies include all levels of State bodies and organs, including the judiciary, and with regard to the carrying out of public functions, it may include other bodies.” (para. 18.).

    [14] Martin Scheinin, “Good Practices,” UN Doc. No. A/HRC/14/46, issued 17 May 2010.

    [15] See 2004 Joint Declaration by UN Special Rapporteur on Freedom of Opinion and Expression Ambeyi Ligabo, OSCE Representative on Freedom of the Media Miklos Haraszti, and OAS Special Rapporteur on Freedom of Expression Eduardo Betoni. Note that the African Commission on Human and Peoples' Rights did not appoint a rapporteur on freedom of expression until 2005. In 2008, her mandate was expanded to expressly include the right to information.

    [16] Current international standards for archiving are found in Charles Kecskeméti and Iván Szekeléy, Access to Archives (Strasbourg: Council of Europe, 2005).

    [17] This Principle is set forth in the Model Inter-American Law on Access to Information, OAS Gen Assembly RES. 2607 (XL-O/10), adopted at the fourth plenary session, June 8, 2010, Art. 3. See Principle 33.

    [18] See Inter-American Court of Human Rights, judgment in Gomes Lund v. Brazil (Araguaia Guerrilla case), paras __.

    [19] International law permits no derogation on national security grounds from the obligation to pronounce judgments publicly. See, e.g., ECHR, Art. 6.1 and ICCPR Art. 14.1. The Human Rights Committee has stated that, under Article 14.1 of the ICCPR, “Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public, except “where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

    [20] In the case of public access to hearings, article 14(1) of the ICCPR and article 6(1) of the ECHR reflect the authority of the courts to exclude all or part of the public from a hearing for reasons of morals, public order, national security in a democratic society, the interest of the private lives of the parties, or to avoid prejudice to the interests of justice, provided that such restrictions are in all cases necessary and proportional. See Principle 3.

    [21] The Principles in this section are elaborated in detail given that the information that oversight bodies need to carry out their responsibilities often is both exempted from public disclosure and of public interest. These Principles are applicable to all bodies with oversight responsibilities related to national security, including, for example, budgetary or finance authorities that hold information concerning national defence or intelligence, legislative committees, ombuds institutions, anti-corruption commissions, supreme audit institutions, and specialised non-legislative committees.

    [22] The Observer and Guardian v. UK and The Sunday Times v. UK (No. 2),  Judgments of 26 November c1991, Series A, No. 216 and 217, 216 Eur. Ct. H. R. (ser. A), paras. 66-70, (Observer and Guardian), and paras. 52-56 (The Sunday Times (No.2).

    [23] Centre for National Security Studies and Helsinki Foundation for Human Rights (Poland), Security Services in a Constitutional Democracy: Principles for Oversight & Accountability, 1997.

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