National security is one of the exceptions under all access to information (ATI) laws. However, few of the laws, or their implementing regulations, define national security for purposes of withholding information. Nor do they set froth clear standards or procedures for classifying or otherwise withholding information on security grounds.
National security and the public’s right to know are often viewed as pulling in opposite directions. While there is at times a tension between a government’s desire to keep information secret on national security grounds and the public’s right to information held by public authorities, 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.
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. 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.
In recent years, a significant number of states around the world have embarked on adopting or revising classification regimes and related laws. This trend in turn has been sparked by several developments. Perhaps most significant has been the rapid adoption of access to information laws since the fall of the Berlin Wall, with the result that, as of June 2013, more than 5.2 billion people in 95 countries around the world are entitled to exercise the right of access to information—at least in law, if not in practice. People in these countries are—often for the first time—grappling with the question of whether and under what circumstances information may be kept secret. Other developments contributing to an increase in proposed secrecy legislation include government responses to terrorism or the threat of terrorism, and an interest in having secrecy regulated by law in the context of democratic transitions.
Global Principles on National Security and the Right to Information (the Tshwane Principles)
These Principles were developed in order to provide guidance to those engaged in drafting, revising or implementing laws or provisions relating to the state’s authority to withhold information on national security grounds or to punish the disclosure of such information.
For more detail, see a full page dedicated to the Global Principles on National Security and the Right to Information (the Tshwane Principles), including international and regional law and standards and writings of experts.
In 2013 Japan passed a new State Secrecy Law that, according to the UN Rapporteurs on Freedom of Expression and the Right to Health, "includes serious threats to whistleblowers and even journalists reporting on secrets.” The following documents provide additional information about the law, and how it compares on an international level.
- Official (tentative) translation of Japan’s Act No. 108 of 2013 on the Protection of Specially Designated Secrets.
- Coliver, Sandra, Japan’s State Secrecy Law Faulted in Human Rights Review, 13 August 2014.
- Halperin, Morton H. and Molly Hofsommer, , September 2014. s
- Fujita, Sanae, Japanese secrecy act a serious step backwards for transparency, human rights and democracy. (also available in Japanese)
- Open Society Justice Initiative, Submission on Japan’s Secrecy Act to the UN Human Rights Committee, submitted 14 June 2014.
- Repeta, Lawrence, A New State Secrecy Law for Japan? 新たな秘密保護法？,11 The Asia-Pacific Journal, 42, October 2013.
- Repeta, Lawrence, Japan’s 2013 State Secrecy Act—The Abe Administration’s Threat to News Reporting “Japan Focus,” 12 The Asia-Pacific Journal 10, March 2014.
- Repeta, Lawrence, Raising the Wall of Secrecy in Japan-the State Secrecy Law of 2013, 21 Meiji Law Journal 13, 22, 2014. (discussing deliberations in the diet, and citing numbers from official government report on comments received)
- Repeta, Lawrence, How Serious Were Japan's Information Leaks?, 20 August 2014.
Information related to South Africa's Secrecy Law will be added shortly.