Other Information Necessary for an Informed Electorate
Given the considerable public interest surrounding the decision to take part in the invasion of Iraq in 2003, two journalists acted legitimately when they published classified threat assessments and the names of specific foreign partners, and therefore charges against them for having disclosed state secrets were dismissed.
Background. In its verdict of September 2005 the Eastern Division of the Danish High Court found Frank Grevil, a public servant with the Danish Defence Intelligence Service, guilty of disclosing confidential information without authorisation. In February 2004, he had disclosed three threat assessments of October 2002, January and March 2003 to two Danish journalists and an editor. The journalists published stories in February and March 2004 based on the information knowing that it was secret and confidential. Frank Grevil was charged with having disclosed state secrets and the media defendants were charged with publishing confidential information.
A high-ranking officer of the Danish Defence Intelligence Service asserted that it was not publication of the content of the threat assessments but publication of names of specific foreign partners and the fact that there had been a leak at all that represented a very serious risk to the Defence Intelligence Service's ability to collect information from sources in the future. However, no evidence was offered that the leak had a concrete negative impact on the Services’s relationship with sources.
When the articles were published, there was considerable public interest in knowing the basis for the decision taken in March 2003 by the Danish Government to become involved in the military action in Iraq, and the question as to whether Iraq might possess weapons of mass destruction was an important part of such concerns. In the opinion of several witnesses, publishing the information at issue was of material importance to the public debate in helping the public to understand the role of the Intelligence Service and contributing to greater openness surrounding the affairs of the Intelligence Service. The witnesses testified that the articles were likely to influence the basis on which decisions were made in similar situations in the future.
Judgment. The Copenhagen City Court upheld the conviction of Grevil but reversed as to the journalists. The question as to whether media defendants may be punished for these offences depends on whether their disclosure of confidential information can be characterised as "unauthorized", or whether instead it is proved that the defendants "acted legitimately in the obvious public interest". The Court reasoned that the provisions of the Danish Criminal Code must be read in light of Article 10 of the European Convention on Human Rights and case law from the European Court of Human Rights. The Court concluded that such importance must be attached to the considerable public interest surrounding the decision to take part in the invasion of Iraq in 2003, compared with the risk that the operations of the Intelligence Service would suffer, that it decided that the defendants acted legitimately in the obvious public interest when they chose to disclose the confidential information. The media defendants, accordingly, were acquitted.
A journalist with the Guardian newspaper filed a request in March 2005 with the BBC (British Broadcasting Corporation) – which is covered by the FOI Act except for information that is held for the purposes of journalism, art and literature (see section on Private Bodies: Public Media - for the minutes of the BBC Governors’ meeting that discussed how to respond to the Hutton Report. The Hutton Inquiry investigated the death of government weapons inspector David Kelly, who was found dead after being named as the possible source of a BBC story about the government’s dossier on Iraq’s Weapons of Mass Destruction. The BBC story suggested that the government had inserted intelligence into the dossier, probably knowing it to be wrong, and had ordered the dossier to be “sexed up”. The Hutton Report rejected these allegations and criticized the BBC.
The BBC Board of Governors refused the request for disclosure, claiming that disclosure would inhibit the free and frank exchange of views for the purposes of deliberation, pursuant to FOIA section 36(2)(b)(ii). This section allows information to be exempt if “in the reasonable opinion of a qualified person … disclosure of the information … would, or would be likely to, inhibit the free and frank exchange of views for the purposes of deliberation.” The Guardian petitioned the Information Commissioner, who issued a decision on 15 February 2006 upholding the BBC’s refusal. The Guardian then appealed to the Information Tribunal.
The Tribunal conducted a hearing at which Greg Dyke, who resigned as Director General of the BBC following the Hutton Report, gave evidence. The Tribunal issued a written decision which simultaneously dealt with a similar request by writer Heather Brooke. The Tribunal ruled that the exemption applied but that the public interest nonetheless favored disclosure. The Tribunal reasoned that “It does not seem to us that the likelihood of inhibition of future discussions, resulting from disclosure of the minutes of 28 January 2004, would be particularly high, or that any such inhibition would be particularly severe or frequent. The more sensitive the future material at the time of an information request, the greater the prospect that the public interest represented by the exemption will be held to outweigh the public interest in disclosure of that particular material. Future cases arising under s 36 can be considered on their own merits, in light of their own particular circumstances.” (Para. 113.)
The Tribunal considered the following factors to be particularly significant:
- Given the role of the Governors in regulating the BBC as trustees of the public interest, there is a strong public interest in information about the workings of the Governors, and all the more so in the particular context of this case. (Para. 120)
- The Governors would have been aware that the Act applied to the BBC, and that their deliberations might become public at some future date. (Para.100)
- The passage of time since the creation of the information had an important bearing on the balancing exercise; the requests were made more than a year after the meeting and at a time when the matters discussed at the meeting were no longer the subject of deliberations within the BBC. (Para. 105)
- Importance and sensitivity are not the same thing. The subject-matter of the meeting was of the very highest importance. However, the Commissioner markedly overstated the degree of sensitivity. Within hours after the meeting was over, the outcome, in particular that the Governors considered it right to part company with Mr Dyke, was publicly known. (Para. 110)
The Tribunal ordered disclosure of the minutes and the BBC complied.
 Copenhagen City Court, December 4, 2006
 See Guardian Newspapers & Heather Brooke v. Information Commissioner, Information Tribunal, Appeals Numbers EA/2006/0011 and EA/2006/0013, decision of Jan. 8, 2007, at http://foiwiki.com/foiwiki/info_tribunal/DBFiles/Decision/i81/Guardian%20Brooke.pdf