PRINCIPLES ON NATIONAL SECURITY AND THE RIGHT TO INFORMATION. by Sandra Coliver. May 2011

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1 PRINCIPLES ON NATIONAL SECURITY AND THE RIGHT TO INFORMATION by Sandra Coliver May 2011 These Principles were drafted by Sandra Coliver with substantial input from Emi MacLean and Darian Pavli of the Open Society Justice Initiative 1 in consultation with several partner organizations and numerous experts 2 including at meetings in Cape Town, Geneva, London, New York and Washington DC. We aim to finalize the Principles by early 2012 following several more regional consultations. If you would like to join our virtual or in-person discussions, or send comments, please to scoliver@justiceinitiatve.org. INTRODUCTION National security and the public s right to know are often viewed as pulling in opposite directions. On the one hand, governments maintain that disclosure of "secret" information can undermine the very institutions that protect the security and well-being of citizens. On the other hand, human rights defenders point to government suppression of information on national security and related grounds and as having paved the way for some of the worst human rights violations, subversions of democracy, and threats to peace experienced in the last half-century. While there is an undeniable tension between national security and the right to information held by public authorities, a clear-eyed review of recent history suggests that legitimate national security interests are, in practice, better protected when the press and public are able to participate in and scrutinize government decisions than when governments operate in total secrecy. Access to information, by enabling democratic participation and public scrutiny of government action, not only safeguards against government abuse but also permits citizens to play a role in determining the policies of the government and thereby forms a crucial 1 For information about the Justice Initiative s right to information projects see for information about our cases and amicus briefs, including to support access to information withheld on national security grounds, see 6+Expression&status=&submit.x=10&submit.y=8. 2 Our partner organizations are Article 19; Africa Freedom of Information Centre; Centre for Applied Legal Studies, Witwatersrand University (South Africa); Center for Democratic Control of the Armed Forces; Center for Law & Development; Center for National Security Studies; Center for Studies on Freedom of Expression and Access to Information (CELE), Palermo University School of Law (Argentina); Commonwealth Human Rights Initiative; Institute for Security Studies (Africa); International Commission of Jurists; National Security Archive. Special thanks are due to Steven Aftergood, Matthew Alexander, Morton Halperin, Kate Martin, Warren Kimball, Toby Mendel, and Adam Tomkins. 1

2 component of genuine national security.. Equally, national security is a pre-condition for the full enjoyment of all human rights, including the right to information. Courts in countries around the world tend to 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 ordinary rules of evidence and due process upon a minimal showing by the government of a national security risk. A government's claim of a security threat can deal a knock-out blow to the main institutional safeguards against government abuse: independence of the courts, due process of law, freedom of the press, and open government. Accordingly these Principles aim: To promote robust protection for both the right to information and national security; and To provide practical guidance to governments as well as to legislative and regulatory bodies and drafters of legislation, the courts and other oversight bodies concerning some of the most challenging issues, especially those that impact respect for human rights and democratic accountability. The Principles are based on international and regional law and standards relating to the right of access to public information and other human rights, evolving state practice (as reflected, inter alia, in judgments of national courts), the general principles of law recognized by the community of nations, and the writings of experts. These Principles acknowledge the enduring applicability of 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, 3 and the Principles of Oversight and Accountability for Security Services in a Constitutional Democracy elaborated in 1997 by the Center for National Security Studies (CNSS) and the Polish Helsinki Foundation for Human Rights. These Principles complement, and do not duplicate, 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 human rights and counter-terrorism. 4 These Principles do not address substantive standards for intelligence collection, management of personal data, or intelligence sharing, all of which are ably addressed by Scheinin s Good Practices. Nor do these Principles address the withholding of information on grounds other than national security. We acknowledge that information that should not be classified on national security grounds may nonetheless be withheld on various other grounds recognized in international law - including personal privacy, commercial confidentiality, deliberative process, 3 See The Johannesburg Principles on National Security, Freedom of Expression and Access to Information [hereinafter Jo burg Princs ], and the Commentary thereto by S. Coliver, Coliver, Hoffman, Fitzpatrick and Bowen, eds., Secrecy and Liberty: National Security, Freedom of Expression and Access to Information (The Hague: Martinus Nijhoff 1999), 4 Martin Scheinin, good practices on legal and institutional frameworks for intelligence services and their oversight, UN Doc. No. A/HRC/14/46, issued 17 May 2010, at 2

