Challenging The Regime Of National Security Laws and RTI in light of Tshwane Principles

Right to Information is a step taken by the government that authorizes the public to ask for any information from any government department. It makes the officials accountable. It covers all the documents, records, papers, certificates, photographs, or any other information as soft copies that reside with or can be obtained by the government authorities. Though being this much vast here is an exception to this providing of information and this exception is National Security Concerns. People can be denied information on the basis that the information is essential for National Security and hence cannot be revealed. “National Security Information includes information relating to International Relations, Military Actions, Law and Order, Buying and Selling of Nuclear Weapons, effective policy formulation, economic interests of State, law and order, public health and safety or any other information that can harm the National Security of the country”[1].

Right to Information is a fundamental right and National Security Concerns being a privilege against it, they both move in opposite directions. As both are important, maintaining a balance between the two is a must and this is the responsibility of the Government. Right to Information cannot be used to the extent that it leads to leaking the information of National importance but the government cannot suppress this right enforcing National Security concerns as a restriction beyond a reasonable limit. Unreasonable use of this restriction would lead to infringement of people’s right to question for the accountability of the government that acts as an instrument against abuse of power. Thus, the restriction of National Security Concerns should be used in a way that is consistent with the principles of democracy.


Information on National Security Concerns

Information covered under the National Security Concerns is wide enough to cover different aspects but limited by different factors. “The word Security has a very subjective interpretation as the same situation can be sensitive and overvalued for some whereas worthless for the others.”[2] This can be better understood by taking an example of how different countries interpret different situations and place the restriction of National Security Concerns on disclosing their information. The most important information comes under this category is Foreign Relations (especially for the U.S.A where the President has the discretion to categorize any information which is secured by foreign relations). Any diplomatic relations between the countries or the ambassadors are not made public and are subject to National Security Concerns.

While comparing with other countries the following observation can be made:

  • South Africa includes defense Security and International Relations as an exception to the Access to Information Act”[3].

  • Whereas in Canada it goes beyond international relations and defense to anything that is the interest of state including the economic matters or well-being of the people.[4].

  • In Mexico, this information is subject to the rules set by the Federal Institute of Access to Information and Data Protection.[5].

  • In Estonia, it includes information categorized as secret by state and other inter-governmental organizations.[6]

  • In India, Section 8 (1) of the RTI act of India provides for all the stances where the information is restricted which includes information of criminal offenders and information from a foreign government.

Hence, it can be concluded that there are no particular set standards or procedure to classify ant of the information as a threat to the national security but it depends on the information if publicized will affect the country be it the international relations or defense or economy of the country or health of the people.


Tshwane Principles

These principles were drafted in 2013 to set standards to maintain balance to safeguard people’s right to information and government to protect the secret information. These principles are the complete rulebook that provides the countries with rules to classify and declassify the information, rules regarding handling the requests for information, about judicial aspects of Right to information and National Security, limits and measures to sanction or restrain the information, bodies that see over the National Security and the information that should be disclosed and that should not be. They are proper guidelines for limits of secrecy, duties of public authorities, parameters to decide the public interest, protected disclosures, and humanitarian violations.


When can RTI override National Security Laws

Though National Security is a restriction to the Right to information still there are some exceptions to this. In India, Section 8 (2) of the RTI act of India 2005, itself says that anything written in subsection 1 of Section 8 would not restrict information if not disclosing the information causes greater harm i.e if public interest outweighs the government’s security interests. Not only RTI act says so or India follows this but this is a general rule followed worldwide ad Tshwane Principles says it all.

Human rights have an overriding public interest as it comes to the violation of rights, considers humanitarian grounds and provides for a remedy to the victims. The information includes information about the incident, places, and organizations concerned from any of the state or country.

There is an overriding public interest in information related to liberty and security of a person where there is a threat to the right to life. No information regarding the person who has been arrested or imprisoned or has died in state custody can be prevented from disclosing until and unless asked by the family members to keep the name secret.

Information about military attacks and the acquisition of nuclear weapons also comes under this though the information will not be given online. It includes information on laws governing surveillance and such laws used by authorities to violate the rights of people.

Financial Statements and budget guidelines of different departments also come under this. Any information on public health is an exception and can be disclosed if doing so would help people to prevent its spread and take precautionary measures.


Important Duties Associated

The state must classify the information and handle the requests accordingly. All the requests received seeking information shall be dealt with expeditiously whether the information asked is classified or not. In case the information asked is classified and cannot be revealed proper reasons must be told and the public has further option to review it by a higher independent body and ask for justification. If some document contains both protected and unprotected information the public authority has a duty to disclose the unprotected part and cite a proper justifiable reason for not disclosing the other.

Whenever information is denied by public authorities to be disclosed in legal proceedings the court can recheck whether the information can be withheld on the basis of National security or not. Information already classified can be revealed in court for ensuring a fair trial. The court is independent to determine whether a piece of information is fit for public disclosure or not. It includes the proceedings, criminals involved, charges in the case, the progress of the case to be made public. The public can have access to information on human rights violations and the abuses suffered by the victim.

Separate independent oversight bodies must also be set up which has the power to access all protected information and use it as required. These provide mechanisms and reports which are open to the public.


Protection against disclosures

“Any public personal is safe even if he reveals any information which is otherwise classified or protected but has sufficient grounds to ensure that it is for public interest and this is called protected disclosure”[7]. The information includes criminal abuses, human rights violations, danger to environment and water resources, corruption, public health, and safety or anything about which a person has reasonable grounds to believe to make the information public. Any person from public authorities can reveal this information internally to the persons appointed by the authority (for the specific purpose) or directly to the oversight bodies. Then there must be proper investigation and measures should be provided to resolve the matter. The person who discloses this information must be protected from both the criminal and civil proceedings against him. Public Interest always acts as self-defense.


Conclusion

So, with so much in hand the chances of manipulating the people if they ask for some information decreases. The restriction of National Security concerns cannot be used wrongly and public interest is supreme. Thus, people can take part in all government activities and can keep a check on their functioning. The public must be satisfied and so people can ask questions to the authorities where information must be provided but this has to maintain balance with the government in keeping some secure information protected where the public can be restricted for the better governance of the country and to keep the essence of democracy.


References:

[1] The Global Principles on Right to Information and National security (Tshwane Principles), Principle 2. [2] Modzelewski, Wojciech & Hartliński, Maciej, Main Categories of National Security, 2015. [3] Toby Mendel, Defining the Scope of National Security: Issues Paper for the National Security Principles Project,2013, [4] ibid. [5] ibid. [6] ibid. [7] The Global Principles on Right to Information and National security (Tshwane Principles), Principle 37.


Submitted by:

Riddhima Chaddha


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