We bring together information on the legal frameworks for the right to information from more than 100 countries.
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National Security

Overview

National security is one of the exceptions under all access to information (ATI) laws. However, few of the laws, or their implementing regulations, define national security for purposes of withholding information. Nor do they set froth clear standards or procedures for classifying or otherwise withholding information on security grounds.

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 well informed about the state’s activities, including those undertaken to protect national security.

In order to protect the full exercise of human rights, in certain circumstances it may be necessary to keep information secret to protect legitimate national security interests. Striking the right balance is made all the more challenging by the fact that courts in many 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.

In recent years, a significant number of states around the world have embarked on adopting or revising classification regimes and related laws. This trend in turn has been sparked by several developments. Perhaps most significant has been the rapid adoption of access to information laws since the fall of the Berlin Wall, with the result that, as of June 2013, more than 5.2 billion people in 95 countries around the world are entitled to exercise the right of access to information—at least in law, if not in practice. People in these countries are—often for the first time—grappling with the question of whether and under what circumstances information may be kept secret.  Other developments contributing to an increase in proposed secrecy legislation include government responses to terrorism or the threat of terrorism, and an interest in having secrecy regulated by law in the context of democratic transitions.

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Global Principles on National Security and the Right to Information (the Tshwane Principles)

On 12 June 2013, 17 organizations and five academic centres, working in all parts of the world, issued a set of Principles on National Security and the Right to Information.

These Principles were developed in order to provide guidance to those engaged in drafting, revising or implementing laws or provisions relating to the state’s authority to withhold information on national security grounds or to punish the disclosure of such information.

They 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.

For more detail, see a full page dedicated to the Global Principles on National Security and the Right to Information (the Tshwane Principles), including international and regional law and standards and writings of experts.

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Relevant cases

 