3 fairness of judicial proceedings, rights of litigants and integrity of criminal investigations - subject always to the principle that information may not be withheld where the public interest in the information outweighs the public interest in maintaining the information s secrecy. These principles only apply in the context of national security claims by States that have a reasonable record of compliance with the rights set out in the Universal Declaration of Human Rights. In particular, they do not apply where States are seeking to use force to abuse human rights or to prevent democratic forms of participation. PREAMBLE [To be developed] I. GENERAL PRINCIPLES Principle 1: Right to Information Everyone has the right to seek, receive, re-use and impart information held by or on behalf of [or accessible to] public authorities, including information relating to national security matters, and the state has an affirmative obligation to publish national security information of public interest, in easily searchable formats and to make information available on request, subject only to limited exceptions necessary to prevent specific, identifiable harm to legitimate interests. Definition: 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. Public authorities also include entities that perform public functions or services or operate with substantial public funds or benefits; these entities must disclose information concerning their public functions, services, or use of public funds or benefits. 5 Principle 2: Protecting National Security (a) The right to information may be restricted only to protect specific interests [set forth in] [consistent with] international law, including national security. (b) Restrictions on the right to information for purposes of protecting national security may be applied only to information whose disclosure [could] [would be likely to] materially harm the ability of the state or its allies to prevent or respond to i. violence, espionage, terrorism, or other attacks (such as cyber-attacks) intended to weaken the state s ability to function; ii. iii. directed against themselves, their people, other states, or their people; and of a sufficiently serious scale to require a national response, exceeding the capacity of law enforcement agencies. 5 See, e.g., Model Inter-American Law on Access to Information, OAS Gen Assembly RES (XL-O/10), adopted at the fourth plenary session, June 8, 2010, Art. 3. The Draft 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.) This language of the draft General Comment has gone through its second reading and is likely to be adopted without changes by the UN Human Rights Committee by the end of

4 Definition: Terrorism, for purposes of these Principles is understood to have the same meaning as set forth by the Four Mandates on Freedom of Expression/Media in their 2008 joint declaration: The definition of terrorism, at least as it applies in the context of restrictions on freedom of expression, should be restricted to violent crimes that are designed to advance an ideological, religious, political or organised criminal cause and to influence public authorities by inflicting terror on the public. 6 (c) Where the threat comes primarily from within the state, and is of a magnitude that generally could be handled by law enforcement, the threat may nonetheless be treated as a threat to national security if motivated by [an intent to overthrow the constitutional order or sectarian hatred] [a political, ideological or religious cause]. (d) A state may not invoke national security as a ground for restricting the right to information on the basis that it is necessary to contribute to its strength only through an impact on the economy, general welfare or similar considerations. (e) These Principles should be applied to other grounds for withholding information aimed at protecting what the state considers vital national interests in particular, international relations [and the nation s economic health] when the information at issue concerns national security as defined in subpara. (b), above. Note: Para (e) is intended to ensure that states do not evade their responsibilities to safeguard, and make accessible, information concerning national security, merely by justifying the non-disclosure by invoking some closely related public interest. (f) A different set of access and secrecy standards may be appropriate for restrictions that legitimately aim to protect other interests, such as effective law enforcement; fairness of judicial proceedings; executive privilege; policy formation; commercial secrecy and personal privacy. Note: In some countries, the conduct of international relations is considered an element of national security. These Principles assume that international relations go well beyond the scope of national security, but that the standards they posit may appropriately be applied to those aspects of international relations that promote national security as defined in this Principle and elaborated in Principle 11. Principle 3: Requirements for Restricting Right to Information on National Security Grounds No restriction on the right to information on the ground of national security is valid unless the restriction (i) aims to protect a legitimate national security interest, (ii) is prescribed by law, and (iii) is necessary to protect that interest in a democratic society. 6 Joint Declaration on Defamation of Religions, and Anti-Terrorism and Anti-Extremism Legislation, 10 December Available at: 4

