On national security

Wednesday, March 13, 2019

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 forth 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 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.

A Guest Editorial