A draft set of “Principles on National Security & Access to Information” has been released for comment by groups developing them as a resource for policymakers.
Developing the principles are: the Open Society Justice Initiative, Article 19, Centre for Law & Democracy, Centre for National Security Studies, ICJ, Institute for Security Studies, National Security Archive, and the four rapporteurs on Freedom of Expresssion/media.
“Our aim is for the principles to serve as a resource for those engaged in drafting or revising classification or related laws, and to command the respect of a wide spectrum of stakeholders, from legislators, government officials, and enlightened intelligence professionals to freedom of information experts,” according to the Justice Initiative’s Sandy Coliver.
The new principles will include sections on categories of national security information that must be proactively disclosed; procedural protections against abuse concerning classification and declassification; and requirements for effective administrative, judicial and parliamentary oversight.
The drafters are seeking comments and information about government efforts to cut back on the right to information on national security grounds. They hope to circulate a penultimate draft in June. They hope to finalize the principles, likely to be called the Budapest Principles, by the summer.
Comments should be sent to scoliver@justiceinitiatve.org.
PRELIMINARY DRAFT
PRINCIPLES ON NATIONAL SECURITY AND ACCESS TO INFORMATION
March 2011
These Principles were drafted by the Open Society Justice Initiative, in consultation with several other organizations and experts, in order to provide a starting point for discussion with other experts. They will be finalized by end of June. Please send any comments before then to scoliver@justiceinitiatve.org.
Note: Principles on oversight and whistleblower protection will be developed at a consultation with members of oversight bodies hosted by the Geneva Centre for Democratic Control of Armed Forces, and accordingly are only sketched out in this draft.
Note 2: These Principles complement, and do not duplicate, the “good practices of intelligence oversight” issued in 2010 by Martin Scheinin, the UN Special Rapporteur on human rights and counter-terrorism.[1] Principles 27-30 go into greater depth than do Scheinin’s Good Practices 7, 8 and 10 on unhindered access of oversight institutions to information and officials necessary to fulfill their mandates. Principle 38 elaborates Scheinin’s Good Practice 18, mandating protection for national security whistleblowers. These Principles do not address intelligence collection (see Scheinin’s Practices 21-22), management of personal data (Practices 23-26), or intelligence sharing (Practices 31-35).
I. GENERAL PRINCIPLES
Principle 1: Right of Access to Information
Everyone has the right to seek, receive and impart information of all kinds, recorded in any form, without the need to prove a specific interest in the information. In particular, everyone has the right to seek, receive and impart information drawn up or held by public authorities, including information relating to national security.
Principle 2: Protecting National Security
The exercise of the right of access to information may be subject to restrictions only on specific grounds established in international law, including for the protection of national security.
Principle 3: The General Standard for Restricting Freedom of Information on National Security Grounds
No restriction on the right to information on the ground of national security may be imposed unless the government can demonstrate that the restriction (i) aims to protect a legitimate national security interest, (ii) is prescribed by law, and (iii) is necessary and proportionate to protect that interest.
For a restriction to qualify as necessary and proportionate, (i) the government must articulate the specific harm which is likely to result from disclosure, and (ii) that harm must outweigh the value of the information for public debate.
Principle 4: Burden on the Government
The burden of demonstrating the validity of any restriction rests with the government. Any doubt should be resolved in favor of disclosure.
The assertion by a minister or other official that disclosure would cause serious and identifiable harm to national security may not be deemed conclusive evidence of harm.
Principle 5: Harm Test
The harm test requires a showing that disclosure would likely cause an identifiable harm to a specific national security interest. Before information may be withheld, the likelihood and nature of the feared harm to national security must be clearly specified in writing.
Question: Should the harm also be required to be imminent?
Principle 6: Public Interest
(a) Even if disclosure of information would likely cause identifiable harm, the information should nonetheless be released if the public interest in disclosure is greater than the harm likely to result from disclosure.
(b) Certain categories of information must be disclosed because the public interest in the information is very high and outweighs any possible harm. (See illustrative list of such categories in Principle 16.)