5 Principle 3.1: Protection of a Legitimate National Security Interest (a) Any restriction on information that a government seeks to justify on grounds of national security must have the genuine purpose to protect a legitimate national security interest. 7 (b) A restriction is not legitimate if, for instance, its primary purpose is to protect the particular interests of those in power; prevent embarrassment; conceal information about human rights violations or any other violation of law; shield corruption or other public wrongdoing; strengthen or perpetuate a particular political party or ideology; or suppress industrial unrest. Principle 3.2: Prescribed by Law 8 (a) The law must be accessible, unambiguous, and drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful and to understand precisely what information may be withheld. (b) The law should provide for adequate safeguards against abuse, including prompt, full and effective scrutiny of the validity of the restriction by an independent court [or tribunal]. Principle 3.3: Necessary in a Democratic Society To establish that a restriction on the right to information is necessary to protect a legitimate national security interest, a government must demonstrate that: i. disclosure of the information poses an identifiable and significant risk of harm to a legitimate national security interest, ii. the restriction is narrowly drawn; and iii. the harm outweighs the overall public interest in disclosure of the information. Principle 4: Burden on the Government (a) The burden of demonstrating the validity of any restriction rests with the public authority seeking to apply it. (b) Any doubt should be resolved in favor of disclosure. (c) In discharging this burden, it is not enough for a public authority simply to refer to an alleged risk of harm; specific evidence for asserting the risk must be adduced. This evidence should be verifiable and subject to cross-examination. (d) In no case may an assertion, or 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 on that point. 7 This Principle is based on Jo burg Principle 1.3, see fn 3, supra. The phrase or demonstrable effect has been deleted as redundant on the reasoning that, if a measure is necessary to protect a legitimate national security interest, as required by Principle 3, then it would also have to have the demonstrable effect of doing so. 8 See Jo burg Principle

6 Commentary: In practice, adjudicators generally defer to an agency s classification decision. This does not argue for changing the standard in law. Decision-making must be based on evidence. In several countries (give examples), 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. Principle 6: Balancing Public Interest in Disclosure and Risk of Harm (a) 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 through other measures, including through the reasonable expenditure of funds. (b) Where there is a high public interest in the disclosure of information, it may be withheld only if there is no reasonable means to prevent harm, or to limit it to a level proportionate to the public interest at stake. Note: Some categories of information of extraordinarily high public interest are set forth in Principle 14, infra. The phrase information of [high] public interest has been used by the European Court of Human Rights and other regional and international tribunals in finding that a restriction on the expression of such information and, more recently, access to such information held by public authorities, constitutes a violation of the right to freedom of expression. However, what constitutes information of public interest or of high public interest is defined only by reference to examples. We intend to compile a list of information found to be of public interest by international and domestic courts as illustrative of the meaning of those terms as used in these Principles. Principle 7: Partial Disclosure 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] [or exemption] 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, i.e., the released material is comprehensible and not misleading because of the deletions. Note: The Council of Europe Convention on Access to Official Documents allows an exception to segregation when the disclosable information would be misleading if released out of context. Principle 8: Information in the Public Domain If information has been made generally available to the public, the government should not refuse to disclose the information, except in exceptional circumstances, for instance, if the information in the public domain is not clearly identified as having originated from an official source. Principle 9: Time Limits on Secrecy 6

7 Information may be withheld on national security grounds only for as long as necessary to protect a legitimate national security interest. Principle 10: States of Emergency In a time of public emergency that 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 impose additional restrictions on the right to information but only to the extent 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 national and international law. 9 II. INFORMATION THAT LEGITIMATELY MAY BE WITHHELD ON NATIONAL SECURITY GROUNDS, AND INFORMATION THAT SHOULD BE DISCLOSED Principle 11: Information That Legitimately May Be Withheld (a) A state may designate categories of information that may be classified in order to protect legitimate national security interests. These categories should be narrowly drawn, and should be promulgated by the legislature. Note: Legislative designation of narrow categories is considered a good practice because it (i) facilities legitimate classification by providing guidance to those tasked with making classification decisions (see Principles 17 et seq.); (ii) limits opportunities for abuse; and (iii) promotes public consultation. Alternatively, the norm could be stated more prescriptively, e.g., as follows: [A State [may] [should] only restrict the right to information on the basis of clear and narrow categories of information that have been set forth [by the Legislature] in advance, and as necessary to protect legitimate national security interests, in accordance with these Principles.] (b) A State may not classify or otherwise withhold information simply on the ground that it pertains to national security or was generated or is held by a particular agency. (c) A State may only restrict information on national security grounds if it complies with these Principles and the information falls within the scope of national security as defined in Principle 2 and also within one of the following categories : i. [current] [contemporary] military plans, [on-going] operations, or the state of readiness and operational capability of military units, including the identification, strength, command structure, and disposition of the personnel, units, and equipment of any military force, for the length of time that the information is of operational utility. ii. iii. information, including technological data and inventions, concerning weapons, their production, capabilities or use; operational intelligence activities, sources or methods; 9 See Johannesburg Principle 3. 7

