Few questions are more important to ensuring democratic government and fundamental human rights than those involving decisions about war, peace and protection of a country’s national security. However there is a fundamental tension with regard to transparency and open data. On the one hand, public access to government information is critical to democracy and human rights. Access to information not only safeguards against abuse by governments, officials and private entities, but also is critical to enable the public to play a role in determining the policies of the government. On the other hand, the conduct of diplomacy, military operations and intelligence activities all require some measure of secrecy in order to be effective.
Striking the right balance is made all the more challenging by the fact that courts in most countries demonstrate the 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 assertion of a national security risk. A government’s over-invocation of national security concerns can seriously undermine the main institutional safeguards against government abuse of public trust: independence of the courts, the rule of law, legislative oversight, media freedom, and open government.
- Open Society Justice Initiative
- Center for National Security Studies
- Geneva Centre for Democratic Control of the Armed Forces (DCAF)
- National Security Archive
- Open Democracy Advice Centre
- Stockholm International Peace Research Institute
- Transparency International Defence and Security Programme
- Red de Seguridad y Defensa de America Latina
This topic was developed by Sandra Coliver and Lora Lumpe in consultation with Emi MacLean, Anthony Richter, and Morton Halperin of the Open Society Foundations. OSF thanks Venkatesh Nayak of the Commonwealth Human Rights Initiative, as well as Prof. David Bayley, State University of New York at Albany, and Prof. Hugo Frühling, University of Chile and Director of the Center for Studies on Public Safety, for their comments on this or previous versions of this chapter, as well as individuals who commented online.
Examples in Practice
Approximately 100 countries around the world have adopted legal instruments offering protection to journalists’ confidential sources
In the last few years, several countries have adopted such laws including Mexico, New Zealand, Australia, El Salvador, Switzerland, and Belgium.
Efforts to weaken the law in Portugal and to require journalists to disclose in Kenya were rejected by the countries’ leaders. Many countries also recognise protection of sources in case law as common law or as a part of the constitutional right of free speech.
There are also sub-national laws. For instance, over 30 states in the United States provide such legal protections, as well as states in Argentina, Mexico, Australia and Germany.
Canadian security law takes public interest defence into consideration
Under the Canadian Security of Information Act, it is an offence for a government official to improperly communicate special operational information. However, a public interest defence is available where a public servant discloses information in the public interest. The law considers the availability of any effective, alternative remedies; the public interest in the information; the actual harm caused by the disclosure weighed against the public interest in the information’s release; the reasonableness of the public official’s belief in the accuracy and importance of the information, and the severity of the penalty.
Colombia has legislated clear laws covering procurement for defence and security
In Colombia, the parliament has legislated clear laws covering procurement in defence and security, incorporating transparent legislation with regard to sensitive procurement. Law 1219 of 2008 provides for a procurement process for confidential items, providing guidance on transparency, objective bidding, and the need for effectiveness of procedures. Law 1097 of 2006 provides for regulation of ‘reserved expenditure’, which funds the intelligence and counter-intelligence services. These laws allow control and oversight of confidential expenditures through a special unit of the General Comptroller.
Defence procurement in the US is subject to scrutiny by Congress
Defence procurement is subject to scrutiny by the House of Representatives Committee on Armed Services, the Senate Committee on Armed Services, the Government Accountability Office and the Department of Defence’s (DoD) Inspector General’s office.
In addition, the United States Congress has empowered Special Inspector Generals to investigate waste, fraud and corruption associated with the large scale US defence-related procurement and expenditures in Afghanistan and Iraq.
Denmark’s state secrecy law provides a public interest defence for the publication of state secrets where the person is acting in the legitimate interest of obvious public interest
Criminal Code (Denmark), Section 152 (e)(2010).
In Slovenia, requests to declassify information are submitted to a temporary Commission
The Commission is comprised of representatives of the ministries responsible for defence, interior and external affairs, the Slovene Intelligence and Security Agency, and the National Security Authority. The representative of the agency that classified the information may not participate in the Commission. The Commission prepares an opinion based on arguments made by the classifying agency and others that have authorised access to the information. The Commission must order declassification if it finds that the public interest in disclosure outweighs the public interest in limiting access to the piece of information. If the agency refuses the request to declassify, the applicant may file an appeal with the Information Commissioner.
