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National security and access to information

Doc. 13293: collection of written amendments | Doc. 13293 | Final version

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1The Parliamentary Assembly recalls the importance of the principle of transparency, including access to information held by public authorities, for democracy and good governance in general and for the fight against corruption in particular.
2It welcomes the fact that the Council of Europe was the first intergovernmental organisation to elaborate an international legal instrument on access to information, namely the Council of Europe Convention on Access to Official Documents (CETS No. 205), whilst recalling its Opinion 270 (2008) on the draft convention in which the Assembly had encouraged the Committee of Ministers to improve the text with a view to ensuring even greater transparency. The convention still requires four ratifications in order to enter into force.
3The Assembly considers legitimate, well-defined national security interests as valid grounds for withholding information held by public authorities. At the same time, access to information forms a crucial component of national security, by enabling democratic participation, sound policy formulation and public scrutiny of State action.

In the draft resolution, after paragraph 3, insert the following paragraph:

"Recalling the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, the Assembly strongly confirms that the systematic violation of human rights undermines true national security and may jeopardise international peace and security. A State responsible for such violation shall not invoke national security as a justification."

4Recalling its Resolution 1838 (2011) on abuse of State secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations and its Resolution 1675 (2009) on the state of human rights in Europe: the need to eradicate impunity, the Assembly stresses the need to place reasonable limits upon the invocation of national security as grounds to restrict access to information.
5In particular, the Assembly reconfirms its position, expressed in paragraph 4 of Resolution 1838 (2011), that information concerning the responsibility of State agents who have committed serious human rights violations such as murder, enforced disappearance, torture or abduction does not deserve to be protected as secret. Such information should not be shielded from judicial or parliamentary scrutiny under the guise of “State secrecy”.

01 October 2013

Tabled by the Committee on Culture, Science, Education and Media

Votes: 23 in favor 82 against 6 abstentions

In the draft resolution, after paragraph 5, insert the following paragraph:

"Public authorities may access private information, communication or personal data on grounds of national security only, where this has been prescribed by law, an overriding requirement of the need for such access is established and the concrete measure is necessary in a democratic society in order to protect the existence of the nation or its territorial integrity or political independence against force or threat of force. Public authorities must not delegate this power to private persons or companies contracted to work for the protection of national security otherwise. Measures applied in this context must be open to administrative or judicial review."

6The Assembly welcomes the adoption, on 12 June 2013, by a large assembly of experts from international organisations, civil society and academia and of national security practitioners, of the “Global Principles on National Security and the Right to Information” (“the Global Principles”), which are based on existing standards and good practices of States and international institutions. The Global Principles are designed to give guidance to legislators and relevant officials throughout the world with a view to reaching an appropriate balance between public interests both in national security and in access to information.
7The Assembly supports the Global Principles and calls on the competent authorities of all member States of the Council of Europe to take them into account in modernising their legislation and practice concerning access to information.
8The Assembly wishes to stress, in particular, the following principles:
8.1As a general rule, all information held by public authorities should be freely accessible; in addition, business enterprises, including private military and security companies, have the responsibility to disclose information in respect of situations, activities or conduct that may reasonably be expected to have an impact on the enjoyment of human rights.

01 October 2013

Tabled by the Committee on Culture, Science, Education and Media

Votes: 18 in favor 99 against 13 abstentions

In the draft resolution, paragraph 8.1, after the words "should be freely accessible", insert the following words: "by the public, where such information is of public concern, or by an individual who has the right to receive information such as personal data".

8.2Exceptions from the rule of free access to information which are based on national security, or other equally important public interests such as the protection of international relations, health and safety or the environment, or on privacy interests, must be provided by law, pursue a legitimate purpose and be necessary in a democratic society.

In the draft resolution, paragraph 8.2, delete the following words: "such as the protection of international relations, health and safety or the environment, or on privacy interests".

8.3Limitations to the rule of free access to information, including the rule of the neutrality of the Internet, should be interpreted restrictively. The burden of demonstrating the legitimacy of any restriction rests with the public authority seeking to withhold information.

01 October 2013

Tabled by the Committee on Culture, Science, Education and Media

Votes: 134 in favor 0 against 1 abstention

In the draft resolution, at the end of paragraph 8.3, add the following sentence: "The neutrality of the internet requires that public authorities, internet providers and others abstain from using invasive wiretapping technologies, such as deep packet inspection, or from otherwise interfering with the data traffic of internet users."

01 October 2013

Tabled by the Committee on Legal Affairs and Human Rights

Votes: 125 in favor 2 against 1 abstention

In amendment 7, replace the words "at the end of paragraph 8.3, add the following sentence" with the following words: "before paragraph 9, insert the following paragraph".