Relevant Cases

Title:Country:Year:Court / Arbiter:
Case title: Petitioner v. Centro de Investigacion y Seguridad Nacional (Centre of Investigation and National Security) Mexico 2003 Appellate The Centre of Investigation and National Security must disclose a public version of its organogram with the content required by law, excluding to that effect any information that may endanger the life, security or physical integrity of its employees, such as the name, position and contact information of certain agents
Boniface Okezie v. Attorney-General of the Federation and The Economic and Financial Crimes Commission Nigeria 2013 First instance Public institutions must comply with requests for information within seven days. If they refuse to comply, they must supply specific bases for refusal under the FOI Act in a notice to the applicant within seven days of the request.
Bucur and Toma v. Romania Romania 2013 International / ECHR The criminal conviction of a public employee for revealing, in a high-profile press conference, irregularities in a government wiretapping intelligence program amounts to a violation of freedom of expression under Article 10 of the European Convention of Human Rights.
In re Articles 27 and 42 of Decree 1799 of 2000 Colombia 2003 Constitutional Information unrelated to maintaining national security and with no material link to protecting territorial integrity and defending democratic institutions or to the enjoyment of fundamental individual rights, including the right to privacy, may not be restricted.
Center for International Environmental Law v. Office Of The United States Trade Representative Et Al. United States 2012 First instance Mere existence of a confidentiality agreement is not itself an adequate basis for the lawful classification of information; the party withholding information has a burden to justify how disclosure of the material would cause the ‘requisite degree of harm’ to the legitimate interest invoked.
Citizens for Responsibility and Ethics in Washington v. US Department of Homeland Security and Others United States 2007 First instance White House and Vice Predisdential Residence visitor records are "agency records" subject to FOIA disclosure because such records are generated, routinely preserved, and selectively disposed of by the Secret Service.
In re Constitutionality of various acts of primary and secondary legislation related to archives and classification regime Hungary 1994 Constitutional Freedom of scientific life, the right to protection of personal data and the right to freedom of information need to be balanced against one another. The state is obliged to guarantee access to documents of communist ruling parties for scientific research. Freedom of information and scientific life cannot be regulated by secondary legislation. Only people holding public power can classify information as a state or official secret.
Gomes Lund et. al. v. Brazil Brazil 2010 International / IACHR The right to truth about gross human rights violations arises from Article 13 of the American Convention on Human Rights in combination with other rights. A State may not legitimately deny access to information about gross human rights violations on grounds of state secrecy, and must entertain requests for such information in good faith. The burden of proof regarding the non-existence of relevant records lies with the state.
Guja v. Moldova Moldova 2008 International / ECHR Severely sanctioning a civil servant for his public disclosure to the press of internal documents revealing possible governmental corruption constitutes a violation of freedom of expression under Article 10 of the European Convention of Human Rights.
Incorporated Trustees of the Citizens Assistance Centre v. Honourable S. Adeyemi Ikuforiji & Lagos State House of Assembly Nigeria 2012 First instance The Freedom of Information Act 2011 cannot be applied retroactively to requests for information that originated prior to the enactment of the Act. An order of mandamus is an extraordinary remedy that should only be granted when all other judicial remedies have been exhausted.
Kenedi v. Hungary Hungary 2009 International / ECHR The Hungarian ministry’s reluctance to comply with the courts’ rulings and allow unrestricted access to documents sought for historical research purposes constitutes a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
Milner v. Department of the Navy United States 2011 Supreme FOIA Exemption 2, which protects from disclosure material “related solely to the internal personnel rules and practices of an agency” does not apply to military explosives data and maps because Exemption 2 covers strictly human resource matters.
Ministry of Defense v. Gisha Legal Center for Freedom of Movement Israel 2011 Supreme The Ministry of Defense improperly refused to disclose a document relating to the provision of food to the Gaza strip. While the document might have contained information relating to internal deliberations, the ministry failed to provide concrete reasons why the information was sensitive and failed to consider the possibility of partial disclosure.
Petitioner v. Centro de Investigacion y Seguridad Nacional (Centre of Investigation and National Security) Mexico 2008 Appellate The Centre of Investigation and National Security must disclose public information of 12 contracts for the provision of equipment entered with SOGAMS S.A. de C.V, outlining public information not related to the equipment or materials themselves, such as term, price and date, and disclosing the names of non-intelligence personnel. The Centre of Investigation and National Security can legally withhold information on the elements purchased, their characteristics and the intelligence personnel involved in such contracting since this constitutes reserved information.
Petitioner v. Secretaria de la Defensa Nacional (Secretary of National Defense) Mexico 2007 Appellate The Secretariat of National Defence must release the name of the public officials who purchased body armour and the quantities provided to other agencies since this is public information under Article 7 of the RTI Law. Information on the security level of such armour is classified under Article 13(I) as it compromises national/public security and national defence, and – to the extent it is not already publicly available – should be kept confidential.
Petitioner v. Secretaria de la Defensa Nacional (Secretary of National Defense) Mexico 2005 Supreme The Secretariat of National Defence must elaborate a public version of the documents sought by Petitioner which contain a description of the country’s overall defence strategy – public information – but which leaves out strategic and logistical data that, if disclosed, would naturally affect military operations and endanger national security.
The Prosecution in the trial of Ríos Montt v. Ministry of National Defense Guatemala 2008 Constitutional The public authority must release military operational plans from the past in the prosecution of a former military leader because the plans do not constitute “state secrets” and thus are not protected from disclosure under the exemption in Article 30 of the Constitution.
Toktakunov v. Kyrgyzstan Kyrgyzstan 2011 International / UN The right to information held by public bodies is grounded within the right to freedom of expression; and Kyrgyzstan violated this right by not disclosing information concerning death sentences pursuant to secret bylaws.
Turek v. Slovakia Slovakia 2006 International / ECHR Refusal of the national authorities to give the applicant access to materials classified as top secret by the former regime violated the applicant’s right to respect for his private life, given that he needed the materials to contest the state’s determination that he had collaborated with State Security agents.
UK All Party Parliamentary Group on Extraordinary Rendition v. Ministry of Defense United Kingdom 2011 Appellate Information concerning detention and interrogation policies is of high public interest and should be disclosed; the public interest in access to diplomatic assurances that detainees would not be tortured outweighs any harm that might flow from disclosure; information concerning the Special Forces and legally privileged communications are exempt; and the personal data exemption is not implicated in a request for non-identifying statistical details.
Youth Initiative for Human Rights v. Serbia Serbia 2013 International / ECHR The freedom to receive information embraces a general right of access to information. Article 10 of the Convention includes the right of access to data held by an intelligence agency. A public body cannot evade requests for information by simply declaring that it does not hold the information.
Zolotonosov v. Interdepartmental Commission for the Protection of State Secrets under the President of the Russian Federation Russia 2011 First instance Regulations that set forth procedures for declassifying documents and for extending terms of classification affect the rights of the general public and must therefore be publicly available.

 

Relevant Briefs and Submissions

Title:Intervener:Year:Court / Arbiter:Download Brief:
Gomes Lund et. al. v. Brazil CHRI, ODAC, OSJI SAHA 2010 Inter-American Court of Human Rights English
Portuguese
Spanish