In the Netherlands the Intelligence and Security Services Review Committee oversees intelligence services, and people can also report complaints to the National Ombudsman
The Dutch Review Committee for the Intelligence and Security Services (CTIVD) oversees whether the intelligence and security services are acting legitimately when they infringe on human rights in order to fulfil their duties.
The Review Committee is independent and has been given far-reaching statutory powers to perform its task. For example, the Committee has access to all relevant information of the services and may hear all the staff of the services. Furthermore the Committee has the right to hear witnesses (under oath) or experts.
The Review Committee draws up a report of each investigation it has conducted, this includes a public part and a classified part. The public part is published and submitted to the two Houses of the States General. The classified part goes to parliamentary Committee for the Intelligence and Security Services (CIVD). In addition to the review reports the Review Committee issues an annual public report of its activities.
Complaints are received by the relevant minister who must seek the advice of the Review Committee before taking a decision. If the complainant cannot agree with this decision, he or she may refer to the National Ombudsman, an independent body engaged in handling complaints against the government. The Ombudsman issues non-binding recommendations.
In the United States a cross-departmental body reviews declassification requests from the public
In the U.S., a governmental body called the Interagency Security Classification Appeals Panel, comprised of representatives of six government agencies (Defence, State, Justice, National Security Council, National Archives and Records Administration, and Office of the Director of National Intelligence), is tasked with reviewing requests from the public to declassify records that one of the member agencies has previously refused to release. Remarkably, the Panel has ordered the declassification and disclosure of information, at least in part, in the majority of cases that it has considered. In other words, through collective independent oversight, it has overruled the classification judgement of its own member agencies more often than not.
Legislation in New Zealand protects whistleblowers in order to promote the public interest
In New Zealand, the Protected Disclosures Act aims to promote the public interest by “(a) facilitating the disclosure and investigation of matters of serious wrongdoing by an organisation” and by “(b) protecting employees who in accordance with this Act make disclosures of information about serious wrongdoing in or by an organisation.”
Many European countries require a showing of harm for unlawful disclosure of information to result in penalties
A survey of the laws and practices of 20 European countries found that in at least 12 countries a disclosure of classified information to the public would not result in any penalty in the absence of a showing of harm. Nine countries – Albania, Czech Republic, Italy, Moldova, the Netherlands, Norway, Romania, Spain, and Sweden – require the government to prove either actual or probable harm in order for any penalty to be imposed. An additional three countries – Denmark, France and Hungary – allow the lack of harm to be raised as a defence or mitigating circumstance.
Numerous countries do not criminalise unauthorised disclosures by members of the media or public
For instance, in Germany, the criminal law was amended in 2012 to release journalists from the risk of being charged with aiding and abetting the “violation of official secrets” for disclosing classified information. If the unauthorised disclosure does not amount to treason or espionage, and is not in wartime, several countries – including Moldova, the Russian Federation and Slovenia – limit criminal responsibility for unauthorised disclosures only to public servants.
In the United States, the Intelligence Identities Protection Act of 1981 provides criminal penalties in certain circumstances for intentional, unauthorised disclosure of information identifying a covert agent. However, offenders without authorised access to classified information are subject to punishment only if they participated in a pattern of activity designed to discover and reveal the identities of covert agents and had reason to believe that such disclosure would harm U.S. intelligence operations.
Other countries including Brazil, Chile, and Mexico distinguish between the penalties available for the unauthorised disclosure of information by members of the press and public on the one hand, and public servants, on the other.
Several countries have laws stating that information about corruption, human rights violations, or other crimes may not be classified or withheld
Mexico’s Federal Transparency and Access to Public Government Information Law 2002 includes a clause in Article 14 that explicitly overrides exceptions when the information is “related to the investigation of a severe violation of fundamental rights or crimes against humanity.” Romania’s RTI law, Article 13, provides that “information that favours or conceals the violation of the law by a public authority or institution” cannot be classified and should be disclosed in the public interest. Albania’s Law on Classified Information from 1999 states that “[c]lassification shall be prohibited when made with the intent of covering up (suppressing) violations of the law, or failures or the ineffectiveness of the state administration; depriving a person, organisation or institution of the right of access [to the relevant information]; or preventing or delaying the disclosure of information whose protection is not justified by national security interests.”