8.4Rules on the procedure for the classification and declassification of information and the designation of persons authorised to perform this task should be clear and publicly accessible. Information may be withheld on national security grounds for only as long as is necessary to protect a legitimate national security interest.

In the draft resolution, at the end of paragraph 8.4, add the following sentence: "Public archives containing secret information should periodically review whether the legitimacy of secrecy still exists on national security grounds."

8.5As a safeguard against overly broad exceptions, access to information should be granted even in cases normally covered by a legitimate exception, where public interest in the information in question outweighs the authorities’ interest in keeping it secret. An overriding public interest can typically be found where the publication of the information in question would:
8.5.1make an important contribution to an ongoing public debate;

01 October 2013

Tabled by the Committee on Culture, Science, Education and Media

Votes: 25 in favor 103 against 6 abstentions

In the draft resolution, delete paragraphs 8.5.1 and 8.5.2.

8.5.2promote public participation in political debate;
8.5.3expose serious wrongdoings, including human rights violations, other criminal offences, abuse of public office and deliberate concealment of serious wrongdoing;
8.5.4improve accountability for the running of public affairs in general and the use of public funds in particular;
8.5.5benefit public health or safety.
8.6Information about serious violations of human rights or humanitarian law should not be withheld on national security grounds in any circumstances.
8.7A person who discloses wrongdoings in the public interest (whistle-blower) should be protected from any type of retaliation, provided he or she acted in good faith and followed applicable procedures.

01 October 2013

Tabled by the Committee on Culture, Science, Education and Media

Votes: 136 in favor 2 against 3 abstentions

In the draft resolution, after paragraph 8.7, insert the following paragraph:

"Recalling Recommendation (2000) 7 of the Committee of Ministers, the Assembly reiterates that the following measures should not be applied if their purpose is to circumvent the right of journalists not to disclose information identifying a source: (i) interception orders or actions concerning communication or correspondence of journalists or their employers, (ii) surveillance orders or actions concerning journalists, their contacts or their employers, or (iii) search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work."

01 October 2013

Tabled by the Committee on Legal Affairs and Human Rights

Votes: 123 in favor 1 against 4 abstentions

In amendment 10, replace the words "after paragraph 8.7" with the following words: "before paragraph 9".

8.8Requests for access to information should be dealt with in a reasonable time. Decisions to refuse access should be duly motivated, open to appeal before an independent body and ultimately subject to judicial review. Upon receipt of a request for information, a public authority should in principle confirm or deny whether it holds the requested information.

01 October 2013

Tabled by the Committee on Culture, Science, Education and Media

Votes: 135 in favor 1 against 1 abstention

In the draft resolution, paragraph 8.8, second sentence, replace the words "an independent body" by the following words: "a national authority".

01 October 2013

Tabled by the Committee on Legal Affairs and Human Rights

Votes: 130 in favor 4 against 4 abstentions

In amendment 11, before the words "national authority", insert the following word: "independent".

30 September 2013

Tabled by Mr Volodymyr ARIEV, Mr Giorgi KANDELAKI, Mr Pavlo RYABIKIN, Mr Gergely GULYÁS, Mr Emanuelis ZINGERIS

Votes: 26 in favor 98 against 11 abstentions

In the draft resolution, at the end of paragraph 8.8, insert the following words: "In no way should there be any restrictions on the information pertaining to financial statements of state officials, persons holding positions and civil servants, as well as pertaining to spending made by state officials or public institutions, persons holding positions and civil servants in the execution of their functions."

8.9Public oversight bodies in charge of overseeing the activities of the security services should be independent from the executive and have relevant expertise, robust powers of investigation and full access to protected information.
9The Assembly calls on all the member States of the Council of Europe which have not yet done so to sign and ratify the Council of Europe Convention on Access to Official Documents and to implement and, in due course, further improve the convention in the spirit of the Global Principles.

In the draft resolution, after paragraph 9, insert the following paragraph:

"The Assembly is worried about recent disclosures on massive surveillance of communications by secret services and resolves to follow up this important issue in due course."

Explanatory note

The access by the State to information held by the people is important enough to be the subject of an individual report, rather than just a few amendments to the present resolution. Two motions on this subject have been transmitted to the Committee on Legal Affairs for report.

CDraft Recommendation

1The Assembly refers to its Resolution ... (2013) on national security and access to information and invites the Committee of Ministers to:
1.1examine ways and means to promote the entry into force and speedy implementation of the Council of Europe Convention on Access to Official Documents (CETS No. 205);
1.2to review the Council of Europe’s own policies regarding access to information and classification and declassification of documents in light of the Assembly’s resolution;
1.3encourage member States of the Council of Europe to take into account the “Global Principles on National Security and the Right to Information,” adopted on 12 June 2013 by an assembly of experts from international organisations, civil society, academia and national security practitioners, in particular concerning the points highlighted in the above-mentioned resolution, in modernising their legislation and practice.