8 iv. measures to safeguard people, materials, systems or facilities against an attack that constitutes a threat to national security; v. information falling into one of the other categories listed here that was supplied by a foreign state or international institution with an express and written expectation of confidentiality; vi. vii. the investigation of crimes concerning matters that fall into one of the above categories. [other activities of the state that are directly concerned with the protection of the state or its people from identifiable, significant and organized violence, or threats thereof.] Notes: This Principle posits that it is a good practice for national security to be defined by statute as clearly as possibly. In a related vein, Scheinin s Good Practices offer the following comment: 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. This is important for ensuring that intelligence services confine their activities to helping to safeguard values that are enshrined in a public definition of national security. 10 Information concerning the investigation or prosecution of terrorist acts and other national security-related crimes may be withheld on grounds other than national security, for instance, furtherance of the integrity or fairness of the investigation, prosecution or court proceedings. The drafters recognize that several countries include protection of the constitutional order within the scope of national security. In some of these countries, including in continental Europe, the concept of threat is broader than (imminent) violent attacks. E.g., in Germany activities of parties/groups based on totalitarian ideologies are both illegal and considered a national security threat whether or not they pose an imminent or realistic threat of violent overthrow. This definition aims to include most such threats, but nonetheless maintains that there must be some threat of violence to the state or sectors of its population for the activity to qualify as a national security matter. [Principle 12 deleted] Principle 13: No Exemption for Entire Public Authorities (a) Entire authorities - including those devoted to intelligence or security and the office of the head of state - may not be exempted from disclosure requirements. (b) An operational unit of an authority may be exempted from general disclosure requirements only if it is identified and the reasons for exemption publicly stated. No unit may be exempted from the requirements of Principle 14. (c) If contrary to paragraph (a) an authority is exempted from disclosure requirements, the legislature must, at the least, set a time period after which information generated or held by the authority must be subject to disclosure requirements. 10 See Scheinin s Good Practices, note to Practice 1, supra note 4. 8

9 (d) Files that relate to operational activities, 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 pursuant to carefully drawn legislation, and subject to Principle 14. Principle 14: Categories of Information with a High Presumption in Favor of Disclosure Certain categories of information that are, or occasionally are claimed to be, related to national security are of such high public interest, clearly outweighing any potential to harm national security or any other legitimate ground for restricting access to information, that the state bears an affirmative obligation to publish such information proactively, and may in no [or very limited] circumstances withhold the information from the public or punish its disclosure. Given the often close interrelationship among information pertaining to national security, intelligence and international relations, all such information comes within the ambit of this Principle if it reveals evidence of any of the following matters. A. Fundamental Human Rights Violations (a) 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 actions that pose a risk of violating fundamental rights]. The deliberate destruction of such information is a grave violation of the right of the public and victims to the truth. (b) Information that may never be classified or withheld, or may be withheld only for timelimited periods, such as during periods of actual armed conflict or other violence that threatens national security, or for a period necessary to facilitate the effective prosecution of those responsible for the abuses, or to protect the dignity, privacy and rights of the victims of abuse, includes the following: i. The names of all persons detained, whether lawfully or not, killed or forcibly disappeared by government agents or people acting with any level of government support, whether in peace or during an armed conflict, and the dates [and circumstances] of these occurrences. ii. The names of units, [and their commanders/chain of command,] who were present at the time of, or otherwise implicated in [prolonged detention without charges], [abuses in custody,] killings or disappearances. iii. The location of mortal remains, or other information that could lead to their location. If unknown, the reasons for lack of information. iv. Other information concerning crimes against humanity, war crimes and other grave human rights abuses committed by agents of the government which holds the information or by other governments. (c) A successor government must immediately ensure the integrity of such information concealed by a prior government and release it without delay. (d) 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 9