(c) Other information of high public interest may be withheld only if there is no alternative, including a reasonable expenditure of funds, that would reduce the risk of harm from disclosure to an acceptable level.
Principle 7: Partial Disclosure
Only those portions of documents that qualify for the exception to disclosure may be withheld. The government has an obligation to segregate and disclose portions of documents that do not qualify for the exception to disclosure. To facilitate this process in a declassification review, documents should be marked clearly at least on a paragraph by paragraph basis to show the level of classification as well as the reason for classification.
Principle 8: Information in the Public Domain
Once information has been made generally available, by whatever means, the burden on the government to justify withholding increases. If the disclosure is by a government agency, any justification for further withholding the information becomes substantially weaker and in all but exceptional cases the information must be made public. [This principle needs sharpening.]
Principle 9: Duty to Confirm or Deny
Upon receipt of a request for information, a public authority must confirm or deny whether it holds the requested information. It may refuse to confirm or deny only in exceptional circumstances, when disclosure of the very existence of the information would itself cause identifiable harm, and … [what other protections?]
Principle 10: Reasons for Denial in Writing
If an agency denies a request for information, it must specify the reasons for doing so in writing as soon as reasonably possible.
Principle 11: Time Limits for Response
Time limits for responding to requests must be established by law. Expedited review should be required where there is a demonstrated public need for the information on a timely basis.
II. INFORMATION THAT LEGITIMATELY MAY BE WITHHELD ON NATIONAL SECURITY GROUNDS, AND INFORMATION THAT MUST BE DISCLOSED PROACTIVELY OR ON REQUEST
Principle 12: Information That Legitimately May Be Withheld
Any restriction on the right to information that a government seeks to justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest.
In order to be subject to classification, information must comply with the rest of these Principles and must fall into one of the following categories:
i. military plans or operations;
ii. technological data concerning weapons, their production or use;
iii. diplomatic correspondence, or information supplied by foreign governments, transmitted with the expectation of confidentiality;
iv. operational intelligence activities (including special activities), intelligence sources or methods, or cryptology;
v. programs for safeguarding nuclear, biological or chemical materials or facilities;
vi. vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the country’s security;
vii. scientific, technological, or economic matters relating to the country’s security;
viii. information about inventions in which the government has an ownership interest and knowledge of which could harm national security;
ix. actions taken to protect the security of the country and its people, including from terrorist acts or other violent acts aimed at overthrowing or undermining the country, its system of government, or a foreign state where such action could undermine the country’s security.
Question: Is this an appropriate list? Are there categories of information that should be added or deleted? Should some language be tightened, e.g., sub-principle vii?
Principle 13: Prohibition of Withholding for Illegitimate Purposes
Any restriction on the right to information sought to be justified on the ground of national security is not legitimate if its primary purpose is to protect interests of the regime in power rather than the legitimate interests of the public. Illegitimate purposes include, for example, protection from embarrassment; concealment of information about human rights violations, corruption or other public wrongdoing; and entrenchment of a particular ideology.
Principle 14: Information that May Not Legitimately Be Classified as a National Security Secret
Although a government may withhold information on various grounds – including to promote the effective administration of justice, prosecution of crime, and free and frank deliberation; and to protect commercial or personal secrets – a government may not withhold such information on national security grounds, unless the information falls within one of the categories listed in Principle 12.
Principle 15: No Exemption for Entire Agencies
Entire agencies, including those devoted to intelligence or security and the office of the head of state, may not be exempted from disclosure requirements. Only those files that relate to operational activities, and that have not been circulated beyond the operational unit and do not provide information revealing illegal or unauthorized activity, may be exempt from search and review procedures but only by carefully drawn legislation spelling out the limits of the exemption to such requirements.
