The committee 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. It considers legitimate, well-defined national security interests as valid grounds for withholding information. 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.
The committee welcomes the adoption in 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” 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. It 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.
The committee stresses a number of particularly important principles, including the need for robust oversight over the activities of secret services, the protection of bona fide disclosures of wrongdoings by “whistle-blowers” and the availability of a “public interest override” as a safeguard against overly broad exceptions from the general rule of free accessibility of all information held by public authorities. 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.
“Nevertheless, the Court has recently advanced towards a broader interpretation of the notion of “freedom to receive information” (see Sdružení Jihočeské Matky c. la République tchèque (dec.), no. 19101/03, 10 July 2006) and thereby towards the recognition of a right of access to information.”Note
“The concept of ‘State secrets’ has often been invoked to obstruct the search for the truth (see paragraphs 46 and 103 above). State secret privilege was also asserted by the US government in the applicant’s case before the US courts (see paragraph 63 above). The Marty inquiry found, moreover, that ‘the same approach led the authorities of ‘the former Yugoslav Republic of Macedonia’ to hide the truth’ (see paragraph 46 above).”Note
“1. In the event of any imminent or actual threat to public health, public safety, or the environment, all information that could enable the public to understand or take measures to prevent or mitigate harm arising from that threat, whether the threat is due to natural causes or caused by human activities, including by actions of the state or by actions of private companies;
2. Other information, updated regularly, on natural resource exploitation, pollution and emission inventories, environmental impacts of proposed or existing large public works or resource extractions, and risk assessment and management plans for especially hazardous facilities.”
“A clear-eyed review of recent history suggests that legitimate national security interests are, in practice, best protected when the public is well informed about the State’s activities, including those undertaken to protect national security.”Note
“Striking the right balance is made all the more challenging by the fact that courts in many countries demonstrate the least independence and greatest deference to the claims of government when national security is invoked. This deference is reinforced by provisions in the security laws of many countries that trigger exceptions to the right to information as well as to ordinary rules of evidence and rights of the accused upon a minimal showing or even the mere assertion by the government of a national security risk. A government's over-invocation of national security concerns can seriously undermine the main institutional safeguards against government abuse: independence of the courts, the rule of law, legislative oversight, media freedom, and open government.”Note
“No restriction on the right to information on national security grounds may be imposed unless the government can demonstrate that: (1) the restriction (a) is prescribed by law and (b) is necessary in a democratic society (c) to protect a legitimate national security interest, and (2) the law provides for adequate safeguards against abuse, including prompt full, accessible and effective scrutiny of the validity of the restriction by an independent oversight authority and full review by the courts.”
“a. Prescribed by law. The law must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to understand what information may be withheld, what should be disclosed, and what actions concerning the information are subject to sanction.Note
b. Necessary in a democratic society.i Disclosure of the information must pose a real and identifiable risk of significant harm to a legitimate national security interest.ii The risk of harm from disclosure must outweigh the overall public interest in disclosure.iii The restriction must comply with the principle of proportionality and must be the least restrictive means available to protect against the harm.iv The restriction must not impair the very essence of the right to information.
c. Protection of a legitimate national security interest. The narrow categories of information that may be withheld on national security grounds should be set forth clearly in law.”
“A national security interest is not legitimate if its genuine purpose or primary impact is to protect an interest unrelated to national security, such as protection of government or officials from embarrassment or exposure of wrongdoing; concealment of information about human rights violations, any other violation of law, or the functioning of public institutions; strengthening or perpetuating a particular political interest, party or ideology; or suppression of lawful protests.”Note
“To the extent that particular information concerning terrorism, and counter-terrorism measures, is covered by one of the above categories, the public’s right of access to such information may be subject to restrictions on national security grounds in accordance with this and other provisions of the Principles.”
“[P]ublic authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately classified information under their control. Other individuals, including journalists, media workers and civil society representatives, who receive and disseminate classified information because they believe it is in the public interest, should not be subject to liability unless they committed fraud or another crime to obtain the information.”Note
“The names and other personal data of victims, their relatives and witnesses may be withheld from disclosure to the general public to the extent necessary to prevent further harm to them, if the person concerned expressly and voluntarily requests withholding, or withholding is otherwise manifestly consistent with the person’s own wishes or the particular needs of vulnerable groups. Concerning victims of sexual violence their express consent should be required. Child victims (under age 18) should not be identified to the general public. This principle should be interpreted, however, bearing in mind the reality that various governments have, at various times, shielded human rights violations from public view by invoking the right to privacy, including of the very individuals whose rights are being or have been grossly violated, without regard to the true wishes of the affected individuals.”
“Access to information, by enabling public scrutiny of State action, not only safeguards against abuse by public officials but also permits the public to play a role in determining the policies of the State and thereby forms a crucial component of genuine national security, democratic participation, and sound policy formulation. In order to protect the full exercise of human rights, in certain circumstances it may be necessary to keep information secret to protect legitimate national security interests.”