10 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, and [or] (ii) made a reasonable effort to (re)construct it. B. Democratic Oversight of 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, human rights, and serious abuse of power. 1. Structures and Powers of Government The following categories of information are subject to presumptive disclosure: (i) 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. (ii) The laws and rules, and any written interpretations of them, applicable to intelligence agencies, military forces, police and security agencies, and the bodies that oversee them, including laws, rules and written interpretations concerning the missions, authorities and limits on authorities 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. 11 This principle, however, lies outside the purview of the instant Principles. (iii) The gross overall budget 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 11 Center for National Security Studies and Helsinki Foundation for Human Rights (Poland), Security Services in a Constitutional Democracy: Principles for Oversight & Accountability,

11 compromise the operational security of such agencies or other legitimate national security interests. (iv) (v) The internal oversight mechanisms for intelligence and security agencies 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 harm to such officials that cannot be minimized by reasonable means, other methods of holding accountable, and contacting, such individuals should be made available. 2. Surveillance i. The laws and primary regulations governing all forms of secret surveillance, interception of communications of both citizens and non-citizens, and the establishment and use of secret files or registers, must be publicly accessible and sufficiently precise to enable public oversight and properly limit executive discretion. ii. At a minimum, such laws must set out the nature of the offences that may give rise to surveillance; a definition of the categories of people liable to be placed under surveillance, and the authorities that may authorize such measures; a 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. iii. Whenever a public authority, oversight body or court determines that a person has been unlawfully subjected to secret surveillance measures, the public authority should proactively notify the person of that fact, as well as other details that do not undermine the general effectiveness of surveillance systems. iv. 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. v. [Persons should also be notified of any surveillance measures to which they have been subjected, after such measures have been terminated and to the extent such notification does not undermine the general effectiveness of surveillance systems. This will generally be the case whenever there is no reason to suspect that the person who had been placed under surveillance has committed, or plans to commit, any serious [trigger] offenses. In such cases, the target persons should also be granted [at least partial] access to any secret files kept on them.] vi. Public or private employers using security vetting based on secret information provided by national security agencies should be required by law to inform 11

12 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. Such persons should have recourse to the remedies set forth in paragraph (iv) of this principle. a. Detention and Interrogation The following categories of information are subject to presumptive disclosure: (i) (ii) (iii) Laws, policies and regulations concerning government detention, including during armed conflicts or counter-terrorism operations Laws, policies and regulations concerning government use of interrogation techniques The location of all centers where people are detained by, or on behalf of, the government or with the government s material, diplomatic, logistical or other support The location of detention centers outside of a state s territory may be kept secret only when a real possibility exists that attackers may try to seize control of the centers. The location of detention centers inside a state s territory may be kept secret only when the state is under physical attack and a real possibility exists that the attackers might try to seize control of the centers. (iv) 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 come forward with relevant evidence 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. b. Information that Discloses Serious Corruption concerning Military Contracts or Other Governmental Wrongdoing The following categories of information are subject to presumptive disclosure: (i) (ii) Information concerning constitutional or statutory violations and other abuses of power, including corruption, by public authorities or officials. Concerning 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; 12

13 (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. III. PROCEDURAL RULES Principle 15: Purpose of Classification i. The purpose of a system of classification is to provide guidance to those who have access to the information as to how the information should be handled within the government. ii. The fact that information has been classified is not decisive in determining how to respond to a request for that information. Instead, the test for assessing the validity of a restriction outlined above should be applied. Note: Over-classification limits the sharing of information at three levels: inside the agency, outside the agency but within the same State, and with allies or partners. In an increasingly global world, threats (illegal narcotics and terrorism, for example) are increasingly crossborder/transnational and require information sharing (inter-agency and with coalitions/partners). Over-classification can reduce national security by negatively impacting multilateralism and continental security. 12 Principle 16: Distinctive Features of National Security Classification Classified national security information should be safeguarded separately from information protected only for other reasons. Note: Some records are withheld from the public because their disclosure would compromise personal privacy, commercial confidentiality, executive privilege, free and frank deliberations, or fair trials and rights of litigants. National security information is qualitatively different from these categories for at least three reasons: (a) its unauthorized disclosure could pose a threat to national security, (b) a significant amount of national security information a greater percentage than of other categories of withheld information is of compelling public interest, and (c) the sensitivity of the information may lessen substantially, and often fairly rapidly, over time. Accordingly, to ensure proper handling of national security information, it should be subject to a control regime separate from other withheld information. Principle 17: Marking and Justification Requirements (a) Classification of a record requires affixing (i) a protective marking that indicates the level and duration of classification, and (ii) a statement justifying the need to classify at that level. (b) The justification should indicate the category of information listed in Principle 11 to which the information belongs and describe the harm that would result from disclosure, including its level of seriousness and degree of likelihood. 12 Comment submitted by the Open Democracy Advice Centre (South Africa). 13