Question: Many, if not most, countries, do exempt entire agencies from the coverage of access to information laws. For instance, the UK’s FOIA states that “[i]nformation held by a public authority is exempt information if it was directly or indirectly supplied by, or relates to, any of the bodies specified” elsewhere in the Act. In the UK such information is subject to the public interest test if contained in a historical record held by the National Archives.Should a section be added here that states that, at the least, information from any agencies that are deemed exempt should be subject to disclosure laws, including the public interest override, if more than xx years old.]
Principle 16: High Presumption in Favor of Disclosure of Certain Categories of Information
Certain categories of national security information are so important for the public to be able to access in order to exercise democratic oversight of fundamental decisions and actions affecting international obligations, human rights, war and peace, public health, safety and the environment, and serious abuse of power, and/or have so little, if any, potential to harm a legitimate national interest, that the government bears an affirmative obligation to publish this information proactively, and may in no circumstances withheld the information from the public or sanction its disclosure.
[At the very least: In all circumstances, (a) such information must be disclosed to a committee of the legislature, (b) any agency that receives a request for such information must confirm or deny whether it holds the information, and (c) the information may be withheld only upon a showing that disclosure would cause overriding harm to an identifiable national security interest.]
[Question: Should the bracketed language be included?]
These categories of information of high public interest include, but are not limited to, the following:
a. Structures and Powers of Government
- The existence of any particular military, police, security or intelligence agency or entity.
- The laws and rules applicable to intelligence agencies, military forces, police and security agencies, including those concerning the missions, authorities and limits on authorities of such agencies.
- The gross overall budget for each intelligence agency, military service, police and security agency and as much information about the specific uses of public funds by each such agency as may be disclosed without compromising the operational security of such agencies.
- The names of the officials who head military services, police, and security agencies and secret intelligence agencies.
- The internal oversight mechanisms for secret intelligence and security agencies, including the names and contact information of individuals with such oversight responsibilities.
Where disclosure of names poses a [substantial] [identifiable] risk of bodily harm to such officials that cannot be minimized by reasonable means, other methods of holding accountable, and contacting, such individuals should be made available.
b. Oversight of Activities that Pose a High Risk of Violating Human Rights
- The laws, policies and regulations concerning government surveillance, searches or detention of i) citizens, ii) non-citizens with lawful resident status, and iii) other non-citizens, and any legal opinions used to justify such laws, policies, regulations or their implementation.
- The laws, policies, regulations and legal opinions concerning government use of enhanced interrogation techniques.
- The location of all centers where people are detained by the government or with the government’s material, diplomatic, logistical or other support.
- The names of all persons detained by the government or with the government’s support and the charges against them, or, if there are no charges, then the reasons they are being, or were, held stated with sufficient specificity to enable the [detainee] [press and public] to come forward with relevant evidence, and/or to assess legality of the detention after the cessation of conditions that justified the detention.
- The names of all persons killed or forcibly disappeared by government agents or people acting with any level of government support; the names of units, and their commanders, responsible for, or who were present at the time of, the killings or disappearances; the location of mortal remains, or, if unknown, the reasons for lack of information.
- Other information concerning crimes against humanity and other grave human rights abuses by the government which holds the information.
- Information concerning crimes against humanity and grave human rights abuses committed by other governments.
- Government waivers resulting in decisions not to comply with international obligations in the interest of national security.
c. Oversight of Fundamental Decisions Concerning War and Peace
- The fact that a nation possesses nuclear weapons and a description of the extent of those weapons.
- The location of armed nuclear weapons, including outside the territory of the state.
- Weapons systems concepts and costs.
- The fact that armed forces or others authorized to engage in hostilities are engaged in combat, are in imminent danger of combat or are stationed overseas.
- Funding of another state’s armed forces.
- Treaties or other international agreements obligating the country to use military force in defense of other countries.
d. Impacts on Public Health, Safety or Environment
- Information concerning substances in the air, water, ground, or food, or information concerning decisions made or contemplated, that have affected or [could] [likely will] affect public health.
- Information concerning substances in the air, water, ground, or food, or information concerning decisions made or contemplated, that have affected or likely will pose a [material] risk of harm to national monuments, national forests, parks or other national lands, including the animals and plants therein.