South Korea separates its defence budget into three secrecy categories
To raise the transparency of defence budgeting while mitigating the risk of exposing highly sensitive security-related information, the South Korean government separates the defence budget into three categories, depending on the degree of secrecy. Category A budget items are presented for discussion to the entire National Assembly in an aggregated form; Category B budget items are revealed to members of a designated National Assembly Committee of National Defence in a disaggregated and detailed form; and Category C items are further disaggregated and presented only to the Committee of National Defence. Organising information by degree of secrecy and designating special committees with the necessary level of security clearance has allowed for greater parliamentary control over the budget process.
[Source: J Chul Choi, ‘Chapter 6: South Korea’, in Pal Singh R (ed.), Arms Procurement Decision Making Volume I: China, India, Japan, South Korea and Thailand, 1998, http://books.sipri.org/product_info?c_product_id=156#contents]
The Australian Inspector General of Intelligence and Security oversees Australian intelligence agencies
The Australian Inspector General of Intelligence and Security (IGIS) provides independent monitoring as to whether the six Australia’s intelligence and security agencies referred to as the ‘Australian Intelligence Community’ have acted legally and with propriety. The IGIS may investigate complaints made by members of the public about any Australian Intelligence agency. It reports annually to the Australian Government and publishes an unclassified report for parliament and the public.
The government of Canada has published overall intelligence spending levels
The Canadian Security Intelligence Service publishes an annual public report, discussing key threats and responses and including overall budget.
The government of the Netherlands has published overall intelligence spending levels
The Dutch General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst (AIVD), publishes an annual report which includes its budget. The published version contains redactions where information is deemed sensitive.
The government of the UK has published overall intelligence spending levels
Each of the UK security and intelligence agencies produces its own set of accounts each year which are audited by the Comptroller and Auditor General and shown to the Chair of the Committee of Public Accounts. But they are not published for reasons of national security. The government publishes a financial statement for the Single Intelligence Account (SIA), which is the funding vehicle for the Secret Intelligence Service (SIS), Government Communications Headquarters (GCHQ) and the Security Service (MI5).
The UK National Audit Office publishes reports on its oversight of MOD budgeting and contracting
The UK’s National Audit Office scrutinises public spending on behalf of Parliament. It is independent of government and certifies the accounts of all government departments including defence, and publishes value for money studies looking at how government projects, programmes and initiatives have been implemented, and how they can be improved.
The US government has published overall intelligence spending levels
Since 2007 the US government has annually released its overall level of intelligence spending but has not divulged how it uses those funds. The detailed Office of the Director of National Intelligence Congressional Budget Justification Book has been released under FOIA request in a highly redacted form.
Thirty-eight countries reported on their military expenditures to the United Nations in 2013
Since the UN General Assembly established the reporting system for military expenditures, known as the United Nations Instrument for Reporting Military Expenditures, a total of 126 UN Member States have submitted a report to the UN Secretary-General regularly or at least once. In 2013, 38 countries submitted a report on military expenditures:
Albania, Armenia, Australia, Austria, Belarus, Bulgaria, Burkina Faso, Canada, Cyprus, Czech Republic, Denmark, Estonia, Germany, Iceland, India, Italy, Japan, Latvia, Liechtenstein, Lithuania, Macedonia, Malaysia, Mexico, Moldova, Montenegro, Netherlands, New Zealand, Poland, Portugal, Romania, Russia, Senegal, Serbia, Spain, Sweden, Switzerland, Turkey, Ukraine,
- Ensure opportunity for public engagement in all stages of military budgeting and spending
- Ensure that information of public interest is not subject to secrecy, unless disclosure would cause overriding harm
- Ensure that journalists and others who publish classified information are not subject to penalties, except in egregious cases