14 Note: Procedures for classifying documents vary from country to country. Paragraph by paragraph marking is accepted practice in some countries, and considered too onerous in others. In some countries where there was strong initial resistance, practices have been developed that lessen the administrative burden, so that compliance has become the rule. For instance, in the U.S., guides have been developed that include lists of justifications, so that only a number needs to be affixed next to the classification level. Providing a statement justifying each classification decision is encouraged because it facilitates the process of declassification and disclosure. Paragraph by paragraph marking further facilitates consistency in disclosure of unclassified portions of documents. Principle 18: Likelihood and Seriousness of Harm If a government decides to employ levels of classification, the highest level, e.g., Top Secret, should be reserved for information that poses a [substantial] [high] risk of [serious] [irreparable] harm. Note: These Principles do not take a position on the usefulness or need for specifying levels of classification. Different levels of classification are relevant to measures taken by the government to protect, transport, and share information among agencies, but are less relevant concerning public disclosure policies. Principle 19: Public Access to Classification Rules The procedures and standards governing classification must be available to the public. Question: If procedures and standards governing classification are set forth in instruments other than legislation, is it realistic to require/recommend that they should be subject to notice and comment requirements? Principle 20: Authority to Classify (a) Only officials specifically designated by the head of a department [should] [may] classify records. [If an undesignated official believes that information must be classified, the information may be withheld for a brief period until a designated official has reviewed the recommendation for classification.] (b) The name of the person making the classification decision should be indicated on the document. (c) Cabinet ministers should assign original classification authority to the smallest number of senior subordinates that is administratively efficient. (d) 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. 14

15 Principle 21: Requirement of List of Classified Information Each public body shall create, and update annually, a list of all sub-categories of classified records it holds, more detailed than the categories listed in Principle 11, 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. Questions: Is this realistic and useful? Are there ways to reduce the administrative burden to a reasonable level? Is it appropriate to require more detailed information in the list, for instance, the grounds for classification, and the period of classification? Principle 22: Duty to Maintain Archives (a) The government has a duty to protect documents. Documents may be destroyed only pursuant to statute. (b) Filing systems must be consistent, transparent (without revealing classified information), and comprehensive, so that legitimate, reasonably specific requests for access will locate all relevant information even if the information cannot be declassified. Principle 23: Duty to Confirm or Deny (a) Upon receipt of a request for information, a public authority must confirm or deny whether it holds the requested information, except in exceptional circumstances, when disclosure of the very existence of the information would itself breach a valid restriction. (b) The decision to refuse to confirm or deny should be made only by an official with authority to classify as set forth in Principle 19. Principle 24: Reasons for Denial in Writing (a) If a public authority denies a request for information, in whole or in part, it must set forth in writing specific reasons for doing so, including by identifying a legitimate ground listed in Principle 11, as soon as reasonably possible. The authority must also inform the requester of the name of the official who authorized non-disclosure and avenues for appeal. (b) 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. Principle 25: Duty to Expend Reasonable Effort to Locate Missing Information When a public authority is unable to locate information responsive to a request, and records containing that information should have been maintained or collected, it is required to make reasonable efforts to gather the missing information and provide it to the requester This Principle is set forth in the Model Inter-American Access to Information Law, supra note 5, Principle