- Factual information about security threats, and the government’s plans to protect the population from them, to the extent necessary for the public, or parts of the public located near any security threats, to make informed decisions about how best to protect their own safety.
- Following a security threat, information about the government’s responses necessary for the public to be able to exercise democratic accountability.
e. Information that Discloses Serious Corruption or Other Governmental Wrongdoing
- Information concerning constitutional violations and other abuses of power, including corruption, by government agencies or officials.
Question: Principle 16, together with Principle 6, the public interest override, forms the cornerstone of these Principles. The above list offers a substantive approach to safeguarding the right of access to national security information. Only a few of these categories are mentioned in any laws with which we are familiar, most are drawn from case-law and sound policy.
- Is the level of specificity and number of categories appropriate?
We plan to include categories of economic information of high public interest relevant to detecting and deterring grand corruption and promoting the people’s control of their natural resources.
- Are there other categories of information that should be included?
III. PROCEDURES FOR CLASSIFICATION AND PROTECTIONS AGAINST ABUSE
Principle 17: Justification Requirement
Each paragraph of a document that is classified must be accompanied by a statement justifying the decision to classify.
Principle 18: Marking Requirement
To be deemed classified, a document should have a protective marking that indicates the level of classification on a paragraph by paragraph basis.
Principle 19: Temporal Limitations on Classification
(a) Information may be withheld only so long as necessary to protect a legitimate national interest.
(b) The classifier must specify the date or event (e.g., withdrawal of troops) on which the classification shall lapse.
(c) The presumptive maximum period of classification is ten years from the date of creation of the information. This term may be extended for an additional ___ years in exceptional circumstances and only if the standards for de novo classification are met.
Question: Can these exceptional circumstances be more narrowly defined?
(d) Information of high public interest should be subject to classification, if at all, for periods of no longer than __ (one?) year, which classification status may only be renewed if the standards for de novo classification are met.
Commentary: Principle 16 lists several categories of information of exceptionally high public interest that must be proactively published. This Principle recognizes the reality that in many countries, much of this information, as well as other information of high public interest, is routinely classified. This Principle calls, at the least, for short periods of classification
Principle 20: Authority to Classify
(a) Only senior officials may classify documents. If a junior official believes that information must be classified, the information may be withheld for up to __ weeks until a senior official has reviewed the recommendation for classification.
(b) Cabinet ministers should assign original classification authority to the smallest number of senior subordinates that is administratively efficient.
(c) The fact, level of classification, and date of declassification should be reviewed and revised or endorsed by each supervisor who reviews the document in the normal chain of command.
Principle 21: Requirement of Interim Reviews of Classification Decision
The classification decision shall be reviewed whenever a request to release the document is made, although not so frequently as to impose unjustifiable administrative burdens.
Commentary: In [developed] [OECD] countries, review every ___ (six?) months shall not be considered unduly burdensome. In [developing] [G-120] countries, review must be possible at least every ___ months.
Principle 22: Requirement of List of Classified Information
Each public body shall create, and update periodically, a list of all the categories of information designated as confidential, and the level of classification, save for those exceptional documents whose existence is legitimately classified. This list shall not be deemed to be confidential.
Commentary: A requirement of annual updating is recommended.
Question: Is it appropriate to require more detailed information in the list, for instance, the grounds for classification, and the period of classification?
Principle 23: Declassification Procedures
[Needs to be developed.]
Principle 24: Incentives for Encouraging Non-classification, Low Classification, and Declassification of Information
[Needs to be developed.]
Principle 25: Protection Against Penalties for Good Faith, Reasonable Disclosure by Information Officers
A public servant [or member of the armed forces] with responsibility for responding to information requests may not be punished for releasing information which he or she reasonably and in good faith believed should be disclosed pursuant to law.
Principle 26: Penalties for Destruction of, or Refusal to Disclose, Information Ordered to be Disclosed
(a) A public servant [or member of the armed forces] shall be subject to criminal, civil and administrative penalties for destroying or tampering with information that has been requested or ordered disclosed.