16 Principle 26: Time Limits for Response to Information Requests (a) Time limits - for responding to requests, including on the merits, and for internal review, decision by an information commissioner or comparable body if available, and judicial review - must be established by law and should be as short as practicably possible. (b) Expedited time limits should be put in place 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 possibly; 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 must be given. See Principles 27: Time Limits for Period of Classification (a) The classifier must specify the date or event (e.g., withdrawal of troops) on which the classification shall lapse. (b) The presumptive maximum period of secrecy on national security grounds must be established by law, and may be extended only in exceptional circumstances. (c) Information of high public interest, including information that falls into categories listed in Principle 14, should be classified, if at all, for as short a time as practicably possible. Note: For the following reasons, a ten-year maximum period for classification is recommended for most information. [Need to supply information re international and comparative law and practice.] (d) Where information is sought to be withheld beyond the presumptive deadline, the decision to do so must be ratified in a special procedure of review designed for this purpose. Principle 28: Right to Review of Decision Refusing Information (a) A requester has the right to a review of the merits and validity of a refusal, including an implicit or silent refusal, to disclose information by a public authority independent of the authority that denied the information request. (b) This review must be speedy and affordable. (c) States must provide, at a minimum, opportunities for review by an independent administrative body, and judicial review. (d) States may also decide to establish internal oversight bodies. 16

17 IV. JUDICIAL OVERSIGHT Principle 29: Judicial Oversight of Denials of Information (a) A requester who is denied information is entitled to judicial [review] [appeal] 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) A judicial authority shall not take as decisive in its oversight of an information denial the fact that a document has been classified. (c) A judicial authority must be permitted to examine the information withheld and to seek expert assistance in reviewing the material. Principle 30: The Public s Right of Access to Court Proceedings, Evidence and Administrative Information (a) The public, including the media, has a fundamental right to access the judicial process. 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) The public s right of access to judicial proceedings requires public access to (i) judicial opinions; (ii) information about the existence and progression of cases; (iii) court hearings and trials; (iv) evidence in court proceedings needed to establish criminal acts and human rights abuses by government officials; [and (v) the names, charges and locations of detained individuals. In no circumstance may a case be litigated in secret with no public notice of its existence. (c) The public must have notice and an opportunity to comment on and contest any claim asserted by the government that a restriction on judicial openness is necessary on national security grounds. This includes the partial or complete closure of a hearing, the sealing of records, the non-disclosure of evidence, or any other [general or specific] restriction. (d) The judge must have the authority to review classified information. (e) The court must have the authority to adjudicate the legality and appropriateness of the government s claims, and to compel disclosure, or in a criminal case to dismiss the charges if the government declines to disclose the information and it is not possible to substitute information which can be disclosed and which in no way prejudices the defendant s rights. (f) 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. 17

18 (g) The government faces a heightened standard to justify any 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 to justify restrictions on access.] The judge may uphold a decision to withhold information only if strictly necessary to protect an important national security interest. (h) 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. Question: Does Principle 33 sufficiently distinguish between the right of the public and the rights of access of parties/counsel? How does this compare with existing practice? Is this too strong a protection for the public that may result in the unintended consequence of secret trials (i.e., UK)? Principle 31: Access of Parties to Evidence (a) In a criminal case, the government must disclose to the charges, any information it intends to use against a criminal defendant and any [potentially] exonerating or exculpatory evidence to the judge hearing the case, the defendant s counsel, and the defendant. 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. Commentary: This principle does not intend to require modifications in domestic criminal law i.e., disclosure obligations for criminal defendants, but only to establish standards where the disclosure requirements in the criminal context implications national security issues. (b) Non-disclosure of information to a criminal defendant on national security grounds must be strictly necessary; proportional to the interest served; and sufficiently counterbalanced by the judicial authorities to allow the defendant to be able to answer the case against him or her. (c) The court may not withhold from a criminal defendant on national security grounds any information that it would otherwise be required to provide. (d) Where the government seeks the non-disclosure of information, the judge must have the authority and obligation to assess the necessity and proportionality of the nondisclosure; and the defendant s ability to answer the case against himself or herself. The judge should consider whether there are sufficient counterbalances for any disadvantage(s) to the accused from non-disclosure. (e) The court may not prohibit a defendant from attending his or her trial on national security grounds. Note: We recognize that a defendant may be removed on grounds other than national security, such as that he or she is repeatedly disruptive. (f) [The use of anonymous witnesses should be exceptional and strictly limited to situations where the identity of the witness would prejudice a serious and identifiable 18