(b) A public servant [or member of the armed forces] may be subject to criminal penalties [for contempt of court or comparable crimes] for refusing to disclose information that a court has ordered to be disclosed, unless the public servant [or member of the armed forces] or his or her agency has filed an appeal, if available, within the statutorily required time period.
(c) A public servant [or member of the armed forces] shall be subject to administrative and civil penalties for refusing to disclose information that an independent administrative body has ordered to be disclosed, unless the public servant [or member of the armed forces] or his or her agency files an appeal from the disclosure order within the statutorily required time period, or within 30 days if no time is statutorily specified.
(d) If a court orders disclosure of information concerning grave human rights violations or that an agency had previously refused to disclose, the agency may not claim that the information never existed or was destroyed by parties over which the agency had no control. The agency must demonstrate that it has (i) made a genuine and reasonable effort to find the information, and [or] (ii) made a reasonable effort to (re)construct it.
IV. OVERSIGHT BODIES: GENERAL
Principle 27: General Oversight Principles
(a) Because of the subjective character of decisions to classify information, oversight mechanisms that are independent of the classifying authority should be established in order to guard against arbitrariness. These should include, at a minimum, opportunities for review by an administrative body that is independent of the classifier, and review by the courts.
(b) A country’s oversight capacity must be sufficient to respond to the size of its security apparatus.
Principles 28: Right of Oversight Bodies to Access Classified Information
[to be developed]
Principle 29: Right of the Public to Access Information Held by Oversight Bodies
(a) The public has a right of access to sufficient information to monitor the performance of oversight bodies.
(b) This information includes annual budgets, including of intelligence agencies, with sufficient detail so as to ensure that the public and media have enough information to be able to evaluate the programs.
[ More]
V. ADMINISTRATIVE OVERSIGHT
Principle 30: Right to Independent Administrative Review
The requester has the right to a review of the merits and the validity of the denial by an authority that is independent of the classifier. This review should be speedy and affordable.
Note: More principles will be added following a consultation with members of administrative oversight bodies in May.
VI. JUDICIAL OVERSIGHT
Principle 31: Judicial Oversight of Denials of Information
(a) A requester who is denied information is entitled to judicial review of the denial. This must include a review of the legal issues involved, and should also include a de novo review of the factual findings.
(b) The reviewing authority must have the right to examine the information withheld.
Principle 32: The Public’s Right of Access to Court Proceedings, Evidence and Administrative Information
(a) The public, including the mass media, have a fundamental right to attend court hearings and trials, and to access judicial decisions and court filings.
Commentary: The public’s right of access to court proceedings and materials derives from the significance of access to (i) the actual and perceived fairness and impartiality of judicial proceedings; (ii) the proper, and presumably more honest, conduct of the parties; and (iii) the enhanced accuracy of public comment.
(b) Open justice requires public access to (i) information about the existence and progression of cases; (ii) judicial opinions; (iii) evidence in court proceedings needed to establish criminal acts and human rights abuses by government officials; [and (iv) the names, charges and locations of detained individuals.]
In no circumstance may a case be litigated entirely in secret with no notice of its existence.
(c) The government faces a heightened standard to justify restrictions on national security grounds where a civil or criminal process relates to alleged governmental abuses. [The government must satisfy a higher showing of specific facts and circumstances.] The judge may uphold a decision to withhold information only if strictly necessary to protect an important national security interest.
(d) (i) If a judge decides to uphold a government’s decision to withhold information from the judicial process on national security grounds, the judge must state fact-specific reasons in writing. These reasons should be public, except in extraordinary circumstances when the judge asserts in writing the identifiable and serious harm that would likely follow from disclosure.
(iii) The court must have the authority to adjudicate the legality and appropriateness of the government’s claims, and to compel disclosure.
(iiii) The judge must have the authority to review classified information.
(e) The public must have notice and an opportunity to comment on and contest national security based restrictions to the judicial process prior to their implementation. This includes the partial or complete closure of a hearing, the sealing of records, the non-disclosure of evidence, or any other restriction.
(f) Where a national security related restriction to public access to justice is upheld, the government and the court must make publicly available as much information as possible.
Principle 33: Access of Parties to Evidence
(a) Criminal Cases.
(i) The government must disclose any information it intends to use against a criminal defendant to the judge hearing the case, the defendant’s counsel, and the defendant.
(ii) In exceptional circumstances, the government may limit a defendant’s access to classified evidence provided that none is material to his or her defense.
(iii) In no circumstances may the government prohibit a defendant from attending his or her trial.
(b) Civil Cases.
(i) If a party in a civil action seeks access to classified information, the government may impose limited restrictions on access provided that the restrictions do not prevent a party from litigating a material element of his or her case.
(ii) In no circumstances may a court decline on state secrets grounds to hear and decide an action seeking information about, or reparations for, a human rights violation [or other tort], where the applicant is able to show probable cause to believe that a human rights violation [or other tort] was committed.
Question: Should there be variations in principle when the civil case involves (i) two private parties; (ii) a private party suing a governmental actor; and (iii) a governmental actor suing a private party. If yes, how should these variations be phrased.
VII. LEGISLATIVE OVERSIGHT
Principle 34: There must be legislative oversight of the classification system, including …
Principle 35: Opposition parties must have meaningful representation in the legislative oversight mechanism.
[Need to develop these principles.]
VIII. PROTECTION OF WHISTLEBLOWERS, JOURNALISTS SOURCES AND OTHERS WHO DISCLOSE INFORMATION IN THE PUBLIC INTEREST
Principle 36: General Rule on Disclosure of Classified Information
A person who has not taken a government confidentiality oath may not be punished for publication of information that has been classified or is otherwise deemed secret unless the government can prove that:
(i) the information comes within a narrow and well defined category, set forth in law, such as identities of covert agents,
(ii) the person intentionally disclosed the information knowing that the disclosure would harm, or intending to harm, national security, and
(iii) the primary purpose of the disclosure was to cause harm and not to accomplish a legitimate purpose such as revealing illegal or corrupt activities or providing information to the public on an important policy issue.
Question: Is the above standard appropriate? Does the following provide a more appropriate starting point?
At the least, a person who has not taken a government confidentiality oath may not be punished for disclosure of information that has been classified or is otherwise deemed secret unless the government can prove that:
(i) the information was legitimately classified pursuant to these Principles;
(ii) disclosure caused identifiable harm, and the public interest in knowing the information did not outweigh that harm; and
(iii) the person intended to harm [or showed reckless disregard for] a legitimate national security interest.]
Principle 37: Classified Information Obtained Through Public Service
A public servant [or member of the armed forces] may be subjected to criminal or civil penalties on national security grounds for disclosing classified information learned by virtue of government service to the public (or to an intermediary for disclosure to the public) only if
i. the government can prove that the harm from disclosure outweighed the public interest in knowing the information, and
ii. the person is unable to prove that he/she attempted to draw attention to the issues through an internal reporting process or else that internal reporting would likely have been ineffective.
Question: Do these principles appropriately balance the right of access to information and competing interests?
Principle 38: Protection of Journalists’ Sources
Protection of a national security interest may not be used as a reason to compel a journalist to reveal a confidential source where (i) the public interest in the information disclosed by the journalist is high, and (ii) there are other methods to obtain the source information or information of comparable value, or where the purpose for which the source’s identity is needed is not as compelling as the public interest in the information disclosed.
Principle 39: Punishment
Any punishment for disclosure of classified information in the good faith belief that the information was of public interest may not be excessive and should be proportionate to the harm caused.
IX. CONCLUDING PRINCIPLES
Principle 39: Relation of These Principles to Other Standards
Nothing in these Principles may be interpreted as restricting or limiting any right to information recognized in international, regional or national law or standards.
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